Max Planck Yearbook of United Nations Law

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Max Planck Yearbook of United Nations Law Volume 3 1999

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Max Planck Yearbook of United Nations Law Volume 3 1999 Editors Jochen A. Frowein Riidiger Wolfrum Assistant Editor Christiane E. Philipp

Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht

KLUWER LAW INTERNATIONAL THE HAGUE - LONDON - BOSTON

Published by Kluwer Law International Ltd Sterling House 66 Wilton Road London SW1V IDE United Kingdom

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

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

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

ISBN 90-411-9753-2 Series ISBN 90-411-0730-4 © Kluwer Law International 1999 First published 1999

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library This book should be cited as follows: Max Planck UNYB

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

Printed and bound in Great Britain by Antony Rowe Limited, Chippenham and Reading

Prof. Dr. Winfried Lang died at the age of 58 in May 1999. In spite of his numerous professional duties, he always showed keen interest in legal science, as demonstrated by his numerous publications. We are grateful that despite the severity of his ongoing illness he worked on his article for the Yearbook with dedication and great interest and finished it to his usual high standard.

Jochen A. Frowein

Heidelberg, June 1999

Riidiger Wolfrum


Contents List of Contributors Abbreviations Szasz, Paul C., The Complexification of the United Nations System Krisch, Nico, Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council

IX XIII

1

59

Petersmann, Ernst-Ulrich, Proposals for Strengthening the UN Dispute Settlement System — Lessons from International Economic Law

105

Lang, Winfried, UN-Principles and International Environmental Law

157

Wood, Michael C., International Seabed Authority: The First Four Years

173

Boisson de Chazournes, Laurence, The Global Environment Facility Galaxy: On Linkages among Institutions

243

Bekhechi, Mohammed Abdelwahab, Some Observations Regarding Environmental Covenants and Conditionalities in World Bank Lending Activities

287

VIII

Max Planck UNYB 3 (1999)

Henne, Gudrun/Fakir, Saliem, The Regime Building of the Convention on Biological Diversity on the Road to Nairobi

315

Sand, Peter H., Carrots without Sticks? New Financial Mechanisms for Global Environmental Agreements

363

Sands, Philippe, International Courts and the Application of the Concept of "Sustainable Development"

389

Stall, Peter-Tobias/Steinmann, Arthur, WTO Dispute Settlement: The Implementation Stage

407

Ziegler, Andreas R., Scope and Function of the WTO Appellate System: What Future after the Millennium Round?

439

Tarasofsky, Richard G., The WTO Committee on Trade and Environment: Is it making a Difference?

471

Wolfrum, Riidiger, The Committee on the Elimination of Racial Discrimination

489

Book Reviews

521

List of Contributors Bekhechi, Mohammed Abdelwahab Senior Counsel at the Environmental and International Law Unit of the Legal Department of the World Bank; previously Professor of International Law at the Faculty of Law of the University of Oran (Algeria) Boisson de Chazournes, Laurence Professor, Law Faculty, University of Geneva; formerly Senior Counsel, Legal Department, World Bank Fakir, Saliem Country Programme Co-ordinator for the IUCN Country Office in South Africa; previously served as Advisor to the South African Government delegation for the Convention on Biological Diversity and participated in COP 2 and 3 Henne, Gudrun Independent Consultant, worked as a Special Advisor to the Executive Secretary of the Convention on Biological Diversity Krisch, Nico Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law; PhD candidate at the Faculty of Law, University of Heidelberg Lang, Winfried Ambassador of Austria to Belgium, NATO and WEU; Professor of International Law and International Relations at the University of Vienna; Chairman of numerous environmental meetings e.g. 1976-1983

X


OECD Group on Transfrontier Pollution, 1985 Vienna and 1987 Montreal ozone protection conferences; Panelist in the GATT-Panel (Second Tuna case) Petersmann, Ernst-Ulrich Professor of Law at the University of Geneva and its Graduate Institute of International Studies; Chairman of the International Trade Law Committee of ILA and former Legal Advisor in GATT and the WTO (1981-1997) and in the German Ministry of Economic Affairs (19781981) Sandt Peter H. Institute of International Law, University of Munich; formerly Legal Advisor for Environmental Affairs, World Bank Sands, Philippe Professor of International Law, University of London (School of Oriental and African Studies); Global Professor of Law, New York University; Co-Director, Project on International Courts and Tribunals Steinmann, Arthur PhD candidate at the Faculty of Law, University of Heidelberg Stoll, Peter Tobias Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Szasz, Paul C. Served in the legal offices of the IAEA in Vienna 1958-1966, of the World Bank in Washington from 1966-1971 (acting also as Secretary of the International Centre for Settlement of Investment Disputes), and of the United Nations in New York from 1971-1989, and again during 1997, for a number of years as Deputy to the UN Legal Counsel. He has written extensively in the field of international organization law and on the international legislative process

List of Contributors

XI

Tarasofsky, Richard G. Barrister and Solicitor, Berlin; Senior Associate of Ecologic-Centre for International and European Environmental Research Wolfrum, Riidiger Dr. iur., Professor of Public Law, University of Heidelberg; Director at the Max Planck Institute for Comparative Public Law and International Law; Member of the United Nations Committee on the Elimination of Racial Discrimination Wood, Michael C. Deputy Legal Adviser, Foreign and Commonwealth Office,London Ziegler, Andreas R. Dr. rer. publ.et.lic.iur. (St. Gallen), LL.M. (European University Institute), Graduate of the Academies of International Law (The Hague) and European Law (Florence); Head of Service for International and European Economic Law at the Federal Ministry of Foreign Economic Affairs (Berne)


Abbreviations AD

AFDI AJDA AJIL Am.UJ.Int'1 L.& Pol'y Am.U.L.Rev. Anu.Der.Internac. Arch.de Philos.du Droit Aus Pol.& Zeitgesch. Austrian J.Publ.Int. Law Austr.Yb.Int'l L. AYR Brook.J.Int'1 L. B.U.Int'l LJ. BVerfGE BYIL Cal.W. Int'l LJ. CaLW.L.Rev. Case W.Res. J. Int'l L. CLJ

Annual Digest of Public International Law Cases Annuaire Franfais de Droit International Actualite Juridique-Droit Administratif American Journal of International Law American University Journal of International Law and Policy American University Law Review Anuario de Derecho Internacional Archives de Philosophic du Droit Aus Politik und Zeitgeschichte Austrian Journal of Public International Law Australian Yearbook of International Law Archiv des Volkerrechts Brooklyn Journal of International Law Boston University International Law Journal Decisions of the German Federal Constitutional Court British Yearbook of International Law California Western International Law Journal California 'Western Law Review Case Western Reserve Journal of International Law Cambridge Law Journal

XIV

Max Planck UNYB 3(1999)

CML Rev. Common Market Law Review ColoJ.Int'l Envtl.L.& Pol y Colorado Journal of International Environmental Law and Policy Colum. Hum.Rts.L. Rev. Columbia Human Rights Law Review Columbia Journal of Transnational Law Colum. J. Transnat'l L. Comunita Internaz. La Comunita Internazionale Cornell International Law Journal Cornell Int'l L.J. CYIL Canadian Yearbook of International Law > Den.J.Int l.L.& Pol'y Denver Journal of International Law and Policy German Society of Public International DGVR Law Dick. J. Int'l L. Dickinson Journal of International Law Duke J. Comp. & Int'l L. Duke Journal of Comparative and International Law EA Europa-Archiv ECOSOC Economic and Social Council editor ed. eds editors European Free Trade Association EFTA exempli gratia e.g. EJIL European Journal of International Law Envtl. L. Rep. Environmental Law Reports EPIL Encyclopedia of Public International Law et alii et al. et sequentes et seq. etc. et cetera EuGRZ Europdische Grundrechte Zeitschrift Food and Agriculture Organization FAO Fordharn Int'l L.J. Fordham International Law Journal Foreign Aff. Foreign Affairs Foreign Pol'y Foreign Policy Georgia Journal of International and Ga.J.Int'1 & Comp.L. Comparative Law

Abbreviations

Geo.Int'l Envtl. L. Rev. Geo.LJ. Geo.Wash.J.Int'l L.&Econ. GYIL Harv.Int'l LJ. Hastings Int'l & Comp.L.Rev. HRLJ HRQ HuV-I IAEA ibid. IBRD ICAO ICLQ

id. i.e. IFAD IJIL ILA ILC ILCYB

ILM ILO ILR ILSAJ.Int'lL.

XV

Georgetown International Environmental Law Review Georgetown International Law Journal George Washington Journal of International Law and Economics German Yearbook of International Law Harvard International Law Journal Hastings International and Comparative Law Review Human Rights Law Journal Human Rights Quarterly Humanitdres Volkerrecht - Informationsschrift International Atomic Energy Agency ibidem; in the same place International Bank for Reconstruction and Development International Civil Aviation Organisation International Court of Justice International and Comparative Law Quarterly idem; the same id est; that is to say International Fund for Agricultural Development Indian Journal of International Law International Law Association International Law Commission Yearbook of the International Law Commission International Legal Materials International Labour Organization International Law Reports ILSA Journal of International Law (International Law Students Association)

XVI IMF IMO Ind.L.J. Int'l Aff. Int'l Law. Int'l Rev.of the Red Cross Iowa L. Rev. IP Is.L.R. Isr.Y.B. Hum.Rts. J.Int'l Aff. JIR JPR JWT LJIL McGill L. J. Mich.J.Int'l L. Mich.L.Rev. Mil. L. Rev. NAFTA NATO NILR NJCL Nord.J.Int'l L. NYIL

N.Y.U.J.Int'l L.& Pol. N.Y.U. L. Rev. Ocean & Coastal L. J. OZ6RV Pace Int'l Law Rev. PCIJ

Max Planck UNYB 3(1999) International Monetary Fund International Maritime Organization Indiana Law Journal International Affairs The International Lawyer International Review of the Red Cross Iowa Law Review Die Internationale Politik Israel Law Review Israel Yearbook on Human Rights Journal of International Aff airs Jahrbuch fiir Internationales Recht Journal of Peace Research Journal of World Trade Leiden Journal of International Law McGill Law Journal Michigan Journal of International Law Michigan Law Review Military Law Review North American Free Trade Area North Atlantic Treaty Organization Netherlands International Law Review National Journal of Constitutional Law Nordic Journal of International Law Netherlands Yearbook of International Law New York University Journal of International Law and Politics New York University Law Review Ocean and Coastal Law Journal Osterreichische Zeitschrift fiir offentliches Recht und Volkerrecht Pace International Law Review Permanent Court of International Justice

Abbreviations Pol.Sci. RADIC RBDI

RdC RDI RECIEL REDI Rev.Dr.Mil.Dr. Guerre Rev.ICR RGDIP Riv.Dir.Int. San Diego L. Rev. Stanford J. Int'l L. SZIER/RSDIE

Temp. Int'l & Comp.LJ. Tex.Int'l L.J. Tex.L.Rev. Transnat'l.L.& Contemp. Probs. Tul.J.Int'l & Comp.L. UCLAJ.EnvtLL.&Pol'y UCLAJ.Int'lL.&

XVII Political Science Revue Africaine de Droit International et Compare Revue Beige de Droit International Recueil des Cours de I'Academic de Droit International Revue de Droit International, de Sciences Diplomatique* et Politiques Review of European Community and International Environmental Law Revista Espanola de Derecho Internacional Revue de Droit Militaire et de Droit de la Guerre Revue Internationale de la Croix Rouge Revue Generale de Droit International Public Rivista di Diritto Internazionale San Diego Law Review Stanford Journal of International Law Schweizerische Zeitscbrift fur internationales und europdisches Recht/Revue Suisse de Droit International et de Droit Europeen Temple International and Comparative Law Journal Texas International Law Journal Texas Law Review Transnational Law and Contemporary Problems Tulane Journal of International and Comparative Law University of California Los Angeles Journal of Environmental Law and Policy University of California Los Angeles Jour-

XVIII

Foreign Aff. UCLA Pac.Basin LJ. UNCIO UNCITRAL UNCTAD UNDP UNEP UNESCO UNFPA UNHCR UNICEF UNIDO UNITAR UNJYB UNOSOM UNPROFOR UNRWA UNTS UNU UNYB UPU Va. J. Im'l L. Va.L.Rev. Vand.J.Transnat'l L


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

Abbreviations

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

Z. Vgl.R.Wiss.

XIX

Volume Verfassung und Recht in Ubersee World Competition Washington Law Review World Intellectual Property Organization World Food Programme World Meteorological Organization World Trade Organization Yale Human Rights & Development Law Journal Yale Law Journal Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht Zeitschrift fiir Rechtspolitik Zeitschrift fiir die vergleichende Rechtswissenschaft


The Complexification of the United Nations System Paul C. Szasz

I.

II.

III. IV. V.

VI.

VII.

Simple and Complex Subsidiary Organs and Quasi-Autonomous Bodies 1. Appointment of the Executive Heads of QABs 2. Appointment of the Staffs of QABs 3. Political Bodies of the QABs 4. Financing the QABs 5. Some Difficult-to-Classify Organs 6. Summary and Conclusions about QABs Treaty Organs 1. Human Rights TOs 2. Arms Control TOs 3. UN TOs established by Other Treaties 4. TOs of Other UN System IGOs 5. Summary and Conclusions about TOs Environmental Entities: TOs or IGOs? Specialized Agencies and Other UN System IGOs Joint Bodies 1. Joint Substantive Organs 2. Interorganizational Organizations 3. Administrative Organs of a Joint Character Temporary Entities 1. Conferences 2. Preparatory Commissions Concluding Observations

2


In its own way, matter has obeyed from the beginning that great law of biology, to which we shall have to recur time and again, the law of "complexification ". Pierre Teilhard de Chardin1 Not only matter and biology, but our understanding of the Universe2 as well as the organizations that people create for their governance appear to obey the law of complexification. Indeed, human institutions show many of the traits of biological systems, including a striving to grow as far as resources allow, a tendency to proliferate and a resistance to annihilation unless survival by successors is assured. The type of international phenomena described below can be observed in most national governments, few of which can still be described completely or even meaningfully in terms of just the principal constitutional structures such as a legislature, a chief executive and some senior courts, without taking account of ministries, departments, services, regulatory agencies, specialized subsidiary courts, and permanent or ad hoc commissions and coordinating bodies. Just half a century ago, the Charter of the United Nations laid down a rather simple structure for the Organization: internally it would consist of six principal and a number of subsidiary organs;3 externally it would be surrounded by a halo of specialized agencies with which it

The Phenomenon of Man, 1955, Book One, Chapter 1.3.A. The term "complexification" is discussed by Julian Huxley (the first DirectorGeneral of UNESCO) in his Introduction to the Perennial Library edition, 1975. For example, during the past half century (the period of UN evolution described in this study) our understanding of the universe evolved from observing the galaxies, stars, planets, moons, comets and asteroid that could be seen through the then best telescopes, to grasping phenomena such as super clusters of galaxies, globular clusters, black holes, quasars, pulsars, gamma-ray bursters, supernova, red dwarfs and white giants, binary systems, the Oort Cloud and the Kuiper Belt, not to speak of the hypothesized "cold dark matter"; similarly, during this period, we have progressed from conceiving the atom in terms of just protons, neutrons and electrons, to a whole zoo of sub-atomic panicles, including quarks of various flavors and colors, neutrinos, miscellaneous mesons and speculations about Higg's boson, gravitrons, strings, WIMPS and yet more exotic manifestations. See United Nations Charter Arts 7, 22, 29 and 68, and Article 26 of the ICJ Statute.

Szasz, The Complexification of the United Nations System

3

would maintain defined close relationships4 and which would be part of the "UN System". By today, this simple scheme has proliferated into a veritable jungle of miscellaneous entities, including numerous quasiautonomous bodies (described in Section I.), treaty organs (Section II.), enhanced treaty organs (Section III.), two categories of specialised agencies and other related organizations (Section IV.), and a variety of other entities and arrangements in part designed to coordinate these many new actors (Sections V. and VI.). This study will endeavour to describe and classify these various types of new structures, through which a substantial — if not the predominant — part of the work of the United Nations and of the UN System is currently carried out. It should be understood that this exercise in institutional taxonomy is — because of space limitations — not intended as a complete, authoritative description of all the entities mentioned and of their histories.5 Rather, it is but an academic essay to bring some order into the chaos resulting on the one hand from the very pliability of international administrative law, which is still largely uncodified and therefore easily permits convenient experimentation, and on the other from the rather ambivalent feelings of national governments that see the need for collective action in many areas yet hesitate to create still more potentially powerful permanent international structures. An attempt is also made to introduce some new terminology designed to clarify discussion in this murky field.

I. Simple and Complex Subsidiary Organs and QuasiAutonomous Bodies The United Nations Charter does not describe the types of subsidiary organs it refers to in Arts 7 para.2, 22 and 29. However, five of the principal organs listed in Article 7 para.l and established by later Chapters are all simple, in that each consists of only a single structure: a political See in particular United Nations Charter Arts 17 para.3, 57-58 and 63. Much useful data about the institutions described herein, as well as about many others, can be found in the annual United Nations Handbook published by the New Zealand Ministry of Foreign Affairs and Trade, which also contains a very full List of Acronyms. The Acronyms used in this article, including some specifically developed for this study, appear for the most part in the Annex hereto, except for those in the list of Abbreviations used for this book.

4


body in case of the General Assembly and the three Councils and an administrative one in case of the Secretariat; only the ICJ is complex, in that it consists of a judicial body and an administrative one (the Registry). The single subsidiary body established by the Charter itself is the Military Staff Committee, a simple political/expert body.6 It might therefore be assumed that the subsidiary organs that are foreseen would also be predominantly simple ones, and that indeed has been the nature of almost all the political,7 expert,8 judicial,9 military10 and secretariat 6 7

8

9

10

United Nations Charter Article 47. Political or representative bodies are those that consist of states, which appoint the representatives that actually constitute the body. For example, the Ad Hoc Committee on the Indian Ocean, the Committee on Conferences, the Committee on the Exercise of the Inalienable Rights of the Palestine People, and the United Nations Commission on International Trade Law (UNCITRAL) all established by the General Assembly; the Functional Commissions, such as the Commissions on Human Rights and on the Status of Women, established by the Economic and Social Council (ECOSOC); and the several Sanctions Committees established by the Security Council. Expert bodies are those whose members are persons selected, at least nominally, in their individual capacity and not as governmental representatives — though nationality is taken into account at least insofar as it is normally provided that such bodies shall not have more than one member of any nationality. Examples include the International Law Commission (ILC), the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and the Committee on Contributions, all established by the General Assembly; the Ad Hoc Group of Experts on International Cooperation in Tax Matters established by ECOSOC; and the SubCommission on Prevention of Discrimination and Protection of Minorities established by the Commission on Human Rights of ECOSOC. Judicial organs are ones whose members act as judges (whether or not that is their normal capacity), in that they perform their functions independently not only of their national governments but also of the organ that established the judicial body and of all other international organs. One example is the Administrative Tribunal established by the General Assembly. The two International Criminal Tribunals, for the Former Yugoslavia and for Rwanda, established by the Security Council, are also judicial organs, but they are not simple ones, as they consist of several organs: true judicial ones, the Trial and Appeals Chambers, and two separate secretariat ones, the Prosecutor and the Registry. Military organs are the peace-keeping operations, for the most part established by the SC, consisting of: a Commander (normally a high-ranking military officer seconded by a state to the UN Secretariat — and thus


5

organs11 that have been established. It should also be noted that some subsidiary organs are empowered by their mandates to establish subsubsidiary organs. Although probably unanticipated by the drafters of the Charter, over the years a number of complex subsidiary organs have been established. Many of these are, in effect, mini-intergovernmental organizations (IGOs), that consist of at least one political body and an executive head who directs a special secretariat for the organ. Indeed, the substantive interchangeability of some of these complex organs with specialized agencies (which, of course, are IGOs) can be illustrated by the fact that one short-lived specialized agency, the International Refugee Organization (IRO) was, on its dissolution, replaced by a complex subsidiary body, the UN High Commissioner for Refugees (UNHCR) and his Office, while the United Nations Industrial Development Organization (UNIDO), which originated as a General Assembly-established subsidiary organ, was replaced by the current specialized agency with the same name and substantially the same structure. In any event, unanticipated or not, these bodies actually carry out much of the substantive (as distinguished from the important political) work of the Organization, such as caring for refugees UNHCR and United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), nurturing children (United Nations Children's Fund (UNICEF)), conducting academic programmes (United Nations University (UNU)), financing development programmes (United Nations Development Programme (UNDP)), and their collective budgets considerably exceed that of the central organization.12

11

12

serving as a UN staff member); a number of military units made available by states (the personnel of which — officers and troops — remain in the direct employ of their states); a civilian component consisting of UN secretariat officials; and, sometimes, a police component (composed similarly to the military ones, from units borrowed, as such, from states). The Commander-in-Chief of all such operations is, in effect, the UN SG. Secretariat organs are ones that consist of international civil servants. These include substantive organs that perform most of the actual, continuing work of the Organization, and also merely administrative ones dealing with questions of the civil service itself, e.g., Staff Associations and Staff Councils, Joint Advisory Committees, etc. For 1994 UN members were assessed about US$ 1.2 billion for the Regular Budget (A/RES/48/231 C of 23 December 1993); for the biennium 19941995 voluntary contributions, largely to QABs, totaled over US$ 6.4 billion (or about US$ 3.2 billion for 1994), not including the substantial

6


Because they are structured like IGOs, and because of certain aspects of their composition and operations (described in the following sub-Sections), many of these complex organs enjoy a considerable degree of autonomy from their parent organs, and indeed from the central United Nations structure. They can, of course, never be completely independent, because they are not established by a treaty but by a resolution of a principal organ (mostly the GA), and that organ can at any time, by altering that resolution, change their structures, mandates and authorized methods of operation, and can indeed completely abolish or replace them.13 In other words, they lack independent legal personality, but partake of that of the United Nations.14 Although normally referred

13

14

(or about US$ 3.2 billion for 1994), not including the substantial contributions in kind and cash to the WFP (Section V.I (a) below). A major problem in analyzing the legal structures or the mandates of QABs is that although the initial, establishing resolution is usually formulated as a "statute" (see, e.g., the Statute of the Office of the UNHCR, see note 18), later changes to that instrument are not made in a codified form, i.e., by amending, adding, or deleting particular provisions — so that at any given time there would exist an up-to-date coherent constitutional instrument — but usually consists of just individual paragraphs of routine resolutions relating to or just mentioning the QAB. This is particularly problematic because the QABs, as living entities akin to IGOs, naturally keep altering and evolving, sometimes also reinventing themselves, in response to changes in demands for their services, the activities of other international bodies and the availability of resources; their mandates change, normally expand, sometimes as specifically directed by their parent organs and often essentially spontaneously. Thus the UNHCR, which was initially charged mostly with assisting European World War I and II refugees, soon found others under its purview arising from subsequent conflicts in all parts of the world; later responsibilities were added for persons displaced within their own countries, and even for persons still located in or close to their own communities but needing care because of ongoing conflicts around them. UNDP evolved from a mere collection and distribution agent for financial contributions from developed states, through designated IGOs (the Executing Agencies), to underdeveloped states, into a body carrying out many activities of its own and sometimes assisting governments directly. UNICEF, UNCTAD, etc. have all also experienced sea changes, into something rich and strange — at least from the point of view of their founders. This is an important consideration from many points of view, but in particular it means that these QABs (defined infra in this paragraph) are automatically covered by the Convention on the Privileges and Immunities of the United Nations (CPIUN), UNTS Vol. 1 No.I-4.


7

to as "organs", which technically they are within the classification established by Charter Article 7, they are probably better characterized as "bodies", for they themselves have organs. Consequently, it is suggested that they be referred to as Quasi-Autonomous Bodies (QABs), and this term will be used herein. Because QABs do not constitute an official category with a formal definition, but rather are those complex subsidiary UN organs/bodies that share, to a greater or lesser extent, the characteristics described under the headings below, it is not possible to establish a definitive list. However, the principal exemplars are: the already mentioned UNHCR, UNRWA, UNICEF and UNDP, as well as the United Nations Environment Programme (UNEP), the United Nations Centre for Human Settlements (UNCHS), the UNU and the United Nations Conference on Trade and Development (UNCTAD). In addition one might mention a former such body, the above mentioned UNIDO, which converted into a specialized agency, as well as a joint UN/FAO (Food and Agriculture Organization of the United Nations) organ, the World Food Programme (WFP).15 Finally, in addition to these relatively massive operations, programmes and funds, there are a number of smaller bodies that share the indicated characteristics but which will not be described further in this study, of which the following are examples: International Research and Training Institute for the Advancement of Women (INSTRAW); United Nations Interregional Crime and Justice Research Institute (UNICRI); United Nations Development Fund for Women (UNIFEM); United Nations Institute for Training and Research (UNITAR); United Nations Institute for Disarmament Research (UNIDIR); and United Nations Research Institute for Social Development (UNRISD); as well as numerous regional institutes and centres established by the five ECOSOC Regional Commissions and by the UNU. Although the QABs listed above and described in this Section are all ones established by the United Nations itself (i.e., by its principal organs), it should be noted that some of the specialized agencies and other organizations of the UN System have also created similar bodies, with essentially the same characteristics.16 15 16

See Section V. 1 (a) below. I.F.I. Shihata, the retiring General Counsel of the World Bank, referred to the Global Environment Facility (GEF) (see Section V.I (c) below) as an "entity which has all the characteristics of a new international organization except a fundamental one, at least from a legal viewpoint: It is not endowed

8


1. Appointment of the Executive Heads of QABs Although Charter Article 101 para.l provides that the "staff shall be appointed by the Secretary-General under regulations established by the General Assembly", the executive heads of almost all QABs are appointed by some device requiring the SG to secure the approval of or at least to consult with some other organ. That requirement is expressed in various ways, such as: (a) The Commissioner-General (originally the Director) of UNRWA is appointed by the UN SG in consultation with the Governments represented on the Advisory Committee of UNRWA;17 (b) The UNHCR is "elected by the General Assembly on the nomination of the Secretary-General";18 (c) The SG of UNCTAD "shall be appointed by the Secretary-General of the United Nations and confirmed by the General Assembly";19 (d) The Rector of UNU is appointed, from a short list prepared by a special Nominating Committee, by the UN SG in consultation with and with the concurrence of the DG of UNESCO;20 However expressed, it is clear that such executive heads are not the unfettered choices of the UN SG, as the UN-Charter appears to require for all staff members,21 and thus he cannot necessarily count on their

17 18 19 20

21

with a juridical personality of its own but is a semi-autonomous entity that relies heavily on the World Bank as its main 'implementing agency' and as the Trustee of its [Global Environment Trust] Fund.-[I]ndeed, some commentators have argued that the restructured GEF has expanded or will expand the four financial institutions of the World Bank Group to five, a suggestion the truth of which will depend on the evolution of this new quasi-organization." Id., "The Environment, Arms Control, Human Rights and the World Bank", Appendix 1 of Administrative and Expert Monitoring of International Treaties, 1999, 247 et seq., (248-49). A/RES/302 (IV) of 8 December 1949, para. 9 (chapeau). A/RES/428 (V) of 14 December 1950, Annex, para. 13. A/RES/1995 (XIX) of 30 December 1964, Part II, para. 27. Charter of the United Nations University, Doc.A/9149/Add.2 (1973), adopted by the General Assembly by A/RES/3081 (XXVIII) of 6 December 1973, article V.I. Although some constitutional objections appear to have been raised within the secretariat at the time of the adoption by the GA of the first such provision that constituted a clear departure from Charter Article 101 para.l, i.e. the method of appointing the UNHCR, these were not formally presented


9

unconditional loyalty. Indeed since, as pointed out in sub-Section 3 below, each of the QABs also has a political organ, the executive head must, both to ensure support for his programmes and to secure extension of tenure, maintain good relations with that organ and in particular with its leading members. It is, incidentally, not clear whether the SG can by himself dismiss an executive head whose appointment is not entirely in his hands — especially if the appointment, as of the UNHCR, is formally made by the GA. Another indication of the status of the executive heads of the major QABs22 is that they participate in the Administrative Committee on Coordination (ACC),23 which originally consisted of only the UN SG (as chair) and the executive heads of the specialized agencies and later also of the IAEA. As explained in sub-Section V.3, this body is the major co-ordinating organ of the UN System.

2. Appointment of the Staffs of QABs A further strengthening of the independence of the QABs and a corresponding weakening of any central control is that for many of them their staffs are appointed by their executive heads, rather than by the

22

23

to or considered by the GA. As appears from the text above, such departures have by now become so routine that their acceptance can be considered to constitute, in effect, an amendment or at least an agreed interpretation of the Charter — such as the interpretation of Charter Article 27 para.3 to the effect that an abstention of a permanent member of the SC does not defeat the requirement that substantive decisions can only be taken with the concurring affirmative votes of all the permanent members (see the Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), ICJ Reports 1971, 16 et seq., (22), paras. 21-22). It should also be noted that the practice of formally fettering the choice of the SG in respect of the selection of top officials appears to be spreading; by para. 2(b) of A/RES/48/141 of 20 December 1993, the GA determined that the High Commissioner for Human Rights (who heads the Human Rights Centre — which cannot be characterized as a QAB) "be appointed by the [UN SG] and approved by the [GA]". That is, UNCTAD, UNEP, UNDP, UNFPA, UNICEF, WFP, UN International Drug Control Programme (UNDCP), UNHCR and UNRWA. See Section V.3 at note 149.

10


UN SG — again an apparent departure from Charter Article 101 para.l. Although in some instances this is by explicit delegation by the SG, which would fulfil the Charter requirements, sometimes it is the GA that has decreed such "delegation": (a) For UNKWA it is provided that a[t]he Director [now the Commissioner-General] shall select and appoint his staff in accordance with general arrangements made in agreement with the SecretaryGeneral, including such of the staff rules and regulations of the United Nations as the Director and the Secretary-General shall agree are applicable";24 (b) The UNHCR is empowered to appoint a Deputy High Commissioner, as well as the staff of the Office of the High Commissioner, who "shall be responsible to him in the exercise of their functions" and who are to be "chosen from persons devoted to the purposes of the Office of the High Commissioner";25 (c) The staff of UNITAR is appointed by the Executive Director and is responsible to him, though the UN SG is to be consulted in selecting senior officials;26 (d) The staff of UNU is appointed by the Rector.27 Even if not required to do so by the resolutions establishing some of the other QABs, the UN SG has, as indicated above, delegated to the executive heads of several of these the power to appoint their own staffs — sometimes subject to restrictions such as consultations in respect of 24

25

26

27

A/RES/302 (IV) of 8 December 1949, para. 9(b). As a result of this resolution, UNWRA is the sole UN body that has Staff Regulations different from those adopted by the GA for the rest of the UN Secretariat; indeed, UNRWA has two sets of such Regulations, one for its small international staff and the other for the "area" staff, under which some 17,000 Palestinians serve under conditions considerably different from those applying to all other UN staff members. A/RES/428 (V) of 14 December 1950, Annex, paras. 14 and 15 lit.(a),(b). In its Judgement No. 526 (Dewey v. SG UN) of 31 May 1991, UNAT held that unless the UNHCR had explicitly agreed to consult the SG with regard to the appointment of a Deputy, there was no such consultation requirement and therefore the SG could not dismiss the Deputy UNHCR on the ground that he had been appointed without such consultations. Statute of UNITAR as promulgated by the SG in November 1965 (ESCOR, 41st Sess., Annexes, a.i. 28, Doc.E/4200, Annex I), later amended in 1967,1973,1979,1983,1988 and 1989, article IV.3. UNU Charter, see note 20, arts V.3.c and VIII.6-7.


11

the choice of senior staff. This has, for example, be done in respect of UNDP, UNCTAD and UNEP. The refusal of the UN SG to do so in respect of UNIDO, and the failure of the GA to direct him to do so, was evidently one of the main motivating factor in the decision by the 1974 UNIDO General Conference to start the process that led to the eventual conversion of that QAB into the present specialized agency. Even though the UN SG thus has by compulsion or voluntarily lost the power to appoint and to administer the staffs of the QABs, he somewhat anomalously remains responsible for dealing with complaints that these may bring to the UN Administrative Tribunal, where he is indicated as the formal defendant in all cases, except those brought against the Commissioner-General of UNRWA. Also as a result of the wording of arts 20 and 22 of the Convention on the Privileges and Immunities of the United Nations (CPIUN)28 it is he who remains responsible for waiving — and thus also for asserting — the immunity of all UN officials (including those serving QABs) and experts on mission (even those appointed by the executive heads of QABs) — and this authority has not been delegated to any executive head.

3. Political Bodies of the QABs Each of the QABs has one or sometimes two political bodies, technically subsidiary organs of either the GA or of ECOSOC. For example: (a) UNRWA has an Advisory Commission of 10 member States designated by the GA — a group that remains largely invariant. (b) UNHCR has an Executive Committee of the High Commissioner's Programme, consisting at present of 53 states (including UN nonmember Switzerland) — also a group that remains largely invariant. (c) UNCTAD has both a Trade and Development Board (TDB), now consisting of all members of UNCTAD29 that wish to participate (at present 145),30 as well as periodic Trade and Development Con-

28 29

30

See note 14. The membership of UNCTAD consists of all members of the United Nations, of any specialized agency or of the IAEA (A/RES/1995 (XIX) of 30 December 1964, Part II, para. 1). When UNCTAD was established, the TDB consisted of 55 members elected by the Conference according to a specified pattern of geographical distribution (A/RES/1995 (XIX) of 30 December 1964, Part II, para. 5, and

12


ferences — though the Conferences do not participate directly in the governance of UNCTAD. (d) UNEP has a Governing Council of 58 members elected by the GA according to a specified geographical formula.31 There is also a Committee of Permanent Representatives, and recently the Council has created a 36-member High-Level Committee of Ministers and Officials in Charge of Environment.32 (e) UNU has a Governing Council of 28 persons, of whom 24 are appointed jointly by the UN SG and the UNESCO DG, who serve in their individual capacities and not as governmental representatives, while the Rector of the University, the UN SG, the UNESCO DG and the Executive Director of UNITAR (himself the head of a QAB, appointed by the UN SG) serve ex officio. (f) By a 1993 GA resolution, the former governing bodies of UNDP/UNFPA and of UNICEF were re-christened "Executive Boards", and now consist of 36 states each, according to a defined geographic distribution.33 By the same resolution the process of negotiating with FAO similar changes in the governing organ of the WFP was initiated.34 These organs have different powers and responsibilities vis-a-vis the respective executive heads, and of course they report to the GA, in some cases through ECOSOC.35 However, because the Assembly rarely has time to review their work, it normally contents itself with adopting, after brief debates, any resolutions these bodies may propose to it. Normally, these bodies have close relationships with the respective executive head, who may, depending in large part on personality, and in part on the statutory provisions governing the QAB and on financial considerations, be able to substantially dominate these political organs. Rarely

31 32 33 34 35

Annex). The present arrangement concerning the composition of the TDB was endorsed by A/RES/51/167 of 16 December 1996, para. 1. A/RES/2997 (XXVII) of 15 December 1972, Part I, para. 1. Doc.UNEP/GC/DEC/19/lB of 4 April 1997. A/RES/48/162 of 20 December 1993, Annex I, paras. 21 and 25. Ibid, and also para. 30. See also Section V.I (a) below. By the above-mentioned 1993 resolution, the GA also specified its responsibilities and those of ECOSOC in respect of the governing bodies of the UN development funds and programmes (those listed in para, (f) of the preceding text) (ibid, paras. 11-20), as well as the tasks of these bodies (ibid., para. 22).


13

have these organs, especially the larger ones, been able to control a popular executive head.

4. Financing the QABs The United Nations Charter foresees only one method of financing the expenses of the Organization: contributions assessed on member States by the GA.36 This was a sensible and acceptable way of financing the types of political and administrative activities that are the ones foreseen by the Charter, that is running the political and judicial organs and the secretariat support for these. Indeed, for the only operational activities directly provided for in the Charter: military operations to be mounted under Charter Article 42, it appears to have been expected that each member would bear the costs of the military units that it made available pursuant to Arts 43 and 45. It soon became clear, however, that the Organization would, initially in the wake of World War II, have to carry out and finance major relief operations, especially for refugees and children. For these separate bodies were set up (now recognizable as the QABs), such as UNICEF, UNRWA and UNHCR, and these activities were financed by voluntary contributions by the states most able to bear these burdens. When some years later, with the unexpectedly sudden accomplishment of decolonization, the need arose for major development programmes, these too (e.g., the United Nations Expanded Programme of Technical Assistance (EPTA) and the Special Fund, later merged as UNDP) were structured and financed in much the same way. This pattern was later replicated for other types of operations, such as the protection of the environment through UNEP. There were, of course, political reasons for these developments. In the first place, the major contributors, while prepared to accept being assessed for the relatively modest costs of the infrastructure of the Organization, were not willing to give open access to their purses for the much higher expenses of operational activities — particularly once these started to include the potentially unlimited costs of development. Secondly, as reflected in sub-Section 3 above, they saw to it that the political organs of the operational QABs would be weighted towards the large contributors, which would thus be able to control the distribution of the funds; as these organs were, under the pressures of the more and 36

United Nations Charter Article 17 para.2.

14


more populist GA, made to reflect more fully the number of states in the various geographic/political groupings, contributions to those bodies where that tendency was most apparent started to drop off. Most QABs are financed entirely from voluntary contributions, or from quasi-contractual arrangements with states under which these bodies are compensated directly for certain services they provide. A few receive some funds from the UN's Regular Budget financed from assessed contributions and used almost exclusively for the central administrative functions of these bodies. Except for the latter, which constitute part of the budget proposals that the SG presents to the GA, the budgets of these QABs are drawn up by their respective executive heads and submitted for approval or merely for comments to the respective governing organs. Naturally, budgeting based on uncertain voluntary contributions has its complications, even though pledging conferences are held at which states are invited to announce in advance their expected contributions to most of the QABs. In any event, neither the UN SG, nor the GA, are in a position to fulfill, in respect of these bodies, the financial controls foreseen respectively by Charter Arts 97 (designating the SG as the "chief administrative officer of the Organization") and 17 para.l (designating the GA as the organ that considers and approves the budget of the Organization). When it is recalled that several of the QABs have annual throughputs that approximate or in some cases even exceed the Regular Budget and that collectively they dwarf it,37 it is seen how great the loss of direct financial control of the central organs has become. Consequently the UN itself (not to speak of the entire UN System) does not have an overall consolidated budget.

5. Some Difficult-to-Classify Organs It is not clear whether the two International Criminal Tribunals, for the Former Yugoslavia and for Rwanda, should be characterized as QABs. Both are complex subsidiary organs of the Security Council (SC), consisting on the one hand of a judicial organ divided into several separate Trial Chambers for each Tribunal and a common Appeals Chamber, which in turn are composed of judges headed by a President whom (one

37

See supra note 12. In making this statement, no account is taken of the numerous peace-keeping budgets, which in the mid-90s collectively greatly exceeded the Regular Budget, though in recent years they have been, deliberately, much reduced.


15

for each Tribunal) they elect, and on the other two separate secretariats: the Prosecutor (who is the same for both Tribunals) and staff, and the Registry, headed by a Registrar; though not exactly co-equal, none of these three organs controls the others. The judges are elected by a complex procedure involving both the SC and the GA; the Prosecutor is appointed by the SC on the nomination of the SG, and her staff by the SG on the recommendation of the Prosecutor; the Registrars are appointed by the SG after consultation with the President of the respective Tribunal, and their staffs by the SG on the recommendation of the Registrars. In principle, the Tribunals are financed entirely by the UN Regular Budget, but voluntary contributions are encouraged. Though on the basis of these characteristics one might decide against QAB status, it must also be recalled that all these organs, and the Tribunals as a whole, must by their very functions be independent of all the principal organs. The five Regional Commissions of ECOSOC, each of which is a complex subsidiary organ (consisting of a Commission composed of states and of a secretariat headed by an Executive Secretary, and of a number of subsidiary organs), should probably not be considered to be QABs because they are financed substantially from the UN Regular Budget, their executive heads are appointed by the SG, though after consultations with the respective Commission, and their staffs, though appointed and governed by the Executive Secretaries, these act by explicit rather than by imposed delegation from the SG. Thus, at least two of the four specified criteria of QABs do not apply.

6. Summary and Conclusions about QABs The operational activities of the United Nations are largely carried out by several substantial and by numerous small QABs, which technically are subsidiary organs of the GA or of ECOSOC,38 but which are gov38

It is sometimes difficult to tell whether a particular organ is a subsidiary of the GA or of ECOSOC, since the principal organ that establishes a particular subsidiary is not necessarily the one to which that organ reports or that exercises routine supervision over it. For example, the Committee for Programme and Co-ordination (CPC) was established by E/RES/920 (XXXIV) of 3 August 1962 and E/RES/1171 (XLI) of 5 August 1966; nevertheless, the GA assigned CPC major responsibilities in the budgeting process by A/RES/41/213 of 19 December 1986, Part II, and even refers to CPC as "acting as a subsidiary organ of the General Assembly", ibid. Annex I, para. 2; see also note 140. However, as ECOSOC, pursuant to

16


erned by executive heads who are only nominally subject to the SG, and by special political organs. Because the QABs rely largely on independent sources of financing, they escape the Charter-foreseen fiscal controls of the SG and the GA. Though their political organs normally submit annual reports to the GA, directly or through ECOSOC, some of these merely describe the proceedings of the reporting organs rather than the activities and financing of the QABs,39 and in any event usually receive only the most cursory attention in the principal organs. This is so even though these activities collectively involve financing and staff far greater than those of the central secretariat, and even though these activities constitute, for the general public and even for many governments, the most important manifestations of the work of the Organization. The result is that the United Nations is, in fact, considerably more decentralized than foreseen in the Charter or than realized by casual or even informed observers of the Organization. This makes both coordination and strivings for administrative reforms more difficult. It also complicates assignment of responsibility and determination of accountability. Although it can hardly be said that that state of affairs has been achieved deliberately, it reflects a certain distrust by the governments that govern the Organization, of that entity itself, and in any event of its principal organs. In particular, the SG has been deprived of much of his potential authority in administering the Organization as a whole — probably reflecting a reluctance by many states to make his power grow as much as the functions of the Organization itself have. And though the GA nominally reigns supreme over all these organs and the bodies they compose,40 its actual authority is considerably diluted, especially in respect of those operations that involve the greatest costs.

39

40

Charter Article 60, functions "under the authority of the General Assembly", the distinction is for most purposes not of great importance. See e.g., the 1998 Reports of the Trade and Development Board to UNCTAD (Doc.A/52/15) and of the Governing Council of UNEP (Doc.A/52/ 25). On the other hand, it can be argued that all the QAB governing organs, as well as the Conferences of Parties (COPs) to various arms control and environmental treaties described below, are merely different manifestations of the GA, since all their members are appointed by the same governments.


17

II. Treaty Organs Old-style multilateral treaties used to be just that: legal instruments negotiated at conferences convened by the interested states, whose obligations were spelled out in its text, with the monitoring of their implementation left to the parties and no provisions for change or development except for occasional extension clauses. By contrast, most modern multilateral treaties are negotiated within or under the aegis of intergovernmental organizations (IGOs) and most may be characterized as "living" instruments, in that they provide for some collective activities, or for monitoring compliance by some international organ, and/or for some mechanism by which they can be amended or expanded. The carrying out of these activities or of any monitoring and the operation of the mechanism for developing the treaty are either entrusted to IGOs (usually to either the organization that sponsored the treaty, or to one established by that instrument) or to isolated organs that in effect operate under the care of the sponsoring IGO; these organs, described more fully in this Section, are "treaty organs" (TOs). While Section IV. examines a number of examples of IGOs established by multilateral treaties, the present one is concerned with those in which a particular treaty instead merely establishes certain political and/or expert organs that are to be serviced by a "host" IGO, usually the "parent" — notably the United Nations or a related agency.41 As discussed in Section III., it is sometimes not possible to distinguish readily between these two alternatives, except to note that if a body created by a treaty has a full set of organs and its own international personality then it should be characterized as an IGO,42 while if that is not 41

42

Certain treaties actually create both IGOs and treaty organs and may also assign functions to the parent IGO. For example, the 1982 UN Convention on the Law of the Sea (UNCLOS) (see note 81) created the ISA and ITLOS, which are two independent IGOs (see Section IV.(e/f)), while at the same time it also established the Commission on the Limits of the Continental Shelf, which is a treaty organ of the United Nations (see sub-Section 3(b) below); in addition, UNCLOS also assigned a number of functions directly to the SG (see UNCLOS arts 16 para.2, 75 para.2, 76 para.9, 84 para.2 and Annexes V, article 3(c)-(e), Annex VI, article 4 para.4, Annex VIII, article 3(e)). The substantive functions thus assigned should be distinguished from mere depositary functions, which the SG performs in respect of hundreds of multilateral treaties, most but not all of which were concluded under the auspices of some UN organ. See note 16.

18


the case then it is a mere TO. In a sense, TOs are thus IGOs manquees, lacking a secretariat of their own as well as international legal personality.43 Finally, a multilateral treaty may simply assign certain functions to an IGO, usually its parent,44 but sometimes to another IGO,45 which are to be performed without the guidance of any TO; these situations will not be further examined in this study, except to note that the assumption of such functions, as is also true when an IGO is designated to service a TO, requires the explicit or at least implicit acceptance by the IGO concerned.46 TOs are thus products of a treaty, usually sponsored by an IGO, and not, like its normal organs, established by either its constitution or by a resolution of one of its principal (usually) or subsidiary organs. This means that the "parent" (or "host") IGO is not in a position to change the composition, mandates, powers or procedures of a TO it is servicing — only the states parties to the treaty can do so, either by formal amendment or to the extent the treaty permits, by some other procedure.47 43

44

45

46

47

Evidently, QABs are also IGOs manquees, even though they have a full complement of organs, because they clearly have only the legal personality of their parent IGO. With respect to UNCLOS, see note 41; with respect to the Single Convention on Narcotic Drugs, see note 79. For example, the Non-Proliferation Treaty (sub-Section 2(b), below) assigned the important substantive function of monitoring treaty compliance to the IAEA — while leaving the function of reviewing and extending the treaty to the COPs serviced by the United Nations, under whose auspices the treaty had been concluded. When a multilateral treaty is concluded under the direct auspices of an IGO organ, for example the several human rights treaties promulgated directly by the GA, the very fact of such promulgation implies that that organ consents to any functions that the treaty assigns to the IGO. If the promulgation is by an intergovernmental conference, even if convened by an IGO organ (as is usually but not invariably the case), then it is desirable and usual that the competent senior IGO organ specifically endorse the treaty or otherwise indicate the readiness of the organization to perform the required functions; see, e.g., in respect of UNCLOS, A/RES/37/66 of 3 December 1982, para. 7. This point was made by the UN Legal Counsel in a legal opinion of 17 August 1976 relating to the CERD, established by the International Covenant on the Elimination of All Forms of Racial Discrimination, UNTS Vol.


19

The question then is, should TOs be considered to be organs of the IGOs that services them. In respect of IGOs, such as the United Nations, whose Charter appears to recite in Article 7 an exhaustive list of the types of organs the Organization may have (i.e., principal or subsidiary), at first glance the answer would appear to be in the negative. Indeed, when the question was apparently first raised in the context of Charter Article 96 para.2 (i.e. whether the proposed Human Rights Committee to be established under the then draft First International Covenant on Human Rights (the precursor of the ICCPR48) could request advisory opinions of the ICJ), the SG advised ECOSOC that this could not be done because the proposed Human Rights Committee could not be considered an organ of the United Nations.49 Nevertheless, the GA seems to have referred to the Permanent Central Opium Board (established by a 1925 treaty50) and the Drug Supervisory Body (established by a 1931 treaty51) as "other organs of the United Nations".52 Later, the United Nations Legal Counsel explicitly held that

48 49

50

51

52

660 No.I-9464 (UNJYB 1976, 200, reproduced in: Repertory of Practice of United Nations Organs (hereinafter Repertory), Supplement No. 5, Vol. 1, Article 7, para. 9, p. 85. See note 55. See Doc. E/1732 of 26 June 1950, referred to in the study of Article 96 in the Repertory, see note 47, Vol. 5, para. 208. However, in light of the developments cited in the following sentences of the text above, it might be appropriate to reconsider this conclusion, i.e. that TOs are not "organs of the United Nations" within the meaning of Charter Article 96 para.2. Agreement Concerning the Suppression of the Manufacture of, Internal Trade in, and Use of Prepared Opium of 11 February 1925, LNTS Vol. 51 No.I-1239, as amended by the Protocol of 11 December 1946, UNTS Vol. 12 No.I-186. International Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs of 13 July 1931, LNTS Vol. 139 No.I-3219, as amended by the Protocol of 11 December 1946, UNTS Vol. 12 No.I186. A/RES/875 C (IX) of 4 December 1954, title, cited in the study of Article 7 in Repertory, Vol. 1, paras. 22-23 ("Organs established by treaty") which concludes that even though organs such as the Permanent Central Opium Board, the Drug Supervisory Body, or the International Bureau for Declarations of Death cannot be considered as subsidiary organs (not having been established by the resolution of a senior organ), because "their expenses are included in the budget of the United Nations, their staffs are appointed by the Secretary-General ... they may be considered as part of the Organization."

20


treaty organs "are organs of the United Nations" and proceeded to draw conclusions from that status.53 Such a determination would also follow from the considerations stated at the end of the following paragraph. The salient fact about treaty organs is that, unlike the principal and subsidiary organs of an IGO that are established by the direct or delegated will of all members of the organization, TOs reflect the will of only the parties to their treaty — most but not necessarily all of which are members of the IGO, and which rarely include all the members of the organization and may in some instances include only relatively few. Though TOs are usually financed by the parties to the treaty, that is not always so, and in those other instances, as well as in those in which a treaty simply assigns functions to an IGO, all the members of the IGO may be financing an activity of direct concern to only some. Nevertheless, the public, including the media, only rarely make these fine distinctions, and will attribute — usually but not necessarily in a positive tone — the activities and decisions of a TO to the IGO itself. Thus the persona of an IGO includes not only its own organs stricto sensu but also those established by multilateral treaties for which it has assumed responsibility. More importantly, it is no longer possible to study an IGO without giving due weight to the activities of its TOs. TOs come in many guises, and different types are characteristic of different types of treaties. The sub-Sections below will briefly explore in turn those created by UN treaties in the fields of human rights, arms control and some miscellaneous subjects, and finally some TOs of IGOs other than the United Nations. It will appear (also from Section III.) that TOs relating to a particular subject (e.g., human rights) tend to be similar to other TOs relating to the same subject; this probably reflects, at least in part, the caution of negotiators who, once a particular TO model has been successfully negotiated in a given field, will tend to follow that model, rather than experimenting with models from other areas with which the specialized negotiators are less familiar.

53

See note 47. In support of the Legal Counsel's determination it might also be noted that the members of human rights monitoring bodies have been held to be "experts on mission for the United Nations" within the meaning of article VI of CPIUN (see note 14) (see also Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 9 et seq. [Mazilou case], 177 et seq., (194, para. 48).


21

1. Human Rights TOs Best known of all treaty organs — and indeed the ones to which the term was originally applied54 — are the expert monitoring organs established by the major human rights treaties, such as the Human Rights Committee (HRC) of the International Covenant on Civil and Political Rights (ICCPR)55 and the Committee on the Elimination of Discrimination Against Women (CEDAW) of the Convention on the Elimination of All Forms of Discrimination Against Women.56 It should, however, be noted that the Committee on Economic, Social and Cultural Rights (CESCR) is not a TO, but rather is a subsidiary organ of ECOSOC, to which the International Covenant on Economic, Social and Cultural Rights (ICESCR)57 assigned the task of monitoring that instrument. Each of these human rights TOs consists of a number of experts, elected in their individual capacities by the states parties to the respective treaty. They largely carry out their several mandated functions at multi-week sessions, and they present reports to the GA58 — which considers these in its Third (Social, Humanitarian and Cultural) Committee — rather than to the states parties to their treaties. There is also no mechanism whereby these states can address instructions or recommendations to these treaty bodies; instead, the GA frequently makes recommendations to these TOs,59 but it cannot, unlike for its own subsidiary organs, direct them, restructure them or change their mandates. Occasionally points of friction may arise, for example when that Assembly wishes to limit the servicing of these organs in ways corresponding to the rules applicable to other UN organs (e.g., limiting the length of sessions; the provision of written records) — but ultimately the Assembly has recognized that even in this sphere its powers are 54 55 56 57 58

59

See note 49. UNTS Vol. 999 No.I-14668, Part IV. UNTS Vol. 1249 No.I-20378, Part V. UNTS Vol. 993 No.I-14531, Part IV; see note 87. E.g., the HRC submits an annual report that in recent years has appeared as Supplement No. 40 to GAOR; similarly CERD reports appear as Supplement No. 18, CEDAW's as No. 38, CAT's as No. 44. See e.g., A/RES/52/97 of 12 December 1997, para. 7 (addressed to CEDAW); A/RES/52/110 of 12 December 1997, Part I (addressed to CERD); A/RES/52/116 of 12 December 1997, paras. 9, 11, 12 (addressed to the HRC).

22


limited. Except for CEDAW, which is serviced by the Division for the Advancement of Women of the Department of Economic and Social Affairs in New York (the Division having recently moved from Vienna), the other human rights TOs (as well as the CESCR) are serviced by the Human Rights Centre in Geneva, and this function has indeed become the principal task of that secretariat unit. The financing of these human rights TOs differs from treaty to treaty. In some, the states parties bear the entire cost (as calculated by the UN SG); in others the UN has ad initio assumed that burden; while in still others the treaty provides for sharing. As the UN, which perforce must also act as the collecting agent for assessments due for this purpose from states parties, has experienced substantial and recurrent defaults of these relatively minor payments, it has suggested to the states parties that the respective treaties be amended to provide for direct UN financing, and the process for doing so is under way.60 Finally it should be noted that although each of these treaties ostensibly creates only a single TO, the expert monitoring organs referred to above, implicitly each also establishes another TO: the meeting of the states parties to the treaty, a political organ, whose principal function is to elect the members of the expert body, but which may also consider other matters relating to the treaty. These meetings too are serviced by the UN Secretariat.

2. Arms Control TOs Most major multilateral arms control treaties concluded under the auspices of the United Nations (and at least one that was otherwise negotiated) contain provisions for periodic or episodic meetings of the parties for the purpose of reviewing the provisions of these instruments and possible also for revising and extending them. When such treaties establish IGOs — normally for the purpose of monitoring compliance by the states parties — these organizations, acting through their political organs, in effect carry out these reviews through their normal processes and deal with any amendments that are proposed.61 However, if no im60

61

E.g., with respect to the CERD (see note 47), see A/RES/47/111 of 16 December 1992 and A/RES/52/110 of 12 December 1997, Part II. See, for example, article XV of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, ILM 32 (1993), 800 et seq., (804) that established the


23

plementing IGO is established, then the tasks of convening and servicing the meetings of the states parties for the purpose of review, amendment and extension, is assumed by the United Nations. For example: (a) The 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Partial Test Ban Treaty — PTBT) does not call for review conferences, but does provide for conferences to consider amendments to be convened by the three Depositary States.62 In the late 80s the GA with increasing urgency recommended to the parties to take the steps to convene such a conference for the purpose of converting the Partial into a Comprehensive Treaty and directed the SG to provide the necessary services; an Amendment Conference was in deed convened at UN Headquarters in January 1991.63 (b) The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) calls for: quinquennial Review Conferences of the parties, an Extension Conference 25 years after entry-into-force, and possible Amendment Conferences.64 The Amendment Conferences (of which there have been none) are to be convened by the Depositary Governments; the treaty is silent on who is to convene the Review Conferences and the Extension Conference, though implicitly it is the Depositary Governments. However, in practice, all the arrangements for these Conferences, including for the respective Preparatory Committees, have been made by the UN SG at the request of the GA, which also debates and adopts resolutions concerning these meetings.65

62 63

64

65

Organization for the Prohibition of Chemical Weapons (OPCW), and arts VII and VIII of the Comprehensive Nuclear Test-Ban Treaty (ibid. 35 (1996), 1439 et seq., (1455-56) that is to establish the Comprehensive Nuclear Test-Ban Treaty Organization (CTBTO). UNTS Vol. 480 No.I-6964, article II. 1. See in particular A/RES/44/106 of 15 December 1989; in later resolutions it followed up, e.g. A/RES/45/50 of 4 December 1990 and A/RES/46/28 of 6 December 1991. UNTS Vol. 729 No.I-10485, respectively arts VIII.3, X.2 and VIII.1-2. In connection with the indefinite extension of NPT agreed to at the 1995 Review and Extension Conference, it was decided that henceforth the review process would be strengthened by the holding of normally three but up to four session of the Preparatory Committee for each quinquennial Conference, ILM 34 (1995), 961 et seq., (968). See e.g. A/RES/51/45 A of 10 December 1996.

24


(c) The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (Biological Weapons Convention — BWC) calls for a review conference of the parties to be convened in Geneva.66 Such Conferences have indeed been held in 1980, 1986, 1991 and 1996, and inter-sessionally Preparatory Committees, expert committees and an ad hoc (Negotiating) Group established by the Conferences have been meeting. All these meetings have been serviced by the SG at the request of the GA.67 (d) The 1977 Convention on the Prohibition of Military or any other Hostile Uses of Environmental Modification Techniques (ENMOD Convention) provides for Review Conferences and also for a Consultative Committee of Experts to which problems arising in relation to the objectives of or in the application of the Convention can be referred, both to be convened by the Depositary (the UN SG).68 Review Conferences have indeed met in 1984 and 1992, but the Consultative Committee has not yet been convened.69 (e) The 1980 Convention on Prohibitions on the Use of certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Inhumane Weapons Convention), provides for Conferences to consider proposed amendments to the Convention or to any Protocol thereto, to consider proposals for new Protocols, or to review the scope and operations of the Convention and its Protocols, to be convened by the Depositary (the UN SG) at the request of specified numbers of parties.70 The first Review Conference was convened in October 1995 and continued in January and in April/May 1996.71

66 67 68 69

70 71

UNTS Vol. 1015 No. 14860, article XII. See, e.g., A/RES/50/79 of 12 December 1995. UNTS Vol. 1108 No.I-17119, respectively arts VIII and V. 1-2. See A/RES/46/36 A of 6 December 1991, noting the preparations for the Second Review Conference, including the establishment of a Preparatory Committee and requesting the Secretary-General to assist in this process as well as in the Conference itself, and A/RES/47/52 E of 9 December 1992 at which the GA considered the report of the Conference. UNTS Vol. 1342 No.I-22495, article 8 paras. 1-3. The GA first urged the states parties to convene the conference (e.g., A/RES/46/40 of 6 December 1991) and then welcomed its results (A/RES/51/49 of 10 December 1996).


25

(f) The 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction72 was, unlike the several treaties referred to above, not concluded under the auspices of the United Nations, but nevertheless assigns to the UN SG a great number of different functions, including the convening of meetings of the states parties, Special Meetings, Review Conferences and Amendment Conferences.73 The GA welcomed the adoption of the Convention and instructed the SG to carry out the functions assigned to him thereunder.74 Although the provisions of these successive arms control treaties relating to the convening of various types of meetings of the parties, and of some meetings of experts, differ somewhat, with the later ones making it more explicit that this function is assigned to the UN SG, in fact all the conferences of the parties that have been convened have taken place on UN premises, serviced by the UN Secretariat (the Department for Disarmament Affairs under its present and various previous names), with UN officials serving as Secretaries-General; the same has been true of the various related preparatory and inter-sessional committees. Furthermore, the GA has generally taken account of each such conference, both in anticipation (in some instances calling for the convening of nonautomatic meetings) and later considering and reacting to their reports. Because such meetings are convened on UN premises and using UN staff and other resources, they are fitted into and considered part of the UN Conference calendar.75 In reporting on these meetings, the media, unsurprisingly, refers to them as "UN conferences". In light of these circumstances it seems appropriate to consider all these conferences and meetings of the parties to UN-sponsored and even some other arms control treaties, as well as of expert groups estab72

73 74

75

ILM 36 (1997), 1507 et seq. (Note that the designation "United Nations" Convention is erroneous, because the Convention was adopted at a diplomatic conference in Oslo convened by a number of interested states and not by any organ of the United Nations). Ibid., arts 8,11-13,14 para.l. A/RES/52/38 A of 9 December 1997, para. 4 and A/RES/53/77 N of 4 December 1998, para. 5. See the "Draft revised calendar of conferences and meetings of the United Nations and of the principal organs of the specialized agencies, the International Atomic Energy Agency and treaty bodies established under the auspices of the United Nations", GAOR 53rd Sess., Suppl. No. 31 (Doc.A/53/32), Annex; see also e.g. A/RES/52/198 of 18 December 1997 (relating to the Desertification Convention, see note 103), para. 17.

26


lished at such conferences and meetings, to be United Nations TOs. In considering the totality of the disarmament activities of the Organization, which are otherwise carried out through several different principal and subsidiary organs, both political and secretariat,76 account must, and in practice is, taken of these ever more numerous TOs. Finally attention should be called to an important but in its origins somewhat obscure body: the Conference on Disarmament (CD), which the GA has repeatedly characterized as "the single multilateral disarmament forum" of the international community77 and within which some of the major multilateral disarmament treaties have been negotiated. It was originally established in 1959 as a result of intergovernmental consultations (principally between the United States and the USSR — but carried out under the auspices of the GA) as the TenNation Committee on Disarmament, and as a result of later consultations successively became the Eighteen-Nation Committee on Disarmament and the Conference of the Committee on Disarmament, until it acquired its current name in 1983. It was always recognized that it was not a formal UN organ,78 but it is serviced by the UN Secretariat at the UN Office at Geneva (UNOG), its SG is appointed by the UN SG, it reports to the GA and receives recommendations from it, and its budget is part of the UN Regular Budget. Though the informal agreements on which it is based can probably not be characterized as "treaties", the Conference on Disarmament is in effect a TO of the UN.

76

77

78

These organs include the First Committee of the GA, as well as the GA itself meeting at its episodic Special Sessions on Disarmament (SSODs), the Disarmament Commission, the Secretariat's Department for Disarmament Affairs, the Advisory Board on Disarmament Affairs and the United Nations Institute for Disarmament Research (UNIDIR). A formula first pronounced at the First Special Session on Disarmament (A/RES/S-10/2 of 30 June 1978, para. 120 — which also sets out in considerable detail the understandings concerning its composition, methods of work, and reporting) and ritualistically repeated ever since, e.g., in A/RES/52/40 A of 9 December 1997, para. 1. Mainly because the Western States did not wish to create a precedent in the United Nations of an organ in which Western and Eastern European States were represented in equal numbers.


27

3. UN TOs established by Other Treaties Although the above-mentioned two categories are the best known examples of treaty organs, there are many others, and indeed some earlier ones. To cite just a few examples: (a) The International Narcotics Control Board (INCB), the successor to the above-mentioned Permanent Central Narcotics Board and the Drug Supervisory Body, was established by the 1961 Single Convention on Narcotic Drugs79 but also performs functions under the 1971 Convention on Psychotropic Substances and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances;80 it consists of 13 members appointed by ECOSOC in their personal capacity, on the basis of nominations in part by WHO and in part by UN members or by non-UN parties to the Single Convention. Its secretariat, headed by a Secretary appointed by the UN SG, is serviced by the UN Office at Vienna (UNOV). (b) The Commission on the Limits of the Continental Shelf established by Annex II to UNCLOS81 consists of 21 expert members serving in their personal capacities and elected by the states parties to the Convention at meetings of these parties convened by the UN SG. Both the Commission and these meetings of parties are thus TOs of the UN, serviced by the Division for Ocean Affairs and the Law of the Sea of the UN Office of Legal Affairs. (c) Review Conferences, to be convened by the UN SG, are called for by the 1995 (UN) Agreement on the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement).82 79

80

81

82

UNTS Vol. 520 No. 7515 of 30 March 1961, article 9, as amended by the Protocol of 25 March 1972, UNTS Vol. 976 No. 14151. It should be noted that the Single Convention, aside from establishing the INCB, also assigns (by article 8) tasks to ECOSOC's [Functional] Commission on Narcotic Drugs, a UN subsidiary organ. Respectively, UNTS Vol. 1019 No.I-14956, and UNTS No.I-27627 of 20 December 1988, article 12. The 1982 UN Convention on the Law of the Sea, UNTS Vol. 1833-1835 No.I-31363, ILM 21 (1982), 1261 et seq. ILM 34 (1995), 1542 et seq., article 36.

28


4. TOs of Other UN System IGOs The phenomenon of treaty organs is by no means confined to the United Nations, but is becoming an ever-more important feature in many other UN System organizations, and indeed also for many IGOs outside that system, such as regional organizations (for example, the Council of Europe) that produce multilateral treaties. One of the UN specialized agencies, the World Intellectual Property Organization (WIPO), operates almost entirely as the host of numerous treaty organs created by a series of treaties on intellectual property rights, some of which long predate the establishment of WIPO, while others were negotiated under its auspices. In effect, the prime function of that organization is to service all these treaties and to assist states in negotiating new ones. Another specialized agency that is acting increasingly, though not exclusively, as the host of a number of TOs, is the International Maritime Organization (IMO). To a lesser extent such functions are also performed by other UN System organizations; such as FAO, the IAEA and UNESCO. The World Bank, formally the International Bank for Reconstruction and Development (IBRD), a UN specialized agency, presents a somewhat different picture. It has sponsored four major international agreements: the Articles of Agreement of the International Finance Corporation (IFC)83 and of the International Development Association (IDA),84 as well as the Convention for the Settlement of Investment Disputes Between States and Nationals of Other States85 that established the International Centre for Settlement of Investment Disputes (ICSID) and the Agreement Establishing the Multilateral Investment Guarantee Agency (MIGA).86 Although the IBRD provides the secretariats of IDA, ICSID and MIGA, and a substantial part of that of IFC, none of these are TOs of the Bank, as the treaties establishing them specify that they are independent IGOs; indeed, IFC and IDA are UN specialized agencies in their own right.

83 84 85 86

UNTS Vol. 264 No.I-3791 of 25 May 1955. UNTS Vol. 439 No.I-6333 of 26 January 1960. UNTS Vol. 575 No.I-8359 of 18 March 1965, ILM 4 (1965), 532 et seq. UNTS Vol. 1508 No.I-26012 of 11 October 1985, ILM 24 (1985), 1598 et seq.


29

5. Summary and Conclusions about TOs When states members of an IGO wish to regulate their conduct in ways not provided for in its constitutional treaty, then they generally cannot do so by resolutions of any of the IGO organs but must formulate another treaty. In doing so they then have to consider whether any collective action to be taken for the implementation of the treaty should be entrusted to the parent IGO itself or whether a new IGO is to be created — or to take the intermediate step of merely establishing some political and/or expert organs and having those serviced by the secretariat of the parent IGO, i.e., to establish treaty organs. The choice is essentially a practical one depending on the range of functions to be performed, though often tinged with political consideration, such as: whether some influential members of the IGO neither wish to accept the new obligations nor to have the IGO associated with their implementation, or whether those willing to accept these obligations do not wish to have states that do not do so exert any influence over such implementation.87 Experience shows that often enough and in particular in certain specialized areas, the preferred option is to create one or more TOs. As demonstrated above, the United Nations has been particular prolific in doing so. These treaty organs then exist in a symbiotic relationship with their host organization, drawing their administrative support from the latter while giving it the ability to carry out, under the control of these special organs, activities in which the entire IGO membership does not wish to join. For many UN System IGOs, including the United Nations itself, these TO-directed activities are becoming a significant part of the organizations' operations.

87

This, in effect, was the situation under the ICESCR (see note 57), which provides that ECOSOC should monitor its implementation. When the Council first did so through a Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, the objection was raised that members of the Council not parties to the Covenant were participating in the selection of these experts while numerous parties that did not happen to be on the Council were excluded from that selection. Consequently, ECOSOC, by its resolution 1985/17 of 28 May 1985, somewhat clumsily retrofitted the Covenant with a close approximation of a TO, the Committee on Economic, Social and Cultural Rights, which, though a subsidiary organ of the Council, has its members selected by the parties to the Covenant.

30


III. Environmental Entities: TOs or IGOs? Many of the ever-growing number of treaties for the protection of the environment appear to be almost deliberately vague as to the type of entities they charge with their implementation. These treaties establish what at first sight appears to be almost complete international organizations: there is at least one political organ (a meeting or Conference of the Parties — COPs), sometimes some expert organs, and a secretariat — except that that secretariat is attached to or forms part of the secretariat of an existing IGO or of a QAB (often UNEP) of such an IGO (the UN).88 The financing is usually provided by the parties, perhaps after an initial period when the United Nations supplies what might be considered as start-up funds. For example: (a) The 1973 [Washington] Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) establishes a COP and a secretariat, the latter to be provided by the Executive Director of UNEP.89 Pursuant to the latter provision, a special UNEP unit was established in Geneva; the UNEP Executive Director appoints the SG of CITES, who in turn appoints, in consultation with UNEP, the rest of the staff, who are UN staff members.90 (b) The 1979 [Bonn] Convention on the Conservation of Migratory Species of Wild Animals (CMS) established a COP, a Scientific Council of experts, and a secretariat,91 the provisions relating to

88

89

90

91

Actually, probably the first world-wide treaty that followed the abovedescribed pattern was the 1971 (UNESCO) (Ramsar) Convention on Wetlands of International Importance Especially as Waterfowl Habitat (UNTS Vol. 996 No.I-14583, ILM 11 (1972), 969 et seq., which by article 8.1 assigns the secretariat duties to the International Union for the Conservation of Nature and Natural Resources (IUCN — or World Conservation Union), which itself is a somewhat peculiar IGO (its members include states, governmental ministries and NGOs) at the periphery of the UN System, having been established by a UNESCO-convened conference in 1948 (see description in Doc.A/53/234, Annex I). UNTS Vol. 993 No.I-14537, ILM 12 (1973),1088 et seq., as amended in 1979, TIAS 11079, and 1983 (not yet in force), arts XI and XII. The appointments of these staff members, as is generally also true of those of the UN or UNEP secretariat units established for the other treaties listed below, are restricted to service with that unit. UNTS Vol. 1651 No.I-28395, ILM 19 (1980), 15 et seq., arts VII-IX.


(c)

(d)

(e)

(f)

92 93

94 95

96

31

which are similar to those specified above for CITES, except that it is located in Bonn. The 1979 [ECE] Convention on Long-Range Transboundary Air Pollution (LRTAP) establishes an Executive Body, to be constituted within the framework of the Senior Advisers to the Economic Commission for Europe (ECE) Governments on Environmental Problems, and assigns to the Executive Secretary of the ECE the task of carrying out specified secretariat functions;92 this is done by a unit of the Commission's secretariat in Geneva. The 1985 Vienna Convention for the Protection of the Ozone Layer (Ozone Convention) establishes a COP and a secretariat (which also acts in that capacity for the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer) to be provided on an interim basis by UNEP,93 an arrangement that was made permanent by the first COP; consequently that secretariat is part of UNEP and functions in Nairobi. The Montreal Protocol also established a Multilateral Fund, which is governed by an Executive Committee;94 the latter established for the Fund a separate secretariat, which is associated with GEF (see sub-Section V.I (c) below) and is located in Montreal. The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), establishes a COP and a secretariat, to be designated by the first COP from existing competent and willing IGOs.95 At that meeting UNEP was designated, and it established a special secretariat unit in Geneva. The 1992 United Nations Framework Convention on Climate Change (UNFCCC) establishes a COP, subsidiary bodies of expert governmental representatives for scientific and technological advice and for implementation, and a secretariat, to be designated at the first COP.96 Pursuant to this provision, an "institutional linkage" UNTS Vol. 1302 No. 1-21623, ILM 18 (1979), 1442 et seq., arts 10-11. Vienna Convention: UNTS Vol. 1513 No.I-26164, ILM 26 (1987), 1529 et seq., arts 6-7; Montreal Protocol: UNTS Vol. 1522 No.I-26369, ILM 26 (1987), 1550 et seq., arts 11-12. Montreal Protocol (ibid), article 10.5. UNTS Vol. 1673 No.I-28911, ILM 28 (1989), 657 et seq., arts 15-16, in particular 16.3. UNTS Vol. 1771 No.I-30822, ILM 31 (1992), 849 et seq., respectively, arts 7, 9,10 and 8, in particular 8 para.l and 8 para.3.

32


was proposed by the UN SG to the COP97 and those arrangements were separately approved by the COP98 and by the GA;99 they provide that the Executive Secretary be appointed by the UN SG in consultation with the Bureau of the COP, that the staff members are UN staff, that this operation be financed by the states parties except that the conference servicing costs be temporarily borne by the UN Regular Budget, etc.100 By an agreement the secretariat concluded with Germany, it is situated in Bonn. The Convention also provides for a "financial mechanism", which is to have defined characteristics and is to be carried out by an entity or entities entrusted therewith by the COP;101 the latter designated the GEF (see sub-Section V.l(c)), which had been reconstituted precisely to meet those characteristics and the similar ones under the Biodiversity Convention. (g) The 1992 [UN] Convention on Biological Diversity establishes a COP, a Subsidiary Body on Scientific, Technical and Technological Advice composed of governmental representatives with relevant expertise, and a secretariat, under conditions similar to those of the Basel Convention, except that UNEP established the special secretariat unit in Montreal. The Convention also provides for a financial mechanism along lines similar to those provided in UNFCCC, and the COP has also entrusted this to GEF.102 (h) The 1994 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Especially in Africa (Desertification Convention) established a COP, a Committee on Science and Technology composed of governmental representatives with relevant expertise, and a permanent secretariat, under conditions similar to those of UNFCCC.103 Pursuant to this provision, an Interim Secretary has been appointed by the UN SG, the staff members are UN staff and are situated in Ge97

Doc.FCCC/CP/1995/4/Add.4, Appendix. Decision 14/CP.l, recorded in Doc.FCCC/CP/1995/7/Add.l. 99 A/RES/50/115 of 20 December 1995, para. 2. 100 See generally the report of the Secretary-General set out in Doc.A/50/716 of 2 November 1995. 101 Convention, see note 96, Article 11. 102 UNTS Vol. 1760 No.I-30619, ILM 31 (1992), 818 et seq., arts 23, 25, 24 (in particular 24 para.2) and 21. 103 UNXS Vol. 1954 No.I-33480, ILM 33 (1994), 1328 et seq., arts 22-24, in particular 23 para.3. 98


33

neva. The Convention also establishes a Global Mechanism for the mobilization and channeling of substantial financial resources, to be "housed" in an IGO identified by the first COP;104 pursuant to that provision the International Fund for Agricultural Development (IFAD — a specialized agency) was chosen. (i) The 1998 [UNEP/FAO] Convention for the Application of Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention) established a COP and a secretariat, which at least initially is to be provided jointly by the UNEP Executive Director and the FAO DG, but might later be transferred by the COP to one or more other competent IGOs.105 In addition, there are a number of regional treaties, particularly those that relate to regional seas, that have essentially the same institutional structure: a COP and a secretariat supplied by a designated body, usually UNEP.106 The reason it is so difficult to classify whatever entities are created by these treaties is that arguments of seemingly equal weight can be made for their status as TOs of the UN or as independent IGOs. On the one hand, nowhere do any of these treaties state that they are establishing an "organization" (which is normally done by treaties that create IGOs, whether as their main object or only incidentally107); there is no provision for international legal personality or for privileges and immunities;108 and their secretariats are, at least initially, farmed out to an ex-

104

105

106

107

108

Ibid., article 21.paras 4-5, and see A/RES/52/198 of 18 December 1997, para. 5. Doc.UNEP/FAO/PIC/INC.5/3, Appendix I, of 11 September 1998, arts 18 and 19, in particular 19 paras. 3-4. See, e.g., the 1983 (Cartagena) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, UNTS Vol. 1506 No.I-25974, ILM 22 (1983), 221 et seq., arts 16 and 15. For example, the 1983 International Tropical Timber Agreement (UNTS Vol. 1393 No.1-23317) explicitly creates the International Tropical Timber Organization, which is continued by article 3 para.l of the 1994 Agreement, ILM 33 (1994), 1014 et seq. As long as the secretariats are provided by the UN directly or by UNEP, no questions of privileges and immunities need arise; the staff members and their premises are covered by CPIUN, and representatives to COP meetings are normally national diplomats; in any event, there are seat agreements with those host states (e.g., Germany) that do not already have com-

34


isting IGO. On the other hand, some of these entities (i.e., their secretariats, especially authorized by their COPs) have entered into seat or conference agreements in their own names, rather than in that of the United Nations,109 which at least suggests that the states panics to those agreements were prepared to accept that the former had sufficient legal personality to do so — though it may merely indicate that these states, eager to act as hosts, are prepared to overlook this technical problem so as to be able to perfect the desired arrangements. Because of doubts raised by some such states, the COPs created by several of these treaties have adopted resolutions purporting to confer legal personality and privileges and immunities on some of these treaty-created entities; though evidently not as solid as treaty-based provisions, these resolutions might be considered as at least binding on the states that voted for them.110 The probable reason for these ambiguous formulations is that when such a treaty is initially negotiated there may be uncertainty or disagreement as to how successful the new regime will be, and an unwillingness, at least on the part of some states, to create yet another IGO, certainly before the need for one is clear.111 As a regime solidifies and its

109

110

111

prehensive headquarters agreements with the UN, and conference agreements for meetings away from the seat. See, e.g., the report of the Secretary-General on the implementation of the Desertification Convention — see note 103 — referring to the headquarters agreement concluded on 18 August 1998 between the secretariat established by the Convention and the Government of Germany (Doc.A/53/516 of 19 October 1998); also referred to in A/RES/53/191 of 15 December 1998, para. 4. E.g., the COP of the Montreal Protocol (see note 93), at its 6th Mtg. in October 1994 adopted Decision VI/16 conferring on the Multilateral Fund established by an amendment to the Protocol, juridical personality, the legal capacity to enter into contractual arrangements, to acquire and dispose of property, and to institute legal proceedings, and necessary privileges and immunities for the Fund and its officials. On the basis of this resolution, the Canadian Government concluded a seat agreement with the Fund. For a different instance in which a resolution may have to be considered as a treaty-like agreement by those who adopted it, see sub-Section VI.2(c) below. Such ambivalence, especially it would seem concerning environmental institutions, also appears to have marked the establishment of UNEP itself. The GA resolution by which this was done, in the wake of the 1972 Stockholm Conference (A/RES/2997 (XXVII) of 15 December 1972), is titled "Institutional and financial arrangements for international environmental


35

activities become more important to its parties, there may be a move to establish greater independence and the original TOs112 may be recognized as organs of an inchoate IGO that may be "morphed" into a fully developed one. Others, however, may remain closely attached to the United Nations (directly or through UNEP), and thus continue to be considered as TOs. Thus all these institutions may ultimately not end up with the same classification.

IV. Specialized Agencies and Other UN System IGOs Arts 57 and 63 para.l of the United Nations Charter define "specialized agencies" as "established by intergovernmental agreements and having wide international responsibilities ... in economic, social, cultural, educational, health and related fields" which are to be brought into relationship with the United Nations through agreements negotiated with ECOSOC and approved by the GA. Specialized Agencies (SAs) are mentioned in several provisions of the Charter, in most instances in relation to ECOSOC, though Article 17 para.3 provides that the GA is to approve any financial and budgetary arrangements with SAs and review their administrative budgets. Although the Charter also refers to other international agencies113 it is not suggested that any of these would have special relations with the United Nations.114

112

113 114

co-operation", and nowhere indicates clearly that it is establishing a new organ to be called the "United Nations Environment Programme". Instead it establishes, seemingly without organic connections, the Governing Council of UNEP (the only place where that term appears), the Environmental Secretariat (defined as "small"), an Environment Fund and an Environment Co-ordination Board (which was soon replaced). Technically, in these environmental regimes only the COP, and perhaps an expert body, are TOs; if and when an independent IGO is formed, most likely by creating an independent secretariat, all these (i.e. the COP, any expert body, and the secretariat) become the organs of the IGO. See, for example, Arts 48 para.2 and 52 (regional agencies). It should be noted that over the years, and especially in recent ones, the GA has granted observer status to an increasing number of IGOs, including many of a regional character, not otherwise formally associated with the UN System (e.g., A/RES/52/6 of 22 October 1997 relating to the Andean Community), or has concluded cooperation agreements with them (e.g., Agreement of 29 September 1991 between the UN and the Latin American Economic System, UNTS Vol. 1651 No.11-1061), or has adopted

36


In all, 17 organizations became specialized agencies.115 Some of these, such as ITU and UPU, pre-date the United Nations by nearly a century; ILO was established as part of the League of Nations; FAO and WHO have their roots in earlier organizations established before World War II and restructured thereafter; the Bretton Woods Institutions (IMF and IBRD) were born essentially contemporaneously with the United Nations at the end of the War; and most of the others were, in effect, established by the United Nations itself, through conferences at which their constitutions were adopted; the last one, UNIDO, is one of the latter and it succeeded a UN QAB with the same name and functions. Although all SAs may have been intended to be created equal, from the beginning they were in effect grouped into two classes, differentiated by the precise terms of their relationship agreements. The two Bretton Woods institutions entered into relationships that were somewhat more distant from the central organization; in particular, they accepted only very conditioned obligations to take account of GA recommendations,116 and they did not undertake to join in any common system of staff administration; subsequently two of the four derivative agencies of the IBRD, namely IFC and IDA, became SAs in their own right, on terms similar to that of their parent. Later IFAD, in negotiating its relationship agreement, argued that it too should be classed with the other International Financial Institutions, but the GA rejected this.117

115

116

117

resolutions concerning cooperation (e.g., with the Organization of the Islamic Conference, A/RES/37/4 of 22 October 1982 and annually thereafter). These actions do not cause any structural changes in the UN System, but rather testify to the increasingly important role of the UN and especially to the central political position of the GA in the world community as a whole — perhaps not yet Tennyson's Parliament of Man (Locksley Hall, line 128) but at least as Mankind's Forum. One of these was the International Refugee Organization (IRO), which was dissolved in 1950 and whose functions were, in effect, taken over by then newly established UNHCR. See article IV of the UN/IBRD Relationship Agreement (UNTS Vol. 16 No.II- 109), the implementation of which later became most controversial between the two organizations; see the Report of the Secretary-General on "Consultation with the International Bank for Reconstruction and Development", GAOR 22nd Sess., Annexes, Agenda Item 66, A/6825. When the draft Relationship Agreement with IFAD, which did not include a provision relating to the common system, was under consideration by the


37

Thus, from the beginning, the UN System or Family consisted of the United Nations itself and of its growing number of SAs. The main characteristics of the System were, and in effect still are: (I) For all SAs: (i) Authorization by the GA, pursuant to Charter Article 96 para.2, to request advisory opinions of the ICJ; (ii) Acceptance of the CPISA,118 adopted by the GA, which also authorized their staffs to use the UN Laissez-Passer; (iii) Participation in the ACC.119 (II) In addition, for the inner circle of non-Bretton Woods SAs: (i) Participation in the "common system of salaries, allowances and other conditions of service" (the common system),120 which is designed to prevent emoluments-based competition among the UN System IGOs and also centralizes the extremely complicated function of developing and maintaining arrangements concerning current emoluments and future benefits at hundreds of duty stations at which both international officials from all over the world as well as local staff are employed for short or long periods;

118 119 120

GA, the Assembly first adopted a resolution inviting IFAD to participate in the common system (A/RES/32/102 of 13 December 1977); only after a positive response was received from the IFAD organs simultaneously meeting in Rome, did the Assembly at the recommendation of its Fifth Committee first approve the new article IX of the Agreement providing for cooperation with the common system (A/DEC/32/428 A of 15 December 1977) and later that day approved the amended draft Agreement (A/RES/32/107 of 15 December 1977). The text is now set out in UNTS Vol.1080 No.II-806. A/RES/I 79 (II) of 21 November 1947, UNTS Vol. 33 No.I-521. See sub-Section V.3 below. For a list of the organs that implement the common system, see subSection V.3 below. The provisions of the Relationship Agreements between the UN and various SAs and other IGOs participating in the common system are set out in the Annex to ICSC Statute and Rules of Procedure, Doc.ICSC/1/Rev.l (1987).

38


(ii) Participation in the Panel of External Auditors, and later also intheJIU;121 (iii) Examination of their administrative budgets by the GA's ACABQ; (iv) For most, basing the rates of assessments of their members on those adopted by the GA for the UN Regular Budget. Soon, however, some anomalous organizations joined the UN Family: (a) The IAEA could not become an SA principally because its relationship agreement was not negotiated with ECOSOC (as required for SAs by Charter Arts 57 and 63 para.l), reflecting the fact that the Agency's international security related activities might require it to have access to the SC rather than to ECOSOC.122 However, because nuclear energy also has important economic and social implications, for most practical purposes the Agency became an inner circle SA in all but name. (b) The living remains of the still-born International Trade Organization, namely ICITO/GATT,123 although technically not an IGO at all, participated in the common system and in some other ways acted as an SA. (c) The World Tourism Organization, a successor to a line of NGOs, was reorganised as an IGO in 1975 specifically so that it could become a UNDP Executing Agency.124 In 1977 it concluded an Agreement on Co-operation and Relationship with the UN, which closely resembles the agreements with the inner circle SAs, except that it does not refer to the common system; nevertheless, in 1995 the Organization conformed the conditions of service of its staff to

121

122

123

124

Cf. in this respect W. Munch, "The Joint Inspection Unit of the United Nations and the Specialized Agencies", Max Planck UNYB 2 (1998), 287 et seq. See P.C. Szasz, The Law and Practices of the International Atomic Energy Agency (IAEA), 1970, Section 12.1. Even though not technically an SA, the GA did authorize the Agency to request advisory opinions (see, ibid., Section 12.1.4.1). Respectively the Interim Commission of the International Trade Organization and the General Agreement on Tariffs and Trade, both based on texts negotiated at the UN's 1947 Havana Conference to establish ITO. World Tourism Organization Statute, 27 September 1970, UNTS Vol. 985 No.I-14403, article 3.1.


39

the common system in order to be able to join the UNJSPE125 Because the Agreement was not concluded through ECOSOC, the Organization did not become an SA. From early days, there had been some IGOs established by UN sponsored multilateral treaties that did not become parts of the UN System. Some were too small and narrow in concept to fit the Charter definition of SAs, such as the numerous commodity organizations established by a series of UNCTAD-sponsored treaties or the International Tropical Timber Organization.126 Others, like the Asian Development Bank, created by a treaty127 concluded under the auspices of ECOSOC's Economic Commission for Asia and the Far East (ECAFE) (now the Economic and Social Commission for Asia and the Pacific — ESCAP), is an essentially regional international financial institution and consequently does not belong in a family of essentially universal organizations. Special mention should be made of the University for Peace, which was established by an international agreement and a Charter, both adopted by the GA, and whose Council includes one representative each designated by the UN SG, the UNESCO DG, the UNU Rector and the UNITAR Executive- Director, as well as ten representatives of the academic community appointed by the UN SG in consultation with the UNESCO DG; nevertheless, it has no financial or reporting ties to the UN proper, though its Charter provides that it is to seek to establish a close relationship with UNU pursuant to an agreement to be concluded between the two institutions, and to maintain close links with UNESCO.128 Since the formal completion of the conversion of UNIDO from a QAB to a SA, none of the several significant UN-related IGOs that have been established have aspired to SA status. Some have concluded relationship agreements with the United Nations that resemble the SA (and IAEA) agreements, and some have managed to benefit from some features of the system that are usually restricted to System members 125

126 127

128

A/RES/32/156 of 19 December 1977, and A/DEC/50/455 of 23 December 1995. See note 107. Articles of Agreement of the Asian Development Bank, UNTS Vol. 571 No.I- 8303 of 4 December 1965, ILM 5 (1966), 262 et seq. See respectively arts 6.1 (a) (iii) and (b)(i) and 4.2-3 of the Charter of the University for Peace which, together with the International Agreement for the Establishment of the University for Peace (UNTS Vol.1223 No.I19735), is annexed to A/RES/35/55 of 5 December 1980.

40


(e.g., use of the United Nations Laissez- Passer, participation in UNJSPF), but for the most part they can at most be considered somewhat peripheral members of the United Nations Family. For example: (d) The World Trade Organization (WTO), the successor to the anomalous ICITO/GATT, has not concluded any relationship agreement with the United Nations and is withdrawing from participation in the common system, including UNJSPF.129 (e/f) The International Seabed Authority (ISA) and the International Tribunal for the Law of the Sea (ITLOS), both established by UNCLOS, have concluded respectively a Relationship Agreement and a Cooperation and Relationship Agreement with the United Nations130 that resemble the inner circle SA agreements, including the provisions concerning the common system. However, these agreements, not having been entered into by ECOSOC but having been submitted directly to the GA, do not constitute these organizations as SAs and therefore contain no authorization to request ICJ advisory opinions. (g) The Organization for the Prohibition of Chemical Weapons (OPCW), established by the 1993 Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on their Destruction 131, has been authorized by the GA to issue Laissez- Passers to members of its inspection teams.132 It has not yet concluded any type of relationship agreement with the United Nations, which for even stronger rea-

129

130

131 132

Such withdrawal is not at all a simple procedure, as discussed in the report of the Pension Fund Board to the GA (Doc.A/53/9/Add. 1 of 24 November 1998). The decision that the new WTO would not continue its predecessor's (ICITO's) participation in the common system was actually taken by the Ministers of the participating states at the Marrakesh meeting, just before formally adopting the Agreement Establishing WTO, as recorded in a Ministerial Decision of 14 April 1994 on "Organizational and Financial Consequences flowing from Implementation of the Agreement Establishing the World Trade Organization" (ILM 33 (1994), 1269 et seq.) so as to permit aligning the conditions of service of WTO staff with the better ones of the Bretton Woods Institutions — a goal that was, in the event, not accomplished. Respectively A/RES/52/27 of 26 November 1997, Annex, and A/RES/52/ 25 of 8 September 1998, Annex. ILM 32 (1993), 800 et seq. A/RES/51/230 of 22 May 1997.


41

sons than those relating to the IAEA would in any event not constitute it an SA. In addition, with respect to two organizations whose constitutional instruments have recently been adopted under the aegis of the United Nations, and which are now awaiting formal establishment on the entry into force of these instruments, it should be noted: (h) The Comprehensive Nuclear Test-Ban Treaty, which is to establish the CTBTO, merely refers to "cooperative arrangements with other international organizations" and "agreements and arrangements with ... international organizations",133 without any special reference to the United Nations. For the same reasons as related to the IAEA and the OPCW, that is the need to maintain closer relations with the SC and possibly the GA, than with ECOSOC, specialized agency status is not foreseen. (i) The Statute of the International Criminal Court (ICC) provides that "[t]he Court shall be brought into relationship with the United Nations through an agreement ...w.134 For the reasons indicated below, it is not expected to become an SA. Thus the number of substantial organizations that exist within the UN System but that lack formal ties to its administrative structure, is likely to grow. The major reason for this development is that most of the new IGOs (except WTO and possibly the ISA) do not fulfill the Charter Article 57 para.l subject matter criteria that were quoted at the beginning of this Section. The OPCW and CTBTO, even more than the IAEA (which also has important economic and health related functions), deal solely with questions of military security and it would be inappropriate for them to coordinate activities through ECOSOC or ECOSOC-created machinery (e.g., ACC). Such coordination would similarly be inappropriate for the two new courts: ITLOS and ICC. There appear, however, to be other more subtle reasons why organizations that could qualify as SAs, such as WTO and possibly the ISA, fail to do so, and for the others not to strive to secure at least the same sort of quasi-SA status that the IAEA attained in 1958: (i) Some states and possible some administrators appear to deem adherence to the common system an unwanted burden, possibly for 133

134

ILM 35 (1996), 1439 et seq., arts II.A, para. 8 and II.B, para. 26(i). See also note 61. ILM 37 (1998), 999 et seq., article 2.

42


contradictory reasons. On the one hand, some states consider that certain of the benefits that have accrued to international staff over the past decades to be unjustified and expensive. Some executive heads and staff, on the other, have concluded that the common system professional salary scales, tied as they are to that of the United States civil service, have not adequately reflected the rise in private pay scales for similarly qualified persons, making it difficult to recruit and retain qualified technical staff.135 (ii) Some states appear to resist the relatively high level of international privileges and immunities that are provided for in the CPIUN136 and the CPISA.137 Though prepared to provide substantial protection for weapons inspectors and having done so directly in their constitutional treaties, OPCW and CTBTO have resisted drawing up privileges and immunities agreements to cover their entire staff and the organizations themselves — thus failing to follow the example of the IAEA which, when it was determined that it could not participate in CPISA, adopted an Agreement138 that followed that text practically word for word. A probably unintended consequence is that these new organizations are not qualified, under Charter Article 96 para.2, to be authorized by the GA to request advisory opinions from the ICJ.139 On the other hand, there is no constitutional or other serious obstacle to the participation of these organizations in the various coordination and control organs of the UN System, described in sub-Section V.3 below, to the extent that this is considered desirable.

135 136 137 138

139

See note 129. See note 14. See note 118. Agreement on the Privileges and Immunities of the International Atomic Energy Agency, UNTS Vol. 374 No. 5334 of 1 July 1959. It should, however, be recalled that in approving the Agreement the Board of Governors did so "without committing the Governments represented on the Board" and that it invited member States "to consider and, if they see fit, to accept this Agreement" (Doc. INFCIRC/9/Rev.2, 2) — hardly a ringing endorsement. In this connection it should be kept in mind that in practice the SAs have made only minimal use of this facility: one request each by IMCO (predecessor of IMO), UNESCO and WHO, in about half a century.

y The Complexification of the United Nations System

43

V. Joint Bodies 1. Joint Substantive Organs Explicit or implicit in the constitutions of all organizations is the power of their organs to establish subsidiaries — which, of course, are obliged to function within the legal system of the organization that established them. Although an organ may be able to establish subsidiary organs that can perform functions that the parent cannot (for example, the GA has established the UNAT, and the SC has established two war crimes tribunals), they cannot be authorized to perform functions beyond the powers of the organization itself. It is not explicitly foreseen in any constitutional instrument that two or more organs established under it should be able to establish a joint subsidiary organ, but there is no reason to exclude that possibility in principle, and indeed, there have been several examples in the United Nations of the same organ being assigned tasks by both the GA and by ECOSOC.140 Conceptually more difficult is the establishment by two independent IGOs of a joint subsidiary organ, that is an organ that partakes of the legal personality of both. Nevertheless, there are several examples of such constructs — which at least illustrate that what may be theoretically difficult can sometimes be done in practice. (a) The WFP is a joint subsidiary organ of the UN and of FAO (an SA). It was established in 1961, and several times reorganized, by resolutions adopted separately by the GA141 and by the FAO Conference, and is governed by a set of rules adopted by both ECOSOC and the FAO Council. It is now supervised by an Executive Board of 36 states, half elected by ECOSOC and half by the 140

141

See note 38. Aside from the example cited therein, there are numerous instances of the GA assigning tasks to ECOSOC organs, such as the Functional Commissions (and at the same time expanding their membership for the purpose of fulfilling that task), such as by A/RES/52/100 of 12 December 1997, para. 46, deciding that the Commission on the Status of Women is to serve as the preparatory committee for the "high-level plenary review" in the year 2000 of the implementation of, inter alia, the 1995 Beijing Platform of Action, and by A/RES/52/111 of 12 December 1997, para. 29(d), deciding that the Commission on Human Rights will act as the preparatory committee for the world conference on racism, racial discrimination, xenophobia and related intolerance. The first such was A/RES/1714 (XVI) of 19 December 1961, and the latest reorganization was approved by A/RES/50/8 of 1 November 1995.

44


FAO Council; the executive head is the Executive Director, appointed jointly by the UN SG and the FAO DG. The Programme, which also administers the GA-established International Emergency Food Reserve, is the largest multilateral food aid arrangement, and indeed one of the largest resource transfer operations in the UN System (aside from the IFIs). Its staff of over 4,000 are governed by the FAO Staff Regulations and Rules, adapted to take into account that the executive head is the WFP Executive Director rather than the FAO Director-General. (b) The ITC was established by the GATT Contracting Parties in 1964 but has since 1968 been operated jointly by UNCTAD (a UN QAB) and by GATT; in "Administrative Arrangements" concluded in 1974 the Centre is characterized as "a subsidiary organ of both the United Nations and CATT", which is to "be accorded a degree of separate identity" 142; after the establishment of WTO, negotiations were entered into to replace GATT as co-parent by the new organization. ITC is supervised by the Joint Advisory Group of the International Trade Centre UNCTAD/WTO and its executive head is appointed by the UN SG. The Centre applies the UN Staff Regulations and Rules and the UN Financial Regulations and Rules. (c) The GEF was established by the World Bank in 1991 as a "pilot program", and was restructured in 1994, after extensive negotiations among participating states, by the Instrument for the Establishment of the Global Environment Facility, which was formally approved by separate decisions by the following three Implementing Agencies: the World Bank (an SA), by resolutions of its Executive Directors and Board of Governors; UNDP (a UN QAB), by a decision of its Executive Board; and by UNEP (also a UN QAB), by a decision of its Governing Council.143 The Establishing Instrument provides for the following organs: an Assembly of the representatives of all participating states; a Council of 32 members (from 3 "constituencies" ) and 32 alternates, appointed by the participant 142

143

See Doc.A/C.5/1604 of 16 September 1974 (also reproduced in Doc. A/C/5/52/45 of 17 March 1998), para. 3(a) and Annex, para. 2, noted by the GA at its 2325th Mtg. on 18 December 1974. For a history of ITC, see the report of the Secretary-General Doc.A/C.5/52/25 of 2 December 1997, para.3, and the Attachments to the report by the UN Secretariat Doc.A/ C.5/52/45 of 17 March 1998. All these decisions, as well as the text of the GEF Establishing Instrument, are reproduced in ILM 33(1994), 1273 et seq.


45

states in each constituency; a Scientific and Technical Advisory Panel, established by UNEP in consultation with UNDP and the World Bank; and a secretariat supported administratively by the World Bank and headed by a CEO/Chairman appointed by the Council on the joint recommendation of the three Implementing Agencies. As the Legal Counsel of the World Bank has pointed out, the GEF is practically an IGO, except for the fact that has not been accorded legal personality;144 thus it is, in effect, a joint organ of the three Implementing Agencies, all members of the UN family. In turn, it has become the principal means of financing projects under several environmental conventions (see Section III.), including the ones on ozone protection, biodiversity and climate change. (d) The Intergovernmental Panel on Climate Change (IPCC) was established in 1988, jointly by UNEP (a UN QAB) and the World Meteorological Organization (WMO — an SA), originally to do preliminary work leading towards the UNFCCC145 (which was ultimately negotiated under the auspices of the GA) and now to provide continuing advice to the organs established by that treaty. (e) The Consultative Group on International Agricultural Research (CGIAR) is a semi-formal arrangement cosponsored by FAO (an SA), UNDP and UNEP (both UN QABs) and the World Bank (an SA), which originated and chairs the Group, whose members include about 60 states, foundations and other NGOs and which supports over a dozen research institutes around the world. (f) The Pan-American Health Organization (PAHO) is simultaneously a regional agency of WHO (an SA of the UN System) and a specialized agency of the Organization of American States (OAS) — which is a regional organization not part of the UN Family.

2. Interorganizational Organizations Can IGOs go beyond establishing joint organs (which have the legal personality of at least one of those organizations, and perhaps of all of the founders), and actually create Interorganizational International Organizations (lOOs) that have their own legal personality and not merely that of any of those IGOs, just as IGOs established by states have their

144 145

See note 16. See note 96.

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own legal personality and not that of their members? Whatever the theoretical considerations may be, such organizations have actually been created within CGIAR (sub-Section l(e), above), when for particular reasons it was desired to (re-)establish certain of the sponsored research institutes not on the basis of the national law of the host state (the usual pattern) but as an international organization — without, however, negotiating an intergovernmental treaty.146

3. Administrative Organs of a Joint Character The multitude of organizations and organs that constitute parts of the UN System often have mandates, and consequently programmes and activities, that overlap,147 necessitating the existence of some coordinating devices. On the political level this function is performed, separately or together, by the GA, by ECOSOC (which has a Charter responsibility in respect at least of the SAs148) and, under their supervision, by ECOSOC's Committee for Programme and Co-ordination (CPC). On the administrative level, numerous arrangements and institutions have been established, normally by the GA, sometimes by entrusting certain such functions to an organ it itself has established, and sometimes by establishing an organ and inviting other UN System IGOs to accept it as a joint organ; in addition, the GA has also established certain organs to which it has entrusted activities that also extend to other such IGOs. 146

147

148

See the May 1988 Agreement between the International Bank for Reconstruction and Development and the United Nations Development Programme on the Establishment of the Centro International de Mejoramiento de Maiz y Trigo (CIMMYT), which specifies that CIMMYT "is hereby established as an international organization possessing full juridical personality in accordance with the Constitution set forth in the Annex attached hereto"; article 2 of that Constitution specifies that: "CYMMYT ... enjoys international status and shall operate as an integral part of [CGIAR]". To make assurance doubly sure, the Agreement also specifies that "neither the Co-Sponsors (IBRD and UNDP) nor any member of CGIAR shall be responsible or liable, individually or collectively, for any debts, liabilities or obligations of CIMMYT". There are many natural overlaps, such as, for example, in respect of safety provisions for workers in the nuclear industry, which naturally falls within the purview of the IAEA, ILO and WHO; this is recognized in IAEA Statute, article IV.A.6. United Nations Charter Arts 58 and 60.


47

The principal coordinating organ is the ACC, established by ECOSOC.149 Initially it consisted of just the UN SG, as Chair, and the executive heads of all the SAs; later the IAEA Director General and the executive heads of the QABs were added. ACC has two main subsidiaries: the Consultative Committee on Administrative Questions (CCAQ), which itself has two forms, dealing respectively with financial (CCAQ(FB)) and personnel (CCAQ(PER)) issues and consisting, respectively, of the heads of the financial and personnel services of each common system organization; and the Consultative Committee on Programme and Operational Questions (CCPOQ), which has a number of subsidiary bodies. In addition there are a number of standing and ad hoc bodies for particular issues. The administration of the common system (in which only certain UN System IGOs participate)150 involves a number of organs: The International Civil Service Commission (ICSC), established by the GA as an expert joint inter-agency organ151 "for the regulation and coordination of the conditions of service of the [UN] common system"; the UNJSPF152 and its uniquely composed Board153 in which all IGOs that follow the common system may participate; and the Administrative Tribunals of ILO (ILOAT) and the UN (UNAT), which between them have jurisdiction over all common system staff.154 The administrations are represented in and before these various organs by CCAQ(PER); the staffs are represented by two alliances of staff representative organs (unions): the Federation of International Civil Servants' Associations 149 150 151

152

153

154

E/RES/13 (III) of 21 September 1946. See Section IV., para. II(i). Some of the SAs indicated, while agreeing to the jurisdiction of the Commission, that they could not accept it as a joint organ because there was no provision for such in their constitutional instruments. The UNJSPF Regulations were first adopted by A/RES/248 (III) of 7 December 1948, and have been amended almost annually since. The UN Joint Staff Pension Board is a tripartite organ, consisting of an equal number of representatives: elected by the GA or by the legislative bodies of other participating IGOs; appointed by the UN SG or by the executive heads of other IGOs; and elected by the staff of the UN or other IGOs. Moreover, the number of representatives of each IGO (in all the above categories) roughly reflects the size of its staff. See Rules of Procedure of the United Nations Joint Staff Pension Board, Doc.JSPB/G.4/ Rev. 14 of 1 January 1990, Annex II, Appendices 1 and 2. The IMF and the World Bank, which do not participate in the common system, each have their own pension funds and administrative tribunals.

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(FICSA) and the Co-ordinating Committee of Independent Staff Unions and Associations (CCISUA);155 even the retired staff are represented by the Federation of Associations of Former International Civil Servants (FAFICS), which in turn consists of local AFICSs. Again in respect of many of the common system IGOs, some financial coordination is provided by the following organs: the GA's powerful ACABQ of 16 experts appointed on a personal basis by the GA;156 the Panel of External Auditors, consisting of the elected External Auditors of the UN (3 at any given time) and of each of the common system SAs and the IAEA (mostly one each);157 the JIU, consisting of up to 11 inspectors appointed on a personal basis by the GA.158

VI. Temporary Entities Most of the organizations, organs and structures discussed above are of a permanent or at least standing nature. Though most may be altered, or even entirely abolished, generally they persist — in some instances even after their original functions have faded away, sometimes by assuming other tasks.159 It appears that it is often more difficult to abolish an entity than to create one; from time to time it has been suggested that certain types of entities should only be established with sunset provi-

155

Although the staff representative organs of a particular IGO have the legal personality (and thus benefit from the privileges and immunities) of their IGO, it is not entirely clear where the legal personalities of FICSA and CCISUA are located. 156 Provided f or m Rules 155-157 of the Rules of Procedure of the GA (Doc.A/520/Rev.l5); over the years, the Committee has received many new standing and special assignments. 157 Established by A/RES/1438 (XIV) of 5 December 1959. These External Auditors are, for each IGO, the heads of the governmental audit service of states elected by the IGO organ in which all members are represented. 158 Established by A/RES/2150 (XXI) of 4 November 1966; JIU Statute approved by A/RES/31/192 of 22 December 1976. See note 121. 159 Thus it has been repeatedly suggested that the UN Trusteeship Council, which is functio officio, be reinvented as the senior environmental organ of the UN System — for which neither its composition nor its Charterassigned tasks make it at all suitable.


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sions.160 There are, however, some important entities that are established for only a limited period, but that may nevertheless have major impacts.

1. Conferences Conferences convened by an IGO are, in effect, temporary organs of that organization. While some of these conferences are indeed short, one-time affairs, others are of a different nature. (a) Arguably, the most important UN conferences are the major theme meetings, such as those relating to the Environment, Human Rights, Women, Population, Social Development, etc. It should be understood that the actual culminating meeting, usually of a few weeks, is preceded by years of intensive work in which the entire UN System is likely to be engaged. These preparations are orchestrated by a preparatory commission, which itself may be an ad hoc orân, or may be a standing one to which this is just a temporary assignment; there are likely to be regional and thematic meetings, all geared to preparing documentation for the big event and to negotiating the outcome of the conference, which is likely to be a solemn declaration. During this process units relating to the work of the conference may be implanted in various related IGOs and QABs, as well as in the participating states — and these units are likely to persist even after the conference is over, to assist in and to monitor the implementation of such declarations. In addition, the sponsoring IGO or organ (usually the GA) may create a new permanent subsidiary organ (sometimes a QAB) for the purpose, and it itself may carry out periodic (often quinquennial) reviews — and, often some two decades later, convene another conference on the same theme. It should be noted that both the Conferences and their preparatory bodies are complex ones, consisting of meetings of state representatives and of a dedicated secretariat headed by a SG appointed by the UN SG.

160

This, indeed, is already the practice in respect of peace-keeping and similar "blue helmet" operations, which with very few exceptions have in the past decades been established by the Security Council for just six months at a time; once that period is close to expiring, the Council must re-authorize, which it only does if its leading members are agreed that there is still merit in continuing the operation — otherwise it automatically terminates.

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(b) Another type of important meetings are treaty-making conferences or conferences of plenipotentiaries,161 which include "codification conferences". These too are usually carefully and lengthily prepared, first through an expert organ (such as the ILC), then a representative preparatory committee, culminating in a usually multiweek conference, which may have several sessions over a period of years. Most important multilateral treaties emerge from such conferences. (c) As pointed out in Sections II.2 and III. above, conferences of the parties to arms control and environmental treaties are usually convened on a regular basis, to review implementation and to consider changes or supplements to the treaty. They thus form part of the regular governance of these treaty regimes. (d) In some instances, organs called "conferences" are part of the regular structure of certain QABs, such as of UNCTAD and of the old, pre-SA UNIDO. Though not participating in the regular governance of the QAB, they set the longer range programmes and goals for the body.

2. Preparatory Commissions A different type of temporary bodies are preparatory commissions established to ease the birth of a new IGO after its constitutional treaty has been adopted.162 These PrepComs function for an indefinite period

161

These are sometimes misleadingly referred to as "plenipotentiary conferences", which suggests that these meetings have unlimited mandates — while actually they only have the power to adopt treaty and related instruments on a narrowly defined subject. 162 Tnese Preparatory Commissions should be distinguished from mere preparatory committees for conferences, for these are just subsidiary bodies of the organ (usually principal) that is convening the conference; however, the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INFCCC), established by A/RES/45/212 of 21 December 1990, was kept in operation even after the Convention (see note 96) was adopted and for some time even after it entered into force, holding sessions until February 1995 to prepare for the first COP under the Convention in March/April 1995.


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(in some instances for decades163) until the principal treaty enters into force and the IGO it established can be set up with the assistance of instruments (rules of procedure, headquarters agreements, rules for functional operations, etc.) drawn up by the PrepCom for formal adoption by the competent IGO organs. Thus these PrepComs function on the one hand as quasi-organs of the incipient IGO, but meanwhile their legal status depends on the instrument by which they were established. Essentially, there are the following possibilities: (a) PrepComs can be established by a treaty, which can either be an instrument adopted in parallel with the constitutional instrument of the new IGO (but, unlike the latter, entering into force on signature)164 or by a portion of that instrument that enters into force (unlike the substantive provisions) on adoption or as otherwise specified.165 When so established, they are potentially full-fledged though temporary IGOs, having legal personality, privileges and immunities, their own secretariats, etc.166

163

164

165

166

The PrepCom of IMCO (the original name for IMO) functioned from 1948 to 1958, when the IMCO Constitution finally came into force. A special case is the Interim Commission for the International Trade Organization (ICITO), which was designed as the PrepCom for ITO, but then became the long-time secretariat (from 1948 to 1995) of GATT (see Section IV.(b)). For example, the 26 June 1945 Interim Arrangements Concluded by the Governments Represented at the United Nations Conference on International Organization, which established the Preparatory Commission for the United Nations (UNCIO Vol. XV, 512-513, US Executive Agreements Series No. 461). For example, the Annex to the Statute of the IAEA of 26 October 1956 (UNTS Vol. 276 No.I-3988), para. A of which specifies that: "A Preparatory Commission shall come into existence on the first day this Statute is open for signature." It should be recalled that the final clauses of all treaties implicitly enter into force on adoption, for otherwise these could not function to bring the treaty itself into force. That was the situation of the IAEA Preparatory Commission (idem), whose independent legal status was recognized both by the United States, where the PrepCom started its operations (Executive Order No. 10727, Federal Register, 22 (1957) 7099 et seq.) and by Austria (by means of an Agreement concluded on 24 July 1957, Doc.IAEA/PC/14), where it completed its work; see Szasz, see note 122, Sections 3.1, 3.2.2 and 3.2.4.

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(b) PrepComs are frequently established by resolutions of the organ that adopts the constitutional treaty for the future IGO, which organ is usually a conference convened by a principal organ of the "parent" IGO, such as UNCLOS III.167 When so established, the PrepCom becomes a temporary subsidiary organ of the parent IGO, which is serviced by the latter, though the financing therefor may be provided either by that IGO or by the future states parties of the new IGO. (c) A peculiar aberration occurred in establishing the PrepCom for the CTBTO (Section IV. para.(h)) by a resolution adopted at an ad hoc meeting of the signatory states convened some weeks after the Convention168 had been opened for signature, which resolution specifies that the Preparatory "Commission shall have standing as an international organization, authority to negotiate and enter into agreements, and such other legal capacity as necessary for the exercise of its functions and the fulfillment of its purposes."169 As the group of signatory states did not itself constitute either an IGO or even an organ of the future CTBTO (though under the resolution itself the signatory states constitute the PrepCom), the legal status of their resolution and of the organ they created is in some doubt — unless one considers the resolution as expressive of an implicit agreement (i.e. a treaty) among the states that adopted it and those that sign the Convention later and thereupon join the PrepCom. However established, PrepComs are complex organs, consisting of a representative body (the Commission itself) and of a secretariat. Should the latter be provided by the parent IGO, then the Commission functions in effect as a TO of that organization.

167

168

169

UNCLOS III, by its Resolution I adopted on 30 April 1982, ILM 21 (1982), 1253 et seq. (in a package together with the Convention itself) and annexed to the Final Act of 10 December 1982, established the PrepCom for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea (i.e. one Commission for two separate IGOs). Which had been adopted by the GA by A/RES/50/245 of 10 September 1996. Doc.CTBT/MSS/RES/1 of 19 November 1996, Annex, para. 7.


53

VII. Concluding Observations The growth and elaboration of the UN System during its first half century reflects a number of countervailing factors: on the one hand the need for additional types of activities as the community of states is confronted more and more frequently and urgently with problems that require global or at least regional solutions; on the other the concerns of governments that the international structures already established to deal with these problems are becoming too many (for practical oversight and control) and too powerful (sometimes requiring even major states to yield). The result has been the invention of various hybrid structures: Quasi-Autonomous Bodies (QABs); Treaty Organs (TOs) that may be permanent or merely in transition to IGO status; both attached (to the UN System) and unattached Intergovernmental Organizations (IGOs); joint substantive or administrative organs; temporary organs; and several other devices described or at least mentioned above. The natural fecundity of this essentially need-driven but politicscontrolled process has been quite successful in'creating the many entities required to carry out the ever-growing though often unacknowledged demand for international governance. But the twists and turns that are sometimes required to secure agreement for a particular advance have left the international landscape littered with what in PC ("politically correct") terminology should be called "challenged structures", i.e. ones that do not have all the necessary legal components for unambiguous decision making or for the execution of such decisions. Though with sufficient good will almost any device can be made to work, when confronted by serious controversy some may not be in a position to respond reliably. And while the morphing of TOs into full-fledged IGOs may be considered as splendid examples of legal flexibility, there are still some practical reasons why stability and certainty of juridical forms is desirable. It would therefore appear timely to conduct a serious review of what has been accomplished in the field of international organizational law since the establishment of the United Nations, examining in particular the extensive ad hocery of recent years, perhaps with a view to codifying and enhancing that which has proven to be successful and, without attempting to restore the pristine simplicity of the original design, discarding or reformulating some of the less fortunate experiments. Having said this, it should be recognized that essentially international organizations are flourishing — perhaps to the regret of some — in response to multiple demands, often not clearly expressed, by the in-

54


ternational community. The protean life force resulting from that demand is responsible for both the observed growth and for the increasing complexity of the United Nations System. The challenge is to harness that force so that complexification does not lead to an impenetrable organizational jungle but rather enhances the flexibility of the System to respond to the increasing need for world governance.

Annex List of Acronyms ACABQ

Advisory Committee on Administrative and Budgetary Questions ACC Administrative Committee on Coordination AFICS Association of Former International Civil Servants BWC Biological Weapons Convention CAT Committee Against Torture CCAQ(FB) Consultative Committee on Administrative Questions (Financial & Budgetary) CCAQ(PER) Consultative Committee on Administrative Questions (Personnel) CCISUA Co-ordinating Committee for International Staff Unions and Associations of the United Nations System CCPOQ Consultative Committee on Programme and Operational Questions CD Conference on Disarmament CEDAW Committee on the Elimination of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CGIAR Consultative Group on International Agricultural Research CIMMYT Centro Internacional de Mejoramiento de Maiz y Trigo CITES Convention on International Trade in Endangered Species


CMS COP CPC CPISA CPIUN CTBTO

DG ECAFE ECE ENMOD EPTA ESCAP FAFICS FICSA GA GEF HRC ICC ICCPR ICESCR ICITO ICSC ICSID IDA IFC

55

Convention on the Conservation of Migratory Species of Wild Animals Conference of the Parties Committee for Programme and Co-ordination Convention on the Privileges and Immunities of the Specialized Agencies Convention on the Privileges and Immunities of the United Nations Comprehensive Test-Ban Treaty Organization Director-General Economic Commission for Asia and the Far East (now called ESCAP) Economic Commission for Europe Convention on the Prohibition of Military or any other Hostile Uses of Environmental Modification Techniques United Nations Expanded Programme of Technical Assistance (now merged into UNDP) Economic and Social Commission for Asia and the Pacific (formerly called ECAFE) Federation of Associations of Former International Civil Servants Federation of International Civil Servants' Associations General Assembly (of the UN) Global Environment Facility Human Rights Committee International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Interim Commission for the International Trade Organization International Civil Service Commission International Centre for Settlement of Investment Disputes International Development Association International Finance Corporation

56

IFI IGO ILC ILOAT IMCO INCB INFCCC INSTRAW IOO IPCC IRO ISA ITC ITLOS ITU IUCN JIU LRTAP MIGA NGO NPT OAS OPCW PAHO PIC PTBT QAB SA SC SG


International Financial Institution Intergovernmental Organization International Law Commission International Labour Organisation Administrative Tribunal Inter-Governmental Maritime Consultative Organization (former name of IMO) International Narcotics Control Board Intergovernmental Negotiating Committee for a Framework Convention on Climate Change International Research and Training Institute for the Advancement of Women Interorganizational Organization Intergovernmental Panel on Climate Change International Refugee Organization International Seabed Authority International Trade Centre International Tribunal for the Law of the Sea International Telecommunication Union World Conservation Union (originally International Union for the Conservation of Nature) Joint Inspection Unit Long Range Transboundary Air Pollution Multilateral Investment Guarantee Agency Non-governmental Organization Treaty on the Non-Proliferation of Nuclear Weapons Organization of American States Organization for the Prohibition of Chemical Weapons Pan-American Health Organization Prior Informed Consent Partial Test Ban Treaty Quasi-Autonomous Body Specialized Agency Security Council (of the UN) Secretary-General

Szaszy The Complexification of the United Nations System

SSOD TO UNAT UNCHS UNCLOS UNDCP UNFCCC UNICRI

UNIDIR UNIFEM UNITAR UNJSPF UNOG UNOV UNRISD UNU

57

Special Session on Disarmament (of the UN GA) Treaty Organ United Nations Administrative Tribunal United Nations Centre for Human Settlements United Nations Convention on the Law of the Sea United Nations International Drug Control Programme United Nations Framework Convention on Climate Change United Nations Interregional Crime and Justice Research Institute United Nations Institute for Disarmament Research United Nations Development Fund for Women United Nations Institute for Training and Research United Nations Joint Staff Pension Fund United Nations Office at Geneva United Nations Office at Vienna United Nations Research Institute for Social Development United Nations University


Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council* Nico Krisch

Interests of the international community have been the object of intense discussions among international lawyers, especially in recent years1. While the existence and membership of this community remains disputed2, different categories of community interests have been suggested, such as human rights, the environment or peace in general. They are generally opposed to state interests, as states do not necessarily have a direct interest in pursuing such community values: they are not directly concerned and do not immediately profit from their enforcement. The modes of enforcement have likewise been subject to intense debate which has focused on institutional mechanisms, especially the Security Council, and unilateral action, such as reaction to the violation of erga For comments and discussion, I am grateful to Cordula Droge, Thilo Marauhn and Georg Nolte. I am particularly indebted to Petra Weiler for her help with documents. Errors and misunderstandings remain, of course, my own. See already P.C. Jessup, A Modern Law of Nations, 1950, 2 et seq.; and, more recently, J.A. Frowein, "Das Staatengemeinschaftsinteresse — Probleme bei Formulierung und Durchsetzung", in: K. Hailbronner et al. (eds), Staat und Volkerrechtsordnung — Festschrift filr Karl Doehring, 1989, 219 et seq.; B. Simma, "From Bilateralism to Community Interest in International Law", RdC 250 (1994), 217 et seq.; C. Tomuschat, "Obligations Arising for States without or against Their Will", RdC 241 (1993), 195 et seq., (237,269, 300). See R.-J. Dupuy, La communaute Internationale entre le mythe et I'histoire, 1986; C. Tomuschat, "Die internationale Gemeinschaft", AYR 33 (1995), 1 et seq.; B. Simma and A. Paulus, "The 'International Community': Facing the Challenge of Globalization", EJIL 9 (1998), 266 et seq.

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omnes norms. For quite some time, both approaches seemed to be integrated in the drafts of the ILC on state responsibility with respect to international crimes of state3. In 1998 and early 1999, state practice has taken up the question again, by a rise of unilateral military action of especially western states. Apart from the United States strikes on Afghanistan and Sudan in August 1998, which were claimed to be justified mainly by self-defense after terrorist attacks on United States embassies in Africa4, military action has claimed to advance community interests: human rights in the cases of Kosovo and of the no-fly zones in Iraq, peace in the case of Iraqi disarmament. And acting states have, at least in part, relied on collective decisions to justify the use of force. I will call the common interest formulated in such decisions the collective will — as opposed to community values in general which, due to their subjective, decentralized determination, would be open to divergent views and would therefore remain less clear and forceful. In this article I try to show that, despite different ways of justification in detail, the acting states in principle claimed a right to unilateral enforcement of that collective will. Most other states have rejected this general claim, but it reflects a perceived need to act when collective enforcement action is blocked in the Security Council, while purely unilateral action seems hardly justifiable any more. The emergence of such a new right would, however, seriously affect the system of collective security. And the way in which the claim has been advanced has led to widespread perceptions of hegemonic action without regard for the collective system. Although analysis shows nonetheless that the Security Council did matter, albeit to a limited degree, the prospects for collective security are rather sad.

Cf. J.A. Frowein, "Reactions by not Directly Affected States to Breaches of Public International Law", RdC 248 (1994), 345 et seq.; A. de Hoogh, Obligations Erga Omnes and International Crimes, 1996, 137 et seq.; see also under I. See Keesing's Record of World Events 44 (1998), 42434 et seq.; on the very negative reaction from many states, see, e.g., Africa Research Bulletin 1998, 13268; Final Document of the Xllth Summit of the Non-aligned Movement, 2-3 September 1998, Durban, South Africa, § 159.

Krisch, Unilateral Enforcement of the Collective Will

61

I. The Enforcement of Community Interests Three ways have been conceived for the enforcement of community interests: traditional Security Council action in less traditional fields, unilateral action of states, and a mixture of both in the work of the ILC. An understanding of the role of the Security Council as enforcement organ for the highest values of the international community departs to some degree from the original Charter concept. Set up for the maintenance of international peace and security, it was not conceived as a law enforcement agency, apart from its role in the enforcement of judgments of the ICJ5. But the Council itself often expressly relied on legal evaluations to justify its action which therefore came to be perceived more and more as law enforcement action, although the Council was not limited to that role6. In the 1990s, the Council then extended its competences considerably to internal situations and especially to humanitarian concerns7. And in 1992, the summit meeting of the Council indicated an extension of the range of action to humanitarian and environmental problems8. This task to enforce more and more community interests influenced the tendency to construe the UN Charter and its procedures as the constitution of the international community9. Despite this, enforcement action authorized by the Council possessed less collective elements than originally envisaged. For example the Gulf War in 1991

H. Kelsen, The Law of the United Nations, 1950,294. V. Gowlland-Debbas, "Security Council Enforcement Action and Issues of State Responsibility", ICLQ 43 (1994), 55 et seq., (73); see also EL. Kirgis, "The Security Council's First Fifty Years", AJIL 89 (1995), 506 et seq., (527 et seq.). Cf. J.A. Frowein, "Article 39", in: B. Simma et al. (eds), The Charter of the United Nations, 1994, 605 et seq., (610 et seq.); F.R. Teson, "Collective Humanitarian Intervention", Mich.J.Int'l L. 17 (1996), 323 et seq.; H. Gading, Der Schutz grundlegender Menschenrechte durch militarische Maftnahmen des Sicherheitsrates — das Ende staatlicher Souvera'nita't?, 1996, 91 et seq.; M. Lailach, Die Wahrung des Weltfriedens und der internationalen Sicherheit als Aufgahe des Sicherheitsrates der Vereinten Nationen, 1998, 171 et seq. Doc. S/23500 of 31 January 1992. Cf. P.-M. Dupuy, "The Constitutional Dimension of the Charter of the United Nations Revisited", Max Planck UNYB 1 (1997), 1 et seq.; B. Fassbender, UN Security Council Reform and the Right of Veto, 1998,19 et seq.

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was not conducted under UN command, and later military action rarely was: measures often had a rather unilateral than collective character10. Unilateral action to further those common interests was likewise admitted, albeit with limitations. State practice seems to accept different forms of reaction to breaches of fundamental rules such as obligations erga omnes, including counter-measures11. But the conditions of the latters' exercise remain highly disputed12, and general agreement apparently exists only on the exclusion of forcible counter-measures, with the exception of self-defense and, possibly, of humanitarian intervention13. On this last point, intense discussions continue, but, despite the overwhelming importance of human rights in the international legal order, large parts of doctrine reject a right to use force for their protection. Their view is based on the primacy of the Security Council and on the lack of decisive practice by states14. States indeed do not appear to have consistently claimed a right to humanitarian intervention, although this

10

11

12 13

14

J. Quigley, "The 'Privatization' of Security Council Enforcement Action: a Threat to Multilateralism", Mich.J.Int'l L. 17 (1996), 249 et seq.; see also N.D. White and O. Ulgen, "The Security Council and the Decentralised Military Option: Constitutionality and Function", NILR 44 (1997), 378 et seq.; F. Bohmer, Die Ermdchtigung zu militarised er Gewaltanwendung durch den Sicherbeitsrat, 1997, 69 et seq. Frowein, see note 3, 422; de Hoogh, see note 3, 212 et seq.; C. Annacker, "The Legal Regime of Erga Omnes Obligations in International Law", Austrian J.Publlnt. Law 46 (1994), 131 et seq., (160). De Hoogh, see note 3,213; Annacker, see note 11,159 et seq. F.R. Teson, Humanitarian Intervention, 2nd edition, 1997, 146 et seq.; and the authors cited ibid., 148, note 44. For a more cautious approach see C. Greenwood, "Is there a right of humanitarian intervention?", The World Today, February 1993, 34 et seq.; D. Kritsiotis, "Reappraising Policy Objections to Humanitarian Intervention", Mich.J.Int'l L. 19 (1998), 1005 et seq. For cautious acceptance of humanitarian intervention by regional agencies despite rejection of unilateral intervention, see C. Walter, "Security Council Control over Regional Action", Max Planck UNYB 1 (1997), 129 et seq., (162 et seq.). Cf. A. Randelzhofer, "Article 2(4)", in: Simma, see note 7, 106 et seq., (123); S.D. Murphy, Humanitarian Intervention, 1996, 358 et seq.; M. Pape, Humanitdre Intervention, 1997, 87 et seq.; for an earlier account, cf. T.M. Franck and N.S. Rodley, "After Bangladesh: The Law of Humanitarian Intervention By Military Force", AJIL 67 (1973), 275 et seq.

Krischy Unilateral Enforcement of the Collective Will

63

would have been indispensable in order for such a right to emerge15. At least, humanitarian intervention is the only area where forcible action in favour of community interests is discussed at all. The doctrinal debate on unilateral action had strong ties with the work of the ILC on state responsibility, especially on the concept of international crimes of states as violations of fundamental rules of the international community16. The ILC considered different ways of reaction to such crimes, including non-forcible counter-measures by not directly affected states, as well as institutional solutions. According to earlier proposals, every state should be entitled to react in the same way to crimes as the directly affected state to ordinary violations of international law, but counter-measures would have required a prior decision of the Security Council17. In 1995, Special Rapporteur Arangio-Ruiz went even further and suggested that reactions to international crimes should be subject to far-reaching institutional prerequisites: resolutions by the Security Council or the General Assembly and a decision by the ICJ. In the meantime, only interim measures should be lawful18. This combination of unilateral and collective action, however, was finally dropped by the ILC in favour of a purely unilateral solution19. Ac-

15

16 17

18

19

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment of 27 June 1986, ICJ Reports 1986, 14 et seq., (109). The Court seems to have rejected a right of unilateral humanitarian intervention in this judgment. I shall follow this view, being prevented from further elaboration in the framework of this article. See in general J.H.H. Weiler et al. (eds), International Crimes of State, 1989. Arts. 5 lit. (e) and 14 of Part Two of the draft articles proposed in 1984, see W. Riphagen, "Fifth report on the content, form and degrees of international responsibility", ILCYB 36 (1984), Vol. II/l, 1 et seq.; id., "Sixth report on the content, form and degrees of international responsibility; and 'Implementation' of international responsibility and the settlement of disputes", ILCYB 37 (1985), Vol. II/l, 3 et seq., (14); Frowein, see note 3, 412; Annacker, see note 11, 159. Cf. Report of the International Law Commission on the work of its 47th session, GAOR 50th Sess., Suppl. No. 10 (Doc.A/50/10), 91 et seq.; and especially proposed arts 16 through 19, ibid., 94 et seq. See also G. ArangioRuiz, "Eighth report on state responsibility", Doc. A/CN.4/476 of 14 May 1996, 3 et seq., responding to criticism of his proposals of 1995. Cf. Report of the International Law Commission on the work its 48th session, GAOR 51st Sess., Suppl. No. 10 ( Doc.A/51/10), 121 et seq.; and especially arts 51 through 53 of the draft articles adopted in first reading, ibid., 146, and the commentary, ibid., 164 et seq.

64


cording to this, all states possess a right to resort to counter-measures against crimes of states as they do when directly affected by violations of international law, without any subordination to a collective system, except for procedures of dispute settlement. In later discussions, however, the dangers inherent in such unilateral measures to further community interests were again brought up20. Of course, with the exception of self-defense, counter-measures were not supposed to include forcible action. Recent events in the cases of Kosovo and Iraq do not conform to this clear separation of unilateral and collective measures. Here, both are combined, even in the field of forcible action. States rely on Security Council authority in order to prove the common interest involved, and purely unilateral justifications are avoided even when possible.

II. The Use of Force against Iraq for Disarmament Reasons The airstrikes against Iraq by the United States and the United Kingdom in December 1998 followed an escalation of the situation which had taken place since the beginning of the year21. In January, Iraq had

20

21

Report of the International Law Commission on the work of its 50th session, GAOR 53rd Sess., Suppl. No. 10 ( Doc.A/53/10), 144. See the chronology in Keesing's Record of World Events 44 (1998), 42698; L. Balmond, P. Weckel and A.S. Millet, "Chronique des faits internationaux", RGDIP 103 (1999), 169 et seq., (203 et seq.); and see M. Torrelli, "Le nouveau defi irakien a la communaute internationale: la dialectique des volontes", RGDIP 102 (1998), 435 et seq.; J.A. Frowein, "Unilateral Interpretation of Security Council Resolutions — A Threat to Collective Security?", in: V. Gotz et al. (eds), Liber Amicorum Giintber Jaenicke, 1998, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, Bd.135, 98 et seq.; 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.; G. den Dekker and R.A. Wessel, "Military Enforcement of Arms Control in Iraq", LJIL 11 (1998), 497 et seq.; C. Tomuschat, "Using Force against Iraq", Friedenswarte 73 (1998), 75 et seq.; N.D. White, "The Legality of the Threat of Force Against Iraq", Security Dialogue 30 (1999), 75 et seq.; J. Lobel and M. Ratner, "Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime", AJIL 93 (1999), 124 et seq.

Kriscb, Unilateral Enforcement of the Collective Will

65

prohibited UNSCOM22 from visiting certain strategic sites; the U.S. President reacted by a threat of force. After several weeks of rising tensions, the UN Secretary-General reached an agreement with Iraq on continued co-operation, which was endorsed by Security Council Resolution 1154 (1998)23. The Council also stressed that any further violation of disarmament obligations would have "severest consequences for Iraq". Nevertheless, several other provocations by Iraq occurred during the year. In August, it again restricted access to certain sites, which was condemned by the Security Council in early September24. On 31 October, Iraq prohibited all inspections by UNSCOM. The Security Council again condemned this by Resolution 1205 (1998)25 and demanded full compliance by Iraq, without immediate success. After further threats, the United States and the United Kingdom ordered airstrikes on 14 November, which were finally not carried out because Iraq, in a letter to the UN Secretary-General, accepted resumption of the inspections and, on demand by the United States and the United Kingdom, announced unconditional compliance26. Both states declared that any further provocation by Iraq would lead to attacks without any further warning or negotiation. When, one month later, Iraq again restricted access of UNSCOM to specific sites and the head of UNSCOM delivered a highly critical report to the Security Council, the United States and the United Kingdom reacted immediately, even before the Security Council had held its debate on the issue. From 16 to 20 December, both states attacked Iraq more forcefully than any time since the Gulf War in 1991.

22

23

24 25 26

UN Special Commission for Iraq for monitoring the Destruction and Surrender of Mass Destruction Weapons. Memorandum of Understanding between the United Nations and the Republic of Iraq of 23 February 1998, Doc. S/1998/166 of 27 February 1998; S/RES/1154 (1998) of 2 March 1998. S/RES/1194 (1998) of 9 September 1998. S/RES/1205 (1998) of 5 November 1998. Cf. Keesing's Record of World Events 44 (1998), 42646; UN press release SC/6596 of 15 November 1998; and Letters from the permanent representative of Iraq to the UN Secretary-General, Docs. S/1998/1078 and S/l 998/1079 of 14 November 1998.

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1. Claims and Reactions While the claims to justify the threat of force in early 1998 varied considerably, the United States and the United Kingdom advanced a clearer basis in December, although differences remained. The United States based their action mainly on Security Council Resolution 678 (1990)27 which had authorized the use of force to make Iraq comply with Resolution 660 (1990)28 and subsequent resolutions. The latter term, it was argued, comprised also later decisions of the Council, such as Resolution 687 (1991)29, which had mandated the cease-fire, but was conditioned by Iraqi compliance with its disarmament obligations. As Iraq had violated these obligations, the cease-fire was not valid any more, and the original authority was revived30. In this vein, the United States Under-Secretary of State declared: "(W)e believe the original use of force resolution from November 1990 - 678 - provided for the use of force to enforce Security Council resolutions. Those happen to include many of the sanctions resolutions, but also that the cease-fire resolution which succeeded it temporarily stopped the use of force only so far as Iraq kept its obligations under the cease-fire resolution"31. In addition to this, the United States referred to more recent resolutions. Resolution 1154 (1998) had threatened "severest consequences" for any violation of Iraq's disarmament obligations, and Resolution 1205 (1998) had determined that Iraq was in flagrant violation of them32. The same arguments were used by the United Kingdom in a slightly different manner. In some official documents, only Resolutions 1154 (1998) and 1205 (1998) were cited as justification33, and these later resolutions also played a greater role in the statements of United Kingdom representatives, such as in the Security Council:

27 28 29 30

31 32 33

S/RES/678 (1990) of 29 November 1990. S/RES/660 (1990) of 2 August 1990. S/RES/687 (1991) of 3 April 1991. See the statement of the United States representative in the Security Council, Doc. S/PV.3955 of 16 December 1998, 9, and the US Department of State Press Briefing of 16 December 1998. Department of State, Press Briefing, 22 December 1998. Department of State, Press Briefing, 22 December 1998. Cf. British Embassy to the United States, "Iraq: Key Messages".


67

"There is a clear legal basis for military action in the resolutions adopted by the Security Council. Resolution 1154 made it clear that any violation by Iraq of its obligations to allow the Special Commission and the IAEA unrestricted access would have severest consequences. Resolution 1205 established that Iraq's decision of 31 October 1998 to cease cooperation with the Special Commission was a flagrant violation of Resolution 687, which laid down the conditions for the 1991 cease-fire. By that Resolution, therefore, the Council implicitly revived the authorisation to use force given in Resolution 678"34. While the military strikes were supported by several, mostly western states, the majority of the international community did not appreciate that its will was enforced in such a manner. The supporters, e.g. Japan, Australia, the Netherlands, Austria, Canada, and Germany35, did not argue legally. They generally regretted military action but called it "inevitable", holding Iraq responsible for them. But some, such as Germany, expressed sorrow about its negative impact on the international system, especially the United Nations36. Reference to legal arguments was more common among the states opposing the strikes. Thus Russia declared: "The UN Security Council resolutions on Iraq do not provide any grounds for such actions. By use of force, the US and Great Britain have flagrantly violated the UN Charter and universally accepted principles of international law"37. Like several other states, Russia expressly regretted that the strikes were started at a time when the issue was under discussion in the Security Council and that Council members had not even been consulted. China condemned the military action with similarly clear words38. Opposition was expressed by several other states, such as Brazil, South Africa,

34 35

36 37

38

Doc. S/PV.3955 of 16 December 1998, 7. Cf. "Iraqi Raids Polarize International Opinion", YabooNews/Reuters, 17 December 1998. Press release of the German Foreign Ministry, 18 December 1998. Statement of the President of the Russian Federation, Press release of the Mission of the Russian Federation to the UN, 20 December 1998; see also Doc. S/PV.3955 of 16 December, 3 et seq. Press release of the Foreign Ministry of China, 17 December 1998 ("The unilateral use of force ... without the authorization of the Security Council runs counter to the UN Charter and the principles of international law").

68


Costa Rica and Kenya39. The Secretary-General of the Arab League called the acts "aggressions", which was moderated by later statements of the foreign ministers of the League members40. The non-aligned movement, comprising 114 states, deplored "the ongoing military actions against Iraq by individual countries without any authorization from the Security Council in flagrant disregard of the United Nations Charter"41. Some states chose more ambiguous expressions of their criticism. Sweden, e.g., emphasized that the Council itself was to decide the course of action42. France, which regretted the military strikes and stressed that the role of the Security Council had to be fully restored in the future, accepted at least the legal justification43: "On ne peut pas dire que leur active soil denuee de base legale. En effet, la resolution 1154, adoptee en mars 1998, prevoyait qu'une nouvelle violation par ITraq de ses engagements aurait 'les plus graves consequences'. Sans doute, cette resolution n'est pas aussi detaillee que d'autres mais elle est analogue a celle sur le Kossovo qui a permis, sous la menace d'une action militaire, întervention de 1'OSCE. ... La base legale de 1'action americaine n'est pas parfaite, mais elle est comparable a celle qui fonde notre action au Kossovo"44.

39

40

41

42

43

44

For the position of Costa Rica, Brazil and Kenya see Doc.S/PV.3955 of 16 December 1998; for that of South Africa see the press release of its Department of Foreign Affairs, 17 December 1998. For other reactions, especially of African states, cf. Africa Research Bulletin 1998, 13381. See A. Lyon, Arab League to Hold Weekend Meeting on Iraq, Yahoo News/'Reuters, 17 December 1998; Neue Ziircher Zeitung, 25 January 1999, 1. Press release of the Department of Foreign Affairs of South Africa of 18 December 1998. Doc.S/PV.3955 of 16 December 1998, 11. But see also the statement of the Swedish Prime Minister of 17 December 1998, holding Iraq responsible for the events while regretting that action had been taken without Council decision. A similar view was taken by Italy whose Prime Minister said that "the US idea of bombing is useless even if it surely has a legal base", cf. Keesing's Record of World Events 44 (1998), 42699. Hearing of the French Foreign Minister before the Commission on Foreign Affairs of the Assemblee Nationale, 22 December 1998.


69

2. The Legal Basis of the Claims The British-American attempt to justify the military action seems more than weak. Certainly, Resolution 678 (1990) "(a)uthorizes Member States ... to use all necessary means to uphold and implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore peace and security in the region". But this does only include the enforcement of previous resolutions concerning Iraq, not that of any resolution adopted after November 1990; this becomes clear already from the text of Resolution 678 (1990) which several times refers to the resolutions adopted between August and November 199045. Moreover, the authorization did not remain valid after the adoption of Resolution 687 on 3 April 1991. Already, according to Resolution 686 (1991)46, this authorization ended once Iraq complied with several conditions none of which went as far as the obligations imposed by Resolution 687 (1991)47. On the contrary, these conditions were designed to ensure the retreat of Iraq from the territory of Kuwait, the beginning of reparation of the damage and the safety of the allied troops from mines etc. In Resolution 687 (1991)48, it became even more evident that the original authorization was restricted. It mandated a formal cease-fire and referred to the intention of the allied states to bring their military presence in Iraq to an end, as warranted in Resolution 686 (1991), thereby expressing the will to conclude the period of hostilities authorized by Resolution 678 (1990). This was all part of the final clause of the resolution which reads: "(The Security Council) decides to remain seized of the matter and to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the region". The responsibility for ensuring that Iraq complied with its obligations was assumed by the Council itself and not conferred to the member 45 46 47

48

Cf. Dekker/Wessel, see note 21, 503. Doc. S/RES/686 (1991) of 2 March 1991. Cf. C. Gray, "After the Ceasefire: Iraq, the Security Council and the Use of Force", BYIL 65 (1994), 135 et seq., (138 et seq.). On the obligations imposed by Resolution 687 (1991) on Iraq, see T. Marauhn, "The Implementation of Disarmament and Arms Control Obligations Imposed upon Iraq by the Security Council", ZaoRV 52 (1992), 781 et seq.; on doubts about the resolution's conformity to the UN Charter and its validity which cannot be discussed here see, e.g., B. Graefrath, "Iraqi Reparations and the Security Council", ZaoRV 55 (1995), 1 et seq.

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states. This result is confirmed by the debates in the Council. China "believe(d) that on questions concerning the implementation of the resolution the Security Council should be responsible for handling these matters; and there should be no other interpretation"49. The same was expressed even more clearly by India: "As regards operative paragraph 4 of the draft resolution (concerning the boundary guarantee), it is India's understanding that it does not confer authority on any country to take a unilateral action under any of the previous resolutions of the Security Council. Rather, the sponsors have explained to us that in case of any threat or actual violation of the boundary in future the Security Council will meet to take, as appropriate, all necessary measures in accordance with the Charter"50. Both the resolution and the debates leading to its adoption therefore leave no doubt that action by single states to implement Security Council decisions was not authorized any more51. This invalidates also the argument that the cease-fire mandated by the resolution was conditional and became invalid once Iraq flagrantly violated its obligations under it52. This might have been the case had the Gulf war been a classical war between states. On the face it was: No United Nations troops, no United Nations command — an action of allied states. But these allied states relied on United Nations authority to fight this war. They could have acted in collective self-defense for Kuwait53, but they chose to justify themselves publicly by reference to United Nations decisions54.

49 50 51

52 53

54

Doc. S/PV.2981 of 3 April 1991, 97. Doc. S/PV.2981 of 3 April 1991, 78. Cf. Frowein, see note 21,107 et seq.; Gray, see note 47,155; White, see note 21,81. See the statements cited above and Wedgwood, see note 21, 725 et seq. The much debated question whether the legal basis of the Gulf war was self-defense or Chapter VII action must remain open here, see only O. Schachter, "United Nations Law in the Gulf Conflict", AJIL 85 (1991), 452 et seq., 458 et seq.; T.M. Franck and F. Patel, "UN Police Action in Lieu of War: 'The Old Order Changeth'", AJIL 85 (1991), 63 et seq. But it is clear that if Chapter VII allowed such a decentralized action, the action was placed under UN authority. See, e.g., the statements of the United Kingdom, Doc. S/PV.2977 of 14 February 1991, 72 and 376 ("under the authority of that resolution", "... resolution 678 which is the basis on which the current action ... is taken."); and


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And if they profited from the enhanced legitimacy of these decisions, they had to accept also that the United Nations decided on the further course of action — still subject to the veto power of the main actors. Coherency therefore demanded the acceptance of collective post-war solutions and also the acceptance that the cease-fire was not a classical one between states, but was embedded in the collective security system of the United Nations55. The conclusion that the authority of Resolution 678 (1990) was terminated by Resolution 687 (1991) has, however, been contested on the ground of events in January 1993, when the United States, the United Kingdom and France conducted air raids on sites in Southern Iraq56. It is true that this occurred only few days after the Security Council had condemned Iraq for violations of the demilitarized zone set up pursuant to Resolution 687 (1991)57. But these violations did not form the justification for the air raids. The strikes were designed to enforce the no-fly zone in southern Iraq, and the United States and the United Kingdom claimed to act in self-defense against Iraqi threats to attack coalition planes controlling the zone58. Rather incidentally, they warned Iraq that other forms of defiance of United Nations resolutions would not be tolerated either. Only the French claim and the positive reaction of Russia combined both aspects59, and the UN Secretary-General alone assumed that the action had been taken solely as reaction to the violation of Resolution 687 (1991)60. Only with regard to a missile strike on 1718 January 1993 against a nuclear weapons facility near Baghdad, did the United States claim to enforce Resolution 687 (1991)61. But the

55

56 57 58

59

60

of the United States, ibid., 263 ("Coalition continues to act under the authority given to it by the Security Council"). Cf. Gray, see note 47,142 et seq.; Tomuschat, see note 21, 79; see more generally on the relationship of traditional law on cease-fires and United Nations law, R. Baxter, "Armistices and Other Forms of Suspension of Hostilities", RdC 149 (1976), 353 et seq., (382 et seq.). Wedgwood, see note 21, 727 et seq. UN press release SC/5536 of 11 January 1993. See the statement of the UK Prime Minister and the US press statement of 13 January 1993, reprinted in: M. Weller (ed.), Iraq and Kuwait: The Hostilities and their Aftermath, 1993, 738 et seq. See the press statement of the French Foreign Ministry and the statement by the Russian Foreign Ministry of 14 January 1993, reprinted in: Weller, see note 58, 744 et seq. See the statement of the UN Secretary-General of 14 January 1993, reprinted in: Weller, see note 58, 741 et seq.

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United States claim to enforce Resolution 687 (1991)61. But the legality of this attack was questioned by France and Russia, as was the whole series of strikes by several states62. Due to this opposition and since two of the states conducting the strikes did not even claim to be acting with the purpose of enforcing Resolution 687 (1991), consistent state practice in favour of the legality of its enforcement may not be deduced from this incident. The same holds true for the reactions of states in 1998. Those in December have already been described, and in February, March and November, the situation did not differ very much from this63. But remarkably, some states and officials seemed to justify means by ends, the threat of force by the achievement of a "diplomatic" solution. The most notable expression of this was given by the UN Secretary-General who, immediately after his return from Baghdad in February, said: "You can do a lot with diplomacy, but with diplomacy backed up by force you can get a lot more done"64. This, however, was no legal argument, and when force had been actually used in December, he declared this to be "a sad day for the United Nations"65, leaving ambiguous the meaning of his words. Since his earlier words had not found broad support among states, legal conclusions may not be drawn from them. Security Council Resolution 1154 (1998), endorsing the Memorandum of Understanding reached in February, did not provide authorization either66. While threatening "severest consequences" of Iraqi noncompliance, the Council decided to remain concerned with the matter itself in order to ensure the implementation of the resolution. This exclusion of unilateral enforcement was confirmed during the debate within the Council by statements of Russia, France and Costa Rica67. China expressed this most clearly by declaring that the resolution "will in no way mean that the Security Council is automatically authorising 61 62 63

64

65 66

67

Cf. Gray, see note 47,154. Cf. Gray, see note 47, 154,168. Cf. Torelli, see note 21, 452 et seq.; Frowein, see note 21, 106 et seq., 110 et seq.; Dekker and Wessel, see note 21, 500. UN press release SG/SM/6470 of 24 February 1998; cf. Wedgwood, see note 21, 727; Torrelli, see note 21, 442 et seq. UN press release SG/SM/6841 of 16 December 1998. Cf. Frowein, see note 21, 110 et seq.; Dekker and Wessels, see note 21, 509; Tomuschat, see note 21, 75 et seq.; White, see note 21, 83; but cf. Wedgwood, see note 21, 728. Cf. Doc. S/PV.3858 of 2 March 1998, 5,15,18.


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any state to use force against Iraq"68. Similar statements were made during the debate on Resolution 1205 (1998) in November, which established a "flagrant violation" of earlier resolutions by Iraq, but did not contain any indication of an authorization to use force. The United Kingdom and the United States, however, concluded that the resolutions left authority derived from previous resolutions untouched69. To sum up, neither the interpretation of Resolutions 678 (1990), 687 (1991), 1154 (1998) and 1205 (1998) nor state practice since 1991 give indications for United Nations authorization of the threat or use of force in order to enforce Iraq's post-war obligations. Other possible justifications, such as preventive self-defense, have not been advanced by the acting states70. Thus, the reliance on United Nations authority seems motivated by the desire to enhance the appearance of legitimacy despite obvious illegality.

III. The Use of Force against Iraq to enforce the No-fly Zones Only few days after the massive airstrikes in December 1998, the United States and the United Kingdom took military action against Iraq in still another context. Beginning on 27 December 1998, they launched a series of attacks on Iraqi aircraft and air-defense sites after Iraq had attempted to hit coalition planes patrolling the no-fly zones in northern and southern Iraq71. Similar events had occurred in previous years, as Iraq did and still not does recognize the legality of the no-fly zones and therefore regards patrol flights as aggression. The zones had been established in 1991 and 1992 after reports on increased repression against the Kurdish and Shiite population in the

68 69

70

71

Doc. S/PV.3858 of 2 March 1998,14. Cf. UN press release SC/6591 of 5 November 1998; on similar statements outside the Council in March 1998, see International Herald Tribune of 12 March 1998,1. Cf. White, see note 21, 80. This claim would have been groundless either; cf. Tomuschat, see note 21, 76 et seq. Cf. Keesing's Record of World Events 44 (1998), 42700; 45 (1999), 42754 et seq.

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north and the south of the country72. They were designed to prevent the Iraqi government from effective military action against its own citizens, and Iraqi compliance was supervised by patrol flights of the United States, the United Kingdom, and France. First incidents occurred in December 1992, when Iraqi planes entered the southern zone. After further violations in the following weeks, the coalition started a series of missile attacks against Iraq on 13 January 1993. In September 1996, Iraqi government troops interfered with fighting between Kurdish factions in the North. The United States and the United Kingdom reacted with severe missile strikes and proclaimed the extension of the southern no-fly zone up to the 33rd parallel in order to reduce Iraq's military capability73. France did not participate in the supervision of the extended zone, and in early 1997, it also withdrew from the northern zone due to an alleged lack of humanitarian character. After the United States and the United Kingdom strikes in mid-December 1998, France provisionally terminated its participation in the remaining part of the southern zone, too.

1. The Claims and Reactions In order to justify the use of force against Iraqi aircraft and sites in late 1998 and early 1999, the United States and the United Kingdom relied on self-defense: Their planes, legally patrolling the no-fly zones, had been the object of an attack by Iraqi aircraft and were thus entitled to defend themselves74. This, of course, presupposed the legality of the nofly zones and of their supervision by coalition aircraft. The first and most frequently used justification for them referred to Security Council Resolution 688 (1991)75 which had condemned the repression of the ci72

73

74

75

See generally on these zones, P. Malanczuk, "The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War", EJIL 2 (1991), 114 et seq.; Murphy, see note 14,165 et seq.; Pape, see note 14, 163 et seq. Cf. N.D. White, "Commentary on the Protection of the Kurdish SafeHaven: Operation Desert Strike", Journal of Armed Conflict Law 1 (1996), 197 et seq.; D. Wembou, "Consideration Juridiques sur les recentes attaques americaines centre 1'Iraq", RADIC 9 (1997), 72 et seq.; G.A. Symes, "Force Without Law: Seeking a Legal Justification for the September 1996 U.S. Military Intervention in Iraq", Mich.J.Int'l L. 19 (1998), 581 et seq. Cf, e.g., UK Ministry of Defence, Press release 334/98 of 30 December 1998. S/RES/688 (1991) of 5 April 1991.


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vilian populations in many parts of Iraq, but had not contained an explicit authorization to establish no-fly zones or to use force to achieve this goal. This is reflected, for example, in this statement of the Defense Secretary of the United Kingdom: "(The no-fly zones) were set up in support o/UN Security Council Resolution 688 to bring protection to the Kurds in the north and the Shia in the south, and as long as that humanitarian need remains, we will continue to enforce the no-fly zones"76. Similar arguments are used in most United States statements, as, e.g., in the declaration of the Department of Defense: "These no-fly zones that were set up pursuant to United Nations Security Council resolutions that were designed to prevent Saddam Hussein from using his forces to attack his own people, using his air forces to attack his own people and from using his air forces to threaten his neighbors"77. This corresponds to the common position adopted by the United States, the United Kingdom and France in 1992 when they set up the southern no-fly zone78. In other recent statements, however, US officials did not only rely on humanitarian grounds such as defined in resolution 688 (1991), but broadened the objective to the containment of Iraq and the reduction of its military capability79. While not explicitly referring to Resolution 687 (1991), these goals allude to the enforcement of the obligations imposed by this resolution. Surprisingly, in 1998-1999, none of the other justifications for the no-fly zones which had been used in previous years80 was advanced. Particularly in 1996, the United States had relied on arguments similar 76

77

78

79

80

UK Ministry of Defence, Press release 334/98 of 30 December 1998; emphasis added. US Department of Defense, News Briefing, 5 January 1999; emphasis added. See the statement of 26 August 1992, reprinted in: Weller, see note 58, 725 ("... In view of these failures (of Iraq) to comply with UNSCR 688, the coalition has concluded that it must itself monitor Iraqi compliance with UNSCR 688 in the south. Coalition aircraft will therefore begin flying surveillance missions ... to monitor and report on the state of Iraqi compliance with the provisions of the resolution. In support of this monitoring effort a no-fly zone for all Iraqi... aircraft... will be established ..."). Cf. remarks by the US President, 28 December 1998 ("The no-fly zones have been and will remain an important part of our containment policy"). Cf. Murphy, see note 14,187 et seq.

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to those used to justify the strikes in mid-December 1998. They had claimed that the authorization given in Resolution 678 (1990) also comprised the enforcement of Resolution 688 (1991) as this was a "subsequent resolution" within the meaning of Resolution 678 (1990)81. The United Kingdom, while usually referring only to Resolution 688 (1991), relied, on separate occasions in 1992, on a unilateral right to use force in cases of extreme humanitarian need82. In 1999, this argument was raised again, but only after reference to Security Council authority83. A similar path was followed by France which usually referred at least to the "esprit" of Resolution 688 (1991), although it did not claim that the resolution itself contained an authorization for the action84. In 1998-1999, it evaded commenting directly on the legality of the British-American strikes, but did not resume its participation and expressed reservations on the continued use of force85. 81

82

83

84

85

Cf. US press release of 3 September 1996 ("We relied ... on authority for our no-fly zone on our interpretation of UNSCR 688, using the enforcement mechanism that was available in UNSCR 678. ...The UNSC required in UNSCR 688 that Saddam refrained from repressing minorities ..., because that type of repression represents a threat to international peace and stability in the region. UNSCR 678 authorizes all member states of the UN to conduct all necessary means to effectively protect international peace and security in the region"). See the interview with the UK Foreign Minister of 19 August 1992, reprinted in: Weller, see note 58, 723 ("We operate under international law. ...Not every action that a British Government or an American Government or a French Government takes has to be underwritten by a specific provision in a UN resolution provided we comply with international law. International law recognises extreme humanitarian need"); cf. also Murphy, see note 14, 188 et seq. Cf. the statement of the UK representative in the Security Council, Doc. S/PV.3980 (Res. 1) of 22 February 1999, 17 ("(The no-fly zones) were established to help protect the civilian population in the north and south from repression by the Government of Iraq, in support of Security Council resolution 688 (1991). ...The no-fly zones are justified under international law by this continuing situation of overwhelming humanitarian necessity"). See the statement of the spokesman of the French Foreign Ministry of 2 September 1996 ("Provide Comfort se fonde dans son esprit sur la resolution 688, mais il n'y a pas de texte explicite des Nations Unies qui fixe cette zone d'exclusion. ...II n'est pas illegal, ... mais ce n'est pas la legitimite du Conseil de Securite ..."); cf. also Murphy, see note 14,189. Cf. Statements of the spokesman of the Foreign Ministry of France, 29 December 1998; and especially those of 16 February 1999.


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The reactions of other states to the strikes in 1998-1999 varied a lot, but stronger objections than in previous years could be recorded. China, in particular held "that the establishment of the no-fly zone in Iraq runs counter to the UN Charter and the norms governing international relations"86. In September 1998, the Non-aligned Movement had already formulated clear opposition to the zones, deploring: "the imposition and enforcement of 'No Fly Zones' on Iraq by individual countries without any authorisation from the UN Security Council or General Assembly"87. Likewise, Russia contended that the zones had nothing to do with Security Council resolutions and ran counter to fundamental principles of the Charter and international law88 — a position consistently taken during previous years89 with the exception of the years 1992-199390. Similar, although less strong opposition came from the Arab League91.

2. The Validity of the Claims As in the other cases discussed, the main arguments of the acting states are weak. Certainly, Resolution 688 (1991) determines that the consequences of the repression of the Iraqi civilian population threaten international peace and security in the region, opening the door for collective enforcement measures. But the Council then only demanded that Iraq end this repression and allow access to humanitarian organizations. It 86

87

88 89

90

91

Statement of the spokesman of the Foreign Ministry of China, 29 December 1998. Final Document of the Xllth Summit of the Non-aligned Movement, 2-3 September 1998, Durban, South Africa, § 235. Cf. Doc. S/PV.3980 (Res. 1) of 22 February 1999, 17. See the statement in 1991 finding the zone to be in violation of the UN Charter, Archiv der Gegenwart, 24 April 1991, 35565; and the strong reactions to the incidents in 1996 when Russia warned the US not to assume the role of the Security Council which alone was competent to authorize the use of force, Archiv der Gegenwart, 4 September 1996,41367. In 1992, Russia supported the establishment of the no-fly zone in southern Iraq, see Archiv der Gegenwart, 27 August 1992, 37110. In January 1993, it supported the warning given to Iraq by the coalition not to continue the violation of the zones, see US press release of 7 January 1993, reprinted in: Weller, see note 58, 734.

Cf. Keesing's Record of World Events 45 (1999), 42755.

78


did not expressly cite Chapter VII of the Charter as a basis92, and its text does not provide any indication that states should be authorized to enforce the demands. Most commentators see this result confirmed by the debates in the Council and the history of the resolution, especially by the Chinese opposition to any international action93. But with regard to the general use of the veto power by China, it is at least doubtful whether China would have vetoed enforcement measures in this case. It has instead been argued that western states did not seriously try to insert an authorization which would, in fact, have forced them to intervene94. At least, no intention to use force was expressed by them during the debates in the Council, and therefore no argument is available for an interpretation in favour of its authorization95. Later events do not warrant such a conclusion either. With respect to the incidents in 1992-1993 it has already been stated that the ways of justification varied considerably96. Some states supported the enforcement of the no-fly zones, others the enforcement of Resolution 687 (1991). No consistent practice for one or the other can therefore be observed, and, additionally, the attacks provoked negative reactions of third states. The strikes in 1996 met with even stronger opposition. Likewise, the other justifications advanced in previous years cannot prove the legality of the action. The reference to Resolution 678 (1990) for the enforcement of Resolution 688 (1991) faces similar objections as above with respect to the enforcement of Resolution 687 (1991): the "subsequent resolutions" mentioned in Resolution 678 (1990) were those subsequent to Resolution 660 (1990), but not subsequent to Resolution 678 (1990) itself. Moreover, Resolution 688 (1991) does not deal with the situation between Kuwait and Iraq any more — how could then an authorization for states "co-operating with the Government of Kuwait" as given in Resolution 678 (1990) make sense? There 92

93 94

95

96

This, however, would not have been indispensable for enforcement action, cf. Frowein, see note 7, 613. Malanczuk, see note 72,129; White, see note 73, 200; Pape, see note 14,172. H. Freudenschuft, "Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council", Austrian J.Publlnt. Law 46 (1993), 1 et seq., (10). Cf. Malanczuk, see note 72,129; Murphy, see note 14,184 et seq.; Frowein, see note 21, 105 et seq.; but see Teson, see note 7, 347, who contends that the circumstances of the adoption of resolution 688 (1991) allow the conclusion that forcible measures were authorized. See under, II. 2.


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remains the aspect of unilateral humanitarian intervention which has never been raised by the United States, and never since 1992 by the United Kingdom. If, as has been argued above, no right to unilateral humanitarian intervention exists, it has not been created by this inconsistent and often opposed practice either97. Therefore, the attempt to justify the use of force fails.

IV. The Use of Force in the Case of Kosovo Tension in the Yugoslavian province of Kosovo had grown since the death of Tito and especially since 1989, when autonomy rights were reduced and the use of the Albanian language was severely restricted98. Constant repression against the Albanian population in the following years led to some international protest, but only when the Albanians gave up their strictly peaceful strategy and started to oppose state authorities by force, the international community saw greater need for action — partly due to fears of new refugees. After negotiations and limited concessions by the Federal Republic of Yugoslavia, the Security Council, by Resolution 1160 (1998)99, imposed an arms embargo and expressed support for a substantially greater degree of autonomy of Kosovo. The resolution was based on Chapter VII of the Charter, but, due to Russian opposition, did not determine the existence of a threat to the peace100. 97 98

99 100

Cf. Murphy, see note 14,192 et seq., 364. On the history of Kosovo and the development of the situation until 1997 see: N. Malcolm, Kosovo, 1998, especially 334 et seq. On the development in 1998-1999 see B. Simma, "NATO, the UN and the Use of Force: Legal Aspects", EJIL 10 (1999), forthcoming; A. Cassese," Ex iniuria ius oritur, Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?", EJIL 10 (1999), forthcoming; L. Balmond, P. Weckel and A.-S. Millet, "Chronique des faits internationaux", RGDIP 102 (1998), 1060 et seq. and Keesing's Record of World Events 44 (1998), especially 42413, 42519 et seq., 42580 et seq.; 45 (1999), 42750 et seq.; M.Weller, "The Rambouillet Conference on Kosovo", Int'lAff. 75 (1999), 211 et seq. S/RES/1160 (1998) of 31 March 1998. See UN press release SC/6496 of 31 March 1998; cf. G. Nolte, "Reflections on the Limits of the Security Council's Powers and on its Functions in the International Legal System", in: M. Byers (ed.), The Role of Law in International Politics, forthcoming.

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The situation deteriorated further, and a need for more decisive action, possibly military strikes, was felt. In late summer, the widespread excessive use of force by Serbian security forces against the civilian population became evident101. States then pressed for a new resolution of the Security Council authorizing the use of force, which, however, was strongly opposed by Russia. On 23 September, the Security Council enacted Resolution 1199 (1998)102, which determined that the situation constituted a threat to peace and security in the region, demanded a cease-fire and the start of a dialogue between Serbs and Albanians. Yugoslavia was obliged to cease action by its security forces, to withdraw them and to enable effective international monitoring. In the following days, NATO threatened to use force, and after reports on lacking compliance by Yugoslavia, the alliance increased pressure until agreement was reached with the Yugoslav leadership on further steps103. These included international monitoring and NATO verification flights, and were endorsed by Security Council Resolution 1203 (1998)104. After a massacre in January 1999, the international community again took up the matter105. The Contact Group for the former Yugoslavia established a framework agreement which the Security Council approved106. Negotiations on this basis began in France on 6 February 1999, accompanied by NATO threats to use force should one side not agree to the proposal. Talks finally failed in March due to Serbian opposition to the peace plan. The Serbian government then reinforced its attacks on the civilian population in Kosovo, and on 24 March, NATO began airstrikes against Yugoslavia to end the repression. On 29 April 1999, after weeks of ongoing military action, Yugoslavia instituted proceedings against ten NATO member states before the ICJ which re-

101

102 103

104

105

106

Cf. the report of the UN Secretary-General, Doc. S/1998/834 and Add.l of 4 September 1998. S/RES/1199 (1998) of 23 September 1998. Doc. S/l 998/953, Annex, of 14 October 1998; cf. Neue Ziircher Zeitung, 3 October 1998, 3, and 8 October 1998, 2; on 13 October 1998, NATO had issued an "activation order" for air strikes, see Press statement of NATO Secretary General of 13 October 1998. See Docs. S/1998/978 of 20 October 1998, and S/1998/991 of 23 October 1998; S/RES/1203 (1998) of 24 October 1998. Cf. the condemnation of the massacre by the Security Council, Doc. S/PRST/1999/2 of 19 January 1999. Doc. S/1999/96 of 29 January 1999; Doc. S/PRST/1999/5 of 29 January 1999.


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jected the request for provisional measures by an Order of 2 June. Shortly thereafter, NATO, Russia and Yugoslavia reached agreement on principles for an end of the war. Yugoslavian forces started to withdraw, NATO halted its military action, and on 10 June 1999, the Security Council, by Resolution 1244 (1999), authorized the deployment of an international security presence and the establishment of a UN civil authority in Kosovo.

1. Claims and Reactions Most claims advanced by the acting states remained rather on the political than the legal level, especially the declarations by NATO itself107. When legal arguments were used, they generally combined two aspects: the prevention of a humanitarian catastrophe, and the enforcement of Security Council Resolutions 1199 (1998) and 1203 (1998). In the Security Council, both the United States and the United Kingdom saw the action justified "to stop the violence and prevent an even greater humanitarian disaster" and "as an exceptional measure to prevent an overwhelming humanitarian catastrophe"108, but mentioned collective decisions rather marginally. This corresponded to the United States position in 1998, which had argued that sufficient authority already existed without Council authorization, but had not mentioned where this authority came from109. In 1999, however, both the United States and the United Kingdom rejected the assumption of unilateral action. Thus, US Secretary of State Albright, while stressing the humanitarian objective, insisted that action was taken "within the framework" of Security Council decisions110. This was affirmed by the US representative before the ICJ who argued that

107

108 109 110

Cf. NATO press release (1999) 041 of 24 March 1999; Press statement of NATO Secretary General of 23 March 1999. Cf. Doc. S/PV.3988 of 24 March 1999, 5 and 12. See, e.g., US Department of State Press Briefing of 1 October 1998. Cf. US Secretary of State press conference, 25 March 1999 ("Acting under Chapter 7, the Security Council adopted three resolutions — 1160, 1199 and 1203 — imposing mandatory obligations on the FRY; and these obligations the FRY has flagrantly ignored. So NATO actions are being taken within this framework, and we continue to believe that NATO's actions are justified and necessary to stop the violence").

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"the actions of the Members of the NATO alliance find their justification in a number of factors. These include: (t)he humanitarian catastrophe ...; (t)he acute threat ... to the security of neighbouring States ...; (t)he serious violation of international humanitarian law and human rights obligations ...; and finally (t)he resolutions of the Security Council which have determined that the actions of the Federal Republic of Yugoslavia constitute a threat to peace and security in the region and pursuant to Chapter VII of the Charter, demanded a halt to such actions."111 Before the House of Commons, the British Secretary of Defence relied even more explicitly on Security Council authority: "The use of force in such circumstances can be justified as an exceptional measure in support of purposes laid down by the UN Security Council, but without the Council's express authorisation, when that is the only means to avert an immediate and overwhelming humanitarian catastrophe"112. Many other NATO members, on the contrary, had initially insisted on a clear and unambiguous Council authorization. Still in October 1998, France, Italy, Greece and Germany expressed reservations against unilateral action113. Only later on, they supported the British-American view that sufficient authority already existed, but placed specific emphasis on the Council resolutions already passed114. Finally, their positions were very similar to those of the United States and the United Kingdom. The German Foreign Minister declared before parliament that "(t)he threat of military action finally aims at enforcing the unanimous resolution of the Security Council"115, but added in other state-

1!! 112

113

114 115

International Court of Justice, CR 99/24 of 11 May 1999. UK House of Commons Hansard, 25 March 1999, Col. 617; cf. the similar statement by the representative of the government in the House of Lords, UK House of Lords Hansard, 25 March 1999, Col. 1509. Cf. Keesing's Record of World Events 44 (1998), 42580; Le Monde, 19 September 1998, 12; Suddeutsche Zeitung, 26 September 1998; Neue Ziircher Zeitung, 2 October 1998, 2; 8 October 1998, 2; 9 October 1998, 1; and International Herald Tribune, 1 October 1998,12; 7 October 1998,4. Cf. International Herald Tribune, 12 October 1998,1. Deutscher Bundestag, Plenarprotokoll 13/248 of 16 October 1998 ("(D)ie Drohung mit einem militarischen Einsatz (zielt) schliefilich auf die Verwirklichung der einstimmig gefafiten Sicherheitsratsresolution hin").


83

ments the aspect of humanitarian intervention116. Belgium, apart from the United States the only respondent party to address aspects of the merits before the ICJ in May 1999, held that "Pintervention armee trouve un fondement sans conteste dans les resolutions du Conseil de securite"; only later on did it refer to humanitarian intervention.117 Similarly France seemed to rely exclusively on Council decisions. Thus, the spokeswoman of the French Foreign Ministry declared: a (L)'action de POTAN trouve sa legitimite dans Pautorite du Conseil de securite. Les resolutions du Conseil concernant la situation au Kosovo ... ont ete prises en vertu du chapitre VII de la Charte des Nations unies, lequel traite des actions coercitives en cas de rupture de la paix. ... (Le recours a la force) repond a la violation par Belgrade de ses obligations internationales, telles qu'elles resultent des resolutions du Conseil de securite..."118. Support for the action by NATO came, e.g., from the EU, Japan, Australia, New Zealand, and Switzerland119. The UN Secretary-General, however, while acknowledging that force might sometimes be legitimate, expressed his concern that the Security Council had not been involved120. Strongest opposition was voiced from the outset by Russia whose President declared: "Only the Security Council can decide on what measures, including the use of force, should be taken to maintain or restore international

116

117

118

119 120

Statement of 12 October 1998, Frankfurter Allgemeine Zeitung, 13 October 1998 ("Im Lichte des Unvermogens des Sicherheitsrates, seinem Gewaltmonopol bei dieser besonderen notstandsahnlichen Situation gerecht zu werden, fufit die Rechtsgrundlage angesichts der humanitaren Krise im Kosovo auf Sinn und Logik der Sicherheitsratsresolutionen 1160 und 1199 in Verbindung mit dem Gesichtspunkt der humanitaren Intervention und einem Mindeststandard in Europa fur die Einhaltung der Menschenrechte..."). International Court of Justice, CR 99/15 of 10 May 1999 ("Ccs precedents joints [d'une intervention humanitaire], couples avec des resolutions du Conseil de securite et le rejet du projet de resolution russe ... tentent et accreditent certainement Pidee que nous sommes la en presence d'une intervention tout a fait licite."). While Belgium also defended the legality of purely unilateral humanitarian interventions, it did so without relying on it for the action in Kosovo. Declaration of the spokeswoman of the Quai d'Orsay, 25 March 1999. Cf. only International Herald Tribune, 26 March 1999. UN press release SG/SM/6938 of 24 March 1999.

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peace and security. The Security Council did not take such decisions with regard to Yugoslavia. ... A dangerous precedent has been created regarding the policy of diktat and force, and the whole of the international rule of law has been threatened"121. In the Security Council session held immediately after the NATO strikes had begun, Russia refuted arguments based on humanitarian aspects, as did China, Namibia, and especially India: "The attacks ... are in clear violation of Article 53 of the Charter. ... (W)e have been told that the attacks are meant to prevent violations of human rights. Even if that were to be so, it does not justify unprovoked military aggression"122. Similar opposition was expressed by Belarus, Ukraine, Iran, Thailand, Indonesia and South Africa123. Also the Group of Rio, comprising 29 Latin-American and Caribbean states124, regretted the recourse to force without observance of Articles 53 and 54 of the Charter125. This was all the more surprising as its members Brazil and Argentina did only very cautiously express their regret in the Security Council126, and as they were among the states to oppose a draft resolution condemning the air strikes two days later127. This draft was sponsored by Russia, Belarus and India, but gathered only three votes in favour (Russia, China, Namibia) with twelve against. The rejection of this draft, however, did not necessarily imply support for the NATO strikes. Many Council members voting against it expressed concern that adoption of the draft could have been interpreted as an approval of the repressive action by Yugoslavia. The violation of previous Council resolutions by the repressive policy had not even been mentioned in the draft which was regarded as extremely one-sided, and was therefore opposed even by states which had taken a rather neutral or critical stand toward the

121

Cf. Doc. S/PV.3988 of 24 March 1999, 3. Doc. S/PV.3988 of 24 March 1999,15 et seq. 123 Cf. International Herald Tribune, 26 March 1999; and the press release of the South African Department of Foreign Affairs of 25 March 1999. 124 Among them Argentina, Brazil, Mexico, Colombia, Chile, Peru and Venezuela; cf. http://www.worlddata.com/grupo_de_rio. 125 press release of the Brazilian Foreign Ministry of 25 March 1999. 126 Cf. Doc. S/PV.3988 of 24 March 1999, 8,10 et seq. 127 Cf. Doc. S/PV.3989 of 26 March 1999, and, as to the draft, Doc. S/1999/328 of 26 March 1999. 122


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NATO strikes in the previous Council session128. In sum, opposition to the NATO strikes was strong, but not as unified as in the cases of Iraq.

2. The Validity of the Justifications The recourse to Security Council resolutions as sole source of authority finds little support in their text or other means of interpretation129. Neither in Resolution 1160 (1998) nor in Resolution 1199 (1998) there is any passage authorizing force. In the latter resolution, the Council: "Decides, should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region". This pointed to further decisions on enforcement measures by the Council, not by individual states. The sole reference to Chapter VII in the resolution does not, as was argued by France and also the United Kingdom, provide an authorization either, as an action under Chapter VII does not necessarily imply military action but can also take the form of recommendations or non-military enforcement measures130. The conclusion that the resolutions did not contain an authorization to use force is likewise warranted by the statements of Security Council members before their adoption. The Russian Federation declared in September that "(n)o use of force and no sanctions are being imposed by the Council at the present stage"131. China went even further in regarding the whole situation as an internal matter of the FRY, therefore rejected any Chapter VII action132 and abstained from voting, as it had already done in March. In the March session, moreover, no mention of a possible use of force had been made at all. The Council resolutions could therefore not be interpreted as authorizing the use of force. The same holds true for the decisions and statements by which the Council endorsed the results of the ongoing threat of force in October 1998 and January 1999. Approval of the result does not imply approval of the

128 129

130 131 132

E.g., Bahrain, Gambia, Malaysia and Gabon, and also Argentina and Brazil. On questions of interpretation, see M.C. Wood, "The Interpretation of Security Council Resolutions", Max Planck UNYB 2 (1998), 73 et seq. See Arts 39 to 41 of the Charter. Doc. S/PV.3930 of 23 September 1998, 3. Doc. S/PV.3930 of 23 September 1998, 3.

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means — especially as Russia and China still opposed military action133. Even less can the rejection of a condemnation of the strikes on 26 March 1999 be regarded as an implicit authorization: apart from the fact that the rejection was not motivated by a wish to approve the strikes, the Charter requires a positive decision by the Council, not the absence of a negative one — otherwise the veto power of the permanent members would be pointless. The basis for a right to unilateral action is far from clear, too. Since self-defense was neither relied on nor were its conditions fulfilled, only a right to humanitarian intervention could provide a basis. This, however, has not been consistently claimed as such by any of the acting states, although it was clearly relevant to the case. The United States and the United Kingdom referred to it, but finally only in combination with reliance on Security Council decisions. The case of Kosovo therefore does not provide an affirmation of such a right, which is, as has been said above, more than doubtful. Moreover, the opposition of several states would have prevented any such right from emerging. The threat of force against the Federal Republic of Yugoslavia was therefore justified neither by Security Council resolutions nor by a right to unilateral humanitarian intervention. But none of this had really been claimed either: states had rather relied on a combination of Security Council authority and its unilateral enforcement, and partly also humanitarian intervention.

V. A Right to Unilateral Enforcement of the Collective Will? Neither Security Council resolutions nor unilateral rights permitted the use of force in the instances discussed — one could conclude on the illegality of the action and stop legal analysis at this point. But this would miss an important aspect present in all three cases: a combination of both collective and unilateral elements. As all action was based on Security Council resolutions which did not authorize enforcement, it would have been justified if a right to their enforcement by unilateral measures existed. As will be shown, this right does not exist, but a claim to establish it was advanced. To accept this claim seems, however, not advisable.

133

Cf. Simma, see note 98.


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1. Unilateral Enforcement under United Nations Law Article 2 para. 4 of the Charter prohibits the use of force "inconsistent with the Purposes of the United Nations", and it could be argued that unilateral enforcement of collective decisions would rather serve than impair these purposes and would therefore fall outside the scope of the prohibition. Such an interpretation would, however, contradict the context and history of the norm according to which the term "inconsistent with the Purposes" is not meant to restrict the prohibition, but to strengthen it134. One might then refer to the Preamble of the Charter which provides that "armed force shall not be used, save in the common interest", and this clause points rather to the goal than to the means and could be interpreted to justify reliance on unilateral measures if they serve this "common interest". But the UN system of collective security excludes this: it confers the right to take military action on behalf of the international community to the Security Council and limits unilateral action to self-defense. It is up to the Council to determine any threat to the peace and decide if and which measures shall be taken to- remove it. During the negotiations of the Charter, this was expressed by Committee I/I reporting to Commission I that "(t)he use of force is left possible only in the common interest. As long as we have an Organization, the Organization only is competent to see the common interest and to use force in supporting it"135. And it was also reflected in the rejection of a French proposal to insert, instead of self-defense, a clause reserving the right of members to act "in the interest of peace, right and justice" if the Security Council failed to act136. The possibility of a blockade of the Council was thus foreseen, but no unilateral action beyond self-defense was admitted137. And unilateralism was excluded not only for the determina134

135 136

137

Cf. Randelzhofer, see note 14, 117 et seq.; Y. Dinstein, War, Aggression and Self-defence, 2nd edition, 1994, 85 et seq.; see especially UNCIO Vol. VI, 335 and 304 ("It was pointed out that the phraseology of paragraph 4 might leave it open to a member state to use force in some manner consistent with the purposes of the Organization but without securing the assent of the Organization to use such force. It was felt, accordingly, that paragraph 4 should be reworded so as to provide that force should not be used by any member state except by direction of the world Organization"). LWC/OVol.VI,451. Cf. R.B. Russell and J.E. Muther, A History of the United Nations Charter, 1958, 690. Cf. Russell and Muther, see note 136, 698.

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tion of the common interest, but also for the measures to achieve it. This finds expression in Articles 40 to 42 of the Charter which grant the Council wide discretion as to whether and what measures to take. Enforcement action, be it non-military or military, is not automatic, and general agreement existed during the negotiations of the Charter that the Council's freedom should not be restrained by the prescription of specific modes of reaction to threats to the peace138. Therefore, according to its original conception, the Charter prohibits unilateral enforcement of Council decisions or of the "common interest" in general. Later events, such as the General Assembly's so called Uniting for Peace Resolution139, have not modified this account. The resolution claimed the power of the Assembly to recommend collective measures in the case of failure of the Security Council, but did not purport to empower the Assembly to authorize measures which would otherwise be unlawful140. A change has not been brought about either by the Cold War blockade of the system of collective security which has been said to have "killed Article 2(4)"141. Even if this had been correct at the time142, it would not be persuasive any more today as the system is now operating reasonably well in general143. Moreover, a single inaction by the Council may simply show a lack of support and constitute a decision not to act — as part of a system that is working as intended144. Another solution is not warranted either with respect to enforcement action of regional organizations145 which, despite their special 138 139 140

141

142

143

144

145

Cf. Russell and Muther, see note 136, 674, 678. A/RES/377 (V) of 3 November 1950. Cf. J. Andrassy, "Uniting for Peace", AJIL 50 (1956), 563 et seq., (572); Dinstein, see note 134, 302 et seq.; E. Stein and R.C. Morissey, "Uniting for Peace Resolution", EPIL 5 (1983), 379 et seq. See T.M. Franck, "Who killed Article 2(4)? or: The Changing Norms Governing the Use of Force by States", AJIL 64 (1970), 809 et seq. Which has been doubted, see L. Henkin, "The Reports of the Death of Article 2(4) are Greatly Exaggerated", AJIL 65 (1971), 544 et seq. See also, today, T.M. Franck, Fairness in International Law and Institutions, 1995,273 et seq. See, mutatis mutandis, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950,1C] Reports 1950, 4 et seq., (7). The prevailing view that NATO is to be regarded as a regional organization under Chapter VIII of the UN Charter is highly questionable as NATO's action is not directed toward its member states, but to the outside, cf. re-


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status under Chapter VIII of the Charter, are not allowed to take military enforcement measures without authorization by the Security Council146. The only exception to this rule, self-defense, was explicitly introduced in order to make regional organizations not totally dependent on Council action, but further exceptions should be excluded. This does not, of course, hinder interpretations accepting implicit or even expost authorization under Article 53 which would not be sufficient under Article 42147. But without at least such Council authorization, the enforcement of common interests by regional organizations remains unlawful.

2. The Reliance on a Right to Unilateral Enforcement In spite of this, the acting states advanced the claim to a right to unilateral enforcement in a quite consistent way. To state this may seem to contradict the analysis of the cases above. The attempts to justify the threats and strikes differed, as did the arguments for their rejection. But leaving aside all the details presented, the justifications of the acting states in all three cases are quite simple, and quite similar. They claim to enforce Security Council resolutions which themselves do not authorize their enforcement: Resolutions 1160 (1998) and 1199 (1998) in the case of Kosovo, Resolutions 687 (1991), 1154 (1998) and 1205 (1998) in the case of the strikes against Iraq in mid-December 1998, and Resolution 688 (1991) in the case of the no-fly zones. The legal dispute only concerned the question whether these resolutions contained an authorization or whether another resolution could provide authority to enforce them. Because both was clearly not the case, the claim underlying the very detailed legal justifications was that of unilateral enforcement. Such an interpretation finds support in several explanations given for the different actions. The clearest expression is to be found in statements on the enforcement of the no-fly zones. As already indicated, they often did not explicitly specify where the enforcement authority flew from, but they recurred to formulae such as "in support of or

146 147

cently Simma, see note 98. But see also C. Walter, Vereinte Nationen und Regionalorganisationen, 1996, Beitrage zum auslandischen offentlichen Recht und Volkerrecht, Bd. 124, 27 et seq., (81), with detailed arguments in favour of such a characterization of NATO. Article 53 para. 1 of the Charter. Cf. Walter, see note 13,176 et seq.

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"pursuant to" Resolution 688 (1991). Even such a broad justification as the French one simply referring to the "esprit" of the resolution was advanced, and a common explanation of all the acting states based the action on the need to "monitor Iraqi compliance with UN Security Council resolution 688". Equally in the case of Kosovo, this aspect played an important role, but more in Europe than in the United States. While the United States saw themselves free to act even without a resolution, France and Germany made strong efforts to achieve a solution in the Council. Resolution 1199 (1998), while clearly not authorizing any use of force, was welcomed as the expression of the will of the international community, and later justifications for the threat generally referred to this resolution: The United Kingdom explained NATO action as "support" of the resolution, France relied on the fact that by reference to Chapter VII the resolution had opened the way to the use of force, and the German government stated that the threat against Yugoslavia aimed "at enforcing the unanimous resolution of the Security Council". In the Iraqi crisis in mid-December 1998, this more general tendency was to some degree hidden behind more detailed arguments. Nevertheless, it reappeared in many statements especially of the United Kingdom: some official documents relied simply on Resolutions 1154 (1998) and 1205 (1998) without any indication of an authorization within them. And the UK Prime Minister explained that the United Kingdom's "policy has always been to seek genuine Iraqi compliance with the demands of the Security Council"148. Even more generally he stated that "when it is right and when the will of the international community is at stake we will act to enforce it ..."149. This might be accounted for as a purely political statement, but it rather seems that the United Kingdom claims the right to enforce the will of the international community any time the international community is not able to enforce it itself. Accordingly France, while denying any action without Security Council involvement, accepted the British-American claims in analogy to its own position in the Kosovo case: the mere determination by the Council of Iraq's violation of earlier resolutions was recognized as a sufficient basis.

148 149

UK House of Commons Hansard, 17 December 1998, Col. 1097. Press conference of 20 December 1998.


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3. The Difficult Future of Pure Unilateralism These claims to a right to use force in order to ensure compliance with Security Council resolutions imply the rejection of a legal necessity to obtain clear authorization, but likewise that of a purely unilateral right to action. This is all the more surprising as reliance on traditional unilateral rights would have been possible, although as ill-founded as the claims advanced. Thus, in the case of Iraqi disarmament, a case could have been made in favour of self-defense, especially because scholars had supported the view that the Gulf War 1990-1991 was conducted in self-defense150. The argument that the cease-fire had been violated could thus have led to the position that the right to self-defense revived — a more coherent way to look at it, even if finally barred by Resolution 687 (1991). But neither the United States nor the United Kingdom chose it at any time; they always relied in one way or the other on collective authorization. With regard to the no-fly zones and the situation in Kosovo, arguments could have been based on a unilateral right to humanitarian intervention, despite ivs weak legal ground. But, in the case of Kosovo, this approach was adopted only by the United Kingdom, and it was not upheld as a general line of justification. For northern Iraq, such arguments were advanced only in the beginning, but were not repeated in 1998-1999. France, known as rather supporting a unilateral right151, rejected this view openly by stating that NATO had no right to authorize itself. And Germany did not dare to rely on a unilateral right without reference to the Security Council decision. Of course, the United States initially did not share this view in the case of Kosovo, and, moreover, they declared several times that they had the right to act when they deemed it necessary. Nevertheless, their efforts to justify their own action relied on collective authority rather than on a purely unilateral right. And their European allies insisted on collective elements in unilateralism, even where traditional unilateral justifications would have been possible. Thus, a purely unilateral hu-

150

151

Cf. E.V. Rostow, "Until What? Enforcement Action or Collective SelfDefense", AJIL 85 (1991), 506 et seq.; see also Schachter, see note 53, 457 et seq. Cf. E. Spiry, "Interventions humanitaires et interventions d'humanite: la pratique fran9aise face au droit international", RGDIP 102 (1998), 407 et seq.

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manitarian intervention seems even more difficult after the case of Kosovo than before.152

4. Unilateral Enforcement: Community Interests Enhanced or Threatened? The claim to unilateral enforcement of the collective will has been rejected by many states, and especially Russia reacted directly to it by stating that "(n)o one is entitled to act independently on behalf of the United Nations and even less to assume the functions of a world policeman"153. Thus, state practice has not confirmed the deviation from Charter law. To state the existence of a right to unilateral enforcement of the collective will today, on the basis of a perceived "need" for action, would therefore presuppose some sort of natural law above the Charter. Moreover, prospects for future establishment of such a right are rather limited as Russia, China and the Non-aligned Countries will not modify their views towards new attempts by western states to enforce collective decisions by unilateral measures. But it might not be impossible that they would rely on the same right once it served their interests and that thereby the right would gain acceptance. Such a development might appear tempting as it could help achieve common interests more easily than under the present system of the Charter. In the domestic debates on the possible use of force, especially in the case of Kosovo, the value of the Charter system and of the authority of the Security Council was recognized154. But this system was perceived to hinder the achievement of common interests: it prevented saving Kosovar Albanians from death and suffering, and it endangered peace as it did not allow for effective measures against Iraqi re-emergence. The challenge to the UN system therefore was, at least in part, based on values. The opposing values were less evident: the preservation of the system of collective security had a more general character and less influence on public opinion. But its worth for peace was not 152

153 154

Cassese, see note 98, observes an evolving trend towards the acceptance of humanitarian intervention in the case of Kosovo. This view, however, is mistaken as Cassese ignores the strong opposition of a great number of states and the fact that the acting states did not consistently rely on such a right. Doc. S/PV.3955 of 16 December 1998, 4. See under, VI. 1.

Kriscb, Unilateral Enforcement of the Collective Will

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totally negligible: once unilateral action is permitted, it might be used to further national interests far removed from the common good but under this pretext. Thus, the indeterminacy of possible exceptions to the prohibition on the use of force could lead to less or no compliance at all. The initial dilemma was therefore a classical one: the strict and formal rule would prevent achieving justice and peace in some cases, and the rule allowing for justice would be so indeterminate that order would be endangered and with it peace and the conditions for achieving justice155. This last concern, however, is more striking for purely unilateral action than for action to enforce collective decisions156. The unilateral enforcement of Security Council resolutions appears to make the achievement of justice and peace possible, but seems not to undermine the formal rule to such a degree as to open the way to any interpretation. While still permitting to use such a right as a pretext for the achievement of the most selfish interests, the claim presents a compromise between order, justice and peace which might seem preferable to other options. Moreover, the reliance on a collective decision could reduce the perception that some states enforce their particular understanding of common interests — the reproach of neo-imperialism could be rejected more easily. This latter point seems even more true if action is taken not by single states, but by multilateral regional organizations. Decision-making procedures within such organizations might further limit the possibilities of states to enforce their particular interests, and therefore reduce the danger that action is taken only under the pretext of enforcing the common good157. But while this appears conclusive for action of organizations toward their member states, it is doubtful for action toward third states which most often do not share the same values and interests. Then, instead of interests of single states, those of a group of states might be imposed which remain particular and possibly different from universal standards. But the dangers of abuse are, of course, reduced when reliance on (universal) collective decisions is combined with multilateral action. Despite these positive aspects mentioned, the acceptance of unilateral enforcement would have very serious consequences for the future of international security. First, reliance on collective decisions would 155

156

157

Cf. T.M. Franck, The power of legitimacy among nations, 1990, 67 et seq., who calls this the Sophist rule-Idiot rule paradox. Cf. Wedgwood, see note 21, 726; on this concern in general, cf. Franck and Rodley, see note 14, 304 et seq.; Kritsiotis, see note 13,1020 et seq. Cf. Walter, see note 13,170.

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not be likely to end with Security Council resolutions under Chapter VII of the Charter. Instead, other Council resolutions or those of the General Assembly would be used, and maybe even decisions of the ICJ. But even if this did not occur, the emergence of a right to unilateral enforcement of Council resolutions is likely to block the system of collective security. If any determination of a threat to the peace incurred the possibility of unilateral military action, Council members would be much more cautious to make such a determination. Other measures under Chapter VII, such as provisional measures or sanctions, would not be taken any more if their adoption opened the way for unilateral military action. This risk could be avoided only by an express prohibition on the use of force in a given resolution. But due to the difficult negotiations within the Council, it is highly improbable that clear and express formulae in this respect could ever be agreed upon. The problem would then be simply transferred to another level: from the question of collective authorization of military action to the question of collective determination of a threat to the peace. The latter would be as difficult then as the former now158. The substantive values would not be achieved in a better way than before, and the resulting blockade of the system of collective security would probably lead to the next step: to the adoption of purely unilateral measures. A right to unilateral enforcement of Council decisions could therefore not create a stable situation; it would instead erode the collective system with the possible result of its breakdown. Although at first sight a helpful invention, unilateral enforcement would not help achieve common interests in the long run — rather the opposite. It would leave open the central question of how to achieve common interests better, a question gaining importance the more considerations of justice play a role in the international sphere where interest in order has prevailed for quite some time. But how to define justice in the absence of natural law, if not by collective determination, remains unresolved.

158

If it seems that such a determination can be more easily achieved, that is because it can still be interpreted in a way not to authorize military action. Thus, Russia accepted the determination in the cases of Kosovo and Iraq because it could domestically argue that it had not consented to enforcement. Once a right to unilateral enforcement is established, this way out would be barred, and the determination could not be achieved this easily any more.


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VI. Is there still a Role for the Security Council? During 1998, several incidents have raised doubts about the continued relevance of the Security Council and international law on the use of force. Beside the events discussed here, the most striking example were the United States strikes against Sudan and Afghanistan, allegedly in self-defense, but directed against general dangers without any consultation in the Council. Often reliance on the Security Council or international law was seen as a simple pretext. But at least in the cases of Kosovo and Iraq, the institutional framework of the United Nations was of some, albeit limited importance, especially for the European states involved. The overall perception of the events is, however, likely to lead to a much weaker role of the Council.

1. Unilateralism Disguised? The Council's Role in Recent Events In the cases of Kosovo and Iraq, observers often had the impression that it looked good to rely on the United Nations, but that the Security Council did not really matter. In Kosovo, once a resolution clearly not containing any authorization to use force was obtained, states referred to it for their threats. The strikes against Iraq in mid-December were claimed to be justified by United Nations authority, but no effort to consult the members of the Security Council was made although it had been convened to discuss the situation in Iraq. Council authority might then seem as a pretext, and United States officials confirm this to some degree by stating that, while United Nations support was welcome, NATO may not be subordinated to any other international organization159. The high hopes for a new role of the United Nations and the Security Council in a "New World Order" have disappeared, and the system of collective security again seems to be a useful tool for the powerful. It serves as a legitimizer of the hegemonic power as long as possible; but when obstacles grow, it is given up without much concern. This would correspond to classical realist theories of international politics. Already in 1948, Hans Morgenthau, himself a disappointed lawyer, put it like this: 159

Cf. US Deputy Secretary of State S. Talbott, "The New Europe and the New NATO", Address to the German Society for Foreign Policy, 4 February 1999.

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"Governments ... are always anxious to shake off the restraining influence which international law might have upon their international policies, to use international law instead for the promotion of their national interests, and to evade legal obligations which might be harmful to them. They have used the imprecision of international law as a ready-made tool for furthering their ends. They have done so by advancing unsupported claims to legal rights and by distorting the meaning of generally recognized rules of international law"160. These words could have been written fifty years later, and they indeed still bear much plausibility, especially with regard to the policy of the United States. Beside the use of force already discussed, they deny immunity to such states that are "sponsors of terrorism" in the view of the United States government, they enact legislation openly aiming at the removal of a government, even by military aid to opposition groups, they "take treaties less seriously", they ignore the ICJ etc.161 Since they are the sole remaining superpower, they face little risk of generalization of such practices, and therefore normative or legal considerations are almost irrelevant. Moreover, the United States are still able to muster significant support among western states for their exercise of hegemonic power, circumventing the Security Council when necessary. Likewise, European states hide typical national interests behind reliance on common interests: concerns with the humanitarian situation in Kosovo were initially triggered by the fear of a flood of refugees. Nevertheless, this very pessimistic account alone would seem onesided as recent events indicate that several of the acting states did not simply use Security Council authority as a welcome addition to their justification but that it played an important role in this respect. Action without any supporting decision by the Council appeared much more costly. This could already be observed in 1990-1991 when the coalition against Iraq several times sought Council authorization although its action would have been justified by self-defense162. In 1998, Council deci-

160

161

162

H. Morgenthau, Politics among Nations: The Struggle for Power and Peace, 1949, 214. See the amendment of the Foreign Sovereign Immunities Act of 1976 by the Antiterrorism and Effective Death Penalty Act of 1996, U.S.C. 28 § 1605(a)(7); Iraq Liberation Act of 1998, Public Law 105-338, Stat. 112, 3178; D.R Vagts, "Taking Treaties Less Seriously", AJIL 92 (1998), 458 et seq.; "Agora: Breard", AJIL 92 (1998), 666 et seq. This was the case for Resolution 665 (1990) with respect to the maritime blockade set up by the United States and the United Kingdom under col-


97

sions were similarly important for the legitimization strategies of the acting states. In the case of Kosovo, France insisted on a Council decision declaring Yugoslavia to be in breach of its obligations, and NATO returned to the Security Council for the establishment of a post-war order. In the case of Iraq, the United States and the United Kingdom worked hard to obtain support for resolutions condemning the Iraqi behaviour as a "flagrant violation" of its obligations. This does not mean that action would not have been taken had those resolutions not been agreed upon. But the lack of collective condemnation would have severely increased the costs of unilateral action, both internationally and nationally, and would have weakened support for the actions taken163. Domestic discussions, especially those of the parliaments in the acting states, confirm this result. While in the United States Congress almost no mention was made of international law or the Security Council164, European parliaments often insisted on explanations as to why action was taken without specific authorization by the Security Council. In the United Kingdom, both in the House of Commons and in the House of Lords, the government was anxious to dissipate concerns about a lack of United Nations authority for military measures in Kosovo and Iraq165. Before the French Assemblee Nationale, the foreign minister repeatedly stressed the legal basis in Security Council Resolution 1199 (1998) for the threat against Yugoslavia, and with respect to

163

164

165

lective self-defense and for Resolution 678 (1990). The military action authorized thereby could have been taken also in exercise of the right to self-defense, but international support seemed to be stronger when collective authorization was obtained. Cf. M. Weller, "The Kuwait Crisis: Some Legal Issues", RADIC 3 (1991), 1 et seq., (20 et seq.); Y. Dinstein, "The Legal Lessons of the Gulf War", Austrian J.PubLlnt. Law 48 (1995), 1 et seq., (14). Cf. in general, I.L. Claude, "Collective Legitimization as a Political Function of the United Nations", International Organization 20 (1966), 367 et seq. Legal arguments concerned constitutional issues, cf. US House of Representatives, Congressional Record, 105th Congress, 5 October 1998, H9350; 17 December 1998, HI 1722 et seq.; US Senate, Congressional Record, 105th Congress, 5 October 1998, S12488 et seq.; 106th Congress, 23 March 1999, S3110etseq. UK House of Commons Hansard, 19 October 1998, Col. 957 et seq.; 17 December 1998, Col. 1106 et seq.; 25 March 1999, Col. 536 et seq.; UK House of Lords Hansard, 12 October 1998, Col. 753; 17 December 1998, Col. 1534 et seq.; 25 March 1999, Col. 1476 et seq.

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the British-American action against Iraq, the parliament strongly urged for the restoration of the Security Council's role166. The most intense debate about the role of the Council was held in the German Bundestag whose authorization had to be sought for military involvement in Kosovo. Much concern was expressed about the weakened role of the Council, and a significant number of deputies did not support the participation for lack of United Nations authority while openly acknowledging the humanitarian need167. While lacking Security Council authorization did not prevent those states from taking measures or supporting the strikes of others, it affected domestic political debates and thereby influenced the decision-making processes of the acting governments. Moreover, some of these governments had expressly committed themselves to strengthening the United Nations. In the United Kingdom and in Germany, general objectives of foreign policy were closely tied to multilateralism and in particular to the United Nations168. To some degree, the "monopoly of force" of the Security Council became part of the identity of these governments, making it more difficult to justify circumvention of the organ. This account fits into a broader constructivist approach to international relations which understands state preferences and identities as socially constructed and therefore open to normative factors169. Realist theories would have difficulties in explain166

167

168

169

Assembled Nationale, Comptes Rendus, 7 October 1998, 6040; 22 December 1998,11007 et seq. Deutscher Bundestag, Plenarprotokoll 13/248, 16 October 1998, 23127 et seq.; see also Plenarprotokoll 14/30, 25 March 1999, 2424 et seq.; 14/31, 26 March 1999, 2571 et seq. Cf. the Constitution of the UK Labour Party, mentioned in UK House of Commons Hansard, 17 December 1998, Col. 1129 ("Labour is committed ... to the United Nations ... to secure peace, freedom, democracy"); the coalition agreement of the German Social Democratic Party and the Green Party of 20 October 1998, Internationale Politik 53 (1998), 67 et seq., (75) ("The government will work toward the preservation of the monopoly of force of the United Nations..."). Recent attempts by France to strengthen multilateralism do, however, not seem to be driven by long-term commitments, but rather by a desire to limit U.S. power, cf. International Herald Tribune, 3 February 1999, 1. Cf. in general J.T. Checkel, "The Constructivist Turn in International Relations Theory" (Review Essay), World Politics 50 (1998), 324 et seq.; from a legal perspective, cf. A.C. Arend, "Do Legal Rules Matter? International Law and International Politics", Va.J.Int'l L. 38 (1998), 107 et seq., (125 et seq.); B. Kingsbury, "The Concept of Compliance as a Function of Competing Conceptions of International Law", Mich.J.Int'l L. 19 (1998), 345 et


99

ing this importance of norms as such. Moreover, the observations made with regard to debates in parliaments support tendencies which claim that compliance with international norms is favoured by domestic democratic institutions170. This seems plausible as public justification necessitates general arguments. Even if states did not comply in the cases discussed, parliamentary debates, at least in Europe, gave international law a place in the decision-making process. Several specific factors, in contrast, favoured non-compliance with Charter rules. One was the indeterminacy of Security Council resolutions which permitted interpretation in various ways, in particular the very vague Resolution 678 (1990), and Resolution 1154 (1998) with its formula of "severe consequences" form striking examples171. Another factor was the perceived injustice of the legal rule in question which has already been discussed and which was strongest with regard to Kosovo172. Thus, in the cases of Iraq and Kosovo, international law and institutions did not play a decisive role, but their importance was not reduced to nothing: the reliance on Security Council authority reduced obstacles for domestic and international support and was part of a more general identity of European governments. Even in these "high politics", international law therefore did not simply represent an epiphenomenon173.

170

171

172

173

seq., (358 et seq.); on this approach in the study of international security, cf. P. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics, 1996; H. Miiller, "The Internationalization of Principles, Norms, and Rules by Governments: The Case of Security Regimes", in: V. Rittberger (ed.), Regime Theory and International Relations, 1993, 361 et seq. Cf. A. Hurrell, "International Society and the Study of Regimes: A Reflective Approach", in: Rittberger, see note 169, 49 et seq., (71); on the area of international security, cf. Mu'ller, see note 169, 381. Cf. Frowein, see note 21, 110 et seq.; Lobel and Ratner, see note 21, 137 et seq.; Tomuschat, see note 21, 80 et seq.; on the problem of indeterminacy in general, cf. Franck, see note 155,50 et seq. See the statements of several German deputies as to the reasons for their support of the use of force despite illegality, Plenarprotokoll 13/248, 16 October 1998, 23127 et seq.; see also Franck, see note 155, 208 et seq., who, although acknowledging the importance of the "justice" of a rule for compliance, dissociates it from issues of legitimacy. On different ways to explain compliance with international norms, see H.H. Koh, "Why Do Nations Obey International Law?" (Review Essay),

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Nevertheless, hopes for a "rule of law" in international security still seem greatly exaggerated.

2. Collective Security in the Future In spite of these indications toward some, albeit limited importance of the Security Council, recent events leave the system of collective security severely damaged. The western action was widely perceived as hegemonic, and its attitude toward the Council as making use of it only when it pleases. This perception is continuously confirmed by statements of United States officials who reject any subordination of NATO to the United Nations and claim their own right to defend the own values and interests — rights that they probably would not concede to other states in the same way. Attempts to insert this into the new strategic concept of NATO have only in part failed: the concept leaves the relationship with the UN Security Council unclear, but extends the notion of security to areas such as human rights, thereby allowing for NATO action in these fields outside the area of the member states or even Europe174. This reduces incentives for co-operation within the Security Council and renders probable a rise of unilateralism — of unilateralism beyond the limits of any right to enforcement of collective decisions. Not the claim to such a new right itself is therefore the cause of the adverse impact, as general public international law is usually modified by partial violations of old rules. The problem is rather the manner of its invocation. Had it been possible to perceive it as a serious claim to a new, limited right, it would have succeeded or failed, but would not have severely damaged the system. But it is rather perceived as an expression of the freedom of western states to act when they deem it right — as an expression of their persuasion that they are "more faithful to the purposes as well as to the specific words of the United Nations than is the United Nations itself"175.

174

175

Yale L.J. 106 (1997), 2599 et seq.; Arend, see note 169; Kingsbury, see note 169. See "The Alliance's Strategic Concept", approved on 23-24 April 1999, NATO press release NAC-S (99)65 of 24 April 1999; on the attempts of some states before the adoption cf. US Deputy Secretary of State Talbott, see note 159; on this, cf. Simma, see note 98. This justification was advanced by an editorialist of the Washington Post, cf. International Herald Tribune, 19-20 December 1998, 6.


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This negative impact is not reduced either by attempts of the acting states to remain "close to legality" or by an "isolated character" of these events176. As I have tried to show, the events already form, especially on the background of statements of western officials, a coherent picture — even if unilateral action to further western values has not yet been explicitly formulated as a general option for NATO177. Moreover, the states did not claim to be acting outside the law on moral or political grounds in an isolated case, but they argued legally to justify their military interventions. Despite some statements that no precedents should be created178, the cases discussed will be referred to in the future and will thereby serve to create new rules. Prospects for collective security are therefore quite unhappy: insofar as reliance on Security Council decisions is seen as a simple pretext, it will be concluded that in any new situation where United Nations authority is not available at all, a new claim will arise which serves best the interest of the acting state. This may lead to further erosion of the authority of the Security Council which is already weak, especially due to its unequal composition and the perception of double standards179. Now, its appearance as a tool of the powerful is reinvigorated — not only as a tool of the states using force, but also of those permanent members blocking Council action for selfish interests. Any feeling of responsibility for a "common good" that may have existed among Council members is likely to disappear in favour of the pursuit of oldfashioned national interest180. When the persuasion of some to see the common interest and to enforce it is thus perceived as power policy, the

176 whh respect to the NATO threats in Kosovo, this is argued by Simma, see note 98. 177 See also B. M011er, "The Slippery Slope of Authority Eroded", Security Dialogue 30 (1999), 87 et seq., (88 et seq.); E.B. Eide, "Intervening Without the UN", Security Dialogue 30 (1999), 91 et seq. 178 Cf. the statement of the German Foreign Minister, Deutscher Bundestag, Plenarprotokoll 13/248, 16 October 1998, 23129. 179 Cf. only D.D. Caron, "The Legitimacy of the Collective Authority of the Security Council", AJIL 87 (1993), 552 et seq. 180 This phenomenon is not new — after dominating the Cold War, it persisted, e.g., in the protection of Israel by the United States or of Serbia by Russia. But it seems to return with greater force now, as with the Chinese use of the veto-power to punish Macedonia for its diplomatic contact with Taiwan, cf. Doc. S/PV.3982 of 25 February 1999.

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common interest will, in the end, rather be damaged than served181. Then, single states will claim the right to define it for themselves, and the collective system will remain just one among many actors all determining the common good as they please. Whose "common interest" then prevails, will be rather a question of might than of right.

VII. Conclusions While discussions on the enforcement of values of the international community usually focused on two distinct modes, the collective and the unilateral, the events in 1998 and early 1999 have shown a tendency towards a combination of both: the unilateral enforcement of collective decisions. In all these cases, the justifications were based on determinations of a common interest by the Security Council, although the Council had not authorized military action. A right to unilateral enforcement of the collective will, however, could not be established due to strong opposition by a.great number of states. Because such a right finds no support in the Charter, and other ways of justification by the states were either not advanced or untenable, the actions were unlawful. But this claim reflects, in part, concerns about the legitimacy of the authority of a collective system which seems unable to enforce community interests, and the combination of unilateral and collective action removes some of the objections traditionally held against unilateral action. The emergence of a right to unilateral enforcement would nevertheless have very negative consequences, as it is likely to cause a blockade of the system of collective security. Concerns about the legitimacy of the "old rule" may help understand why states ignored it. But non-compliance can, for the most part, be explained by the hegemonic pursuit of objectives of the acting states. The limited role of international law in international security, is once again confirmed. Nevertheless, these events show that action without the Security Council is, at least in Europe, regarded as very costly and therefore undesirable. Claims to purely unilateral action have been avoided, and even a unilateral right to humanitarian intervention has not been vigorously restated. The importance of the Security Council for the legitimization of action is reflected also in domestic discussions and 181

Nolte, see note 100, has recently emphasized this process with regard to the Holy Alliance and indicated parallels to the use of the Security Council by the great powers.


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in general commitments forming part of the identity of several European governments. The manner in which action has been taken, has, however, severely damaged the system of collective security. It has led to widespread perceptions that western states do not accept the authority of the Security Council, but that they pursue hegemonic objectives under the pretext of United Nations authority. Strong efforts to co-operate within the Council in the future are therefore unlikely, while unilateral definition of common interests will spread. The UN Charter's conception that "the Organization only is competent to see the common interest and to use force in supporting it" is therefore likely to remain a hope rather than become a reality.


Proposals for Strengthening the UN Dispute Settlement System Lessons from International Economic Law Ernst- Ulrich Petersmann1

Introduction: Constitutional Democracy, the Right to Effective Judicial Remedies and the Need for "Constitutionalizing" UN Law In his "philosophical sketch" on "Perpetual Peace" (1795), Immanuel Kant explained why classical international law, based on state sovereignty and self-help, cannot secure freedom and equal rights of citizens as well as of states. In order to limit abuses of government powers and protect "democratic peace" at home and abroad, national constitutional guarantees of individual rights and of representative governments must be supplemented by international constitutional rules based on a "federation of free states" and on "cosmopolitan" integration law for peaceful cooperation among citizens across frontiers. Kant criticized classical

1

This contribution is an abridged version of a discussion paper used in the Consultation on the Peaceful Resolution of Major International Disputes, organized by the ILA in collaboration with the Consortium on International Dispute Resolution (CIDIR) from 11-15 December 1998 in London in order to elaborate recommendations for the 1999 UN Conferences at The Hague and St. Petersburg celebrating the centennial of the 1899 Hague Peace Conference and the 1899 Hague Conventions (e.g. on the Peaceful Settlement of International Disputes).

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international law doctrine ("Grotius, Pufendorf, Vattel and the rest — sorry comforters as they are") for justifying military aggression and not effectively protecting human rights. According to Kant, a law-governed civil society and "perpetual peace" depend on the progressive extension of national and international constitutional guarantees of equal freedoms of citizens as well as of states; Kant recognized international economic cooperation as being of crucial importance for the necessary constitutionalization of international law and cosmopolitan selfemancipation, "for the spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war."2 As predicted by Kant, individual freedom and rule-of-law are today more effectively protected in international economic law and in regional integration law among constitutional democracies than in most other areas of international law. The right to effective judicial protection has become a general principle of law not only within constitutional democracies but also in the regional integration law of the European Community (EC) and the European Convention on Human Rights (e.g. article 6 ECHR).3 Since legal security and judicial protection are of fundamental importance for economic transactions and investments, worldwide international economic law likewise provides for comprehensive guarantees of judicial review at the national and international level. The UN-Charter and many areas of UN law (including the 1966 UN human rights covenants), by contrast, do not provide for compulsory adjudication of international disputes. The UN legal and dispute settlement system continues to be based on state sovereignty as traditionally understood in the Westphalian system of classical international law, i.e. based on effective government control over a specific territory and population rather than on human rights and democratic government. The power-oriented structure of UN law is reflected in the limitation of UN membership to states, regardless of their respect for human rights; in the dispute settlement by "peaceful means of their own choice" (Article 33 UN-Charter), including the right to unilateral reprisals; in the admission only of states to the contentious jurisdiction of the ICJ (cf. Article 34 ICJ Statute); in the dependence of the ICJ's jurisdiction on mutual agreement by the parties; or in the acceptance of the ICJ's compulsory jurisdiction (cf. Article 36 para. 2 ICJ Statute) by 62 states only (including only one H. Reiss (ed.), Kant, Political Writings, 1991,103, 114. Cf. the references to the case-law in: H.G. Schermers, D. Waelbroeck,/«J:dal Protection in the European Communities, 5th edition, 1992,42.

Petersmann, Strengthening the UN Dispute Settlement System

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permanent member of the Security Council), and this subject to a multitude of often far-reaching reservations. The mere 60 judgments (often only on procedural issues such as jurisdiction and admissibility) and 21 advisory opinions delivered by the ICJ during its first 50 years (19461996), and the defiant reactions to some of these judgments (such as the unilateral withdrawal of the ICJ's compulsory jurisdiction e.g. in 1974 by France in response to the Nuclear Tests Case, and in 1984 by the United States in response to the Nicaragua Case), are widely seen as evidence that the ICJ "remains a minor actor in international relations" dealing mainly with "rather technical disputes concerning boundaries" and treaty interpretations, yet "marginal to most of the structural issues of international relations" (such as human rights, "democratic peace", international organizations, the global economy, protection of the environment).4 How can the UN legal and dispute settlement system be made more effective for the protection of human rights, democratic peace and sustainable development? Does the worldwide recognition of human rights (e.g. in the 1993 UN World Conference on Human Rights) require a "democratic re-interpretation" of UN law in favour of human rights as constitutive elements of popular sovereignty and democratic peace? If, as claimed by the "democratic peace literature",5 democracies do not fight each other and "democratic peace" depends on the spread of democracy and judicial dispute settlement mechanisms, how can compulsory jurisdiction and international adjudication be extended beyond the areas of international economic law and regional integration law? Why have UN member states and the UN Security Council not complied with the requirement of the UN-Charter "that legal disputes should as a general rule be referred by the parties to the International Court of Justice" (Article 36 para. 3 UN-Charter)? Can the UN protect the rule of law without limiting the "free choice of dispute settlement means" by rights to compulsory international adjudication? What reforms are needed so as to enable the ICJ to decide more than 2-3 cases per year and exercise more effectively its statutory task as the "principal judicial The quotations are from: D.P. Forsythe, "The International Court of Justice at Fifty", in: A.S. Muller, D. Raic, J.M. Thuranszky (eds), The International Court of Justice — Its Future Role after Fifty Years, 1997, 385, 386, 402. Cf. e.g. B. Russett, Grasping the Democratic Peace: Principles for a PostCold War World, 1993; D.S. Sullivan, "Effective International Dispute Settlement Mechanisms and the Necessary Condition of Liberal Democracy", Geo.LJ. 81 (1993), 2369 et seq.

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organ of the United Nations" (Article 92 UN-Charter)? How can the statutory limitations that "only states may be parties in cases before the Court" be overcome (Article 34 para. 1 ICJ Statute)? Can the right of UN specialized agencies to request Advisory Opinions from the ICJ serve as a substitute for the lack of access by international organizations to contentious proceedings before the ICJ? Discussions among international lawyers on the UN dispute settlement system and the ICJ6 often ignore the lessons to be learnt from worldwide compulsory adjudication in international economic law. They also recommend amendments of the UN-Charter and the ICJ Statute (e.g. in favour of admitting direct access of individuals and international organizations to the ICJ) without regard to the problem that the large number of non-democratic UN Member States make such amendments pursuant to Arts. 108 or 109 of the UN-Charter politically unlikely. Can the political obstacles for formal amendments of the UNCharter and the ICJ Statute be circumvented by optional protocols providing for access of individuals and international organizations to the ICJ? What lessons can be learnt in this respect from the acceptance of compulsory adjudication in worldwide and regional economic law? Can the judicial interpretations, by the European Court of Justice (ECJ) and the European Court of Human Rights, of the EC Treaty and the ECHR as "constitutional charters" with constitutional guarantees of fundamental rights and rule-of-law serve as models for "constitutional interpretations" of the UN-Charter, e.g. by the ICJ?7 Or does the lack of ECJ jurisdiction for the "common foreign and security policy" of the European Union (EU) show that the interstate "Westphalian system" of international law cannot be "constitutionalized" by means of judicial interpretations?

Cf. e.g. C. Peck, R.S. Lee (eds), Increasing the Effectiveness of the International Court of Justice, 1997; V. Lowe, M. Fitzmaurice (eds), Fifty Years of the International Court of Justice, 1996. Cf. T.M. Franck, "The Powers of Appreciation: Who is the Ultimate Guardian of UN Legality?", AJIL 86 (1992), 519 et seq., who compares the ICJ's Lockerbie Case with the United States Supreme Court's Marbury v. Madison (1803): in both cases, the courts told powerful actors what they wanted to hear about a current dispute, but asserted the prerogative of the courts to review the legality of the actions by the government actors.


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I. Need for a Theory of Effective International Adjudication The numerous international dispute settlement treaties concluded since the 1899 Peace Conference at The Hague tend to distinguish ten different international dispute settlement methods: (1) negotiations; (2) good offices; (3) mediation; (4) international commissions of inquiry; (5) conciliation; (6) arbitration; (7) judicial settlement by permanent courts; (8) "resort to regional agencies or arrangements", or (9) "other peaceful means of their own choice" (Article 33 UN-Charter); and (10) dispute settlement by the UN Security Council (e.g. pursuant to Arts 34-38 UN-Charter) or by other UN organs or other international organizations. Many international treaties, including the UN-Charter, view these political and legal procedures as complementary options and define the conditions for their use. But there exists no comprehensive theory so far on how recourse to the legal methods of international dispute settlement, especially compulsory arbitration and court proceedings, can be strengthened in international relations so as to reduce recourse to alternative power-oriented dispute settlement methods. Such a theory would have to answer, inter alia, the following legal and political questions: 1. Does the principle, in Article 33 of the UN-Charter, of free choice among political and legal methods of dispute settlement operate as an incentive for power-oriented dispute settlement methods, and for nonrecognition of compulsory jurisdiction by the ICJ, because the more powerful country may be less interested in settling a dispute than in having its view prevail and, hence, may find power politics more advantageous for itself than third-party adjudication? 2. Why has it been possible — for instance in WTO law, in the 1982 Law of the Sea Convention, as well as in a number of regional integration agreements (including the EC Treaty, the ECHR and the NAFTA Treaty) — to prompt all contracting parties to accept compulsory jurisdiction for judicial dispute settlement procedures? Under what conditions do states accept compulsory jurisdiction and adjudication in noneconomic areas of international cooperation? Why has it so far not been possible to extend the jurisdiction of the ECJ to the second pillar of the European Union concerning the common foreign and security policy of the European Union? Why have European Union member states accepted, in the 1997 Amsterdam Treaty (e.g. article K.7), to extend the ECJ jurisdiction to certain fields of police and judicial cooperation? Why have fewer than half of the member states of the Organization for

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Security and Cooperation in Europe (OSCE) accepted the jurisdiction of the OSCE arbitral tribunal? 3. Why has it been possible in some international agreements — like the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States, which created the International Centre for the Settlement of Investment Disputes (ICSID), the Law of the Sea Convention, the WTO Agreement on Preshipment Inspection, the EC Treaty, the ECHR and NAFTA — to grant private citizens direct access to international arbitration or court procedures? Why do modern Bilateral Investment Treaties (e.g. of the United States) provide for the submission of disputes to ICSID investor-state arbitration, or to inter-state arbitration, rather than to the ICJ (as it was provided for under the old Friendship, Commerce and Navigation Treaties of the United States)? Is private access to non-judicial international complaints procedures — for instance in the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, or the UN Committee against Torture — an effective substitute for private access to international adjudication? Do "mixed" dispute settlement mechanisms between private persons and foreign states contribute to avoiding intergovernmental disputes among states? Under what conditions can such a "privatization" of international disputes be extended to other fields of international law? 4. How can effective supranational adjudication be promoted? How could the ECJ and the European Court of Human Rights, even though both tribunals were created through classical international treaties among states, evolve into supranational courts for both governmental and private litigants, whose judgments are almost as effective as national court rulings?8 Can the contribution of these courts to the emergence of a European "community law" serve as a model for the transformation of the power-oriented, state-centered Westphalian system of international law into worldwide "community law"? What strategies are available for "constitutionalizing international law and foreign policy"?9 5. What lessons are to be drawn from the fact that national courts, international institutions and private citizens have played such an important role in the European integration process? How can stronger coCf. L.R. Heifer, A.M. Slaughter, "Toward a Theory of Effective Supranational Adjudication", Yale L.J. 107 (1997), 273. Cf. E.U. Petersmann, "How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society?", Mich.J.Int'l L 1999 forthcoming.


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operation among national and international courts in the judicial enforcement of international law be promoted? How can national courts and the ECJ be induced to protect the rule of international law more effectively, rather than exercise judicial self-restraint vis-a-vis foreign policy measures and violations of international law? How can the "conceptual chaos that surrounds judicial treatment of cases with foreign affairs implications*,10 such as judicial "political question doctrines", "act-of-state doctrines", "non-self-executing treaty doctrines", or judicial deference to "later in time legislation" inconsistent with international law be overcome? Why are these doctrines so often invoked by domestic courts as a justification for the non-application of international rules that were ratified by national parliaments so as to protect individual freedom and non-discrimination in transnational relations? The following contribution proceeds from the working hypothesis that the success of rule-oriented dispute settlement procedures depends essentially on three factors: First, on the applicable substantive rules: For instance, private access to international courts has been accepted in areas such as transaction law and international guarantees of freedom and non-discrimination (e.g. in human rights law, international economic law, regional integration law among constitutional democracies). By contrast, international disputes e.g. on territorial and maritime boundaries have remained the dominant kind of inter-state disputes in the ICJ. "Result-oriented rules" (e.g. on redistributive "social rights"), and provisions authorizing discretionary governmental "safeguard measures", tend to be less precise and less "justiciable" than conduct-oriented "prohibitive rules" (e.g. on freedom and non-discrimination). Second, on the availability of legal dispute settlement procedures which induce the parties to the dispute to appear before a tribunal and to comply with the tribunal's procedures and decisions: Rule-oriented procedures and third-party adjudication tend to maximize the effectiveness and social benefits of agreed rules, without precluding recourse to political dispute settlement methods and compromise solutions agreed among the parties concerned. The worldwide access to justice movement is a necessary consequence of the spread of the "rule of law state" aimed at protecting individual freedom and equal citizen rights under the rule of law at home and abroad. Yet, as emphasized by the German Constitutional Court, "in Europe the judge was never merely 'la bouche qui 10

Cf. T.M. Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?, 1992, 5.

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prononce les paroles de la loi'."n Contrary to the Montesquieuian myth of value-free judges operating as the "mouth of the law", the judicial process involves choices among alternative interpretations of general rules so as to decide disputes and enhance legal security; the inevitably law-creating elements of the judicial process require constitutional legitimation and guarantees of due process in order to be acceptable. Third, on the legal limitation of recourse to alternative poweroriented dispute settlement methods: As predicted in Kant's philosophical sketch on "Perpetual Peace" (1795) more than 200 years ago, the international law of "federations of free states" (e.g. EC law), and the "cosmopolitan" transnational integration law for non-discriminatory cooperation among citizens across frontiers (e.g. WTO law), have progressively limited the power-oriented dispute settlement methods of the classical international law of coexistence (e.g. self-help and unilateral reprisals) by guaranteeing individual access to courts and compulsory international adjudication. While political dispute settlement methods offer important preliminary means for negotiating agreed settlements of international disputes, the option of unilateral recourse to mandatory adjudication is a precondition for the "rule of law" in national as well as in international law. The remainder of this article analyzes these three conditions of the effectiveness of international adjudication, with particular focus on the pertinent experience in international economic law. Part 2 examines why compulsory international adjudication is more widely accepted in international economic law than in UN law and in other non-economic areas of international law. Part 3 draws lessons from international economic law for strengthening international dispute settlement procedures in non-economic areas. Part 4 discusses political strategies for "constitutionalizing" UN law and the ICJ. For, the needed strengthening of the UN dispute settlement system is not only a question of improving dispute settlement procedures', rule of law and international third-party adjudication also depend on substantive constitutional reforms and can prevail only if freedom and non-discrimination are constitutionally protected not only among states but also among their citizens.

Kloppenburg Case, Common Market Law Reports 53 (1988) 1 et seq., (19).


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II. Why Is International Adjudication more Widely Accepted in International Economic Law than in Other Areas of International Law? 1. Decreasing Role of the ICJ for the Settlement of International Economic Disputes International economic law is essentially based on treaties on the reciprocal liberalization of market access barriers. Most international economic treaties include precise and detailed rules so as to maximize legal security for private investors, producers and traders; they usually also provide for their own specific dispute settlement mechanisms so as to ensure that the specific treaty rules are interpreted and applied by experts in economic law and policy.12 Even though the ICJ, and to a lesser degree also its predecessor: the PCIJ, were expected to become the "principal judicial organ" (Article 92 UN-Charter) for the settlement of disputes among states, these hopes, unfortunately, never materialized. Fewer than a third of the 185 UN Member States have accepted the compulsory jurisdiction of the ICJ under Article 36 of the ICJ Statute, often only subject to far-reaching reservations. The number of cornpromissory clauses in international treaties providing for the submission of disputes to the ICJ remains likewise comparatively small. And the existing clauses have been used only rarely for the settlement of international economic disputes. The 1992 analysis by Professor Jaenicke of international trade conflicts before the PCIJ and the ICJ noted: "the remarkable fact that no such conflict has ever been submitted to the Permanent Court of International Justice or the International Court of Justice. Both Courts have never had the opportunity to pronounce themselves on such important legal principles as mostfavoured-nation treatment and non-discrimination. The reluctance of States to submit a conflict of this kind to the Court is also apparent from the limited number of commercial treaties which contain a

12

For a comparative survey see e.g.: E.U. Petersmann, G. Jaenicke (eds), Adjudication of International Trade Dispute in International and National Economic Law, 1992.

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compromissory clause providing for the jurisdiction of the Court in respect to trade conflicts proper."13 Among the motives behind this reluctance of states to submit trade disputes to the ICJ, Jaenicke identified the unwillingness of states to submit their economic policy decisions to third-party judgments. Yet, this interpretation does not explain why, in numerous postwar international economic treaties, governments have accepted to limit their economic policy discretion; and why they accepted international judicial review of compliance with such treaty commitments by specialized dispute settlement bodies, such as GATT and WTO panels, the WTO Appellate Body, arbitration procedures in the WTO, the ECJ and EC Court of First Instance, the EFTA Court of Justice, the NAFTA panels, arbitration under the rules of the World Bank's ICSID, or the International Law of the Sea Tribunal and arbitration mechanisms provided for in the Law of the Sea Convention. Most of these specialized dispute settlement mechanisms are being used with increasing frequency. As some of these treaties (e.g. article 219 EC Treaty; article 23 WTO Dispute Settlement Understanding) prescribe exclusive recourse to these specific procedures for the settlement of disputes over the interpretation and application of the respective treaties, it seems unlikely that disputes over these international treaties will be brought to the ICJ. As regards foreign investment disputes relating to the treatment of foreigners and corporations doing business in other states, Jaenicke noted a greater preparedness of states to accept international adjudication by the ICJ, possibly because an unfavourable judgment was likely to have less far-reaching policy implications and to be limited to the specific case. The 1926 and 1928 judgments of the PCIJ in the Chorzow Factory Case, the 1925 and 1927 judgments in the Mavrommatis Concession Cases, the 1934 judgment in the Oscar Chinn Case, the 1970 judgment by the ICJ in the Barcelona Traction Case, and the 1989 judgment in the ELSI Case are examples where the PCIJ and the ICJ decided on claims of alleged violations of international law rules on the treatment of aliens and the protection of foreign-owned property. A more recent analysis by Professor Wellens concludes that the ICJ has not hesitated in past cases to take into account economic dimensions of its judicial reasoning (e.g. fisheries, mineral resources and navigation as criteria for maritime delimitation agreements); withholding interna13

G. Jaenicke, "International Trade Conflicts before the Permanent Court of International Justice and the International Court of Justice", in: Petersmann, Jaenicke, see note 12,43 et seq., (44).


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tional economic disputes from the ICJ would therefore be "totally unjustified".14 Yet, even though many states have included disputes of an economic nature in their acceptance of the ICJ's jurisdiction, it seems doubtful whether the ICJ can assume a more active role in the continuing trend towards judicialization of dispute settlement methods in international economic law. For instance: - Countries continue to show a clear preference for submitting disputes over the interpretation and application of multilateral economic treaties to specialized international tribunals (e.g. the Law of the Sea Tribunal, the WTO Appellate Body) and other dispute settlement mechanisms (e.g. GATT panels, the WTO Dispute Settlement Body, the Executive Directors or Board of Governors of the World Bank, the IMF's "Committee of Interpretation") of the contracting parties concerned rather than to the ICJ. The possibility, provided for in the statutes of many UN Specialized Agencies (such as the ILO and WIPO), of submitting disputes to the ICJ has hardly ever been used in the field of economic law. - Whereas bilateral Friendship, Commerce and Navigation treaties (e.g. of the United States) used to include compromissory clauses providing for the settlement of disputes by the ICJ, the modern Bilateral Investment Treaties tend to provide for investor-state arbitration and inter-state arbitration rather than for ICJ jurisdiction. - The state-centred and far too lengthy procedures of the ICJ, its universal composition (including judges from non-democracies), the ICJ's too limited jurisdiction rations personae, and the so far limited attention paid to human rights in past jurisprudence of the ICJ (e.g. the Nicaragua Case),15 are perceived as disincentives by industries 14

15

K. Wellens, Economic Conflicts and Disputes Before the World Court (1922-1995), 1996, 5. In the Nicaragua Case, the Court rejected the US claim "that Nicaragua actually undertook a commitment to organize free elections", notwithstanding Nicaragua's membership in the UN Covenant on Civil and Political Rights and in the American Convention on Human Rights, and noted in respect of the US argument that Nicaragua had failed to observe its treaty commitments to respect human rights: "where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves" (ICJ Reports 1986, 131134). These findings are difficult to reconcile with the recognition by the ICJ (e.g. in the South West Africa Cases) that human rights give rise to international obligations erga omnes, cf. S.M. Schwebel, "The treatment of human rights and of aliens in the International Court of Justice", in: V.

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Max Planck UNYB 3 (1999) interested in speedy judicial protection of private rights and nondiscriminatory market access.

2. Enforcing WTO Guarantees of Freedom, NonDiscrimination and Rule of Law: Compulsory Jurisdiction and Appellate Review at the International and National Level The dispute settlement system of the WTO is unique in respect of its worldwide compulsory jurisdiction with appellate review for disputes over international trade in goods, services, trade-related investments and intellectual property rights. Like the preceding dispute settlement system under GATT 1947, the WTO dispute settlement system is more frequently used for the settlement of disputes among states than any other multilateral system. Notwithstanding certain transitional WTO provisions which limit the right to submit certain disputes (e.g. over anti-dumping measures and intellectual property rights) during the initial years after the entry into force of the WTO Agreement on 1 January 1995, there were already more than 150 invocations of the WTO Dispute Settlement Understanding (DSU) up to the end of 1998 — i.e. more contentious proceedings than were submitted to the PCIJ and the ICJ since 1922 altogether. What are the reasons for this frequent recourse to the WTO dispute settlement system?16 Should WTO law follow the example of European integration law and progressively extend its judicial remedies to the protection of individual rights (as it has already been done with respect to protection of intellectual property rights and investment rights in WTO law)?

16

rights and of aliens in the International Court of Justice", in: V. Lowe, M. Fitzmaurice, see note 6, 327 et seq., who rightly asks: "if fundamental rights do complement obligations that exist erga omnes, and if those rights indeed are of fundamental importance, should their pursuance on the international plane be so limited by the traditional rules of diplomatic protection?", at 338. For a detailed analysis of the WTO dispute settlement system see: E.U. Petersmann, The GATT/WTO Dispute Settlement System, 1997; E.U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, 1997.


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a) Compulsory WTO Jurisdiction for Judicial and Appellate Review of WTO Law The DSU is an integral part of WTO law binding on all members. It provides for compulsory and exclusive jurisdiction of the Dispute Settlement Body (DSB) "to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements" (article 2 para. 1). When WTO members seek redress of a violation of WTO law, "they shall have recourse to, and abide by, the rules and procedures of this Understanding" without recourse to unilateral determinations of violations or unilateral reprisals (article 23). Article 3 para. 2 emphasizes the ruleoriented function of the DSU "to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law". Dispute settlement panels are established automatically at the request of the complaining member (article 6). The risk of unconvincing panel reports is limited by the right to appellate review within very short time limits. Panel and Appellate Body reports are adopted automatically (cf. article 20-rejection is possible only by "negative consensus"). Article 21 on multilateral surveillance and implementation of dispute settlement rulings also provides for the increasingly used possibility of arbitration awards within 90 days on the "reasonable period of time" for implementation of dispute settlement rulings. Similarly, and again at the unilateral request of the complaining country, the WTO consistency of implementing measures can be reviewed by the original panel within 90 days. b) Primacy of WTO Law vis-a-vis Alternative Dispute Settlement Methods Apart from the arbitration-like panel procedures and the court-like appellate review by the standing Appellate Body, the DSU offers all the other political and legal methods for the peaceful settlement of disputes set out in Article 33 of the UN-Charter, such as bilateral and multilateral consultations (article 4), good offices (arts 5, 24), conciliation (arts 5, 24), mediation (arts 5, 24), enquiries (e.g. by "expert review groups" pursuant to Annex 4 of the DSU) and international arbitration (article 25). But the DSU gives clear priority to the primacy of the rule of law by requiring that " (A)all solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agree-

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ments, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements" (article 3 para. 5). This legal primacy of WTO law greatly enhances legal security and predictability. It seems largely due to the "dispute prevention function" of such requirements of rule of law and of compulsory jurisdiction for judicial review, that more than 20 % of WTO dispute settlement proceedings are settled "out of court" without a DSB ruling. While the UN Security Council has rarely complied with its obligation to "take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice" (Article 36 para. 3 UN-Charter), the WTO Appellate Body has effectively become the "principal judicial organ" of the WTO. Appellate Body reports refer regularly to general international law principles as applied in the case law of the ICJ; such "cooperation among international courts" and "cross-fertilization" of legal systems enhance the legitimacy, consistency and political acceptability of WTO dispute settlement rulings. c) Integration of International and Domestic Dispute Settlement Mechanisms Article XVI para. 4 of the WTO Agreement, and numerous specific WTO rules, require each member to "ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements." Periodic multilateral surveillance and detailed review of the domestic implementing legislation of each WTO member are major activities of the various WTO Councils and Committees and serve important "conflict prevention" functions. Nonetheless, many GATT and WTO dispute settlement proceedings were directed against domestic laws, and not only against individual administrative acts or court decisions. GATT and WTO disputes are often initiated by private traders and investors which, under their respective domestic laws — such as the 1994 Trade Barriers Regulation of the EC and Section 301 of the US Trade Act — are entitled to request their government to challenge illegal or "unreasonable" foreign trade measures of other WTO member countries. Even though direct access of citizens to international arbitration in the WTO still remains an exception (see the private international arbitration in the WTO pursuant to article 4 of the WTO Agreement on Preshipment Inspection), domestic industries have "indirect access" to


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WTO dispute settlement mechanisms under the domestic laws of many WTO countries and use these legal remedies very actively. The industries involved sometimes also pay the costs for private legal counsel in WTO dispute settlement proceedings. Just as the successful conclusion of the "Uruguay Round" and preceding "GATT Rounds" was facilitated by political support from industries and consumer interests in liberal trade, private stakeholders are a major political driving force behind initiation and implementation of GATT and WTO dispute settlement proceedings. WTO law includes numerous requirements of granting citizens access to domestic courts and individual remedies against restrictions or distortions of trade or individual rights. WTO law increasingly protects substantive private rights, such as intellectual property rights. The availability of such individual rights and of decentralized dispute settlement and enforcement mechanisms contributes to the fact that most governments seem to observe most of their GATT and WTO obligations most of the time. Unlike the customary international law requirement of prior exhaustion of local remedies, GATT and WTO law — similar to European Community law — enables access to GATT and WTO dispute settlement mechanisms even prior to the exhaustion of local remedies.17 Since GATT and WTO dispute settlement proceedings tend to be much quicker, and to apply stricter legal standards of judicial review, than domestic court proceedings which often ignore international law, parallel recourse to national and international dispute settlement mechanisms has become a frequent feature of GATT and WTO practice. In some disputes, GATT and WTO dispute settlement rulings were explicitly taken into account by domestic courts dealing with similar legal complaints. Unfortunately, there remain many examples of domestic courts disregarding their obligation to construe domestic law in conformity with international law; even the ECJ has frequently ignored GAIT and WTO dispute settlement case-law notwithstanding about 25 GATT and WTO dispute settlement findings of inconsistencies between EC law and GATT or WTO obligations of the EC. d) Constitutional Functions and Legitimacy of WTO Rules GATT and WTO law, notwithstanding the length and complexity of their 30.000 or so pages of treaty texts, serve essentially to protect free17

See Petersmann, The GATT/WTO Dispute Settlement System, see note 16, 240-244.

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dom, non-discrimination, property rights and rule of law in transnational economic relations. Most WTO rules are formulated in terms of rights and obligations of governments, rather than in terms of "private rights" (as many provisions in the WTO Agreement on Trade-Related Intellectual Property Rights which explicitly recognizes that "intellectual property rights are private rights") or as rules for enterprises (as GATT Article XVII and some provisions in the WTO Agreement on Preshipment Inspection). Furthermore the WTO rules addressed to states are designed to promote private market access and nondiscriminatory conditions of competition for private producers, traders, investors and consumers so that "merchandise is sold or offered for sale in the ordinary course of trade under fully competitive conditions" (Article VII GATT), or "to facilitate investments across frontiers so as to increase the economic growth of all trading partners" (Preamble to the WTO Agreement on Trade-Related Investment Measures). The strong self-interests of private stakeholders in promoting legal security of their trade transactions and investments are among the reasons why dispute settlement procedures and legal remedies in international economic law are more developed than in many non-economic areas of international relations. WTO rules derive their legitimacy not only from their legal function to promote individual freedom, market access, non-discriminatory conditions of competition, rule of law and the use of transparent, nondiscriminatory and welfare-increasing policy instruments.18 They also derive political legitimacy from today's universally recognized insight that liberal trade and non-discriminatory competition tend to maximize consumer welfare, competition and individual responsibility (e.g. to adjust to competition and change). The "ethics of undistorted markets" (e.g. as democratic "dialogue about values" and consumer-oriented information, allocation and coordination mechanism), and rules on nondiscriminatory market access and competition, are also consistent with Kant's moral imperative that law and governments must be legitimated by "universalizable" rules that maximize individual freedom (including economic freedoms e.g. to buy, sell, export or import) and legal equality of citizens. WTO member governments know very well that compliance with GATT and other WTO rules, and also with WTO dispute settlement rulings, hardly ever imposes "economic sacrifices" on the country concerned. WTO rules and dispute settlement mechanisms

18

Cf. E.U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law, 1991, Chapter VII.


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rather help governments to protect freedom and equal treatment of their citizens, to implement welfare-increasing policies, and to resist protectionist political interest group pressures and power politics at home and abroad. e) Due Process of Law and "Evolutionary" Judicial Interpretations Justice delayed may amount to justice denied. The ICJ, for instance, has come under increasing criticism for the slowness of the Court in disposing of only two, or at most three, cases each year. In contentious ICJ proceedings, the usually two or three rounds of written pleadings and subsequent oral arguments tend to last several years. The time-lapse of one to two years between the close of written proceedings and the opening of oral hearings, the relatively few days used each year for formal sittings of the ICJ (e.g. five public and 26 private sittings in 1992), the short duration of a "day in Court" (from 10 a.m. to 1 p.m. with a 20-minutes break for coffee), or the lengthy internal procedures for elaborating a judgment (e.g. with written notes of 40-100 pages prepared by each of the 15-17 judges and translated into the other working language), have been criticized as additional causes for the delay of usually several years between the filing of an application and the final ICJ judgment on the merits. Most WTO panel and appellate review proceedings have thus far respected the statutory requirement that "the period from the date of establishment of the panel by the DSB until the date the DSB considers the panel or appellate report for adoption shall as a general rule not exceed nine months where the panel report is not appealed or 12 months where the report is appealed" (article 20). The Working Procedures for panels (Appendix 3 of the DSU) allow two to six weeks for written submissions, two to three weeks for receipt of written rebuttals, and one to two weeks for the first and second substantive meeting with the parties as well as with intervening third parties. In Appellate Body proceedings, the appellant has up to 10 days for the filing of the written submission; the appellee's submission must be received within 25 days after the date of the filing of the notice of appeal. While the ICJ has only very rarely admitted third countries to intervene, intervention by third WTO Members and "multiple complaints" are regular features of WTO dispute settlement proceedings. Panel and Appellate Body meetings with or without the parties usually last the whole day. Even though all WTO documents (including panel and appellate reports) have to be translated into three working languages, many oral hearings and all internal panel and Appellate Body meetings are conducted without trans-

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lation. While separate or dissenting opinions of ICJ judges are frequent and usually much longer than the majority judgment itself, they continue to be extremely rare, short and anonymous in GATT and WTO dispute settlement practice. One characteristic feature of the jurisprudence of the Appellate Body has been the progressive clarification and development, in almost every appellate report so far, of panel and appellate review procedures and matters of treaty interpretation, often with explicit references to the relevant practice in the ICJ. This jurisprudence illustrates the "evolutionary approach to interpretation" in WTO legal practice,19 as well as the growing influence of general international law principles and dispute settlement practices of other international courts on WTO legal practice.

3. Enforcing EC Guarantees of Freedom, NonDiscrimination, Rule of Law and Access to Courts: Compulsory Jurisdiction and Appellate Review at the International and National Level Dispute settlement and judicial protection in the EC differ from the law of all other international organizations by the comprehensive jurisdiction and functions of the ECJ; the comprehensive scope and comparatively greater democratic legitimacy of EC law; the close cooperation between national courts and the ECJ in the interpretation and enforcement of Community law; and the active role of EC citizens and other individual litigants in the judicial development of EC law. a) Compulsory Jurisdiction of the ECJ as International Court, Constitutional Court, Administrative Court and Court of Appeals The Statute of the ECJ was in several regards (e.g. as to delivery, publication, rectification and revision of judgments) influenced by the Statute 19

In the 1998 Shrimp/Turtle Case (Doc.WT/DS58/AB/R), the Appellate Body stated, with references to the ICJ's 1971 Namibia advisory opinion, that "where concepts embodied in a treaty are 'by definition, evolutionary', their 'interpretation cannot remain unaffected by the subsequent development of law.... Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation" (para. 130, footnote 109).


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of the ICJ. Just as the ICJ Statute is an integral part of the UN-Charter, the ECJ Statute forms part of the EC Treaty. The ECJ has, however, acted only rarely as international court for the settlement of disputes among states over alleged violations of their treaty obligations: While direct enforcement actions by the EC Commission against EC member states under arts 169, 93 and lOOa para. 4 of the EC Treaty (ECT) have become increasingly frequent, direct actions among EC member states pursuant to article 170 remain very rare and led to an ECJ judgment in only one case to date.20 The ECJ's jurisdiction goes, nonetheless, far beyond that of the ICJ and of the WTO's Dispute Settlement Body, especially as regards: - the constitutional court jurisdiction of the ECJ to exercise, for instance, powers of judicial review over EC regulations and EC directives in actions to annul (article 173), actions for inactivity (article 175) or pleas of illegality (article 184), and to give opinions on whether the envisaged conclusion of international agreements is compatible with the EC Treaty (article 228 para. 6); — the administrative court jurisdiction of the ECJ to review the legality of administrative acts of EC institutions, for example in annulment actions (article 173), staff cases (article 179) and suits for damages (arts 178, 215); - the ECJ's jurisdiction to give preliminary rulings (article 177) at the request of national courts concerning the interpretation of EC law and the validity of EC Acts, which may imply the judicial review of the compatibility of EC Acts with the EC Treaty in the same way as a constitutional court is required to consider the constitutionality of national legislation; - the appellate jurisdiction of the ECJ for the review, "on points of law" only (cf. article 168a), of final decisions or interlocutory decisions of the EC Court of First Instance (CFI), in respect of which the ECJ may act either as a Court of revision (by quashing the CFI judgment and substituting its own judgment as the final one in the matter) or as a Court of cassation (by referring the case back to the CFI for rehearing and judgment in the light of the ECJ findings on the points of law on appeal).21

20

21

See: L.N. Brown, T. Kennedy, The Court of Justice of the European Communities, 4th edition, 1994, 105 et seq. In contrast to the WTO dispute settlement system where, during the first years, most panel reports were appealed and in part reversed by the Ap-

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In contrast to the relative freedom of litigant states as regards recourse to the ICJ and the conduct of procedures before the ICJ, the jurisdiction of the ECJ is compulsory and exclusive: "Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein" (article 219). In line with the much broader functions of the ECJ compared with the ICJ, the ECJ's procedures vary according to the different kinds of legal actions; they differ in many respects from dispute settlement proceedings in the World Court and the WTO, for instance regarding the adversarial written and comparatively short oral procedures before the ECJ (the oral hearing may even be dispensed with unless one of the parties objects); the preliminary report of the judge-rapporteur; the subsequent decision on an inquisitorial "preparatory inquiry"; the comparatively brief ECJ judgments (which e.g. do not include Dissenting Opinions as in ICJ judgments and occasionally also in WTO panel reports); and the enforcement mechanisms for ECJ decisions (such as the possibility, provided for in article 171, to impose a financial penalty on a recalcitrant state refusing to comply with a judgment, and the financial liability of both EC institutions and national governments vis-a-vis adversely affected private citizens for damages caused by violations of EC law).22 The establishment of the CFI has enabled a more comprehensive specialization of this court in the judicial protection of the interests of private parties against acts of EC institutions, notably in disputes involving complex questions of fact. The establishment of a Common Patent Appeal Court under the 1989 Community Patents Agreement, and of a Board of Appeal under the 1993 EC regulation on the Community trade mark, are further precedents for the setting-up of specialized international courts with direct access of private citizens. b) Interpretation and Legitimization of the EC Treaty as a "Constitutional Charter" Conferring Rights on EC Citizens Unlike the limited jurisdiction of the ICJ for the judicial review of acts of UN bodies and UN member states, the ECJ has exclusive and com-

22

pellate Body, only about 10% of the CFFs decisions were appealed during the first years, and most appeal cases were rejected by the ECJ, cf.: The Role and Future of the European Court of Justice, British Institute of International and Comparative Law (ed.), 1996, 35. For comparative analyses see: R. Plender, "Procedures in the European Courts: Comparisons and Proposals", RdC267 (1997), 9 et seq.


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pulsory jurisdiction for the final interpretation of EC law vis-a-vis EC institutions and all EC member states so as to "ensure that in the interpretation and application of this Treaty the law is observed" (article 164). The law administered by the ECJ is fundamentally different from the law applied by the ICJ insofar as it binds all EC institutions, member states and their citizens and derives democratic legitimacy - not only from the parliamentary ratification of the EC Treaty in all EC member states, but also - from the explicit protection of individual and democratic citizen rights in EC law, - as well as from the recognition of the common constitutional traditions of fundamental rights, democracy and rule of law in all EC member states as sources of EC constitutional law. According to the Court, "the European Economic Community is a Community based on the rule of law, in as much as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty"; "the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions".23 Most of the constitutional characteristics of the EC Treaty — such as direct effect and supremacy of EC law in the national legal systems, direct applicability of precise and unconditional EC rules by EC citizens and national courts, unwritten guarantees of fundamental rights and constitutional principles of democracy and rule of law, the Community law principles of pre-emption, implied Community powers, state responsibility for non-compliance with EC law — were developed through judicial interpretations based on functional and systemic treaty interpretations, including the "general principles common to the laws of the Member States" (article 215) and the "constitutional traditions common to the Member States as general principles of Community law" (article F Treaty of the European Union). The national courts and national governments recognized this judicial "constitutionalization" of the EC Treaty, and its progressive transformation from an international treaty among states into a vertically integrated legal system conferring judicially enforceable rights to the "citizens of the Union" (article 8) as well as to foreigners. The German Constitutional Court, for instance, justified the judicial activism by referring to: 23

Case 294/83, Les Verts, ECR 1986,1339, consideration 23.

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"the intention of the Member States to provide the Community with a Court which would ascertain and apply the law by methods developed over centuries of common European legal tradition and refinement of law. In Europe the judge was never merely 'la bouche qui prononce les paroles de la loi\ Roman law, the English common law and the German Gemeines Recht were to a large extent the creation of the judges in the same way as in more recent times in France, for instance, the development of general legal principles of administrative law by the Conseil d'Etat or, in Germany, general administrative law, a large part of the law of employment or security rights in private-law business transaction."24 In contrast to the state-oriented jurisprudence of the ICJ (e.g. as regards the "general principles of international law"), the ECJ construed the EC Treaty provisions — even if they were formally addressed to member states — often in a citizen-oriented manner as conferring direct individual rights. Thus, the ECJ inferred from the general principles of Community law, and from the common constitutional traditions of the member states, the obligation of all EC institutions to respect human rights and constitutional principles of democracy and rule of law. The ICJ, by contrast, appears to have rarely construed "the general principles of law recognized by civilized nations" (Article 38 ICJ Statute) in a similar constitutional perspective focusing on UN human rights law. The close interaction between national and European constitutional law, especially the strong influence of the European Convention on Human Rights on the interpretation of EC law and the "direct applicability" of EC guarantees of freedom and non-discrimination by private litigants and national courts, has provided EC law with a legal dynamic and democratic legitimacy which UN law has never achieved. c) Cooperation between European and National Courts for the Benefit of EC Citizens and Individual Litigants Many of the leading cases of the ECJ, such as Van Gend en Loos in 1963 and Costa v. ENEL in 1964, were referred to the Court in the context of its jurisdiction to give "preliminary rulings" under article 177 EC Treaty at the request of national courts. The ECJ's policy of welcoming such references empowered individual litigants and national judges to act as 24

Kloppenburg Case, Decision of 8 April 1987 by the German Bundesverfassungsgericht BVerfGE 75, 223 (engl. translation in: Common Market Law Reports 53 (1988), 19).

Petersmanrij Strengthening the UN Dispute Settlement System

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guardians of EC law and to enforce the EC guarantees of freedom and non-discrimination, construed by the ECJ as "market freedoms" and constitutional rights of EC citizens, against national legislative and administrative restrictions. Political science analyses of the cooperation between the ECJ and national courts in the "constitutionalization" of the Community legal order have emphasized that national courts have played as important a role as the ECJ itself. The cooperation between the ECJ, national courts and individual litigants served not only the self-interests of the judges and citizens involved; it also entailed a shift of political power: national judges could act as common judges of Community law and control even acts of national parliaments; and individual litigants — like the Dutch transporter Van Gend en Loos, the Italian advocate Costa, or the Belgian air-hostess Defrenne — pursued not only their self-interests (which sometimes involved trivial amounts of money, as in the case of Mr. Costa's electricity bill) but defended rights-based interpretations of EC law for the benefit of EC citizens against discriminatory government restrictions supported by "rentseeking" interest groups. The constitutional interpretations of EC law were often linked to the human rights jurisprudence of the ECJ, as illustrated by the judicial recognition that "the principle of free movement of goods and freedom of competition, together with freedom of trade as a fundamental right, are general principles of law of which the Court ensures observance".25 The ECJ's case-law on the individual right to effective judicial protection, or on the "principle of Community law that Member States are obliged to make good loss and damage caused to individuals by breaches of Community law",26 reinforced this "empowering function" of EC guarantees of freedom and non-discrimination, and the effectiveness of the rule of law, for the benefit of EC citizens and individual litigants. Judicial interpretations of the EC Treaty prohibitions of e.g. nontariff trade barriers (article 30) were politically easier to accept by national governments when the interpretation was founded on the protection of individual rights and supported by the national courts. This democratic legitimacy of judicial interpretations of international treaty rules in a manner maximizing human rights and constitutional law principles should serve as a model also for the interpretation of the UNCharter and UN law by the ICJ and other courts.

25 26

Case 240/83, ADBHU, ECR 1985, 531, 548. Joined Cases 46 & 48/93, Brasserie du Pecheur, Common Market Law Reports 75 (1996), 889.

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4. Enforcing Free Trade Area Rules in Europe and North America: Access to Courts at the International and National Level a) The EFTA Court in the European Economic Area (EEA) Article 108 of the 1992 Agreement on the EEA among the EC and EFTA states (Iceland, Liechtenstein, Norway) provides for an EFTA Court, whose rules and procedures are modeled on those of the ECJ. As the objectives of the EEA parallel those of the EC Treaty with regard to the free movement of goods, services, persons and capital, article 6 of the EEA Agreement, and article 3 of the 1993 "Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice", require to interpret EEA rules in conformity with corresponding EC rules and the "relevant rulings" of the ECJ. Given the more limited objectives of the EEA as a free trade area, the EFTA countries did, however, not grant the EFTA Court jurisdiction to deliver legally binding preliminary rulings; the EFTA Court may only give advisory opinions on request by national courts in EFTA countries. The jurisprudence of the EFTA Court since 1994 is strongly influenced by the relevant case-law of the ECJ, albeit with due account (e.g. in the 1997 Maglite Case concerning the "exhaustion" of the right to restrict "parallel imports" of trade-marked goods) of the different context of a free trade area compared with the EC's economic and monetary union. As in the EC, the objectively formulated EEA prohibitions of tariffs, non-tariff-barriers, trade discrimination and restraints of competition are construed and protected by the courts as direct rights of EEA citizens. As a consequence, national courts are frequently called upon to apply and enforce EEA rules in EC and EFTA states. b) Dispute Settlement in the North American Free Trade Area (NAFTA) As of 1 January 1994, the Canada-United States FTA was superseded by the NAFTA Agreement between Canada, Mexico and the United States. No significant changes were made to the intergovernmental dispute settlement mechanisms in Chapter 18 of the FTA Agreement, which were carried over into Chapter 20 of the NAFTA Agreement. Chapter 19 of NAFTA maintains the previous requirement that "each Party shall replace judicial review of final antidumping and countervailing duty determinations with binational panel review" (arti-


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cle 1904.1). Even though the panel review procedure is formally initiated by the importing or exporting countries, their governments are required to do so at the "request of a person who would otherwise be entitled under the law of the importing Party to commence domestic procedures for judicial review of that final determination" (article 1904.5). "Each Party shall provide that other persons who, pursuant to the law of the importing Party, otherwise would have had the right to appear and be represented in a domestic judicial review proceeding concerning the determination of the competent investigating authority, shall have the right to appear and be represented by counsel before the panel" (article 1904.7). Individual plaintiffs are thus given the right to appear before international NAFTA panels as an alternative to national remedies which were considered to be too time-consuming and "protectionbiased". In spite of this "internationalization" of the dispute settlement procedure, the private party remains dependent on cooperation by its government (e.g. as regards submission of the request for establishment of the panel and appointment of panelists); and the substantive law to be applied by the binational panels is not the NAFTA Agreement but "the antidumping or countervailing duty law of the importing Party" (article 1904.2). NAFTA also provides for various sector-specific arbitration and other dispute resolution procedures (e.g. for environmental, labour and investment disputes) and for recourse to national judicial review (e.g. for intellectual property and government procurement disputes). The "internationalization" of dispute settlement procedures for investment disputes between a NAFTA country and private investors from another NAFTA country goes beyond the "Chapter 19 dispute settlement procedures": the private "NAFTA investor" can freely choose between recourse to local remedies or direct recourse to international investorstate arbitration, which can be initiated by the investor himself according to the ICSID or UNCITRAL arbitration rules (cf. article 1120) without diplomatic protection by his home state. NAFTA's Environmental and Labour Agreements, by contrast, grant private persons no direct access to international dispute settlement procedures; the latter take place at the intergovernmental level; private persons may, however, submit complaints to the NAFTA Secretariat which may indirectly trigger the dispute settlement mechanisms. The NAFTA Agreement includes numerous references to GATT/WTO law. As NAFTA does not dispose of an integrated dispute settlement system with appellate review and multilateral surveillance and enforcement mechanisms as in the WTO, NAFTA member states continue to avail themselves of the possibility of submitting trade dis-

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putes among NAFTA countries to the WTO rather than to the special, yet not exclusive NAFTA dispute settlement mechanisms.27

5. International Judicial Protection of Private Investor Rights: The Examples of ICSID and the Law of the Sea Treaty The need for supplementing substantive rights of individuals in international law by complementary procedural rights and individual remedies, and the inadequacies of the traditional international law remedies of discretionary diplomatic protection of foreigners by their home state following the prior exhaustion of local remedies in the host state, have become increasingly recognized in international economic law during the 20th century. The globalization of production, investments, trade and division of labour has thus led to a corresponding "internationalization" of commercial and investment law that increasingly overcomes the inadequate distinction between classical public international law governing relations among states, and private international law for international relations among citizens. This internationalization of the substantive law and procedures for the settlement of foreign investment disputes is promoted by the increasing number of model international arbitration procedures (as elaborated e.g. by the International Chamber of Commerce and the UN Conference on International Trade Law) as well as by more than 1.200 bilateral and multilateral international investment treaties. a) Multilateral Investor-State Arbitration: The International Center for the Settlement of Investment Disputes (ICSID) In order to avoid certain shortcomings of ad hoc arbitration between host countries and foreign companies, arbitration is increasingly institutionalized so as to better ensure the expeditious functioning of the arbitration procedure, the availability of expertise and assistance by the organs of the institution, and recognition and enforcement of arbitra-

27

On this choice of dispute forum, and the occasional "two-forum disputes" in both GATT and the FTA, cf. G. Marceau, "The Dispute Settlement Rules of the NAFTA: A Thematic Comparison with the Dispute Settlement Rules of the WTO", in: Petersmann, International Trade Law and the G'ATT/WTO, see note 16, 487, 534 et seq.


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tion awards by municipal courts.28 The conclusion of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States was promoted by the World Bank so as to enhance and protect the flow of foreign investment into developing countries; this Convention set up the ICSID and, by 1997, was signed by 143 states. The 1965 Convention on the Settlement of Investment Disputes, and the 1978 Additional Facility Rules for disputes involving parties which are not a member country or a national of such a member country, give private investors direct access to international arbitration proceedings under the supervision of ICSID if the host state has consented (e.g. in its national foreign investment law or in an "ICSID clause" contained in an international investment treaty with the foreign investor or with its home state) to submit the specific "legal dispute arising directly out of an investment" (article 25 para. 1) to arbitration under ICSID or its Additional Facility. Article 42 of the 1965 Convention provides for the "internationalization" of the substantive law applicable to ICSID arbitration: "(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable." Even if the parties have chosen the national law of the host state as applicable law, ICSID tribunals have still subjected the national law to control by international law which will prevail in case of conflict. This primacy of international law enhances the recognition and enforcement of ICSID awards in all ICSID member states (cf. article 54). In practice, about some 20 ICSID member countries have consented to ICSID arbitration in their national investment legislation; in addition, there are about 900 bilateral investment treaties and also multilateral treaties (such as NAFTA, Mercosur and the 1994 Energy Charter Treaty) containing provisions on ICSID arbitration. The number of recourses to ICSID arbitration (48 by the end of 1997) and ICSID conciliation procedures (3 by 1997) remains, nonetheless, limited. One of

28

Cf. R. Bruno, Access of Private Parties to International Dispute Settlement: A Comparative Analysis, Harvard Jean Monnet Working Paper 13/97, 73 et seq.

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the reasons for this seems to have been the controversial use of the "annulment procedures" provided for in article 52.29 ICSID's recognition and effective protection of substantive and procedural individual rights of investors offers a unique model for strengthening international law and dispute settlement procedures for the benefit of individuals, without the many disadvantages of the classical international law rules on diplomatic protection. Empowering private investors to defend and protect their property rights through international arbitration, rather than merely through national and diplomatic remedies, reflects the constitutional insight that the effectiveness of substantive individual rights depends on complementary procedural rights and on individual access to national and international dispute settlement mechanisms. Investor-state ICSID arbitration could also serve a useful role in WTO Agreements on the protection of private rights, such as the WTO Agreements on Trade-Related Investment Measures (TRIMS) and Trade-Related Intellectual Property Rights (TRIPS); it is only in the WTO Agreement on Preshipment Inspection that WTO law has so far enabled direct private access to international private arbitration in the WTO. The WTO dispute settlement system has overcome certain disadvantages of traditional inter-state dispute settlement procedures, such as the customary law requirement of prior exhaustion of local remedies in case of diplomatic protection; granting holders of property rights direct access to WTO-or ICSID-arbitration procedures could further strengthen individual rights and depoliticize WTO dispute settlement mechanisms. b) Private Remedies Under the Dispute Settlement Mechanisms of the Law of the Sea Convention Article 279 of the 1982 UN Convention on the Law of the Sea requires States Parties to "settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end,... seek a solution by the means indicated in Article 33, paragraph 1 of the Charter." States Parties thus remain free "to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own

29

Cf. D. Caron, "Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction Between Annulment and Appeal", ICSID Review 7 (1992), 21.


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choice" (article 280). The Law of the Sea Convention goes, however, far beyond the dispute settlement methods of the UN-Charter by prescribing compulsory dispute settlement procedures entailing binding decisions (cf. article 286 et seq.). One characteristic feature of these compulsory dispute settlement procedures is the freedom of states to choose between the jurisdiction of the International Tribunal for the Law of the Sea, the ICJ, an arbitral tribunal constituted in accordance with Annex VII, or a special arbitral tribunal constituted in accordance with Annex VIII of the Law of the Sea Convention (cf. article 287). These dispute settlement procedures are limited to States Parties and international organizations (cf. Annex IX), and are admissible "only after local remedies have been exhausted where this is required by international law" (article 295). Another innovative feature of the dispute settlement provisions of the Law of the Sea Convention is to open the access to the Tribunal for the Law of the Sea to non-state entities, like international organizations and natural or juridical persons which enjoy rights concerning maritime activities that are protected by the Convention.30 The special provisions for the settlement of disputes relating to "the area" provide for compulsory jurisdiction by the Sea-bed Disputes Chamber of the International Tribunal for the Law of the Sea, or by binding commercial arbitration, for disputes involving non-state parties, such as "the enterprise, state enterprises and natural or juridical persons" (article 187). Article 190 para. 2 prescribes that, "(i)f an action is brought against a State Party by a natural or juridical person sponsored by another State Party in a dispute referred to in article 187, subparagraph (c), the respondent State may request the State sponsoring that person to appear in the proceedings on behalf of that person."

6. Why Are International Economic Law Remedies Comparatively Effective? Economic, Political and Legal Reasons Why is it that compulsory jurisdiction, appellate review procedures and private access to international arbitration have been accepted in worldwide and regional economic law but continue to be resisted by governments in most other areas of international law? What lessons are to be 30

Cf. R. Wolf rum, "The Legislative History of Article 20 and 21 of the Statute of the International Tribunal for the Law of the Sea", Rabels Zeitschrift 63 (1999), 342 et seq.

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drawn from the fact that, at least at the regional level, economic integration law has facilitated a progressive extension of international compulsory jurisdiction and judicial control to non-economic subject matters, such as human rights, "visas, asylum, immigration and other policies related to the free movement of persons" (cf. the new article 68 of the ECT as revised by the 1997 Amsterdam Treaty), and "police and judicial cooperation in criminal matters" (cf. the new arts 35 and 40 of the ECT, as well as the new article 11 of the ECT, as revised by the Amsterdam Treaty)? Why has it so far not been possible, even within European integration law, to provide for compulsory judicial review of the EU's "common foreign and security policy" (cf. the new article 46 of the ECT) and to go beyond the conciliation and only optional and subsidiary arbitration procedures in the OSCE (cf. article 19 of the 1992 OSCE Convention)?. a) Economic and Political Reasons for the Increasing Role of Judicial Review in International Economic Law Economic and political theory offer a number of reasons why governments often find it politically easier to accept compulsory adjudication and judicial protection of individual rights in international economic relations than in other fields of international law (such as border disputes and UN human rights law).31 For instance: aa) There is worldwide agreement among governments that reciprocal trade liberalization is a mutually beneficial, welfare-increasing "positive sum game". Also export industries and domestic consumers strongly support liberal trade agreements and judicial dispute settlement. Border disputes, by contrast, risk to be perceived as "zero-sum games" in which the more powerful country should use its relative power so as to impose its territorial claims on the weaker country. bb) International economic transactions involve the exercise of individual rights (e.g. freedom of contract) and the transfer of such rights (e.g. property rights in the sold goods). Legal security and adjudication are obviously beneficial in this area because e.g. they reduce transaction costs. Hence, both the European Union and the United States have introduced domestic procedures under which export industries can petition the government to challenge the market access restrictions of for31

Cf. E.U. Petersmann, "National Constitutions and International Economic Law", in: M. Hilf, E.U. Petersmann (eds), National Constitutions and International Economic Law, 1993, 3 et seq., (46).


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eign governments through international adjudication (e.g. in the WTO). In the field of political human rights, by contrast, governments tend to view human rights disputes as a matter of primarily domestic jurisdiction; even in the ECHR, governments have challenged the human rights practices of other governments through inter-state adjudication only very rarely. cc) Just as no country is rich enough to forego the welfare gains from participation in the world trading system based on WTO law, almost all governments in Europe consider membership in the European Union as essential for maximizing their national welfare. Both the WTO and European integration are based on "package deal negotiations" which have induced governments to accept international guarantees of compulsory adjudication and judicial protection of individual rights (e.g. intellectual property rights protected by the WTO's Agreement on TRIPS) which many governments had rejected in preceding "single subject negotiations" (e.g. on protection of intellectual property rights in WIPO). dd) Within national democracies, the separation of powers between parliaments and courts often induces the latter to exercise judicial selfrestraint in the judicial interpretation and application of parliamentary laws. In international organizations, however, the absence of international parliaments offers an additional justification for "judicial activism" of e.g. the ECJ and the WTO Appellate Body in defending international guarantees of freedom, non-discrimination and rule-of-law against governmental protectionism. Most national parliaments have ratified the European Community and WTO Agreements without granting powers to the executive to violate these international treaty guarantees of transnational freedom and non-discrimination. Judicial activism in defending these agreed guarantees of freedom and nondiscrimination can therefore claim not only legal but also democratic legitimacy for the benefit of domestic citizens. ee) Liberal trade and market integration, like democracy, focus on maximizing individual consumer welfare through legal guarantees of freedom, non-discrimination and rule of law. It is increasingly obvious for citizens and governments that the advantages of liberal international economic agreements, such as rule of law and "democratic peace" (e.g. in Europe and NAFTA), go far beyond the economic area. While the strengthening of human rights law is often opposed by non-democratic governments at the UN level, American and European regional integration law have succeeded in prompting almost all American and European states to accept the American and European human rights conven-

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tions as a necessary condition for the benefits of other areas of regional cooperation. As predicted in Kantian legal theory more than 200 years ago, international agreements among constitutional democracies and cosmopolitan transnational integration law have proven to be the most effective tools for the progressive constitutionalization of the authoritarian classical international law and its Westphalian system of power politics. b) Progressive "Constitutionalization" of European Integration Law: Constitutional Functions of Judicial Review In most states, human rights and access to justice (habeas corpus) were secured only after "glorious revolutions", civil wars and other struggles by citizens in defence of their rights against abuses of power ("Kampf urns Recht" as described by Savigny}. At the national level, the progressive limitation of abuses of executive and legislative government powers led to the constitutional insight that human rights, in order to be effective, need to be supplemented by complementary constitutional guarantees for a "government of laws, not of men" (as stated in the 1780 Constitution of Massachusetts), such as separation and only limited delegation of powers, access to courts and judicial protection of fundamental rights. Constitutionalism has proven to be the most successful strategy for achieving rule of law, democratic peace and judicial protection of fundamental rights. Independent courts have proven to be the "least dangerous" branch of government, a necessary "check and balance" for containing political power and for protecting the citizens against their rulers. Judicial protection of fundamental rights and of other constitutionally agreed limitations on government serves also important democratic functions. At the European level, both the Statute of the Council of Europe (e.g. article 3) and the 1992 Maastricht Treaty (e.g. article F) commit member countries to rule of law and protection of human rights. In both the Council of Europe and the European Union, these requirements are construed to imply that only countries with a democratic constitution and with parliamentary legislation may join the Council of Europe or the European Union, and only if they accept the compulsory jurisdiction of the European Court of Human Rights and of the ECJ, respectively. As predicted by Kantian legal theory, the constitutional commitments to rule of law and protection of human rights at home and abroad enabled "democratic peace" over a longer period than ever before in Europe. Both the ECHR (e.g. arts 6, 13; Protocol 11) as well


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as European Community law (e.g. arts 173, 177 ECT) guarantee individual access to national and international judicial remedies for the protection of individual rights; this enabled the European courts to construe the ECHR as well as the EC Treaty as "constitutional charters" based on rule of law, democratic peace, fundamental rights and their judicial protection. In the case-law of the ECJ, the interrelationships between human rights guarantees (e.g. for fair and public judicial proceedings within reasonable time limits, procedural and substantive rights of defence) and judicial protection of economic freedoms were duly taken into account. Many other areas of ECJ jurisprudence, for instance on state responsibility and responsibility of the European Community for reparation of injuries, were likewise influenced by human rights guarantees for effective remedies and "equitable satisfaction" (cf. article 50 ECHR). Both the ECJ and the European Court of Human Rights have given the principle of rule of law, as well as other "general principles of law" (such as legal security, proportionality, protection against arbitrary abuses of public power, the "right to a judge", the prohibition of a "denial of justice"), much more precise legal meaning, also in relations vis-a-vis individual citizens, than seems to have been done so far in the inter-state jurisprudence of the ICJ. Since the member states of the European Union, EFTA, EEA and the OSCE have accepted the European Convention on Human Rights and other agreements of the Council of Europe, the national and international courts and jurisprudence in the European Community, EFTA and Council of Europe are promoting a progressive "cross-fertilization" and integration of human rights law, constitutional law and European economic law. This "constitutional jurisprudence" derives democratic legitimacy from the fact that it reinforces the protection of human rights and rule of law across frontiers for the benefit of the citizens. c) Constitutional Problems of Judicial Review: Can the "International Economic Law Revolution" Serve as a Model for the Necessary Constitutionalization of International Law? The 1948 Universal Declaration of Human Rights explicitly recognizes that human rights must be protected by "the rule of law" and must include individual rights to effective judicial remedies (article 8). Yet, neither general international law nor the UN-Charter and 1966 UN human rights covenants provide for compulsory adjudication of international disputes and do not offer effective safeguards against violations of hu-

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man rights. UN law thus lacks the means of securing the rule of international law. The lack of effective protection of human rights also entails a "democracy deficit" of UN law which risks to undermining the UN-Charter's claim to legal priority over other international agreements (cf. Article 103 of the UN-Charter), including the legitimacy of the ICJ (e.g. in view of its tendency to apply UN resolutions as indications of international law). In contrast to the frequent references to rule of law and other constitutional principles in the jurisprudence of the EC, EFTA and ECHR Courts, the jurisprudence of the PCIJ and ICJ has only rarely referred to human rights and constitutional principles of rule of law and democracy;32 the "general principles" of international law (such as state sovereignty) are too often construed in a poweroriented manner (e.g. focusing on the effectiveness of governments rather than on their democratic legitimacy) rather than as human rights standards. Notwithstanding the claim of international law that a state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty" (cf. article 27 of the Vienna Convention on the Law of Treaties), national parliaments and courts often refuse to recognize the primacy of international law rules over domestic legislation and prefer to apply the "later in time rule" in favour of legal primacy of later domestic legislation, even if it is inconsistent with prior international obligations.33 In national constitutional systems where "treaties ... shall be the supreme law of the land" (article VI cl.2 US Constitution), the logic of Chief Justice Marshall's reasoning in Marbury v. Madison (1803) — that if the Constitution is to be higher law, judges must be bound to apply it over conflicting ordinary legislation — could have been applied also to international law.34 Yet, as illustrated by European integration law, distrust by national parliaments and courts vis-a-vis international

32

33

34

Cf. Schwebel, see note 15; J.Y. Morin, "L'Etat de droit: 1'emergence d'un principe du droit international", RdC254 (1994), 9 et seq., (28). See e.g. T. Franck, G.H. Fox (eds), International Law Decisions in National Courts, 1996. There is a long tradition of US cases in which US courts ignored international law or even interim orders of the ICJ (as in the 1998 "Paraguay Case"). Cf. e.g. L. Henkin, Constitutionalism, Democracy and Foreign Affairs, 1990, 64: "The equality of statutes and treaties ... is not... what the framers intended and seems not to satisfy either democratic principle or international need. Democracy does not require the supremacy of laws over treaties, or even their equality, if the treaty power is itself democratic."


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law is likely to continue as long as international law does not more effectively protect human rights, democracy and rule of law. The modern "international economic revolution" offers, nonetheless, important lessons for the necessary "constitutionalizatiton" and strengthening of UN law.35 The more than 30.000 pages of frequently precise and unconditional international guarantees of freedom, nondiscrimination and rule of law in WTO law, and the even more comprehensive guarantees of market freedoms and rule of law in European and North American integration law, go far beyond the protection of citizen rights in domestic laws. There are many other reasons why governments were willing to render these international guarantees of freedom, nondiscrimination and rule of law effective through national and international compulsory adjudication: aa) Liberal international economic rules serve "democratic functions" by protecting individual freedom (e.g. of consumers, traders and producers), non-discrimination and transparent discussion (e.g. insofar as markets operate as spontaneous information mechanisms and "democratic dialogues" about the valuation of scarce goods, services, investments and labour); they are thus politically more legitimate than many power-oriented rules of international law. bb) The "due process guarantees", for instance in WTO law, European Community law, EEA law and NAFTA law, for national and international judicial review by independent courts confer additional legal legitimacy on this integration law. The availability of appellate review, notably in the WTO and EC legal systems, reduces the risks of "wrong" judgments. cc) Since the WTO, EC, EEA and NAFTA agreements were all negotiated and concluded as "package deals", countries had no choice of "opting out" of the compulsory dispute settlement systems, as they have frequently done vis-a-vis the ICJ and the optional protocols to UN human rights instruments. dd) The worldwide and regional international economic law guarantees of non-discriminatory market access and judicial protection of individual rights (such as the intellectual property rights protected by the TRIPS Agreement) are obviously beneficial for traders, investors and consumers; they tend to enjoy strong political support from export industries and other powerful institutions (such as national and interna35

Cf. E.U. Petersmann, "How to Reform the United Nations: Lessons from the International Economic Law Revolution", UCLA J.Int'l.L.& Foreign Aff. 2 (1997-98), 183 et seq.

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tional banks, including the World Bank Group and the IMF). UN human rights instruments, by contrast, are often resisted not only by nondemocratic governments but also within democracies if the national human rights standards and domestic laws are considered to be more precise and better justiciable. ee) Free trade and common market rules tend to be formulated as justiciable "obligations of conduct" that have been progressively clarified through national and international jurisprudence. The UN rhetoric on the interdependence and indivisibility of economic and other human rights, by contrast, has not become a legal reality in most UN member states where the "programmatic" nature of certain economic and social rights in the ICESCR is sometimes invoked so as to refuse judicial protection of so-called "obligations of result".

III. Ten Lessons for Strengthening International Dispute Settlement in UN Law and Regional International Law Part II. of this article has shown that worldwide liberal economic agreements (like the WTO Agreement) and regional integration agreements among democracies (e.g. in the European Community, EEA and NAFTA) have protected economic freedom and property rights more effectively — notably by means of international guarantees of freedom, non-discriminatory market access, rule-of-law and compulsory adjudication at the national and international level — than the UN-Charter and the 1966 UN human rights covenants. International economic law and European integration law offer important lessons for the necessary reforms of the legal and dispute settlement system of the UN and other regional organizations:

1. Need for Democratic Legitimacy and Justiciability of International Rules Perhaps the most important lesson from the WTO, European Community, EEA and NAFTA dispute settlement systems is the need for democratic legitimacy and political support of the applicable rules. Worldwide compulsory adjudication appears politically acceptable only in respect of precise and unconditional rules with a high degree of democratic legitimacy and clear advantages for governments and their


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citizens. Worldwide and regional liberal trade rules, such as those in WTO law and regional free trade areas and customs unions pursuant to GATT Article XXIV, are based on precise and unconditional guarantees of freedom, non-discrimination and rule-of-law which are a precondition for a mutually beneficial division of labour across frontiers; they offer obvious advantages for the freedom, non-discrimination, legal security, peaceful cooperation and individual welfare of traders, producers, investors and consumers all over the world. European integration law confirms that political support for compulsory international adjudication is easier to achieve in the area of economic transaction law (e.g. in view of its obvious advantages for traders and investors) and in human rights law (e.g. in view of the limited nature of most private complaints and the rareness of inter-state complaints) than in more politicized areas of "international status law" (e.g. border disputes) and of discretionary foreign policy. The legal and dispute settlement systems of UN law and of other areas of international law should therefore — as in WTO law, the European Union and in the Council of Europe — be more clearly based on guarantees of individual freedom, non-discrimination and rule of law in order to be democratically legitimate. Since "democracies don't fight each other", and many international conflicts are triggered by non-respect for human rights, strengthening international human rights and access to courts remains the most important conflictavoidance strategy.

2. Need for Compulsory International Adjudication WTO law and European integration law are based on the constitutional insight that protection of individual rights and rule-of-law require compulsory judicial protection at the national and international level. Without access to impartial courts, human rights and rule-of-law cannot prevail. Without compulsory jurisdiction for third-party adjudication of international disputes, also the UN and the ICJ cannot ensure the rule of law. Since the UN-Charter provides neither for parliamentary rulemaking nor for democratic control of the executive powers of e.g. the UN Security Council and the UN General Assembly, judicial protection of human rights can contribute — as in the European Community and in the European Convention on Human Rights — to the necessary "democratization" and constitutionalization of the law of international organizations. The "democracy deficit", and the absence of effective separation of powers in the UN's institutional framework, make judicial control of the constitutionality of "secondary UN law" even more nee-

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essary. WTO law and EC law indicate that the risks of compulsory international adjudication can be limited by international appellate review. WTO law, European Community law and the law of the Council of Europe (where Protocol No. 11 to the ECHR has made the right of individual petition mandatory only after more than 45 years since the entry into force of the ECHR) further indicate that compulsory international adjudication can only progressively be extended beyond the areas of human rights law and international economic law.

3. Need for a "Constitutional Strategy" The experience of WTO law clearly shows the political possibility of introducing compulsory adjudication and appellate review on a worldwide level through "constitutional reforms". Yet, the necessary "constitutionalization" and "democratization" of the UN-Charter, such as the introduction of worldwide compulsory jurisdiction of the ICJ, cannot be achieved through the amendment procedures pursuant to Arts 108 and 109 UN-Charter. Following the model of the replacement of "GATT 1947" by the WTO Agreement with compulsory jurisdiction and appellate review, the 1945 UN-Charter may need to be supplemented among constitutional democracies by a new UN Constitution based on UN human rights covenants, "democratic peace" and compulsory adjudication by the ICJ. As in the case of the WTO Agreement and "GATT 1947", such a new UN Constitution could temporarily coexist with the "UN 1945"; it must offer such economic and other advantages, especially to less-developed countries, that states find it more beneficial to commit themselves to the necessary democratic and legal reforms than to face the risk of being excluded from the new UN.

4. European Integration Law as a Model for Regional Constitutional Reforms The progressive "constitutionalization" of, and compulsory adjudication in European integration law should serve as a model for regional integration law, for instance in North and Latin America. Just as the ECHR and the common constitutional traditions of EC member states served as standards for the judicial recognition of constitutional guarantees of rule of law and effective judicial remedies in European integration law, the American Convention on Human Rights and the com-


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mon constitutional traditions (e.g. of NAFTA countries) could assist in "constitutionalizing" the NAFTA Agreement and in extending its compulsory dispute settlement mechanisms to additional fields of cooperation and additional constitutional standards of judicial review.

5. Need for Integrating Political and Legal Dispute Settlement Mechanisms Political and legal dispute settlement mechanisms must be integrated, as e.g. in WTO law and EC law. Compulsory international adjudication has important conflict-preventing functions by inducing governments to accept, prior to or during recourse to adjudication, rules-based dispute settlements. The UN Security Council should more actively use its power to refer international disputes to the ICJ and to other international courts (such as the new International Criminal Court).36 And the UN Specialized Agencies (notably the World Bank Group) should use their development and technical resources for assisting developing countries in the international mediation of disputes involving developing countries (e.g. IBRD financial and technical assistance for mutually beneficial dispute settlement projects and democratic and legal reforms). There is also clear evidence that the enforcement of international judgments can be made more effective through systematic supervision by political bodies (such as the WTO Dispute Settlement Body, the EC Commission, the ECHR Committee of Ministers, the UN Security Council).

6. Need for Creating a Transnational Legal Community with Rights of Action and Access to Courts by Non-State Actors Outside international transaction law (e.g. concerning foreign investments), states remain reluctant to initiate court proceedings against other states for fear of jeopardizing bilateral relationships or being exposed to reciprocal complaints. The assumption underlying the limitation of the ICJ's jurisdiction ratione personae to interstate disputes — that human rights will be defended by governments and do not warrant direct citizen access to the ICJ — is clearly inconsistent with practical 36

Cf. in this respect, A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.

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experience (e.g. that governments have only very rarely invoked human rights in ICJ proceedings or initiated interstate complaints under human rights treaties that permit such complaints). WTO law and regional economic law suggest that creating a transnational legal community, with rights of action and access to courts by non-state actors, offers the most effective strategy for increasing the effectiveness of international rules and for "depoliticizing" international adjudication. For instance, the EC Commission's right of access to the ECJ, the EC citizens' direct access to national and international courts, or the right of national judges to request preliminary rulings by the ECJ on the interpretation of EC law and the validity of EC secondary law, have set incentives for independent institutions, judges and citizens to act as guardians of the rule-of-law in European integration. Also in GATT and the WTO, most disputes are initiated at the request of private industries which invoke, directly or indirectly, the international GATT/WTO guarantees of freedom, non-discrimination and rule of law in their favour and request governments to comply with and enforce the international rules. By protecting the substantive and procedural rights not only of states but also of non-state actors, and by promoting cooperation among national and international institutions and courts, "functional integration" based on "constitutional guarantees" of freedom, nondiscrimination and judicial protection of rule-of-law can set strong incentives for a transnational community of law also outside the economic area (notably in human rights law), thereby inducing private citizens, lawyers, judges and government officials to cooperate in the enforcement of liberal international rules. In both American and European human rights law and economic integration law, for instance, private access to international courts (such as the American and European Courts of human rights, the ECJ, EEA Court and NAFTA panels) has been much more actively used than traditional inter-state complaints. It was mainly through private complaints to the ECJ and to the ECHR Commission, and through preliminary rulings by the ECJ in cooperation with national courts, that international law has become successfully constitutionalized and democratized in European integration — enabling a unique period of more than half a century of "democratic peace" with more individual freedom than ever before among European states. Similarly, UN law and regional integration law (e.g. in North America) should promote access to courts by non-state actors so as to increase the incentives for rule-compliance (e.g. a right of the UN Secretary-General to request Advisory Opinions by the ICJ, citizen rights to invoke the UN human rights covenants before national and interna-


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tional courts and UN bodies). Participation of non-state actors is a precondition for building a "community of law" among private citizens, lawyers, judges and other sub- and supra-national legal actors which interact and cooperate in treating international disputes as legal rather than political problems.37

7. Need for Cooperation Among International and National Courts In international economic law, "cooperation among international courts" has been recognized as an important tool for promoting an international "community of law" (see e.g. the frequent references to ICJ judgments in the case-law of the WTO Appellate Body, the references to GATT jurisprudence in the dispute settlement reports of the CanadaUnited States FTA Panels, or the references by the ECJ to decisions of the European Court of Human Rights and of the ICJ). The ICJ should follow this example, for instance by interpreting the general principles of international law in the light of the human rights jurisprudence of international human rights courts and of UN human rights bodies (e.g. the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, or the Committee against Torture which are authorized to hear claims by governments or private parties against other governments).38 International "rule-of-law" and effective international adjudication also require better cooperation between international and national courts, for example so as to limit judicial self-restraint based on "political-question doctrines", "act-of-state doctrines", "non-self-executingtreaty doctrines" or "later-in-time legislation" inconsistent with international law. Both "horizontal" and "vertical" cooperation among courts can "reinforce each other's legitimacy and independence from

37 38

Cf. Heifer, Slaughter, see note 8, 368-369. It is important to clarify, for instance, that the classical international law presumption that limitations on government powers are not readily to be presumed, does not apply vis-a-vis citizen rights: human rights treaties and European integration law rightly proceed from the opposite principle that limitations of individual freedom and human rights require legal justification and may not go beyond what is "necessary in a democratic society" (cf. arts 12, 18, 19, 21, 22 ICCPR) and "proportionate" for achieving a public interest.

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political interference" and promote the needed "global conception of the rule of law".39 The close cooperation between the ECJ and national courts has been systematically promoted in many ways, for instance by regular contacts between EC judges and national judges and training programs for national judges on European Community law. Similar contacts and programs need to be developed for familiarizing national judges with the ICJ and human rights courts, even in the absence of direct citizen access to international courts and without a provision similar to article 177 ECT on international preliminary rulings at the request of national courts.

8. Need for Legal and Judicial Limitations on the Right to Unilateral Reprisals The legal limitations in WTO law and EC law of the right to unilateral counter-measures go far beyond general international law and UN law. Just as the implementation of WTO dispute settlement rulings is under systematic "surveillance" by the WTO Dispute Settlement Body, and the EC Commission watches over the implementation of ECJ rulings on infringements of EC obligations by member states, the UN Security Council should keep under systematic multilateral surveillance the domestic implementation of ICJ judgments. As suggested by the ILC in its draft articles on state responsibility,40 the right to unilateral countermeasures must be limited — as in WTO law and European Community law — by substantive legal disciplines and third-party adjudication.

9. Need for Comparative Analyses of the Different Procedures Practised by International Courts Notwithstanding the many differences between the legal status, substantive law and procedures to be applied by the ICJ, on the one side, and e.g. the WTO Appellate Body and the ECJ, on the other side, comparative analyses of the procedures and dispute settlement practices of these international bodies are needed in order to examine, for instance, why the written and oral dispute settlement proceedings before the ICJ

39 40

Cf. Heifer, Slaughter, see note 8,282. ILM 37 (1998), 440.


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last so much longer than panel and appellate review proceedings in the WTO (e.g. the time-lapse between the close of the written proceedings and the opening of oral hearings; the two rounds of oral proceedings which are limited in WTO practice to 1-2 days each, but tend to last many weeks in the ICJ); why intervention by third states is a regular feature in WTO and EC dispute settlement proceedings, but plays hardly any role in the ICJ; why WTO dispute settlement procedures are more open for amicus cttriae submissions by non-governmental organizations than the very restrictive ICJ practice in this respect; whether and how international courts should encourage a negotiated dispute settlement in the course of the court proceeding; why ad hoc chambers ("divisions") are regularly used in the WTO Appellate Body and enable its seven part-time judges to decide more disputes per year than the ICJ; or whether the reluctance on the part of the ICJ to exercise appellate review over arbitral awards needs to be reconsidered.41 Such comparative analyses could suggest reforms of the ICJ's procedures and working methods (e.g. the limitation of a "day in court" to 3 hours per day, minus a coffee break; the lengthy and costly elaboration of "notes" of up to 100 pages by each of the 15 ICJ judges) and could help to improve the functional capacity of the ICJ. For instance, even though neither the WTO dispute settlement procedures nor the ECJ procedures prohibit individual opinions, the WTO Appellate Body and the ECJ have so far disallowed individual separate or dissenting opinions so as to strengthen the authority of their decisions, insulate individual judges from political pressures, and avoid delays resulting from individual opinions. The proliferation of separate and dissenting opinions in the practice of the ICJ, by contrast, seems to delay the ICJ's procedures and sometimes to weaken the authority of ICJ decisions. Comparative analyses of international court procedures (e.g. for preliminary objections, requests for preliminary measures, default of appearance by one of the parties) could no doubt also help the periodic reviews of the still very imperfect WTO dispute settlement system to prepare additional reforms.

41

Apart from the very special ICJ advisory opinions on appeals from the UN and ILO administrative tribunals, there have been so far two requests, in the King of Spain Case (ICJ Reports 1960, 192) and in the Guinea-Bissau v. Senegal Case (ICJ Reports 1991, 53), in which a state asked the ICJ to overturn a previous arbitral award. In both cases, the ICJ confirmed the validity of the arbitral award and manifested great reluctance to set them aside on grounds of excess of powers or insufficiency of reasoning.

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10. Need for American and European Leadership for "Constitutionalizing" UN Law Compulsory judicial protection of freedom, non-discrimination and rule of law would have never been achieved in WTO law and European integration law without strong leadership from constitutional democracies. After having "exported" the authoritarian model of the "sovereign state" and "European public law" to all continents without much respect for human rights, and after having succeeded in constitutionalizing modern European integration law, the EU should "lead by example" initiatives for the overdue "democratization" of UN law. The 1997 Amsterdam Treaty defines the objectives of the EU's "common foreign and security policy" in terms of "to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms"... "in accordance with the principles of the United Nations Charter" (article J.I). Parallel to the increasing number of guarantees of human rights and democracy in the internal law of the European Union,42 "human rights clauses" and "democracy clauses" have also been included into more than 50 international trade, association and development agreements concluded by the European Community with third states.43 European history has made abundantly clear that the EU's objective of a "common foreign and security policy covering all areas of foreign and security policy" cannot be achieved unless the foreign policies of the EU and its member states are based on respect for human rights and international law, on active participation of the EU in international organizations, and on judicial protection of the rule of law not only within the European Union but also in its international relations with third states.

IV. Need for a Constitutional Theory and Strategy for Strengthening the UN Legal and Dispute Settlement System Can the UN be reformed? Tommy Koh, Singapore's ambassador to the UN for more than three decades and chairman of numerous UN con-

42 43

L. Betten, N. Grief, EU Law and Human Rights, 1998. B. Brandtner, A. Rosas, "Human Rights and the External Relations of the EC: An Analysis of Doctrine and Practice", EJIL 9 (1998), 468 et seq.


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ferences, has qualified his positive answer to this question by two major caveats: "My first caveat is that no amount of reforming can realize the two central goals of 1945 which are enshrined in the UN-Charter, i.e. that disputes between states would be settled by peaceful means and that international peace and security would be maintained by the Security Council.... The reality of international politics leads me to the conclusion that those goals cannot be realistically achieved in the future. My second caveat is that we should have no illusions about the formidable vested interests, both in the Secretariat and in the delegations of member states, which will oppose any reform which impinges on their interests. This unholy alliance has succeeded in defeating all previous attempts at reforming the United Nations."44 One hundred years after the 1899 Hague Peace Conference and the Hague Convention on the Peaceful Settlement of International Disputes, access to courts and third-party adjudication of international disputes are more widely guaranteed, and much more frequently used, in worldwide economic law and European integration law than in UN law and other areas of international law. The WTO and European Community legal and dispute settlement systems are also open for non-state actors and for the protection of individual rights (such as the intellectual property rights protected by the WTO Agreement on TRIPS). The 1999 centennial of the Hague Peace Conference and the closing of the UN Decade of International Law offer appropriate occasions for identifying areas where the UN legal and dispute settlement system needs to be strengthened. No less important is the need to recognize that proposals e.g. to permit private citizens direct access to the ICJ, or to provide for preliminary rulings by the ICJ at the request of national courts, are at risk of being opposed by the very same governments which currently oppose the strengthening of human rights in UN law and compulsory jurisdiction of the ICJ. Hence the need for a more comprehensive constitutional theory and strategy for strengthening the UN legal and dispute settlement system not only vis-a-vis states but also for the benefit of individual citizens and other non-state actors (like the people of Namibia and of East Timor who, in the 1971 Namibia Case and 1995 East Timor Case in the ICJ, had neither standing to intervene nor a right to present amicus curiae briefs). Failure to take into account the interests of individuals and other non-state subjects of international law (like the European Community) risks rendering the UN legal and dispute set-

44

T. Koh, The Quest for World Order. Perspectives of a Pragmatic Idealist, 1998, 27.

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tlement system even less revelant for many actors in international relations. As indicated above, effective protection of human rights, and the declared UN objective of "the rule of law among nations",45 cannot be achieved without access to courts and compulsory third-party adjudication at the national and international levels. "Realists" perceive the absence of "rule of law" and of compulsory judicial protection in the UN legal and dispute settlement system as normal in view of the poweroriented nature of many areas of UN law. "Idealists", however, rightly emphasize the need for actively promoting "democratic peace", as well as the historical possibility, proven by European integration law and WTO law, to design "constitutional strategies" for replacing poweroriented dispute settlement systems by judicial protection of the international rule of law. The acceptance of compulsory international adjudication in the worldwide WTO legal and dispute settlement system, as well as in regional European integration law and the Council of Europe, was made politically possible through the following three insights of constitutional theory:

1. Taking Human Rights and Rule of Law more Seriously: Need for "Democratization" of UN Law The WTO Agreement has brought citizens all over the world more freedom, non-discrimination and economic welfare gains (e.g. in terms of tax savings and increased real income) than probably any other international treaty. Also EC law and the ECHR were legitimized not only by their ratification by national parliaments but also by their "democratic functions" to protect and extend individual freedom, nondiscrimination and judicial review for the benefit of European citizens across national frontiers.46 The UN-Charter's claim to legal primacy (cf. Article 103) over all other international and national law will remain contested as long as UN law does not protect human rights, democratic peace and third-party adjudication of international disputes more effec45

46

Quoted from the preamble to the UN 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/2625 (XXV) of 24 October 1970, reproduced e.g. in: I. Brownlie, Basic Documents in International Law, 4th edition, 1995, 36. Cf. Petersmann, see note 18, Chapter VII.


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lively. As within constitutional democracies, the worldwide recognition of human rights entails that the classical international law principle of pacta sunt servanda may no longer be a sufficient basis for the "rule of international law" if the international rules do not protect human rights and democratic peace. As explained in Kantian legal theory more than 200 years ago, the authoritarian "international law of coexistence" and "international law of cooperation"47 need to be supplemented by "international constitutional law" and "cosmopolitan integration law" designed to protect human rights, rule of law and democratic peace more effectively. Just as the constitutional theories (e.g. on parliamentary democracy) for nation states could not be transplanted to the level of EC law without far-reaching adjustments,48 the necessary elaboration of a "UN constitutional law" requires taking into account the structural differences between constitutional democracies and international organizations with necessarily limited powers and with different institutional systems for democratic participation and constitutional "checks and balances".49 Depicting the UN as an emerging constitutional system with legislative, executive and judicial powers similar to constitutional democracies is misleading and illustrates the "constitutional deficit" of traditional international law doctrines.

2. Need for "Constitutional Package-deals" behind a "Veil of Uncertainty" Constitutional theory emphasizes that agreement on long-term rules on equal freedoms and rule-of-law is easier to achieve behind a "veil of ignorance" (J.Rawls) which, by making it difficult to identify the redistributive effects of alternative rules, reduces the incentive for egoistic "strategic choices" among rules for one's own advantage and enhances 47

48

49

On this distinction see: W. Friedmann, The Changing Structure of International Law, 1964. E.U. Petersmann, "Proposals for a New Constitution for the European Union: Building-blocks for a constitutional theory and constitutional law of the EU", Common Market Law Review 32 (1995), 1123 et seq. Id., "How to Constitutionalize the United Nations? Lessons from the "International Economic Law Revolution", in: V.Gotz, P.Selmer, R.Wolfrum (eds), Liber amicorum Giinther Jaenicke-Zum 85. Geburtstag, 1998, 313 et seq.

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the willingness to accept long-term constitutional guarantees of freedom, non-discrimination, fair procedures and rule-of-law.50 In the Uruguay Round of multilateral trade negotiations in GATT, for instance, it was recognized that compulsory international adjudication could not be introduced by means of "amendments" of GATT 1947 pursuant to GATT Article XXX, but only by replacing the GATT 1947 by a new "WTO Constitution" and by excluding countries from the WTO world trade and legal system unless they accept the whole "Uruguay Round package deal", including the WTO's dispute settlement system based on compulsory jurisdiction and quasi-judicial panel and appellate review. UN lawyers do not render the UN legal system a service by ignoring that the necessary "democratization" and "constitutionalization" of the UN-Charter cannot be brought about through amendments pursuant to Arts 108 or 109 UN-Charter. The UN-Charter's failure of inducing all UN member states to voluntarily accept the compulsory jurisdiction of the ICJ, like other "constitutional failures" of UN law, can be overcome only through a "new UN Constitution" that offers a mutually beneficial package deal with such advantages to UN member states (e.g. in terms of economic assistance from the IMF and World Bank Group for democratic reforms) that governments find it more advantageous to commit themselves to democratic reforms and compulsory ICJ adjudication of international disputes than face the alternative of being excluded from a "new UN".51 Just as the old GATT 1947 coexisted during a transitional period with the new WTO, the "UN 1945" and a democratic new UN Constitution could coexist and complement each other until the guarantees of a new UN constitution for human rights, democratic peace and compulsory jurisdiction of the ICJ would be recognized by all UN member states.

50

51

Cf. J. Rawls, A Theory of Justice, 1973, Chapter III.24. On the important distinction between "constitutional choices" among rules and "postconstitutional choices" within rules see: Petersmann, see note 18, 212 et seq. This "Uruguay Round strategy" for "constitutionalizing" the UN is explained in detail in: E.U. Petersmann, "How to Reform the UN System? Constitutionalism, International Law and International Organizations", LJIL 10 (1997), 421 et seq.


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3. Need for "Constitutionalizing" International Adjudication Compared with the domestic law of constitutional democracies, the interpretation and application of international law by international courts is fraught with many uncertainties, for instance if judges from nondemocratic countries construe the authoritarian concepts of classical international law without regard to human rights. One way of reducing such risks is the provision of appellate review, as in the WTO dispute settlement system, the ECJ and the European Court of Human Rights (as revised by the llth Protocol). Another possibility is to grant the parties greater influence on the choice of the judges (e.g. in international arbitration, the GATT and WTO panel procedures, and in the use of chambers in the ICJ). GATT/WTO law — by prescribing justiciable minimum standards for "free trade areas", "customs unions" and "integration agreements" and providing for political and judicial review of the WTO-consistency of such regional law (including e.g. European Community, EFTA and NAFTA court decisions) — applies still another unique method for promoting the mutual consistency of worldwide and regional agreements and dispute settlement procedures. The necessary "democraticization" of UN law requires allowing both individuals and supranational organizations (like the European Community) direct access to the ICJ as well as to specialized UN courts. As long as the necessary consensus for such reforms of the UN dispute settlement system does not exist, the continuing proliferation of regional and worldwide courts, arbitral tribunals and other dispute settlement mechanisms offer an alternative way of progressive reforms of the international dispute settlement system in response to the needs of the modern "human rights revolution" and "international economic law revolution". Even though this proliferation of international dispute settlement bodies has emerged without a coherent system (e.g. as regards access to justice and overlapping jurisdiction), and without hierarchical authority (e.g. by the ICJ) to ensure overall legal consistency, "conflicting judicial interpretations" have remained rare so far and harmless (since judicial interpretations may benefit from additional review).52

52

See R.Y. Jennings, "The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers", in: Implications of the Proliferation of International Adjudicatory Bodies for Dispute Resolution^ ASIL Bulletin 9 (1995), 5-6, who refers to conflicting interpretations in the 1995 judgment of the European Court of Human Rights in the case Loizidou v. Turkey and in the 1956 Norwegian Loans Case of the ICJ.

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Apart from the ECJ's jurisprudence on the "autonomy" of European Community law as a "new legal order of international law" based on human rights and rule of law (rather than on the classical international law principles of state sovereignty, reciprocity and self-help),53 international courts — notwithstanding the variety of their procedures and specialized jurisdiction — tend to accept the unity of international law and the need for legal coherence. The frequent references to ICJ judgments, e.g. in WTO Appellate Body reports, illustrate that the ICJ — in spite of the much smaller number of ICJ judgments compared with judgments e.g. in WTO and European Community adjudication — continues to be recognized as "the principal judicial organ of the United Nations" and only international court with general international law jurisdiction to decide on "any question of international law" (Article 36 para. 2 lit.b ICJ Statute). The mere fact that the ICJ's docket remains full and the ICJ continues to decide two to three cases per year, is, however, no reason for ICJ judges and UN lawyers to ignore international economic law and the jurisprudence e.g. of the WTO Appellate Body, the ECJ or the European Court of Human Rights. The ICJ — as the "principal judicial organ of the United Nations" (Article 92 UN-Charter) — should actively contribute to the necessary cross-fertilization and "cooperation among international courts" (e.g. in the international human rights jurisprudence). State-centered interpretations of international law by the ICJ risk coming into conflict with interpretations (e.g. by the ECJ and the European Court of Human Rights) focusing on human rights and on non-discriminatory competition among citizens across frontiers. The limitation of the ICJ's contentious jurisdiction to disputes among states will hamper the evolution of the ICJ into a "supreme court" for the interpretation of international law, especially if the ICJ neglects (e.g. in its interpretation of the general principles of international law) the need for adjusting the "international law of coexistence" to the modern "human rights revolution" and "international economic law revolution". The establishment of the international criminal tribunals for Rwanda and Yugoslavia, and the 1998 Rome Statute of the International Criminal Court, were necessary because the ICJ could not have assumed such a role in view of its limited contentious jurisdiction for inter-state disputes. The Law of the Sea Tribunal reflects dissatisfaction with the ICJ. Creation of new international courts may, however, facilitate the necessary reforms of the UN dispute settlement system.

53

Van Gend en Loos, Case 26/62, ECR 1963,1.


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In European integration law, the ECJ and national courts, usually at the request of the independent EC Commission or of self-interested citizens, have become the most potent enforcers of international guarantees of freedom, non-discrimination and rule-of-law. The procedure for preliminary rulings (article 177 ECT) has enabled a powerful cooperation between national and international judges and courts: the ECJ has final jurisdiction for interpreting European Community law and for deciding on the validity of European Community secondary law; but the European Community rules are applied to the particular facts by the national courts which decide the dispute at issue. Governments have occasionally not implemented ECJ rulings; but they have not dared to ignore the judgments and enforcement of European Community law by their own national courts. The ECJ and the European Court of Human Rights, even though established by international treaties among states, construed their constituent treaties as "constitutional charters" with implied guarantees of human rights, rule of law, democracy and other constitutional principles conferring direct citizen rights. By enabling self-interested citizens to enforce the international rules through national courts, the European legal and dispute settlement system uniquely enhanced the effectiveness of the rule of law and of constitutional restraints on abuses of government powers. European integration law, by enlarging the individual rights of the "citizens of the Union" (article 8 ECT), responded in an innovative manner to the need for democratic legitimacy of European Community rule-making, notwithstanding the absence of a single European "demos" and the still limited powers of the European Parliament. The progressive constitutionalization of European integration law offers important lessons for the necessary "democratization" of the state-centered UN law which, in many areas, still treats citizens as mere objects of government without effective guarantees of human rights, democracy, separation of powers and judicial control. The European court system rests in part on procedures (such as requests by national courts for "preliminary rulings", direct citizen access to the ECJ and the European Court of Human Rights) that have so far no parallel in the inter-state dispute settlement system of the ICJ and in UN human rights covenants. Nonetheless, the "constitutional jurisprudence" of both the ECJ and the European Court of Human Rights can in many ways serve as a model for how the ICJ and other international courts should interpret international law for the benefit of "We the

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Peoples of the United Nations"54 and strengthen cooperation among international and domestic courts. The increasing influence of nongovernmental organizations and other private interests on the progressive development of international human rights law, humanitarian law, economic law and regional integration law — for example on the 1998 Rome Statute of the International Criminal Court and the settlement of international environmental disputes (such as the 1998 WTO Appellate Body report on the "shrimp/turtle dispute" which explicitly admitted "amicus curiae briefs" from non-governmental organizations55) — also illustrates that international economic law and regional integration law offer important lessons for the necessary "democratization" of worldwide international law and dispute settlement procedures.

54

55

H.G. Schermers, "We the Peoples of the United Nations", Max Planck UNYB 1(1997), 111 etseq. Doc. WT/DS58/AB/R of 12 October 1998.

UN-Principles and International Environmental Law Winfried Lang f

I. Principles in General/UN-Principles/ Environmental Principles "Principles in general" are not an easy issue to deal with; almost like an intellectual refugee they are frequently used by doctrine in order to overcome uncertainties regarding the legal value of numerous texts. The notion of principle is highly appreciated by politicians and others, because they believe, with some naivete, that principles constitute a stronger and much more binding type of rule. Thus "principles" serve twofold, even contradictory, purposes. In order to elaborate this notion literature is still helpful: Seidl-Hohenveldern spoke of principles as "soft" codes and was of the view that a State could not accept a principle and act in a way contrary to it, unless a fundamental change of circumstances had occurred;1 from this view one should infer the idea of acceptance and understanding of the close link to rules as such. Teclaff complained that general principles like the notions of good neighbourliness, and abuse of rights lack sufficient precision to permit their application with any degree of confidence in concrete cases.2 Even the principles contained in the Trail Smelter arbitration require according to Rauschning further development and some anchoring in international legal norms in order to produce concrete le-

I. Seidl-Hohenveldern, "International Economic Soft Law", RdC 163 (1979), 169 et seq. L. Teclaff, "The Impact of Environmental Concern on the Development of International Law", in: L. A. Teclaff, International Environmental Law, 1974, 229.

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gal duties.3 Chinkin had a much broader approach: In his idea of "soft law" instruments, statements of principles prepared by individuals in a non-governmental capacity are also included. He also referred to a problematic claim, namely that such "soft law" principles somewhat automatically have come to represent customary international law; but he rejected this view as it did not take into account the need of State practice and opinio iuris* Kiss-Shelton linked the adoption of principles to the progressive development of international law; but as professional lawyers they agree that such principles cannot stand alone but need transformation into binding obligations in order to play their role in international life.5 Szasz, with his life-long experience in law-making in the UN context, stressed the important role of legislative declarations as they may be precursors to and guide a later treaty-making process and are designed to influence the conduct of states directly. He even expected that such declarations may catalyze the creation of customary law by expressing in normative terms certain principles whose general acceptance is already in the air.6 The German doctrine (Lagoni) highlighted at an early phase the distinction between non-binding principles, contained in declarations, recommendations etc., principles that claim to offer solutions for certain problems, and binding principles that have been formed in the context of customary law and have already been mentioned in one or the other agreement.7 Japanese doctrine (Ida) has followed a more cautious line: the repetition and cross-referencing of principles in many different resolutions certainly increases their weight well beyond simple facts, but their real normative value depends on the form. Is it a pseudo-treaty such as the Charter of Economic Rights and Duties of States or the Helsinki Final Act (CSCE)? Factors such as the circumstances of adoption, results of voting, explanations of vote, reservations etc. have to be taken into account.8 Finally it should not be neglected that such "soft" law principles might not only emerge in global and formal political bodies: such principles have already been elaborated

D. Rauschning, "Umweltschutz als Problem des Volkerrechts", EA 27 (1972), 567 etseq., (569). C.M. Chinkin, "The Challenge of Soft Law: Development and Change in International Law", ICLQ 38 (1989), 851 et seq. A. Kiss, D. Shelton, "Systems Analysis of International Law: A Methodological Inquiry", NYIL 17 (1986), 45 et seq., (72). P. Szasz, "International Norm-making", in: E. Brown-Weiss, Environmental Change and International Law, 1992, 68. R. Lagoni, "Umweltvolkerrecht, Anmerkungen zur Entwicklung eines Rechtsgebietes", in: W. Thieme, Umweltschutz im Recht, 1988, 244. R. Ida, "International Lawmaking Process in Transition? A Comparative and Critical Analysis of Recent International Norm-Making Process", in: M. Young, Y. Iwasawa (eds), Trilateral Perspectives on International Legal Issues, Relevance of Domestic Law and Policy, 1996, 35.

Lang, UN-Principles and International Environmental Law

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in the context of the OECD or in the framework of the ILA or the World Commission on Environment and Development — the so-called Brundtland Commission.9 This author himself has tried to clearly distinguish between rules and principles. Principles, even if they are part of the law, are norms of a general nature which give guidance to state behaviour, but are not directly applicable; the violation of such principles cannot be pursued in international courts unless they are made operational by means of more concrete norms.10 But whatever definition is chosen, whatever distinction one applies, nobody can deny that principles are important tools, but that their normativity in many cases remains a grey-zone phenomenon that policy-makers and lawyers have to live with. Turning now to "UNprinciples" in the narrow sense we would rely less on literature but on the facts themselves: When we talk about UN principles we do not think only about principles that affect the United Nations and its members as such, but also principles that emanate from UN bodies. At the top of the list should be inter alia the following treaty-based principles:11 - Charter of the United Nations (Article 2) - Statute of the ICJ - Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies — Outer Space Treaty - UN Framework Convention on Climate Change. The normative value of these principles is established beyond any doubt. As some of them remain relatively vague the question of implementation and interpretation still exists; but in this context the only resort is the Vienna Convention on the Law of Treaties (good faith, ordinary meaning, object and purpose, context etc.).12 If we look at the so-called soft-law principles we would especially mention beyond whatever texts have been quoted above, principles contained in several important declarations: the so-called Friendly Re-

9

10

11

12

P.M. Dupuy, "Soft Law and the International Law of the Environment", Mich.J.Int'lL. 12 (1990), 420 et seq., (423), as for the Brundtland-Report see, Our Common Future: Report of the World Commission on Environment and Development, 348 et seq. W. Lang, "The United Nations and International Environmental Law", International Geneva Yearbook IX (1995), 52. E. Suy, Corpus Juris Gentium. A Collection of Basic Texts on Modern Interstate Relations, 1996, 13 et seq., 226 et seq., 319 et seq. Suy, see above, 99 et seq., (Art. 31-33).

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lations Declaration of 197013 or the World Charter for Nature.14 It may be surprising that some of these solemn declarations that have been adopted since the mid-seventies try to carefully avoid the notion of "principle", probably because this notion had previously been used much too much; as an exception one might consider the area of environment, which will be dealt with hereinafter. Before analyzing and comparing in detail the four texts which constitute the core of this study (the Stockholm Declaration of the UN Conference on the Human Environment, the Rio Declaration on Environment and Development, the UNEP-Principles, and the CSD-Principles), literature on the "environmental principles" will be reviewed in order to better evaluate the catalogues following later on. One caveat should precede this effort to identify "environmental principles" in their narrow meaning: In some publications one talks about these principles without giving a real definition; this already happened in a UNEP-sponsored booklet, in which the authors listed broad categories (duty to cooperate, duty to avoid harm, duty to compensate for harm) but stated only that such principles and concepts "may also be emerging as customary international law".15 Although a presentation of literature cannot be exhaustive, a brief overview may be helpful. In earlier publications frequent reference had been made to so-called natural law principles such as "sic utere tuo ut alienum non laedas" or to "equitable utilization".16 The first of these principles was also identified as a private law principle of Roman origin, which had already been qualified by the ILA in 1955 as a general principle of law; to this was added the duty of due diligence, which was understood as the obligation of a state to use its best endeavours that its territory is not used to damage other territories (see Trail Smelter Dictum}.17 A benchmark function had been assigned to the 1974 OECD Principles Concerning Transfrontier Pollution, which contained duties on early warning in case of environmental accidents, a duty from which weak bridges were built towards strict liability.18 In the early German speaking doctrine reference was made to a "Prinzipientrias"', which was supposed to comprise a principle of precaution, a principle of compensation as a conse13

14

15

16

17 18

A/RES/2625 (XXV) of 24 October 1970; reprinted in: Suy, see note 11, 45 et seq. H. Hohmann, Basic Documents of International Environmental Law, 1992, Vol. 1, 64 et seq. Concepts and Principles of International Environmental Law: An Introduction, UNEP 1994, 2,15-33. E. Brown, "International Environmental Law and the Natural Law", in: D. Deener, International Law of the Environment, 1973, 8. J. Ballenegger, La Pollution en Droit International, 1975, 67 et seq. J. Schneider, World Public Order of the Environment: Towards an International Ecological Law and Organization, 1979, 161 et seq.


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quence of the causal link between damage and its origins, and a principle of cooperation, which was mainly oriented towards the relations between the state and civil society.19 French scholars distinguished by the mid-eighties between "principes directeurs" and "principes inspirateurs". Among the former they included environmental impact assessment, information and consultation, early warning in case of accidents, non-discrimination and equal treatment. In the second group were mentioned sovereignty in exploiting one's natural resources, solidarity and cooperation, equitable utilization of common resources, safeguarding of the common heritage of mankind. This catalogue is a clear step towards the environmental principles of the early nineties.20 The last step towards these principles was, apart from the report of the Brundtland Commission, the so-called Declaration of The Hague, 1989, in which were mainly assembled principles of an institutional nature focusing on issues such as effective implementation and compliance.21 Legal science also recognized that principles containing the environmental duties of states had become less and less precise: such principles were mainly those contained in the Convention on Long-Range Transboundary Air Pollution of 1979 or the Vienna Convention for the Protection of the Ozone Layer of 1985; here the formal distinction between treaty-based and other principles had already become less and less important.22 A specific case is the analysis of the "principle of precautionary action" on the basis of internal German law and concrete action in the North Sea and conventions covering this marine area as well as EC treaties under the Single European Act.23 Defining the legal nature of environmental principles remained a challenge to lawyers and negotiators. This is especially true of the "Polluter Pays Principle", which in the light of its OECD-history could not deny its economic origin, and continued to be a major challenge, although it has entered several of the more recent catalogues.24 Somehow bridging the 19 20

21

22

23

24

C. Storm, Umweltrecht, Handbuch des Umweltrechts, 1987, 746 et seq. P.M. Dupuy, "Le Droit International de 1'Environnement et la Souverainete des Etats", The Future of the International Law of the Environment, Hague Academy Workshop 1984, 29 et seq., (38/39). Ph. Sands, "The Environment, Community and International Law", Harv. Int'lL.J. 30 (1989), 393 et seq., (417). A. Kiss, "Nouvelles Tendances en Droit International de PEnvironnement", GYIL 32 (1989), 241 et seq., (261); see also Kiss in UNITAR, Course 1 (Programme of Training for the Application of Environmental Law), 1997, 71 et seq. L. Giindling, "Status in International Law of the Principle of Precautionary Action", Journal of Estuaire and Coastal Law (Special Issue on the North Sea), 1990,28. H. Smets, "Le Principe Pollueur Payeur, un Principe Economique Erige en Principe de Droit de PEnvironnement", RGDIP 97 (1993), 339 et seq.

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gap between the various groups of principles made it an effort to come back to "soft law", in which were identified again two groups, namely "codes of conduct" and "soft principles": the latter ones were either seen as frames of reference for future agreements or as part of the crystallization process producing customary law.25 Here clearly emerges a double function of environmental principles. They may lead to treaty law or to customary law. In which direction they may move cannot be decided in a general way This will occur rather on a case-by-case-basis. A consultation on sustainable development held at Windsor Castle in 1993 also tried to throw more light on the notion of principles. Such principles were called the "legal and philosophical basis" for the move towards sustainable development. It was also said, that legal and other implications may be drawn from a text like the Rio Declaration, that they may provide a basis for the negotiation of future international legal instruments and could also facilitate verification and compliance-control. Their moral force and mixed legal status were at a central concern of participants in that consultation. Some of the Rio principles were understood as being clearly based on customary law, others were considered as new and emerging, and still others were only identified as inspirational, i.e. statements of future intent.26 French doctrine now draws important conclusions from a comparative reading of the 1997 decision of the ICJ (Legality of the Threat or Use of Nuclear Weapons), the new Convention on the Non-Navigational Uses of International Water Courses and the principles listed in one of the catalogues mentioned below (UNEP-principles). As regards International Environmental Law its future appears to be mainly influenced by "general rules" having legal force and only later on by inspirational principles. Looking back along this doctrinal trail one becomes aware that we have moved a long way from old Roman law principles of a private law character to modern principles of a highly political nature. If one considers the Stockholm Declaration's most important principle (Principle 21), it is a subject of reflection as regards its legal nature, whereas the Rio Declaration contains several principles that can be discussed in the light of their real or potential legal value.27 One could very well share the view that the soft obligations of the Rio Declaration, initially only formulated as programmatic statements de lege ferenda, will increasingly take on legal status, will inspire the creation of new customary law and will become a standard text providing interpretative aid for a large number of actual 25

26

27

J. Brunnee, "Emerging International Processes-Towards Effective International Environmental Law: Trends and Developments", in: St. Kennett (ed.), Law and Process in Environmental Management, 1993, 229 et seq. Report of a Consultation on Sustainable Development: The Challenge to Law, RECIEL 2 (1993), r 1. P.M. Dupuy, "Ou en est le Droit International de 1'Environnement a la Fin du Siecle", RGDIP 101 (1997), 873 et seq., (873).


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conventions.28 As a matter of fact many general lessons could be learned from this process of crystallizing political statements into legal duties. Another bridge could be built to the next section by means of this final remark. This concerns German-speaking or German-origin literature and the high importance it assigns to "principles/Grundsdtze" in the development of International Environmental Law. Among the scholars concerned special mention should be made of Wildbaber, who listed at the top of his catalogue the principle of limited territorial sovereignty, followed inter alia by those of good neighbourliness, good faith etc.29 To this article has to be added a major volume of Erbgutb, who knew of three important principles, namely precaution/prevention, compensation for damage and cooperation.30 Another scholar was Lagoni, who distinguished, as many others before him, between nonbinding principles and legally-binding principles of International Environmental Law.31 Not to be overlooked should be the contribution of Wolfrum, who gave a broad overview, that ranges from principles of substance such as sovereignty, territorial integrity, good neighbourliness to procedural principles such as non-discrimination or the equal treatment of citizens.32 As this author has organized a workshop on sustainable development and international law a cross-reference to a well-known British scholar may conclude this part. Sands was writing on emerging legal principles. He spent considerable effort on defining the function and nature of principles. Like others, he distinguished between principles reflecting customary law and principles reflecting only an emerging rule. Of special interest are the factors which he used to define the legal effect of any principle: textual context, specificity of its drafting, circumstances in which it is relied upon, its use in treaties, reliance on it by international tribunals. As regards the impact of such principles Sands saw a broad spectrum. At the one end there is only guidance in the implementation of substantive rules, on the other there is an actionable right in itself. For the remainder he followed to some extent the conclusions of the aforementioned Windsor Castle consultation. For him the 28

29

30

E. Riedel, "Change of Paradigm in International Environmental Law", Law and State 57 (1998), 34. L. Wildhaber, "Rechtsfragen des Internationalen Umweltschutzes", in: H. Miehsler Gedachtnisvorlesungen an der Universitat Salzburg, 1/1987, 16, 17.

31

W. Erbguth, Rechtssystematische Grundfragen des Umweltrechts, 1987, 92 et seq. R. Lagoni, "Umweltvolkerrecht-Anmerkungen zur Entwicklung eines Rechtsgebietes", in: W. Thieme (ed.), Umweltschutz im Recht, 1988, 244 et

32

seq. R. Wolfrum, "Purposes and Principles of International Environmental Law", GYIL 33 (1990), 308 et seq., (313).

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main principles are the following: intergenerational equity, sustainable use, equitable use and integration.33 Thus, as a consequence of a political evolution — involvement of developing countries — the old environmental principles have become principles with a new focus ("sustainable development").

II. Four Catalogues/Comparative Reading In order to identify the impact of "UN-principles" on the emergence and development of International Environmental Law this section compares four catalogues of environment-related principles or concepts. What are "UN-principles""* We have seen above that principles have played an important role throughout the history of the UN (UNCharter, Friendly Relations Declaration etc.). Therefore it has to be expected that any major new area of international law is influenced by such "principles". Such principles reflect the consolidation of certain ideas, which appear to be supported not only by public opinion but also by a great number of governments. Using the term "principles and/or concepts" means that one avoids drawing a line between them as regards their normative value and entering into the futile exercise of debating their legally-binding or compulsory nature versus their legally non-binding or simply recommendatory value. But this broad approach does not mean that we will not reflect on the legal situation of one or the other text. The value is reflected either in the contents of the principle itself or in the context in which it is enumerated (see the list of principles in the UN Framework Convention on Climate Change). The notion of "environment-related" is also deliberately chosen, because it excludes texts merely focusing on "nature" or "natural heritage" (see World Charter for Nature). This choice should be self-explanatory: "nature" has certainly been one of the points of departure for policy-making in the International Environmental Law, but "nature" would reflect a relatively narrow notion that is far too distant from notions such as environment and especially sustainable development. "UN-principles" also means that an organ of the UN, either a conference convened by the General Assembly or a subsidiary body have approved or at least taken note of these four catalogues.34 Hereinafter

33

34

Ph. Sands, "International Law in the Field of Sustainable Development: Emerging Legal Principles", in: W. Lang, Sustainable Development and International Law, 1995, 54, 56, and the comments of H. Mann, 68, 70. These four texts can be found as follows: Stockholm Declaration, 1LM 11 (1972), 1416 et seq. Rio Declaration, A/CONF.151/26/Rev.l (Vol.1)


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we are faced with two types of texts: political texts approved by highlevel representatives (heads of state and government or ministers) — Stockholm Declaration, Rio Declaration — or texts (UNEP, CSD) emanating from selected bodies of lawyers and environmentalists, bodies which reflect, nevertheless to a large extent, the views of governments in spite of certain affirmations to the contrary. Certainly, the first two texts carry more political weight; but they have been subject to diplomatic scrutiny, they dilute important ideas and try to balance competing political-economic interests especially in the North-South dimension. They are certainly important but they do not necessarily reflect the state of international law, or the direction into which international law is moving. The other two texts emanating from expert bodies, are largely based on the political consensus achieved in the previously mentioned texts, but they try to refine thinking; they try to link lofty ideals and ideas to reality, especially when one considers their focus on implementation, compliance-control etc. Somehow one could and should distinguish between the two groups of texts by referring to the difference between abstract/general and concrete/specific. The listing of principles/concepts hereinafter follows a relatively simple pattern: -

principles/concepts contained in all four texts usually are on the top of the list; - below will be mentioned principles/concepts mentioned in only two or three of these texts; - principles/concepts mentioned in one text only will be disregarded (see for example the various references in the Stockholm Declaration to "planning" or in the Rio Declaration to oppressed people etc.). The basic reason behind this three-step approach is simple: only principles/concepts having survived 25 years, and being mentioned time and again, have a chance of entering the realm of International Environmental Law. According to the above-mentioned criteria the following list of principles/concepts is suggested: - The principle/concept of responsibility/liability for environmental damage, be it domestic or transboundary (civil and/or public) is mentioned in all four catalogues; it incorporates not only the duty to compensate but also the duty to prevent such damage (Stockholm Declaration, Principle 21 and 22; Rio Declaration, Principle 2 and 13; UNEP, Principle 2; CSD, Principle 6 and 8). Taking into account that this principle/concept has been recognized as such also by arbiUNEP (Washington/Nairobi), UNEP/IEL/WS/3/2. CSD (Geneva/New York), Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, Switzerland, 26-28 September 1995, Background Paper 3 (see also E/CN.17/1997/8).

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tration (Trail Smelter) and the ICJ (Legality of the Threat or Use of Nuclear Weapons) we are on firm ground,35 if we conclude that here is a text that has not only legal validity but forms already part of customary International Environmental Law. - Another principle/concept that appears, albeit with slightly different formulations, in all four catalogues, is that of intergenerational equity (Stockholm Declaration, Principle 2; Rio Declaration, Principle 3; UNEP, Principle 6; CSD, Principle 5). As the focus of this text varies considerably (safeguarding of resources, link to the right to development, link to equity within generations etc.) it would still be too early to assign to it full legal value and binding force. But this principle/concept is already well beyond the realm of a political postulate. It reflects much more than aspirations. -

Language with a human rights flavour appears in three of the four catalogues (Stockholm Declaration, Principle 1; Rio Declaration, Principle 1; CSD, Principle 3). Although the simple reference to the "right to a healthy environment" (CSD, Principle 3) cannot be neglected, this does not yet create such a right, unless it were to be corroborated by many legally binding texts of a domestic origin (e.g. constitutions) or specific international treaties, which have spilled over into the realm of international customary law. Catalogues of human rights have to be considered with special care, because many questions of implementation still remain open.

— Development and the integration of environmental considerations in the development process are also mentioned in all four catalogues. This is all the less surprising as the debate on environmental protection, as soon as it had left its purely European or North American dimension, became part of a broad process of North-South negotiations. According to the interests of the respective participant either environment or development received priority attention. These references (Stockholm Declaration, Principles 8, 11, 13; Rio Declaration, Principle 3; UNEP, Principle 1; CSD, Principle 1) do not however confirm a "right to development", which has emerged in other contexts (human rights bodies). As we referred above to the interests involved, it should be understood that here we are still far from legal duties and that only political postulates are the weak underpinnings of this principle/concept. From here one single step may take us, however, to the idea of sustainable development, an idea that reflects 35

Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq.; Case concerning the Gabcikovo-Nagymaros Project, ICJ Reports 1997, 7 et seq.; as regards the role of the Court in environmental matters see in particular the chapter "Equipping the Court to Deal with Developing Areas of International Law: Environmental Law", in: C. Peck, R.S. Leeds (eds), Increasing the Effectiveness of the International Court of Justice, 1997, 397 et seq.


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a political compromise, but would have important consequences for the economies of developing countries, if they decided to implement this idea. - One of the most delicate issues is that of common but differentiated responsibilities, which was totally unknown at the time of the Stockholm Declaration. It grew from the special needs of developing countries (Rio Declaration, Principle 6) and was introduced as an independent principle/concept by the Rio Declaration, Principle 7; it was also recognized in the UNEP document, Principle 5 and the CSD document, Principle 10. We are certainly not faced with something of major legal value, but we have to acknowledge that several environmental treaties (Montreal Protocol on Substances that deplete the Ozone Layer, UN Framework Convention on Climate Change) have internalized this principle/ concept into their regimes. According to these treaties the duties of Parties differ according to the capacities of the Contracting States and their contribution to past environmental damage (destruction of the ozone layer, global warming). This new differentiation or positive discrimination in favour of developing countries still has to be digested by international law, which still follows the rule of sovereign equality. - It may be surprising that issues high on the agenda of Stockholm (Principles 18, 19, 20) namely science and technology, education and scientific research have already been reduced to one, capacitybuilding, in Rio (Principle 9), and have totally disappeared from the catalogue of UNEP and CSD. This development would certainly deserve further reflection, because science and scientific research certainly remain important elements in the making and functioning of environmental policy and International Environmental Law. -

-

The principle/concept of precaution, which means action even without full scientific certainty was practically unknown at Stockholm. It emerged as the precautionary "approach" in Rio (Principle 15), was recognized as valid by the UNEP document, Principle 7, and identified as a fully fledged "principle" by the CSD document. Thus, it is a long way from any legally binding force, but it stands at the beginning of the so-called "procedural" principles/concepts which may help states and non-state actors to meet more easily their obligations of substance. Several other of these procedural principles/concepts will only be listed hereinafter: -

effective legislation (Rio Declaration, Principle 11; CSD Principle 18)

-

monitoring compliance (CSD, Principle 19) environmental impact assessment (Rio Declaration, Principle 17; CSD, Principle 15)

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-


access to information (CSD, Principle 14) public participation (Rio Declaration, Principle 10; CSD Principle 13)

- access to judicial proceedings (CSD, Principle 17). Already this list indicates the close links between the Rio Declaration and the CSD document; this becomes especially clear if we consider the CSD-exercise as an effort to verify the implementation and further development of the Rio principles/concepts. Some of these procedural rules may be of major relevance (e.g. access of foreigners to the courts of the state of origin of a hazardous activity or an accident) as they help to avoid international responsibility; but they are not themselves yet principles of International Environmental Law. -

Of major importance in this context is also the problem of the internalization of costs, better known in the realm of OECD as the "polluter pays principle". This internalization of costs is not only mentioned in the Rio Declaration, Principle 16 but also in the extremely restrictive list contained in the UNEP document, Principle 8; such double quotation does not mean that we are faced with a legal duty but at least with an important element of economic thinking. The only other reference to economics in the Rio Declaration can be found in its call for a supportive and open economic system and its remark that trade policy measures for environmental purposes should not restrict in a discriminatory and unilateral way the free flow of goods and services. This last remark is certainly a direct outgrow of the trade and environment debate. This debate had emerged in the aftermath of the Montreal Protocol and the Tuna Cases (cf. ILM 30 (1991), 1594 and ILM 33 (1994), 839) which were decided by two GATT-panels. Again we are faced with a conflict of interests, in which each side tried to draw for support to its arguments either on the GATT (Article XX) and the new WTO-instruments or on the respective International Environmental Agreements (lEA's). - In the follow-up to the Law of the Sea Convention and the UN Framework Convention on Climate Change at that time hotly debated principles/concepts re-emerged: either the common heritage of humankind (CSD, Principle 11) or the common concern of humankind (UNEP, Principle 3). As the distinction between the two is mainly due to a competition of interests (appropriation or not of the area to be protected) these principles/concepts are of minor importance from the view-point of general International Environmental Law. - Not to be neglected should be the following principles/concepts: the prohibition of the use of nuclear weapons and other weapons of mass destruction (Stockholm Declaration, Principle 26). This applies in particular in the light of numerous disarmament conventions dealing with this matter (Treaty on the Non-Proliferation of Nuclear Weap-


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ons; Treaty Banning Nuclear Weapons Test in the Atmosphere, in Outer Space and Under-Water; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction) and the dictum of ICJ concerning the use of nuclear weapons. As regards the impact of warfare on the environment in general only the Rio Declaration (Principle 24) contains a reference; but aside from our four catalogues and in the light of the Convention on the Prohibition of Military or any hostile Use of Environmental Modification Technologies (ENMOD) Convention, of 1977 and the provisions of Additional Protocol I to the Geneva Red Cross Convention of 1977, a customary rule of International Environmental Law is about to emerge, which prohibits at least the intentional destruction of the environment in case of armed conflict (see 2nd Gulf conflict); here it might even be advisable to speak of "ecological aggression" or "ecocide". - Principles/concepts such as eradication of poverty (Rio Declaration, Principle 5; CSD, Principle 4) are certainly important but they are only political postulates and not necessarily linked to the emergence or development of International Environmental Law. This also relates to ideas such as the sustainable use of natural resources (CSD, Principle 7) or to unsustainable patterns of production and consumption (Rio Declaration, Principle 8), or to assistance to and cooperation with developing countries (Stockholm Declaration, Principle 24; Rio Declaration 27; UNEP, Principle 4). Again we are in the realm of pure politics, although these three quotations hint at a special case of the general cooperation principle as enshrined in the UN-Charter. -

The only remaining principle/concept of some legal relevance is that of notification and information of other states either in case of imminent disaster or of potential damage to be caused by certain planned activities. Although this duty has been mentioned in the Rio Declaration (Principles 18, 19) and certain specific conventions (e.g. on nuclear accidents), it has been neglected by the UNEP- and CSD documents. As this duty is not only important from the perspective of International Environmental Law but also relevant from a practical point of view this oversight is all the more to be regretted. Our listing will be stopped here. Some of the catalogues contain principles/concepts which are applicable well beyond International Environmental Law, e.g. the duty to settle disputes peacefully etc. International Environmental Law is a part of international law in general; therefore such general principles/concepts do not need any separate mention. In the next section we shall try to draw certain conclusions resulting from the comparative reading of these four sets of "UN-principles", which were adopted in diplomatic processes over 25 years. Participants

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in these processes were aiming at some firm ground for a new field of international law.

III. Results of Comparative Reading/The State of International Environmental Law International Environment Law covers two quite different domains: Treaty law is relatively clear, as it is composed of a growing number of treaties, mainly multilateral but also some bilateral agreements. They have become part of the body of law by being processed through the channels and devices (signature, ratification/parliamentary approval etc.) envisaged by the Vienna Convention on the Law of Treaties for expressing the "consent to be bound". Its contents can be easily ascertained and identified by a simple reading of the respective texts. If they cause problems, these mainly relate to the phase of implementation. Such problems may arise, if the terms of the treaty could be interpreted in different ways, if texts remain in the ambiguous — either on purpose or as a consequence of a difference of opinions that was patched over by vague formulations or by mere negligence; it goes without saying that this latter case is relatively rare but it cannot be denied that negotiators or drafters did not foresee certain events and situations and that the lack of clarity only became clear once the text had to be applied. Nevertheless treaty law is still the more identifiable part of the two domains. Customary law is a body of law in constant movement and with contents and contours that are sometimes not easily distinguishable; in a young area of law such as the environment this branch may play an important role. This role can be all the more important as the evolution of the law-making process requires flexibility and the necessity of quickly adapting the law to changing circumstances. The only problem in this context is that a broad consensus of most governments is required as well as their conviction, that their practice that reflects these rules is really law and not simply a matter of convenience. The above mentioned catalogues of principles reflect to a considerable degree customary law, although they suffer from one major uncertainty. Where is the boundary between policy and law? Where is the density of politicallegal statements sufficiently strong and broad in order to consider the result as a shared conviction of most governments involved, that they apply this principle as a legal duty, that they can claim the implementation of that principle from others as something owed to them or to the international community as a whole (erga omnes obligations) ? Thus, we may conclude that customary law is a highly difficult and complex area of law.


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In order to attain a minimum of transparency it may be helpful to identify three different categories of principles of a decreasing legallybinding/compulsory nature: -

principles of existing International Environmental Law principles of emerging International Environmental Law

- potential principles of International Environmental Law. Among the first group only two of the above mentioned principles can be mentioned: the principle of responsibility/liability for environmental damage, be it domestic or transboundary; it has been reiterated and confirmed time and again since the Trail Smelter arbitration and appears in all four catalogues. Closely linked to this obligation is the prohibition to use nuclear weapons and other weapons of mass destruction, a principle confirmed by the above-mentioned dictum of the ICJ; this principle has been only quoted in one of the above listed catalogues; but because of its overriding importance and its close link to the aforementioned principle, its legal nature is beyond question. Much broader is the second group of "emerging" principles of International Environmental Law: - intergenerational equity, as a duty due to future generations; - right to a healthy environment (if corroborated in human rights instruments); - various procedural duties such as access to judicial proceedings, environmental impact assessment, monitoring compliance; -

duty not to use the environment as an instrument of warfare; notification and information of other states in the case of imminent disaster or of potential damage possibly caused by certain activities. This group, due to its in-between nature, could move forward towards becoming a fully binding duty or backwards to the so-called "potential" principles, which have still to follow a certain journey in order to become a fully applicable rule of law. This third group of "potential" principles is an area of hope for many policy-makers, who still count on "the rule of law" as an instrument of their endeavour: -

development and integration of environmental considerations into the development process; - common but differentiated responsibilities — the low standing of this principle is due to its collision with the rule of sovereign equality; - precaution may become a fully-fledged duty because of its close link to the aforementioned procedural duties. To many this list may appear as too conservative and too narrow. However, we should avoid allowing political aspirations and their concretization in different catalogues of principles being understood as already

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constituting International Environmental Law. The future legal value of these principles depends to a large extent on treaty-law. Are they corroborated not only in the various preambles of treaties but also fully incorporated in the very body of these conventions? Have they become part of the daily practice of contracting states when implementing those treaties? The views of non-governmental organizations and the learned opinions of experts should also be considered. Thus, we may arrive at a full understanding of the law, and especially a comprehensive insight into its customary domain at present.

International Seabed Authority: The First Four Years Michael C. Wood I.

Introductory 1. The Negotiations Leading to the Establishment of the Authority 2. The Present Status of the Convention and 1994 Implementation Agreement 3. The Prospects for Deep Seabed Mining 4. Deep Seabed Mining and General International Law II. Salient Features of the Authority III. The Authority's Work During its First Four Sessions 1. Organisational Matters (i) Election of Assembly President (ii) Rules of Procedure of the Assembly (iii) Election of the Council (1996, 1998) (iv) Terms of Office of Council Members (v) Election of Secretary-General (1996) (vi) Establishment of Secretariat (vii) Election of Council President (viii) Rules of Procedure of Council (ix) Election of Finance Committee and Organization of its Work (x) Budgets for 1994-1996,1997, 1998 and 1999 (xi) Scale of Assessment for 1998 and 1999 (xii) Draft Financial Regulations (xiii) Draft Staff Regulations (xiv) Election of Legal and Technical Commission and Organization of its Work (xv) Relationship with the United Nations and Other Bodies (xvi) Protocol on Privileges and Immunities (xvii) Headquarters and Relationship with Host Country (xviii) Extension of Provisional Membership 2. Substantive Work (i) Approval of Plans of Work for Exploration

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Max Planck UNYB 3 (1999) (ii)

IV.

Draft Mining Code for Prospection and Exploration of Polymetallic Nodules (iii) Assessment of the Authority's Reserved Areas (iv) Development of POLYDAT (v) Request for Adoption of Regulations for Certain Other Resources Conclusions

The mineral resources of the seabed beyond national jurisdiction are the common heritage of mankind, as provided in Part XI of the United Nations Convention on the Law of the Sea of 1982. The original Part XI regime effectively precluded industrialized States from joining the Convention for more than a decade, putting at risk the whole project for a modern constitution for the oceans. But the objections to Part XI have largely been overcome with the adoption of the 1994 Part XI Implementation Agreement.1 The International Seabed Authority came into being on 16 November 1994 with the entry into force of the Convention. The Authority has an Assembly, Council, Secretariat (headed by a Secretary-General), as well as a Legal and Technical Commission and a Finance Committee.2 In due course, the "Enterprise" is to be set up, to conduct mining directly alongside other mining enterprises.

The views expressed are personal, not those of the United Kingdom Government. United Nations Convention on the Law of the Sea, 1982: A/CONE 62/122 and Corr.1-11, ILM 21 (1982), 1261; Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted by the United Nations General Assembly on 28 July 1994: A/RES/48/283 of 28 July 1994, ILM 33 (1994), 1309; The Law of the Sea. United Nations Convention on the Law of the Sea. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Index and excerpts from the Final Act of the Third United Nations Convention on the Law of the Sea, Division for Ocean Affairs and the Law of the Sea 1997, UN Publication Sales No. E.97.V.10; Consolidation of Part XI of the Convention and the Implementation Agreement (ISA/98/04); M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982 — A Commentary, (referred to as Virginia Commentary). For the Authority's documentation see p. 239; Selected Decisions and Documents of the First, Second and Third Sessions (ISA/98/01), referred to as Selected Decisions 1/2/3; Selected Decisions and Documents of the Fourth Session (ISA/99/01), referred to as Selected Decisions 4; Report of

Wood, International Seabed Authority: The First Four Years

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The Authority is based in Kingston, Jamaica. All States Parties to the Convention are ipso facto members of the Authority. As of 16 November 1998, there were 130 parties to the Convention (and hence 130 members of the Authority), a measure of the success of those who put in place the 1994 Part XI Implementation Agreement with the overriding objective of securing universal acceptance of the Convention. This article aims (in Section III.) to describe the work of the Authority in the four years between its establishment in November 1994 and the termination of provisional membership in November 1998. Certain introductory matters will be touched on in Section I. In Section II. some salient features of the Authority will be highlighted. Tentative conclusions are offered in Section IV.

I. Introductory 1. The Negotiations Leading to the Establishment of the Authority In the late 1960s and the 1970s, the new regime for deep seabed mining, then under negotiation, was seen by some as a source of untold wealth and as an inspirational precedent for the New International Economic Order. Others — more skeptical — doubted the tales of great riches and feared the precedent. Negotiation of the new regime, to give subthe Secretary-General covering the period November 1994 to June 1997, ISBA/3/A/4: Selected Decisions 1/2/3, 45-60; Annual Report for 1997/98, ISBA/4/A/11: Selected Decisions 4, 52-63. On the work of the Authority, see J. Koch, "Die Internationale Meeresbodenbehorde in Kingston", VN 44 (1996), 210 et seq.; H.P. Rajan, "The Meetings of the International Seabed Authority — the first, second and third sessions", Journal of Indian Ocean Studies 4 (1997), 218 et seq. For earlier writings, see W. Hauser, Die rechtliche Gestaltung des Tiefseebergbaus nach der Seerechtskonvention, 1982; R. Wolf rum, Die Internationalisierung staatsfreier Raume, 1984; F. Paolillo, "The International Arrangements for the International Seabed and their Impact on the Evolution of International Organizations", RdC 188 (1984), 135 et seq.; E.D. Brown, Seabed Energy and Mineral Resources and the Law of the Sea, Vol.2,1986, Chapters 3 to 6; the contributions of R. J. Dupuy/J.P. Levy/F. Orrego Vicuna/F. Paolillo, in: R.J. Dupuy/D. Vignes, A Handbook on the New Law of the Sea, 1991, 579 et seq.; R. Wolfrum, "International Sea-Bed Authority", in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995, 789 et seq.

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stance to the "common heritage of mankind" principle embodied in the 1970 Declaration of Principles,3 was inextricably bound up with the complex interplay of interests in the Seabed Committee4 and at the Third United Nations Conference on the Law of the Sea;5 the ultimate failure of the deep seabed negotiations to reach an acceptable consensus

R. Wolf rum, "Common Heritage of Mankind", EPIL Instalment, Vol. I, 1992, 692 et seq.; T. Fitschen, "Common Heritage of Mankind", in: Wolfrum, United Nations, see note 2, 149 et seq.; K. Baslar, The Concept of the Common Heritage of Mankind in International Law,1998. A. de Marffy-Mantuano, "The Pardo Declaration and the Six Years of the Seabed Committee", in: Dupuy/Vignes, see note 2, 141 et seq.; L. Henkin, Law of the Sea's Mineral Resources, 1968; L.B. Sohn has recently referred to Pardo's extraordinary prediction of at least US$ 5 billion profit annually from seabed mining as a "mirage": "Managing the Law of the Sea: Ambassador Pardo's Forgotten Second Idea", Colttm.J. Transnat'l L. 36 (1997), 285 et seq., (288); S. Oda, The Law of the Sea in Our Time - The United Nations Seabed Committee 1968-1973,1977. Official Records of the Third United Nations Conference on the Law of the Sea, Vols I to XVIII; see also R. Platzoder (ed.), Third United Nations Conference on the Law of the Sea, Documents, Vols I to XVIII. J.R. Stevenson, B. Oxman, with various contributions in: AJIL 68 (1974), 1 et seq.; 69 (1975), 1 et seq., 763 et seq.; 71 (1977), 246 et seq.; 72 (1978), 57 et seq.; 73 (1979), 1 et seq.; 74 (1980), 1 et seq.; 75 (1981), 211 et seq.; 76 (1982), 1 et seq.; B. Oxman, "The Third United Nations Conference on the Law of the Sea", in: Dupuy/Vignes, see note 2, 163 et seq.; T.B. Koh/S. Jayakumar, "Negotiating Process of the Third United Nations Conference on the Law of the Sea", Virginia Commentary I, 29 et seq.; B. Oxman, "The Law of the Sea", in: C.C. Joyner (ed.), The United Nations and International Law, 1997, 309 et seq.; D.H. Anderson, "Law-Making Processes in the UN System — Some Impressions", Max Planck UNYB 2 (1998), 23 et seq.; E.L. Miles, Global Ocean Politics: The Decision Process at the Third United Nations Conference on the Law of the Sea 1973—1982, 1998. For accounts of the Part XI negotiations, see L.S. Ratiner, R.L. Wright, "The Billion Dollar Decision: Is Deepsea Mining a Prudent Investment?", Lawyer of the Americas 10 (1978), 713 et seq.; M.G. Schmidt, Common Heritage or Common Burden?, 1989; R.G. Darman, "The Law of the Sea: Rethinking U.S. Interests", Foreign Aff. 56 (1977/78), 373 et seq.; L.S. Ratiner, "The Law of the Sea: A Crossroads for American Foreign Policy", Foreign Aff. 60 (1981/82), 106 et seq., (121); J.K. Sebenius, Negotiating the Law of the Sea, 1984; W. Wertenbaker, "A Reporter at Large: The Law of the Sea", The New Yorker, 1 August 1983, 38 et seq. and 8 August 1983, 56 et seq.; W.C. Brewer, "Deep Seabed Mining: Can an Acceptable Regime ever be found?", Ocean Development and International Law 11 (1982), 25 et seq.


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put at risk the whole effort to draw up a universally accepted treaty on the modern international law of the sea. The Convention was adopted in December 1982. Thereafter States devoted considerable time and resources to preparing for its entry into force, in particular in the Preparatory Commission, which met twice a year between 1983 and 1994.6 The Commission's role had been seen as critical during the latter stages of the Conference. Some felt that by drafting satisfactory rules, regulations and procedures to be applied provisionally (as provided in article 308 para. 4 of the Convention) pending formal adoption by the Authority (by consensus in the Council), the Commission could give cast-iron assurances to skeptical industrialized countries and their industry. Even after the clear rejection of Part XI by industrialized countries it was suggested that the Commission could somehow remedy the major defects in Part XI; but the 6

The Preparatory Commission was established by Resolution I of the Conference, and remained in existence until the conclusion of the first session of the Assembly of the International Seabed Authority on 18 August 1995. See Virginia Commentary Vol.V, 467 et seq. The report of the Preparatory Commission for presentation to the Assembly of the International Seabed Authority (i.e. excluding its report on Tribunal matters) is in document LOS/PCN/153 (Vols I to XIII, plus index), and was presented to the Assembly in August 1995 (ISBA/A/L.6). For the documentation of the Preparatory Commission see, The Law of the Sea: Documents 1983-92, R.Platzoder (ed.), Second Series, Vols I to XV (referred to as Platzoder) and Law of the Sea Bulletin, Special Issues II (April 1988) and /// (September 1991). On the work of the Preparatory Commission, see J.P. Levy, "Establishment of the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea", in: Dupuy/Vignes, see note 2, 821 et seq.; Paolillo, see note 2; Brown, see note 2, Chapter 7; P. Kirsch, D. Fraser, "The Law of the Sea Preparatory Commission after Six Years: Review and Prospects", CYBIL 26 (1988), 119 et seq.; J.P. Levy, "Un nouvel instrument de developpement progressif du droit de la mer: La Commission preparatoire de L'Autorite Internationale des fonds marins et du Tribunal international du droit de la mer", AFDI 34 (1988), 735 et seq.; M. Hayashi, "Registration of the First Group of Pioneer Investors by the Preparatory Commission for the International-Sea-Bed Authority and for the International Tribunal for the Law of the Sea", Ocean Development and International Law 20 (1989), 1 et seq.; Schmidt, see note 5, 288 et seq.; E.D. Brown, The International Law of the Sea ,Vol. I, 1994, 448 et seq.; 473 et seq.; J.P. Levy, Collection espaces et resources maritime^ 1 (1986), 137 et seq.; 2 (1987), 134 et seq.; 3 (1988), 115 et seq.; 4 (1990), 105 et seq.; 5 (1991), 89 et seq.; 6 (1992), 129 et seq.; 7 (1993), 10 et seq.; 8 (1994), 6 et seq.

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Commission had no power to alter the Convention. The non-participation of the United States, together with the reserved position of the United Kingdom and the Federal Republic of Germany (which did attend as observers) and of other developed countries, as well as developing-country objection to anything which might deviate from the Convention's provisions, precluded any role for the Commission in making Part XI acceptable; the Commission may indeed have had a negative impact. Its drafts and studies were largely overtaken. Its most significant work lay in implementing (often effectively amending) the provisions of Resolution II of the Conference concerning registered pioneer investors. There was growing realization that the Part XI deep seabed mining regime was unworkable, would preclude participation in the Convention by most industrialized countries, and was based on wildly optimistic estimates of the potential and time scale of deep seabed mining, and that the common heritage would not benefit mankind as a whole. In the words of one commentator, "a zone without any foreseeable economic uses had held the whole Convention hostage for more than a decade".7 In the 1990s the Convention's deep seabed mining regime was radically revised as a result of consultations under the auspices of the United Nations Secretary-General leading to the 1994 Part XI Implementation Agreement. It was during this phase that cooperation intensified among a group of ten most interested industrialized countries (the "CIO" pioneer investors and potential applicants: Belgium, Canada, France, Germany, Italy, Japan, Netherlands, Russia, United Kingdom, United States of America), as well as between industrialized countries and the most interested developing countries, including Brazil, Indonesia and Jamaica. With the adoption of the 1994 Agreement, industrialized States were willing to join the Convention, and the centrepiece of the new regime — the International Seabed Authority — was established in Kingston, Jamaica.

7

A. de Marffy-Mantuano, "The procedural framework of the Agreement implementing the 1982 United Nations Convention on the Law of the Sea", AJIL 89 (1995), 814 et seq.


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2. The Present Status of the Convention and 1994 Implementation Agreement The United Nations Convention on the Law of the Sea was adopted on 30 April 1982 by a vote of 130 in favour, 4 against (Israel, Turkey, United States of America, Venezuela), with 17 abstentions (including the United Kingdom, Federal Republic of Germany, Belgium, Netherlands, Italy, Spain, Soviet Union and other States of Eastern and Western Europe). It was opened for signature on 10 December 1982, immediately received 119 signatures and by the closing date for signature (9 December 1984) had received 159 signatures (155 States, European Economic Community, Cook Islands, Niue and United Nations Council for Namibia). But it was soon clear that the Convention, as adopted, would not secure the participation of industrialized States because of the provisions for deep seabed mining. The Federal Republic of Germany, the United Kingdom and the United States did not sign; most other industrialized States signed, but made it clear that they would not proceed to ratification without significant improvements in the deep seabed mining provisions. There was a real prospect that the Convention would come into force with minimal developed State participation. This prospect, together with major changes in attitudes to economic matters, stimulated efforts to render the deep seabed mining provisions universally acceptable. Following fifteen rounds of informal consultations in New York between July 1990 and June 1994,8 under the aegis

A/48/950; earlier reports are contained in A/45/721 and A/46/ 724. The August 1993 "Boat Paper" is reproduced in: International Journal of Marine and Coastal Law 9 (1994), 59 et seq.; J. Koch, "Kommentar: Die Europaische Gemeinschaft als Partei seerechtlicher Vertrage", AVR 32 (1994), 336 et seq., lists the representatives of Australia, the United Kingdom, Italy, the United States, Jamaica, Brazil, Nigeria and Indonesia as those who handed the draft to the United Nations Legal Counsel (the actual drafting group being smaller). And see UN Publication Sales No.E. 97.V.10, see note 1, 208 et seq.; S.N. Nandan, "The Efforts undertaken by the United Nations to Ensure Universality of the Convention", in: E.L. Miles, T.Treves, The Law of the Sea: New Worlds, New Discoveries, 1993, 349 et seq.; W. Scholz, H. Djalal, J. Koch, Seerechtliche Gesprache in der Vertretung der Freien und Hansestadt Hamburg heim Bund (published 1993/94); D.H. Anderson, "Efforts to ensure universal participation in the United Nations Convention on the Law of the Sea", ICLQ 42 (1993), 654 et seq.; id., "Further efforts to ensure universal participation in the United Nations Convention on the Law of the Sea", ICLQ 43 (1994), 886 et seq.; R.

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of two successive Secretaries-General (Javier Perez de Cuellar and Boutros Boutros Ghali), the Agreement on the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 was adopted by the General Assembly of the United Nations on 28 July 1994 and opened for signature on 29 July 1994.9 The main changes made by the Agreement are:

9

Platzoder, "Substantive Changes in a Multilateral Treaty Before its Entry into Force: The Case of the 1982 United Nations Convention on the Law of the Sea", EJIL 4 (1993), 390 et seq.; B. Oxman, "United States Interests in the Law of the Sea Convention", AJIL 88 (1994), 167 et seq.; J.R. Stevenson, B. Oxman, "The Future of the United Nations Convention on the Law of the Sea", AJIL 88 (1994), 488 et seq.; J. Koch, "Die Verhandlungen u'ber die Losung der Probleme des Tiefseebergbauteils des SRU aus der Sicht der deutschen Delegation", in: Berichte des Bundesamtes fur Seeschiffahrt und Hydrographie Nr. 4, Das UN-Seerechtsiibereinkommen tritt in Kraft: Inhalte und Konsequenzen fur die Bundesrepublik Deutschland , 1994; J.P.Queneudec, "Le "nouveau" droit de la mer est arrive!", RGDIP 48 (1994), 865 et seq.; J.P. Levy, "Les bons offices du Secretaire General des Nations Unies en faveur de Puniversalite de la Convention sur le droit de la mer", RGDIP 48 (1994), 871 et seq.; de Marffy-Montuano, see note 7; D.H. Anderson, "Legal implications of the entry into force of the United Nations Convention on the Law of the Sea", ICLQ 44 (1995), 313 et seq.; P. Gautier, "De 1982 a 1994: les etapes d'une modification "singuliere" — De la partie XI de la Convention des Nations Unies sur le droit de la mer de 1982", RBDI28 (1995), 56 et seq.; K. Davidson, "Law of the Sea and Deep Seabed Mining: The Agreement Modifying Part XI of the UN Law of the Sea Convention", in: Center for Oceans Law and Policy Proceedings 1995, 303 et seq.; J.I. Charney, "Entry into Force of the 1982 Convention on the Law of the Sea", VaJ.Int'lL. 35 (1995), 381 et seq. A/RES/ 48/263, adopted by a recorded vote of 121 to 0, with 7 abstentions (Colombia, Nicaragua, Panama, Peru, Russian Federation, Thailand, Venezuela), A/48.PV.99 et seq.; See B. Oxman, L.B. Sohn, J.I. Charney, "Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea", AJIL 88 (1994), 687 et seq.; D.H. Anderson, T. Treves, S.N. Nandan, "Legal effects of mechanisms for adjusting Part XI", in: Proceedings of 18th Annual Seminar of the Center for Oceans Law and Policy, University of Virginia, 1994; L.B. Sohn, "International Law Implications of the 1994 Agreement on implementation of the seabed provisions of the Convention on the Law of the Sea", AJIL 88 (1994), 696 et seq.; J.I.Charney, "U.S. Provisional Application of the 1994 Deep Seabed Agreement", AJIL 88 (1994), 705 et seq.; D.H. Anderson (with comments by Davidson and Rattray), "Resolution and Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea: A General Assessment", ZaoRV 55


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-

greatly reduced costs for States Parties; postponement in establishing the Enterprise, and enhanced provision for joint ventures with that organ;10

-

new decision-making procedures to safeguard special interests;

-

eliminating the review conference (at which the interests of industrialised countries could have been overridden);

-

no mandatory transfer of technology;11 no production limitation, but clearer antisubsidy provisions;

-

no compensation fund for land-based producers;

-

substantially reduced fees for miners, and financial terms of contracts to be settled in due course, based on comparable terms for land-based mining. The Agreement also gives additional emphasis to environmental concerns. It was provisionally applied from 16 November 1994 and entered into force on 28 July 1996. As is provided in the General Assembly resolution by which the Agreement was adopted, and in the Agreement itself, the provisions of the Agreement and Part XI of the Convention are to be interpreted and applied together as a single instrument: in the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement prevail.12 Moreover, the Agreement pro-

10

11

12

(1995), 275 et seq.; M. Hayashi, "The 1994 Agreement for the Universalization of the Law of the Sea Convention", Ocean Development and International Law 27 (1996), 31 et seq.; G. Jaenicke, "The United Nations Convention on the Law of the Sea and the Agreement relating to the implementation of Part XI of the Convention. Treaty problems in the process of revising the deep seabed mining regime of the Convention", in: U. Beyerlin et al., Recht zwischen Umhruch und Bewahrung, 1995; D.Nelson, "The new deep seabed mining regime", International Journal of Marine and Coastal Law 10 (1995), 189 et seq.; D. Vignes, "La fin du schisme des fonds marins", RBDI28 (1995), 153 et seq. G. Jaenicke, "Joint Ventures for Deep Seabed Mining Operations", ZaoRV 55 (1995), 329 et seq.;V. Roeben, "A Case Study on a Joint Venture Project", ZaoRV 55 (1995), 348 et seq. P.T. Stoll, "The Transfer of Technology under the Implementation Agreement", ZaoRV 55 (1995), 391 et seq. This formula has been repeated in most instruments adopted with reference to Part XI since 1994; see, for example, the Introductory Notes to the Rules of Procedure of the Assembly and Council. The suggestion that the Agreement "modifies de facto" provisions of the Convention (ISBA/3/

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vides that, after its adoption, any ratification of, or accession to, the Convention also represents consent to be bound by the Agreement, and that no State may establish its consent to be bound by the Agreement unless it has previously or at the same time become party to the Convention. Under the Convention and Agreement, the members of the Authority comprise all States Parties to the Convention and (until 16 November 1998) all States which under the Agreement were members of the Authority on a provisional basis, that is to say, those non-States Parties to the Convention that were applying the Agreement provisionally. (In each case "State" includes the entities referred to in article 305 para. 1 lit.(c) to (f) of the Convention.) In accordance with the terms of the Agreement, provisional membership terminated on 16 November 1998. Thereafter membership in the Authority corresponds to participation in the Convention. As of 16 November 1998, there were 130 parties to the Convention (128 States; one self-governing associated State — Cook Islands; and one international organization — European Community). There were 95 parties to the 1994 Implementation Agreement. So as of that date 35 parties to the Convention were not yet parties to the Agreement.13 All of these are States which consented to be bound by the Convention before the adoption of the Agreement; their failure so far to become party to the Agreement is probably be due to bureaucratic reasons. Those States Parties to the Convention not yet parties to the 1994 Implementation Agreement of necessity participate in the work of the Authority under arrangements based on the Agreement. If they were to adopt a strict approach, insisting on attending the Authority in accordance with the provisions of the original Part XI, and not Part XI as implemented by the Agreement, there would be two separate categories of members and, in effect, two Authorities. Such duality of regimes would be unworkable. A practical approach is essential if the Agreement is to have the effect intended by the General Assembly when it adopted the Agreement and with which the States Parties to the Convention are in full agreement. States supporting the General Assembly resolution "may be considered as having tacitly accepted the situation where the Convention is being applied in the Authority as modified by

13

A/4, para 3: Selected Decisions 1/2/3, 46) is somewhat imprecise; it modifies the application of the provisions as a matter of law. For the latest information on participation in the Convention and the Agreement see Internet website http://www.un.org/Depts/los/losconv.!.


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the Agreement".14 There are precedents for such a practical approach, where amendments to the constituent instruments of international organizations have come into force for some but not all members.15 It is, nonetheless, to be hoped that all States Parties to the Convention become parties to the Agreement at an early date. On 16 November 1998 the parties to the Convention included four of the five permanent members of the Security Council (the United States of America being the exception), thirteen of the fifteen European Union members (all except Denmark and Luxembourg), as well as a wide range of States from all regions. Most States with major maritime and industrial interests are parties, including Australia, China, India, Indonesia, Japan, Republic of Korea, Mexico, New Zealand, Philippines, Russian Federation, South Africa and many coastal States in South America (including Brazil and all of the Southern Cone). The European Community is a party, some provisions of the Convention (including in Part XI) being within its competence.16 The Convention is already among the most widely accepted multilateral treaties, and widely accepted by those with the greatest interest.

14 15

16

Hayashi, see note 9. For example, the successive Acts of the Unions created by the Paris and Berne Conventions, and the successive constituent instruments of the UPU and the International Telecommunication Union. The European Community's competence in relation to Part XI is limited essentially to trade policy and antisubsidy measures in article 151 and Agreement, Annex, Section 6. In its declaration concerning competence made upon formal confirmation, the European Community stated (under the heading "Matters for which the Community has exclusive competence") that "By virtue of its commercial and customs policy, the Community has competence in respect of those provisions of Parts X and XI of the Convention and of the Agreement of 28 July 1994 which are related to international trade"; and (under the heading "Possible impact of the Community policies") that "Mention should also be made of the Community's policies and activities in the fields of control of unfair economic practices, government procurement and industrial competitiveness as well as in the area of development aid. These policies may also have some relevance to the Convention and the Agreement, in particular with regard to certain provisions of Parts VI and XI of the Convention.": Official Journal of the European Communities, L. 179, of 23 June 1998, 129 et seq.; LOS Bulletin No. 37, 7 et seq. The Community has so far played little part in the work of the Authority, except as regards its controversial financial contribution, on which see p. 216. Koch, see note 8; Paolillo, see note 2,219 et seq.

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Among States not parties (as of 16 November 1998) are Canada and the United States of America (which had both been very active provisional members of the Authority). Canada signed the Convention in 1982, but has not so far moved to ratify. In his October 1994 message transmitting the Convention and Agreement to the Senate, the United States President affirmed that "the Agreement meets the objections the United States and other industrialized nations previously expressed to Part XI. It promises to provide a stable and internationally recognized framework for mining to proceed in response to future demands for minerals."17 From December 1997 the US Administration made extraordinary efforts to persuade the Senate to act on the Convention. In a speech on 12 June 1998 President Clinton said: "We must join the rest of the world in ratifying, at long last, the Convention on the Law of the Sea. The character of our country, and frankly, the nature of a lot of the economic and political success we have enjoyed around the world has rested in no small part on our continuous championing of the rule of law at home and abroad. The historic Convention on the Law of the Sea extends the rule of law to the world's oceans. .... This Convention assures the open seaways that our Armed Forces and our fishing, telecommunications and shipping industries require. But it also, I will say again, gives us the framework to save the oceans while we grow as a people and while we grow economically. This year, during this legislative session, the United States Senate should, and must confirm its leadership role by making America a part of the community of nations already party to the Convention on the Law of the Sea."18 Despite high hopes, the Senate did not act before the mid-term elections in November 1998. Nevertheless, it is expected that renewed efforts will

17

18

103rd Cong., 2nd Sess, Sen. Treaty Doc. 103 et seq., Ill (1994); AJIL 89 (1995), 112 et seq. For other United States policy statements see AJIL 88 (1994), 733 et seq. Not everyone is convinced: see, for example, P.M. Leitner, Reforming the Law of the Sea Treaty, 1996. Remarks by the President to the National Oceans Conference, Monterey, California (White House Press Release, 12 June 1998).


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be made by the Administration to obtain Advice and Consent at an early date.19

3. The Prospects for Deep Seabed Mining The principal function of the Authority is to regulate deep seabed mining, which most have assumed means essentially the recovery of manganese nodules. As described below, the Authority is currently working on a draft Mining Code, and has already approved seven plans of work for exploration for manganese nodules. Yet in his report on the work of the Authority dated 31 July 1997, the Secretary-General of the Authority said that "In addition to polymetallic nodule resources, other known mineral resources drawing considerable interest are cobalt-rich manganese oxides, polymetallic sulphide deposits along ocean-floor spreading centres and red clay deposits,..." and suggested that given the interest shown in subsea mineral resources other than polymetallic nodules the Authority should keep itself informed.20 Gas hydrates (methane hydrates), which exist in large quantities below the seabed, may be of commercial interest in the future as a source of energy. The Authority is planning to hold a workshop on "other resources" in 1999. And in August 1998 the Russian Federation requested the Authority to adopt regulations for the exploration of cobalt-bearing crusts and hydrothermal polymetallic sulphides, arguing that the exploitation of these resources may become commercially viable sooner than manganese nodules. On one view genetic resources may be the most immediately exploitable resource associated with the Area. These are living resources, in particular the remarkable marine life associated with hydrothermal vents. Such genetic resources are not referred to in the Convention; and fall within the high seas legal regime, not the Part XI regime (except perhaps incidentally, in connection with the Authority's environmental responsibilities). After reviewing the Convention on Biological Diversity and the Convention on the Law of the Sea, certain authors have proposed that States should seek to develop a specific regime for the Area's genetic resources or for all genetic resources beyond national ju19 20

UNGA, 69th Plen. Mtg. of 24 November 1998. ISBA/3/A/4, paras 48-49: Selected Decisions 1/2/3, 56.

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risdiction. The report of the Independent World Commission on the Oceans, while acknowledging that "the genetic resources of the deep seabed at present fall outside the competences of ISBA" and that "the mandate of ISBA is confined to non-living resources", suggests that "the potentials of the genetic resources of the seabed should become the subject of urgent study, focusing on their legal, environmental and economic implications, and negotiation leading to their inclusion within an appropriate international regulatory regime".21 Nevertheless, the chief interest thus far has been in polymetallic (manganese) nodules. Three sectors in the Area appear to be of primary interest — the Clarion-Clipperton area between mainland United States and Hawaii, the south-western Pacific basin, and the central Indian Ocean basin. In addition several other areas would, it has been suggested, justify exploration for first-generation mining, including the Peru basin, the South Atlantic only, and the central south equatorial Indian Ocean.22 In January 1994 the Group of Technical Experts established by the Preparatory Commission concluded that it was unlikely that commercial deep seabed mining would take place before 201C, and was unable to make an assessment of the time when commercial production might be expected to commence.23 Since then a huge deposit of nickel has been found in Labrador, Canada, with the result that commercial deep seabed mining may now be decades away. In March 1998 a United States delegate informed the Council of the Authority that

21

22

23

L. Glowka, "The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area", Ocean Yearbook 12 (1996), 154 et seq.; T. Scovazzi, "Biodiversity in the Deep Seabed", Yearbook of International Environmental Law 7 (1996), 481 et seq.; D. K. Anton, "Law for the Sea's Biological Diversity", ColumJ. Transnat'l L. 36 (1997), 341 et seq.; The Ocean — Our Future, 1998, 70-71. A recent report of the Parliamentary Assembly of the Council of Europe (The Oceans: Provisional Report, Doc. 8177, 17 July 1998) also describes this as one of the hottest current issues. ISBA/3/A/4, para. 49: Selected Decisions 1/2/3, 56, citing V.E. McKelvey, "Subsea mineral resources", US Geological Survey Bulletin No. 1689A, 1986. Polymetallic nodules may also be found within national jurisdiction. LOS/PCN/BUR/R.32, reproduced in: LOS/PCN/153, Vol. Ill, 223 et seq. See also P. Hoagland, "Manganese Nodules: Price Trends: Dim Prospects for Commercialization of Deep Seabed Mining", in: Seoung-Yong Hong (ed.), The Role of the Oceans in the 21st Century: Proceedings, Law of the Sea Institute, 27th Annual Conference, 1995, 331 et seq.

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"The accidental discovery of the Voisey Bay giant nickel-coppercobalt and precious metal massive sulphide deposit in Labrador, which will be one of the lowest cost nickel producers in the world, may throw a wrench into plans for deep seabed mining for a very long time to come. And if deep seabed mining is undertaken, it can only be expected to augment, and not replace land deposits."24 Yet deepsea mining may take place for non-commercial reasons, for example, economic security, national prestige, reducing imports, or increasing employment. Such motives may be less in evidence than in the past, but have not entirely vanished. Indeed, as described below, no less than seven "registered pioneer investors" have applied for and been awarded plans of work for exploration by the Authority. It remains to be seen whether they will continue to make significant investments in deep seabed mining, and if and when others will join them in seeking plans of work.

4. Deep Seabed Mining and General International Law There was much controversy in the 1970s and 1980s about the status of deep seabed mining under general international law. The view held by the most interested industrialized States was that deepsea mining was a freedom of the high seas, open to all States and to be exercised with due regard for the interests of other States.25 Under this approach it was not possible to secure exclusive rights to mine sites, though a degree of exclusivity could be achieved through reciprocating agreements based on domestic legislation.26 The view that exclusive rights could be acquired 24

25

26

Statement by Ms Maureen Walker in the Council on 25 March 1998. Mr. Yuri Kazmin (Russian Federation) spoke in similar terms. T.G. Kronmiller, The Lawfulness of Deep Seabed Mining, 1980/ 1981; G. Jaenicke, "The Legal Status of the International Seabed — The Controversy about the Legality of National Legislation on Deep Sea Mining", in: R.Bernhardt (ed.), Volkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, 1983, 429 et seq.; Brown, see note 2, Chapter 2. Seven States passed domestic legislation: US Deep Sea-bed Hard Minerals Resources Act of 28 June 1980 (Public Law 96-283), ILM 19 (1980), 1003 et seq., 20 (1981), 1228 et seq. and 21 (1982), 867 et seq.; FRG Act on Interim Regulation of Deep Seabed Mining of 16 August 1980, as amended by Law of 12 February 1982, Bundesgesetzblatt 1980, Part I, 1457, ILM 19 (1980), 1330 et seq. and 21 (1982), 832 et seq.; UK Deep Sea Mining (Temporary Provisions) Act 1981 (c. 53) of 28 July 1981, ILM 20 (1981), 1218 et seq.;

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(through a form of occupation) was not accepted by any State and was expressly rejected by the most interested industrialized States.27 Arguing on the basis of the 1970 Declaration of Principles and the 1969 "Moratorium" resolution, developing States went further and claimed that deep seabed mining was unlawful under customary international law and could only take place pursuant to the international regime to be set forth in a future Convention.28 There have been a number of developments since the 1980s, not least the wide acceptance of the 1982 Convention and 1994 Agreement, including by most directly interested States. The Convention provides that the Area and its resources are the common heritage of mankind (article 136) and that there shall be no amendments to this basic principle (article 311 para. 6). The Convention prohibits deep seabed mining other than under the Part XI regime, and requires States Parties not to recognize any claim, acquisition or exercise of rights with respect to minerals recovered from the Area otherwise than in accordance with that regime (article 137). Relatively few States have enacted domestic legislation to crive effect to the Part XI regime. Some (including some of the most directly concerned) States Parties have done so, or rely on the direct effect of the relevant provisions of the Convention; yet others

27

28

French Law on the Exploration and Exploitation of Mineral Resources of the Deep Seabed of 23 December 1981, ILM 21 (1982), 808 et seq.; Soviet Edict on Provisional Measures to Regulate Soviet Enterprises for the Exploration and Exploitation of Mineral Resources of 17 April 1982; Japanese Law on Interim Measures for Deep Seabed Mining of July 1982, ILM 22 (1983), 102 et seq.; Italian Law No. 41 of 20 February 1985 on the Exploration and Exploitation of the Mineral Resources of the Deep Seabed, ILM 24 (1985), 983 et seq.: all seven laws are reproduced in Brown, see note 2, Vol.3. Reciprocating agreements and conflict resolution (overlapping areas) agreements were also concluded: see J.M. Broadus, P. Hoagland, "Conflict Resolution in the Assignment of Area Entitlements for Seabed Mining", San Diego L. Rev. 21 (1984), 541 et seq.; Brown, see note 2, Vol. 2, Chapter 8, Vol. 3; Brown, see note 6,456 et seq. "Deepsea Ventures, Inc.: Notice of Discovery and Claim of Exclusive Mining Rights, and Request for Diplomatic Protection and Protection of Investment", filed 15 November 1974, and the responses of Governments thereto: ILM 14 (1975), 51 et seq., and 795 et seq. UNCLOS, Official Records, Vol. IX, 103-105; A/CONF.62/77. The socalled "moratorium" resolution is A/RES/2574D (XXIV) of 15 December 1969; the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction is A/RES/2749 (XXV) of 17 December 1970.


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appear to rely, for the time being, either on the prohibitions contained in their interim deep seabed mining legislation or, perhaps, simply on the fact that none of their nationals is likely to wish to engage in deep sea mining in the foreseeable future.29 These developments make it harder to maintain that customary international law permits unilateral deep seabed mining, though some might say that they are insufficient to change the underlying position. The position under customary international law is, however, probably academic, since nearly all potential seabed mining States are parties to the Convention and Agreement. It is hoped that those remaining outside will join soon; and in any event it is increasingly unlikely that commercial deep seabed mining would be contemplated outside the international regime. The risks, including legal risks, are simply too great. The position under customary international law would be of interest only if the international regime were to collapse entirely, which is improbable.

II. Salient Features of the Authority The Authority is one of three international institutions established by the 1982 Convention on the Law of the Sea, the others being the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf. In addition, the meetings of States Parties have certain specific, essentially house-keeping functions under the Convention. A number of existing international institutions also have an important role in the implementation of the Convention; in particular, the General Assembly of the United Nations conducts an annual review of overall developments concerning the implementation of the Convention, based upon a most useful annual report by the United Nations Secretariat. The three new institutions are autonomous. They are not part of any other international organization, and they are not directly related one to another. The Authority has no role in connection with the determination of the outer limits of the continental shelf, a matter exclusively

29

For deepsea mining legislation enacted to give effect to Part XI see the German Deep Seabed Mining Act; New Zealand United Nations Convention on the Law of the Sea Act 1996 (No. 69), Part II.

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for coastal States and the Commission. And the Seabed Disputes Chamber of the Tribunal is independent of the Authority.30 No two international organizations are alike: each has its own specific role, peculiarities of organization and practice, character and style. At first sight the Authority is an international organization along classic lines, with an Assembly composed of all the members; a Council with limited membership; a Legal and Technical Commission and a Finance Committee, each consisting of individual experts; and a Secretariat, headed by a Secretary-General. But the Convention also makes provision for the eventual establishment of an Enterprise, an organ of the Authority which is to carry out activities in the Area directly; and it confers upon the Authority a central role in connection with the common heritage of mankind, in particular extensive regulatory powers in relation to deep seabed mining. In due course the Authority is to be self-financing. Before looking in detail at the work of the Authority three salient features will be mentioned. First, the Authority is an international organization with precisely defined and limited powers and functions (essentially concerned with "activities in the Area"). This is emphasised in the Agreement "The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The Authority shall have such incidental powers, consistent with this Convention, as are implicit, in and necessary for, the exercise of those powers and functions with respect to activities in the Area."31 This unusual provision expressly confirms, and by doing so reinforces in its application to the Authority, the concept of implied powers for international organizations. The provision expressly limits implied powers to those that are both consistent with the Convention and

30

31

NJ. Seeberg-Elverfeldt, The settlement of disputes in deep seabed mining, 1998. The Assembly of the Authority has not exercised the power under article 35 para.2 of the Tribunal's Statute to adopt recommendations of a general nature relating to the representation of the principal legal systems of the world and equitable geographical distribution in the Chamber. Both Tribunal and Authority will doubtless be scrupulous in avoiding a relationship agreement which might convey even the appearance of bias on the part of the Chamber. Agreement, Annex, Section 1, para.l, repeating article 157 para.2 of the Convention.

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Agreement and implicit in and necessary for the exercise of express powers and functions. The Authority is the organization through which States Parties to the Convention organize and control exploration for, and exploitation of, the mineral resources of the deep seabed beyond the continental shelf (as defined in article 76 of the Convention). This is to be done in accordance with the regime for deep seabed mining established in Part XI of the Convention and the 1994 Implementation Agreement. The deep seabed beyond the outer limits of the continental shelf is referred to as "the Area"; the Area and its mineral resources are the "common heritage of mankind".32 The term "activities in the Area" is a term of art referring to exploration for, and exploitation of, the mineral resources of the Area, not to activities on or under the deep seabed in general.33 The Authority also has certain functions in relation to "prospecting", as well as the distribution of benefits from "activities in the Area". The Enterprise, which is to be an organ of the Authority, will have functions going beyond "activities in the Area", and including transport, processing and marketing of minerals produced from the Area. The other potential tasks of the Authority concern marine scientific research in the Area;34 technology and scientific knowledge relating to "activities in the Area";35 the distribution of certain revenues from the continental shelf beyond 200 miles from territorial sea baselines;36 assistance to developing countries which suffer serious adverse effects from "activities in the Area";37 promotion of international cooperation concerning "activities in the Area" and encouraging the progressive development of international law relating thereto and its codification;38

32 33

34 35 36 37 38

Convention arts 1 para. 1(1), 133 lit.(a) and 136. Convention article 1 para. 1(2). This use of terms narrows the apparently sweeping terms of the 1970 Declaration of Principles. The strictly limited meaning of "activities in the Area" makes suggestions that the Authority should concern itself with the laying of fibre-optic cables on the ocean floor or with genetic resources misconceived (see SB/4/9 and Paolillo, see note 2,193 et seq.). Convention article 143 paras.2 and 3; see also article 256. Convention arts 144 and 273. Convention article 82. Agreement, Annex, Section 7. Convention article 160 para.2 lit.(j).

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and the review, and proposal of amendments to, certain provisions in Part XI.39 Second, the Convention as implemented by the 1994 Agreement is intended to safeguard the interests of those countries, for the most part a few highly industrialized countries, without whose cooperation deep sea mining will not take place, while at the same time ensuring a proper balance between the interests of deep seabed miners, land based producers and other industrialized and developing States. It does so in large measure through the composition and decision-making rules of the Council and Finance Committee, and through the careful relationship between Assembly, Council and Finance Committee. The Council is composed of 36 members, divided into five Groups (A, B, C, D and E) and for decision-making four Chambers (A, B, C, and developing countries in D/E). Groups A, B, C and D are represented on the Council by those members nominated by the Group; the Assembly's role in electing the candidates of these Groups is therefore a formality. Decisions of substance in the Council require either consensus, or a two-thirds majority of members present and voting provided that such decisions are not opposed by a majority in any one of the four Chambers. Decisions requiring consensus (such as adopting or amending rules, regulations and procedures) can be blocked by a single vote. Other decisions of substance can be blocked by three negative votes within Chamber A, Chamber B or Chamber C, or a somewhat larger number of developing countries within Chamber D/E. Abstentions within a Chamber would reduce the number of negative votes required.40 The Finance Committee consists of 15 persons elected by the Assembly. Groups A, B, C and D must be "represented" by at least one member. (The question whether each interest Group is entitled to nominate a candidate was not decided.) And so long as the Authority is funded by its members, the Committee as elected by the Assembly must include representatives of the five largest financial contributors.

39 40

Agreement, Annex, Section 4; Convention arts 314 to 316. R. Wolfrum, "The Decision-Making Process According to Sec. 3 of the Annex to the Implementation Agreement: A Model to be Followed for other International Economic Organizations?", ZaoRV 55 (1995), 310 et seq. For comments on the original decision-making procedures see E.L. Richardson, "Decision Making in the International Seabed Authority", Marine Policy 5 (1981), 256 et seq.


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Decisions of the Finance Committee on questions of substance are to be taken by consensus. Paras 4 and 7 of Section 3 of the Annex to the Agreement contain key safeguards "4. Decisions of the Assembly on any matter for which the Council also has competence or on any administrative, budgetary or financial matter shall be based on the recommendations of the Council. If the Assembly does not accept the recommendation of the Council on any matter, it shall return the matter to the Council for further consideration. The Council shall reconsider the matter in the light of the views expressed by the Assembly. 7. Decisions by the Assembly or the Council having financial or budgetary implications shall be based on the recommendations of the Finance Committee." These procedures have been scrupulously followed, with many decisions requiring successive action by Council and Assembly, or Finance Committee, Council and Assembly. Tbirdy a recurring theme in the work of the Authority is costeffectiveness. Every international organization is expected to be costeffective. In the case of the Authority this principle is enshrined in its constituent instrument. Para. 2 of Section 1 of the Annex to the Agreement provides "2. In order to minimize costs to States Parties, all organs and subsidiary bodies to be established under the Convention and this Agreement shall be cost-effective. This principle shall also apply to the frequency, duration and scheduling of meetings." Paras 3 and 4 of Section 1 give specific effect to this principle by providing that the setting up and functioning of the organs and subsidiary bodies of the Authority shall be based on an evolutionary approach, and that the functions of the Economic Planning Commission shall be performed by the Legal and Technical Commission. Para. 5 lists the priority matters for the Authority to be performed in the period before the approval of the first plan of work for exploitation (expected to be some time off). For an initial period, at least, the Secretariat of the Authority is to perform the functions of the Enterprise; thereafter, the Council is to "take up the issue" of the functioning of the Enterprise independently of the Secretariat. If joint-venture operations with the Enterprise "accord with sound commercial principles", the Council

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"shall issue a directive ... providing for such independent functioning".41 The frequency, duration and location of meetings are important matters for the Authority's budget; meetings also represent a significant direct cost to those States which send delegations to meetings in Kingston.42 Efforts have therefore been made to rationalize arrangements for meetings. In the first full year of activity (1995) there were five weeks of meetings, divided into two parts; in 1996, 1997 and 1998 there were four weeks, also divided into two parts. In 1999 there is to be a single three-week session. Equally important for the Authority's budget are staff costs and the costs of premises. Both have been kept modest, though some savings may be possible. In present circumstances there seems little prospect of significant expansion. The principle of cost-effectiveness set out in the Agreement may be taken to override explicit provisions in the Convention. Thus provision is made in the draft Financial Regulations for a biennial budgetary period (despite reference in the Convention to an annual budget). And while article 161 para. 5 of the Convention provides that the Council shall meet "not less than three times a year" and "function at the seat of the Authority", in practice there has been a single session, and in September 1998 invitations issued for a possible meeting of the Council in New York in October 1998.43

III. The Authority's Work During its First Four Sessions The first part of the first session of the Assembly was held at Kingston, Jamaica, from 16 to 18 November 1994. The opening date was fixed in the Convention as the date of entry into force, but that fell during the main part of the United Nations General Assembly and it was not con41 42

43

Agreement, Annex, Section 2, paras 1 and 2. The number of delegations attending sessions of the Authority has remained reasonably constant, and tends to hover just below the quorum for Assembly decisions. A certain number of members (Argentina, Brazil, Chile, China, Costa Rica, Cuba, Germany, Haiti, Italy, Jamaica, Mexico, Netherlands, the Republic of Korea) have established "permanent missions" to the Authority, based in their bilateral diplomatic missions. Note No. 194/98 from the Secretary-General to Council members. In the event, it was not necessary to hold this meeting.


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venient to hold a longer, substantive meeting. The first part of the session was mainly ceremonial, commemorating the entry into force of the Convention, and consisted of statements by the Secretary-General of the United Nations and over fifty States. Understandably, speakers addressed the Convention in general and not just the work of the Authority. In November 1994 the formal position under Part XI of the Convention was as follows: -

The provisions of Part XI that were objectionable to industrialized countries and, indeed, generally considered unworkable were "implemented" by the 1994 Agreement so as to make Part XI acceptable and, it was hoped, workable. While by November 1994 the changes had only been made on a provisional basis, there were high expectations that the 1994 Agreement would enter into force at an early date (which it did, on 28 July 1996). — The Preparatory Commission had decided, at its final session in August 1994, to consider as its final report the provisional final report already adopted in 1993 and to recommend to the Authority that it take into account the terms of the 1994 Agreement in the consideration of the recommendations and the report of the Preparatory Commission in order to ensure consistency as necessary.44 Most drafts prepared by the Commission were not finally adopted, and were in fact in important respects superseded by the 1994 Agreement. The Authority, a new, autonomous and largely unprecedented international organization, thus began life with a constituent instrument contained in two instruments (Part XI of the Convention, as — provisionally — modified by the 1994 Agreement); draft rules which were largely overtaken and which had no status and no obvious immediate role. Its establishment was the outcome of protracted and ideologically charged negotiations. The Authority's autonomy was (and remains) a major practical difficulty. The future was anything but certain when delegates gathered in Kingston in November 1994; by November 1998 the picture is somewhat clearer. 44

Statement by the Chairman of the Preparatory Commission in LOS/PCN/ L.llS/Rev.l and Corr.l, paras 47 and 49, reproduced in: LOS/PCN/153 (Vol. Ill), 177-178. The Rapporteur-General of the Preparatory Commission, Mr. Rattray (Jamaica), presented its final report to the Assembly in August 1995 (LOS/PCN/153 (Vols. I-XIII). For the Commission's documentation, see note 6.

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It is convenient to divide the work of the Authority into organizational matters and substantive work. An overview of the first four sessions is at pages 237 et seq.

1. Organisational Matters (i) Election of Assembly President The first, ceremonial part of the first session of the Assembly was chaired by the Secretary-General of the United Nations, and the Jamaican Prime Minister and Foreign Minister. At the second part of the first session the United Nations Legal Counsel acted as temporary President until, on 27 February 1995, the Assembly elected by acclamation Ambassador Djalal (Indonesia) as its President for the session. This election was uncontested, and established at the outset a good precedent for consensus in the Authority's affairs. Four Vice-Presidents were similarly elected by acclamation (Algeria, Canada, Mexico, Russian Federation), ensuring that the bureau consisted of one member from each of the five regional groups. Ambassador Djalal continued as President "Pro Tern" throughout the second session in 1996. The President of the Assembly in its third session in 1997 was Mr. Wako (Kenya), and at the fourth session in 1998 Dr. Bachleda-Curus (Poland). In no case was the election contested, and regional group rotation is establishing itself (Asia, Africa, Eastern Europe, probably to be followed by Latin America and the Caribbean in 1999, and Western Europe and Others in 2000). In the President's absence (for example, in August 1997), the chair was taken by a Vice-Chairman. (ii) Rules of Procedure of the Assembly In accordance with its terms of reference under Resolution I annexed to the Final Act of the Conference, the Preparatory Commission had, over a number of sessions, prepared draft rules of procedure for the Assembly. This draft needed substantial revision to take account of the 1994 Agreement.45 During the second part of the first session, in March 1995, 45

LOS/PCN/WP.20/Rev.3, reproduced in: LOS/PCN/153 (Vol. V) 3 et seq. Earlier drafts and proposals are reproduced in Platzoder Vol. III. The United Nations Secretariat's suggested revisions to take account of the 1994 Agreement were in documents ISBA/A/WP.l and ISBA/A/WP.2.


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the Assembly established a working group consisting of 10 States, two from each regional group (Brazil, Germany, Egypt, Indonesia, Jamaica, Poland, Republic of Korea, Russian Federation, Senegal, United Kingdom). The working group chose its Egyptian member (Mr. Aboulmagd) as chairman and, pursuant to a decision of the Assembly, decided to invite the United States (not a member of any regional group) to participate in its work as an observer. The group reviewed each draft rule in turn. The work was largely technical (though one or two matters proved contentious), and the group was able to reach agreement on all the rules, with the exception of part of Rule 86 (on rotation). The working group's principal task was to revise the draft rules so as to take account of the Agreement. At the curious insistence of Brazil (a State Party to the Convention not applying the Agreement provisionally) references in the rules to the Agreement were avoided. This was done by reproducing, where necessary, the provisions of the Agreement; adding three footnotes; and including an Introductory Note recording that "According to the Agreement, its provisions and Part XI of the Convention are to be interpreted and applied together as a single instrument; these rules and references in these rules to the Convention are to be interpreted and applied accordingly." Certain rules were revised substantially or inserted to bring the draft into line with the provisions of the Agreement (Rules 83, 84, 85, 86, 95 and 96). Others were amended to reflect the principle of costeffectiveness (Rules 35 and 42). In addition, three footnotes recall the provisions of the Agreement concerning the Enterprise and financing the Authority. The most contentious issue was a proposal to include in the rules a reference to the principle of cost-effectiveness already contained in Section 1, para. 2, of the Annex to the Agreement. Objection was made to any such reference on the not unreasonable ground that it was inappropriate to repeat an issue of principle in the rules. In the event, it was agreed not to include any such reference, on the understanding that the principle of cost-effectiveness would apply whenever decisions had to be taken on the holding and duration of sessions of the Assembly. Rule 1, it was noted, provides the necessary flexibility to enable regular sessions of the Assembly to be held less often than once a year, thus reflecting the fact that article 159 para. 2 of the Convention (which provides that the Assembly shall meet in regular annual sessions) is to be applied subject to the Agreement. This was further confirmed by the Introductory Note to the Rules cited above. Despite agreement on this

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point in the working group, the representative of the Russian Federation expressed reservations at the 14th meeting of the Assembly concerning the absence of an express reference in the rules to costeffectiveness; in response the representative of Jamaica explained that Rule 1 gave the necessary flexibility. Two important changes to the draft rules proposed by the Preparatory Commission reflect the need to keep costs down. The Assembly had already decided early in the second part of its first session to limit the number of Vice-Presidents to four, rather than to follow the practice in the United Nations General Assembly, the Law of the Sea Conference and the Preparatory Commission of having a large number of Vice-Presidents so as to form a General Committee based on some form of geographical or group representation. Consistent with this decision the working group suggested eliminating the proposed General Committee and relying instead on a bureau consisting of the President and four Vice-Presidents.46 This avoids unnecessary formal meetings, with interpretation and written reports. Of the functions envisaged for the General Committee those concerning the agenda were omitted since it was not considered necessary, in the case of the plenary body of an international organization with precisely defined and limited powers and functions, to make elaborate provision for the preparation of a draft agenda. Draft agendas are prepared by the Secretariat and adopted, with or without amendment, directly by the Assembly without need for a filter. Other functions of a General Committee (in particular, reviewing progress of the work of the session) may be carried out as appropriate by the bureau and/or chairmen of the regional groups, who may meet informally (without interpretation and written reports) as necessary. In fact, the bureau has rarely met; instead, the President has held frequent consultations with the chairmen of the five regional groups and the coordinators of the interest groups. The second important departure based upon cost-effectiveness from the draft offered by the Preparatory Commission is to the rule on rec-

46

Rules 28 and 35 of the Rules of Procedure. Rule 28 provides that the President and four Vice-Presidents shall be elected "in such a way as to ensure the representative character of the Bureau". This language was retained from earlier drafts providing for a thirty-six member General Committee. In practice it means that the bureau consists of one representative of each regional group, as was the case in the Preparatory Commission: see the consensus statement of understanding of 8 April 1983 in UN Press Release SEA/517, Platzoder Vol. VIII, 14.


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ords. The draft had proposed that summary records be kept of the plenary meetings of the Assembly. The preparation of summary records is costly; it was estimated that such a provision could double the cost of meetings. Moreover, the trend in international organisations is not to have summary records, it is being considered sufficient to make and retain sound recordings. While Rule 42 provides that the Assembly may keep summary records "if it so decides", it is not anticipated that summary records would in fact ever be kept unless exceptional circumstances (which are very unlikely to arise) were to make this essential on a particular occasion. In any event, as the Secretariat pointed out to the working group before the new rule was adopted, on practical grounds (lack of personnel and funding) it would not in fact be possible for the Assembly to decide on the spot to have summary records of any particular meeting. Arrangements would have to be made well in advance. One issue not raised in the working group which could have led to very significant savings was that of languages. Use of six languages seems unnecessary for an essentially technical body. Suggestions have recently been made to review this language regime on grounds of economy. Other obvious areas for economy are the number and location of meetings. Many other changes, mostly editorial, were made to the draft rules drawn up by the Preparatory Commission. Reference was included in Rule 60 to the participation in decision-making by entities other than States (for the time being, Cook Islands and the European Community), an issue which as regards international organizations had for some reason apparently proved controversial in the Preparatory Commission. Rule 82 on observers was amended to reflect more accurately the provisions of the Convention (arts. 156 para. 3 and 169 para. 2).47 Rule 92 on amendments to the rules was brought closer to the corresponding rule in the General Assembly, in particular by inserting a reference to prior consideration by a committee, so reducing the risk of illconsidered amendments. Rule 23 of the Rules of Procedure provides that credentials may be issued by the Minister for Foreign Affairs "or person authorized by him". This allows credentials to be issued by an official rather than the Minister (including, for example, a Permanent Representative in New York), provided that the official is authorized by the Minister and so 47

The Secretariat's draft rules had reflected the special role given to observers in the Preparatory Commission, which were brought into line with normal practice by the working group.

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indicates in the credentials. In its report at the third part of the first session, the Credentials Committee reminded delegations that credentials should be duly signed by the government officials referred to in the rule, and it was noted orally that the credentials should preferably state that the official signing was authorized by the Minister for Foreign Affairs.48 Rule 45 states that a majority of the members of the Authority shall constitute a quorum. This provision, which repeats verbatim article 159 para. 5 of the Convention, was not discussed in the working group, but its importance was highlighted by events at the resumed fourth session in August 1998 (see 216-217). The precise calculation of the quorum may not be without difficulty (in particular, as regards the position of international organizations which are members and — for the time being — as regards the Federal Republic of Yugoslavia, which the Secretariat — like the United Nations Secretariat — treats as a member). More seriously, the risk exists that any delegation which finds a decision or draft decision unacceptable may at any time seek to invoke the absence of a quorum. If the present pattern of attendance in Kingston continues this risk is high. A quorum is more likely to be attained at meetings in New York, especially given the flexible rule on credentials described above. The question of the status of decisions taken without a quorum (where the absence of a quorum can be established) is an interesting one.49 But if such decisions are not challenged promptly (that is, in a timely manner once the challenging State becomes aware, or should have become aware, of the facts) they must stand. Under the excellent guidance of its Egyptian chairman, the working group was able to agree on a complete set of draft rules of procedure for submission to the Assembly, with the exception of two bracketed sentences in draft Rule 86 (concerning the determination of the members whose terms were to expire at the end of two years). The draft rules were introduced at the 14th meeting of the Assembly on 16 March 1995. There ensued a lengthy debate on the bracketed sentences in Rule 86 and (instigated by New Zealand) on whether the draft should be adopted forthwith or deferred to allow delegations not represented on the working group more time for consideration. The President of the Assembly concluded that there was no difficulty with the substance of the sentences within brackets, and proposed that they

48 49

ISBA/A/7. R. Sabel, Procedure at International Conferences, 1997, 79 et seq.


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be included in the resolution adopting the Rules of Procedure. This was agreed by the Assembly and a resolution was then circulated.50 After submitting certain amendments to the draft rules at the 15th meeting of the Assembly (which were not considered), the New Zealand representative indicated that she would not oppose the adoption of the rules as proposed by the working group. They were duly adopted onl7March!995. 51 (iii) Election of the Council (1996,1998) After seven weeks of informal consultations at meetings of the Authority, plus intersessional consultations in New York, and heated debate, the Assembly elected the first Council on 21 March 1996.52 The arrangement is probably the most complex ever reached for the composition of an international organ. Participants may well have overestimated the practical importance of membership in the Council; observers are able to play a full role in the discussions, and it is only in the rare event of recourse to voting that Council membership, and Council membership in a particular Group, may be significant. The election of one half of the Council in March 1998 proved relatively uncontentious. 1996 Council Election The provisions of the Agreement and Convention concerning the election of the Council are complex. It is not surprising that their interpretation and application gave rise to major difficulties on the occasion of the first election.53 The provisions in question are Section 3, paras 9 50

51

One point raised by New Zealand was also raised by Belgium: the first sentence of Rule 86 repeats article 161 para. 4 of the Convention. New Zealand and Belgium argued that this language had been overtaken by the more specific language on rotation in Section 3 para. 10, of the Annex to the Agreement. In response, it was pointed out that Section 3 para. 10, and article 161 para. 4, were both still applicable and dealt with rotation in different contexts. Each provision was reflected accurately in the draft rules (Rules 83.2 and 86). ISBA/A/WP.3, published as ISA/97/001. The resolution is in ISBA/A/L.2: Selected Decisions 1/2/3, 3.

52

ISBA/A/L.8: Selected Decisions 1/2/3,15-17.

53

ISBA/A/L.l/Rev.l, paras 7-24: Selected Decisions 1/2/3, 4-7; ISBA/A/L.7/ Rev.l, paras 4-10: Selected Decisions 1/2/3, 8; ISBA/A/L.9, paras 4-11 and Annexes I-VII: Selected Decisions 1/2/3, 18-19, 21-35; ISBA/3/A/4, para.

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lit.(b), 10 and 15, of the Annex to the Agreement, and article 161 paras 3 and 4, of the Convention.54 They are reproduced verbatim in the Assembly's Rules of Procedure (Rules 83 to 87), with three minor additions. Rule 83 para. 1 provides that a State which fulfils the criteria for membership in more than one Group will be included in the lists of all relevant Groups (a statement of the obvious, since this is already clear from the Agreement). The second sentence of Rule 86 is likewise a statement of the obvious, though its inclusion may give some indication of how rotation will work in practice. Rule 87 on by-elections is new; there is nothing on by-elections in the Agreement or Convention. The procedure for nominating and electing the 36 members of the Council laid down in the Agreement and Convention is as follows -

The Assembly is to establish lists of countries fulfilling the criteria for membership in the four Groups specified in Section 3, para. 15 lit.(a) to (d), of the Annex to the Agreement: Group A major consumers/importers; Group B investors; Group C exporters; Group D developing States Parties representing special interests.55

-

Groups A, B, C and D nominate those of their members which are to represent them on the Council.56

-

The Assembly elects the 36 members of the Council in the following order: the four nominated by Group A, the four nominated by Group B, the four nominated by Group C, the six nominated by

54

55

56

14: Selected Decisions 1/2/3, 48. "Secretariat Brief: The Agreement Relating to Part XI of the Convention on the Law of the Sea", Asian-African Legal Consultative Committee, Report and Selected Documents of the 34th session, Doha, Qatar (1995), 35-61; Koch, see note 2, 212-213; Rajan, see note 2, 219etseq. While the Agreement does not expressly provide that article 161 para. 2, or article 308 para. 3, of the Convention shall not apply, this would appear to be the effect of disapplying article 161 para.l, of the Convention: article 161 para. 2, begins with the words "In electing the members of the Council in accordance with paragraph 1" and article 308 para.3, refers to "the purpose of article 161" and "the provisions of that article". On article 308 para.3, see Oxman, AJIL 75 (1981), 245 et seq. The draft rules suggested by the United Nations Secretariat (ISBA/A/WP.l; ISBA/A/WP.2) dropped the provision in the Preparatory Commission's draft corresponding to article 161 para.2; there is no such provision in the Rules of Procedure adopted by the Assembly. Agreement, Annex, Section 3 para.9 lit.(b); Rule 83.1 of the Rules of Procedure. Agreement, Annex, Section 3 para.lO;Rule 83.2 of the Rules of Procedure.


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Group D, and finally eighteen elected according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole, provided that each geographical region (Africa; Asia; Eastern Europe; Latin America and Caribbean; Western Europe and Others) has at least one member elected in Group E.57 In addition, it should be noted that in the first election, the terms of half of the members of each Group was two years instead of four years.58 Members of the Council are eligible for re-election, but due regard should be paid to the desirability of rotation.59 Where the number of potential candidates in any of Groups A to E exceeds the number of seats available, as a general rule, the principle of rotation shall apply and States members of each of those Groups should determine how this principle shall apply in those Groups.60 These provisions gave rise to a number of difficulties on the occasion of the first election of the Council: how to determine which States fulfilled the criteria for membership in Groups A to D; the nomination by each Group of the required number of candidates; where appropriate, the application of the principle of rotation within each Group; the selection of the members of each Group to be elected for a two-year term; and the application of the principle of ensuring an equitable geographical distribution of seats in the Council as a whole. Election of the various Groups was closely interrelated, but for ease of presentation they will be considered in turn.

57

58 59 60

Agreement, Annex, Section 3 para.5; Rule 84 of the Rules of Procedure. See also the informal understanding read by the President of the United Nations General Assembly at the time of the adoption of A/RES/48/263, to the effect that once there is widespread participation in the Authority and the number of members of each regional group is substantially similar to its membership in the United Nations, each group would be represented in the Council by at least three members: A/PV/101 and Doc.A/48/950, Annex II. The composition of the Council under the Agreement (unlike decision-making) does not differ greatly from that in the Convention: see Oxman, see note 54, 218 et seq., (on the Informal Consolidated Negotiating Text/Rev. 1); Paolillo, see note 2, 227 et seq. For earlier versions see the Informal Single Negotiating Text, article 27 paras. 1 to 3 (unchanged in the Revised Single Negotiating Text). Article 161, para.3, of the Convention; Rule 85 of the Rules of Procedure. Article 161, para.4, of the Convention; Rule 86 of the Rules of Procedure. Agreement, Annex, Section 3 para. 10; Rule 83.2 of the Rules of Procedure.

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Group A — Major Consumers/Importers Group A is represented on the Council by "Four members from among those States Parties which, during the last five years for which statistics are available, have either consumed more than 2 per cent in value terms of total world consumption or have net imports of more than 2 per cent in value terms of total world imports of the commodities produced from the categories of minerals to be derived from the Area, provided that the four members shall include one State from the Eastern European region having the largest economy in that region in terms of gross domestic product and the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product, if such States wish to be represented in this group."61 (Para. 15 lit.(a), Section 3, Annex) Differing views were held on the interpretation of the criteria for Group A, in particular whether a consuming or importing State must meet th^ 2% threshold for the value of each mineral concerned (assumed to be manganese, copper, cobalt and nickel) or only for the combined value of all four minerals.62 Of the members of the Authority at the second part of the first session in March 1995, Belgium, France, Germany, Italy, Japan, Republic of Korea, Russian Federation, United Kingdom and United States would qualify under both interpretations; China only under the latter interpretation. In accordance with the Assembly's decision that those States which considered themselves qualified in Groups A to D should meet, meetings of the "group of states which would fulfil the criteria for membership in the group defined in paragraph 15(a) of the Agreement" (as the meetings were described in the Journal of the Authority) took place with the United States representative as coordinator. In addition to the ten States mentioned in the preceding paragraph Brazil also attended. The Group took a number of decisions at this stage:

61

62

The proviso was intended to refer to the Russian Federation and the United States of America (on the assumption that they would be members of the Authority). ISBA/A/L.l/Rev.l, para 11: Selected Decisions 1/2/3, 5. Informal papers were prepared by the Secretariat setting out relevant statistics for certain Groups, including Group A, but these proved contentious and were subject to correction.


-

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The Group decided not to recommend a list of States meeting the criteria of para. 15 lit.(a), but rather to take a flexible and inclusive approach to its deliberations. If all those qualified were able to participate in meetings at which consensus was actually reached it did not matter that others which might not be qualified were also present. This was a pragmatic response to the difficulty of interpreting the criteria, and was without prejudice to the resolution of that question in the case of future elections.

- The Group decided to nominate Japan, Russian Federation, United Kingdom and United States for election to the Council in Group A, three other candidates (Belgium, Germany and Italy) having withdrawn on the understanding that the application of the principle of rotation in future elections would provide opportunities for their election to the Council as representatives of the Group. -

The Group noted the readiness of the United States to be elected for a two-year term and the readiness of the Russian Federation to consider being elected for a two-year term, on certain conditions.63 There were no significant developments in Group A in August 1995, pending a solution in Group B. The above decisions were unchanged when the Council was eventually elected in March 1996. Group B — Investors Group B is represented on the Council by "Four members from among the eight States Parties which have made the largest investments in preparation for and in the conduct of activities in the Area, either directly or through their nationals." (Para. 15 lit.(b), Section 3, Annex) The States which considered that they might fall within this Group met first with Canada and then with Germany as coordinator. They agreed to exchange data on investments expressed in terms of constant 1994 United States dollars. As a result of this exchange there was agreement within the Group that the eight largest investors for the purposes of Section 3, para. 15 lit.(b) of the Annex to the Agreement were, in order, Germany, United States, Japan, Russian Federation, China, India,

63

Report of the Coordinator of Group A, ISBA/A/L.l/Rev.l and Corr.l, paras 11 to 13: Selected Decisions 1/2/3, 5. The revision of ISBA/A/L.l followed the rather contentious debate at the 15th Plen. Mtg.

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France and Netherlands.64 However, in March 1995 there was no agreement as to which four should represent the Group on the Council. All five of the eight which were eligible (Group A having already decided to nominate Japan, Russian Federation and United States to represent Group A in the Council) maintained their candidacies.65 At the third part of the first session in August 1995 there was no significant progress within Group B. In March 1996, Netherlands withdrew its candidacy on the understanding that it would be elected in 1998 for four years, and India agreed to a two-year term on condition it would be elected in 2000 for four years.66 Group C — Major Exporters Group C is represented on the Council by "Four members from among States Parties which, on the basis of production in areas under their jurisdiction, are major net exporters of the categories of minerals to be derived from the Area, including at least two developing States whose exports of such minerals have a substantial bearing upon their economies." (Para. 15 lit.(c), Section 3, Annex.) Section 3, para. 15 lit.(c) of the Annex to the Agreement, unlike para. 15 lit. (a), does not contain any percentage figure. Meetings of this Group were attended by 19 States, of which six (Australia, Chile, Gabon, Indonesia, Poland and Zambia) were candidates for the four seats avail64

65

66

Those participating in the meetings but not within the top eight were, in order: United Kingdom, Republic of Korea, Belgium, Poland, Canada and Italy. The data exchanged gave the following order (figures — in constant 1994 US$ supplied by a participant): Germany (435,470,000); United States (390,917,300)Japan(381,000,000);Russia(343,300,000);China (156,010,000); India (151,550,000); France (149,129,540); Netherlands (108,935,673); United Kingdom (93,500,000); Republic of Korea (83,800,000); Belgium (65,508,047); Poland (63,300,000); Canada (54,611,200); Italy (50,000,000). Report of the Coordinator of Group B, ISBA/A/L.l/Rev.l, paras 14 and 15: Selected Decisions 1/2/3, 5-6. The Republic of Korea (not among the eight largest investors in 1996) and Japan both made statements asserting that the determination of the eight largest investors could only be made at the time of the election, and therefore reserved their position on the decisions taken by Group B in 1996 concerning the elections in 1998 and 2000: ISBA/A/L.8, Annexes II and III: Selected Decisions 1/2/3, 22. In the event, no attempt was made in 1998 to reopen the 1996 decision to elect the Netherlands.


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able. By the end of the second part of the first session in March 1995 agreement seemed to be emerging within the Group to nominate Australia, Chile, Indonesia and Zambia, though Gabon and Poland had not withdrawn. A point of concern within this Group was the balance between developed and developing countries. The Agreement provides that "at least" two of the four members nominated by the Group should be developing countries; even if on this occasion only one industrialized country was nominated by the Group it was understood that at future elections two industrialised countries might be nominated. As in Group A there was agreement that at this stage it was not appropriate to draw up a definitive list of countries eligible for election under para. 15 lit.(c).67 At the third part of the first session in August 1995 Group C largely resolved its problems. Under the eventual agreement, Australia and Chile received two-year terms, while Indonesia relinquished its seat in 1998 to Poland for the remaining two years of a four-year term, and Zambia did likewise for Gabon. Group D — Developing States Parties Representing Special Interests Group D is represented on the Council by "Six members from among developing States Parties, representing special interests. The special interests to be represented shall include those of States with large populations, States which are land-locked or geographically disadvantaged, island States, States which are major importers of the categories of minerals to be derived from the Area, States which are potential producers of such minerals and least developed States." (Para. 15 lit.(a), Section 3, Annex) Thirty-two States attended meetings of Group D, of which twelve declared their intention of seeking nomination to the Council to represent this Group. Others indicated an interest in nomination in either Group D or Group E. In view of the discussions taking place in the other Groups, Group D made little progress at the second part of the first session in March 1995,68 and there was no significant forward move-

67

68

Report of the Coordinator of Group C, ISBA/A/L.l/Rev.l, paras 16 to 19: Selected Decisions 1/2/3, 6. Report of the Coordinator of Group D, ISBA/A/L.l/Rev.l, para. 20: Selected Decisions 1/2/3, 6.

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ment in August 1995 either. It was only in March 1996 that agreement was reached.69 Group E — Equitable Geographical Distribution Section 3, para. 15 lit.(e) of the Annex to the Agreement provides that 18 members of the Council shall be elected "according to the principle of ensuring an equitable geographical distribution of seats in the Council as a whole", and that each of the five regional groups shall have at least one member elected under the subparagraph. The application of this provision proved very contentious. Consultations were conducted by the President of the Assembly with the chairmen of the five regional groups and the United States70 throughout the second part of the first session in March 1995, but without result.71 A full scale debate took place in the Assembly on 9 March 1995. No significant progress was made in August 1995, but in March 1996 a complex solution was found whereby the overall equitable geographical distribution in the Council as a whole (thirty-six members) would be Africa 10; Asia 9; Eastern Europe 3; Latin American and Caribbean (GRULAC) 7; Western Europe and Others (WEOG) 8. This totals thirty-seven, so it was agreed that "burden sharing" would apply: in the first year GRULAC would only have 6 seats, in the second year WEOG only 7, in the third year Africa only 9 and in the fourth year Asia only 8. Having regard to the informal understanding of 28 July 1994 (whereby Eastern Europe would not drop below 3 seats), the Eastern Europe Group made it clear that they could not accept any decision to apply to "burden sharing" to their Group.72 69

70

71 72

Belize claimed that it (as well as Guinea-Bissau and Guyana) were "island States" for the purposes of Group D, since as low-lying coastal States they were members of the Alliance of Small Island States and had participated as such in the Barbados Conference on the Sustainable Development of Small Island Developing States: ISBA/A/L.8, Annex V: Selected Decisions 1/2/3, 23. Thus following the pattern established at the Conference. "Although the United States did not participate in the WEO Group, it was always invited, as an observer, by the President of the Conference to meetings of the representatives of regional groups. These observers were always asked to speak on the topic under discussion"; Koh and Jayakumar, see note 5, 83. ISBA/A/L. 1 /Rev. 1, paras 21 to 24. ISBA/A/L.9, Annex VI: Selected Decisions 1/2/3, 23-24, see note 53. A curious element in the compromise is that the Group subject to "burden-


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1998 Council Election In March 1998 the Assembly elected half the members of the Council for a four-year term beginning in January 1999.73 In doing so it followed the agreement reached in March 1996, which effectively decided most of those to be elected. As in 1996 complex arrangements were made for split terms, though to a lesser extent so there will be somewhat more continuity. More Council members will serve the full fouryear term. No account was or indeed could be taken of the possibility that the Council might include provisional members which might cease to be members on 16 November 1998. All members had to be treated equally; the possibility that the status of some would change during their term could only be dealt with when it occurred. (iv) Terms of Office of Council Members In March 1998 the Secretary-General suggested that the terms of office of Council members should be harmonized with the calendar year. After extensive consultations this was agreed. The Assembly adopted a decision extending the terms of office of existing members to 31 December 1998 or 31 December 2000 respectively, with those newly elected beginning their terms only on 1 January 1999. This decision did not in any way affect the arrangements reached within the Groups in 1996 and 1998.74 The decision was taken despite some legal qualms on the part of GRULAC, which requested an opinion from the Office of Legal Affairs. The Chief of that Office declined to give a formal legal opinion in response to a request from a regional group, since the request had not been received from an organ of the Authority (letter of 23 March 1998), but clearly there were not considered to be any legal barriers to the arrangement. (v) Election of the Secretary-General (1996) Article 166 para. 2 provides that

73 74

sharing" may nominate a member as some kind of special observer to the Council: Jamaica was so nominated in the first year. But such observer has no rights over and above other observers. ISBA/4/A/L.6: Selected Decisions 4, 40-41. ISBA/4/A/5: Selected Decisions 4,40; ISB A/4/A/9, paras 11 to 13: Selected Decisions 4, 51.

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"The Secretary-General shall be elected for four years by the Assembly from among the candidates proposed by the Council and may be re-elected." Article 162 para. 2 lit.(b) provides that the Council shall propose to the Assembly a "list of candidates" for the election of the SecretaryGeneral, and article 160 para. 2 lit. (b) that the Assembly shall elect the Secretary-General "from among the candidates proposed by the Council". In 1996 there was some debate as to whether these provisions (which differ from the corresponding provisions of the Charter of the United Nations) required the Council to propose more than one candidate. There were four candidates: Nandan (Fiji), Preval (Cuba), Rattray (Jamaica) and Warioba (Tanzania). The election campaign was hardfought, though members of the Authority were determined to elect the first Secretary-General by consensus if possible. In the event the Council agreed that there should be a secret indicative vote at an informal meeting of all delegations to the Authority present in Jamaica. But when that meeting convened two of the candidates announced their withdrawal. In these changed circumstances, the Council met and, without prejudice to the question of interpretation referred above, did not object to the two remaining names going forward to the Assembly. An informal meeting of all delegations on 21 March 1996 then proceeded to a secret indicative vote, following which Warioba withdrew and the Assembly by acclamation elected Nandan as Secretary-General for a four-year term.75 (vi) Establishment of Secretariat The Secretariat is one of the principal organs of the Authority. Article 166 para. 1 provides that "The Secretariat of the Authority shall comprise a Secretary-General and such staff as the Authority may require." The Agreement provides that the setting up of the organs of the Authority shall be based on an evolutionary approach, taking into account the functional needs of the organs concerned in order that they may discharge effectively their respective responsibilities at various stages of the development of deepsea mining. In establishing the Secre75

ISBA/A/L.9, paras 12-17: Selected Decisions 1/2/3, 19-20; Koch, see note 2,214.


211

tariat, the Secretary-General, with the support of the Finance Committee, has adhered strictly to this principle. As the Secretary-General recently said: "Immediately after taking up office, as Secretary-General I was called upon to establish a small core Secretariat, which assisted in reviewing the future staffing requirements of the Secretariat. Consistent with the principles of cost-effectiveness and the evolutionary approach to the establishment of the Authority in general, it was proposed that the development of the Secretariat should be phasedin over a period of time with the eventual size of the Secretariat numbering some 44 staff members (ISBA/A/9/Add.l). This number is much lower than the Secretariat establishment of 257 suggested in a study presented to the Conference in 1981 (A/CONF.62/L.65) and certainly a far cry from the exaggerated and unrealistic number of 3000 that was mentioned in some unofficial publications and seminars. The Secretariat that is being established aims to be efficient, technically competent and appropriate to the needs of the Authority as they evolve."76 In fact additional posts were not requested for 1999, and the approved establishment of the Secretariat remains at 36 posts.77 Some 30 posts are currently filled, recruitment of the remainder being deferred. The Secretariat has four divisions: Office of the Secretary-General; Office of Legal Affairs; Office of Resources and Environmental Monitoring; and Office of Administration and Management.78 The staff members' terms of service are in accordance with the common system of salaries, allowances and other conditions of service of the United Nations and the specialized agencies. Staff members participate in the United Nations Joint Staff Pension Fund, as requested by the Assembly on the recommendation of the Council.79 This facilitates secondment from and to organizations in the United Nations system.

76

77 78 79

Statement at the Law of the Sea Institute, 31st Annual Conference, Miami, 30-31 March 1998. ISBA/4/A/11, paras 24-25: Selected Decisions 4, 56. ISB A/3/A/4, Annex: Selected Decisions 1/2/3, 52-53, 59-60. ISBA/C/8: Selected Decisions 1/2/3, 35; ISBA/3/A/4, para. 38: Selected Decisions 1/2/3, 53-54; ISBA/A/15: Selected Decisions 1/2/3, 25-26; ISBA/4/A/11, para. 26: Selected Decisions 4, 52-63. See also article 11 of the Relationship Agreement between the Authority and the United Nations.

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(vii) Election of Council President The President "Pro Tern" of the Assembly (Djalal) acted as President "Pro Tern" of the Council until, on 15 August 1996, the Council elected by acclamation Ambassador Ballah (Trinidad and Tobago) as its first President. There were originally two candidates: Mr. Koch (Germany) and Ambassador Ballah. Following an informal secret indicative vote of Council members Koch withdrew his candidature. Ballah assumed office immediately, and remained in office until the election by acclamation of his successor (Koch) on 16 March 1998. (viii) Rules of Procedure of Council As with the Assembly's Rules of Procedure considerable changes were needed in the draft Rules of Procedure of the Council prepared by the Preparatory Commission,80 primarily to take account of the Agreement. The Secretariat prepared a further draft taking into account the Agreement and the approach taken by the Assembly to its Rules,81 which was considered in a working group of the Council chaired by Mr. Marsit (Tunisia, now Judge). The work benefited greatly from the work already done on the Assembly's Rules and was largely uncontentious. The Council adopted its Rules of Procedure on 16 August 1996.82 (ix) Election of Finance Committee and Organization of its Work The Assembly elected the 15 members of the Finance Committee in August 1996.83 This election proved less contentious than the election of the Council, but nevertheless took up much of the second part of the second session. Section 9, para. 3 of the Annex to the Agreement makes provision for the composition of the Finance Committee as follows "Members of the Finance Committee shall be elected by the Assembly and due account shall be taken of the need for equitable geographical distribution and the representation of special interests. Each group of States referred to in Section 3, paragraph 15 (a), (b), 80 81 82 83

LOS/PCN/WP.31/Rev.3, reproduced in: LOS/PCN/153 (Vol. V), 58-74. ISBA/C/WP.l. ISBA/C/12, published as ISA/97/002. Koch, see note 2, 214; Rajan, see note 2, 225-226.


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(c) and (d), of this Annex shall be represented on the Committee by at least one member. Until the Authority has sufficient funds other than assessed contributions to meet its administrative expenses, the membership of the Committee shall include representatives of the five largest financial contributors to the administrative budget of the Authority. Thereafter, the election of one member from each group shall be on the basis of nomination by the members of the respective group, without prejudice to the possibility of further members being elected from each group." The election of the Committee has therefore to take "due account of the need for equitable geographical distribution and the representation of special interests". Each of Group A to D in the Council has to be represented by at least one member. Until the Authority has sufficient "own resources" a Committee member from each of the five largest contributors to the administrative budget is to be elected. In August 1996 the five largest contributors were France, Germany, Japan, United Kingdom and United States of America. The agreement on the 1996 election, while nothing like as complex as that for the Council, involved a GRULAC seat being surrendered to Asia on 1 January 1999; and a WEOG seat being surrendered to Eastern Europe on 1 July 1999. The agreement was said to be without prejudice to the overall composition of the Committee in future elections and in particular the claims of the regional groups. It further said that the situation "may need to be reviewed" after 16 November 1998.84 The members of the Committee serve in their individual capacity and are elected for a five-year term. In the light of the special circumstances of the first election it was agreed that the five-year period would begin on 1 January 1997. As a temporary measure Mr. Marsit (Tunisia- now Judge), though not a member of the Committee, was requested by the Assembly to chair its short first session in August 1996, when a draft budget had to be prepared urgently. In March 1997 Mr. Rama Rao (India) was elected chairman by acclamation in the Committee; he continued as chairman in 1998.

84

ISBA/A/L./Rev.l, paras 14-15: Selected Decisions 1/2/3, 9; ISBA/A/L.13, paras 6-12: Selected Decisions 1/2/3, 30-31; ISBA/3/A/4, paras. 15 and 16: Selected Decisions 1/2/3, 48-49.

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Draft Rules of Procedure for a Finance Committee had been drawn up by the Preparatory Commission,85 but these of course predated the new provisions in the 1994 Part XI Agreement and needed substantial revision. A revised draft has been prepared by the Secretariat,86 but the Committee has not yet considered it. (x) Budgets for 1994-1996,1997,1998 and 1999 Until 31 December 1997 the administrative expenses of the Authority were met from the regular budget of the United Nations.87 Thereafter they are to be met by the members of the Authority in accordance with a scale of assessment adopted by the Assembly, until such time as the Authority has its "own resources" from deep seabed mining. The failure of many members (including the largest contributor) to pay on time or at all in 1998 led to a considerable cash-flow problem, and on 20 August 1998 the Assembly adopted a resolution appealing to members to pay contributions as soon as possible.88 Up to the end of 1995 provision was made in the UN regular budget ior US$ 776,000 ( not counting conference services). There being no Secretary-General of the Authority to prepare a draft budget for 1996, the Assembly entrusted the UN Secretary-General with preparing a budget.89 Pursuant to this decision the UN General Assembly adopted a budget of US$ 2,627,100 for 1996 (including US$ 1,318,900 for conference services). Preparation in August 1996 of the 1997 budget took place within the organs of the Authority (though it also had to go through United Nations procedures culminating in A/RES/51/221 of 18 December 1996) . The procedures followed within the Authority in August 1996 served as the model for subsequent years. In brief, the Secretary-General of the Authority submitted a draft budget to the Finance Committee, which considered it in much the same way as the Advisory Committee on Administrative and Budgetary Questions (ACABQ) considers budget85 86

87

88

89

LOS/PCN/WP.45/Rev.2, reproduced in: LOS/PCN/153(Vol. V), 92-96. ISBA/4/FC/WP.2 of 15 June 1998 (replacing an earlier Secretariat draft in ISBA/F/WP.l). Agreement, Annex, Section 1, para. 14; A/RES/49/218 of 23 December 1994 and subsequent resolutions. ISBA/4/A/12. See also paragraph 11 of A/RES/53/32 of 24 November 1998. ISBA/A/L.5.


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ary proposals in New York. The Committee met in informal session to hear from and put questions to the Secretary-General and his staff (Office of Administration and Management). The Committee then discussed the draft in private session (without the Secretariat). Following this the Secretary-General submitted a revised budget, which the Committee considered further.90 The revised budget, together with the Committee's recommendations thereon, then went in turn to the Council and the Assembly (which adopted them without change). The budget for 1997 was US$ 4,150,500 (including 1,400,000 for conference services) and was based on an evolutionary approach.91 That for 1998 was US$ 4,697,100 (including $ 1,375,800 for conference services)92 and the 1999 budget amounted to US$ 5,011,700 (U$ 1,2000,300 for conference services).93 In addition a Working Capital Fund was established in the amount of US$ 392,000, half to be paid in 1998 and half in 1999.94 It will be seen that the Authority's budget has increased substantially, doubling between 1996 and 1999. This is nothing exceptional for an organization which is in the process of establishing itself on an evolutionary basis. A large proportion of the budget goes on conference services and on administrative matters, and relatively little on the substantive work of the Authority, though the 1999 budget shows a modest but welcome shift of emphasis in this regard (including a reduction in conference servicing costs). There seems no reason why the overall level of the budget should not now remain relatively stable for the foreseeable future. The failure in 1998 of many States to honour their legal obligation to pay their contribution in full and on time, or at all, may to some degree reflect their reluctance to inject resources into an organization whose role remains, unclear. The current budgetary crisis of the Authority seems likely to continue.

90 91 92

93

94

ISBA/A/9-ISBA/C/5 and Add.l. ISBA/A/14: Selected Decisions 1/2/3,27-28. For the 1998 budget, see proposed budget in ISBA/3/A/5 -ISBA/3/C/5; revised budgetary requirements in ISBA/3/A/5/Add.l-ISBA/3/C/5/ Add.l; report of the Finance Committee in ISBA/3/A/6-ISBA/3/C/8; and Assembly Decision ISBA/3/A/9: Selected Decisions 1/2/3, 60-61. For the 1999 budget, see proposed budget in ISBA/4/A/10- ISBA/4/C/6; revised budgetary requirements in ISBA/4/A/10/Add.l- ISBA/4/C/6/ Add.l; report of the Finance Committee in ISBA/4/A/13/Rev.l- ISBA/4/ C/10/Rev.l; and Assembly Decision ISBA/4/A/17 : Selected Decisions 4, 64. ISBA/3/A/9: Selected Decisions 1/2/3, 60-61.

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(xi) Scale of Assessment for 1998 and 1999 According to article 160 para. 2 lit.(e) of the Convention the Assembly is "to assess the contributions of members to the administrative budget of the Authority in accordance with an agreed scale of assessment based upon the scale used for the regular budget of the United Nations." The Agreement, Annex 9, para. 7 provides that decisions of the Assembly and the Council on this matter shall take into account recommendations of the Finance Committee. The Assembly adopted a scale of assessment for 1998,95 the scale being the same as that for the 1997 regular budget of the United Nations, adjusted to take account of differences in membership. On 13 October 1998 the Assembly (meeting in New York) authorized the Secretary-General to establish a scale for 1999, based on that used for the 1998 regular budget of the United Nations.96 Two major difficulties have arisen in connection with the assessments: over the amount and nature of the European Community's contribution; and over which year's United Nations scale should form the basis for the Authority's scale. The European Community is a member of the Authority (until 1 May 1998 on a provisional basis), as are 13 of its 15 Member States. The provisions of the Convention are unclear as to whether the European Community is required to make a contribution to the budget (an assessed contribution). While the budgetary provisions of the Convention and Agreement appear to treat all members alike, article 4 of Annex IX, to the Convention can be read as not requiring an international organization to pay in addition to its Member States unless as an internal matter within the organization it is agreed that contributions will be shared between the organization and its Member States. The practice in other organizations in relation to the European Community is varied. Despite protracted negotiations both on the level and the nature of the European Community's contribution there is as yet no general agreement on these matters. In 1997 the Assembly (on the recommendation of the Finance Committee and Council) had adopted a scale of assessment for the 1998 95 96

ISB A/3/A/10. ISB A/4/A/21: Selected Decisions 4, 67.


217

budget based on the 1997 United Nations scale (this being the latest available). This decision was not in any way controversial. In 1998, the Finance Committee considered briefly the question whether the 1998 or 1999 United Nations scale should be the basis for the Authority's 1999 budget, and agreed without difficulty (or even much discussion) that the 1998 United Nations scale should be used. (This point was not explicitly dealt with in the Finance Committee's report, but was reflected in the accompanying indicative scales.) The Finance Committee recommended that the Secretary-General be authorized to establish the actual scale after 16 November 1998, in the hope — which proved in vain — that certain major contributors that were still provisional members would remain members after that date. The draft budgetary decision before the Council in August 1998 explicitly authorized the Secretary-General to establish the scale on the basis of the 1998 United Nations scale. The Eastern European members of the Council (whose assessments were dramatically less on the 1999 United Nations scale than on that for 1998) moved an amendment to substitute a reference to the 1999 United Nations scale, which amendment was soundly defeated in the Council (3 votes in favour, 29 against, with no abstentions), all other groups supporting the position taken by the Finance Committee; the unamended draft decision was duly adopted by the same overwhelming majority. The delegation of the Russian Federation then made it clear in the corridors that if an attempt were made to adopt the scale of assessment decision in the Assembly they would object on the ground that there was no quorum. Since there were indeed insufficient delegations present in Kingston to constitute a quorum, it was concluded that the least unsatisfactory way to proceed was for the Assembly to adopt the 1999 budget (to which there was no objection) immediately, but to defer a decision on the scale of assessment and reconvene later in New York, where a quorum could more readily be obtained. This was decided, and a further resumed fourth session of the Assembly took place in New York on 12 and 13 October 1998. On that occasion a quorum was — not without some difficulty — obtained. The Russian amendments97 were rejected with 5 votes in favour (Poland, Russia, Slovakia, Slovenia, Ukraine), 76 against and no abstentions, and

97

ISBA/4/A/L.8/Rev.l and ISBA/4/A/L.9.

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the original decision 98 was adopted by 76 votes in favour, 3 against (Poland, Russia, Ukraine), and 2 abstentions (Slovakia, Slovenia). (xii) Draft Financial Regulations The Assembly has not yet adopted the Financial Regulations of the Authority. Draft Financial Regulations were proposed by the Finance Committee in August 1998, but have not yet been considered by the Council." Pending their adoption the Authority applies mutatis mutandis the Financial Regulations of the United Nations.100 (xiii) Draft Staff Regulations The Assembly has not yet adopted the Staff Regulations. Pending their adoption the Authority applies mutatis mutandis the Staff Regulations and Rules of the United Nations.101 Draft Staff Regulations, largely based on those of the United Nations, have been prepared by the Secretariat for consideration by the Finance Committee.102 They were not considered by the Committee in August 1998, in part because the United Nations General Assembly was to review the United Nations Staff Regulations later in 1998. (xiv) Election of Legal and Technical Commission and Organization of its Work The Convention provides for two organs of the Council, an Economic Planning Commission and a Legal and Technical Commission (arts 163-165). The Agreement, however, provides that the functions of the Economic Planning Commission shall for the time being be performed by the Legal and Technical Commission. According to article 163 para. 2

98

99 100

101

102

ISBA/4/A/L.7. The 1999 scale of assessment has been issued as ISBA/4/ A/23. See also ISBA/4/A/22: Selected Decisions 4, 67-68. ISBA/4/C/L.3 and ISBA/4/C/14, para.8: Selected Decisions 4, 76. ISBA/A/15: Selected Decisions 1/2/3, 29; ISBA/3/A/4, para. 39: Selected Decisions 1/2/3, 54. ISBA/A/15: Selected Decisions 1/2/3, 29; ISBA/3/A/4, para. 40: Selected Decisions 1/2/3, 54. ISA/4/FC/CRP.1 of 18 March 1998.


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"Each Commission shall be composed of 15 members, elected by the Council from among the candidates nominated by the States Parties. However, if necessary, the Council may decide to increase the size of either Commission having due regard to economy and efficiency." According to article 165 para. 1 "Members of the Legal and Technical Commission shall have appropriate qualifications such as those relevant to exploration for and exploitation and processing of mineral resources, oceanology, protection of the marine environment, or economic or legal matters relating to ocean mining and related fields of expertise. The Council shall endeavour to ensure that the membership of the Commission reflects all appropriate qualifications." When the Council came to elect the Commission, in August 1996, there were 22 candidates. The President of the Council, Ambassador Ballah, proposed — somewhat unexpectedly but to general relief (following the protracted consultations on the Council and Finance Committee elections) — that advantage be taken of the flexibility inherent in article 163 para. 2 to decide to increase the number of seats on the Commission from 15 to 22 and elect all 22 candidates by acclamation. This was done, without prejudice to future elections to the Commission.103 The members of the Commission act in their personal capacity, and do not represent Governments. They were elected for a term of five years from 1 January 1997. Their term of office will therefore expire in 31 December 2001. Mr. Lenoble (France) was elected chairman. The Commission generally meets in private. In August 1997 however, at the insistence of certain countries invoking the need for "transparency" (suggesting that better understanding of the Commission's reasoning on the provisions of the draft Mining Code would make Council acceptance more likely) and against the unanimous view in the Commission, an understanding was reached within the Council whereby a limited number of observers could be present meetings of the Commission relating to discussions on the draft Mining Code. It was agreed that the presence of the observers would be on a first come, first served basis and normally should not exceed 15 persons. The observers would not participate in the discussions. Strong arguments were made against opening the Commission to observers. In particular, it was argued that to do so would alter the na103

ISBA/C/L.3, para. 7: Selected Decisions 1/2/3, 39.

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ture of the expert discussions, politicizing them, and to some degree this happened. It was also argued that the Commission would have to deal with confidential matters, in particular commercially confidential data provided by mining operators. The members of the Commission were bound by obligations of confidentiality, whereas observers were not. To this second argument the response was that confidential data would not be discussed during the preparation of the Mining Code.104 During the Preparatory Commission the United Nations Secretariat had prepared draft Rules of Procedure for the Commission.105 These were modified substantially by the Authority's Secretariat in order to bring them into conformity with the Agreement and make them consistent with the provisions of the Convention and Agreement,106 and considered by the Commission in August 1998. On 26 August 1998 the Commission adopted an "informal revised text".107 (xv) Relationship with the United Nations and Other Bodies The Authority is an autonomous international organization. It is not a specialized agency of the United Nations; nor does it have a status similar to that of a specialized agency, as does the IAEA. Article 162 para. 2 lit.(f) of the Convention provides that the Council may "enter into agreements with the United Nations or other international organizations on behalf of the Authority and within its competence, subject to approval by the Assembly." The Council requested the Secretary-General to negotiate a Relationship Agreement with the Secretary-General of the United Nations; and the United Nations General Assembly made a parallel request to the United Nations Secretary-General. On 14 March 1997 the Agreement between the United Nations and the Authority was signed and provisionally applied in accordance with the parallel resolutions of the two Assemblies. Following its approval by the Assembly of the Authority

104

105 106 107

ISBA/3/C/L.4, para. 7: Selected Decisions 1/2/3, 65; ISBA/3/C/11, para. 34: Selected Decisions 1/2/3, 72. LOS/PCN/WR31/Rev.3, reproduced in LOS/PCN/153, Vol. V, 58. ISBA/3/LTC/WP.3. Draft Rules of Procedure of the Legal and Technical Commission, dated 27 August 1998.


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and the General Assembly of the United Nations, the Agreement entered into force on 26 November 1997.108 The Agreement's most important provisions, have been summarized as follows: "The agreement ... establishes a mechanism for close cooperation between the secretariats of the two organizations in order to ensure effective coordination of activities and to avoid unnecessary duplication of work. Such cooperative arrangements are to include cooperation regarding personnel arrangements. It also provides mechanisms for reciprocal representation at meetings, taking into account the status of the Authority as an observer at the United Nations. The agreement establishes mechanisms whereby the Authority and the United Nations will cooperate in exchanging data and in fulfilling their respective functions under the Convention. Most importantly, article 12 of the agreement provides that unless the General Assembly, after giving reasonable notice to the Authority, decides otherwise, the United Nations will continue to make available to the Authority, on a cost reimbursable basis, such facilities and services as may be required for the meetings of the Authority, including translation and interpretation services, documentation and conference services."109 On 4 November 1996, following a request from the Seabed Assembly, the United Nations General Assembly invited the Authority to participate in the deliberations of the General Assembly in the capacity of observer.110 Such participation is particularly appropriate given the General Assembly's annual debate on Oceans and the Law of the Sea, and its overall coordinating role in this field. The Authority also has observer status with the Meeting of States Parties. The relationship between the Authority and the International Tribunal for the Law of the Sea needs to be approached with care. As the Secretary-General of the Authority has stressed, the two institutions are separate, and the independence of the Tribunal must be recognized. The Preparatory Commission made a number of rather unsatisfactory sug108

109 110

ISBA/3/A/L.2; A/52/260. For the requests see ISBA/C/10; Selected Decisions 1/2/3, 36-37; A/RES/51/34 of 17 January 1997. For the approvals see ISBA/3/A/3: Selected Decisions 1/2/3, 43 and A/RES/52/27 of 26 November 1997. ISBA/3/A/4, para. 21: Selected Decisions 1/2/3, 50. A/RES/51/6 of 24 October 1996: see also ISBA/A/L.12 and ISBA/A/13: Selected Decisions 1/2/3,26.

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gestions in this regard.111 In the debate on the Secretary-General's first report on the work of the Authority a number of delegations "stated that while a good working relationship with the International Tribunal for the Law of the Sea was desirable, it should be borne in mind that the Tribunal was also a court to which the Authority was answerable with regard to any seabed mining dispute".112 Following this debate the Secretariat has commenced discussions with the Registry of the Tribunal with a view to drafting an agreement that would provide for "administrative cooperation" between the two institutions.113 The Authority may in due course and where "appropriate and necessary" need to establish relations with other international and nongovernmental organizations.114 It has already accepted some organizations as observers, including the Permanent Commission of the South Pacific (CPPS), the South Pacific Applied Geoscience Commission (SOPAC), Greenpeace International and the International Ocean Institute. (xvi) Protocol on Privileges and Immunities A draft Protocol on Privileges and Immunities had been drawn up by the Preparatory Commission over a lengthy period,115 but was thought to give excessive privileges and immunities and was in places unclear and verbose. An open-ended working group met briefly during the Authority's session in August 1996, but there was no agreement to continue work on the Protocol. The Secretariat of the Authority then prepared a much simpler text, issued on 24 March 1997, which so far as possible avoided duplication with the relevant Convention provisions and which contained more standard provisions than the Preparatory Commission's draft.116 Detailed consideration of the Secretariat draft took place in the resumed open-ended working group of the Assembly chaired by Professor Galicki (Poland), which met in August 1997 and 111

112

113 114

115 116

LOS/PCN/SCN.4/WP.16/Add.5, reproduced in: LOS/PCN/152, Vol. I, 142. ISBA/3/A/11, para. 7: Selected Decisions 1/2/3, 62; ISBA/3/A/4, para. 23: Selected Decisions 1/2/3, 50-51. ISBA/4/A/11, para. 14: Selected Decisions 4, 52-63. ISBA/3/A/4, para. 22: Selected Decisions 1/2/3, 50; ISBA/4/A/11, paras 15-16: Selected Decisions 4, 55. LOS/PCN/WP.49/Rev.2, reproduced in: LOS/PCN/153 (Vol.V), 126-141. ISBA/3/A/WP.l/Add.l.


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March 1998. An informal revised draft was prepared in August 1997 and further revisions followed in March 1998.117 Account was also taken of the Agreement on the Privileges and Immunities of the Tribunal, recently adopted at a meeting of States Parties.118 There were divided views on the need for any Protocol, and prior to its adoption certain delegations (Japan, Sweden and the United States) repeated their doubts.119 The Assembly, nevertheless, adopted by consensus the Protocol on the Privileges and Immunities of the International Seabed Authority on 27 March 1998.120 The Protocol was opened for signature in Kingston from 17 to 28 August 1998 and subsequently until 16 August 2000 in New York. As of 16 November 1998 it had been signed by 10 States. It will enter into force 30 days after the deposit of the tenth instrument of ratification, approval, acceptance or accession. The Protocol deals with the privileges and immunities of the Authority in relation to matters not already covered in the Convention and is based substantially on articles I, II, IV, V, VI and VII of the Conventions on the Privileges and Immunities of the United Nations (UNTS Vol.1 No.4) and of the Specialized Agencies (UNTS Vol.33 No.521). The most controversial issues were the number of high officers entitled to full diplomatic privileges and immunities and the question whether the Authority should issue its own laissez passer. It was eventually agreed that only the Secretary-General and the Director-General of the Enterprise, when elected (that is to say, not a person appointed as interim Director-General pursuant to the Agreement, Annex, Section 2, para. I),121 should be entitled to diplomatic-scale privileges and immunities. The intention is that the Authority should rely on United Nations laissez passer, as is provided in the Relationship Agreement.

117

ISBA/4/A/L.2.

118

SPLOS/25; for the text of the Agreement see: Max Planck UNYB 2 (1998), 411 et seq. ISBA/3/A/L.4, paras.5-8: Selected Decisions 1/2/3, 44; ISBA/4/A/9, para. 20. ISBA/4/A/8: Selected Decisions 4, 42-49; ISBA/4/A/11, paras 21-22: Selected Decisions 4, 55-56. See the Assembly resolution adopting the Protocol, ISBA/4/A/8: Selected Decisions 4, 42-49.

119

120

121

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(xvii) Headquarters and Relationship with Host Country Article 156 para. 4 of the Convention provides that the seat of the Authority shall be in Jamaica. During the Conference there were three candidates for the seat: Malta, Fiji and Jamaica. After protracted lobbying (spearheaded for Jamaica by Prime Minister Michael Manley), the Conference decided by indicative vote (show of hands) in favour of Jamaica. In the course of a debate in the First Committee of the Conference the representative of Jamaica said that "his Government had made extensive preparatory arrangements to provide adequate facilities for the Authority at the earliest possible opportunity" and that "his Government had accordingly made active preparations to accommodate the headquarters of the Authority".122 There was further competition, within Jamaica, between Kingston and Montego Bay. The Convention was signed at Montego Bay, following the decision by Venezuela not to host the concluding session of the Conference because of its own somewhat negative attitude to the Convention (Caracas itself having been substituted for Santiago for the main opening session in 1974, as a result of the coup ousting President Allende in September 1973). For reasons turning essentially on internal Jamaica politics, this issue was not resolved until March 1998, when the newly re-elected Government of Prime Minister Patterson announced the decision in favour of Kingston. The Preparatory Commission had met in down-town Kingston once each year between 1983 and 1994, in the attractive Jamaica Conference Centre near the harbour, with the Kingston Secretariat of the Preparatory Commission occupying office space in an adjoining building. These arrangements were carried over to the Authority. While the conference space was very satisfactory, the offices caused considerable disquiet on three counts: security,123 cost, and run-down condition. Consideration was given, against considerable Jamaican opposition, to moving elsewhere in Kingston. In March 1998 the Government of Jamaica offered the whole of the building currently occupied in part by the Secretariat for the Headquarters of the Authority (letter of 10 March 1998). The Finance Committee requested the Secretary-General

122

123

53rd Mtg. of the First Committee of the Third United Nations Conference on the Law of the Sea, paras 27-28, XV Official Records 84. ISBA/3/A/4, para.26: Selected Decisions 1/2/4, 51.


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to clarify this offer and compare it with other options but this has not yet proved possible.124 The Preparatory Commission had drawn up a draft Headquarters Agreement between the Authority and the Government of Jamaica.125 In August 1996 the Council requested the Secretary-General to negotiate a Headquarters Agreement with Jamaica.126 A draft Agreement127 was considered by the Council and by a working group in March and August 1996, and a number of technical improvements were made. But no agreement could be reached on the key provisions concerning the location of the Authority, with most members insisting that the Authority must have the right to determine its site, in consultation with the Government of Jamaica but without the latter having a veto.128 (xviii) Extension of Provisional Membership The 1994 Implementation Agreement provided that if it entered into force before 16 November 1996 (which it did, on 28 July 1996), States and entities that had been applying the Agreement provisionally might continue as members of the Authority on a provisional basis until 16 November 1996 by sending a written notification to the United Nations Secretary-General. For such provisional membership to continue beyond 16 November 1996 required the Council to be satisfied that the State or entity concerned had been making efforts in good faith to become a party to the Convention, and application for such continuation had therefore to be made to the Authority. The Council approved all requests for extension of provisional membership without debate.129

124

125 126 127 128

129

ISBA/4/A/9, paras 23-25: Selected Decisions 4, 49-52; ISBA/4/A/11, paras 17-20: Selected Decisions 4, 55; ISBA/4/A/18, paras 6-7: Selected Decisions 4,65. LOS/PCN/WP.50/Rev.3, reproduced in: LOS/PCN/153 (Vol. V), 97-125. ISBA/C/11: Selected Decisions 1/2/3, 37-38. ISBA/3/A/L.3- ISBA/3/C/L.3 and Corr.l. ISBA/3/C/L.7, para.10: Selected Decisions 1/2/3, 66; ISBA/3/C/L.11, para.ll: Selected Decisions 1/2/3, 74. ISBA/A/L.10: Selected Decisions 1/2/3, 25-26 ; ISBA/C/3:Selected Decisions 1/2/3, 32-33; ISBA/C/4: Selected Decisions 1/2/3, 33-35; ISBA/C/9: Selected Decisions 1/2/3, 36; ISBA/3/C/3: Selected Decisions 1,2,3, 64; ISBA/4/C/1: Selected Decisions 4, 69-70; ISBA/4/C/3: Selected Decisions 4,70.

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Such provisional membership could not, however, continue beyond 16 November 1998.

2. Substantive Work The substantive functions of the Authority are set out in the Convention and the 1994 Agreement. In particular, the Agreement provides in its Annex, Section 1, para. 5, that, pending the approval of the first plan of work for exploitation, the Authority shall concentrate on eleven areas of work (listed in para. 5 lit. (a) to (k)) mostly concerned with plans of work to exploration and with the protection and preservation of marine environment. Some of these tasks are more urgent than others. In an effort to prioritize the Authority's work in its first few years the Secretary-General prepared a report in 1996,130 but this proved controversial and was neither debated nor endorsed. In the event, given all the uncertainties, the Authority has so far found it preferable to take up substantive matters as and when appropriate, rather than establishing a medium or long-term plan that might or might not correspond to real requirements. During its first four sessions the bulk of the Authority's work has been organizational; such activity is inevitable with a new body and in any event relatively little substantive work could be done as long as the organs, including the Secretariat, were in the course of establishment. The main substantive areas touched on so far are the approval of plans of work for the seven registered pioneer investors, and the preparation of part of the Mining Code. (i) Approval of Plans of Work for Exploration Seven registered pioneer investors (RPIs) submitted requests for the approval of plans of work for exploration on 19 August 1997. The Legal and Technical Commission transmitted its report and recommendation thereon to the Council on 22 August 1997.131 In a decision of 28 August 1997, the Council noted that (in accordance with the Agreement, Annex, Section 1, para. 6 lit. (a) (ii)) seven plans of work for ex130

ISBA/A/10.

131

ISBA/3/C/7: Selected Decisions 1/2/3, 69-70.


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ploration submitted by the registered pioneer investors (RPIs) "are considered to be approved" and requested the Secretary-General to take the necessary steps to issue the plans of work in the form of contracts, incorporating the applicable obligations under the provisions of the Convention and the Implementation Agreement and Resolution II and in accordance with the regulations on prospecting and exploration for polymetallic nodules in the Area and a standard form of contract to be approved by the Council.132Such contracts can only be issued once the Mining Code is adopted. The seven registered pioneer investors (RPIs) are-

-

Government of India; Institut fransais de recherche pour 1'exploitation de la mer (IFREMER)/Association franchise pour lietude et la recherche des nodules (AFERNOD) (France); Deep Ocean Resources Development Co Ltd (DORD) (Japan); Yuzhmorgeologiya (Russian Federation); China Ocean Mineral Resources Research and Development Association (COMRA) (China); Interoceanmetal Joint Organization (IOM) (Bulgaria, Cuba, Czech Republic, Poland, Russian Federation and Slovakia);

- Government of the Republic of Korea. These seven RPIs had been registered by the Preparatory Commission pursuant to Resolution II of the Third United Nations Conference on the Law of the Sea. The Commission had in fact relieved the RPIs of virtually all of the obligations originally provided for in Resolution II. In the case of six of the RPIs the Preparatory Commission had also issued certificates of compliance as required by Resolution II. For reasons of timing this was not possible in the case of the Government of the Republic of Korea, and in lieu thereof the Secretary-General of the Authority prepared a statement.133 The Legal and Technical Commission also had to approve the training programme proposed by Korea, which it did in March 1998.

132

133

ISBA/3/C/9: Selected Decisions 1/2/3/, 71-72; ISBA/3/C/11, paras 6-9: Selected Decisions 1/2/3, 73. For the Secretary-General's report see ISBA/4/A/l/Rev.2: Selected Decisions 4,1-39. ISBA/3/C/6: Selected Decisions 1/2/3, 66-68.

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(ii) Draft Mining Code for Prospecting and Exploration of Polymetallic Nodules Under the Convention the Assembly is to consider and approve the "rules, regulations and procedures of the Authority" provisionally adopted by the Council relating inter alia to prospecting, exploration and exploitation in the Area.134 The Council is to adopt such rules, regulations and procedures and apply them provisionally pending approval by the Assembly, taking into account the recommendations of the Legal and Technical Commission.135 Adoption by the Council requires consensus.136 The Agreement elaborates further on the procedures for adoption and on the substance.137 The Agreement in particular provides that the Mining Code- shall take into account the terms of the Agreement, the prolonged delay in commercial deep seabed mining and the likely pace of activities in the Area; - shall incorporate applicable standards for the protection and preservation of the marine environment. Paragraph 16 of Section 1 of the Annex to the Agreement provides that the draft rules, regulations and procedures as contained in the reports and recommendations of the Preparatory Commission shall be "taken into account" by the Authority in the adoption of rules, regulations and procedures. The Preparatory Commission's drafts are contained in LOS/PCN/153 (Vol.XIII).138 But they were elaborated before the Agreement was drafted and adopted and are of only limited assistance to the Authority. The Legal and Technical Commission worked on a number of successive drafts of the Mining Code: -

a Secretariat draft;

134

Article 160 para.2 lit.(f)(«). Article 162 para.2 lit.(o)(ii). Article 161 para.8 lit.(d). Agreement, Annex, Section 1 paras 15 and 16; Agreement, Annex, Section 1 para.5 lit.(f) and (g). J.A. Walkate, "Developments in Special Commission 3 of the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea: Drafting the Future Deep Sea-Bed Mining Code", NILR 36 (1989), 153 et seq.

135 136 137

138


-

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a revised provisional text (English only) circulated informally at the end of the March 1997 meeting;

-

an informal draft of a provisional text circulated informally at the end of the August 1997 session (ISBA/3/LTC/WP.l/Rev.3, dated 27 August 1997 with a request for comments by 31 December 1997. See also ISBA/4/LTC/INF.1 and Add.l and 2, and ISBA/4/LTC/ CRP.l which incorporates these comments in the form of footnotes. A key consideration in drawing up the Mining Code is the protection and preservation of the marine environment. The 1994 Agreement itself puts particular stress on environmental concerns (though these were not absent from the original Part XI). As stated in the SecretaryGeneral's report of 31 July 1997: "One of the key responsibilities of the Authority is to ensure that the natural environment in the Area is protected from serious harm that may be caused by activities in the Area. To achieve this, it will be necessary for the Authority, in consultation with contractors, to establish environmental baselines and to identify the types of environmental data required from contractors to assess likely impacts on the marine environment. At this early stage of development, mining technology is still very much undefined. Also, the types of activities anticipated during exploration consist primarily of non-invasive survey work and are not expected to be of serious concern in terms of environmental impact. A significant body of information on these activities and their effects has already been acquired during the past 25 years. Small-scale mining equipment tests and mining simulation experiments have been carried out through collaborations of industrial, government and academic workers, as well as baseline data collection by industrial explorers and government-funded researchers. With this in mind, the Authority is in the process of synthesizing all available information on the environmental impacts of deep seabed mining in order to assist the Legal and Technical Commission to formulate guidelines for the assessment of environmental impacts of activities in the Area."139 The draft Mining Code recommended by the Legal and Technical Commission in March 1998 (ISBA/4/C/4 and Rev.l) dealt only with the stages of prospecting and exploration, and not with exploitation (which according to the experts, including the Group established by the

139

ISBA/3/A/4, para. 54: Selected Decisions 1/2/3, 57.

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Preparatory Commission, is probably a very long way off). It was further limited to a single resource, polymetallic nodules. The Chairman of the Legal and Technical Commission presented the draft to the Council on 23 March 1998. In doing so, he stressed that the Commission had been careful to ensure that nothing in the draft Mining Code departed from or was inconsistent with the provisions of the Convention and Agreement. He further explained the approach of the draft in the following terms: "The basic approach has been to place all procedural matters in the regulations, consisting of parts I to VIII. Annexes 1 and 2 contain the forms needed for, respectively, the notification of prospecting to the Authority and the application for approval of a plan of work for exploration. Those forms are obviously in conformity with the regulations. The contract and the standard clauses of the contract appeared as annexes to the regulations (Annexes 3 and 4). The contract consists of a short, approximately two paged document, which constitutes Annex 3. It contains the basic elements establishing the contractual relationship and incorporating the standard terms and conditions by reference. The coordinates of the exploration area, the programme of work and the training programme would be attached as schedules to the contract. The terms and conditions of the contract, in the form of standard clauses applicable to all contractors, are entrenched in the regulations as Annex 4. The Commission considers that this approach helps to clarify the relationship between the contract and the regulations and ensures that contract terms are uniform among contractors. It would also ensure that the requirements of the Convention, the Agreement and the relevant regulations are incorporated as terms and conditions of the contract and removes any possibility of duplication or omission. The differences between different contractors and their plans of work would be reflected in the schedules to the contract depending on their different plans of work or the level of their activities." The Council began its consideration of the draft Mining Code on 23 March 1998. The President of the Council invited general statements from Council members and observers on the draft text, and then the Council moved into informal session, with full participation by observers, for a regulation-by-regulation discussion of the draft. From 24 to 26 March, the Council briefly resumed in formal session to hear further general statements, but otherwise continued its informal discussion for the remainder of the first part of the fourth session and throughout much of the resumed session in August 1998. The preamble (very


231

briefly) and Regulation 1 were discussed in March. Regulations 2-21 were discussed in August. On the basis of these discussions, the Secretariat together with the President of the Council prepared an informal revision of the preamble and regulations 2-21.140 Further consideration of the use of terms in Regulation 1 will be necessary when all the regulations have been discussed by the Council. In view of the interrelationship between many of the regulations, a further review of the draft text as a whole will also be necessary. At both the March and August sessions in 1998, a number of representatives called for the Council to prioritize work on the draft Mining Code, but no target for its final adoption was agreed. General Statements on the Draft Mining Code, March 1998 General statements on the draft Mining Code were made by nineteen Council Members and three observers in March 1998.141 Among these, the representative of the Russian Federation anticipated that consideration of the draft would involve difficult legal and political questions, as well as technical issues on which the Legal and Technical Commission was well-placed to advise. On the legal side, a number of delegations stressed the need for consistency with the Convention and Agreement. Procedural issues were also raised. The Commission had not yet completed its rules of procedure. This, it was suggested, made it difficult to know, for example, what competence the Commission has to issue the "guidelines" referred to in the draft. Some questioned the absence of any clear mechanism for the Council to refer questions back to the Commission, although at the resumed session in August, the President of the Council simply took note of questions and undertook to put these to the Commission. A common theme in almost all general statements was the need to ensure that the Mining Code included effective rules for the protection and preservation of the marine environment. In this context, the representatives of Peru and Chile stressed the need to take account of the rights of coastal states, citing inter alia article 142 of the Convention. The Indonesian delegate noted that disruption of fisheries needed to be included in any assessment of environmental hazards. Representatives looked forward to the Authority's environmental issues workshop in

140 141

ISBA/4/C/CRP.1 of 1 October 1998. ISBA/4/C/5, paras 9-10: Selected Decions 4,72.

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China in June 1998, and further seminars after that, as likely to shed more light on the extent of the environmental risks.142 Another area of general concern was the need for clear rules regarding data to be submitted to the Authority by prospectors and applicants for exploration contracts, and procedures for the handling of confidential information. Notwithstanding the availability of the carefully constructed Council Groups (Group A, Group B, Group C) as fora for coordination, the general statements also reflected traditional political divisions. The representatives of Brazil spoke on behalf of the Group of 77 to stress developing country concerns, including the need to secure proper training programmes. A number of representatives from developed countries stressed the importance of reconciling proper supervision of seabed mining by the Authority, including environmental and data-related regulations, with the need to ensure that seabed mining would be attractive to commercial investors. The United Kingdom representative noted that if there were no mining there would be no benefit to mankind under the "common heritage of mankind" provisions of the Convention. Informal Council Discussion of the Draft Mining Code, March and August 1998143 Many of the issues raised in the general statements were elaborated in the regulation-by-regulation discussions. Some debates were repetitive, illustrating how a few core concerns pervade the whole question of establishing international oversight of deep seabed mining. At all stages of the discussion, the need was stressed for the Code to be as clear as possible, with particular attention to accuracy where language in the draft was taken directly from the Convention and the Agreement. The discussion of prospecting (Regulations 2-5) illustrated a number of core concerns. In view of the need to ensure consistency with the Convention, most representatives resisted a suggestion that the Mining Code defines prospecting as an "activity in the Area" alongside exploration and exploitation. Nevertheless there was fairly wide agreement

142

143

The 1999 budget of the Authority includes provision for a further seminar, planned to take place in Kingston. ISBA/4/C/14,para.3:Selected Decions 4,76. References to Regulations 2-21 are as revised in: ISBA/4/C/CRP.1.


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that the regime for prospecting should be subject to the same safeguards on the environment and handling commercial data as exploration. Thus, prospecting is not allowed "if substantial evidence indicates the risk of serious harm to the environment" and prospectors must take measures for the "protection and preservation" of the marine environment (not just "protection" as proposed by the Commission). These provisions bring Regulation 2.1bis and 3.4 lit.(d)(i)b respectively into line with article 162 para. 2 lit.(x) of the Convention and Section 1, para. 5 lit.(g) of the Annex to the Agreement. Similarly, although the Secretary-General is bound to respect the confidentiality of data submitted in annual reports by prospectors, in particular data "of commercial value", it was agreed that there was no reason to restrict access to data submitted by prospectors relevant to findings of archaeological or historical objects; notification of incidents relating to safety at sea or accommodation with other marine activities; or notification of incidents causing serious harm to the marine environment. On the first of these, representatives stressed the need for arrangements compatible with those for underwater cultural heritage under discussion at UNESCO.144 For the other notifications, the intention was to bring prospecting into line with safeguards for exploration provided respectively by arts 147 and 145 of the Convention. Some also sought to apply article 142 by suggesting priority notification to coastal states nearest to the location of any environmental incident. Finally, representatives sought to establish certain rights of prospectors, including in Regulation 4 a right of appeal if the SecretaryGeneral finds the notification of prospecting in any way defective. Notwithstanding broad consensus on these points, the discussion of prospecting did not satisfy all. In particular, there were residual technical concerns about how significant the environmental risks associated with mere prospecting really were, and several delegations remained concerned about excessive levels of confidentiality, which they felt incompatible with the "common heritage". The underlying themes raised under prospecting recurred during informal discussion of a number of other regulations. For example, arguments about the level of the environmental risk were repeated in discussion of obligations on contractors to demonstrate their financial and technical capacity to respond to serious environmental harm (Regulation 10), and of the environmental impact assessments which would be

144

UNESCO Doc. CLT-96/CONF.202/5 of April 1998.

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needed (Regulation 15). Concerns over the procedural and other rights of contractors not satisfied by their treatment by organs of the Authority were also repeated (Regulations 18 and 21). Other issues in the informal meetings of the Council included the criteria by which the Commission should consider applications for exploration contracts (Regulation 18) and procedures both for the allocation of areas to contractors and subsequent relinquishment obligations (Regulation 21). Concerns were raised over the limits on the total allocations to any single sponsoring State (Regulation 18.6 lit.(c); and see also Annex III Article 6 lit.(c) of the Convention) and the scope for relinquishment to be deferred on account for example of operational difficulties encountered by the contractor, or because exploration has not been commercially viable in the anticipated contract period (Regulation 21.3). Overall, the informal Council meetings in March and August 1998 allowed a useful first airing of the various concerns arising under the draft Mining Code. Regulations 28 and 31, which are probably the most important regulations dealing with respectively protection and preservation of the marine environment and with confidentiality, were not reached. There was, however, discussion of these in the margins, with exchanges of ideas and alternative texts among delegations. The discussion of the Code is complex. As well as recurring environmental, developing country and technical questions, the discussion also relies on participants' knowledge of a wide range of often obscure textual sources in the Convention and Agreement — and the long memories of some individuals who participated either in the negotiation of those texts and/or at the Preparatory Commission discussions. It remains to be seen how quickly delegations will be ready to commit themselves to adopting the Mining Code. Notwithstanding the calls to prioritize this work, there is still no pressing commercial interest to drive members of the Authority to conclude the Code.145 The apparent difficulty of reconciling some of the positions taken in the informal Council discussion in March and August 1998 suggest that a lot more discussion will be necessary.

145

It is worth recalling that the Registered Pioneer Investors which do have a current operational interest, already have terms for exploration agreed by the Authority.


235

(iii) Assessment of the Authority's Reserved Areas The areas reserved for the Authority in the Clarion-Clipperton zone are the subject of a comprehensive plan for exploration prepared by the Group of Experts for the Preparatory Commission.146 A preliminary assessment has been made of the location and abundance of polymetallic nodules in the reserved areas, and possible mineable areas have been identified for future exploration work by the Secretariat, with the assistance of a consultant.147 Details are not available. (iv) Development of POLYDAT The Secretariat has established a secure database (known as POLYDAT) to store and retrieve all data submitted to the Authority as well as to assist in resource assessment work in relation to reserved areas.148 (v) Request for Adoption of Regulations for Certain Other Resources On 17 August 1998 the Russian Federation made an oral request in the Assembly of the Authority, pursuant to article 162 para. 2 lit.(o)(ii) of the Convention, that the Authority adopt rules, regulations and procedures for the exploration for cobalt-bearing crusts and hydrothermal polymetallic sulphides.149 It remains to be seen if and when the Authority will respond.

146

147 148 149

LOS/PCN/BUR/R/10 and Add.l, reproduced in: LOS/PCN/153 (Vol. Ill), 157-180. ISBA/3/A/4, para. 50: Selected Decisions 1/2/3, 56-57. ISBA/3/A/4, paras 51-53: Selected Decisions 1.2.3, 57. ISBA/4/A/18, para.14: Selected Decions 4,66; ISBA/4/A/CRP.2. Article 162 para.2 lit.(o)(ii) provides that: "Rules, regulations and procedures for the exploration for and exploitation of any resource other than polymetallic nodules shall be adopted within three years from the date of a request to the Authority by any of its members to adopt such rules, regulations and procedures in respect of such resource." This provision is to be read together with the 1994 Agreement, in particular its Annex, Section 1 para. 15; but note that para. 15 lit.(b) and (c) apply only to rules, regulations and procedures relating to exploitation, not exploration.

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IV. Conclusions During its first four sessions (1994-1998) the International Seabed Authority has adopted many of the organizational decisions necessary for its proper functioning as an autonomous international organization. These include: -

election of the Council, Finance Committee and Legal Technical Commission;

-

election of the Secretary-General;

-

Rules of Procedure of the Assembly and Council; Protocol on Privileges and Immunities; Relationship Agreement with the United Nations;

- adoption of budgets and scales of assessment. The Authority has been established on a cost-effective basis, with a relatively small Secretariat and budget. This is a considerable achievement, but much remains to be done. In addition to the adoption of further institutional texts (Financial Regulations, Staff Regulations, Rules of Procedure of the Finance Committee and the Legal and Technical Commission), the need for cost-effectiveness requires constant vigilance. The Authority has also commenced its operational activities, with the award of seven plans of work and progress towards the adoption of a Mining Code, to include rigorous environmental provisions. What of the future? It is still too early to say whether the Assembly and Council will deal with substance in a business-like way. There are mixed signals. Some slow but solid work has been done. The time taken to establish the organs was frustrating for all concerned, but is unlikely to be repeated. The failure of many members to attend sessions is more serious, and could become a real obstacle to the conduct of business in the future. And the failure of many to pay contributions on time, or at all, is a serious matter, possibly indicating a lack of real interest in the Authority. Three objectives may be considered for the short to medium-term: -

The members of the Authority need to ensure that nothing is done that will unnecessarily hamper commercial deepsea mining if and when that becomes a real prospect (since otherwise the common heritage will benefit no one), while taking due account of other interests, in particular the need for adequate environmental protection and the need to avoid unfair competition (subsidies).


-

237

Members also need to ensure that the Convention and Agreement are strictly adhered to, in particular that the Authority does not exceed its powers and functions and that procedural safeguards (especially the relationship between Council and Assembly, and in the budgetary sphere Finance Committee) are maintained.

-

Members further need to ensure that the Authority remains costeffective, and that its budget is no more than strictly necessary for its specific and limited functions under the Convention and Agreement. Depending on the prospects for deep seabed mining radical steps may be needed to avoid unnecessary expenditure. These objectives are important for all present members of the Authority, and for those which may become members in the future. The first objective in particular is important for any countries with serious mining interest which remain outside the Convention, since seabed mining is now unlikely to take place except under the international regime. Those remaining outside will unavoidably have diminishing influence, and be less able to defend such interests as they may have. First Four Sessions of the Authority: An Overview First Session, 1994-1995 First part, 16-18 November 1994 - ceremonial Second part (resumed first session), 27 February-17 March 1995 -

Assembly adopts Rules of Procedure

— consultations on election of Council Third part (further resumed first session), 7-18 August 1995 -

interim budgetary decisions

-

further consultations on election of Council

Second Session, 1996 First part, 11-22 March 1996 -

Assembly elects Council

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-


Assembly elects Secretary-General

Second part (resumed second session), 5-16 August 1996 -

Assembly elects Finance Committee

-

Assembly adopts 1997 budget

-

Council adopts Rules of Procedure

-

Council elects Legal and Technical Commission (LTC)

Third Session, 1997 First part, 17-28 March 1997 -

Assembly approves UN Relationship Agreement

-

LTC begins consideration of draft Mining Code

Second part (resumed third session), 18-29 August 1997 -

Council notes that 7 plans of work are considered approved

-

Assembly adopts 1998 budget and scale of assessment

-

LTC further considers draft Mining Code

Fourth Session, 1998 First part, 16-27 March 1998 -

Assembly elects 18 Council members and regularizes terms of office of Council members

-

Assembly adopts Protocol on Privileges and Immunities

-

LTC completes consideration of draft Mining Code

-

Council begins consideration of draft Mining Code

Second part (resumed fourth session), 17-28 August 1998 -

Assembly adopts budget for 1999

-

Council recommends decision on 1999 scale of assessment

-

Finance Committee proposes draft Financial Regulations

-

Legal and Technical Commission proposes draft Rules of Procedure

-

Council further considers draft Mining Code


239

Third part (further resumed fourth session), 12-13 October 1998 (New York) -

Assembly adopts decision on 1999 scale of assessment

The Authority's Documentation Documents of the International Seabed Authority begin with the letters "ISBA". An index to the main documents of the Assembly and Council for the first three sessions is in Selected Decisions 1/2/3, 75-8, and an index for the fourth session is in Selected Decisions 4, 78-80. These list most formal A (Assembly) and C (Council) documents (each in three series, -/I; -/L.I; and -/WP.l, corresponding to main documents, documents with limited distribution and working papers respectively). Documents of the first two sessions do not have a sessional number (e.g. ISBA/A/1), but from the third session on they do (e.g. ISBA/3/A/1). Some publications have the suffix E (English), F (French) or S (Spanish).

In addition to A and C documents there are the following series: ISBA/FC (Finance Committee) ISBA/LTC (Legal and Technical Commission) ISBA/INF (Information) As with the Preparatory Commission there are, no verbatim or summary records of meetings. Sound recordings are made and retained. An account of the meetings may be found in the press releases, but these are not official records and are not necessarily accurate. Official accounts of the work of the Authority are to be found in the successive statements of the Presidents of the Assembly and the Council on the work of their organs, and the annual reports of the Secretary-General: ISBA/A/L.l/Rev.l (Selected Decisions 1/2/3, 3-7): Statement of the President on the work of the Assembly during the second part of the first session ISBA/A/L.7/Rev.l (Selected Decisions 1/2/3, 7-12): Statement of the President on the work of the Assembly during the third part of the first session

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ISBA/A/L.9 (Selected Decisions 1/2/3,17-25): Statement of the President on the work of the Assembly during the first part of the second session ISBA/C/L.3 (Selected Decisions 1/2/3, 43-45): Statement of the President Pro Tem on the work of the Council during the resumed second session ISBA/A/L.13 (Selected Decisions 1/2/3,29-32): Statement of the President on the work of the Assembly during the resumed second session ISBA/3/C/L.4 (Selected Decisions 1/2/3, 64-66): Statement of the President on the work of the Council during the third session ISBA/3/A/L.4 (Selected Decisions 1/2/3, 43-45): Statement of the President on the work of the Assembly during the third session ISBA/3/C/11 (Selected Decisions 1/2/3, 72-74): Statement of the President on the work of the Council during the resumed third session ISBA/3/A/11 (Selected Decisions 1/2/3, 61-64): Statement of the President on the work of the Assembly during the resumed third session ISBA/4/C/5 (Selected Decisions 4, 70-72): Statement of the President on the work of the Council during the fourth session ISBA/4/A/9 (Selected Decisions 4,49-52): Statement of the President on the work of the Assembly during the fourth session ISBA/4/C/14 (Selected Decisions 4, 75-77): Statement of the President on the work of the Council during the resumed fourth session ISBA/4/A/18 (Selected Decisions 4, 64-67): Statement of the President on the work of the Assembly during the resumed fourth session ISBA/4/A/22 (Selected Decisions 4, 67-68): Statement of the President on the work of the Assembly during the further resumed fourth session


241

ISBA/3/A/4 (Selected Decisions 1/2/3, 45-60): Report of the Secretary-General of the International Seabed Authority under article 166 para. 4, of the United Nations Convention on the Law of the Sea (first annual report, November 1994 to June 1997) ISBA/4/A/11 (Selected Decisions 4, 52-63): Report of the Secretary-General of the International Seabed Authority under article 166 para. 4, of the United Nations Convention on the Law of the Sea (second annual report, July 1997-June 1998). In addition, the Authority's publications at present comprise: International Seabed Authority, Handbook 1997/1998 (ISA/98.03) Rules of Procedure of the Assembly (ISA/97/001) Rules of Procedure of the Council (ISA/97/002) Selected Decisions and Documents of the First, Second and Third Sessions (ISA/98/01) Selected Decisions and Documents of the Fourth Session (ISA/99/01) Consolidation of Part XI of the Convention and the Implementation Agreement (ISA/98/04) The Authority's homepage on the Internet is http:// www.isa.org.jm/


The Global Environment Facility Galaxy: On Linkages among Institutions Laurence Boisson de Chazournes

Introduction The United Nations Conference on the Human Environment - Stockholm Conference of 1972 - broke new ground in calling for universal mobilisation aimed at protecting the environment. Twenty years later, the Rio Conference on Environment and Development marked an occasion to note the advances that had occurred during that time. It also represented a forum in which to take into account other challenging environmental issues that had emerged on the international agenda. This brought about a preoccupation with the protection of the global environment, and more specifically, with the impact of economic development on the atmosphere, climate and ecosystems. These are novel challenges given the magnitude of the risks involved, the complexity of the actions to be undertaken as well as the long-term necessity to act in order to attain objectives at an as yet undetermined point in the future.1 Some strategies have been adopted, while questions surrounding the legitimacy of other strategies have remained. In the midst of this vast web of options, the mechanisms responsible for financing these strategies are of central importance. The source of This article is a revised and updated version of "Le Fonds pour 1'environnement mondial: recherche et conquete de son identite", AFDI41 (1995), 612 et seq. With respect to global problems, The Operational Manual of the World Bank, 1984 defined them as "those which have considerable effects on a global level. They frequently consist of the most threatening and least apparent ecological problems, having the most long-term consequences."

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the financial resources necessary both to face new challenges and to put in place the technical assistance necessary for the implementation of adequate measures has progressively become an essential component of all conventional regimes and programs relating to environmental protection. The financing of activities that have as their main aim the protection of the global environment deserves particular attention. The Global Environment Facility (GEF) was at the heart of the debates surrounding the preparation of the so-called Earth Summit, which was held in Rio in June 1992. Even though this financial mechanism was not created at the Rio Conference, this summit did lay the groundwork for the further development of this mechanism. Established in 1991 as a pilot project under the auspices of the World Bank, with the participation of UNDP and UNEP, the GEF was restructured in 1994 in response to demands for greater universality and transparency. It gave rise to new perspectives for institutional and operational cooperation between the United Nations and the Bretton Wood institutions. With the creation of the GEF, the international community witnessed the emergence of an innovative formula for cooperation among international organizations (I.), with a singular institutional and legal structure (II.). Moreover, its establishment has created a fruitful dynamic for promoting respect for environmental law (III.).

I. A Formula for Cooperation Among International Organizations for Promoting Sustainable Development The need to carry out activities on a global scale has created a demand for a mechanism that would facilitate the granting of financial assistance to developing countries (1.). The lessons learned from the pilot phase of the GEF, as well as the negotiations surrounding the preparation of the Rio Conference led to the restructuring of the GEF (2.).

1. The Establishment of the Global Environment Facility as a Pioneering Endeavour The need to protect the global environment emerged on the international agenda during the 1980s. A political consensus was progressively forged around the dangers posed by the depletion of the ozone layer and the need to eliminate the production, consumption and emission of chlorofluoro-

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carbons (CFCs). Issues such as global warming and the erosion of biological diversity, even though they had been sources of concern for the scientific community for a long time,2 eventually started to gain political support at the end of the 1980s. Various proposals, namely normative, institutional, economic and financial, were advanced to counter the types of environmental degradation mentioned above. While these proposals were not all without merit, it became evident that the implementation of a financial mechanism designed to assist the states most in need of aid in this area, was of pivotal importance. The Report of the Brundtland Commission echoed these sentiments when it recommended, in its conclusions, the establishment of a facility linked to the World Bank to finance environment protection activities.3 In the wake of this Report, various proposals were advanced. For example, the World Resources Institute proposed the creation of a fund for the global environment, which would finance those expenses incurred by the poorest countries and specifically designated for this objective.4 Several non-governmental organizations suggested the idea of exchanging debts in favour of environmental protection, commonly known as "debt-for-nature swaps".5 For its part, the World Bank advanced certain ideas designed to promote fairness in favour of borrowing states through the establishment of a financial mechanism able to respond to the challenges of protecting

J. Grinevald, "L'effet de serre de la Biosphere — De la revolution thermoindustrielle a 1'ecologie globale", Strategies energetiques, Bioshpere et Societe 1 (1990), 9 et seq.; T. Hardin, "The Tragedy of the Commons", Science 1968, 1243 et seq. World Commission on Environment and Development, Our Common Future, 1987, 338. F. van Bohlius (ed.), Natural Endowments: Financing Resource Conservation for Development, 1989,14. See D. Asiedu-Akrofi, "Debt-for-Nature Swaps: Extending the Frontiers of Innovative Financing in Support of the Global Environment," International Lawyer 25 (1991), 557 et seq. Such technique is still seen as a strategic one for promoting environment protection. As an example, the U.S. President signed during Summer 1998 the Tropical Forest Conservation Act which authorizes US$ 325 million over three years to cancel the debts of certain biologically rich countries in exchange for their channelling matching amounts of local currency into rainforest-protection trust funds. The bill, which builds on the "debt-for-nature" swaps set up by the former Bush administration for Latin America and the Caribbean, extends such swaps to Asian and African countries, see National Journal's Greenwire - The Environmental News Daily, Prez Signs Debt-For-Nature Bill, July 30, 1998.

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the global environment by providing additional funding. The Prime Minister of India, for his part, advocated, during the 1989 Summit of the NonAligned countries, the creation of a Planet Protection Fund under the aegis of the United Nations.6 However, it was a French initiative that had a definitive impact in leading to the creation of the GEF. In 1989, during the annual meetings of the Board of Governors of the World Bank, the French Prime Minister proposed the establishment of a fund of voluntary grants devoted to the global environment. He also committed France to a contribution of 900 million French francs over a three-year period.7 At the same session, the Federal Republic of Germany pledged its support for this initiative as well.8 These proposals led to the creation of the GEF. When the Executive Directors of the World Bank (also referred to as the Board) adopted Resolution No.91-5 in 1991 relating to the creation of the GEF,9 it, in effect, decided on the establishment of two funds: the GEF and the Ozone Projects Trust Fund. The latter was funded through the Multilateral Fund which had been established within the framework of the Montreal Protocol on Substances that Deplete the Ozone Layer (see below). In Resolution No. 91-5, the Board also envisaged the possible subsequent creation of other funds designed to protect the environment. The adoption of this resolution represented an important step for the Bank in showing its willingness to get involved in the promotion of solidarity mechanisms calling for innovative initiatives and activities in the environmental area. Already in 1990, the Contracting Parties to the Montreal Protocol had agreed to create a temporary fund designed to cover the incremental costs incurred by the developing countries in their attempts to curb CFC emissions.10 This fund, the Multilateral Fund, was established in 1991 and be-

6

7

8 9 10

For a more detailed examination of these ideas and of the establishment and development of the pilot phase of the GEF, see H. Sjoberg, "From Idea to Reality: The Creation of the Global Environment Facility," GEF Working Paper No. 10 (1994), especially 5 and 19. 1989 Annual Meetings of the Board of Governors, Summary Proceedings 1989, 79. It was proposed that this fund be endowed with an amount up to 1 billion SDR. Ibid, 81-82. Text in: ILM 30 (1991), 1735 et seq. Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, article 10, International Environmental Law — Multilateral Agreements, 985:22/B/12; Report of the Second Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 27-29 June 1990 —


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came permanent in 1992.11 One of the characteristics of this fund is that it is applicable within a particular legal framework, which is the Montreal Protocol, which shapes the way the Fund is used. This feature was later also shared by the GEF. The Bank, in its capacity as implementing agency created its own fund, the Ozone Projects Trust Fund, with funding provided by the Multilateral Fund. In July 1991, the Executive Committee of the Montreal Protocol, which is responsible for administering the Multilateral Fund, reached an agreement with the World Bank.12 This agreement was in some ways a precursor to the arrangements contained in the financial mechanisms set out in the Framework Convention on Climate Change and the Convention on Biological Diversity, as it stipulated that the resources in the Ozone Projects Trust Fund were to be administered by the World Bank according to the policies adopted by the Executive Committee of the Montreal Protocol. The concept of a trust fund was not foreign within the sphere of environmental protection. This kind of mechanism had been in existence before to finance particular activities carried out in accordance xvith international agreements. One can point to, for example, the fund put in place within the context of the Long-term Financing of the Co-operative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollution in Europe,13 as well as the World Heritage Fund created under the auspices of UNESCO within the framework of the 1972 Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention). In addition, one can identify other such examples like the Environmental Fund, managed by UNEP14 as well as the financial mechanisms established by various foundations and associations

11

12

13

14

UNEP/ OzL. Pro. 2/3, Decision II/8. On this regime, see J.M. Patlis, "The Multilateral Fund of the Montreal Protocol: A Prototype for Financial Mechanisms in Protecting the Global Environment", Cornell Int'l L.J. 25 (1992), 181 etseq. Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP/OzL.Pro.4/15 Annex IX. The proposals aimed at integrating this fund with the GEF were never realized, which leaves the former fully autonomous. Agreement was reached between the Executive Committee and the World Bank in September, 1991, SecM91-1154, 6 September 1991. See the 1984 Protocol to the Convention on Long-Range Transboundary Air Pollution, adopted under the aegis of the EEC/UN. Established following the Stockholm Conference by virtue of A/RES/2997 (XXVII) of 15 December 1972.

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that are active in the area of environmental protection, such as the World Wide Fund for Nature (WWF Fund). The GEF was established at the World Bank and drew upon the experience of this institution in administering such mechanisms. Even though the constituent charter of the Bank does not expressly provide for the trust fund technique,15 this institution has, by virtue of the doctrine of implicit powers, exercised the functions of trustee and has assumed the fiduciary responsibilities connected thereto.16 Its experience as trustee therefore was considered as offering all of the guarantees required to administer a mechanism of international solidarity and for which the sums deposited shared little in common with those of already established environmental funds in other arenas.17 Furthermore, the World Bank's activities had increasingly, since the beginning of the 1980's, focused on the protection of the environment.18 Particular attention was given to the prevention of 15

16

17

18

On the notion of a trust and on the difficulty of identifying an adequate definition of this concept that is common to both common and civil law, namely due to the differences in the concept of property and ownership, see D.W.M. Waters, "The Institution of the Trust in Civil and Common Law", RdC 253 (1995), 25 et seq., (117). For a definition of the characteristics of a trust, see article 2 of The Hague Convention on the Law applicable to Trusts and their Recognition, Hague Conference on Private International Law, Acts and Documents, 1984, Proceedings of the 15th Session, Volume II, Trusts — Applicable Law and Recognition, 1985. See also J. Gold, "Trust Funds in International Law: The Contribution of the International Monetary Fund to a Code of Principles", AJIL 72 (1978), 856 et seq. On the requirement that these trust funds, which are generally endowed by multiple donors, conform to the purposes of the organization, and for the practice of the World Bank in administering trust funds, see I.F.I.Shihata, H. Abushakra, H.-J.Gruss, "Legal Aspects of the World Bank's Assistance to the West Bank and the Gaza Strip", The Palestine Yearbook of International Law VII (1992/1994), 36 et seq. The amounts of these funds vary according to the activities to be pursued. As for the UNEP Environment Fund, the amount is very low in light of the need for protection of the global environment. See P. Sand, Trusts for the Earth: New Financial Mechanisms for International Environmental Protection, 10th Josephine Onoh Memorial Lecture, 1994; P.Sand, "The Potential Impact of the Global Environment Facility in the World Bank, UNDP and UNEP", in: R. Wolfrum Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, Beitrage zum auslandischen offentlichen Recht und Volkerrecht 125 (1996), 479 et seq., (487- 490). See I.F.I. Shihata, "The World Bank and the Environment — A Legal Perspective", in: A. Parra, F. Tschofen ( eds), The World Bank in a Changing World,


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ecological damage arising out of the Bank's activities in the area of economic development. In addition, the Bank's portfolio progressively contained projects, which had as their primary aim the protection of the environment. In all of these aforementioned cases, the Bank developed strategies designed to combat local and transboundary degradation. The GEF was established for a pilot phase of three years.19 The funds could be applied to finance environmental protection activities in four main areas: 1.) global warming and attempts to reduce greenhouse gas emissions, 2.) protection of biological diversity, 3.) protection of international waters and 4.) protection of the ozone layer. The funds would be used to cover the incremental costs incurred through activities in these areas, that is the costs exceeding the measures adopted pursuant to national environmental protection policies and conducted in the absence of global environment concerns.20 Thirty states, including 19 member countries of the OECD and 11 developing countries, committed themselves to contributions surpassing 800 million US$. These contributions conferred upon these states the status of a Participating State. Moreover, it wns also expected that this fund would be financed through co-financing operations for specific projects. The Bank acted as the trustee of the funds and was bound to the particular fiduciary responsibilities provided for by Resolution No. 91 -5, referred to above. In October 1991, agreement was reached between UNDP, UNEP and the World Bank in order to formalize arrangements in the area of operational cooperation among them.21 This agreement detailed the responsibilities of each of the three implementing agencies. They were expected to collaborate in accordance with their respective comparative advantage.

19

20

21

Selected Essays, 1991,135 et seq.; Id., "The World Bank and the Environment: Legal Instruments for Achieving Environmental Objectives", The World Bank in a Changing World, Volume II, 1995,183 et seq. On this mechanism, see Shihata, "The World Bank and the Environment — A Legal Perspective", see note 18,168 et seq.; W.P. Ofosu-Amaah, C.Di Leva, R. Osterwaldt, "World Bank", Yearbook of International Environmental Law 2 (1991), 403 et seq., (407). On the issue of incremental costs, see The World Bank (ed.), Development and the Environment, World Development Report 1992, 170 et seq. See Annex C of Resolution No. 91-5, see note 9.

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The work program proposed by the Bank and UNDP was reviewed by the other implementing agencies and by the countries participating22 in this financial mechanism. These organizations and countries benefited from the assistance of a Scientific and Technical Advisory Panel (STAP) established by UNEP. The beneficiaries of the assistance were the developing countries that fulfilled the conditions required for borrowing from the Bank and for receiving technical assistance from the UNDP. They did not have to satisfy the conditions of a Participating State. By virtue of a special programme administered by the UNDP, non-governmental organizations (NGOs) could also benefit from grants. In addition, during the course of the preparation of the projects, the NGOs and the local populations would have to be consulted on the feasibility of the activities to be undertaken. The multilateral mechanism of the GEF was in its pilot phase from July 1991 until July 1994. During this period, 115 projects in 63 countries were approved, representing an estimated value of 730 million US$. An examination of these projects suggests that the main preoccupation of the Fund was the reduction of the greenhouse effect and the protection of biodiversity, as more than three-quarters of the funds were directed towards reversing global warming and the depletion of biological diversity. It is noteworthy however that these issues retained their position of importance even after the restructuring of the Fund. The innovative character of the GEF lies not only in its approach to the protection of the global environment, but also in the structure of the mechanism and its functions, which emphasize cooperation within the United Nations System, between the World Bank and institutions such as the UNEP and the UNDP. This type of collaboration provided is a newly created mechanism, and more particularly, its successor in 1994, with a unique institutional structure within the international order. As will be seen, this profile sheds light on new perspectives for drawing relationships among international organizations.

2. The Establishment of the Restructured Global Environment Facility: Room for Institutional Creativity As of April 1992, the states participating in the GEF agreed to undertake a revision of this mechanism, which, it will be recalled, was initially estab22

In order to have the status of a participant, the country was to make a contribution to the fund. For developing countries the minimum contribution was fixed at 4 million SDR.


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lished for a three-year pilot phase.23 The restructuring of the Fund was considered a key item in the preparations for the Rio Summit as well as in the course of the negotiations of the Framework Convention on Climate Change and the Convention on Biological Diversity. This mechanism, being the object of great interest among Rio Conference participants, would be reformed according to the criteria and principles advanced by many of its participants. The Rio Conference on Environment and Development and the preparations leading up to it, served as the catalyst for a two-pronged phase of parallel negotiations that began in December 1992. One phase would focus on the restructuring of the Fund so as to render it a permanent entity, while the other would focus on the replenishment of its funds. The GEF thus gradually developed an identity, a development that responded to the grievances of those seeking to reform the fund. For developing countries, the principal concerns centered on, first, the principles of universality and transparency in the administration of the Fund, namely with respect to governance and the decision-making procedures, and, second, the accountability of the trustee (i.e. the World Bank) towards Participating States, whether they be donors or beneficiaries. These diverse negotiations also presented an opportunity to refine the profile of the GEF. In fact, one of the requests of the developing countries was that the resources allocated to this fund by developed countries be increased. Developing countries also requested that these funds be new funds, supplied over and above existing resources (i.e. bilateral and multilateral development assistance). Moreover, developing countries advocated the necessity to widen the scope of applicability of this mechanism so as to enable it to address a wider range of global environmental concerns, including financing the various measures contained in Agenda 21, the Program of action adopted at Rio.24 The responses to these requests provided the opportunity in which the role and identity of the GEF could be more clearly identified within the multilateral and bilateral mechanisms that were expected to finance environmental protection activities. The negotiating process lasted two years and required seven meetings. It was concluded in March 1994 in Geneva and led to the adoption of the Instrument for the Establishment of the Re23

24

An evaluation of the GEF was also undertaken; see the final report of this evaluation, Report of the Independent Evaluation of the Global Environment Facility Pilot Phase, UNEP/UNDP/World Bank, 23 November 1993. A/CONF.151/26. See G. Corcelle, "20 ans apres Stockholm: La Conference des Nations Unies de Rio de Janeiro sur 1'environnement et le developpement: point de depart ou aboutissement", Revue du Marche Commun et de I'Union europeene 365 (1993), 107 et seq., (114).

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structured Global Environment Facility.25 It should be noted that while matters relating to Agenda 21, such as land degradation for example, were included within the scope of application of the GEF, the GEF was designed to finance only the incremental costs related to global environmental protection. The purpose and field of application of the GEF are set out in paras 2 and 3 of the Instrument as follows: 2. The GEF shall operate, on the basis of collaboration and partnership among the Implementing Agencies, as a mechanism for international cooperation for the purpose of providing new and additional grant and concessional funding to meet the agreed incremental costs of measures to achieve agreed global environmental benefits in the following focal areas: (a) Climate change; (b) Biological diversity; (c) International waters; and (d) Ozone layer depletion. 3. The agreed incremental costs of activities concerning land degradation, primarily desertification and deforestation, as they relate to the four focal areas shall be eligible for funding. The agreed incremental costs of other relevant activities under Agenda 21 that may be agreed by the Council shall also be eligible for funding insofar as they achieve global environmental benefits by protecting the global environment in the four focal areas. These provisions merely reaffirm the principle of new and additional resources and the concept of incremental costs already governing the allocation of grants and concessional funding for the GEF in its pilot phase and the Ozone Projects Trust Fund. It should also be noted that these planned resources represent only a part of the totality of the financial measures to be undertaken by virtue of Agenda 21.26 Negotiations surrounding the reconstitution of the Fund resulted in the accumulation of contributions 25 26

For the text of the Instrument, see ILM 33 (1994), 1283 et seq. As noted by Corcelle, see note 24, 113. M. Strong, Secretary-General of the Rio Conference calculated that the cost of Agenda 21 will increase for the period between 1993 and 2000 to the sum of 600 billion US$ per year. Of this 600 billion US$ amount, most would come from national resources. However, about 125 billion US$ will be issued from industrialized countries in the form of development assistance, an amount which represented about double the current level of Official Development Assistance (ODA).


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exceeding 2 billion US$ in the period between 1994 and 1998. With the restructuring and the replenishment of the Fund, the GEF was accepted as the (interim) financial mechanism for the Framework Convention on Climate Change and the Convention on Biological Diversity. As will be seen later, this link with the Rio Conventions is an important feature of the GEF. Replenished a second time in March 1998 at the level of US$ 2.75 billion, the GEF was confirmed in its tasks of complementing and strengthening actions and funding for sustainable development at the local, national, and regional levels for protecting the global environment.27 On the institutional level the establishment of the restructured GEF was the result of a joint action by the World Bank and the United Nations, represented by the UNDP and the UNEP. The GEF remained located within the World Bank, as it was during its pilot phase. Its autonomy and independence were however confirmed and strengthened. The instrument governing the restructuring of the GEF also called for, and clarified the coordination and allocation of roles between the organizations, whether they act as trustee and implementing agency for the World Bank, or as implementing agencies for the UNDP and the UNEP.28 The Rio Conference was not very innovative on the institutional level although various proposals were made.29 It mainly focused its attention on laying the groundwork for the creation of the Commission on Sustainable

27

28

29

The contributions of the industrialized countries for the first replenishment (GEF-1) were based on the sharing formula adopted over the course of the 10th reconstitution of the resources of the International Development Association (IDA). Certain donors also made additional voluntary contributions. For the second replenishment, the basic shares were based on GEF-1 burdensharing, but there were exceptions. The pledges for basic contributions for Germany, Italy, and the United States were all below their GEF-1 basic shares. For an analysis of the innovative aspects of the arrangement of the relations between these organizations within the United Nations, see S. Silard, "The Global Environment Facility: A New Development in International Law and Organization", Geo. Wash.J.Int'l L &Econ. 28 (1994/95), 607 et seq., (645). See the proposals espoused over the course of the period preceding the Rio Conference, G. Palmer, "New Ways to Make International Environmental Law", AJIL 86 (1992), 259 et seq., (278-282); G. Plant, "Institutional and Legal Responses to Global Warming", in: R. Churchill, D. Freestone (eds) International Law and Global Climate Change, 1991,178; J. Werksman, "Consolidating Governance of the Global Commons: Insights from the Global Environment Facility", Yearbook of International Environmental Law 6 (1995), 28 et seq., (33-39).

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Development,30 a subsidiary organ of ECOSOC. The mandate of this commission was to facilitate the coordination and integration within the United Nations of the goals of environmental protection and development in the search for sustainable development and the effective implementation of Agenda 21. In such a context, the restructuring of the GEF represented an additional and important institutional accomplishment of the Conference, although not a direct product of it.31 The GEF offers challenging perspectives for promoting international cooperation and has since gained recognition of its usefulness, even though work remains to be done in order to further integrate and mainstream global environment concerns within the activities of its implementing agencies.32

II. The Singularity of the Global Environment Facility as an International Institution A number of questions can be raised with respect to the identity of the GEF. The notions of mechanism, entity, agency, institution or international organization, which are used for qualifying the GEF, do not provide a precise definition of its status. A presentation of the conditions leading to its establishment (1.), as well as of its organizational structure and the division of responsibilities between the different partners (2.), provides some insight into the institutional make-up of the GEF and its functions.

1. A Sui Generis International Constitutive Instrument The conditions under which the GEF was adopted are indicative of the particular nature of the mechanism. It was fashioned within the context of the hitherto traditional practice of international meetings between representatives of states, interested international institutions as well as nongovernmental organizations. However, its implementation was neither carried out by virtue of an interstate treaty nor as a result of an agreement between international organizations destined to create a new common in30

31

32

Created by A/RES/47/191 of 22 December 1992; see P. Orliange, "La Commission du developpement durable", AFDI39 (1993), 820 et.seq. P. Sand, "UNCED and the Development of International Environmental Law", Yearbook of International Environmental Law 3 (1992), 3 et seq. See G. Porter, R. Clemenôn, W. Ofosu-Amaah and M. Philips, The Study of GEF's Overall Performance, 1998.


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stitution with respect to which they could claim parenthood rights on an equal basis. These scenarios emerged during the course of negotiations, but were not retained. Instead, the GEF was constituted on a particular legal basis. The 73 states attending the Geneva Meeting of March 1994 that successfully completed the negotiations, supported the adoption of the Instrument for the Establishment of the Restructured Global Environment Facility. They also agreed on the replenishment of the Fund, which was to receive more than 2 billion US$. As a second stage, in accordance with the Instrument, the World Bank, the UNDP and the UNEP each adopted the Instrument by way of a resolution or a decision of their respective competent bodies and in accordance with their own rules of procedure and regulations.33 It were therefore these three international organizations that created this financial mechanism, with the states having previously accepted its establishment. It should be noted that only the Bank as an international organization could create the GEF. UNDP and UNEP being Programmes of the United Nations did not have the formal jurisdictional power to create a new institution. The adoption by all three organizations of resolutions and decisions was however considered necessary to show their solidarity in the promotion of the objectives of the GEF. The states' approval of the Instrument did not rise to the consequences provided for by the law of treaties in matters of "consent to be bound" nor those that traditionally have prevailed for constituting an international organization.34 However, the states' approval was not without any legal value. Instead it constituted a preliminary condition to the decisions of the organizations creating and promoting the establishment of the GEF. The 33

34

Resolutions Nos 94-2 and 94-3 of the Executive Directors dated 24 May 1994 and Resolution No. 487 of the Board of Governors of the World Bank adopted 7 July 1994; Decision of the Executive Board of the United Nations Development Program for and of the United Nations Population Fund, DP/1994/9, adopted 13 May 1994; Decision adopted by the Governing Council of the United Nations Environment Programme, SS.IV.l, adopted 18 June 1994. The mechanism entered into force 7 July 1994 and the new special Trust Fund became operational on 16 March 1995 (see para. 6 lit.(c) of Annex C of the Instrument). This is the case if we accept the definition of "international organization" stipulated in article 2 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986. It defines an international organization as an intergovernmental organization, i.e. created by states. Text of the Convention, P. Reuter, Introduction to the Law of Treaties, 1995, 244 et seq.

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GEF was therefore constituted in two stages, which were necessarily linked to each other and which created legal effects. The amendment and termination procedure confirms this analysis, since it too sets out a two-stage process.35 The GEF organs (Assembly/ Council) composed of representatives of states, must, first approve the amendment or the termination, as the case may be, in accordance with the criteria and procedures established for this process. Such decisions do not take effect until they have been approved by the competent international organizations. This approval procedure must be distinguished from the one governing the decision conferring the status of member of the GEF. Para. 7 of the Instrument stipulates that all member states of the United Nations or of its specialised agencies may become a participant in the GEF by depositing with the Secretariat an instrument of participation.36 In the case of state contributing to the GEF Trust Fund, its instrument of commitment is deemed to serve as an instrument of participation. The conditions for the establishment of the GEF are different from those governing the implementation of the GEF in its pilot phase, since, in that case the World Bank was the primary architect in its establishment. The World Bank then entered into an agreement with the UNEP and the UNDP for operational cooperation purposes. In this case, the three organizations participated in the establishment of the GEF — albeit differences in their legal standing — after having received the support of the states that participated in the negotiations. Moreover, one can consider that the decisions of the three organizations take the place of the agreement on operational cooperation, as the organizations have not yet confirmed their commitments flowing from the establishment of the GEF, by negotiating an arrangement in accordance with Annex D of the Instrument. The conditions establishing the GEF have left their mark on the legal make-up of this entity. The GEF is not the result of an interstate agreement. This indicates that the states did not wish to confer upon the GEF a distinct legal personality with the capacity to enter into international agreements within its sphere of jurisdiction.37 This issue is significant since the Instrument requires the Council of the GEF to examine and approve 35 36

37

See para. 34 of the Instrument. This is done by filling out the form attached to Annex A of the Instrument. As of December 1998, the GEF included 165 Participating States. On the attributes attached to the quality of subjects of international law, see the Advisory Opinion of the ICJ-Reparation for Injuries Suffered in the Service of the United Nations, ICJ Report 1949,174 et seq., (178-180).

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the arrangements and agreements with the Conferences of the Parties to the Conventions on Climate Change and Biological Diversity.38 However, the Instrument in its Annex B relating to the role and fiduciary responsibilities of the World Bank as trustee of the Trust Fund (see for further information under II.2.) of the GEF, stipulates that the Bank is responsible to formalize the arrangements and agreements concluded with the Conferences of the Parties.39 This provision illustrates the distinct manner in which the conventional relations are managed. Even if it falls to the Bank to formally conclude the arrangements and agreements, since the GEF Council was not granted this power, this can only be carried out once the GEF Council (for the structure of the GEF see below under 2.) has had the opportunity to study and approve such arrangements and agreements. Once again, the two-step process is apparent, allowing Participating States to decide on the nature of the GEF's external relations, while acknowledging the World Bank's capacity to formalize these relations. The term "formalization" used by the Instrument merits, however, some clarification. The World Bank's power to formalize arrangements or agreements concluded with the Conferences of the Parties falls within the scope of its fiduciary responsibilities as a trustee, it should therefore be understood as conferring upon the Bank merely the authority to appreciate if these arrangements or agreements conform to its responsibilities as trustee. A number of states, particularly industrialized countries, were wary of creating a new global organization that would be accompanied by a new global bureaucracy. The legal structure of this financial mechanism responds to this concern. It also reveals the influence of pragmatism in international relations, which encourages the creation of institutional mechanisms that benefit from a certain degree of international stature. It is within this context that one can best appreciate all of the particularities of the GEF. It is also noteworthy that the establishment of the GEF is not an isolated case within the international order. One can refer to cases where 38

39

Paras 20 lit.(g) and 27 of the Instrument. See also article 11 para.3 of the Convention on Climate Change and article 21 para.l of the Convention on Biological Diversity. Para.7 of Annex B reads as follows: "The Trustee may enter into arrangements and agreements with any national or international entity as may be needed in order to administer and manage financing for the purpose of, and on terms consistent with, the Instrument. Upon the request of the Council, the Trustee will, for the purposes of paragraph 27 of the Instrument, formalize the arrangements or agreements that have been considered and approved by the Council with the Conferences of the Parties of the conventions referred to in paragraph 6 of the Instrument".

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new institutions were created resulting from the contribution of other international organizations without the intervention of states. One such example is the Joint Vienna Institute, created jointly by the IMF, the World Bank, the OECD, the European Bank for Reconstruction and Development and the Bank for International Settlements (BIS), located in Vienna.40 One can also point to the recent transformation of an existing institution into a new organization, as was the case with the OSCE. The OSCE was granted numerous international attributes, without having been constituted by an intergovernmental agreement and without being formally granted international legal personality.41 This illustrates the great diversity that exists among the international institutions and organizations. The GATT, for example, operated for a long period of time as a de facto international organization42 before having its international status and legal personality sanctioned by an intergovernmental agreement.43 Similar remarks can be made regarding the UNIDO, which was created in 1966 as a subsidiary organ of the UN General Assembly but subsequently became, in 1985, the 16th specialized agency within the UN System.44 Even though the GEF lacks a distinct legal personality, it does nonetheless enjoy a large degree of functional autonomy, a point that is supported by an analysis of its structure and functions. As one commentator

40

41

42

43

44

F. Rousseau, "Joint Vienna Institute — Breves remarques relatives a la creation de 1'Institut commun de Vienne", RGDIP 99 (1995), 639 et seq. M. Sapiro, "Changing the CSCE into the OSCE: Legal Aspects of a Political Transformation", AJIL 89 (1995), 631 et seq. On the use of the notion of "soft international organization", see L. Condorelli, "Diritto e non diritto nella CSCE", in: G. Barberini, N. Ronzitti (eds), La nuova Europa delta, CSCE, 1994. For an application of the theory of effectivity to the OSCE, see Ch. Bertrand, "La nature juridique de 1'Organisation pour la securite et la cooperation en Europe (OSCE)", RGDIP (1998), 364 et seq. See the note of the Departement Politique Federal Suisse of 1977 on the status of the GAIT, Annuaire Suisse de Droit International 34 (1978), 49 et seq., (8387); F. Roessler, "Law, De Facto Agreements and Declarations of Principles in International Economic Relations", GYIL 21 (1978), 27 et seq., (47-48). J. Jackson, "Observation sur les resultats du cycle de FUruguay", RGDIP 98 (1994), 675 et seq., (683). P. Bretton, "La Transformation de 1'ONUDI en institution specialised", AFDI 25 (1979), 522 et seq., (567-578); H.G. Schermers, N.M. Blokker, International Institutional Law, 1995,26.


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has remarked, this is a significant point since such autonomy may be the guarantee of a future emancipation.45

2. Governance Structure: A Quest for Universality and Transparency The restructuring of the GEF offered some assurance to states and to other international actors that sought greater transparency in the functioning of the mechanism. They also wanted the GEF to be more universally representative and more democratic. The Preamble to the Instrument affirmed that the Facility was restructured "to ensure a governance that is transparent and democratic in nature (and) to promote universality in its participation." These preoccupations are reflected in the structure of the mechanism, the decision-making process as well as the relations between this mechanism and the international institutions that assume the roles of trustee and implementing agencies. The GEF is composed of an Assembly, a Council and a Secretariat and benefits from the advice of a Scientific and Technical Advisory Panel (STAP), administered by UNEP pursuant to the provisions of the Instrument.46 The Assembly of the GEF consists of representatives of all Participating States.47 While in 1991 all developing countries wishing to become Participating States were asked to make a financial contribution to the Fund, this requirement was abandoned in 1994. This decision was one of the responses to demands for universality. The Assembly meets once every three years and is primarily responsible for examining the policies and operations of the Fund. It met for the first time in New Delhi (India) in April

45

According to the remarks of I.F.I. Shihata, Opening Address, Conference on Expert Monitoring of International Legal Norms (New York University School of Law, 2-4 February 1996), The World Bank in a Changing World, Volume III (forthcoming).

46

Para. 24 of the Instrument reads as follows: "UNEP shall establish, in consultation with UNDP and the World Bank and on the basis of guidelines and criteria established by the Council, the Scientific and Technical Advisory Panel (STAP) as an advisory body to the Facility. UNEP shall provide the STAP's Secretariat and shall operate as the liaison between the Facility and the STAP". Paras 13 and 14 of the Instrument.

47

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1998 and demonstrated the support, as well as the ownership which was consolidated over time, of all groups of states towards the GEF.48 The Council is the main executive organ. Its composition is designed to reflect two preoccupations, one relating to representation of all participants in a balanced and equitable way, while the other takes into account the financing efforts made by contributors. Of the 32 members composing the Council, 18 are from beneficiary countries while 14 are from industrialized countries. Some groups however include both beneficiary and nonbeneficiary countries. The sponsors of certain important funds can make up their own group.49 The Council meets on a bi-annual basis. The Council enjoys certain important prerogatives. It is responsible for adopting and evaluating the operational policies and the programmes of the GEF. It was also granted decision-making powers regarding the use of GEF resources.50 The World Bank, the UNDP and the UNEP, in their capacities as implementing agencies, are accountable to the Council for their activities that are financed by the GEF.51 The Council is also charged with the task of approving the administrative budget. It benefits from the services of a functionally independent Secretariat?2 supported administratively by the World Bank. The Chief Executive Officer (CEO) of the GEF, whose candidacy is proposed by the three implementing agencies and who is appointed by the Council, is the head of the Secretariat. He is directly accountable to the GEF Council. Among the tasks of the CEO is the significant and strategically important role of co-presiding over Council meetings.53 The decision-making process was an important point during the negotiations surrounding the restructuring of the Instrument. For the developing states, such a process was supposed to reflect the donor states' willingness to ensure that the GEF would be administered collectively by all members of the international community. It was to be an expression of the 48

49

50 51 52 53

See The New Delhi Statement of the First GEF Assembly, International Environment Reporter 2\ (1998), 396-397. Para. 16 of the Instrument. The 32 members are divided up in the following way: 16 members for the developing countries, 14 members for the developed countries and 2 members from the countries of Central and Eastern Europe and the former Soviet Union. Para. 20 lit.(e) of the Instrument. Para. 22 of the Instrument. Para. 21 of the Instrument. Para. 18 of the Instrument. Mohamed T. El-Ashry is the current Chief Executive Officer and Chairman of the GEF.


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concern for universality, as expressed most notably in Agenda 21.54 The main governing principle in the decision-making process is that of consensus within the Assembly and the Council. If "no consensus appears attainable"55 at the Council, a formal vote will be taken. The voting procedure is governed by the principle of a double weighted majority, which requires a 60% majority of the total number of Participating States as well as a 60% majority of the total amount of contributions made to the Trust Fund of the GEE56 The adoption of this double weighted voting system, which is based on the states' economic power, on the one hand, and the method of one vote per state, on the other, responded to the concerns over universality expressed by the developing countries. It also responded to the expectations of the donor states by providing them with the possibility of a qualified majority vote.57 The World Bank, the UNDP and the UNEP are important partners in carrying out the operations of the GEE While these organizations share some common responsibilities, they also have some that are specific to each of them as well.58 This reflects a desire to benefit from the strengths of each institution without having to create a new organization. In accordance with article 8/Annex B of the Instrument, and by virtue of Resolution No. 94-2 of its Executive Directors, the World Bank established a special Trust Fund. By so doing, the Bank assumed the role of trustee of the newly created fund. As an implementing agency, the Bank is also responsible for investment projects and mobilization of private sector re54

55 56

57

58

J. Dernbach, "The Global Environment Facility: Financing the Treaty Obligations of Developing Countries", Environment Law Reporter 23 (1993), 10124 etseq., (10129). Para. 25 lit.(b) of the Instrument. For more details concerning the conditions for the breakdown of the votes regarding the contributions made to the trust fund of the GEF and other associated practices, see para. 25 lit.(c)(iii) of the Instrument. This voting method is similar to the one put in place by the OPEC Fund for International Development. Its main proponent, I.F.I. Shihata, then Director General of the OPEC Fund, was Senior Vice-President and General Counsel of the World Bank at the time of establishment of the GEF. See I.F.I. Shihata et al. The OPEC Fund for International Development: The Formative Years, 1983, 31. This voting procedure is different than the one in place at the World Bank and at the IMF. The latter is based on the share of capital contributions to the organizations (a small equal number of votes is also allocated to each Member State, independently from its contribution to capital). See Annex D of the Instrument, "Principles of Cooperation among the Implementing Agencies".

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sources, while the UNDP has the primary role of ensuring the development and management of capacity building programs and technical assistance projects. For its part, the UNEP is responsible for overseeing the development of scientific and technical analysis as well as promoting environmental management protection consistent with the purpose of the GEE The Instrument stipulates that an agreement must be concluded between the three implementing organizations mentioned above. Such agreement was entered into in 1991 for the pilot phase of the GEF, but has not yet been negotiated since the GEF has been restructured. This seems to demonstrate that in the regular course of activities there is little need for formalism. Annex D to the Instrument also calls for the implementation of an "ongoing interagency process," carried out within the framework of an interagency committee. This institutional scheme has been put in place and has changed over time. It is now known as the GEF Operations Committee (GEFOP). In addition, such institutional concerns are, to a great extent taken into account in the daily administration of activities. The procedure for requesting funds from the GEF is also indicative of the close relationships between institutions. States and other parties must submit their requests for grants to one of the implementing agencies. The other organisations are then informed of this request. The GEF Council approves the projects within the context of a work programme recommended by the CEO. Individual projects within the programme are developed and approved by each of the implementing agencies. The CEO then makes sure that each project conforms to the work program and ultimately endorses it before the final project approval by an implementing agency. Within the framework of the GEF, there exists a clear desire to involve other partners, such as NGOs and local populations.59 This participation manifests itself in different ways, not only in the operational area but also within the context of questions relating to policy and programs. NGOs have an observer status at Council meetings which is unique among financial institutions. They may also request funds directly from the implementing agencies if the government accepts the project in principle. There exists a special programme of microfinancing, administered by the UNDP,60 for projects proposed by community groups and NGOs. 59

60

Para. 28 of the Instrument also refers to the collaboration of multilateral development banks, development agencies, national institutions, private sector entities and academic institutions. Within the Small Grants Program (SGP), a ceiling of 50.000 US$ is allocated for national projects and of 25.000 US$ for regional projects.

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Moreover, NGOs as well as other entities, public and private, may apply for medium-size projects, and may receive up to one million US$ in GEF financing. While the GEF Instrument only considers the World Bank, UNDP and UNEP as implementing agencies, it also allows for other bodies to be involved in operational activities through the implementing agencies. An open issue not yet resolved is the possibility for direct access of these other bodies to the GEF Council without the need to go through one of the implementing agencies. Should it be done in consultation with the World Bank, UNDP and UNEP, with a view to limiting this possibility to special cases or could it be left open to the decision of the GEF organs? These issues fall within the broader context of the allocation of responsibilities among institutions, especially when taking into account the comparative advantage of the three implementing agencies vis-a-vis other partners. These questions relate directly to the core function of the GEF, and particularly to its role as a catalyst for promoting innovative and far-reaching activities for promoting global environment concerns with all concerned partners. The GEF mechanism must also be understood within the context of its link with the Convention on Climate Change and the Convention on Biological Diversity. These institutional and conventional relations add a new dimension to the dynamic since the Conferences of the Parties have some input into the use of GEF resources. This illustrates once again the innovative and original character of the GEF.

III. The GEF and the Rule of Law: A Fruitful and Dynamic Relationship The Conventions on Climate Change and Biological Diversity each provide for the involvement of a financial mechanism responsible for compensating the incremental costs incurred through the adoption of measures pursuant to these instruments. The Conferences of the Parties have each recognized the GEF for assuming such a role. The conditions set out in the conventions, while favouring the restructuring of the Fund in 1994, have consolidated its stature on the international scene (1.). Moreover, the Framework Convention on Climate Change and the one on Biological Diversity provide the GEF with a legal framework within which it contributes to the promotion of the role of law (2.).

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1. Relations among Institutions: Flexibility and Pragmatism Each of the above mentioned conventions sets out the terms of reference for the financial mechanism and the instrumental role that it plays in the implementation of these conventions. The inclusion of these references is indicative of the negotiations, the compromises and the achievements that surrounded the adoption of these agreements. The GEF attracted considerable attention and its restructuring was aimed at satisfying the various demands for more universality and transparency. A review of the relevant conventional provisions reveals the transformation that the GEF experienced in its phase of restructuring. It also illustrates the importance of this mechanism to the implementation of the conventions, notably in the context of its relations with the bodies established by each convention. The Convention on Climate Change stipulates in paras 1 and 2 of article 11 that: 1. A mechanism for the provision of financial resources on grant or concessional basis, including for the transfer of technology, is hereby defined. It shall function under the guidance c f and be accountable to the Conference of the Parties, which shall decide on its policies, pro gramme priorities and eligibility criteria related to this Convention. Its operation shall be entrusted to one or more existing international entities. 2. The financial mechanism shall have an equitable and balanced representation of all Parties within a transparent system of governance. Article 21 para.3, of the same Convention reads: 3. The Global Environment Facility of the United Nations Development Programme, the United Nations Environment Programme and the International Bank for Reconstruction and Development shall be the international entity entrusted with the operations of the financial mechanism referred to in Article 11 on an interim basis. In this connection, the Global Environment Facility should be appropriately restructured and its membership made universal to enable it to fulfill the requirements of Article 11. The Convention on Biological Diversity, in para. 1 of article 21, describes the financing mechanism as follows: There shall be a mechanism for the provision of financial resources to developing country Parties for purposes of this Convention on a grant or concessional basis the essential elements of which are described in this Article. The mechanism shall function under the authority and guidance of, and be accountable to, the Conference of the Parties for


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purposes of this Convention. The operations of the mechanism shall be carried out by such institutional structure as may be decided upon by the Conference of the Parties at its first meeting. For purpose of this Convention, the Conference of the Parties shall determine the policy, strategy, programme priorities and eligibility criteria relating to the access to and utilization of such resources. The contributions shall be such as to take into account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the Conference of the Parties and the importance of burden-sharing among the contributing Parties included in the list referred to in Article 20, paragraph 2. Voluntary contributions may also be made by the developed country Parties and by other countries and sources. The mechanism shall operate within a democratic and transparent system of governance. Article 39 of the same Convention stipulates that: Provided that it has been fully restructured in accordance with the requirements of Article 21, the Global Environment Facility of the United Nations Development Programme, the United Nations Environment Programme and the International Bank for Reconstruction and Development shall be the institutional structure referred to in Article 21 on an interim basis, for the period between the entry into force of this Convention and the first meeting of the Conference of the Parties or until the Conference of the Parties decides which institutional structure will be designated in accordance with Article 21. The GEF acts as an entity responsible for ensuring the functioning of the financial mechanism, as stipulated by each of the conventions.61 As specified in para.6 of the Instrument, "the GEF shall function under the guidance of, and be accountable to, the Conferences of the Parties which shall decide on policies, program priorities and eligibility criteria for the purposes of the conventions."62 Within the scope of its functions, the Council of the GEF approves the work programme, which is composed of operational projects that apply the policies and criteria that were identified by the Conference of the Parties.63 61

62 63

The Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted in December 1997, endorses such a situation without referring explicitly to the GEF, FCC/CP/1997/7 Add. 1, article 11. Commitment repeated in paras 15 and 26 of the Instrument. See the GEF Operational Strategy, 1996. This instrument was developed through consultations between the Secretariats of the GEF and of the imple-

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In addition, as provided in the Instrument, the Conferences of the Parties and the Council of the GEF were supposed to negotiate arrangements or agreements ratifying the division of their responsibilities.64 Given the particular legal nature of the GEF — as previously discussed — it is interesting to note that once again pragmatism triumphed over formalism. It was decided to adopt several Memoranda of Understanding to address the very issue of the allocation of responsibilities. The legal nature of these instruments was not further specified and these Memoranda were not signed by the Conferences of the Parties and the GEF Council but rather were adopted by them.65 For its part, the GEF Council adopted these Memoranda, after consulting the World Bank. By so doing, the eventual problems of competence vis-a-vis the Bank that could have emerged have

64

65

menting agencies. The Secretariats of the Rio Conventions were also consulted so that the strategy incorporates the directives approved by the Conferences of the Parties. The division of responsibilities is provided for in both the Instrument and in the Conventions. Thus para.3 of article 11 of the Convention on Climate Change specifies that: The Conference of the Parties and the entity or entities entrusted with the operation of the financial mechanism shall agree upon arrangements to give effect to the above paragraphs, which shall include the following: (a) Modalities to ensure that the funded projects to address climate change are in conformity with the policies, programme priorities and eligibility criteria established by the Conference of the Parties; (b) Modalities by which a particular funding decision may be reconsidered in light of these policies, programme priorities and eligibility criteria;(c) Provision by entity or entities of regular reports to the Conference of the Parties on its funding operations, which is consistent with the requirements for accountability set out in paragraph 1 above; and (d) Determination in a predictable and identifiable manner of the amount of funding necessary and available for implementation of this Convention and the conditions under which that amount shall be periodically reviewed. The Memorandum negotiated by the Conference of the Parties to the Convention on Climate Change and the Council of the GEF was adopted in July 1996. It includes an Annex adopted in December 1997, which resolves the issue of determining the funds that are necessary and available for article 12 of the Convention on Climate Change. Regarding the relationship between the Conference of the Parties of the Convention on Biological Diversity and the Council of the GEF, a Memorandum was adopted in April 1997, see GEF/ R2/Inf. 4, April 15,1997. See Annex.


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thus been avoided.66 On the other hand, the competence of the Conferences of the Parties did not become an issue. An opinion of the Legal Counsel of the United Nations, had stated that the Conferences of the Parties are endowed with the requisite juridical capacity to enter into agreements.67 This point highlights the variety of the legal situations to be encountered when assessing the nature of the relationships among institutions. The issue of representation of the GEF and the Conventions on Climate Change and Biological Diversity at each other's meetings is also characterized by this same degree of flexibility, as each party has been granted observer status. This flexibility is also evident with respect to the type of documentation that must be provided by the GEF Council, such as the Annual Report68 as well as other documents describing the scope of the GEF's activities.69 The crucial question, of course, centres around the determination of the funds necessary for the GEF to effectively fulfill its purposes. The two replenishments have shown that the issue has so far been resolved in a pragmatic way, relying on dialogue and consultations between the World Bank as the trustee, the GEF Secretariat and the donors. The same spirit prevails for the allocation of resources between the different focal areas of the GEF. Dialogue and consultations are the ways to identify priorities and clarify how funds are to be divided. It should, however, be noted that these

66

67

68

69

See above; The World Bank as trustee of the Special Trust Fund of the GEF is responsible for formalizing arrangements or agreements concluded with the Conferences of the Parties (Para. 7 of Annex B of the Instrument). Memorandum of 23 August 1994 presented to the Executive Secretary of the Convention on Climate Change by Mr. Hans Corell, Under SecretaryGeneral for Legal Affairs, The Legal Counsel, A/AC.237/41, 1994. By virtue of para. 31 of the Instrument which states that the Annual Report "shall be prepared by the Secretariat and circulated to all Participants. It shall contain information on the activities carried out under the GEF, including a list of project ideas submitted for consideration and a review of the project activities funded by the Facility and their outcomes. The report shall contain all the information necessary to meet the principles of accountability and transparency that shall characterize the Facility as well as the requirements arising from the reporting arrangements agreed with each Conference of the Parties to the conventions referred to in paragraph 6. The report shall be conveyed to each of these Conferences of the Parties, the United Nations Commission on Sustainable Development, and any other international organization deemed appropriate by the Council". See Appendix to Chairs'Joint Summary, GEF Council Meeting, 2-4 April 1996.

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processes take place against a political context, in which each of the Conferences of the Parties may have its own vision of the needed agenda for protecting the global environment. In the end, what is at stake is the credibility of the GEF as an institution with a specified mandate and limited resources.

2. Legality, Legitimacy and the Protection of the Global Environment: Elements of a Regime The legal framework within which the GEF carries out its activities is composed of various legal instruments. They include its constitutive instrument, the resolutions and decisions of the international organizations that established the GEF, as well as the international conventions designed to protect the global environment. It is important to analyze the role played by the latter, and more particularly the Framework Convention on Climate Change and the Convention on Biological Diversity. The relations between the GEF and the Rio Conventions are, in fact, evidence of an institutional dynamic that favours the promotion and respect of the rule of law. They provide new parameters of legality against which financial activities are conducted. First, international environmental conventions play a critical role for defining the rules and criteria for GEF funding. The activities of the financial mechanism are carried out in conjunction with the bodies established by each of the conventions. In addition, the conventions set out the eligibility criteria for the allocation of grants and concessional funding by the GEF which are reserved exclusively for the parties to the conventions.70 Moreover, the Conference of the Parties of the conventions decide on the policy and program priorities and the GEF Council acts in conformity with them.71 The relations between the GEF and the Montreal Protocol on Substances that Deplete the Ozone Layer are similar to those between the GEF and the Rio Conventions. The GEF funding is directed to projects that must meet the same criteria as those adopted for projects financed by the Multilateral Fund of the Montreal Protocol. This means that the resources allocated by the GEF must conform to the criteria and policies 70

71

See para.9 of the Instrument. This technique certainly favoured the great number of ratifications of each of the conventions. Over 170 states are parties to them. See paras 15 and 26 of the Instrument.


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adopted by the Executive Committee of the Montreal Protocol. In addition they have to be compatible with the GEF Operational Strategy. As can be noted, it is necessary for the GEF activities to be based within the multilateral legal framework in place for protecting the ozone layer. In the future, the GEF may also elicit demands coming from other conventional fora. One can point to, for example, the Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification adopted in the 1994 or the forthcoming Convention on Persistent Organic Pollutants (POPs). The case of international waters is distinctive as, at the moment, there is no international agreement constituting a framework within which actions are undertaken and eligibility criteria are designed. Reference, however, is made to existing regional and universal instruments for projects dealing with the marine environment (e.g., the IMO Conventions). In these circumstances, the rule of law is perceived as a legitimizing factor which offers prospects of stability and good performance for the activities to be financed. A general tendency is emerging in the area of biological diversity towards more coordination and avoidance of duplication among the major conventions. It was notably induced by requests made for allowing the conventions already in force at the time of the Rio Conference to benefit from the funding by the GEE Negotiation of Memoranda among the Secretariats of the Conventions is aimed at strengthening coordination.72 Such a process should be endorsed by the executive bodies of the nature conservation conventions and by the Parties of the Convention on Biological Diversity, as the latter plays an anchor role, to allow for funding from the GEF. By placing the financial and technical activities to be undertaken within conventional legal frameworks, the global environmental conventions provide a framework within which to assess the legitimacy of the actions undertaken by the GEF implementing agencies.73 One can thus see the development of a new practice in assessing the legality of the acts of international organizations and the agreements that they conclude. The constitutive agreement of each of these institutions remains a cornerstone for such 72

73

See, for example, the Memorandum concluded in 1996 between the Secretariats of the Convention on Biological Diversity and the Convention on Wetlands of International Importance, especially as Waterfowl Habitat, C. de Klemm, "Voyage a 1'interieur des conventions de protection de la nature", in: M.Prieur, Mankind and the Environment, Hommage a A. Kiss, 1998, 650. See paras 15 and 26 of the Instrument.

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assessment. However, international environmental conventions set additional standards against which the legitimacy and legality of their activities have to be evaluated. The first institutional and conventional steps accomplished in the area of the protection of the global environment illustrate the fact that, ultimately, the actions undertaken by international organizations should be compatible with the object and purpose of these conventions.74 Second, GEF funding, being generally considered as an incentive to comply with international environmental commitments, may also be used as tool to exercise pressure on states in cases of non-compliance. It can be used as a stick for encouraging a country to comply with its commitments. This can be achieved by resorting to legal remedies as provided for in the contractual relationships between the implementing agencies and the beneficiaries, such as, for example, the suspension of a grant.75 It is a rather extreme measure, rarely resorted to in practice. It was, nevertheless, exercised once when the Secretariat of the GEF decided in January 1997, in concurrence with the World Bank Management, to suspend the right of the Republic of Congo to make withdrawals from a GEF grant.76 In July 1997, the suspension was lifted as the Republic of Congo satisfied the conditions as stated in the grant agreement. Another situation is when the GEF funding is provided for helping a country to come into compliance.77 The GEF financial assistance granted to the Russian Federation under a recommendation by the Montreal Protocol Implementation Committee and adopted in December 1995 by the 7th Meeting of the Parties to the Montreal Protocol, provides a good example of such situation. The Russian Federation had not been able to meet its phase-out obligations as required by the Montreal Protocol and had fallen behind its contribution to the Multilateral Fund. A ban on Russian exports in ozone-depleting substances (ODS) was imposed, together with

74

75

76

77

See Sand, "The Potential Impact of the Global Environment Facility...", see note 17, 496. See also the commitment first made by the Bank in 1984 and then reiterated, which reads as follows: "The Bank will not finance projects that contravene any international environmental agreement to which the member country concerned is a party", OMS 2.36 on Environmental Aspects of Bank Work, 1984. See, e.g. the General Conditions Applicable to Loan and Guarantee Agreements concluded with the World Bank, article 6.02 of 1 January 1985. Suspension of Disbursements, Congo-Wildlands Protection and Management Project (GEF Grant 28622 COB). See, GEF Operational Strategy, 1996, Chapter 5,48-49.

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a call for financial assistance. The GEF financing was aimed at enabling the Russian Federation to come into compliance with its financial and substantive obligations under the Protocol. Following the Decision of the Implementation Committee of the Montreal Protocol, which recommended that "(a) the GEF Council and other aid agencies should consider favourably additional steps to expedite financial assistance for projects proposed for approval within their work programmes; (b) further projects should be considered in the light of further clarifications and information to be provided by the Russian Federation to the Implementation Committee,"78 the GEF Council proceeded accordingly while requiring that the GEF Chief Executive Officer should only endorse the project (i.e. the Russian Phaseout of Ozone Depleting Substances II Project) after it had "received confirmation from the Ozone Secretariat that it has received satisfactory responses to the queries posed by the Implementation Committee of the Montreal Protocol to the Russian Federation."79 GEF financing was used as an incentive and contributed to the resolution of the issue through the Montreal Protocol Non-Compliance procedure. This highlights the importance of mutually - supportive strategies, financial and legal, even though there is no formal link among them. Lastly, it is noteworthy to mention the interplay of the GEF with the principles of international environmental law. They have influenced the establishment and subsequent consolidation of the GEF. For its part, the financial mechanism has contributed to the further development and recognition of these international environmental law principles. In conjunction with the negotiations of Agenda 21, the Conventions on Climate Change and Biological Diversity and the Declaration on Environment and Development, the restructuring process of the GEF enabled the states, international organizations and other relevant actors to identify with greater clarity the legal principles governing environmental activities and their content. It should come as no surprise then that like all institutions devoted to promoting and protecting the environment, the creation of the GEF and

78

79

Report of the Implementation Committee under Non-Compliance Procedures for the Montreal Protocol on the Work of its 13th Mtg., UNEP/Oz.L. Pro./ImpCom/13/3, para. 19 of 28 March 1996. Appendix to the Chairs Joint Summary, GEF Council Meeting of 2—4 April 1996; see J. Werksman, "Compliance and Transition: Russia's Non-Compliance Tests the Ozone Regime", ZaoR V 56 (1996), 750 et seq.

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its functioning was based on these principles.80 The parties focused, in particular, on certain fundamental principles, such as those relating to prevention and to the obligation not to cause damage to other states or areas beyond the limits of national jurisdiction. They also gave their support to emerging legal principles that serve as the basis for states' attempts to develop policies relating to sustainable development, such as the principles of common but differentiated responsibilities and the principles of precaution and public participation. Such principles have subsequently acquired wider recognition in the international legal order. These principles offer an opportunity to get an understanding of the intrinsic nature of the GEE Funded in large part by northern countries, its activities are designed to promote the protection of the global environment in southern countries as well as in countries experiencing a period of economic transition (as in central and eastern European countries and in the former Soviet Union). However, it is the international community in its entirety which benefits from these deeds. What is clear from this analysis is the interdependence that exists among partners and activities at the global level. Indeed, developing countries have identified the provision of financial resources by developed countries as a necessary condition to the former countries' conventional commitments in the area of global environmental protection. As a matter of fact, their respect for the conventions depends "on the effective implementation by developed country Parties of their commitments ... related to financial resources and transfer of technology."81

IV. Conclusions There are numerous attractive qualifications available for those seeking to describe the GEF: innovative financial mechanism, particular institution endowed with guarantees of great autonomy, if not independence, a pio-

80

81

On the role of emerging principles in the area of environmental protection see P. Sands, "International Law in the Field of Sustainable Development: Emerging Legal Principles", in: W. Lang (ed.), Sustainable Development and International Law, 1995, 53 et seq.; D. Bodansky, "Customary (and not so Customary) International Environmental Law", Indiana Journal of Global Legal Studies 35 (1995), 105 et seq. Article 4 para.7 of the Convention on Climate Change. See also article 20 para.4 of the Convention on Biological Diversity and article 5 para. 5 of the Montreal Protocol on Substances that Deplete the Ozone Layer.


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neer entity designed to ensure the implementation of international environmental conventions. It is important to underline the importance and scope of its program of action, designed to achieve global environmental benefits, thereby promoting sustainable development.82 Undoubtedly, the GEF is a useful mechanism and an important tool for promoting respect for the rule of law in this area. However, the GEF cannot, by itself, ensure the protection of the global environment. Instead, it functions as a facility, that is to say a catalyst for triggering joint and parallel actions to be undertaken by all the concerned partners, states, international and nongovernmental organizations as well as the private sector and local populations in order to shape a durable and viable world.83 A point of interest is the fact that the establishment of the GEF is based on a joint initiative conducted by several institutions of the UN System. Moreover, it is the first real partnership between the World Bank and the United Nations. Relying on the notion of comparative advantage, the World Bank, UNDP and UNEP identified new ways of collaborating while sharing different responsibilities and benefiting from each others' experience.84 An important feature of this mechanism is the fact that while not being a new international organization, the GEF has nevertheless its independent governance structure and its own secretariat. The latter is an important leeway and plays a crucial role for ensuring that global environment concerns penetrate the activities of the implementing agencies. Such type of cooperative scheme goes a step further than the holding of regular meetings and the issuance of joint declarations between institutions. In addition, an organized approach of a GEF-type, based on the exchange of information, flexibility, institutional checks and balances and an independent secretariat, helps to eliminate unnecessary duplication and to strengthen coordination. Another advantage of a GEF-type structure is that it shows how the UN System can adapt itself in order to face new challenges, while making use of existing institutions. Flexibility and pragmatism were important tools for setting the policy and legal profile of the institution, providing it with independence, but not with a fully-fledged international legal person82

83 84

See Programme for the Further Implementation of Agenda 21, adopted by the Special Session of the UN General Assembly, 23-27 June 1997. See Silard, see note 28, 634. As an example, the involvement of the World Bank in this architectural arrangement permits the others to benefit from the experience of the financial institution in matters relating to the management and execution of investment projects.

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ality. This formula created new partnership activities between the World Bank and the United Nations. It has also encouraged new ways of cooperation among these institutions and other partners, such as the regional development banks, NGOs, and the private sector. The GEF galaxy reveals, in fact, the multiple relationships which are taking place in the international arena among partners with a different profile and standing, and which all have a role to play for promoting sustainable development.

Annex Memorandum of Understanding Between the Conference of the Parties to the Convention on Biological Diversity and the Council of the Global Environment Facility Preamble The Conference of the Parties to the Convention on Biological Diversity (hereinafter the Conference of the Parties) and the Council of the Global Environment Facility (hereinafter the Council), Recognizing the characteristics of the financial Mechanism for the provision of financial resources for the purposes of the Convention on Biological Diversity (hereinafter the Convention) outlined in Article 21, paragraph 1, of the Convention, and the provisions of Article 21, paragraph 2, of the Convention, which call upon the Conference of the Parties to decide on the arrangements to give effect to Article 21, paragraph 1, after consultation with the institutional structure entrusted with the operation of the financial mechanism, Recognizing further the willingness of the Global Environment Facility (hereinafter GEF) to serve for the purposes of the financial mechanism for the implementation of the Convention, Recognizing that the financial mechanism shall function under the authority and guidance of and be accountable to the Conference of the Parties for the purposes of the Convention and that GEF as decided by the Conference of the Parties will operate the financial mechanism of the Convention on an interim basis in accordance with Article 39 of the Convention,


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Having consulted with each other and taking into account the relevant aspects of their governance structures as reflected in their constituent instruments, Have reached the following understanding: 1. Purpose The purpose of the present Memorandum of Understanding is to make provision for the relationship between the Conference of the Parties and the Council in order to give effect to the provisions of Article 21, paragraph 1, of the Convention and paragraph 26 of the GEF Instrument and, on an interim basis, in accordance with Article 39 of the Convention. 2. Guidance from the Conference of the Parties 2.1 In accordance with Article 21 of the Convention the Conference of the Parties will determine the policy, strategy, programme priorities and eligibility criteria for access to and utilization of financial resources available through the financial mechanism, including monitoring and evaluation on a regular basis of such utilization. GEF, in operating the financial mechanism under the Convention, will finance activities that are in full conformity with the guidance provided to it by the Conference of the Parties. For this purpose, the Conference of the Parties will communicate its guidance, and any revisions to such guidance as it may adopt, on the following, matters: (a) Policy and strategy; (b) Programme priorities; (c) Eligibility criteria; (d) An indicative list of incremental costs; (e) A list of developed country Parties and other Parties which voluntarily assume the obligations of developed country Parties; (f) Any other matter relating to Article 21, including periodic determination of the amount of resources needed as detailed in paragraph 5 of this Memorandum. 2.2 The Council will communicate to the Conference of the Parties all relevant information, including information on the projects in the area of biological diversity funded by GEF outside the framework of the financial mechanism of the Convention.

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3. Reporting 3.1 The Council will prepare and submit a report for each ordinary meeting of the Conference of the Parties. 3.2 The reports will include specific information on how the GEF Council, its Secretariat and its Implementing and Executing Agencies have applied the guidance and implemented the policy, strategies, programme priorities and eligibility criteria determined by the Conference of the Parties, as well as any other decision of the Conference of the Panics communicated to GEF, under Article 21 of the Convention. The Council should also report on its monitoring and evaluation activities concerning projects in the biodiversity focal area. 3.3 In particular, the reports will provide detailed in formation on the GEF biodiversity focal area, including: (a) Information on how GEF has responded to the guidance provided by the Conference of the Parties as described by paragraph 2, including, where appropriate, through its incorporation in the GEF operational strategy and operational programmes; (b) The conformity of the approved work programmes with guidance of the Conference of the Parties; (c) A synthesis of the different projects under implementation and a listing of the projects approved by the Council in the biodiversity focal area, as well as a financial report with an indication of the financial resources allocated to these projects; (d) A list of project proposals submitted for approval to the Council, through the GEF Implementing Agencies, by eligible Parties, including reporting on their approval status and, in cases of projects not approved, the reasons therefore; (e) A review of the project activities approved by GEF, and their outcomes, including information on funding and progress in implementation; and (f) Additional financial resources leveraged by GEF for the implementation of the Convention. 3.4 In order to meet the requirements of accountability to the Conference of the Parties, reports submitted by the Council will cover all GEF-financed activities carried out for the purpose of the Convention, whether decisions on such activities are made by the Council or by the GEF Implementing and/or Executing Agencies. To this end, the Council will make arrangements as might be necessary with the Implementing Agencies regarding disclosure of information.


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3.5 The Council will also provide information on other matters concerning the discharge of its functions under Article 21, paragraph 1, as may be requested by the Conference of the Parties. If the Council has difficulties in responding to any such request, it will explain its concerns to the Conference of the Parties and the Conference of the Parties and the Council will find a mutually agreed solution. 4. Monitoring and evaluation 4.1 The Conference of the Parties may raise with the Council any matter arising from the reports received. 4.2 The funding decisions for specific projects should be agreed between the developing country Party concerned and GEF in accordance with policy, strategy, programme priorities and eligibility criteria established by the Conference of the Parties. The GEF Council is responsible for approving the GEF work programmes. If a Party considers that a decision of the Council regarding a specific project was not made in compliance with the policies, programme priorities and eligibility criteria established by the Conference of the Parties in the context of the Convention, the Conference of the Parties should analyse the observations presented to it by the Party and take decisions on the basis of compliance with such policy, strategy, programme priorities and eligibility criteria. In the event that the Conference of the Parties considers that this specific project decision does not comply with the policy strategy, programme priorities and eligibility criteria established by the Conference of the Parties, it may ask the GEF Council for further clarification on the specific project decision. 4.3 As provided for in Article 21, paragraph 3, of the Convention, the Conference of the Parties will periodically review the effectiveness of the financial mechanism in implementing the Convention and communicate to the Council relevant decisions taken by the Conference of the Parties as the result of such review, to improve the effectiveness of the financial mechanism in assisting developing country Parties to implement the Convention. 5. Determination of funding requirements 5.1 In anticipation of the replenishment of GEF, the Conference of the Parties will make an assessment of the amount of funds that are necessary to assist developing countries, in accordance with the guidance provided by the Conference of the Parties, in fulfilling their commitments under the Convention over the next GEF replenishment cycle, taking into account:

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(a)

Article 20, paragraph 2, and Article 21, paragraph 1, of the Convention; (b) Guidance to the financial mechanism from the Conference of the Parties which calls for future financial resources; (c) The information communicated to the Conference of the Parties in the national reports submitted in accordance with Article 26 of the Convention; (d) National strategies, plans or programs developed in accordance with Article 6 of the Convention; (e) Information communicated to the Conference of the Parties from GEF on the number of eligible programmes and projects that were submitted to GEF, the number that were approved for funding, and the number that were turned down owing to lack of resources; (f) Experience gained by those concerned in the implementation of projects. 5.2 On the occasion of each replenishment GEF will, in its regular report to the Conference of the Parties as provided for in paragraph 3 of this Memorandum of Understanding indicate how it has responded during the replenishment cycle to the previous assessment by the Conference of the Parties prepared in accordance with paragraph 5.1 and inform the Conference of the Parties of the conclusion of replenishment negotiations. 5.3 On the basis of the report referred to in paragraph 5.2 of this Memorandum of Understanding the Conference of the Parties will review the amount of funding necessary for the implementation of the Convention, on the occasion of each replenishment of the financial mechanism. 6. Reciprocal representation On a reciprocal basis, representatives of GEF will be invited to attend meetings of the Conference of the Parties and representatives of the Convention will be invited to attend meetings of GEF. 7. Inter-secretariat cooperation The Secretariat of the Convention and the Secretariat of GEF will communicate and cooperate with each other and consult on a regular basis to facilitate the effectiveness of the financial mechanism in assisting developing country Parties to implement the Convention. In particular, the two secretariats will consult on the project proposals under consideration for


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inclusion in a proposed work programme, especially with regard to the consistency of the project proposals with the guidance of the Conference of the Parties. Official documentation of GEF will be made available to the Secretariat of the Convention on Biological Diversity. 8. Amendments Any amendments to the present Memorandum of Understanding will be decided upon by the Conference of the Parties and the Council in writing. 9. Interpretation If differences arise in the interpretation of the present Memorandum of Understanding, the Conference of the Parties and the Council will reach a mutually acceptable solution. 10. Entry into effect 10.1 The present Memorandum of Understanding will come into effect upon approval by the Conference of the Parties and by the. Council. Either participant may withdraw this Memorandum of Understanding at any time by written notification addressed to the other. The withdrawal will take effect six months after its notification. 10.2 The withdrawal of this Memorandum of Understanding by either Party to this Memorandum of Understanding shall not affect any projects considered and/or approved in accordance with the Memorandum of Understanding prior to the withdrawal.

Memorandum of Understanding Between the Conference of the Parties to the United Nations Framework Convention on Climate Change and the Council of the Global Environment Facility This Memorandum of Understanding is concluded between the Conference of the Parties (hereinafter referred to as "the COP") to the United Nations Framework Convention on Climate Change (hereinafter referred to as "the Convention") and the Council of the Global Environment Facility (hereinafter referred to as the "Council of the GEF"), the interna-

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tional entity entrusted on an interim basis with the operation of the financial mechanism referred to in Article 11 of the Convention. Introduction The Panics to this Memorandum of Understanding, Recalling Article 11 of the Convention and recognizing that the financial mechanism is to provide financial resources on a grant and concessional basis, including for the transfer of technology, and is to function under the guidance of and be accountable to the COP, which shall decide on its policies, programme priorities and eligibility criteria related to the Convention, Recalling Article 11.1 which states that the operation of the financial mechanism shall be entrusted to one or more existing international entities, Recalling also the decision of the first session of the COP on the maintenance of the interim arrangements referred to in Article 21.3 that the restructured GEF shall continue, on an interim basis, to be the international entity entrusted with the operation of the financial mechanism, referred to in Article 11, Recalling further the willingness of the GEF to serve for the purposes of the financial mechanism of the Convention as provided in paragraph 6 of the Instrument for the Establishment of the Restructured Global Environment Facility (hereinafter referred to as "the Instrument"), Recalling that, in accordance with Article 11.3, the COP and the entity or entities entrusted with the operation of the financial mechanism shall agree upon arrangements to give effect to Article 11.1 and 11.2, Recalling further that in accordance with paragraph 27 of the Instrument, the Council of the GEF is to consider and approve cooperative arrangements with the COP, Have agreed as follows: Purpose of arrangements 1. The purpose of this Memorandum is to give effect to the respective roles and responsibilities of the COP, the supreme body of the Convention, and the GEF, the international entity entrusted with the operation of the financial mechanism and to provide for the required interaction between them under Article 11 of the Convention and paragraphs 26 and 27 of the Instrument.


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Determination and communication of guidance from the COP 2. The COP will, pursuant to Article 11.1, decide on policies, programme priorities and eligibility criteria related to the Convention for the financial mechanism which shall function under the guidance of and be accountable to the COP. 3. The COP will, after each of its sessions, communicate to the Council of the GEF any policy guidance approved by the COP concerning the financial mechanism. Conformity with COP guidance 4. The Council will ensure the effective operation of the GEF as a source of funding activities for the purposes of the Convention in conformity with the guidance of the COP. It will report regularly to the COP on its activities related to the Convention and on the conformity of those activities with the guidance received from the COP. Reconsideration of funding decisions 5. The funding decisions for specific projects should be agreed between the developing country Party concerned and the GEF in conformity with policy guidance from the COP. The Council of the GEF is responsible for approving the GEF work programmes. If any Party considers that a decision of the Council regarding a specific project in a proposed work programme does not comply with the policies, programme priorities and eligibility criteria established by the COP in the context of the Convention, the COP should analyze the observations presented to it by the Party and take decisions on the basis of compliance with such policies, programme priorities and eligibility criteria. In the event that the COP considers that this specific project decision does not comply with the policies, programme priorities and eligibility criteria established by the COP, it may ask the Council of the GEF for further clarification on the specific project decision and in due time may ask for a reconsideration of that decision. Reports from the GEF to the COP 6. Annual reports of the GEF will be made available to the COP through its secretariat. Other official public documentation of the GEF will also be made available to the COP through its secretariat In order to meet the requirement of its accountability to the COP, the Annual Report of the

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GEF will cover all GEF-financed activities carried out in implementing the Convention, whether such activities are carried out by the GEF Implementing Agencies, the GEF Secretariat or by executing agencies implementing GEF-financed projects. To this end, the Council of the GEF will require all such bodies, with respect to GEF-financed activities, to comply with GEF policy on disclosure of information. 7. In its reporting on GEF-financed activities under the financial mechanism, the GEF should include specific information on how it has applied the guidance and decisions of the COP in its work related to the Convention. This report should be of a substantive nature and incorporate the programme of GEF activities in the areas covered by the Convention and an analysis of how the GEF, in its operations related to the Convention, has implemented the policies, programme priorities and eligibility criteria established by the COP. In particular, a synthesis of the different projects under implementation and a listing of the projects approved by the Council in the climate change focal area as well as a financial report with an indication of the financial resources required for those projects should be included. The Council should also report on its monitoring and evaluation activities concerning projects in the climate change focal area. 8. The Council of the GEF may seek guidance from the COP on any matter it considers relevant to the operation of the financial mechanism of the Convention. Determination of funding necessary and available 9. In accordance with Article 11.3(d) of the Convention, which calls for arrangements to determine in a predictable and identifiable manner the amount of funding necessary and available for the implementation of the Convention and the conditions under which that amount shall be periodically reviewed, the COP and the Council shall jointly determine the aggregate GEF funding requirements for the purpose of the Convention. Procedures to facilitate such a joint determination will be developed by the COP and the Council and annexed to this Memorandum. Cooperation between secretariats 10. The secretariats of the Convention and of the GEF shall cooperate and exchange on a regular basis views and experiences necessary to facilitate the effectiveness of the financial mechanism in assisting Parties to implement the Convention.


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Representation in meetings of governing bodies 11. The participation of representatives of the Council of the GEF in meetings of the COP and of its subsidiary bodies will be governed by the rules of procedure of the COP. Likewise, the participation of representatives of the Convention in meetings of the Council of the GEF will be determined in accordance with the rules of procedure of the Council of the GEF. In formulating and applying its rules, each organization will make every effort to accord the other organization reciprocal representation privileges. Review aid evaluation of the financial mechanism 12. The COP will periodically review and evaluate the effectiveness of all modalities established in accordance with Article 11.3. Such evaluations will be taken into account by the COP in its. decision, pursuant to Article 11.4, on arrangements for the financial mechanism. Modification of the Memorandum of Understanding 13. This Memorandum of Understanding may only be modified in writing by agreement between the COP and the Council of the GEF. Entry into effect 14. This Memorandum of Understanding shall come into force upon its approval by the COP of the Convention and the Council of the GEF. Termination 15. This Memorandum of Understanding may be terminated by either Party giving six months' notice in writing to the other.

Annex to the Memorandum of Understanding Determination of funding necessary and available for the implementation of the Convention In accordance with Article 11.3(d) of the Convention, which calls for arrangements to determine in a predictable and identifiable manner the

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amount of funding necessary and available for the implementation of the Convention and the conditions under which that amount shall be periodically reviewed, the COP and the Council will jointly determine the aggregate GEF funding requirements for the purpose o the Convention in accordance with the following procedures. 1. In anticipation of a replenishment of the GEF, the COP will make an assessment of the amount of funds that are necessary to assist developing countries, in accordance with the guidance provided by the COP, in fulfilling their commitments under the Convention over the next GEF replenishment cycle, taking into account: (a) The amount of funds necessary to meet the agreed full costs to be incurred by developing country Parties in order to prepare their national communications under Article 12.1 of the Convention on the basis of the guidelines for national communications of non-Annex I Parties adopted by the Conference of the Parties at its second session, and the information communicated to the COP under Article 12 of the Convention; (b) Financial resources needed by the developing country Parties to meet the agreed full incremental costs of implementing measures1 that are covered by Article 4.1 of the Convention and that are agreed between a developing country Party and the international entity or entities referred to in Article 11 of the Convention; (c) Information communicated to the COP from the GEF on the number of eligible programmes and projects that were submitted to the GEF, the number that were approved for funding, and the number that were turned down owing to lack of resources; (d) Other sources of funding available for the implementation of the Convention. 2. The GEF replenishment negotiations will take into account fully and comprehensively the COP's assessment 3. On the occasion of each replenishment, the GEF will, in its regular report to the COP as provided for in paragraphs 6 and 7 of this Memorandum of Understanding, indicate how it has responded during the replenishment cycle to the COP's previous assessment prepared in accordance with paragraph I of this annex, inform the COP of the conclusion of replenishment negotiations and indicate the amount of new and additional funding to be contributed to the GEF Trust Fund in the next re1

Including national, or where appropriate regional, plans or programmes developed towards the achievement of the Convention's objective.


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plenishment cycle for the purposes of the GEF, including the implementation of the Convention. The COP may, in its action on the GEF reports, consider the adequacy of the resources available for implementation of the Convention. 4. The reiteration of this process on the occasion of each replenishment will present the opportunity to review the amount of funding necessary and available for the implementation of the Convention in accordance with Article 11.3(d).


Some Observations Regarding Environmental Covenants and Conditionalities in World Bank Lending Activities Mohammed Abdelwahah Bekhechi1

I. Introductory Remarks on the World Bank and the Protection of the Environment The International Bank for Reconstruction and Development (IBRD) has been established as a leading financial institution providing longterm finance for productive projects, initially for reconstruction and development purposes2. The purposes of the IBRD as set forth in the Articles of Agreement may be summarized as follows: (1) to assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes, (2) to promote private foreign investment by means of guarantees or participations in loans and other investments made by private investors; and (3) when private capital is not available on reasonable terms, to supplement private investment by providing, on suitable conditions, finance for productive purposes out of its own capital, funds raised by it and its other ressources3. The opinions expressed are those of the author and not of the Organization. There are no criteria to distinguish between reconstruction and development projects in the World Bank's Articles of Agreement. Article I of the Articles of Agreement. Of course, the Bank is a cooperative institution whose resources are available only for the benefit of members.

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The Bank conducts its activities principally through loan operations. It was empowered either to borrow in private capital markets and then lend or to guarantee loans made directly by private creditors4. All lending activities to borrower countries are on commercial or near commercial terms. However, for countries that cannot borrow at these terms, a specific branch of the IBRD has been established: the International Development Association (IDA) to provide "soft loans" or concessional loans to the poorest among developing countries5. The World Bank also has two affiliates: (1.) the International Finance Corporation (IFC) which makes loans and equity investments in private sector projects, and (2.) the Multilateral Investment Guarantee Agency (MIGA) which provides insurance against political risks faced by private sector investments in developing countries. Together, the four institutions are referred to as the 'World Bank Group6. The World Bank is made up of member countries which have agreed to the Bank's Articles of Agreement7 and the Bank's by-laws which prescribe specific financing purposes for the World Bank. The World Bank's Articles of Agreement require the imposition of certain basic terms and conditions8 for its loan and guarantee operations. The terms on which any given loan, credit or guarantee is made are laid down in a loan agreement with the borrower or the guarantor. As a result, every lending operation leads to an agreement between the Bank and a member government, either as borrower or guarantor. These agreements incorporate by reference standard provisions adopted by the Bank from time to time. In addition to the normal terms and conditions imposed In practice, the IBRD has lent more often than it has used its guarantee powers. Guarantees were intended to be the primary means of financing followed sequentially by co-financing and direct loans in case private capital was not available at reasonable terms. The World Bank's Executive Directors approved a policy for mainstreaming the guarantee instrument in Bank operations especially for infrastructure and energy projects in developing countries, see T. Hassan, "Legal Aspects of World Bank Financing", Butterwortbs Journal of International Banking and Financial Law 13 (1998), 284 et seq., (286). Those having per capita income below US$ 1465. For the purpose of this paper, the World Bank is referred to as IBRD and IDA except if one of the two agencies is explicitly singled out. IBRD Articles of Agreement- UNTS Vol.2 No. 20 (b), amended by TIAS No. 5929, 16 December 1965, and IDA Articles of Agreement- UNTS Vol. 439 No. 6333. Hassan, see note 4, 288.

Bekhechi, Environ. Cov. and Conditionalities in Bank Lending Activities

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by the World Bank's Articles of Agreements, policy conditionality has appeared as a commonly used feature of loan and guarantee operations. Project lending represents the bulk of the World Bank's activities and accounts for over four-fifths of all Bank lending and credits. Over the first half century of its existence, the World Bank established itself as the premier development institution9. The Bank also does "Structural Adjustment Lending" (SAL) and "Sectoral Adjustment Lending" (SEGAL) which have been viewed as a significant departure from earlier project financing, because they are provided to support policy reforms10. For developing countries without access to private capital markets, the World Bank remains virtually the only source of long-term external capital apart from bilateral aid and direct foreign investment in selected activities. The World Bank remains predominantly a project lending institution with more emphasis on the soft issues such as education, environment, health and capacity building. The investments and programs that the World Bank supports in the environmental field range from fully-fledged environmental projects to sectoral projects with environmental components, as well as projects implemented by the World Bank but funded by third organizations such as the Global Environment Facility (GEF) or other bilateral and multilateral institutions11. In terms of activities, these range from reform of policy and legal structures to capacity building for environmental monitoring and enforcement and targeted funds for pollution prevention, park protection, integrated basin management and international waters protection12. The influence of the World Bank's financial resources is amplified by the policy dialogue and policy advice that often accompanies lending op-

9

10

11

12

A.O. Krueger, "Whither the World Bank and the IMF ?", Journal of Economic Literature XXXVI (1998), 1983 et seq., (2007). These non-project financing instruments have been developed to address the severe balance of payments issues in the 80s, and have been subjected to two conditions: (1) deterioration of the borrower's balance of payments, and (2) willingness of the borrower to formulate and implement a suitable program of structural adjustment. See Hassan, see note 4, 289. In general, these institutions make specific arrangements for the World Bank to manage funds on their behalf or establish trust funds for which the World Bank is designated as trustee. World Bank portfolio dedicated to environmental projects includes a total of US$ 10.7 billion and its growth is continuing (1998). See Five Years after Rio. Innovations in Environmental Policy, World Bank (ed.), Environmentally Sustainable Development Studies and Monographs Series No. 18.

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erations13. It is worth mentioning at this point that the drafters of the Articles of Agreements of the IBRD have not seen the protection of the environment as a subject matter for its activities and lending operations. In fact, as mentioned by Ibrahim Shihata, the World Bank's Articles of Agreement do not refer to the term "environment"14, nor do they refer to "sustainable development"15.

II. The World Bank Environment-Related Policies: Evolution and Content During the 1970s, the World Bank had begun to take the environment into consideration in its project-financed design16. However, it was only in 1984 that it issued its first environmental policy known as the Operational Manual Statement (OMS) 2.3617 "which recognized that the Bank's environmental practices were still evolving, but that there was a body of international environmental law the Bank would help to promote"18. OMS 2.36 has been instrumental to further the World Bank's environmental policy development. The cornerstone of these policies is the Environmental Assessment (EA) policy issued in 198919 which ap13

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15

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18 19

It is a fact that the Bank's policy leverage increases with the concessional content of its loans, and decreases with the borrower's ability to turn elsewhere for needed funds, and so varies tremendously across countries and sectors. I.F.I. Shihata (ed.), The World Bank in a Changing World, Selected Essays, 1991. Ch. Di Leva,"International Environmental Law and Development", Geo. Int'l Envtl.L.Rev. 10 (1997/1998), 501 et seq., (505). Di Leva mentions that "Since its beginning, the Bank has been applying policies linked to environmental protection". He mentions a water resource management project concerning the Indus River system and the Aswan Dam project in Egypt which were both criticized on various grounds, environment being the less important, see above at 519. OMS 2.36. Di Leva, see note 15, 520. Environmental Directive 4.00 Annex A (1989) and 4.01 (1991) on environmental assessment. Operational Directive 4.01 has been converted into the new policy format which comprises Operational Policy (OP), and Bank Procedure (BP) which are binding upon Bank staff, and Good Practices (GP) which are non-binding, collectively referred as OP/BP/GP.


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plies if there is the potential for any project to result in adverse environmental impact20. The EA process and findings help the World Bank and the borrower to better assess the economic, social and environmental aspects of any proposed project and define environmental management plan and/or mitigation measures to avoid and/or alleviate its harmful effects. Moreover, since 1984, major environmental policies have been issued by the World Bank and constitute the most comprehensive environmental policy that frames investment and other development activities of any development agency21. Other policies were adopted to address various environmental issues including the use of pesticides, the rights of indigenous peoples, hazardous wastes, the protection of forest, water resource management, involuntary resettlement, projects in international waterways, and protection of cultural heritage, all of which, causing the Bank to start its move towards the status of a modern sustainable development agency From the legal point of view, these policies are internal rules that provide guidance to Bank staff in their activities to ensure their consistency with the international mandate of the World Bank. These policies are being made specific and compliance with them is being closely monitored by various mechanisms. They are now widely disseminated

20

Bank projects are classified in three categories (A, B, C) to determine the appropriate level of environmental analysis and assessment to which they will be subjected. A Category A project is likely to have significant "adverse environmental impacts that are sensitive, diverse or unprecedented..." OP 4.01 is submitted to a full environmental assessment. A simple environmental analysis is required for a Category B project. A Category C project is a project which has no adverse impact on the environment and would not be subjected to any environmental analysis or assessment. A fourth category exists — called a Category Fl project which involves investment of Bank funds through financial intermediary in subprojects that may result in environmental assessment. Subprojects under a Fl Category project would have to be categorized individually as category, B or C projects.

21

This comprehensive policy document is the sum of all applicable environmental policies including: OP/BP/GP 4.01 on Environmental Assessment (EA); OP 4.04 on Natural Habitats; OP 4.09 on Pest Management; Operational Directive (OD) 4.20 on Indigenous Peoples; OD 4.30 on Involuntary Resettlement; OP 4.36 on Forestry; OP 7.50 on International Waterway; and the Operational Policy Note 11.03 on Cultural Heritage. See below on some of these policies. See Di Leva, see note 15.

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and disclosed outside the World Bank22, which strengthens their role as benchmark to assess the quality of Bank lending activities23. Bank policies are not international legal rules, but may enter the international legal order through the international agreements related to the World Bank financed projects. These policy instruments have influenced other international institutions and states which have introduced some of their features into their own legal order24. Although the World Bank has been taking decisive measures to develop its environmental policies, critics voiced concerns that the World Bank investment programs have damaged the environment25 and harmed the poor. Therefore, it is no surprise if the development of the World Bank's environmental policies have been considered as an answer to those who viewed the IBRD as "too friendly" to developing countries and insufficiently critical of their environmental policy framework while occasionally lending in support of ill-advised projects26. However, such critics have overlooked the extent to which the World Bank has been and continues to be working at integrating the twin imperatives of environmental protection and economic development. In fact, since the beginning of the 80s, the World Bank is paying more attention to environmental issues and is playing an important role in encouraging com22

23

24

25

26

Disclosure Policy, 1993. See I.F.I. Shihata, The World Bank and NonGovernmental Organisations, 1995; id., The World Bank in a Changing World, Vol. II., 1995, 237 et seq. This aspect has been tremendously deepened after the establishment of the Inspection Panel in 1993. See I.F.I. Shihata, The Inspection Panel, 1994. OD 4.01 on Environmental Assessment served as model for the drafting of various domestic legislation in developing countries, and the principle of environmental assessment has been introduced in the legal system of various borrower countries to help these countries comply with Bank policy first and expand the scope of EA in development activities. This was the case in the Gafsa Phosphate Project in Tunisia (Loan 1042; app.1974) which is a mining project. Mining operations produced waste such as sludge containing phosphate to be dumped into a seasonal river basin. It was found at appraisal that since the project did not raise any ecological issue, the inclusion of any covenant to that effect in the loan agreement was not necessary. When the project was completed, some washing of the sludges occurred during the rainy season carrying them downstream. As a result, potential for contamination of groundwater existed at the socalled chott or depression area where the riverbed met the groundwater close to the surface. The problem remained unresolved. See Krueger, see note 9.


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pliance with sound environmental standards and policies27. In addition to requiring more attention to environmental aspects during project preparation, the World Bank's loan documents frequently include covenants and/or conditionalities to protect environmental and social interests28. Under some circumstances, environmental covenants and conditionalities play an important role in paving the way towards a real effort for sustainable development. These circumstances include the modalities of adoption and definition of the content of the environmental covenants and conditionalities. It is only since environmental assessment became mandatory29 that environmental covenants and "green conditionalities" have been considered as a common feature of project-related legal agreements. The Operational Directive 4.0130 on environmental assessment was a significant step not only as an instrument to impose on the World Bank and borrower governments for consideration of environmental impacts of proposed projects, but also to require public disclosure of project specific 27

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I.F.I Shihata, "The World Bank and the Environment: Legal Instruments for Achieving Environmental Objectives", in: id., The World Bank in a Changing World, Vol.11, see note 22, 183 et seq. After suffering from criticism for its poor environmental and social track record, especially with allegations that its lending for transmigration in Indonesia, Road building in Brazil and support to large dams building in various countries were accelerating tropical deforestation and impoverishing indigenous peoples, the Bank responded by policy development actions designed to prevent its financing from harming the environment or the interests of vulnerable groups, including prohibition of financing logging in primary tropical forests (OP 4.36). However, the issue of compliance with Bank's environmental policies is still to be dealt with in a practical and efficient manner to ensure the passage from a "do no harm agenda" to a real "sustainable development financing". See below. The Bank established mandatory Environmental Assessment (EA) procedures in 1989 through an Operational Directive (OD 4.01). This directive has been issued into a new Operational Policy/Bank Procedure/Good Practices -OP/BP/GP- format. In addition to the EA policy, other Bank's policies with an important environmental content include those related to Indigenous Peoples (OD 4.20 of September 1991); Natural Habitats (OP 4.04 of September 1995); Forest, Water Resources Management (OP 4.07 of July 1993); Pest Management (OP 4.09 of July 1996); Involuntary Resettlement (OD 4.30 of June 1990). The bank is currently reviewing and reissuing major environmental policies including those related to indigenous peoples, involuntary resettlement and forestry. OD 4.01 has been converted to the new OP/BP/GP format as OP 4.01.

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information prior to the project's consideration by the Board of Directors of the Bank. This policy served as an early warning device to enable all project stakeholders and affected people to challenge questionable projects while they are still in the pipeline and leveraging some upstream changes in the project pipeline itself. Environmental assessment serves as a tool to define needed mitigatory measures and other treatment of environmentally harmful effects of proposed projects including defining alternative projects31. It is a critical instrument to help the World Bank and the borrower to decide what actions need to be taken to ensure the environmental soundness of the project. Some of these measures may be taken in designing the project, but others relate to the project implementation phase. In that regard, the analysis of the environmental assessment report and the project appraisal32"will allow the World Bank and the borrower to decide on the appropriateness and content of environmental covenants within the project-related legal documents. By complying with this procedure, the borrower and the World Bank will have opportunities to discuss, negotiate and agree on the content of the environmental measures that need to be undertaken by the borrower to pave the way to the World Bank financing, and later to define the needed conditionalities and covenants to ensure the environmental soundness of the project. Since the Rio Summit in 1992, the World Bank has been developing a new approach to development and environmental protection. This approach has evolved from "doing no harm" to strategically "mainstreaming" biological diversity conservation, affirmative conduct in en-

31

32

For a Category A project, an environmental management or mitigation plan is often required. The environmental management plan is an "instrument that details (a) the measures to be taken during the implementation and operation of a project to eliminate and offset environmental adverse impacts, or to reduce them at acceptable levels; and (b) the actions needed to implement these measures"- OP 4.01- Annex A. When actions need to be taken before the project appraisal, the Bank will require compliance with them through separate communication with the borrower. The Bank in general communicates through exchange of letters following a pre-appraisal mission or the analysis of the environmental assessment documents. In general the Project-appraisal documents will mention the borrowers compliance with these environmental requirements. When actions have to be taken before negotiations, they are mentioned in the project appraisal document, and the minutes of negotiations would mention the borrower's compliance with them.


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vironmental protection and social development33, and developing new instruments to deal with the most crucial environmental challenges such as climate change, biological diversity conservation or desertification. By doing so and incorporating environmental concerns into its development-oriented activities, the World Bank is critically helping in the implementation of sound environmental policies consistent with international environmental law. It appears therefore normal that environmental covenants of general nature have been introduced into almost all legal agreements related to World Bank financed or implemented projects to indicate the Bank and the borrower's commitment to deal adequately with environmental issues and to implement all projects in a sound environmental manner. Also, because of the involvement of the Bank in the promotion of compliance with international environmental law and good governance standards, environmental covenants are becoming more sophisticated including reference to stakeholder participation in environmentally sensitive projects and compliance with stringent quality standards.

III. Environmental Covenant, "Green Conditionally" and State Sovereignty: General Considerations Environmental covenants in IBRD loan and IDA credit agreements have appeared since the 1970s34. From the theoretical and practical point of view, there is an important distinction between conditionality and 33

34

G. Handl, "The Legal Mandate of Multilateral Development Banks as Agent for Change toward Sustainable Development", AJIL 92 (1998), 642 et seq., (663). See for example Botswana, Shashe Project Loan 776- 1971 (Section 4.08 -a"The Borrower shall take all action, including enactment of pollution legislation and regulations, required to ensure that the operations and emissions of the mining Project and of the Project shall be conducted with due regard to public health and the preservation of the environment...". Kenya, Second Forestry Plantation Project, Cr. 565-KE; 1975 (Section 3.06- "The Borrower shall take all reasonable measures to ensure that the execution of the Project is carried out with due regard to ecological and environmental factors...". El Salvador, Ahuachapan Expansion, Loan 1288, 1976 (Section 3.04- "The Borrower shall take all necessary measures, satisfactory to the Bank, to ensure that the Ahuachapan plant is operated with due regard to ecological and environmental factors, particularly with regard to disposal of geothermal effluents...".

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environmental covenants. A covenant is the expression of a promise to take an action. From the legal standpoint, the mechanism to enforce that promise is the suspension of a right already vested. A conditionality offers an incentive for action by providing for financing only if the agreed action is implemented. It is worth noting that conditionality could be stated through a covenant, but all environmental covenants are not conditionalities. Conditionality can be added to the promise that the covenant constitutes, or can complement a covenant adding to its effectiveness. Conditionality can be made at various moments of project processing. A specific event can be made a condition for negotiation of the project35, or a condition to the effectiveness of the loan36, or a condition to the disbursement of the proceeds of the loan, credit or grant37. The World Bank, in addressing environmental issues, has used these entire hypotheses. Environmental covenants and conditionalities are not the translation of unilateral actions of the World Bank or sole consequences of its policy instruments. They are in general the result of a deep dialogue and exchange of views with borrower country officials and staff involved in environmental considerations relating to the project to be financed38. This dialogue includes the analysis of all project components including their consistency with the Bank's environmental policies and international obligations of the borrower under international environmental law. In the World Bank project cycle, special covenants and conditionalities are envisioned and discussed during project pre-appraisal and project appraisal39 stages, so that the stakeholders involved will be in a 35

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If the condition referred to is not satisfied, the negotiations can not take place. If such condition is not satisfied, the agreement does not become effective and therefore can not be implemented. In case the condition is not satisfied at a certain point of project implementation, the disbursement of the loan, grant or credit will be suspended. In some case, the suspension of disbursement may affect a specific component of the project that has been targeted by the conditionality. It is a central issue dealing with project effective implementation. Crucial to the effectiveness of any legal covenant and conditionality is the way all stakeholders, including borrower country officials, executing agencies, project beneficiaries and project affected peoples, have been involved in project design. At that point all covenant and/or conditionality implications are assessed within the social, institutional, political and environmental context of the country.


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position to understand their objectives. However, although environmental covenants and conditionalities are prepared, discussed with the involvement of major stakeholders, and negotiated between the World Bank and the borrower, observers and developing country members questioned the ability of the World Bank to impose its own imperatives concerning environmental policies on developing countries40. The President of the World Bank has raised the issue of the acceptability of any environmental conditionality in any development project financing41. The question whether a conditionality constitutes an infringement of any right of the borrower has been asked by various observers42. A former Director of Environment at the World Bank, effectively argues that "green conditionality" tied to resource transfers is perhaps a latter day expression of colonialism43. Although, nobody contests the fact that environmental issues are global in scope and transcend the states, states remain the primary actor in international relations and a tension is still apparent between the need of collective actions and state sovereignty. In the development financing process this tension is highly visible44. However, from the legal point of view, it is

40

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42 43 44

K.W. Piddington,"Sovereignty and the Environment: Part of the Solution or Part of the Problem?", Environment 31 (1989), 18-20, 35-39, (18). B. Conable, former President of the World Bank, has declared in a speech at the World Resource Institute, that "[w]e have not yet arrived at the point where, like peace and security, the restoration and preservation of the health of planetary ecosystems is perceived as factor of the highest common welfare ... [and] unless and until the industrialized world is prepared to accept and act upon its own environmental shortcomings, it will be difficult to persuade developing nations that there is such thing as a collective global responsibility for our planet's health", in: International Environment Report (BNA), 1989, 356 and P.A. Rodgers, "Looking at Gift in the Mouth, The World Bank and Environmental Accountability", Geo.Int'l EnvdLRev. 3 (1990), 457 et seq. Piddington, see note 40. Piddington, see note 40,18. Y. Berthelot, "Are International Institutions in Favor of Environment?", in: L. Campiglio (ed.), The Environment After Rio, 1994, 267 et seq., this author writes: "The developed countries will consider significant transfers to help pay for the "greening" of developing countries only if those countries undertake economic (and, in some cases, even political) reforms. This attitude is regarded by the developing nations as a clear transgression of their sovereignty. Similarly, the developed countries want to retain control

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quite simple to point out that environmental covenants and conditionalities are part of an international agreement that has been negotiated by two subjects of international law and that all obligations and rights contained in such agreement are deemed to have been accepted by the two subjects on an equal basis. It is up to the borrower to decide whether any environmental covenant or conditionality attached to the financing are realistic and acceptable or not. The position of developing nations has positively evolved during the two last decades, mainly under the influence of two factors. The first factor lies in the recent international environmental conventions that provide specific funding mechanisms for environmental protection and management in developing countries45. Although the financing provided under major international environmental conventions and other financing mechanisms is far from being sufficient, it is a positive step that has strengthened environmental protection at international level and made environmental covenants and conditionalities "more agreeable" in development projects. The second factor derives from the developing nations' move to tighten the relationship between environmental protection and development. This has started to be done through the complex process of preparing and implementing National Environmental Action Plans (NEAP), conservation strategies, Tropical Forest Action Plans (TFAP) and other more specific environmental programs46. The World Bank has played a significant role in this process by providing resources and expertise and coordinating foreign assistance. A policy has been issued on environmental action plans47 which states that IDA eli-

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over any resources which they do transfer, whilst the developing countries prefer to be able to dispose of these resources as they judge best", at 275. K. Ginther, E. Centers and P.J.I.M de Waart (eds), Sustainable Development and Good Governance, 1995, also G. Taylor, Financing Sustainable Development, Report of the 3rd Talloires Seminar on International Environmental Issues, Tufts University, 1985. F. Falloux, L.M. Talbot, Crisis and Opportunity. Environment and Development in Africa, 1993, which provides an excellent analysis of the National Environmental Action Plan preparation process in African countries and the role played by the World Bank and donor community. OP 4.02 "Environmental Action Plan" which states "The Bank encourages and supports the efforts of borrowing countries to prepare and implement an appropriate Environmental Action Plan (EAP) and to revise it periodically..." [ ] the EAP preparation process "is expected to form an integral part of the overall national development policy and decision making". It should be noticed that this policy has been frequently criticized.


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gible countries must provide the World Bank with a NEAP agreed upon by the relevant national authorities before presenting any environmental project for Bank financing. Also, from the legal point of view, developing nations have also started to formally accept the view that environmental destruction transcends national borders and that there is a clear and urgent need to protect the environment and the natural resource base for future generations48. Therefore, it is widely accepted now that environmental covenant and/or conditionalities would be accepted as a normal feature of any international financing instrument when the link between development and environmental protection is clearly evidenced in project design and understood by recipient countries as a non negotiable part of the development project49. This trend is being reinforced by the fact that experience has demonstrated that once information is provided to those likely or potentially to be affected by environmentally hazardous projects, the government and the society respond positively and accept environmental covenants and safeguards to be included in any international donor financed project. Conditionalities and covenants are enhanced in relation to the Bankfinanced projects' environmental assessment. In fact, as noted by Shihata, "environment-related issues do arise in many projects [...]. During the preparation and appraisal of such projects, consideration is given to measures needed to avoid or at least minimize environmental risks or to enhance environmental benefits". In this respect, the Bank has to assure itself that any measures agreed would in fact be carried out by the borrower and the project implementing agency concerned. Typically, such measures are incorporated into the overall design and implementation programs agreed for the project ("... a variety of legal techniques are used to enable the Bank to see to it that the actions required will in fact 48

49

It is important to mention here that within developing nations, a real environmental awareness has been observed, especially in those countries which have suffered from important damage to their environment (India, Brazil, Algeria, South Africa, Sri Lanka). For example, it was a public outcry by a Sri Lankan-based environmental NGO that led to unprecedented environmental conditionalities and safeguards in a World Bank credit. What have been called "big dam controversies" have forced the Bank to strengthen its policy on Dam financing, and to impose rigorous conditions on any country. After the controversy over the Sardar Sarovar Dam project in India, the Bank placed a number of substantial conditions on any further support to the project. India, unable to meet those conditions withdrew its request for Bank support and has continued the project on its own.

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be carried out"50). The loan, credit or grant agreement51 will include all obligations and undertakings of the borrower including those concerning the environment. In the processing of a partial-risk guarantee operation, the World Bank in general verifies that the design and operation of the project to be financed by private funds will be consistent with the Bank's requirements for environmental protection. The Bank will ascertain that the borrower will carry out an environmental assessment and ensure that the emission levels are acceptable to the World Bank52. Environmental covenants may be introduced in the Guarantee Agreement to ensure that appropriate emission standards shall be implemented consistent with its own recommended standards, international standards53, national legislation and local conditions54. In this case, the EA report must provide full and detailed justification for the levels and approaches chosen for the project and its recommendations may be translated into the project-related documents, including a bidding document to build and operate the project and a partial-risk guarantee agreement. This practice of inclusion of environmental covenants into legal agreements between the World Bank and its borrower countries has greatly assisted in the recognition and the strengthening of a new general principle of international law55. According to this principle, states should not harm the global environment. This general principle derives 50 51

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Shihata, see note 14. The latter is mainly used for GEF projects implemented by the World Bank. The levels of emission acceptable to the World Bank are set forth in the Pollution Prevention and Abatement Handbook, 1998. Among these, WHO and FAO standards are widely used in developing countries. The environmental assessment may also recommend alternative emission levels and approaches to pollution abatement for the Project. The World Bank will review the EA to ensure its consistency with its policy and advise the borrower on any issue related to EA implementation. Ph. Sands, "International Law in the Field of Sustainable Development: Emerging Legal Principles", in: W. Lang, Sustainable Development and International Law, 1995, 53 et seq. One of these covenants and the oldest one reads as follows: the borrower affirms "its commitment to carry out the project with due diligence and due respect for environmental and ecological factors". This statement is now widely accepted in international relations and is considered as a ground for the development of a general principle of law.

Bekhechi, Environ. Cov. and Conditional!ties in Bank Lending Activities

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from the landmark "Trail Smelter Case"56, the subsequent international jurisprudence including the recent ruling of the ICJ concerning the "Gabcikovo-Nagymoros Project"57, and the subsequent practice of states and international institutions to prevent pollution and environmental harm at both national and international levels. This general principle is being used as a way to develop environmental safeguards for all World Bank-financed activities. The implementation of these environmental safeguard policies constitutes a ground for the inclusion of general and specific environmental covenants in almost all the legal documents related to World Bank financed projects.

IV. Environmental Covenant An environmental covenant is generally described as a covenant requiring that environment-related actions be taken. These actions may take the form of: (1) issuance of appropriate environmental regulations or standards; (2) enforcement of existing legislation, regulations and standards; (3) carrying out of environmental studies, including environmental impact assessment; (4) provision of resources for environmental purposes; (5) installation of clean technologies; and (6) public participation or consultation of project affected peoples. Environmental covenants may be found in project agreements, loan agreements, credit agreements, grant agreements and guarantee agreements. Environmental covenants may be of general nature, calling government or project implementing agencies to carry out their activities with due consideration of good environmental practice and due regard to ecological factors without reference to any specific action or due regard for pre-defined standards. In other cases, they will be precisely defined and would refer to very specific standards and actions to be followed or taken.

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U.S. v. Canada, RIAA Vol.3,1907.

57

Case Concerning The Gabcfkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7 et seq.

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V. Environmental Covenant of General Nature As we mentioned earlier, the World Bank has made efforts to cover environmental issues and to secure attention by its borrowers to environmental concerns in project-related legal documents. Legal agreements related to loan, credit, guarantee and grant, include a general clause related to the borrower's commitment "to the objectives of the project, to carry out the project with due diligence and efficiency and in conformity with appropriate practices" which are applicable to the project in question. This formulation was introduced upon the suggestion of Shihata in 1984 to ensure that borrowers are truly committed to the project's objectives and accept full responsibility for their implementation and to clarify that the so-called World Bank projects are the borrowers' own projects where the Bank plays the role of a supportive financier58. Before this, a general covenant was introduced in legal agreements related to projects with environmental components or highly visible environmental components. These covenants stipulated the borrower's commitment to carry out the project with "due diligence and due regard to environmental and ecological factors". The use of this general covenant was widespread in the seventies. Although all the provisions of the legal documents of a Bank financed project have the status of international obligations, it has been noticed by analysts and observers that these general covenants are generally viewed, at best, by both the borrower and the World Bank as prescribing a "soft" obligation which is closer to non-binding guidelines for project execution and operation. "Due diligence" and "due regard" both refer to some vague standards that do not give the Bank a leverage to use any remedies to ensure that environmental issues are dealt with and properly resolved during project implementation. These general covenants requiring the borrower to exercise due regard to the environment are viewed as no more than non-binding guidelines for project execution and operation, especially when they do not refer to specific standards to be applied to project activities59. These covenants are based on a vague standard ("due regard"), and do not provide for remedies. General environmental covenants have been used in all categories of projects including industrial, forestry, biological diversity, social development and others. The environmental performance 58 59

Shihata, see note 22. J. Meinel, Environmental Covenants in Development Loan Agreements, World Bank Internal Paper, 1987, 2.


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of the project is rendered impossible, and Bank staff in charge of supervision have looked at the objectives of these covenants as non-essential to the project's successful completion. Critics of the poor track record of the Bank in environmental protection activities have used examples of such projects. Interesting cases may be found in projects where in addition to the general covenant, legal agreements included a number of specific measures to protect specific components of the environment60. Sometimes the borrower implements parts of the measures agreed upon, so there was partial compliance with the environmental covenant. Another example would help to highlight the inefficiency of general environmental covenants and the need to develop more specific covenants. For example, let us consider the Power Project that provides financing for geothermal power plants and dam. The legal agreement for these categories of projects clearly mentions that the borrower country shall "carry out the Project with due regard to ecological and environmental factors". The design of such projects provides that effluents from the geothermal wells are to be discharged into the open waterways or ocean by the way of underground canal. However it appears that in some cases these canals are not ready or not built during the first years of operation of the geothermal unit. It may happen that the effluent is discharged partly in open air, harming the environment of neighbouring countries and the health of the population. When facing such situations, Bank staff, in general express concern to the borrower on the possible health hazard of such discharges, the environmental harmful effects and the potential international complications where an international waterway is involved. However, it is rare for the disbursement to be suspended, mainly because the discussion of Bank comments and the interpretation of the vague standard may lead the operator of the geothermal unit to consider itself in compliance with the general covenant. From experience, it appears that discussion between Bank and borrowers, coupled with protests from stakeholders and others may force the borrower to ensure that an acceptable level of effluent discharge into a given waterway is not exceeded and to consider boosting the construction of the needed infrastructures and the development of pollution control policies.

60

Sometimes specific measures may include: the demarcation of nature reserves, a study to determine the need for additional nature reserves, the gazetting of treated land by increased pressure from farmers as forest reserves and all are partially implemented.

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The same issue may be faced in projects concerning green issues such as forestry61 where it is assumed that projects could be operated on the principle of sustained yield using a forest inventory to establish for each area the quantity of hardwood that could be harvested each year without deterioration of the forest. In general, borrowers agree to manage the project according to sound sylvicultural practices and to maintain a project unit for monitoring the annual allowable cutting rate. However, it may appear during supervisions, that the forests are overexploited, and that population of wild fauna including wild elephants are severely impaired. Sometimes, wild elephants are domesticated and used for timber extraction which aggravate both the decline of the trees and the elephants. It remains difficult in those cases to take appropriate action, namely to stop the use of domesticated elephants to exploit the forests, because no specific language or covenant has been included in the legal document. This demonstrates how difficult and complex is the task of the Bank staff to get borrowers to comply with the latter and the spirit of environmental covenant when they are written in vague language with no specific standards referred to in them. As we may conclude from the above-mentioned examples, general covenants have been useless when environmental effects were not anticipated at project design and appraisal. In fact, general covenants attempt to address environmental issues and problems not anticipated at project appraisal, but that may occur during project execution or operation. Thus they are intended to provide contractual standards which the borrower is expected to adhere to. However, the borrower's obligation as defined in a general environmental covenant is very weak because of the absence of reference and vagueness of the applicable standards, and also the absence of specific resources to deal with the environmental problem to be resolved. However, historically the introduction of the environmental covenant of general nature in the legal documents related to World Bank financed projects has paved the way for the development of more specific environmental covenants. In fact, it appeared that if a general environmental covenant is to have any positive action on project environmental performance, it is essential to complement it with specific standards applicable to the project's activities. Such standards may be defined by specific environmental covenants, set forth in an Annex or a supplemental letter to the agreement in question. Such Annex or supplemental letter are as binding as the principal legal

61

This category of projects and the problems it raised is very well known across all regions.


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agreement is and are executed at the same time62 under the same legal conditions. The examples discussed have somehow showed the limited usefulness of environmental covenants of general nature where the partners agree upon no specific covenants and binding guidelines63. Their contractual function was not clear, because if they were intended to cover environmental or technical problems not anticipated during the project appraisal, the general environment covenant does not provide leverage to urge remedial action. Moreover, when a specific environmental covenant or specific environmental measures are defined in addition with the general covenant, it remains unclear what the function of the general covenant is, given that specific actions to be taken had been agreed upon in the specific covenant. This is why more specific and better-defined environmental covenants have been included in loan, credit, grant and/or project legal documents.

VI. Specific Covenants and Conditionality To ensure proper implementation and compliance with all environmental requirements, the World Bank has managed to negotiate the inclusion of specific measures into the legal agreement itself. This inclusion may take the form of a specific detailed covenant, or of a conditionally linked to the disbursement of the proceed of the loan, credit or grant. These measures may include: (1) the definition of environmental actions to be taken into the schedule related to project description and implementation, including the establishment of a specific environmental unit, training of staff, recruitment of consultants to advise on environmental issues and solutions; (2) the preparation and/or implementation of environmental studies, plans or policies;

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Shihata, see note 14. Now, it is more common to have a clear reference to pollution control standards in the legal document. The Pollution Prevention and Abatement Handbook (1998) is a good reference for different types of projects for which it provides good reference standards which the World Bank staff should follow when appraising projects.

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(3) the submission of reports to the Bank at specific periods of project implementation; (4) the carrying out of consultation with stakeholders; (5) the purchase, installation and operation of specific equipment to fight, control or reduce pollution64; (6) the enactment of new and/or updated legislation; (7) the enforcement of existing or issuance of new regulations, standards and guidelines; (8) the provision of resources for environmental purposes; (9) the carrying out of consultation with stakeholders involved in project implementation; (10) the implementation of international agreements or compliance with some of their requirements65. Specific covenants may be included in all categories of projects and are likely to be found in project-related legal documents in environmentally sensitive activities (e.g. pollution control, water resources management, mining, transportation, forestry, road construction, housing). They also may be part of the design of the World Bank's assistance to member countries in the framework of its adjustment lending. In fact, environmental covenants may be included in SAL and or SEGAL. A clause such as the following is part of a Structural Adjustment Loan Agreement: "the Borrower has issued guidelines under its Industries (Development and Regulations) Act ... as amended, clarifying that industrial licensing decisions in respect of projects and facilities located within less than 25 kms of cities of over one million population will be based solely on environmental safety, land-use, congestion, ur-

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For all these types of actions, see above the description of the specific environmental covenants. In the framework of the regional project (Solid and Ship-Generated Waste Management Projects) in the Caribbean Region, 1995 (Antigua & Barbuda, Commonwealth of Dominica, Grenada, St. Kitts & Nevis, St. Lucia and St. Vincent & The Grenadines) the Bank provided a GEF grant and credit or loan for each of these countries. As a condition of effectiveness for each country component, it was agreed that an environmental assessment be completed for landfills to be financed, a legislative framework for waste management be developed and put into effect, including the establishment of an independent waste management unit in each country, and that each country should reach agreement with other funding agencies for parallelfinancing of specific project's component.


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ban planning, and other related considerations"66. From this example, we can see the critical aspect of such specific covenants and their relevance to environmental protection. In fact, these specific covenants have been developed to address the most critical environmental impacts and concerns by borrowers and/or implementing agencies. They are considered as an integral part of the project's objectives. For these specific covenants, various legal techniques may be used to ensure monitoring and compliance67. As mentioned above, some of these covenants may be considered as a traditional conditionality linked to the effectiveness of the project or the disbursement of the proceed of the loan, credit or grant, while others may be seen as part of the projects and whose implementation could be done without relying on sanctions such as disbursement suspension and or project cancellation. Among all of these, we may distinguish the following actions: (1) compulsory action could be required to be taken prior to the effectiveness of the agreement68 (e.g. delimitation of protected area, enactment of pollution control guidelines and/or regulations, pollution equipment to be installed); (2) an implementation program may be attached to the agreement as a means to ensure compliance with the environmental covenant69. These implementation programs are sophisticated in that they in-

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67 68

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As part of the Structural Adjustment Credit (SAC III), to Cameroon ( 3 August 1998), it was agreed that as a "condition for the release of the second tranche of the credit" would be that the Government "has adopted regulations" related to forest management and "defined a strategy , satisfactory to the Association, for the delimitation of areas which may be awarded as concessions, taking into account requirement for sustainable forestry land-use management", Annex II to the Credit Agreement. Shihata, see note 14. Environmental conditionalities are sometimes prior conditions to loan, credit or grant effectiveness. A GEF Grant Agreement related to a Biodiversity Conservation and Management Project states in its article VI that as condition of effectiveness, "the Recipient shall have issued the decree on fauna implementing the Recipient's Forest Law 94-01 ", 22 May 1995. For the same GEF project cited here above, see note 68, a condition of effectiveness has been included requesting the recipient to sign "contracts, satisfactory to the Trustee, with selected non-governmental organizations (NGOs) responsible for Project implementation".

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Max Planck UNYB 3 (1999) troduce criteria to monitor project objectives implementation and compliance with specific covenants70;

(3) the inclusion of specific environmental components as part of the project; (4) the implementation of pre-defined international or World Bank environmental standards71 which are often used as specific covenants72. It appears from experience that World Bank-financed projects show a better record of compliance with respect to specific environmental components and covenants when such components and covenants are viewed as part of the project's objectives and/or are critical to the successful completion of the project as a whole73. The example of an Industrial Pollution Control Project which the World Bank is financing may illustrate this statement. The legal agreement related to this project has defined various environmental covenants and includes a whole range of measures, including: (1) the closing of polluting factories and (2) introduction of cleaner technologies74 in public enterprises that were 70 71

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These are called "Performance Indicators". These will be found in the Pollution Prevention and Abatement Handbook (August 1998) which succeeded the World Bank Environmental Guidelines that were published in 1988 to provide technical advice and guidance to staff and consultants involved in pollution-related projects. The Handbook comprises three major parts: on "key policy lessons", "implementation of policy objectives" and "detailed requirements" to be taken into account in the preparation of World Bank Group financed or guaranteed projects. The Handbook is specifically designed to be used in the context of the Bank's environmental policies set out in OP 4.01 and related documents. It happened in some cases that compliance with specific environmental covenants was not always successful. In one case the World Bank requested the borrower to prepare a suitable legislation including sanctions and requirements of a regular monitoring for an orderly development of the country groundwater resources. It was agreed that the Government would appoint an expert committee to review the issue and that the Committee would submit its proposals for review by the Bank by a certain date. After project completion, an audit has revealed that the Government failed to regulate groundwater exploitation and to draft any legislation on this. The exploitation of groundwater continued in a rather non-rationalized manner. Meinel, see note 59. Algeria: Loan Agreement for the Industrial Pollution Control Project 4034 of June 1996, in Schedule 2 annexed to the agreement it was specified, that


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polluting important urban and coastal areas. These covenants have been complied with because of the well-defined measures required and their clear link to much needed health, environmental and economic improvement as well. In the framework of a regional project involving the environmental protection of international waters and executed by an international legal entity, the legal agreement included two environmental covenants: one that reads as follows: " the Recipient shall carry out its business and operations, and otherwise conduct all its affairs, in accordance with sound professional, administrative, international waters and biodiversity protection, economic and financial practices, and in accordance with appropriate environmental standards, acceptable to the Bank, and at all times under the supervision of qualified and experienced management assisted by competent staff75. Another, of a more specific nature, specifies that the beneficiary has been requested to implement the IMO standards of an oil spill control and for the preparation of a oil spill contingency action plan. It happens often, that provisions which define in detail the appropriate environmental standards that would be acceptable to the Bank back up a less specific environmental covenant. In such a case the agreement will refer to a specific document annexed to it or any other relevant sources of reference where such standards are defined. To prevent failure of the borrower to comply with such covenants, the legal agreement prescribes proper remedy. In the same agreement related to the project, related to international waters referred to above, it was agreed that the Bank would suspend the disbursement if "any" of

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the borrower will undertake the following: "Pan B. 1. Dismantling and decontamination of the sulfuric and phosphoric acid plants...; 3. Rehabilitation of the gas treatment system in the nitric acid plant...; 4. Installation of a scrubber or a granulator...; 6. Support in the area of plant operation and management, and workers' health and safety standards, ... and Part C. "Installation of dust removal systems ... and of suitable door cleaning system in the coke ovens...; 2. ...equipment for the construction of two wastewater treatment plants and the renovation of the existing biological wastewater treatment plant...; Provision of laboratory equipment to monitor pollution...". Section V of the Global Environment Facility Trust Fund Grant Agreement related to the Western Indian Ocean Oil Spill Contingency Planning Project, between the IBRD and the Indian Ocean Commission acting on behalf of the member countries to the Victoria Agreement of 10 January 1984 namely, Federal Republic of Comoros, the Republic of Madagascar, Republic of Mauritius and Republic of the Seychelles.

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the countries "having jurisdiction over the Recipient76 shall have taken any action, including the enactment or issuance of laws and regulations, which, in the opinion of the Bank, may adversely affect, prevent, or interfere with, the carrying out of the Project or the performance by the Recipient of any of its obligations under this Agreement"77. The interpretation of such conditionalities will be made with reference to Schedules 2 and 4 of the legal agreement, which describes the Project's components and the implementation program including performance indicators. It is the role of the Bank staff during the supervision of the Project to verify whether the necessary conditions are met and whether the laws and regulations of the countries involved oppose the agreed environmental standards. Other examples show that more detailed environmental covenants may help to avoid the complexity and ambiguity of interpretation78. In the case of the Congo Wildlands protection project, an environmental conditionality has been included in the legal agreement as a condition for project effectiveness. This conditionality requires the government of Congo to issue "an appropriate legal instrument prohibiting the prolongation of current and the issuance of new logging concessions in the five priority project sites pursuant to Schedule 3..."79. In this case, the schedule was very concise in defining the undertakings of the Govern-

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77 78

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In this case the recipient was the Secretariat of an international convention, acting on behalf of seven country members to the Convention and mandated by them to implement the project. Section VI lit. (b) of the above-mentioned Agreement in note 75. Although specific environmental actions are often described as pan of the Project, remedies have not been used against borrowers who failed to perform its obligations under a loan agreement. In the case of the Sebou II Development Project (Morocco), sugar factories along the Sebou River were believed to contribute substantially to water pollution. To address the issue of water pollution, the Project provided for a study of existing industrial pollution in the lower Sebou river to be performed and, if justified by such a study, the construction of an effluent treatment plant to prevent pollution by the wastewater of the sugar cane industry. The study was not carried out and the fund allocated for the purpose of building the effluent treatment plant were eventually canceled. A new pollution control project is being prepared to address the Sebou river pollution issue. The Global Environment Trust Fund Grant Agreement related to the Wildlands Protection and Management Project, between the IBRD and the Republic of Congo, dated 4 March 1993, Section 5.01 lit.(c).


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ment to protect the natural environment of the project site80. However, the Government of Congo has granted a gold mining concession within the territory of one of the project sites during project implementation, based on a restrictive interpretation of the conditionality (i.e., mining is not logging). The World Bank warned the Government that it might suspend the disbursement if mining operations start within the project site81. After lengthy discussion, it was agreed that the company that has been granted a gold exploration permit would finance an independent environmental impact analysis of the planned exploration work. The Bank has reviewed the terms of reference for this analysis which started in 1997, and the World Bank has informed the Government of Congo that in view of the risk that gold exploration will be found to be incompatible with effective conservation, all project activities at the site have been suspended, pending the receipt and review with the government of the environmental impact assessment conclusions.

VII. Compliance and Implementation Issues By ratifying an agreement, negotiated and signed, with the World Bank, a borrowing country is under an obligation to comply with all the provisions of such agreement and to take necessary measures to implement its obligations. The environmental requirements of World Bank policies are translated into international legal obligations once introduced into legal documents. They establish proper safeguards that in general go along with adequate provisions to ensure their implementation by both the World Bank and the borrower. Under some circumstances, the borrower may be in a situation where it cannot implement its obligations concerning environmental requirements because of the lack of resources 80

81

During the project implementation, the government has granted a logging permit for a forest area close to a project site. The World Bank insisted on reviewing the limits of the concession, to make sure that it would not impact the core reserve where the project's conservation work has been focusing. IUCN, which was spearheading the conservation work at that site, has met with the logging company and negotiated a series of safeguard measures to ensure that its activities are consistent with conservation in the core reserve, including support for anti-poaching patrols and an alternative food supply system to minimize the consumption of bushmeat. The project site in question is Dimonika, which has been classified as a biosphere reserve by UNESCO and is considered as a high value area for its biological diversity patrimony.

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and/or capacity. This question is very sensitive from the developing countries perspective and must be addressed at project design if the Bank and the borrower want to avoid non-compliance issues82. The borrower is under an obligation to implement all of its obligations including compliance with environmental requirements. The World Bank retains the power to suspend disbursements, accelerate its maturity or cancel it83 if the borrower or project implementing agency default in carrying out agreed environmental avoidance or mitigatory measures84. This is the last resort solution that the World Bank always tries to avoid. This is why the role of World Bank staff in supervising the implementation and compliance with the environmental covenants is crucial to the success of avoiding or mitigating environmental impacts and assisting borrower countries to comply with their obligations under agreements with the World Bank. It happens, that during project supervision, a dialogue develops with the borrower to adjust environmental requirements, or define additional resources to help compliance with them85. It should be noted that, in many cases, compliance with environmental covenants can not be fully assessed until a project is completed, or at least until the project has been in operation for some time, unless the related covenant has been dated for its implementation86. Major steps in implementation and compliance with environmental legal covenants have been the issuance of the World Bank disclosure

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83

84

85

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In one case, it has been recognized that even though the Government was willing to implement an environmental covenant, this has not happened because the Project does not provide the necessary funding and the Government lacked funding to finance the agreed measures. It was decided to amend the projects legal document and to transfer resources from another category of activities to fund the necessary environmental actions. This solution is rarely used by the Bank staff who favours the continuation of a constructive dialogue with the borrower to find ways to adjust the situation created by non-compliance with a legal agreement. This path has not been followed due to the negative effects of its use on the Bank's relationship with the borrower involved, cf. I.F.I. Shihata, "Implementation, Enforcement and Compliance with International Environmental Agreements — Practical Suggestions in Light of World Bank's Experience", Geo.Int'lEnvtLLRev. 9 (1996/1997), 37 et seq. In such cases, modification and/or amendment to the legal documents may be needed to adjust the obligations of both partners. See above, under IV.


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policy87, the development of internal review procedures to ensure environmental quality88 of Bank funded projects and the establishment of the Inspection Panel. The Inspection Panel raised legitimate expectations that environmental policies will be better complied with in all World Bank supported and funded activities. The Inspection Panel has been established as an independent organ within the World Bank with the mandate to receive and investigate complaints from groups whose rights or interests have been or are likely to be adversely and directly affected by the World Bank's failure to implement and comply with its own operational policies89. The Inspection Panel may be instructed by the Board of Directors of the World Bank to undertake an inquiry. Therefore, there is a potential for Non Governmental Organizations and other groups of affected peoples to introduce requests to the Inspection Panel to investigate any World Bank' staff failure in implementing environmental and social requirements as translated into legal documents as a consequence of World Bank's environmental and social policies90. This is how the Inspection Panel may help improve compliance with environmental safeguard policies, notably to ensure proper environmental requirement implementation in Bank supported and/or 87

88

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Bank Procedure 17.50 on Disclosure of Operational Information, issued in September 1993. It is also appropriate to mention the Good Practices 14.70 on Involvement of Non-Governmental Organizations, in: Bank-supported Activities issued in March 1997. This includes not only a new quality at entry review, but also the review of Bank projects by a Quality Assurance Group and finally the evaluation of all projects by the Operational Evaluation Department, which is an independent evaluation unit within the Bank. OED's function is to evaluate projects after their completion. OED looks at all aspects of the project including its environmental features. OED's reports include recommendations and are submitted to the Board. However, the Inspection Panel shall not investigate such complaints without the prior approval of the World Bank's Board of Directors. See Memorandum of the Senior Vice-President and General Counsel — "Role of the Inspection Panel in the Preliminary Assessment of Whether to Recommend Inspection" dated 3 January 1995, ILM 34 (1995), 503 et seq. Although this is the general and explicit mandate of the Inspection Panel, the Board of Directors of the World Bank issued a Resolution related to the "Clarifications of Certain Aspects of the Resolution Establishing the Inspection Panel" (17 October 1996) which clarifies the role of the Inspection Panel to review the consistency of the Bank's practice with any of its policies and procedures; see The Inspection Panel, Annual Report 1996-97, 1997, 30.

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financed activities. This should be interpreted in a restrictive manner, because within its mandate the Inspection Panel has to decide on the applicability of World Bank's policies and interpret their content at the same time as assessing the potential failure of the World Bank to comply with them. It is widely admitted that the World Bank is currently the leading Worlds development agency and that its environmental portfolio is reaching a wide range of development projects. "From a legal perspective, an improvement in environmental indicators requires that the Bank's lending strategy continues to take into account relevant international and national legal instruments, as well as Bank environmentrelated policy"91. Well defined and negotiated conditionalities and environmental covenants would play an important role not only in mitigating harmful effects of development projects, but also in helping build "legal frameworks and institutional capacity" for sustainable development.

91

See Di Leva, see note 15, 512-513 and on the same subject Handl, see note 33.

The Regime Building of the Convention on Biological Diversity on the Road to Nairobi Gudrun Henne and Saliem Fakir

I. Introduction The United Nations Convention on Biological Diversity1 touches upon the most basic of our daily activities: eating, drinking, clothing, housing. Where we obtain food, what quality water we drink, how we cure diseases, where we are able to enjoy recreational activities and where we obtain the most important resources such as timber, hemp, rattan, or cotton to clothe, construct and the creation of various kinds of utensils. In short, the Convention perhaps encapsulates all that we do, need or use in our day to day life. The objectives of the Convention on Biological Diversity (to be referred to as: Convention) strive for maintaining and re-establishing the richness of nature whilst supporting our livelihoods in an equal way. In more technical terms, the three objectives of the Convention are: conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of benefits arising out of the use of genetic resources (article I).2 "Biological diversity" covers the "variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of

1

2

RW. Birnie, A.Boyle (eds), Basic Documents on International Law and the Environment, 1995, 390 et seq. Articles without indication of source are those of the Convention on Biological Diversity.

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which they are part; this includes diversity within species, between species and of ecosystems" (article 2). This definition encompasses the variability of life in all forms, levels and combinations.3 With its scope of application in terms of subject (biological diversity) and in terms of activity (conservation, sustainable use and equitable sharing of benefits, i.e. its objectives), the Convention covers all aspects of the relationship between human beings and the manifestations of life. The Convention of 1992 has 175 Contracting Parties, 174 states and the European Community as a regional economic integration organization.4 The Convention is regarded as one of the most successful international environmental agreements. Other comparable Conventions are the United Nations Framework Convention on Climate Change of 19925 which surpasses it in terms of membership, having 176 Contracting Parties6 and the Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification of 1994 which has up to now 145 Contracting Parties.7 Other international biodiversity-related conventions are far behind the Convention's number of parties. The most popular one, the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention) has 156 members,8 the one on International Trade in Endangered Species of Wild Flora and Fauna (CITES) of 1973 has 145 members.9 The Convention on Wetlands of International Importance of 1971 the so called Ramsar Convention has 112 Contracting Parties10 and the

3

4 5 6 7

8

9

10

However, biological diversity is not the sum of all life (of all tangible biotic entities and components), but an attribute of it, its variability, c.f. L. Glowka, F. Burhenne, G. and H. Sygne (in collaboration with J. Me Neely and L. Giindling), A Guide to the Convention on Biological Diversity, IUCN, 1994, 16. As of 15 January 1999, http://www.biodiv.org. Birnie, Boyle, see note 1, 252 et seq. As of 7 October 1998, http://www.unfccc.de. Birnie, Boyle, see note 1, 513 et seq. Membership as of 9 December 1998, http://www.unccd.ch/lite/submenu/ratification_sbm.htm. Birnie, Boyle, see note 1, 375 et seq. Membership as of January 1999, http://www.unesco.org/whc. Birnie, Boyle, see note 1, 415 et seq. Membership as of 11 June 1998, http://www.wcmc.org.uk/CITES. Birnie, Boyle, see note 1, 447 et seq.; Membership as of 13 July 1998, http://www.Ramsar.org/about_cp_order.htm.

Henne/Fakir, Regime Building of the Biodiversity Convention

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Bonn Convention on the Conservation of Migratory Species of Wild Animals only 55.n Given the numerous signatories to the Biodiversity Convention, the Convention is regarded as a success story, except perhaps for the fact that the United States of America has only signed12 but not of yet ratified the Convention. There are many speculations and analysis for why the United States has not ratified the Convention, and that is rather a subject left for another occasion.13 With its unique combination of both sustainable use14 and conservation,15 supplemented by socio-economic and equity considerations (sharing of benefits), its nearly worldwide validity and scope, the Convention could change the management of biological diversity (biodiver11

12

13

14

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P. Sands, R. Tarasofsky, M. Weiss (eds.), Documents in International Environmental Law, 569 et seq. Membership as of 1 October 1998, http://www. wcmc.org.uk/cms/part_lst.htm. On 4 June 1993, International Environment Reporter No. 12 of 16 June 1993,432. GJ. Mossinghoff, The Biodiversity Convention and Intellectual Property Rights: Conflict or Harmony?, Patent World No. 106, October 1998, 4 et seq.; M.D. Coughlin, "Using the Merck/INBio Agreement to Clarify the Convention on Biological Diversity", Colum. J.Transnat'l L. 31 (1993), 337 et seq.; V. Heins, "Macht, Demagogic und Argumentation in der globalen Umweltpolitik — das Beispiel der UN-Konvention iiber die biologische Vielfalt", in: V. von Prittwitz (ed.), Verhandeln und Argumentieren. Dialog, Interessen und Macht in der Umweltpolitik, 1996; K. Rosendahl, "Implications of the US 'No' in Rio", in: V. Sanchez, C. Juma (eds), Biodiplomacy. Genetic Resources and International Relations, 1994, 87 et seq.; A. Boyle, "The Rio Convention on Biological Diversity", in: M.Bowmann, C. Redgwell (eds), International Law and the Conservation of Biological Diversity, 1996, 33 et seq.; D.E. Bell, "The 1992 Convention on Biological Diversity: The Continuing Significance of U.S. Objections at the Earth Summit", Geo.Wasb.J.Int'l L& Econ. 26 (1993), 479 et seq.; S. Johnson, The Earth Summit: The United Nations Conference on Environment and Development (UNCED), 1993. Sustainable use means "the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity...." (article 2). "Conservation" is not defined in the Convention, avoiding the difficult, partly academic and partly politically sensitive issue of the relationship between conservation and sustainable use and whether the latter is part of the former or vice versa. See P.W. Birnie, A. Boyle, International Law and the Environment, 1992, 435, 447; Glowka et al., see note 3, 25.

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sity), or better, biological resources16 in a revolutionary way. It could transform the way we deal with the environment and the way we live. However, this is a long-term vision: Dependent on the way in which parties to the Convention operationalise first at the international level and then foremost on the regional, national and local levels. They have to be transformed into policy and action plans, laws and regulations and ultimately — utopically — into new ways of behaviour for each and every individual on earth. This national and local implementation is a long way down the road. Farmer associations, protected area managers, land use planners, consumer groups, pharmaceutical companies, directors of botanical gardens, water supply agencies, foresters, planners of curricula, herbalists, microbiological researchers, business associations and all other stakeholders involved with biodiversity are often not aware of the Convention's existence, let alone its content and use. Some critics argue that this is a serious limitation of the Convention and hence "has accomplished little of substance".17 However, Rome was not built in one day and the architecture of an international instrument with such a broad foundation as the one of the Convention needs careful and sound structuring and can only grow slowly. The Convention is still fairly young: It was legally binding for the first 30 ratifying Parties only on 29 December 1993. Since then, the Contracting Parties took 82 Resolutions or Decisions at four meetings of the Conferences of the Parties (COP).18 These Resolutions cover national and interna-

16

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18

The Convention defines "biological resources" as including "genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity", article 2 . Whereas "biological diversity" refers to the attribute of variability, "biological resources" refer to the actual biotic material. The qualifier "'actual or potential use or value for humanity" can be neglected in so far as any biotic material might be of future and therefor potential value. C. Wold, "The Futility, Utility, and Future of the Biodiversity Convention", Colo.J.Int'l EnvtLL.fr Pol'y 9 (1998), 1 et seq., (14); K. Raustiala, D.G. Victor, "The Future of the Convention on Biological Diversity", Environment38 (1996), 39. COP 1 was held 28 November- 9 December 1994 in Nassau, Bahamas. Report in: UNEP/CBD/COP/1/17; COP 2 was held 6-17 November 1995 in Jakarta, Indonesia. Report in: UNEP/CBD/COP/2/19; COP 3 was held 4-15 November 1996 in Buenos Aires, Argentina. Report in: UNEP/ CBD/COP/3/38; COP 4 was held 6-17 November 1998 in Bratislava, Slovakia. Report in: UNEP/CBD/COP/4/26. Decisions of the COP are reproduced in one of the Annexes of the respective report of the meeting.


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tional obligations moving from the general provisions of the Convention to more concrete prescriptions on how to implement the Convention. These obligations are addressed to the Contracting Parties themselves and the various institutions of the Convention (the Subsidiary Body on Scientific, Technical and Technological Advice, (SBSTTA); the Secretariat of the Convention (the Secretariat); the Clearing-house Mechanism (CHM); the Global Environment Facility (GEF), as the — interim — financial mechanism). The COP has no mandate to decide on obligations, both in policy and law, for bodies other than those of the Convention and for its Contracting Parties, and these obligations are only international ones. Other stakeholders relevant for the conservation and sustainable use of biological diversity can be persuaded by the COP only on the basis of invitation or in an indirect way through the Contracting Parties themselves. International bodies such as UNEP or FAO, can only be invited, never requested, to mainstream the decisions of the COP into their programmes of work. With regard to the private sector and individuals and communities, those can only be reached through national or, in case of the European Union, at the regional level. Legal means provided by the text of the Convention to give effect to the provisions on the international level are the adoption of protocols (article 28); the amendment of the Convention or protocols (article 29) or the adoption and amendment of Annexes (article 30). The only legislative activity in the context of the Convention at the moment is the negotiation of a protocol on the safe handling and use of living modified organisms, referred to as the Biosafety Protocol. Although this is an important issue to be regulated, it only constitutes a minor component of the Convention. An assessment of the legislative activities within the Convention only, does not do justice to the progress of implementation of the Convention. Every decision of the COP is a legally binding interpretation of the Convention.19 Parties acting contrary to these decisions are violating the Convention. But the progress with respect to implementation of the Convention can be assessed much better in considering not only the achievements in public international law, but the whole process of the Convention. This includes the meetings of its organs, informal political culture in the process and the deliberations as both policy and legal instruments. 19

See arts 31 and 32 of the Vienna Convention on the Law of Treaties, UNTS Vol. 1155 No. 18232.

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The Convention, its organs and their deliberations take the form of an international environmental regime shaping international environmental policy for a specific problem area, which in this case is biodiversity. The term "regime" is used in this article as defined by Krasner. "International regimes are implicit or explicit principles, norms, rules, and decision making procedures around which actor's expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions for actions. Decision-making procedures are prevailing practices for making and implementing collective choice."20 The 82 Resolutions taken are expressions of the regime, as they provide explicit principles, norms and decision-making procedures. Still lacking are "rules" — specific prescriptions for actions. This is where strong criticism of the Convention can be made and the value of putting time and effort into the process is questioned. The authors hold the view that with the decisions of the fourth meeting of the COP, the Convention moved into a new phase. This new phase is one of regime building, and ensuring that international obligations are met through national laws and actions. The purpose of the paper is to argue this assertion. That such a regime building exercise is a distinct move from mere conception, and if you want conversations about biodiversity issues, to the willingness by parties to see more tangible effects of the Conventions intents on the ground. This paper will focus on the development of the Convention since its entry into force. The scientific basis for action on biological diversity as well as the history of the Convention has been described in detail in a broad array of publications.21 The history of an international treaty is 20

21

S. Krasner, "Structural causes and regime consequences: Regimes as intervening variables", in: S. Krasner (ed.), International Regimes, 1983, 2. On biodiversity and the socio-economic conditions for the decline of biological diversity and its relevance for humankind see in particular, V. Heywood (ed.), Global Biodiversity Assessment, 1995, a compendium with contributions of about 2000 scientists worldwide, the reference for knowledge on biological diversity; see also E.O. Wilson (ed.), Biodiversity, 1988; B. Groombridge (ed.), Global Biodiversity Assessment, 1995. On the history of the Convention see for example Boyle,see note 13, 35; F. Burhenne-Guilmin, S. Casey-Lefkowitz, "The Convention on Biological Diversity: A Hard Won Global Achievement", Yearbook of International Environmental Law 3 (1992), 43 et seq.; F. McConnell, The Biodiversity Convention. A Negotiating History, 1996; G. Henne, "Das Regime iiber die


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not a primary criteria for interpreting that treaty.22 The history of a convention might have explanatory value for the dynamics in the development of the regime. It, however, draws away attention from the building of the regime in the future and is therefore not considered in this paper. The paper will first provide a short overview of the content of the Convention as the "constitution" of the biodiversity regime, as well as an attempt to classify the Convention within the evolution of international environmental law (Section II). The first three meetings of the COP, constituting in the view of the authors the first phase of the regime-building process, are summarized in Section III. They focused on the establishment of the basic procedures, gathering of information as a basis for informed norm setting. With the fourth meeting of the COP, the biodiversity regime entered into a new phase of international and national implementation. The regime building is a permanent process of collective evolution and adaptation. The institutional design of the Convention changed considerably, increasing the chances of success of the development and governance of the regime.23 The success will depend on how the Contracting Parties will continue to build that new but not yet well established phase of the Convention. The fifth meeting of the COP, to be held from 15 to 26 May 2000 in Nairobi, Kenya,24 will show whether the new phase is successfully consolidated (Section IV).

22 23

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biologische Vielfalt von 1992", in: T. Gehring, S. Oberthiir (Hrsg.), Internationale Umweltregime, 1997, 192 et seq.; M.A. Hermitte, "La Convention sur la diversite biologique", AFDI 38 (1992), 850 et seq.; V. Koester, "The Biodiversity Convention Negotiation Process. And Some Comments on the Outcome", in: Environmental Law — From International to National Law, Centre for Social Science Research on the Environment, Aarhus University (ed.), 1997, 215 et seq. Arts 31 and 32 of the Vienna Convention on the Law of Treaties. The importance of the institutional setting of regimes is stressed for example by: T. Gehring, S. Oberthuer, "Internationale Regime als Steuerungsinstrumente der Umweltpolitik", in: Gehring, Oberthuer, see note 21, 13; F. Kratochwil, J.G. Ruggie, "International Organization: A State of the Art on an An of the State", International Organization 40 (1986), 753. Decision IV/18 para. 2 with Decision IV/16 para. 1 (UNEP/CBD/COP/4/ 26, Annex) in connection with a decision of the Bureau of the COP, communication by the Executive Secretary of the Convention on Biological Diversity, 24 June 1998.

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II. The "Constitution" of the Biodiversity Regime: The Text of the Convention The current section provides briefly an overview of some of the key elements and substance of the Convention. Of importance are the various articles, and the institutions that the Convention makes provision for to both elaborate and ensure the implementation of Decisions that have been agreed to by the Contracting Parties.

1. Provisions on Substance The Convention starts off with general measures for conservation and sustainable use (article 6). Contracting Parties have to develop new or adapt existing national strategies, plans and programmes for the conservation and sustainable use of biological diversity and to integrate conservation and sustainable use into sectoral or cross-sectoral plans, programmes and policies. The latter provision strives for integration of biological diversity into governmental planning (principle of integration), through, what is often referred to as, a process of mainstreaming biodiversity concerns into all relevant aspects of governmental activities in terms of the various sectoral initiatives that governments are involved in. Provisions on conservation of biological diversity can be found in article 8 on in-situ conservation and article 9 on ex-situ conservation, the latter "complementing in-situ measures". This prioritisation of insitu conservation brings to an end a long-lasting discussion on which method of conservation should prevail, especially with regard to genetic resources for food and agriculture.25 In-situ conservation includes onfarm conservation: In-situ are conditions where genetic resources (material containing functional units of heredity with actual or potential value) exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties (i.e. on-farm), cf. article 2. To ensure that there is a national approach to in-situ conservation Contracting Parties are, inter alia, obliged to: establish a system of protected areas and develop guidelines for that purpose; manage bio25

R. Pistorius, Scientists, plants and politics. A history of the plant genetic resources movement, 1997, 20,100.


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logical resources outside protected areas in a way that ensures their conservation and sustainable use; rehabilitate and restore degraded ecosystems; provide legally for the protection of threatened species and populations. Article 8 does not only oblige Parties to the Convention to design measures for biodiversity management but also to regulate risks: both alien species threatening ecosystems, habitats or species and living modified organisms (LMOs) negatively impacting on the environment shall be controlled. With regard to LMOs, the Parties shall consider to develop a protocol on the procedures for their safe transfer, handling and use (article 19 paras 3 and 4). Ex-situ conservation shall take place preferably in the country of origin for the components of biological diversity, a provision in favour of developing countries. Quite often plants and animals from biomes26 from developing countries can be found in "Northern" botanical gardens, zoos or genebanks as a source of genetic resources for food and agriculture but are threatened or even extinct in their places of origin. Ex-situ conservation is meant to complement efforts in in-situ conservation. The second objective, "sustainable use",27 is qualified in article 10. It is more general than the provisions on conservation. Parties have to integrate consideration of the conservation and sustainable use of biological resources into national decision-making. This is similar to the general provision on governmental planning, but with a broader and more legal connotation. Plans, programmes and policies in article 6 do not necessarily include laws and regulations, whereas "decision-making" encompasses all governmental action. Amongst other things, article 10 lit.(e) obliges Contracting Parties to encourage cooperation between its governmental authorities and the private sector in developing methods for sustainable use. If taken seriously by the parties, this norm can be of far-reaching consequence, reaching out to and involving the "real" users of biological resources. Parties are further requested to support local populations to develop and implement remedial action lit.(d) in degraded areas where biodiversity has been reduced. The involvement of local people is one key criterion for successful resource management so

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A Biome is "a major portion of the living environment of a particular region, characterized by its distinctive vegetation and maintained by local climatic conditions",Glossary in: M. Baumann, J. Bell, F. Koechlin, M. Pimbert, The Life Industry, 1996,199. Definition in article 2 of the Convention, see above note 14.

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as to encourage the use of local knowledge and secure ownership and responsibility by local people.28 Another key provision contained in article 10 lit.(c) is the protection and encouragement of customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements. This provision takes up one of the 23 pre-ambular statements, recognizing "the close dependence of many indigenous and local communities embodying traditional lifestyles on biological resources". Article 10 lit.(c) is linked with article 8 lit.(j). This article, structurally misplaced due to a package-deal solution at the end of the negotiations, asks Parties, inter alia, to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities with traditional lifestyles relevant for the conservation and sustainable use of biological diversity. A Party has to implement the provision "subject to its national legislation", a qualifier which gives Parties the necessary flexibility and possible loophole to water down the provision on the excuse of national specificity. Article 8 lit.(j) together with article 10 lit.(c) recognize not only the dependence of those communities on biological diversity, but their key role in natural resource management and the value of their locally adapted skills. It acknowledges the need for local solutions to the threat of biodiversity loss and encourages governments to respect and involve local communities in national action plans. The third objective of the Convention, "the fair and equitable sharing of benefits" arises out of the use of genetic resources for both commercial gain and livelihoods. This aspect of the convention covers issues such as appropriate access to genetic resources and transfer of relevant technologies, taking into account all rights over these resources and technologies. Equitable sharing of benefits from genetic resources is a significant provision fought for by developing countries concerned about the increasing extraction of these resources by commercial and public sector institutions in the developed world. Often these institutions extracted resources without acknowledgement and even compensation to the country of origin or those which were a source of experience and knowledge on the location and use of these biological resources. The Convention puts in place a framework for a new international regime on genetic resources that seeks to enshrine the principle of "eq28

U. Marzik, "Volkerrechtlicher Naturschutz und nachhaltige Entwicklung in Ubersee", VRtf 3Q (1997), 559.


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uitable sharing". Arts 15, 16 para.3 and 19 paras 1 and 2 provide the key pillars for such a regime: access to genetic resources from countries which possess these resources in in-situ conditions are subject to prior informed consent of the Contracting Party providing such resources and shall be on mutually agreed terms. In turn for granting access, the providing Party shall participate in the scientific research based on these genetic resources. It shall make provision for a fair and equitable sharing of the results of research and development and the benefits arising from the commercial or other utilization of those resources and a transfer of technology that makes use of those resources. Communities which provide knowledge, innovations and practices relevant for the sustainable use and conservation of biological diversity should receive an appropriate benefit by agreement. Provisions elaborating on the three objectives of the Convention are complemented by provisions on: incentive measures (article 11); research and training (article 12); public education and awareness (article 13); impact assessment and minimizing adverse impacts (article 14), including the issue of liability and redress; technology transfer (article 16); exchange of information (article 17); and technical and scientific cooperation (article 18). It should also be added that most of the provisions of the Convention have qualifiers such as "as far as possible and as appropriate" (arts 5, 7, 8, 9, 10, 11, 14), "where appropriate", "in accordance with each Contracting parties particular conditions and capabilities" (article 6), making the obligations of the Parties subject of these provisions to suit their own national specific capacities and socioeconomic context.

2. Institutional Provisions The Convention is not self-executing but is elaborated and "enforceable" through various institutions. The kinds of institutions that are provided for to assist decision making in the Convention are: the Conference of the Parties (article 23) the policy ratifying body, or the supreme decision making body; the Subsidiary Body for Scientific, Technological and Technical Advice (SBSTTA, article 25) as the scientific and technical body; a Secretariat (article 24) to run the day to day affairs

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of the Convention;29 a financial mechanism (article 21), a role which is held by the Global Environment Facility (GEF) on an interim basis (article 39); and a Clearing-house Mechanism (CHM) "to promote and facilitate technical and scientific cooperation" whose role is not specified in the Convention but left to the COP to be established (article 18 para.3). The latter two mechanisms are designed to assist countries in operationalising the intent of the various articles within their own countries. The COP is the governing body of the Convention. It oversees the implementation of the Convention and has a far-reaching mandate. One mechanism to oversee implementation is the review of national reports, a key instrument of the Convention by which implementation and compliance by the Parties (article 26) can be monitored. In addition, the COP can basically take any action that may be required for the achievement of the purposes of the Convention. COP also considers the reports of the SBSTTA. The SBSTTA is the advisory body to the COP on scientific, technical and technological matters in relation to conservation and sustainable use. This includes advice on the status of biodiversity; on measures that can be taken; on technology and know-how, on the transfer of such technology and knowledge; on scientific programmes and international cooperation in research. The COP can establish any other subsidiary bodies deemed necessary for the implementation of the Convention. A subsidiary body for implementation is currently being discussed. Since COP is the decision making body it considers and adopts protocols and amendments to the Convention and establishes cooperation with bodies of other conventions. The COP adopted numerous decisions addressed to other institutions. See Annex A for schematic representation of the institutions for the Convention resolved at the COP 1 meeting.

3. Classification of the Convention The Convention is partly a framework treaty whose provisions do require further elaboration on the international level before they provide a clear set of norms and before compliance measures can be taken and

29

The principal functions of the Secretariat are to prepare for service meetings of the COP and other subsidiary bodies of the Convention and to coordinate with other relevant international bodies.


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monitored. As a framework, it seeks to establish clear policy, norms and standards for the various elements of the Convention. Classical examples for framework provisions are article 19 para.3 (consideration of a protocol on the safe handling and use of LMO) and article 18 para.3 (establishes a Clearing-house Mechanism). A second set of provisions, however, are provisions on substance, which specify to a certain extent international obligations, for example article 8 lit.(a)(f). It gives Parties in general enough guidance to implement the Convention on the national or local level, however, further elaboration on the international level with regard to clearly defined baselines and targets can serve to be useful in the harmonization of national action. Other provisions, however, can be considered as self-executing on the international level: for example article 8 lit.(j) on local and indigenous skills (knowledge, innovations and practices) does theoretically not require further action on the international level as the obligations of the Parties are "subject to national legislation". A forum for international discussion is nevertheless needed for a common interpretation so that Parties agree on what is sufficient for the implementation of the different provisions. These discussions have furthermore a capacitybuilding implication, as experiences with implementation can be shared amongst participants to the COP and allow for extrapolation as to what is "best practice".30 Every Contracting Party and different agencies and societal groups within a party can have different interpretations of what is required31. There is a need for an international "agreement" on what are the bare minimum standards and norms in order to fulfill the requirements of the Convention. Parties which deliberate on these issues at the COP meetings, use the regime building framework, to define these norms and standards and in so doing set certain obligations to Parties by agreement. This is the key to the whole idea of regime building, which we argue is the cornerstone of the Convention, and for that matter any other Convention.

30

31

See S. Johnston, "The Convention on Biological Diversity: The Next Phase", RECIEL 6 (1997), 219. Different Raustiala, Victor, see note 17, 20.

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III. Phase One of the Regime Building Process: The First Three Meetings of the Conference of the Parties The first three COPs, briefly summarized in the following, formed the initial phase of the regime building process, where the basic structure of the regime was discussed and some of its foundations forged. What follows is a brief description of this process by taking a few key examples.

1. COP 1, Nassau 1994: Institutional and Administrative Matters and a Medium-Term Programme of Work The first meeting of the Conference of the Parties took place from 28 November until 9 December 1994, within the first year after the entry into force of the Convention, as required by the text of the Convention (article 23.1). Delegates dealt mainly with those issues of text dealing with decision making processes by the Parties and administrative and institutional questions to get the machinery of the Convention running. The COP decided on the rules of procedure of the meetings of the COP and the SBSTTA (article 23 para.3; Decision (Dec. I/I),32 without agreeing, however, on the rule for voting with regard to financial measures,33 an issue that has not been resolved up to today. COP also confirmed UNEP as the international organization administering the Secretariat (article 24 para.2 with article 40; Dec. 1/4) and agreed on the financial rules for the administration of the trust fund for the Convention, a decision vital for the institution of the Convention (Dec. 1/6 and Annex 1). COP 1 also established a pilot phase of the Clearing-house Mechanism (Dec. 1/3). However, the most contentious issue was the GEF as it would serve as the global facility to fund biodiversity projects mainly in developing countries. Contracting Parties could not agree at their first meeting to accept the GEF as the permanent financial mechanism to fund incre32

33

The Roman numbers, I, II , III, IV refer to the meeting of the COP, the Arabic numbers to the Decision at that meeting. Decisions are annexed to the reports of the meetings. See note 18. Rule 40 para. 1 (reproduced in: Annex III of UNEP/CBD/COP/1/17). Rule 40 foresees voting as a last resort if consensus fails, to be taken by a 2/3 majority. An exception for decision with regard to the financial mechanism, to be taken by consensus, remains bracketed.


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mental costs for developing countries. The Convention requires that the mechanism "shall function under the authority and guidance of, and be accountable to, the Conference of the Parties". Convention (cf. article 39 with article 21para.l, 2nd sentence). Developing nations and most of the non-governmental organisations at the meeting preferred to place the Conventions fund under the direct control of the COP, which did not meet the approval of donor parties, viewing a general and independent fund as the more convenient solution. As a compromise, it was decided that the GEF will continue to serve as the institutional structure to operate the financial mechanism of the Convention on an interim basis (Dec. 1/2 para. 2). However, with time opposition against the GEF as the financial mechanism weakened, partly because it was restructured and it improved its functioning, and partly because developing countries recognized the unwillingness of developed countries, to fund the Convention in a different manner. However, the GEF has still not been recognised as the permanent funding mechanism to the Convention. With regard to substantial provisions of the Convention, none of these were discussed in depth, and neither were any decisions taken. This was largely due to the fact that the COP had to agree first on a programme of work and then allow time for Parties to prepare the issues on the agenda. A three-year Medium-term Programme of Work (MTPW) until COP 4 was adopted. It provided for standing and rolling items (Dec. 1/9, Annex) and was reviewed at each of the following COPs. Standing items include in particular reporting obligations of the various bodies of the Convention to the COP (Secretariat, GEF, CHM, SBSTTA) and, most importantly, national reports on the implementation of the Convention. National reports (article 26) are the only nonconflictual control mechanism for the implementation of the Convention. The MTPW distinguishes further between thematic areas and cross-cutting issues.34 Thematic issues are understood in the context of the Convention as themes of biological diversity, such as forest biodiversity or agricultural biodiversity, whereas cross-cutting issues refer to issues common to most or all of the themes such as impact assessment, research, education etc. While the MTPW, served to guide the work of the COP, it lacked in certain respects. The MTPW, for instance, took on boldly issues on marine and coastal biodiversity and agro-biodiversity but was rather "soft" on the question of forest. Forests are considered by some as the 34

Decision 1/9 (UNEP/CBD/COP/1/4, Annex, 60).

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single most important repository of biodiversity, along with coral reefs and the oceans. "Failing to address forests ... is akin to failing to address coal with the climate change convention".35 One would expect forest biodiversity to be high on the agenda of the COP. Instead, controversy is avoided by placing it as an agenda item under "Consideration of the future programme of work for terrestrial biodiversity in the light of the outcome of deliberations of the third session of the Commission for Sustainable Development (CSD) in 1995". This is a reflection of a long standing international controversy over forests. At the Rio Summit in 1992, a "Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all types of Forests" was adopted. The title indicates the indecisiveness or better the highly formal compromise of the international community on forest issues (non-legally binding but authoritative; a statement, not principles, but: a statement of principles). The Contracting Parties, were not willing to take responsibility under the Convention for forest issues, and deferred a decision to the CSD to set up a process on forest issues. This means that the political forces opposed to a serious discussion on forests within the Convention won the day, against the wishes of those who wanted to have forests comprehensively covered by the Biodiversity Convention.

2. COP 2, Jakarta 1995: Marine and Coastal Biodiversity, Biosafety and Getting on the Track The biodiversity regime gained real shape with regard to its substantial implementation only at the second meeting of the COP from 6-17 November 1995 in Jakarta. The second meeting did not only begin the process of substantiation of themes, but also provided a testing ground on how COP would work and make decisions on these themes. In Jakarta, the COP focused on the "conservation and sustainable use of marine and coastal biodiversity" as the main thematic area. Dec. 11/10 on the conservation and sustainable use of marine and coastal biodiversity, called "Jakarta Mandate" by the Ministerial Statement on the implementation of the Convention36 served in some ways as a model decision for other thematic areas. What is interesting is that the decision was, with some modifications, based on the recommendations of the first 35 36

Raustiala, Victor,see note 17, 42. UNEP/CBD/COP/2/19, Appendix, para. 14.


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meeting of the SBSTTA,37 the advisory body to the COP. Providing a clear link and role between SBSTTA and the COP. In terms of working out a decision and implementation plan for this theme, the COP invited bodies concerned with marine and coastal biodiversity to review their programmes with a view to improving measures and developing new actions for conservation and sustainable use. To take work forward, a intersessional mechanism to establish a programme of work was designed in the following way: 1) inputs from all Parties and other bodies to the Secretariat; 2) the establishment of a roster of experts; 3) meeting of an expert panel with experts from the roster, developing a work programme; 4) submission of the results to the SBSTTA; 5) next COP to decide on the programme of work. The appointment of an expert panel as a advisory body preparing the work of the SBSSTA was an institutional innovation for the COP. Key substantial elements that needed to be addressed were: the integrated marine and coastal area management as the overall framework; the precautionary approach as the approach to conservation and sustainable use; capacity-building and technology transfer as elements of a work programme; the incorporation of local and indigenous knowledge, userbased and community approaches. Another important substantial decision of COP 2 was that ""the ecosystem approach" should be the primary framework of action to be taken under the Convention" (Dec. II/8 para. 1), without, however, specifying what this implies in concrete terms. The decision, although not very explicit, has far reaching consequences as this approach can determine the overall strategy of how the Convention is ultimately implemented. Additional issue were the question of biotechnology and the creation of a Biosafety Protocol. Biotechnology means "any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use," article 2. This includes traditional biotechnology like the production of beer, bread and wine, but also modern biotechnological methods including genetic engineering. Article 19 para. 3 requests parties to consider the need for and modalities of a protocol on biosafety. To take this issue forward, at COP 2, Parties decided to establish an Open-ended38 Ad hoc Working Group, which reports to the COP. Its

37

First meeting of the SBSTTA was held in Paris from 4-8 September 1995; Report in: (UNEP/CBD/COP/2/5).

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goal was to develop "a protocol on biosafety, specifically focusing on transboundary movement, of any living modified organism resulting from modern biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity, setting out for consideration, in particular, appropriate procedure for advance informed agreement" (Dec. II/5). The decision to move ahead with a Biosafety Protocol was not without controversy, in particular from developed countries which saw the Protocol as a potential hindrance to the development and commercialisation of biotechnology based products. The COP remained careful with regard to forest biological diversity but at least dedicated a decision to this theme. The decision requests the Executive Secretary to carry out a study on the links between forests and biodiversity with a view to provide input to the now CSD conceived Intergovernmental Panel on Forests which had met once before the Jakarta meeting.39 A statement of the COP to the Intergovernmental Panel on Forestry (IPF) (Dec. II/9, Annex) asks for a dialogue with the IPF and requests the IPF to consider the economic benefits, environmental services and non-consumptive values provided by forest biodiversity within its mandate on methods for the proper valuing of the multiple benefits derived from forests. In the statement, it also recognizes the need for methods for sustainable forest management, which combined production, socio-economic, and environmental goals. Sustainable forest management should also take an ecosystems approach to forest management. These parts of the statement reflect the particular concern of the Convention and the representatives of governments that cover the meetings of the Convention. On the CHM the COP decided to set up a two year pilot phase, the CHM being demand based and decentralized, working a network of active partners (Dec. II.3). A draft Memorandum of Understanding between the GEF and the Convention was not accepted by the Parties but given back to the Secretariat for further development (Dec. II/6). With regard to access to genetic resources, the COP decided only on "preparatory tasks" for the discussion at its third meeting: complete a survey of measures by governments, including national interpretations of key terms; compile information on the social and economic valuation 38

39

"Open-ended" can refer to both the duration of a body and the kind of participation. In the context of the Convention, "open-ended" refers to a body that has an unlimited number of representatives, i.e. every Party is invited to participate, as well as observers if not decided otherwise. 11-15 September 1995, New York (Doc.E/CN.17/IPF/l 995/3).


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of genetic resources, including the demand by industry for genetic resources (Dec. 11/11). The industrial sector has all along contested the assumption that genetic resources will be like "green gold" and argued that expectations were exaggerated.40 They argued that international and national efforts on policy and legislation are expensive and set up bureaucratic barriers without given the expected benefit to provider countries. The need to find decision, by COP, for acceptable way to deal with the benefit sharing issues is a result objections raised by developing countries about the way in which pharmaceutical companies from industrial countries work. The decision on intellectual property rights (IPRs) has a more decisive tone to it than the one on genetic resources: it asks the Executive Secretary to liaise with the World Trade Organization (WTO) on the relationship between the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) of the WTO and to gain an understanding of the needs and concerns of the stakeholders with regard to IPR. A study should analyse the impact of IPR systems on conservation and sustainable use of biological diversity and the equitable sharing of benefits derived from its use (Dec. 11/12). On the important issue on the form and intervals of national reports by parties, the COP again was not very helpful in advancing implementation. The first national reports should cover the steps taken by the Parties in the implementation of General Measures for Conservation and Sustainable Use, article 6.41 As guidelines for national reporting, the COP only suggested that it include the "Executive summary; Introduction; Background; Goals and objectives; Strategy; Partners; Action; Schedule" (Dec. 11/17, Annex), a rather loose framework which did not allow for structured comparison or control but gave the countries ample discretion and leeway in the manner in which they conducted their reporting.42 With regard to administration, COP 2 decided to accept the offer of Canada to host the Secretariat of the Convention in Montreal (Dec. 40

41 42

See with regard to bioprospecting activities W.V. Reid , "A New Lease on Life", in: W.V. Reid, S.A. Laird, C.A. Meyer et al., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, 1993, 1 et seq.; J. Bell, "Genetic engineering and biotechnology in industry", in: Baumann, Bell, Koechlin, Pimbert, see note 26. On benefit sharing: C. Zerner, K. Kennedy, "Equity issues in bioprospecting", ibid, 100. See above. See below on national reporting.

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11/19). Montreal won after three rounds of voting, after the withdrawal of Nairobi (Kenya) and Madrid (Spain) and a consensus between Canada and the fourth candidate, Geneva (Switzerland).43 The Secretariat of the Convention is the only Secretariat of a biodiversity-related convention based in North America and furthermore not at the seat of the United Nations (New York).44 The implications for building a biodiversity regime by having its secretariat out of easy physical reach of other conventions and bodies, is beyond the scope of this paper but might be worthwhile to examine in future.45 In summary, decisions at the second COP were taken quite cautiously, as the COP was struggling to find its way through the Convention and is so doing preventing a situation where parties were obliged or forced to make more active commitments at the initial phases of the Conventions development. Basically all decisions taken on substance were preparatory in nature. If one were to follow Krasner's definition of international regimes,46 one might say that the biodiversity regime has, apart from the text of the Convention, at this stage not as yet developed sets of principles, norms or rules for the Contracting Parties, but only decision-making procedures, institutional mechanism (rules of procedure, guidance to GEF) and national reporting criteria which are to be regarded as fairly "soft" and loose. Perhaps this phase of COP 1 and COP 2 can be described as a " "preparatory phase" for the evolution of the biodiversity regime".

43 44

45

46

UNEP/CBD/COP/2/19 para. 145. The Ramsar Convention's Bureau is based in Gland, the Secretariats of the United Nations Framework Convention on Climate Change, the Desertification Convention and the Migratory Species Convention in Bonn, the Secretariat of the World Heritage Convention (the World Heritage Centre) in Paris. Cf. Recommendation 2 (d) of the UN Task Force on Environment and Human Settlements, Report to the Secretary-General, 15 June 1998, 9, "... Every effort should be made to co-locate new conventions with other conventions in the same functional cluster ... and with institutions with which they have a particular affinity." See p. 320.


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3. COP 3, Buenos Aires 1996: Agricultural and Forest Biodiversity, an Inter-sessional Process for Indigenous and Local Knowledge, Authority over GEF and Relationship with Other Processes The workload of COP 3, which met from 4-15 in November 1996 in Buenos Aires, was considerable. Major thematic areas of focus that were discussed at this COP were issues pertaining to agricultural and forest biological diversity. Promoting sustainable agriculture is central to achieving the objectives of the Convention: Agro-biodiversity is crucial for food security and unsustainable agricultural practices have dramatic impacts on the ecosystem and human health. In Dec.III/11, the COP established a phased, multi-year programme of activities on the conservation and sustainable use of agricultural biological diversity and decided to promote the development by Parties through national strategies, programmes and action plans that should incorporate agricultural biological diversity concerns. The programme aims at promoting the positive affects and mitigate the negative impacts of agricultural practices on biological diversity and to promote the conservation and sustainable use of genetic resources for food and agriculture. In the development of this programme of work, FAO was invited by the COP to coordinate together with the Secretariat of the Convention the review of ongoing activities and existing instruments. The decision outlines a broad and comprehensive framework for the assessment and invites for case studies. The purpose of such a review is obvious: to assess work that is currently carried out in order to avoid duplication and to identify further activities for the COP within the work programme. In Annex 1 of the Decision, the COP establishes a basis for action as it provides an overview of the impact of biodiversity on agriculture and vice versa. With regard to genetic resources for food and agriculture, the COP reiterated its urgent message to the Commission on Genetic Resources for Food and Agriculture of the FAO (CGRFA) to finalize its negotiation on the International Undertaking on Plant Genetic Resources for Food and Agriculture.47 Since 1993 governments have been renegotiating the non-binding International Undertaking on Plant Ge-

47

Decision III/ll, para. 18 and 19; Decision 11/15.

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netic Resources of 198348 in order to bring it in harmony with the Convention. The Undertaking in its 1983 version considers plant genetic resources as "common heritage of mankind", running counter to the text of the Convention, which stipulates that, "recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments...." (article 15 para. 1). Negotiations are aimed at an agreement that is tailored for the conservation, sustainable use and access and benefit-sharing for agrogenetic resources, including farmers' rights.49 The COP will consider whether the "the International Undertaking should take the form of a protocol" under the Convention, once it has been revised.50 Forest biological diversity continued to be the most conflictual thematic area within the biodiversity regime. The Intergovernmental Panel on Forests (IPF) had met three times since its conception,51 when the COP first discussed this issue. Decision 111/12 affirmed that the COP will work in a complementary manner with the IPF. It requested the Executive Secretary to develop a focused work programme for forest biological diversity. And, having optional elements such as: research, co-operation, and the development of technologies necessary for the conservation and sustainable use of forest biodiversity. Due to the political pressure by representatives of indigenous communities and non-governmental organisations, COP 3 decided to hold between its third and fourth meeting ('imersessionally') a workshop on traditional knowledge.52 The aim of such a workshop was to start a 48

49

50 51

52

International Undertaking on Plant Genetic Resources, Resolution 8/83, 22nd Session of the FAO Conference, reproduced in: CPGR/Exl/94/Inf.l, FAO, Rome. See D. Cooper, "The International Undertaking on Plant Genetic Resources", RECIEL 2 (1993), 158; K. ten Kate, C. Lasen Diaz, "The Undertaking Revisited: A Commentary on the Revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture", RECIEL 6 (1997), 285. Para. 18 of Decision III/l 1. See note 39; Second Mtg. 11-22 March 1996, Geneva (Doc.E/CN.17/IPF/ 1996/24); Third Mtg. 2-20 September 1996, Geneva, (Doc.E/CN.17/IPF/ 1997/2). The term "traditional knowledge" is used by governments and UN bodies in the context of the Convention as an abbreviation for "knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity", a phrase used in article 8 lit.(j) and throughout the Deci-


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process of developing ideas and feedback for the next COP meeting on issues related to indigenous and local communities with regard to conservation and sustainable use. As regards access to genetic resource, discussed already at COP 2 decisions on both issues (Dec. 111/15 and 111/17 respectively) at COP 3 by the Contracting Parties basically requested the Secretariat to collect more information on these issues, including case studies. On access to genetic resources, the COP was especially interested in information on national and regional measures and interpretations of key terms, the scope of genetic resources included and the process of preparing such measures. Access to genetic resources and benefit sharing is an issue, which is unique to the Convention. Parties cannot fall back upon deliberations and experiences in other processes. They are careful to take action and want to build international concepts and norms on national experiences. Intellectual property rights are highly controversial within the COP. Governments in favour of a tight system of intellectual property rights, especially the United States of America, are afraid that decisions within the Convention could undermine the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) within WTO. While other countries and NGOs objecting, especially to patents on all forms of life, are finding in the Convention support for their cause. The impact of intellectual property rights on the objectives of the Convention have not yet been clarified on behalf of and discussed by the COP, both in terms of negative or positive impact on conservation and sustainable use as well as a tool for the implementation of the protection of traditional knowledge and to enhance programmes of access and benefitsharing regime. The COP, divided on this issue, reached agreement only to call for case studies on a range of issues related to intellectual property rights (Dec. 111/17, para. 1). The issue of intellectual property rights is embedded in the broader issue of the relationship between trade and environment. The COP requested the Executive Secretary to apply for observer status in the

sions of COP 3 and COP 4 dealing with that and related articles. The term "traditional knowledge"(which is not used in the text of the Convention) is incorrect in so far as it gives the impression of remoteness in time and inertia. Innovations are, however, active as they occur continuously in the communities referred to in article 8 lit.(j), 10 lit.(c) and the Preamble, and those innovations are included in the scope of article 8 lit.(j). However, for the sake of brevity, "traditional knowledge" has been more and more used.

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Committee on Trade and Environment (CTE) of WTO (Dec. 111/17, para. 6). This is a first considerable step for the regime of the Convention to reach out to processes beyond the UNCED process (CSD, International Forum on Forests). The financial mechanism was the major internal institutional issue discussed at COP 3, complemented by the question of additional financial resources. After heavy discussions, the COP adopted a Memorandum of Understanding between the COP and the Council of the GEF (Dec. III/8), formalizing the relationship between the two bodies. The GEF received additional guidance with regard to criteria for funding (Dec. HI/5). The guidance related to those issues discussed at COP 3 where guidance was lacking or incomplete. The review of the GEF was due at COP 4 and a lot of time was spent on deciding the guidelines for the review of the effectiveness of the financial mechanism (Dec. HI/7). The procedure calls on the Secretariat to collect information, prepare a synthesis which is then appraised by five regional representatives. The new version should be distributed to all Parties and relevant bodies for comments. On that basis, the Secretariat had to prepare a report which was presented to the regional representatives, the GEF and its implementing agencies (Worldbank, UNEP, United Nations Development Programme). A final synthesis was to be sent to the Parties three months prior to COP 4. The complexity of the preparation of the review indicates the struggle of the COP with the GEF as the financial mechanism. Developing countries are critical of the fact that financial resources in the GEF are not "new and additional" and agreed that the GEF should continue to operate as the financial mechanism, until its review in 1999. Other issues discussed at COP 3 include incentive measures (Dec. 111/18, calling for case studies), identification, monitoring and assessment (Dec. HI/10), and implementation of arts. 6 and 8 (Dec. HI/9).

4. Synopsis of Phase I: Lack of Focus and Institutional Structure At COP 3, substantial progress was made only in agriculture. Some degree of authority by COP was established over the functioning of the GEF, and some steps were taken as regards the issue of traditional knowledge.


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Over the first three years, Contracting Parties more and more realised that the agendas of the COP as well as of the SBSTTA are too burdensome. This resulted in making issues difficult to follow, particularly when it came to countries which only had one or two delegates at each of the COP meetings.53 In addition, Contracting Parties argued that it is often difficult to implement the provisions within a space of a year, before the next COP and SBSTTA meetings are held, as well as requiring parties to attend other working groups such as the biosafety and intersessional activities. It is also on these grounds that it was decided to extend the holding of the fourth meeting of the COP by a period of a year and a half. The bureau of the COP was also asked to trim down and arrange the agenda of the next meeting in a manner that would allow efficient use of time. Moral of participants at the third meeting of the COP was low. Participants complained that the Convention "accomplished little of substance" ever since its entry into force.54 The process lacked focus and did not achieve real changes.55 The meetings of the COP were burdened with a hefty agenda that required delegates to focus on many issues. In the final analysis, COP 3 represented a watershed. In that Parties realised how complex many of the issues under the Convention are, and to move ahead, and maintain interest and momentum, more firmer guidance from COP and its various advisory bodies needed to be presented. Panics were more interested on what could be done, than what needed to be known. Perhaps one can categorise this phase as a move from conception, positioning to finding solutions and getting down to implementing some of the key objectives of the Convention.

53

54 55

The inequality in numbers raises also concerns with regard to the equality in the decision-making process between the various countries. While some developed countries attend the meetings of the COP with 10, 15or even 20 participants, developing countries often can only afford one or two. Cf. for example List of Participants to COP 3, UNEP/CBD/COP/3/Inf.36. This phenomenon is typical to all negotiations of international environmental agreements. Wold, see note 17. Raustiala, Victor, see note 17,40.

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IV. Phase Two: The Biodiversity Regime on its Road to the 5th Conference of the Parties (Nairobi 2000) With the fourth meeting of the COP, the Medium-Term Programme of Work came to a conclusion. The COP had before it the review of the process of the Convention. The meeting was in the authors opinion a major shift forward to the implementation of the Convention. COP 4 decided on several programmes of work for thematic areas and consolidated work on cross-cutting issues, partly with concrete time-frames and expected outputs (1.) It improved the institutional structure of the Convention, in particular by refining and clarifying the process for scientific, technological and technical advise, and initiated a process for reviewing the operations of the Convention (2.) The regime building advanced with regard to substantive norm setting as the COP for the first time decided in several areas to develop norms such as "guiding principles", "guidelines", "codes of best practices", "criteria"(3.) The regime moved from a preparatory stage to an implementation stage on the international level. National reports were due for the first time, allowing for control and review on national level implementation In the case of norm setting and regime building the COP proceeded by redefining the approach in dealing with thematic and cross-cutting issues, and in addition it pushed for outputs that will allow the COP to both monitor implementation and guide the process of implementation through norms and standards. The section below outlines some of the main decisions at COP 4, and in so doing providing clear indications that COP 4 was moving more in the direction of implementation than conception. Some issues such as forest, and rights of indigenous peoples, continue to be tossed around, as Parties, particularly developed countries are reluctant to take on these issues directly, as they are conflictual and can compromise political and economic interest.

1. Thematic and Cross-Sectoral Issues The COP deals on the one hand with the different thematic areas of biological diversity, by also dealing simultaneously with cross-cutting issues. These issues were to a more or lesser extent relevant for the different themes. For example, the introduction of alien species is regarded as an important issue affecting all biomes apart from agricultural biodiversity. The COP therefore specified that it be dealt with in each of the programmes of work for the thematic areas by making it a cross-cutting


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issue that required special attention by COP (Dec.IV/1 Part C). The table below provides an indication of how COP 4 dealt with the various thematic and cross-cutting issues. Ecosystem approach Thematic areas Marine and coastal biodiversity Agricultural biodiversity Biodiversity of inland waters Forest biodiversity Dryland, Mediterranean, arid, semiarid, grassland and Savannah ecosystems Mountains ecosystems

Including indicators Cross-sectoral issues Biosafety Indigenous and local knowledge Access and benefit-sharing Intellectual property rights Alien Species Taxonomy Incentive measures Public education and awareness Environmental impact assessment

a. The Use of the Ecosystem Approach and Indicators The COP reiterated that the ecosystem approach should be a guiding principle for the implementation of the Convention and requested the SBSTTA to develop "principles and other guidance" on the ecosystem approach (Dec.IV/1 Part B para. 2). The advice of the SBSTTA will provide the basis for the COP to adopt principles and guidelines on how to implement the programme of work on the various thematic areas in a harmonized way. The distinction between the different thematic areas is scientifically difficult. Although there are big differences between "clusters" of biodiversity such as coastal and marine plants, animals and microorganisms and their functional relationship compared to one's in forest, it is difficult to draw boundaries around these areas as they are in some way or another interrelated.56 This is quite obvious for biodiversity of inland waters which includes catchment areas and very often these are forest ecosystems. A common approach to the management of all biodiversity, which takes at the same time into account the differences of the various biomes, is important for the implementation

56

See The ecosystem approach under the Convention on Biological Diversity, UNEP/CBD/COP/4/Inf.9.

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of the Convention. It allows for comparison, "transthematic" learning experiences and more efficient management. Linked to the ecosystem approach is the question of criteria and indicators. Set against a certain baseline measure, they allow for the monitoring and assessment of ecosystem status, threats and trends of biodiversity. They are tools to establish a "pressure-state-response assessment" framework, i.e. to assess socio-economic factors or driving forces affecting biodiversity and the state of biodiversity at that moment. "Responses" are measures which are taken in order to change the current or projected state.57 Establishing indicators will allow one to monitor the implementation of the Convention. COP 4 referred this matter to the SBSTTA to identify appropriate indicators and to link these to the ecosystem approach (IV/1 Part A, para. 4). b. Marine and Coastal Biodiversity Based on the report of the expert group established by Dec. II/10,58 which was convened in March 1997, the SBSTTA3 recommended to the COP a programme of work. The COP adopted a Programme of Work for Marine and Coastal Biodiversity identifying key operational objectives and priority activities within five programme elements: integrated marine and coastal area management, marine and coastal living resources, marine and coastal protected areas, mariculture and alien species and genotypes. The basic principles guiding this programme were the ecosystem approach, the precautionary approach, the importance of science, the creation of a roster of experts, and the use of local and indigenous communities (use of their knowledge, community and user based approaches, involvement of stakeholders) (Dec. IV/5 Annex). The activities within the five programme elements are similar in kind. They involve a review of existing efforts or instruments with the view to identify synergies and gaps; the gathering and dissemination of information; eventually research and monitoring; and, most important, the cooperation with lead partners. As we have pointed out before, the Convention cannot be implemented without the endorsement and support of these institutions working in that area on the international, national, regional or local level. The major normative products of the programme are: a.) guidelines for ecosystem evaluation and assessment; b.) criteria for the establishment and management of protected areas; c.) 57 58

UNEP/CBD/SBSTTA/3/9, para. 10. See above.


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guidance on criteria, methods and techniques which avoid the adverse effects of mariculture. c. Agricultural Biodiversity As the assessment of ongoing activities in agriculture were not finalized in time for COP 4, the COP focused on reviewing progress rather than on initiating new initiatives (Dec. TV/6). A synthesis of the assessment will be peer-reviewed at a workshop at the end of 1998, to be organized by the Secretariat, the FAO and the Netherlands. The workshop will undertake to be a stock taking exercise and identify on a preliminary basis future priorities for the programme, to be recommended to SBSTTA. Apart from the continuation of ongoing work and a reiteration to finalize the International Undertaking at the end of 1999, the decision brings two new aspects into this thematic area: Firstly, the Executive Secretary shall apply for observer status in the Committee on Agriculture of the WTO. After representation in the CTE by the Secretariat, this is the second issue that has being linked to the work of the WTO. Secondly, the SBSTTA is asked to assess the consequences of the new technology for the control of plant gene expression and provide scientifically based advice to the COP. Para. 11 of Dec.IV/6 refers to the so called "terminator technology", which prevents seeds from germinating. This part of the decision showed that the COP is also able to react quickly to new developments and include specific requests for action in its decisions. With regard to long-term products, the decision does not call for the development of any norms. It reaffirms that a protocol on plant genetic resources for food and agriculture might be possible. The assessment of ongoing activities will most likely lead to a roster of institutions involved in sustainable agriculture. From the case studies, guidelines on topics related to soil micro-organisms and pollinators, integrated land management practices, and so on, may be deduced. The COP requests that stakeholders begin to provide inputs on methodologies for assessments of agricultural biodiversity and tools for identification and monitoring, including: criteria and indicators (also for farming systems and agricultural ecosystems); rapid assessment techniques; incentives; and the identification of underlying causes. This can be interpreted as a preparatory exercise for the development of guidelines on this issue.

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d. Biodiversity in Inland Waters The programme of work on biodiversity in inland waters was developed in relatively short time, benefiting from the preparations of the sixth session of the CSD, focusing, inter alia, on freshwater, the work within the Ramsar Convention,59 and the experiences gained within the Convention to develop such programmes. The programme of work (Dec. IV/4, Annex I) consists of fours parts: -

Assessment of the status and trends of the biological diversity of inland water ecosystems and identification of options for conservation and sustainable use. This part distinguishes clearly between the different actors addressed. It established a work plan for the SBSTTA and gives detailed recommendations to Parties on activities related to freshwater (i.e. on watershed management, technologies, research, monitoring and assessment, sustainable use, environmental impact assessment, alien species, genotypes and genetically modified organisms, education and awareness, collaboration with the broader watershed community, transboundary cooperation, involvement of local and indigenous communities, economic and legal instruments). - Provision of scientific advice and further guidance to assist in the national elaboration of Annex 1 of the Convention. — Review of methodologies for assessment of (inland water) biological diversity. - The urgency of needed action on taxonomy. The Decision contains a time-frame for a work programme for SBSTTA (Dec. IV/7, Annex II) and foresees the establishment of a roster of experts. Particular attention should be given to the development of rapid assessment methodologies especially related to small island states. The programme of work is comprehensive and specific. It gives guidance to the SBSTTA and to Parties on how to implement it and clearly distinguishes between the tasks of the different actors. One major step forward to the implementation of the Convention with regard to inland water biodiversity is the relation of the Convention to the Ramsar Convention. The Ramsar Convention is an established international legal framework, and developed a strategic plan in 1997 for until the year 2002, based on the wise use principle, which in many respects

59

See note 10.


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is similar in intent to the "ecosystem approach" adopted by the COP. The COP endorsed the Joint Work Plan with the Ramsar Convention60 as a framework for enhanced cooperation between these conventions. This is the first time the COP has adopted a decision to develop a detailed cooperative relationship with another convention. This will hopefully provide a precedent for other joint work programmes. The Convention cannot be implemented in a void but rather has to link up with other regimes covering themes or issues of the Convention. In a longer-term perspective, the Convention could integrate these other processes into its overall framework, leading to build-up a web of regimes. e. Forest Biodiversity The discussions on a biodiversity regime for forests are complicated by the overlapping mandate of first the Intergovernmental Panel on Forests and then, after the conclusion of its work in February 1997,61 by its successor, the Intergovernmental Forum on Forests (IFF).62 Contrary to the work programme on marine and coastal biodiversity, the programme of work for forest biodiversity does not include the development of any normative results. Expected outcomes are better understanding of the issues, for example the use the ecosystem approaches in relation to forests and the role of traditional knowledge, and analysis of human impacts on forests. The most operational result might turn out to be "methodologies to advance the elaboration and implementation of criteria and indicator frameworks and the improved capacity of countries to implement these frameworks". From a regime point of view, this programme of work appears to be still in the conceptual phase of its construction. The sub-regime on forests is nothing more than a call to provide more information and research and to hold more meetings. There is also no real commitment from Parties whatsoever, as they can withdraw their co-operation on the basis that this activity is not relevant to them (Dec. IV/7, Annex, para.2). Given the conflictual nature of forestry, agreement on clear norms and standards, as well as a programme for implementation will 60 61 62

UNEP/CBD/COP/4/Inf. 8. Endorsement by Dec. IV/15 para. 2. Fourth Mtg. from 10 -12 February 1997 (Doc.E/CN.17/1997/12). The IFF met once before COP 4, from 1-3 October 1997 (Doc.E/CN.17/ IFF.1997/4). A second meeting took place in Geneva from 24 August - 4 September 1998 (Doc.E/CN.17/IFF/1997/4).

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be difficult to achieve, as forest and forestry are major economic and political issues upon which many countries depend on to earn foreign exchange. f. Other Biomes for the Future: Dryland, Savannas etc. The programme of work for the COP foresees the in-depth consideration of dryland, Mediterranean, arid, semiarid, grassland and Savannah ecosystems at COP 5 and mountain ecosystems at COP 7 (Dec. IV/16, Annex II). With the inclusion of these ecosystems into its work, the COP covers the whole range of biodiversity themes. g. Indigenous and Local Communities Following the Decision of COP 3, a workshop on traditional knowledge63 was held in Madrid from 24-26 November 1997. The workshop experimented with procedural innovations, having representatives of indigenous peoples as chairs of the two working groups and as members of the bureau, the governing body of the meeting. The report of the workshop, intended as a recommendation for the work programme to be adopted at COP 4, was rather a loose collection of a wish-list of all issues that needed to be addressed rather than providing useful advise to the COP on where to go next.64 As a consequence, the Decision on the implementation of article 8 lit.(j) and related provisions (Dec.IV/9)65 only adopts the structure from the Madrid report for work programme options (Annex to Dec. IV/9).

63 64

65

For the term "traditional knowledge" see note 52. Report in UNEP/CBD/TKBD/3. Although not helpful in its concrete output, the meeting was useful to clarify points of views in preparation for COP 4 and to built capacity for indigenous peoples representatives on procedural matters. Article 8 lit.(j), dealing with the protection of, use of and sharing of benefits from innovations, knowledge and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity can in many of its aspects not be implemented separately from the provision on the protection of traditional cultural practices (Art. 10 ( c)). See note 52 on the term "traditional knowledge". Their continuation is crucial for the continued innovation by indigenous and local communities. Benefit sharing with regard to knowledge related to genetic resources has to be implemented in conjunction with the


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The discussions at COP 4 again did not dwell on substantive questions in relation to article 8 lit.(j) but rather went into endless circular discussions about process. As in COP 3, representatives of mostly indigenous peoples fought for an ad hoc open-ended inter-sessional working group to address the implementation of article 8 lit.(j) and related provisions. The working group would report directly to the COP. It will be held in conjunction with the SBSTTA. Its mandate is to provide advice to the COP on all matters related to article 8 lit.(j), in particular on the application and development of legal and other appropriate forms of protection for the knowledge of indigenous and local communities. h. Biosafety The ad hoc working group on Biosafety held four meetings before COP 4.66 The COP had delegated most of the decision making to this body. The Working Group needed, however, political direction from COP for the finalization of its work. Governments with an interest in delaying the protocol tried to postpone the process of finalization. In the end, they did not succeed and the COP decided that the final meeting of the group and an extraordinary meeting will be held in February 1999 to adopt a Protocol on Biosafety. After its fifth meeting,67 the working group achieved to draft a consolidated, but heavily bracketed text for negotiation at is final meeting in February 1999. i. Access and Benefit-Sharing The Decision on access and benefit-sharing (Dec.IV/8) contains two major developments compared to previous Decisions (Dec.II/11; 111/15). Firstly, the COP established a regionally balanced panel of experts, reporting to the COP, with the mandate to develop "a common understanding of basic concepts and to explore all options for access and benefit-sharing on mutually agreed terms, including guiding prin-

66

67

provisions on access to genetic resources, i.e. arts 15,16 para. 3 and 19 para. 1 and 2. Other articles of the Convention also overlap and impact on the implementation of article 8 lit.(j). The First Mtg. from 22-26 July 1996 in Aarhus; Second Mtg.12-16 May 1997, Third Mtg. 13-17 October 1997, Fourth Mtg. 5 to 13 February 1998 (Report in: UNEP/CBD/BSWG/4/4) in Montreal. 17-28 August 1998, Report in: UNEP/CBD/BSWG/5/3.

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ciples, guidelines, and codes of best practice for access and benefitsharing arrangements." The panel is a first step towards the development of international guidance, in the broadest sense of the term, for access and benefit sharing arrangements, in particular bioprospecting.68 It is the first mechanism under the Convention that can be regarded as a direct mandate to set norms. The options for access and benefit-sharing include elements such as prior informed consent (article 15 para.4), mechanisms to provide consent, reference to the country of origin, where available, in relevant publications and patent applications; mutually agreed terms; cost efficient permitting and regulatory procedures; incentive measures for contractual partnerships (Annex to Dec.IV/8). Complementary to this task, will be an inter-sessional meeting before COP 5 to consider options for access and benefit-sharing mechanisms, which will include policy and legislation. The second development of importance is that the COP requested the Executive Secretary to gather information on ex-situ collections which were acquired prior to the entry into force of the Convention and which are not addressed by the Commission on Genetic Resources for Food and Agriculture of the FAO. The access regime in the Convention does not cover genetic resources acquired before the entry into force of the Convention (cf. article 15 para. 3) making it potentially possible for countries which have acquired these resources before the Convention to exclude these resources from benefit sharing arrangements. j. Intellectual Property Rights There is no stand-alone decision by the fourth meeting of the COP on intellectual property rights. IPRs are indirectly dealt with by the Decision on article 8 lit.(j) and indigenous and local communities as well as by the Decision on access and benefit-sharing. IPRs are included in the mandate of the expert panel. Work on intellectual property rights cannot be carried out by the Convention in a vacuum. The Convention does not deal with intellectual property rights as such. The issue, being highly controversial, can only be discussed in relation to developments in the WTO, especially as the review of article 27 para. 3 lit.(b) of TRIPs is due in 1999, putting at stake the question of a sui-generis sys68

"Bioprospecting" refers to the access to genetic resources in in-situ conditions as compared to material transfer agreement for genetic resources from an ex-situ collection or a user to another collection or a user.


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tern for the protection of plant varieties. The COP decided to reiterate the task, but has not as yet acted upon, to undertake work that assists in developing a common appreciation of the relationship between intellectual property rights, TRIPs and the Convention (Dec.IV/15 para. 10). The COP did, however, not decide to explicitly ask the Executive Secretary to apply for observer status in the Council of TRIPs. The whole issue of intellectual property rights and how it relates to the objectives of the Convention is still in a very early stage of development in the regime. Whether it will develop further in the future is not clear, it really depends on the strength of argument and advocacy of countries that want this issue to be addressed. k. Incentive Measure, Public Education and Awareness, and Environmental Impact Assessment Incentive measures, public education and awareness, and environmental impact assessment (EIA) have been clustered at COP 4 as "Measures for implementing the Convention", and also dealt with as stand alone parts having their own pre-ambular statements in each part (Part A, B, CofDec.IV/10). These issues are being dealt with by way of requesting more information and case studies. It is important to remember that many of these issues are being dealt with by the Contracting Parties outside the framework of the Convention. These issues would inevitably fall under general programmes for environmental management that countries may be undertaking at the moment. This may explain the lack of urgency to come up with anything concrete, and rather have the matter deferred to future COP meetings. As regards incentive measures, there was a general call for governments to use incentive measures, taking into account the ecosystem approach, and to remove or mitigate effects of perverse incentives. The decision was taken with recognition of the fact that the Secretariat of the OECD is also collecting case studies on incentive measures by their member states. Mindful of this, the COP recommended that Parties await the results of the OECD project, and asking for an analysis of the findings for the next COP by relating these to the various thematic foci. 1. Alien Species As we have stated in the introductory remarks to this section, COP decided alien species to be a cross-cutting issue for implementation under

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many of the themes of the Convention. The SBSTTA was requested to identify priority work and to examine the Global Invasive Species Programme with a view to considering action under the Convention (Dec. IV/1 Part C).

2. The Institutional Framework and Decision-making Process On the agenda of COP 4 was the review of the medium-term programme of work, including the review of the operations of the COP and its subsidiary organs so as to undertake an overall review and consider a longer-term programme of work. This task was one of the most difficult for the fourth meeting of the COP. It was certainly one of the most contentious. The longer-term programme of work is dependent on the frequency of meetings of the COP which depends on whether there are other subsidiary bodies or institutions also preparing or implementing the decisions. This is one of the main reasons why the Modus Operandi of the long-term work programme and the institutions of the Convention were regarded in serious light. See Annex B for schematic representation of the new institutional arrangements for the Convention. a. The SBSTTA The COP decided on the Modus Operandi of the SBSTTA (Dec. IV/16 Annex I). There was a general recognition that the SBSTTA should play an advisory role as opposed to being a purely scientific body. Between COP 3 and COP 4 innovations such as the use of expert panels were tested. In COP 4 problems with the way in which SBSTTA worked were recognised, and since SBSTTA is an important decision making body, the way it works in future will determine how parties approve and process resolutions efficiently. Prior to decisions at COP 4 on the future workings of SBSTTA, the SBSTTA generated opinion and advice through the creation of expert panels, liaison groups, joint technical workshops for instance with the FAO, and the Secretariat (June 1997), and so on. These provided a testing ground and helped to inform how the future structure should be established. The SBSTTA, at COP 4, was mandated to establish a limited number of ad hoc technical expert groups on specific priority issues that may be convened for a limited duration. It has to advise COP 5 on the terms of reference for the ad hoc expert group on thematic areas (Dec.

Henne/'Fakir, Regime Building of the Biodiversity Convention

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IV/16 para. 21). These experts are to be drawn from a roster established from nominations by governments (not only Parties, in order to include experts from the United States) and other bodies. Ad hoc technical expert groups shall be composed of no more than 15 experts with geographical representation. The roster of experts is another general institutional innovation. The experts do not only serve the expert groups but should also contribute to the preparation of decisions and the implementation of the Convention through peer reviews, clarifications, contributions to papers, participation in workshops etc. This shall increase the scientific basis for the decisions of the COP. The Secretariat has so far established rosters for experts on marine and coastal biodiversity, agro-biodiversity and biological diversity of inland waters. Another innovation is the introduction of regional and subregional meetings for the preparation of regular meetings of the SBSTTA. This will allow for much more specific and contextual discussions on issues in the process. Their organization is, however, subject to voluntary funding. b. The Bureau(s): Their Growing Role Rule 21 of the Rules of Procedure of the Conference of the Parties stipulates, "that at the commencement of the first session of each ordinary meeting, a President, eight Vice-Presidents and a Rapporteur are to be elected from among the representatives of the Parties present at the meeting". They serve as the Bureau of the meeting. The officers are elected on the basis of equal geographical representation. Two from each geographical region (Africa, Asia, Western Europe and others, Latin America and the Caribbean, Eastern Europe), including representation of the Small Island Developing States. The function of the Bureau in the intervening period until the next ordinary meeting is to provide guidance to the Secretariat with regard to preparations for and conduct of meetings of the COP. The role of the Bureau grew over time. Dec. 1/4 stipulates that the Executive Director of UNEP shall select the Executive Secretary of the Secretariat of the Convention in consultation with the Bureau of the COP. Administrative difficulties between the Secretariat and UNEP were to be resolved through an administrative arrangement, to be reported to the COP through the Bureau (Dec. 111/23). The Executive Secretary for instance trimmed down the much too long agenda for COP 4, arising from decisions at COP 3, in consultation and with the approval of the Bureau. As the budget of the Convention is only a por-

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tion of what the work programmes would require, COP 3 and 4 recognize that the Executive Secretary might have to adjust the servicing of the programmes, with the guidance of the Bureau (Dec.III/22 para. 1; IV/16 para. 17). The Bureau decided after COP 4 on the dates of the different meetings. The Bureau shall liaise regularly with the bureaus of subsidiary bodies of the Convention (Dec.IV/16 par. a 15).69 As the regime of the Convention gets more and more complex, the Bureau has a increasing steering and guiding role to play to and on behalf of the COP, and more crucially setting priorities by approving the agenda. The Bureau members are also expected to report back to their respective regions and to transfer the deliberations of the regional members into the Bureau. The growing role of the Bureau and its impact on the regime might be worthwhile to study further. c. A Subsidiary Body for Implementation? The issue of a Subsidiary Body for Implementation (SBI) for the Convention, similar to that of the Convention on Climate Change was discussed at length at COP 4. Some favoured the approach of improving the operations of existing structures, while others considered that the decision-making process would benefit from a body which surveys and reports on the implementation of the Convention. Well-prepared meetings of the COP by this body may alleviate the burden by reducing the number of issues that need decision and deliberation at each of the meetings of the COP. On the other hand, a yearly COP with a reduced agenda might well serve the same purpose. Whereas the feeling of the stakeholders before COP 4 was that an additional body may create a burden rather than smoothen decisionmaking, the assessment changed at COP 4. More and more individual processes appeared to be necessary in order to be able to deal in depth with the different sub-regimes (such as on forest, on access to genetic resources, on national reporting etc.). As it was feared that these processes would end up fragmenting the regime as a whole; the idea of a subsidiary body for implementation got stronger support. The issue, however, could not be resolved at COP 4. As a compromise Parties agreed that before the next COP an inter-sessional open-ended meeting 69

Subsidiary bodies follow the rules of procedure of the COP mutatis mutandis, Rule 26.5. The Chairperson is elected by the COP, the officers, however, by each subsidiary body itself. "Subsidiary body" includes committees and working groups, cf. Rule 26.1.


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will be held back-to-back with SBSTTA 4 "to consider possible arrangements to improve preparations for and conduct of the meetings of the COP..., including a preparatory discussion of the item on access to genetic resources on the agenda of the fifth meeting of the COP..." (Dec.IV/16 para. 2). This meeting will be crucial in determining a role of the SB I if any at all. d. The Clearing-House Mechanism The objective of the Clearing-house Mechanism is to "promote and facilitate technical and scientific cooperation" (article 18 para.3). COP 1 established a pilot phase which extended its life-span up to COP 3 until the end of 1998.70 As the Convention left the design completely to the COP, this pilot phase was necessary to explore what role the mechanism should take. Its role evolved since COP 1 and was broadened. Its role is seen to be a key instrument at promoting and facilitating the implementation of the Convention.71 Between COP 3 and COP 4, four clearing-house regional workshops were held to built capacity for countries to use and contribute to the mechanism and to explore their needs. At the end of the pilot phase, an independent review of the Clearing-house Mechanism will be undertaken. So far, Parties designed the mechanism as a decentralized switchboard for information dissemination on policy and management as well as science and technology. The main instrument for the Clearing-house Mechanism is the Internet. The mechanism should be a network on the international, regional, sub-regional and national level of all biodiversity institutions and initiatives and stakeholders, including the private sector, and serve the needs and demands of the Contracting Parties for implementing the Convention. The Clearing-house Mechanism has an Informal Advisory Committee to guide the Secretariat as the international focal point. Every Contracting Party should have a national focal point that should be advised by a steering committee or working group to achieve broad participation of all stakeholders in the implementation process of the mechanism (Dec. TV/2 para. 3). Major content elements are country profiles, biodiversity strategy and action plans, legislation,

70

Dec. HI/4.

71

Decisions 1/3, II/3, 11/4, 11/7, II/8, 11/10, 11/11, 11/14, 11/16, 11/17, HI/4, HI/5, HI/9, 111/10, III/ll, 111/17, 111/18, 111/19, IV/2, IV/4, IV/5, IV/7, IV/8, IV/9, IV/10, IV/15, IV/16.

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financial resources, national focal points, scientific and technical information. The Clearing-house Mechanism is an example of the character of the Convention: It develops on the basis of the experiences gained. The regime is built, reviewed and adapted as the Contracting Parties go along. Its role in assisting poorer countries to implement the Convention will be crucial. e. The Financial Mechanism At COP 4, additional guidance was given to the COP on the issues to be discussed, and in so doing providing a broad range of issues to be financed by the GEF. However, difficulties that present themselves to the Council of the GEF will be on how to decide on those projects that are priorities for the Convention. The other result of the review of the effectiveness of GEF72 is that the various procedures (project preparation, procedures for approval and implementation) should be quicker, simpler, and more country-driven. The GEF as such should be more flexible and have a better way of responding to the guidance given by the COP (Dec. IV/11, Annex). f. Regional Meetings Until COP 4, regional meetings were held in preparation of the following COP. The character of these meetings was changed at COP 4 from being preparatory in nature to "consider ways and means of implementing the Convention and the decisions of the Conference of the Parties" (Dec.IV/16 para. 5). The shift from preparatory to implementation oriented meetings is also an indication of the shift in the regime of the Convention. Strategy and action plans need to be implemented on a national and local level. The objectives of the Convention will be achieved only by local action and regional meetings a useful tool to share experiences on implementation with countries facing similar situations. The shift to regional implementation meetings marks a turning point for the biodiversity regime. And is perhaps more clear and incisive about its intent than ever before.

72

See page 338.


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3. Implementation of the Convention: Norm-setting, International Cooperation and National Policy and Law a. Setting Norms and Standards A regime is only as good as its implementation. One can consider implementation on several levels. From a legal point of view, an international treaty with broad obligations is implemented on the international level if its norms are specific enough to allow for implementation, e.g. if the general obligation to reduce the emission of carbon dioxide is specified to be a certain percentage against a defined baseline (international implementation). This is, however, not sufficient to reach the objectives of a convention if the convention is not about international relations; rather, these international obligations have to be turned into national policy and law (national implementation) and, in the case of international organisations, into policy by these organisations (implementation by organisations). In a third step, implementation only takes place when policy and law are enforced and changes in behaviour take place. In the Biodiversity Convention, implementation is happening simultaneously on the international and national level: many of the provisions of the COP are still far from being internationally implemented, for example the ecosystem approach still needs to be defined before it can be implemented in a realistic manner. The regime at the moment is still at an early stage of norm-setting.73 COP 4, compared to other COP meetings, has only begun to define clearer procedures on ways by which norms can be developed. For instance its decisions are tend to use the following wording: "Guiding principles" shall be recommended by the SBSTTA on alien species; and further, "principles and other guidance" on the ecosystem approach74 are to be developed. In addition other examples include its recommendations that the programme of work on marine and coastal biodiversity aims at developing "guidelines for ecosystem evaluation and assessment", including indicators, and to provide "guidance on criteria, methods and techniques" with regard to

73

74

"Norm" in this context is used as a general term for every sentences that intends to instruct behaviour and not as defined by Krasner in his definition for "regime", see note 20. Dec. IV/1 Part C para. 2 and Pan B para. 2 respectively.

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mariculture.75 The panel of experts on benefit-sharing shall develop a common understanding of basic concepts, which can serve as a common interpretation if adopted, and to explore among other things "guiding principles, guidelines, and codes of best practice".76 "Guiding principles", "guidelines" etc. as objectives are examples of the general tendency in the wording of the Convention, which is indicative of its move away from the traditional regulatory approach such as the development of protocols or by making amendments to the Convention. The only possible disadvantage is that compliance with these "loose" prescriptions can be difficult to assess. It is therefore important that indicators are formulated. Indicators are quantitative measures against which aspects of policy performance can be measured.77 b. Joint implementation with other Conventions While the COP struggles to develop norms for the various thematic areas, it is important to note that Parties must continue to implement the Convention on the national level by National Biodiversity Strategies and Action Plans or in introducing legislation on access and benefit sharing.78 Without the cooperation of other international processes, the Convention cannot be implemented effectively and comprehensively. In addition, cooperation with other Conventions avoids duplication and reduces the financial burden that can be incurred if the Convention were to undertake all these roles by itself. Mindful of this fact, the COP had adopted memoranda of cooperation with a variety of institutions and invited a panoply of bodies to take part in the implementation of the relevant decisions (Dec.II/13; HI/17; 111/21; IV/15). In this way the COP seeks to encourage joint-implementation with other parties or bodies responsible for other Conventions. The following is a non-exhaustive overview of international conventions, institutions, processes and initiatives the institutions of the Convention and the Parties do or intend to cooperate with: 75

Dec. IV/5 Annex, Programme element 2, Operational objective 1.3 and programme element 4, activity (a) respectively.

76

Dec. IV/8 para. 3. UNEP/CBD/SBSTTA/3/9, para. 10. See UNEP/CBD/COP/3/15; UNEP/CBD/COP/4/23; L.Glowka, "Emerging Legislative Approaches to Implement Article 15 of the Convention on Biological Diversity", RECIEL 6 (1997), 249.

77 78


Conventions

Other institutions and processes

Rio Conventions:

Rio Processes

•

• CSD • IFF Other UN bodies/processes • UNEP • UNCTAD • UNESCO • Intergov. Oceanographic Commission • IMO • WIPO • FAO • FAO- CGRFA • Various UN Working Groups through Secretariat, e.g. Interagency Task Force on Forests Non UN institutions • Worldbank

UNFCCC

• CCD Biodiversityrelated conventions • RAMSAR • CITES • CMS • World Heritage Convention • UNCLOS • Cartagena Convention

• WTO-CTE •

WTO-Committee on Agriculture and Trade • WTO-Council on TRIPs • IUCN • World Conservation and Monitoring Center • Int. Association for Impact Assessment • DIVERSITAS • Int. Council for the Exploration of the Sea • SCOPE • OECD • OECD Mega-science Forum's Biodiversity Informatics Subgroup Initiative • World Water Council • Global Water Partnership Regional processes

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International Initiatives Global Invasive Species Programme Global Taxonomy Initiative Global Initiative on Biological Diversity Education, Training and Public Awareness (under consideration) Programme of Action for the Sustainable Development of Small Islands Developing States Coral Reef Initiative

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c. Compliance and Control The only possible non-conflictual mechanism to oversee the implementation of the Convention is the national reporting system. Article 26 calls upon each party to present to the COP reports on measures which each party has taken in the implementation of the provisions of the Convention and their effectiveness in meeting the objectives of the Convention. At COP 2 it was decided that the first national reports by parties will focus on measures taken for the implementation of article 6, "General Measures for Conservation and Sustainable Use", as well as the information available in national country studies on biological diversity.79 Until the fourth meeting of the COP, Parties submitted over one hundred national reports, including interim reports.80 The reports differed considerably both in terms of size and quality, ranging anything from a twelve page paper typed with a mechanical type writer to a glossy brochure of two hundred pages.81 The guidance given by COP 2 on how the first national reports should be structured82 was far too general to make any meaningful comparisons. This is of concern as national reports are the main instrument by which concrete progress on implementation can be monitored. At the fourth meeting, the COP was to have taken a decision on the form and intervals of national reports for the future (Dec.II/17). The COP, however, was not in a position to do so. Instead, it referred the issue to the SBSTTA, requesting it to advice the COP at its fifth meeting on the form and intervals of future reports. The advice should "cover the nature of the information needed from Parties in order to assess the state of implementation.... guidelines on format, style, length and treatment with a view to ensuring comparability..." (Dec. IV/14 para. 3). SBSTTA should also make recommendations that will include a standard format to allow comparability; information that should include a report on the progress on the implementation of National Biodiversity Strategies and Action Plans, lessons learnt, gaps in capacity for policy research and analysis and technical and financial requirements and the 79 80

81 82

See p. 325 and 334-335 . About 90 developing countries had received support by the GEF as "enabling activities" to develop a national biodiversity strategy and report; not all of those projects had been implemented in time for COP 4. Synthesis of national reports, UNEP/CBD/COP/4/11 Rev.l 1, para. 3. Dec. 11/17, Annex.


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use of nationally developed indicators. Parties are encouraged "to consider the participation of all relevant stakeholders in the preparation and use of national reports" (Dec. IV/14, Annex, para. 4). The compilation of national reports can be a politically sensitive one. First, many of the reports of developing countries were written by consultants, financed by the GEE An opportunity to engage capacity building for developing countries was lost as a result. Secondly, a lot of governments do not want critical non-governmental organizations to provide input or comment for fear of criticism, hence limiting the richness of the reports. Perhaps deferring this matter to SBSTTA was a wise decision by the COP to avoid any political conflicts at COP meetings.

V. The Biodiversity Regime After COP 4: Conclusion and Outlook The Convention is still far from reaching its objectives. At COP 1 and COP 2, most of the tasks were referred to the Executive Secretary, entrusted with reporting and providing information. At COP 3 and even stronger at COP 4, Contracting Parties decided on achieving their own commitments before the next meetings of the COP or referred more work to the SBSTTA. Discussions at COP were never done in haste without matters being considered in detail by SBSTTA or other working groups. Some of these decision took several rounds of discussion. For example, decisions on access and benefit sharing went through three rounds of discussion. As we have shown, many of the discussions between COP 1 and 4, were exploratory, and especially developing countries seeking to weigh the options by requesting additional information or more studies to be conducted. Parties also chose initially not to make any crucial commitments without allowing some time to get a feeling for each other's positions and where political and economic interest lie. After COP 4, several programmes of work were put in place and the regime building exercise seem to have gained some structure with regard to the undertaking of the overall work programme; and the governance structure has also been refined. This we argue has taken place at two levels: in that the COP is pushing advisory bodies such as SBSSTA to come up with formulations that are couched in words that will allow the COP to find agreement on issues of substance in the form of guidelines and actions that the parties can take. Perhaps, here the role of the

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SBI will become important in that it will serve to provide the COP with feedback as to how far parties have gone in adopting and implementing the Convention. There seems to be a clear attempt to push in this direction, of seeing more implemented by the adoption of guidelines and best practice models both at the international, and national levels. The more these are reflected in national legislations, or policy the more scope there is given to the regime building exercise of the Convention gaining ground.

Institutional structure in the text of the CBD

ANNEX A


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CBD institutional structure after COP 4

ANNEX B


Carrots without Sticks? New Financial Mechanisms for Global Environmental Agreements* Peter H. Sand

Environmental law has been described as "a cutting-edge laboratory of international law"1 — a metaphor which somehow casts environmental lawyers in the unenviable role of the alchemist who is impatiently expected to find cheap ways of making gold. International environmental law has indeed become a favourite testing ground for innovative policy instruments, including economic incentives (for "positive measures") and financial mechanisms in particular.2 Some of the experiments ongoing have drawn fire, from the defenders of more traditional ways of making international law as well as from the defenders of more traditional ways of spending money. I shall begin, therefore, by placing those instruments in the general context of international development assistance, then focus on the major new financial "carrots" of global enviRevised version of the 1999 Brodies Lecture on Environmental Law delivered at the Faculty of Law, University of Edinburgh (5 February 1999). L. Condorelli, Preface to L. Boisson de Chazournes et al. (eds), Protection Internationale de I'Environnement, 1997, 7 ("laboratoire de pointe"); and P.M. Dupuy, "Ou en est le droit international de 1'environnement a la fin du siecle?", RGDIP 101 (1997), 873 et seq., (900). See P.H. Sand, "International Economic Instruments for Sustainable Development: Sticks, Carrots and Games", IJIL 362 (1996), 1 et seq.; Id., "Sticks, Carrots, and Games", in: M. Bothe and P.H. Sand (eds), Environmental Policy: From Regulation to Economic Instruments, Hague Academy of International Law, forthcoming 1999; and P. Mickwitz, Positive Measures: Panacea, or Placebo in International Environmental Agreements, Nordic Council of Ministers 1998.

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ronmental agreements, and on some of the international legal problems they raise.

I. The Limits of Green Aid True, the environment has begun to play a prominent part in overseas development assistance. Most bilateral and multilateral aid projects are now subject to well-established criteria and procedures for the prior assessment of their environmental impacts;3 and a standard portion of ongoing (bilateral and multilateral) development funding is regularly earmarked for "green" projects. It is also true, however, that the percentage of environment-related aid programmes has remained well below 8% of total official development assistance (ODA).4 The corresponding percentage of inter-governmental lending for environment-oriented projects by multilateral financial institutions is even smaller;5 and the operational budgets of intergovernmental institutions designated for collective environmental action — such as the United Nations Environment Programme (UNEP) — are actually lower than those of some non3

4

5

E.g., see the "Guidelines on Environment and Aid" adopted since 1991 by the Development Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development; especially No.4, Guideline for Aid Agencies on Global Environmental Problems, OECD 1992. All World Bank projects are subject not only to a series of specific policies and procedures for prior environmental assessment introduced since 1989, but also to an evaluation of their potential "global externalities" (including emissions of greenhouse gases or ozone-depleting substances, pollution of international waterways, and impacts on biodiversity) pursuant to Operational Policy OP 10.04 on Economic Evaluation of Investment Operations (September 1994), para. 8 and fn. 5; see C.E. Di Leva, "International Environmental Law and Development", Geo.Int'l EnvtlL.Rev. 10 (1998), 501 et seq., (531). Total official development assistance from OECD countries (about 30% of which is disbursed through multilateral institutions, while the remainder is bilateral aid) was US$ 49.8 billion in 1997, down from US$ 55.4 billion in 1996; Development Co-operation: 1997 Report, OECD 1998, updated figures in: http://www.oecd.org/dac/htm/online.htm. World Bank lending for environmental projects, which had steadily increased since 1986, for the first time shows a decline in Fiscal Year 1998 (US$ 10.9 billion, down from US$ 11.6 billion in 1997); World Bank, Annual Report 1998, Figures 2 and 3-2 http://www.worldbank.org/html/extpb/annrep98.

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governmental institutions in this field, such as the World Wide Fund for Nature (WWF).6 Current figures — unlikely to increase in the foreseeable future — are only a fraction of the cost estimates for implementing Agenda 21, as outlined at the 1992 UN Conference on Environment and Development (UNCED)in Rio de Janeiro,7 and are manifestly unrelated to actual problem needs. Environmental projects thus share the fate of all contemporary development assistance, with most donor countries falling miserably short of the long-proclaimed goal of 0.7% of GNP.8 "Green aid" is inevitably hamstrung by the same economic constraints which continue to frustrate international attempts at bridging the North-South gap on the sole, if noble, basis of global solidarity.

II. The Emergence of Global Ecofunds Yet, simultaneously, there has been a well-documented increase both in public awareness of global environmental problems and in what economists call "willingness to pay" for collective environmental action. As a result, a new type of international financial mechanisms emerged to address specific environmental issues identified as global risks (some-

Budget data in Yearbook of International Co-operation on Environment and Development (1998-1999), 224 and 253 http://www.ext.grida.no/ggynet; for a comparative assessment see W.E. Franz, "The Scope of Global Environmental Financing: Cases in Context", in: R.O. Keohane and Marc A. Levy (eds), Institutions for Environmental Aid: Pitfalls and Promise, 1996, 367 et seq. US$ 600 billion annually, including US$ 125 billion on grant or concessional terms from the international community; para. 33.18 of the Report of the United Nations Conference on Environment and Development, Doc. A/CONF.151/26/Rev.l (Vol. I), 417. According to the 1997 OECD/DAC data (see note 4), official development assistance (ODA) from OECD countries represents about 0.22% of GNP on average — i.e., the lowest average in over 30 years, and way below the 0.7 target, which only the Scandinavian countries and the Netherlands have met. See also the 1997 Report of the UN Secretary General to the Commission on Sustainable Development, "Overall Progress Achieved since the United Nations Conference on Environment and Development", Doc. E/CN. 17/1997/2, para. 99, "Financial Resources and Mechanisms", Doc. E/CN.17/1997/2/Add.23, paras. 33-36 http://www.un.org/esa/sustdev/ dsd.htm; and J.G. Speth, "A New Global Environmental Framework", Environmental Forum 15 (1998), 44 et seq., (46).

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times under the label of "environmental security")9 or as global collective goods (sometimes under the label of "common heritage").10 It is fashionable to explain that phenomenon as a paradigm shift11 from an aggregation of individual state concerns to the securing of a community interest shared by all states.12 An equally plausible explanation suggested by financial considerations would be the donors' enlightened self-interest.13 Be that as it may, the politically correct phrase used today to distinguish this new selective (earmarked) funding from the main-

9

10

11

12

13

On national security concerns underlying this concept, see P.H. Sand, "International Law on the Agenda of the United Nations Conference on Environment and Development: Towards Global Environmental Security?", Nord.J.Int'lL 60 (1991), 5 et seq., (9); and generally A.S. Timoshenko, "Ecological Security: Response to Global Challenges", in: E.B. Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions, 1992, 413 et seq. On the solid economic interests behind the common heritage concept as originally applied to genetic resources, see G.S. Nijar and C.Y. Ling, "The Implications of the Intellectual Property Rights Regime of the Convention on Biological Diversity and GATT on Biodiversity Conservation: A Third World Perspective", in: A.F. Krattiger et al. (eds), Widening Perspectives on Biodiversity, 1994, 277 et seq., (279); V.M. Marroqufn-Merino, "Wildlife Utilization: A New International Mechanism for the Prospection of Biological Diversity", Law and Policy in International Business 26 (1995), 303 et seq., (310); G. Rose, "International Regimes for the Conservation and Control of Plant Genetic Resources", in: M. Bowman and C. Redgwell (eds), International Law and the Conservation of Biological Diversity, 1996, 145 et seq., (154). See generally B.M. Russett and J.D. Sullivan, "Collective Goods and International Organization", International Organization 25 (1971), 845 et seq. The term goes back to T.S. Kuhn, The Structure of Scientific Revolutions, 2nd edition 1970. See generally M. Jori, "Paradigms of Legal Science", Rivista Internazionale di Filosofia del Diritto 67 (1990), 230 et seq. R. Dolzer, "Die Internationale Konvention zum Schutz des Klimas und das allgemeine Volkerrecht", in: U. Beyerlin et aL (eds), Recht zwischen Umbruch und Bewahrung, 1995, 957 et seq., (972); U. Beyerlin, "State Community Interests and Institution-Building in International Environmental Law", ZaoRV 56 (1996), 601 et seq., (605); E. Kornicker, lus Cogens und Umweltvolkerrecht, 1997, 157. See generally B. Simma, "From Bilateralism to Community Interest in International Law", RdC 250 (1994), 217 et seq. B. Connolly, "Increments for the Earth: The Politics of Environmental Aid", in: Keohane and Levy (eds), see note 6, 327 et seq., (330).

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stream of green aid14 is the "achievement of global environmental benefits." 1. Historically, the first manifestation of this new approach was the establishment of the World Heritage Fund (WHF) under the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage.15 The idea of preserving selected cultural and natural sites "for the present and future benefit of the entire world citizenry" goes back to a 1965 White House Conference on International Cooperation.16 With 156 member countries, the 1972 Convention (in force since 1976) is the most widely accepted conservation treaty today. From the trust fund established pursuant to article 15 para.2 — with a current annual income of approximately US$4 million, about half of which goes to protected natural (as distinct from cultural) areas,17 — any Party may request assistance for sites protected under the Convention, in the form of studies, provision of experts, training of staff, supply of equipment, loans, or emergency aid. Contributions to the Fund are prorated in accordance with the UNESCO contribution scale. The basic idea of the World Heritage Fund — to compensate the "host" countries of heritage sites for the special conservation efforts they make on behalf of the world community — thus goes beyond the traditional charitable motives of international aid, and recognizes a legal entitlement of the recipients, in return for the global benefits which their local action generates. 18

14

15 16

17

18

The greening of international development assistance itself went through a long and acrimonious debate with the recipients over the "additionally" and "green conditionally" of the resources generated for this purpose; see S. Macleod, Financing Environmental Measures in Developing Countries: The Principle of Additionally, IUCN Environmental Policy and Law Paper No. 6,1974. UNTS Vol. 1037 No. 15511. See R.N. Gardner (ed.), Blueprint for Peace, 1966, 154 et seq.; and R.L. Meyer, "Travaux Preparatoires for the UNESCO World Heritage Convention", Earth Law Journal 2 (1976), 45 et seq. Budget data in Yearbook of International Co-operation on Environment and Development (1998-1999), 148; see also D. Navid, "Compliance Assistance in International Environmental Law: Capacity-Building, Transfer of Finance and Technology", ZaoRV 56 (1996), 810 et seq. P.H. Sand, "Trusts for the Earth: New International Financial Mechanisms for Sustainable Development", in: W. Lang (ed.), Sustainable Development and International Law, 1995,167 et seq., (171).

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2. It was the 1990 London amendment of the Montreal Protocol on Substances That Deplete the Ozone Layer19 which for the first time formally entitled developing countries to obtain "subsidies"20 to cover the costs of their participation in (and their compliance with) a treaty designed to produce global environmental benefits.21 Amended article 10 established the Montreal Protocol Multilateral Fund (MPMF, initially at US$240 million, currently at US$540 million for 1997-1999),22 with contributions based on the UN assessment scale for all Parties whose annual consumption of controlled substances exceeds 0.3 kg per capita. Developing countries may claim from the Fund "all agreed incremental costs ... in order to enable their compliance with the control measures of the Protocol"; i.e. mainly for phase-out of ozone-depleting sub-

19

20

21

22

UNTS Vol. 1522 No. 26369 and Vol. 1684 No. 26369, ILM 26 (1987), 1541 et seq., and 30 (1991), 537 et seq. See generally R.E. Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet, revised edition 1998; E.A. Parsons, "Protecting the Ozone Layer", in: P.M. Haas, R.O. Keohane and M.A. Levy (eds), Institutions for the Earth: Sources of Effective International Environmental Protection, 1993, 49 et seq. N.C. Scott, "The Montreal Protocors Environmental Subsidies and Gatt: A Needed Reconciliation", Tex.Int'l L.J. 29 (1994), 211 et seq.; M. Bothe, "The Evaluation of Enforcement Mechanisms in International Environmental Law", in: R. Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, 1996, 13 et seq., (34), and J.B. Wiener, "Global Environmental Regulation: Instrument Choice in Legal Context", Yale L.J. 108 (1997), 677 et seq., (708). Note the preamble (para. 7) as amended in 1990: "The funds (to be provided by the MPMF) can be expected to make a substantial difference in the world's ability to address the scientifically established problem of ozone depletion and its harmful effects..." For a recent quantification see J. Armstrong, "Global Benefits and Costs of the Montreal Protocol", in: P.G. Le Prestre, J.D. Reid and E.T Morehouse Jr. (eds), Protecting the Ozone Layer: Lessons, Models, and Prospects, 1998, 173 et seq. Budget data in Yearbook of International Co-operation on Environment and Development (1998-1999), 79. See J.M. Patlis, "The Multilateral Fund of the Montreal Protocol: A Prototype for Financial Mechanisms Protecting the Global Environment", Cornell Int'l L.J. 25 (1992), 181 et seq.; A. Wood, "The Multilateral Fund for the Implementation of the Montreal Protocol", International Environmental Affairs 5 (1993), 335 et seq.; T. Gehring, Dynamic International Regimes: Institutions for International Environmental Governance, 1994, 287 et seq.; E.R. De Sombre and J. Kauffman, "The Montreal Protocol Multilateral Fund: Partial Success Story", in: Keohane and Levy , see note 6, 89 et seq.

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stances. "Agreed incremental costs"23 thus became a central concept for implementation of the treaty, and a catchword for subsequent drafting of the 1992 Rio Conventions,24 Agenda 21,25 and the restructured GEE26 While the MPMF was established under the auspices of UNEP as trustee,27 the "implementing agencies" are the World Bank, UNDP, UNEP and UNIDO.28 3. After a series of intergovernmental meetings and interagency contacts in 1989-1990, the World Bank's Board of Executive Directors in March 1991 established the Global Environment Facility (GEF),29 which according to its enabling instrument should "support programmes and activities for which benefits would accrue to the world at large while the country undertaking the measures would bear the cost, 23

24

25 26 27

28

29

In 1992, the Conference of the Parties to the Montreal Protocol adopted an "indicative list of categories of incremental costs", ILM 32 (1993), 874 et seq. On the difficulty of extrapolating the concept to other global agreements, see A. Jordan and J. Werksman, "Financing Global Environmental Protection", in: J. Cameron, J. Werksman and P. Roderick (eds), Improving Compliance with International Environmental Law, 1996, 214 et seq. P. Manzini, I costi ambientali nel diritto internazionale, 1996. Article 4 para.3 of the UN Framework Convention on Climate Change, and article 20 para.2 of the Convention on Biological Diversity, UNTS Vol. 1760 No. 30619 and Vol. 1771 No. 30822; ILM 31 (1992), 822 and 849. See note 7, para. 33.14 lit. a (iii). Article 2, ILM 33 (1994), 1283; see note 34. http://www.unmfs.org and http://www.unep.org/unep/secretar/ozone/ home.htm. On the question of the Fund's legal status, see note 83. Pursuant to a bilateral "Ozone Projects Agreement" with the MPMF Executive Committee, the World Bank established a separate "Ozone Projects Trust Fund" for that purpose; IBRD Resolution 91-5, Annex D and Supplement, ILM 30 (1991), 1770. IBRD Resolution 91-5, supplemented in October 1991 by tripartite procedural arrangements with UNDP and UNEP; ILM 30 (1991), 1735 et seq. See I.F.I. Shihata, "The World Bank and the Environment: A Legal Perspective", Maryland Journal of International Law and Trade 16 (1992), 1 et seq., (31); H. Sjoberg, From Idea to Reality: The Creation of the Global Environment Facility, GEF Working Paper No.10, 1994; S.A. Silard, "The Global Environment Facility: A New Development in International Law and Organization", Geo.Wash.J.Int'lL&Econ. 28 (1995), 607 et seq.; L. Boisson de Chazournes, "Le Fonds pour 1'environnement mondial: recherche et conquete de son identite", AFDI41 (1995), 612 et seq. and see also in this Volume; M. Ehrmann, "Die Globale Umweltfazilitat (GEF)", ZaoRV 57 (1997), 565 et seq.

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and which would not otherwise be supported by existing development assistance or environment programmes".30 Following pledges and burden-sharing arrangements among donor states for approximately US$ 1 billion during the pilot phase (raised to US$ 2 billion at a first replenishment in 1994, and to US$ 2.75 billion for the period from 1998 to 2001), the GEF - jointly operated by the World Bank, UNDP and UNEP — became the major international funding source for environmental projects in three focal areas: climate change, biological diversity, and international waters (including marine and freshwaters).31 In a fourth focal area (ozone layer protection), after unsuccessful proposals by some donor countries to merge MPMF and GEF,32 the GEF now supplements MPMF activities in countries not eligible for funding under the Montreal Protocol (i.e., mainly the countries of Eastern Europe and the former Soviet Union).33 Following its re-structuring in 199434 — on the basis of recommendations by the 1992 Rio Conference,35 prompted by criticism from developing countries in particular — the GEF was ultimately designated by the Conferences of the Parties to the 1992 Conventions on Climate Change and Biological Diversity to operate their "financial mechanisms".36 By contrast, the Conference of the Parties to the 1994 Convention to Combat Desertification In Those Countries Experiencing Se-

30

31

32

33 34

35 36

World Bank, Establishment of the Global Environment Facility, 1991; ILM 30(1991), 1739. See L. Jorgenson, "The Global Environment Facility: International Waters Coming into its Own", Green Globe Yearbook of International Cooperation on Environment and Development, 1997, 45 et seq. See I.H. Rowlands, "The Fourth Meeting of the Parties to the Montreal Protocol: Report and Reflection", Environment 35 (1993), 25 et seq., (28); and Gehring, see note 22, 306. See notes 67 and 121. Instrument for the Establishment of the Restructured Global Environment Facility (Geneva, 14 March 1994), ILM 33 (1994), 1283 et seq.; see H. Sjoberg, "The Global Environment Facility", in: J. Werksman (ed.), Greening International Institutions, 1996, 148 et seq.; and generally http://www. gefweb.org. Agenda 21, see note 7, para. 33.14 lit. a (iii). On the relationship with the two conventions, see note 80.


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rious Drought and/or Desertification,37 which had also envisaged the GEF for this task, eventually opted for the International Fund for Agricultural Development (IFAD) instead.38 More recently, in the context of negotiations for a new global agreement on persistent organic pollutants, operation of the future convention's financial mechanism by the GEF was again raised as a possibility.39 4. There is a fourth financial instrument which — albeit very much sui generis — is constitutionally geared to global environmental benefits: the Rain Forest Trust Fund (RFT) established in 1992 by the World Bank, to finance a pilot programme initiated by the G-7 group of countries for conservation of the Brazilian Amazon and Atlantic rain forests, with US$ 55.8 million pledged contributions to the core fund (as of 1998) and another US$ 324 million for related technical assistance projects from seven donor countries and the European Community, implemented under a 1994 bilateral framework agreement between Brazil and the World Bank (plans to share implementation with UNDP did not materialize).40 The objectives of the programme (preservation of biodiversity, reduction in carbon emissions, and new knowledge about sustainable activities in tropical rain forests) are described as representing "benefits that are global in scope and justify financial and technical transfers from the international community to Brazil".41 Although there 37

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39

40

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ILM 33 (1994), 1328 et seq.; see M. Bekhechi, "Une nouvelle etape dans le developpement du droit international de 1'environnement: la Convention sur la desertification", RGDIP 101 (1997), 32 et seq. As decided by the first Conference of the Parties, Rome 1997. Operation of the IFAD-hosted mechanism has not started so far, and the adoption of a Memorandum of Understanding with IFAD - UN Doc. ICCD/COP(2)/4, Add.l, as submitted to the second conference, Dakar 1998 - was deferred to the third COP, scheduled to be held at Recife/Brazil in November 1999. Meanwhile, the GEF continues to finance projects relating to deserts and land degradation to the extent that they fall within one of its four current focal areas; 1994 Instrument, article 3, see note 34. At the second meeting of the Intergovernmental Negotiating Committee in Nairobi (January 1999); see also the 1998 report to the GEF Council, "Relations with Conventions", GEF/C12/12 (1998). Sand, see note 18, 22 et seq.; GJ. Batmanian, "The Pilot Program to Conserve the Brazilian Rainforests", International Environmental Affairs 6 (1994), 3 et seq.; and World Bank, Rain Forest Pilot Program Update, Vol. 6 (1998). IBRD Resolution 92-2 (24 March 1992) establishing the Rain Forest Trust Fund, Attachment 2 (Background Note), para. 1.

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were initial proposals also to merge this fund with the GEF,42 its present operation is entirely separate and not associated with any multilateral environmental agreement.43 Nevertheless, the RFT offers useful lessons for generating global environmental benefits through a multipledonors/single-recipient arrangement, which could easily be replicated in other areas; e.g., at the recent tenth meeting of the Parties to the Montreal Protocol (Cairo, November 1998), ten donor countries pledged a special contribution of US$ 19 million to shut down Russian chlorofluorocarbon and halon production factories by the year 2000.44 5. The 1997 Kyoto Protocol to the UN Framework Convention on Climate Change45 paved the way for yet another variant of global ecofunding, this time involving the private sector as well. Pending further inter-governmental negotiations to specify the Protocol's provisions on "joint implementation" (article 6) and a "clean development mechanism" (article 12),46 the World Bank has announced plans to launch a Prototype Carbon Fund (PCF), as a closed-end mutual investment fund of US$ 100-120 million, to which industrialized countries and the busi-

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44

45

46

As in the case of desertification (see note 38), GEF funding of projects in the field of deforestation is possible within the context of the four focal areas, under article 3 of the 1994 Instrument; see note 34. The 1992 Rio Conference failed to produce the binding global forest convention then envisaged; see R. Tarasofsky, The International Forests Regime: Legal and Policy Issues, 1995, 2 et seq. International Institute for Sustainable Development (USD), Linkages Journal 4 (1999), 22. See note 24. Uncorrected text of the Protocol in ILM 37 (1998), 22 et seq.; corrected text at the website of the Bonn Secretariat, http://www.unfcc.de. See generally C. Breidenich, D. Magraw, A. Rowley and J.W. Rubin, "The Kyoto Protocol to the United Nations Framework Convention on Climate Change", AJIL 92 (1998), 315 et seq. From the vast and rapidly growing literature, e.g. see O. Kuik, P. Peters and N. Schrijver (eds), Joint Implementation to Curb Climate Change: Legal and Economic Aspects, 1994; A.G. Hanafi, "Joint Implementation: Legal and Institutional Issues for an Effective International Program to Combat Climate Change", Harvard Environmental Law Review 22 (1998), 441 et seq.; D.M. Driesen, "Free Lunch or Cheap Fix? The Emissions Trading Idea and the Climate Change Convention", Boston College Environmental Affairs Law Review 26 (1998), 1 et seq.; J. Werksman, "The Clean Development Mechanism: Unwrapping the 'Kyoto Surprise'", Review of European Community and International Environmental Law 7 (1998), 147 et seq.


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ness sector are expected to contribute on the basis of bilateral "participation agreements" (minimum US$ 10 million for public-sector and US$ 5 million for private-sector participants).47 The Bank, in cooperation with the International Finance Corporation (IFC) and possibly other multilateral financial institutions, is to reinvest those funds in developing countries and in Eastern Europe, through projects for carbon emission reduction and/or carbon offsets (e.g., reforestation) that would qualify as global benefits.48 The PCF could thus be a first step towards partial privatization of what has been termed the historic "environmental debt" of the North,49 even though we still are a long way from its fair redistribution and internalization in terms of global welfare economics.50

III. Common Characteristics 1. The "new generation of financial mechanisms"51 so outlined — which for the sake of convenience we may call ecofunds — is sufficiently dis-

47

48

49

50

51

World Bank, Information Document on the Prototype Carbon Fund, February 1999, 5 et seq.; see also World Bank, Environment Matters: Annual Review 1998, 53. For NGO criticism see D. Wysham, "The World Bank: Funding Climate Chaos", Ecologist 29 (1999), 108 et seq. Investors will receive carbon offset certificates (by a designated independent certifying company), as evidence of their efforts to comply with emission reduction targets, although any validation or "crediting" under arts. 6 or 12 of the Kyoto Protocol will be subject to the formal certification process being developed under the auspices of the Conference of the Parties; Di Leva, see note 3, 508 et seq., and notes 70 and 123. A. Al-Gain, "Agenda 21: The Challenge of Implementation", in: A. Kiss and F. Burhenne-Guilmin (eds), A Law for the Environment: Essays in Honour of Wolfgang E. Burhenne, 1994, 21 et seq., (25) (defining the historical imbalance of pollutant emissions as "a debt owed by the industrial nations to the global environment, and by extension, to the nations of the world whose future development [is] now imperiled"). See the rather gloomy appraisal by R. Falk, "Environmental Protection in an Era of Globalization", Yearbook of International Environmental Law 6 (1995), 3 et seq. L. Boisson de Chazournes, "Les mecanismes conventionnels d'assistance economique et financiere et le fonds pour 1'environnement mondial", in: C. Imperiali (ed.), L'effectivite du droit international de I'environnement, 1998,187 et seq., (190).

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tinct from other global instruments to constitute a category of its own, as a brief comparison with existing environment-related funds within the UN system shows: -

The 12 "Convention Trust Funds" established since 1978 under the auspices or at the initiative of UNEP for several regional and global treaties (with contributions currently totalling ca. US$ 20 million annually)52 were set up as administrative cost accounts for the operation of secretariat and meeting services,53 or as collection accounts for voluntary donations to support participation by developing countries.54 While the latter type of funds may indeed be considered as contributing to treaty implementation, their voluntary nature places them in the traditional category of (charitable) green aid discussed in Section I.55 Also in that category — albeit on the fringe of the UN System — is the Wetland Conservation Fund established in 1990 under the 1971 Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat56 (renamed the Ramsar Small Grants Fund in 1996, with contributions currently totalling less than half a million US$ annually)57 to assist

52

Sand, see note 18, 172 et seq.; and Sand, see note 84, 487 et seq. Special trust fund accounts (administered by the UNEP Environment Fund in Nairobi) for the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, the 1979 Convention on Conservation of Migratory Species of Wild Animals, the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and the trust funds set up for regional marine environment conventions in the Mediterranean (1976), the Gulf (1978), the West and East African coasts (1981 and 1985), and the Caribbean (1983). A similar trust fund account (administered by the UN Secretariat in New York) was set up for the 1979 UN/ECE Convention on Long-Range Transboundary Air Pollution (LRTAP), mainly for international administrative costs of the European Monitoring and Evaluation Programme (EMEP) pursuant to a 1984 protocol, UNTS Vol. 1491 No. 25638; ILM 24 (1985), 484 et seq. E.g., UNEP trust funds to finance attendance at Montreal Protocol meetings, see note 19; and for bilateral technical assistance under the Basel Convention, see note 60. See notes 4-8. UNTS Vol. 996 No. 14583; see M.J. Bowman, "The Ramsar Convention Comes of Age", Neth.Int'lL Rev. 42 (1995), 1 et seq., 40. Budget data in Yearbook of International Co-operation on Environment and Development (1998-1999), 158; Navid, see note 17, 815.

53

54

55 56

57


375

member countries in their conservation efforts for protected areas designated under the treaty. Though following the pattern of the WHF, the mechanism was never incorporated in the text of the Ramsar Convention, and contributions are voluntary only. -

The International Oil Pollution Compensation (IOPC) Funds, established in 1978-1996 (under the auspices of the IMO, London) pursuant to the 1971 Brussels Convention,58 serve rather different economic purposes, mainly risk distribution and insurance against major pollution accidents (with contributions based on oil shipments received and totalling, on average, ca. US$ 10 million annually to the general fund and ca. US$ 80 million to major claim accounts).59 That is also true of proposals for a similar liability/compensation and/or emergency fund under the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,60 or for a global general "super-fund" to cover the risks of other environmental accidents.61 2. On the other hand, the new ecofunds (WHF, MPMF, GEF, RFT, and eventually the PCF) do have a number of characteristic features in 58

59

60

61

International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage, UNTS Vol. 1110 No. 17146; on the separate fund set up pursuant to the 1992 London Protocol, see M. Jacobsson, "Oil Pollution Liability and Compensation: An International Regime", Uniform Law Review, New Series 1 (1996-2), 260 et seq. Supplementing the civil liability regime established by the 1969 Brussels Convention, UNTS Vol. 973 No. 14097, and related funds of the shipping industry (TOVALOP 1969 and CRISTAL 1971); ILM 8 (1969), 497 et seq., and 10 (1971), 137 et seq. See R. Ganten, International System for Compensation of Oil Pollution Damage, 1981; B.P. Herber, "Pigovian Taxation at the Supranational Level: Fiscal Provisions of the International Oil Pollution Compensation Fund", Journal of Environment and Development 6 (1997), 110 et seq.; Annual Report on the Activities of the International Oil Pollution Compensation Fund, 1998. ILM 28 (1989), 657 et seq.; see P. Lawrence, "Negotiation of a Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal", Review of European Community and International Environmental Law 7 (1998), 249 et seq., (252). See H. Smets, "COSCA: A Complementary System for Compensation of Accidental Pollution Damage", in: P. Wetterstein (ed.), Harm to the Environment: The Right to Compensation and the Assessment of Damages, 1997, 223 et seq.

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common, especially with regard to governance, burden-sharing and entitlement to funding. (a) Governance: The four existing global ecofunds operate under guidance from decision-making bodies reflecting a delicate North-South balance — the "semicircles syndrome" which also characterized UNCED:62 - The governing body of the WHF is the World Heritage Committee, composed of 21 members elected by the Parties to the Convention. Under the current "equitable representation" formula pursuant to article 8 para.2, 12 members represent developing countries and nine developed countries. According to article 13 para.8, all decisions that cannot be reached by consensus require a two-thirds majority of 14, hence both constituencies can effectively block a vote. - The governing body of the MPMF is the Executive Committee, composed of 14 members elected by the Parties to the Protocol, seven of which represent developing countries and seven "others". Pursuant to article 10 para.9, funding decisions that cannot be reached by consensus require a two-thirds majority and a majority within both constituencies. - The governing body of the GEF is the Council, composed of 32 members elected by the GEF participant states, 16 of which represent developing countries, 14 developed countries, and two "the countries of central and eastern Europe and the former Soviet Union" (article 16). According to article 25 lit.(c), decisions that cannot be reached by consensus require a "double weighted majority" including the votes representing 60% of all participants and 60% of all donors. - Even though the RFT has no institutional structure of its own, its governance reflects the same donor/recipient balance, as expressed in the 1994 bilateral framework agreement between the World Bank and Brazil as the host country (signature of which was delayed because of the constitutional requirement of prior approval by the Brazilian Senate). While operational decisions for project appraisal, approval and administration are made "in accordance with proce-

62

See P.H. Sand, "UNCED and the Development of International Environmental Law", Yearbook of International Environmental Law 3 (1992), 3 et seq., (15); Sand, "International Environmental Law After Rio", EJIL 4 (1993), 377 etseq., (389).


377

dures and practices of the Bank",63 policy guidance and periodic performance review is entrusted to annual meetings of the programme participants (the eight donors and Brazil, acting in consensus), with input from an International Advisory Group of scientific/technical experts. The new PCF — besides introducing an innovative form of private stakeholder participation (with three of the seven members of its Participation Committee coming from the business sector) — will follow a similar pattern, including prior project approval by each host country, and policy guidance from annual participants' meetings and an advisory Host Country Committee.64 (b) Burden-sharing: The sharing formula both of the WHF and the MPMF is based on variations of the UN scale of assessment (as periodically revised by the General Assembly), whereas GEF, RFT and the future PCF follow the practice of the International Development Association (IDA) where contribution shares are negotiated ad hoc and periodically re-negotiated at special replenishment meetings. The net result for the main contributors is of course different, though not fundamentally so, as the following comparison shows:65 1998 UN Assessment

1998 GEF Pledges

1998 RFT Shares

(% of regular UN budget) (% of all pledges to 1998)

(% of core funding)

USA Japan Germany France Italy United Kingdom

Germany European Union Japan USA Italy Netherlands

63

64 65

25.0 17.9 9.6 6.4 5.3 5.0

USA Japan Germany France United Kingdom Italy

21.3 20.5 11.9 7.1 6.7 5.7

34.7 25.3 12.2 9.8 7.0 5.7

Article 4 of the 1994 Framework Agreement, see note 40; i.e., ultimately under the weighted-voting system of the World Bank's 24-member Board of Executive Directors, where Brazil represents one of three Latin American constituencies. World Bank, see note 47,12. Adapted from the tables in United Nations Handbook 1998, 342 et seq., and in the GEF Draft Annual Report, GEF/C12/13 (1998), 57; RFT figures reflect trust fund contributions received by 1998. The excerpt from the UN scale of assessment omits Russia and is not prorated to the actual number of GEF donors; percentage figures have been rounded in both scales.

378


Canada Spain

etc.

2.8 2.5

Canada Netherlands

4.2 3.5

United Kingdom 4.1 Canada 1.2

etc.

There is one significant difference in burden-sharing between the WHF and the MPMF formula, which however affects the "minor" donors only: -

contributions to the WHF are due from all Parties to the Convention,66 regardless of their development status, and are fixed at the uniform level of 1% of each country's UNESCO membership fees (i.e., almost identical to the UN scale of assessment); — contributions to the MPMF are due only from Parties other than those "operating under Art.5(l)"; i.e., outside the list of developing countries (as determined from time to time by the Conference of the Parties) whose annual consumption of controlled substances is below the level of 0.3 kg per capita. Hence most (not all) developing countries are exempt from the obligation to contribute. While the overall contribution scale of the MPMF (the UN scale) is thus nominally unrelated to the ozone layer problem — except for the coincidence that the main donors happen to be the industrialized countries mainly responsible for the ozone hole, the lower end of that scale may indeed be said to reflect the "polluter pays" principle, by exempting the non-polluters. (c) Entitlement: Leaving aside here the somewhat unique case of the RFT (with its single recipient developing country), the other existing global ecofunds provide funding essentially on the basis of need; i.e., to economically disadvantaged countries in the "South" and in the former "East". - funding from the WHF is available, in principle, to all host countries of world heritage sites, regardless of their development status. Under article 21 para.l, however, funding requests must also give "reasons why the resources of the State requesting assistance do not allow it to meet all the expenses", which de facto rules out the developed countries. 66

Though giving countries an option between "compulsory" and "voluntary" contributions, the assessment system is in practice mandatory for both categories; S. Lyster, International Wildlife Law, 1985, 208 et seq., (230).


379

-

funding from the MPMF is restricted, in principle, to Parties "operating under Art. 5(1)"; i.e., developing countries not exceeding the specified consumption level for controlled substances. Under a bilateral agreement with the MPMF Executive Committee, however, the GEF provides equivalent funding to "otherwise eligible recipient countries that are not Article 5 countries, or whose activities, while consistent with the objectives of the Montreal Protocol, are of a type not covered by the Multilateral Fund," (i.e., especially countries in Eastern Europe and the former Soviet Union), provided they are Parties to the Protocol, have ratified the London amendments, and are in compliance with their obligations under the amended Protocol.67

-

funding from the GEF is restricted under article 9 to member countries of the conventions concerned, provided they are eligible for UN technical assistance or for IBRD/IDA loans/credits; i.e., are below the official "poverty line" of US$ 4,866 annual per capita income.68 As a somewhat different variant, the new Prototype Carbon Fund (PCF) will — in line with the country groups defined in the Framework Convention on Climate Change, and in view of arts 6 and 12 of the Kyoto Protocol69 — focus both on "countries undergoing the process of transition to a market economy" listed in Annex I of the Convention (i.e., Eastern Europe), and on "Parties not included in Annex I" (i.e., developing countries).70

IV. Apprehensions As might have been expected, these new financial incentives to induce compliance with global environmental agreements did not find unmitigated favour with all commentators. "Carrots" have been criticized on three counts: legitimacy, efficacy, and credibility. 67

68

69 70

GEF, Operational Strategy, 1996, 64; see P.H. Sand, "The Montreal Regime: Sticks and Carrots", in: Le Prestre, Reid and Morehouse, see note 21, 107 et seq., (109); and see note 120. GNP in 1993 dollars, as further illustrated by Silard, see note 29, 653 fn.194. See notes 24 and 45. See note 48. It is envisaged that there will be "a broad balance" in the number of PCF projects to be undertaken in the two country groups; World Bank, see note 47, 16.

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1. Lack of legitimacy? This critique has been leveled exclusively — and massively — at the GEF, largely because of its close association with the World Bank, which is still a favourite global villain for opinion-leaders in the environmental NGO community and the Third World.71 Suspicions of donor-domination remain, even though many of the early objections against the alleged "undemocratic", closed and topdown style of decision-making in the GEF pilot phase were at least partly met and remedied by its post-Rio re-structuring.72 In the wake of highly successful NGO pressures for policy reforms within the World Bank Group73 — through revised environmental policy directives and procedures, including the Independent Inspection Panel set up in 199374 — the GEF has become more responsive to the demands of developing countries and civil society representatives,75 to the point where it is now depicted as the environmentalists' Trojan horse in the Bretton Woods system.76 Certainly, the mandate of multilateral development banks to help implementing global environmental agreements is well-established.77

71

72 73

74

75

76

77

E.g., see V. Shiva, "Global Environment Facility: Perpetuating NonDemocratic Decision-Making", Third World Economics, 31 March 1993, 17 et seq.; B. Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development, 1994, 175 et seq.; and J. Gupta, "The Global Environment Facility in its North-South Context", Environmental Politics 4 (1995), 19 et seq. See note 34. See K. Horta, "The World Bank and the International Monetary Fund", in: Werksman (ed.), see note 34, 131 et seq.; LA. Bowles and C.F. Kormes, "Environmental Reform at the World Bank: The Role of the U.S. Congress", VaJ.Int'lL 35 (1995), 777 et seq., (836). IBRD Resolution 93-10, ILM 34 (1995), 503 et seq.; see I.F.I. Shihata, The World Bank Inspection Panel, 1994, 41 (confirming that the resolution also applies to GEF projects implemented by the World Bank). See Lin Gan, "The Making of the Global Environment Facility: An Actor's Perspective", Global Environmental Change 3 (1993), 256 et seq.; and J. Werksman, "Consolidating Governance of the Global Commons: Insights from the Global Environment Facility", Yearbook of International Environmental Law 6 (1995), 27 et seq. J.D. Werksman, "Greening Bretton Woods", in: P. Sands (ed.), Greening International Law, 1993, 65 et seq., (84). G. Handl, "The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development", AJIL 92 (1998), 642 et seq.


381

2. Lack of efficacy? This criticism has been raised both against the GEF and the MPMF, largely because of the sheer complexity of their institutional structure. Just how effective can a mechanism be that is operated jointly by three or more autonomous or semi-autonomous institutions within the UN System, whose internal rivalries have aptly been likened to those of medieval feudal barons;78 which is run by a governing body deliberately split into North-South caucus blocs;79 and which, on top of that, must take policy guidance from one or several Conferences of 150-plus Parties, under the terms of "Memoranda of Understanding" negotiated like diplomatic treaties?80 It sounds like a miracle that the two mechanisms should function at all; and yet they do, and not too badly, even when compared to institutions operating under a single treaty and a single organization like the WHF. While the pilot phase both of the MPMF and the GEF had received mixed evaluations,81 their present ratings are surprisingly positive.82 That is not to imply that all questions have been resolved — starting with the question of their legal status: -

In the case of the MPMF, the Conference of the Parties decided in 1994 to secure a higher degree of organizational autonomy by proclaiming the "juridical personality, privileges and immunities of the

78

B. Urquhart, A Life in Peace and War, 1987, 119: "There was, and is, as little chance of the Secretary-General coordinating the autonomous specialized agencies of the UN system as King John of England had of bringing to heel the feudal barons." See text following note 62. See R. Mott, "The GEF and the Conventions on Climate Change and Biological Diversity", International Environmental Affairs 5 (1993), 299 et seq.; Boisson de Chazournes, see note 51, 194 et seq.; and Ehrmann, see note 29, 599 et seq. The "MoU" formula bypassed the opinion of the UN Office of Legal Affairs as to the GEF's incapacity to conclude a more formal agreement; see note 85. See A. Wood, "The Global Environment Facility Pilot Phase", International Environmental Affairs 5 (1993), 219 et seq.; D. Fairman, "The Global Environment Facility: Haunted by the Shadow of the Future", in: Keohane and Levy , see note 6, 55 et seq.; De Sombre and Kauffman, see note 22. See the report of the second independent evaluation carried out prior to the 1998 replenishment of the GEF: G. Porter, R. Clemencon, W. OfosuAmaah and M. Philips, Study of GEF's Overall Performance, December 1997. On the MPMF, see F. Biermann, "Financing Environmental Policies in the South: Experiences from the Multilateral Ozone Fund", International Environmental Affairs 9 (1997), 179 et seq.

79 80

81

82

382


Multilateral Fund", which boldly purported to constitute a UN subsidiary body as a "body under international law".83 The legal status of the restructured GEF — based on a governmentally-authorized interagency agreement among UNEP, UNDP and the World Bank84 — also is not uncontroversial: Whereas the UN Office of Legal Affairs defines it as "a subsidiary body of the World Bank and the United Nations, acting through UNDP and UNEP, ... [without] legal capacity to enter into legally binding arrangements or agreements",85 others describe it as an international organization with its own legal personality,86 or at least a "quasi-international organization".87 3. Lack of credibility? Perhaps one of the most perplexing question marks for all global ecofunds relates to their role as instruments to promote conformity with international law. Claims to the effect that financial carrots are a legitimate method of "active treaty management" and transition towards progressive compliance (the so-called "managerial" and "transformational" schools of thought)88 have recently been chal-

83

84

85

86

87

88

Decision VI/16, Yearbook of International Environmental Law 5 (1994), 937. The language of the decision not withstanding, the Fund's legal personality presumably remains that of the United Nations, even though the MPMF may have the legal capacity to enter into contracts, to acquire property and to institute legal proceedings. See P.H. Sand, "The Potential Impact of the Global Environment Facility of the World Bank, UNDP and UNEP", in: Wolfrum, see note 20, 479 et seq.; and J. Werksman, "Consolidating Governance of the Global Commons: Insights from the Global Environment Facility", Yearbook of International Environmental Law 6 (1995), 48 et seq. Memorandum to the Executive Secretary of the UN Framework Convention on Climate Change, 23 August 1994, annexed to Doc. A/AC.237/74 (1994); Text in: P.H. Sand, The Role of International Organizations in the Evolution of Environmental Law, UNITAR, 1997, 69 et seq.; Boisson de Chazournes, see note 29, 621; Ehrmann, see note 29, 593. H.G. Schermers and N.M. Blokker, International Institutional Law, 3rd edition 1995, 27; and A. Klemm, "Die Global Environment Facility", Recht der International Wirtschaft44 (1998), 921 et seq., (922). Silard, see note 29, 644. Perhaps the term should be "international quasiorganization". A. Chayes and A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 1996; R.B. Mitchell, "Compliance Theory: an Overview", in: Cameron, Werksman and Roderick, see note 23, 3 et seq.; M.A. Levy, O.R. Young and M. Ziirn, "The Study of Interna-


383

lenged by more conservative calls for strict observance of treaty rules and coercive means to secure respect for the principles of good faith and pacta sunt servanda, also in the field of global environmental regimes (the so-called "political economy theory of enforcement").89 To these critics, "side payments"90 (which some would call bribes) to reward certain states for meeting their legal obligations would amount to "subsidized compliance",91 thereby "undermining the credibility of international environmental law."92 Without the promise of financial aid for their participation, however, the countries of the South, China and India in particular, "would not have signed up to the Montreal Protocol, thereby undermining the ozone regime's global reach,"93 and without the prospect of losing their GEF funding, the countries of Eastern Europe and the former Soviet Union would simply continue their lucrative free-riding production of ozone-depleting substances.94 In the face of this dilemma, the granting of "selective incentives"95 to these reluctant parties has been justified by

89

90

91

92

93

94

95

tional Regimes", European Journal of International Relations 1 (1995), 267 et seq., (283). G.W. Downs, D.M. Roche and P.N. Barsoon, "Is the Good News About Compliance Good News About Cooperation?", International Organization 50 (1996), 379 et seq.; G.W. Downs, "Enforcement and the Evolution of Cooperation", Mich.J.Int'lL 19 (1998), 319 et seq. P.T. Stoll, "The International Environmental Law of Cooperation", in: Wolfrum (ed.), see note 20, 39 et seq., (80), using a term introduced in international regime analysis by A. Underdal, The Politics of International Fisheries Management: The Case of the North-East Atlantic, 1980, 36. U. Beyerlin and T. Marauhn, Law-Making and Law Enforcement in International Environmental Law after the 1992 Rio Conference, 1997, 160 (para. 26: "bezahlte Rechtsbeachtung" in the German original). T. Marauhn and M. Ehrmann, "Workshop on 'Institution-Building in International Environmental Law: Summary of the Discussion", ZaoRV 56 (1996), 821 et seq., (827). R. Falkner, "The Multilateral Ozone Fund of the Montreal Protocol", Global Environmental Change 8 (1998), 171 et seq., (173); and H.F. French, Partnership for the Planet: An Environmental Agenda for the United Nations, Worldwatch Paper No. 126, 1995, 24. See D. Brack, International Trade and the Montreal Protocol, 1996, 99 et seq.; and see note 120. The term goes back to M. Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, revised edition 1971, 51; and M. Olson,

384


reference to the "common but differentiated responsibilities" formulated in Principle 7 of the 1992 Rio Declaration on Environment and Development96 and article 3 para.l of the Convention on Climate Change.97 The Rio package was indeed bargained between groups of states,98 as a "multipartite-bilateral" deal (to use Lord McNair's treaty typology)99 not unlike global commodity agreements that are negotiated between producer and consumer countries;100 i.e., based on synallagmatic (if asymmetric) equivalence — rather than identity — of the two groups' respective obligations. The resulting preferential treatment ("double standards", or "positive discrimination")101 reserved for eco-

96

97

98

99 100

101

The Rise and Decline of Nations, 1982, 21. See P.H. Sand, Lessons Learned in Global Environmental Governance, 1990, 6. Text in the Report of UNCED, see note 7, 4. The wording of the principle was based in part on a statement by the 1991 OECD Ministerial Meeting in Paris, Yearbook of International Environmental Law 2 (1991), 529 (Doc. 24, para.5). Even so, the US delegation at Rio reserved its position on this and other principles of the Declaration, see Doc.A/CONF.l51/26, Vol. IV (1993), para. 16, and J. Kovar, "A Short Guide to the Rio Declaration", Colo.J.Int'l EnvtLL&Pol'y 4 (1993) 119 et seq. See also Institut de Droit International, Resolution on Procedures for the Adoption and Implementation of Rules in the Field of the Environment, Strasbourg 1997, article 4 (noting "the differences in the financial and technological capabilities of States and their different contribution to the environment problem"). See note 24; R. Wolfrum, "Means of Ensuring Compliance With and Enforcement of International Environmental Law", RdC 1998, (forthcoming), conclusions. Sand, see note 62, 8; see also R. Ricupero, "Chronicle of a Negotiation: The Financial Chapter of Agenda 21 at the Earth Summit", Colo.J.Int'l EnvtLL&Pol'y 4 (1993), 81 et seq.; and B.I. Spector, "The Search for Flexibility on Financial Issues at UNCED: An Analysis of Preference Adjustment", in: B.I. Spector, G. Sjostedt and I.W. Zartman, Negotiating International Regimes: Lessons Learned from the United Nations Conference on Environment and Development, 1994, 87 et seq. A. McNair, The Law of Treaties, 1961, 29. E.g., the 1994 International Tropical Timber Agreement, ILM 33 (1994), 1014 et seq.; D. Konig, "New Approaches to Achieve Sustainable Management of Tropical Timber", in: Wolfrum, see note 20, 337 et seq., (352). K. Kummer, "Providing Incentives to Comply With Multilateral Environmental Agreements: An Alternative to Sanctions?", European Environmental Law Review 3 (1994), 256 et seq., (260); W. Lang, "Is the Protection of the Environment a Challenge to the International Trading System?", Geo.Int'lEnvtl. LRev. 7 (1995), 463 et seq., (475).


385

nomically disadvantaged treaty partners was part of the price paid for universal participation.102

V. Quid Pro Quo This equitable North-South deal is formally secured by reservations of reciprocity,103 such as article 4 para.7 of the Climate Change Convention, stipulating that "the extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology../'104 That provision creates an "explicit linkage"105(a jttnctim, as it were106) between specific substantive obligations of developing countries and the donor countries' promise of financial and technical assistance. Hence non-compliance by the donors would empower the developing countries to retaliate by postponing107 or suspending108 their own implementation.

102

103

104

105

106 107 108

See generally D.M. Magraw, "Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms", Colo.J.Int'l Envtl.L.& Pol'y 1 (1990), 69 et seq.; V.P. Nanda, "International Environmental Protection and Developing Countries' Interests: The Role of International Law", TexJnt'lLJ. 26 (1991), 497 et seq.; J. Ntambirweki, "The Developing Countries in the Evolution of International Environmental Law", Hastings Int'l&Comp.L.Rev. 14 (1991), 905 et seq.; H. Beck, Die Differenzierung von Rechtspflichten in den Beziehungen zwischen Industrie- und Entwicklungslandern, 1996. See generally B. Simma, "Reciprocity", in: R. Bernhardt (ed.), Encyclopedia of Public International Law, 7 (1984), 400 et seq., and Vol. 4, 1999, 29 et seq.; and R.O. Keohane, "Reciprocity in International Relations", International Organization 40 (1986), 1 et seq. Article 20 para.4 of the Biodiversity Convention is almost identical (see note 24), as both are based on similar language in article 5 para.5 of the Montreal Protocol as amended in 1990 (see note 19). D. Hunter, J. Salzman and D. Zaelke, International Environmental Law and Policy, 1998,472. Klemm, see note 86, 925. Stoll, see note 90, 90. Boisson de Chazournes, note 29, 630 ("condition a effet suspensif").

386


It has been argued that the donors' default, if not entitling an individual developing country to "automatic delinkage",109would at least trigger a collective non-compliance procedure yet to be defined.110 Meanwhile, however, article 5 para.6 of the Montreal Protocol clearly entitles an individual developing country to invoke the donors' default as a valid "exculpation" for its own non-compliance.111 The debate thus turns on the general question of permissible countermeasures for breach of a multilateral treaty — a matter where the 1969 Vienna Convention on the Law of Treaties112 offers disappointingly and notoriously scant guidance.113 One generally accepted qualification is the proportionality of such countermeasures.114 Presumably, retaliatory suspension of compliance by a developing country based on donors' default should be confined to the type of implementation measures that were intended to be covered by donor funds; e.g., the categories of measures listed in the "indicative list" of incremental costs.115 Non-compliance limited to this specific range of treaty obligations — i.e., within the agreed synallagmatic scope of arts. 5 para.5 Montreal Protocol, 4 par.7 Climate Change Convention, and 20 para.4 Convention on Biological Diversity — may indeed be a legitimate exercise of reciprocity rights, and hence — by analogy 109

110

111 112 113

114

115

L. Boisson de Chazournes, "The United Nations Framework Convention on Climate Change: On the Road Towards Sustainable Development", in: Wolfrum (ed.), see note 20, 285 et seq., (299). Beyerlin and Marauhn, see note 91, 129; see also T. Marauhn, "Towards a Procedural Law of Compliance Control in International Environmental Relations", ZaoRV 56 (1996), 696 et seq.; and J. Werksman, Responding to Non-Compliance under the Climate Change Regime, OECD Information Paper, OECD: Paris 1998. Beyerlin and Marauhn, see note 91,130. UNTS Vol. 1155 No. 18232; ILM 8 (1969), 679 et seq. Simma, see note 12, 352; and Simma, "Reflections on Article 60 of the Vienna Convention on the Law of Treaties and Its Background in General International Law", OZoRV 20 (1970), 5 et seq. See also D.W. Bowett, "Economic Coercion and Reprisals by States", Va.J.Int'lL 13 (1972), 1 et seq., (11); and K. Sachariew, "State Responsibility for Multilateral Treaty Violations: Identifying the 'Injured State' and Its Legal Status", NILR 35 (1988), 273 et seq. See M. Koskenniemi, "Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol", Yearbook of International Environmental Law 3 (1992), 123 et seq., (140, 153). See note 23.


387

with article 5 par.6 Montreal Protocol — would in turn exonerate developing countries Parties to the Climate Change and Biodiversity Conventions from the normal consequences of a breach of treaty.116 Conversely, operation of these new financial instruments also highlights another aspect of negative ("tit-for-tat") reciprocity which is already evident in the "case law" of the GEF Council, in response to recommendations by the Montreal Protocol's Implementation Committee:117 If the granting of funds for compliance assistance is an effective incentive, the withholding of such financial support is an equally effective collective countermeasure against the recipient's non-compliance,118 and hence adds a new category of "selective disincentives" to the arsenal of available treaty sanctions.119 The issue arose in two of the first cases considered by the Committee,120 and led to at least temporary suspension of GEF funding for Russia, under the Operational Strategy rule which makes funding contingent upon full compliance with the Protocol.121

116

117

118

119

120

121

See generally S. Rosenne, Breach of Treaty, 1985; and J. Setear, "Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility", Va.L.Rev. 83 (1997), 1 et seq. See D.G. Victor, "The Operation and Effectiveness of the Montreal Protocol's Non-Compliance Procedure", in: D.G. Victor, K. Raustiala and E.B. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments, 1998,137 et seq.; Sand, see note 84,496. M.E. O'Connell, "Enforcing the New International Law of the Environment", GYIL 35 (1992), 293 et seq., (319) (withholding of financial assistance as "retorsion"). See note 95. On the need to keep a balance of incentives and disincentives to discourage free-riding, see H.F. Chang, "Carrots, Sticks, and International Externalities", International Review of Law and Economics 17 (1997), 309 et seq., (320). On the need also to keep the "stick" of general international legal sanctions for breach of a treaty, see M. Koskenniemi, "New Institutions and Procedures for Implementation Control and Reaction", in: Werksman, see note 34, 236 et seq., (248) (quoting Sir Robert Jennings). Decisions VII/15-19 (1995) and VIII/22-25 (1996); Victor, see note 117, 155 et seq.; J. Werksman, "Compliance and Transition: Russia's Non-Compliance Tests the Ozone Regime", ZaoRV 56 (1996), 750 et seq. See note 67. However, at their tenth meeting (Cairo, November 1998), the Parties to the Montreal Protocol recommended continued GEF assistance for eight successor countries of the former Soviet Union, while cautioning

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Along the same lines, article 6 para.l lit.(c) of the 1997 Kyoto Protocol has added a new "compliance conditionality V22 so as to withhold any certification of emission credits from countries not in compliance with their other treaty obligations — a built-in default clause which may soon become applicable to carbon offset projects financed by the World Bank's new PCF, too.123 That trend is confirmed by the recent practice of the WHF, where reporting duties and compliance controls — in return for financial assistance — are gradually being tightened,124 or "deepened", in the jargon of enforcement theory.125 The lesson, then, is not only that it is often difficult in global environmental regimes to tell a carrot from a stick;126 paradoxically, what may have seemed like a carrot when granted tends to become a stick when denied.

122 123

124

125

126

them that stricter measures will be imposed if they do not adhere to their new benchmarks for phase-out of ozone-depleting substances; USD, see note 44. See note 45; Werksman, see note 46, 156. See notes 48 and 70. Pursuant to its Operational Manual Statement on Environmental Aspects of Bank Work (OMS 2.36, May 1984, para. 9 lit. e), the World Bank "will not finance projects that contravene any international environmental agreements to which the member country concerned is a party"; Text in: I.F.I. Shihata, The World Bank Inspection Panel, 1994, 137 et seq. (141). Sand, see note 84, 493; Handl, see note 77, 658; and I.F.I. Shihata, "Implementation, Enforcement and Compliance With International Environmental Agreements: Practical Suggestions in Light of the World Bank's Experience", Geo.Int'l EnvtiLRev. 9 (1997), 37 et seq. (47). See the Resolution on Periodic Reporting adopted by the 29th General Conference of UNESCO, as transmitted to the World Heritage Committee at its 21st Session, Naples 1997, WHC-97/CONF.208/17, Annex V. Downs, see note 89, 332 et seq., (342) (sequentially increased "depth of cooperation"). E.g., the Montreal Protocol's ban on trade with non-Parties — the "stick" of article 4 para.l, see note 19 — may also be viewed as a "carrot", since it promises access to inter-party trade; Sand, see note 2, 10 fn. 57; A. Enders and A. Porges, "Successful Conventions and Conventional Success: Saving the Ozone Layer", in: K. Anderson and R. Blackhurst (eds), The Greening of World Trade Issues, 1992, 134 et seq.

International Courts and the Application of the Concept of "Sustainable Development" Philippe Sands

I. Introduction In 1992, at the United Nations Conference on Environment and Development (UNCED), States adopted the Rio Declaration on Environment and Development. Principle 27 of the Rio Declaration states: "States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development." The language of Principle 27 is premised on the view that even at the time of its adoption there existed a body of "international law in the field of sustainable development". However, Principle 27 does not indicate the content of that law, in particular whether it is procedural or substantive or both, or where it's content may be identified. Shortly after the adoption of the Rio Declaration a group of independent legal experts sought to identify its content, on the basis of a review of legal and policy instruments and the international practice of States (which was then, and remains now, somewhat limited). The group concluded that "the concept of 'sustainable development' is now established in international law, even if its meaning and effect are uncertain. It is a legal term which refers to processes, principles and objectives, as well

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Max Planck UNYB 3 (1999) as to a large body of international agreements on environmental, economic and civil and political rights".1

I have previously sought to review what these processes, principles and objectives might be. My conclusion was that "international law in the field of sustainable development" coalesced around "a broad umbrella accommodating the specialised fields of international law which aim to promote economic development, environmental protection and respect for civil and political rights. It is not independent and free-standing of principles and rules, and it is still emerging. As such, it is not coherent or comprehensive, nor is it free from ambiguity or inconsistency. [...] The significance of the UNCED process is not that it has given rise to new principles, rules or institutional arrangements. Rather, it endorses on behalf of the whole of the international community (states, international institutions, non-governmental actors) an approach requiring existing principles, rules and institutional arrangements to be treated in an integrated manner."2 At the time of writing the term "sustainable development" had not been the subject of international judicial consideration. Subsequently, "sustainable development" has found expression in a number of new international instruments and is regularly invoked to support all manner of positions which states seek to justify. "Sustainable development" has also now been invoked before bodies charged with resolving international disputes, including the ICJ and the Appellate Body of the World Trade Organisation. The purpose of this short comment is to consider what, if anything, the jurisprudence of those two bodies has added to our understanding of "sustainable development".

II. International Court of Justice Before the ICJ the concept of "sustainable development" received its first through airing in the case concerning the Gabcikovo-Nagymaros

See Foundation for International Environmental Law and Development, "Report of the Consultation on Sustainable Development: the Challenge to International Law", Review of European Community and International Environmental Law 3 (1994), 1 et seq. See P. Sands, "International Law in the Field of Sustainable Development", BYIL LXV (1994), 303 et seq., (379) (emphasis added).

Sands, International Courts and the Concept of "Sustainable Development" 391

project, between Hungary and Slovakia.3 The case concerned a dispute over whether or not to build two barrages on the Danube shared by Hungary and Czechoslovakia. In 1977, by treaty, the two countries had agreed to build two barrages which would then be jointly operated. The 1977 Treaty envisaged the diversion of waters from the Danube, where it was a boundary river, onto Czechoslovak territory and the operation of a the dual system of barrages by "peak-power" (rather than "run-ofriver" mode). Construction began and proceeded more slowly than had been originally envisaged. In the mid-1980s political opposition in Hungary focused on the environmental aspects of the barrage as a means of achieving broader political change. In May 1989, great public pressure led Hungary to suspend work on large parts of the project. The two countries sought to reach an agreement as to how to proceed. Both were intransigent and committed to different approaches. Czechoslovakia took the view that the barrages posed no serious threat to the environment, Hungary was certain they would lead to significant environmental harm to water supplies and to biodiversity. Absent an agreed resolution of the problem, and in the face of Hungary's refusal to continue work on the project, in 1991 Czechoslovakia proceeded unilaterally to implement what it termed a "provisional solution" (referred to as "Variant C"), comprising a single barrage on the Czechoslovakian side, but requiring the diversion of some 80% of the shared water and its territory. It argued that this was justified by the 1977 Treaty which, in effect, gave it rights over that amount of water for the purposes of operating a barrage on its side. As "Variant C w proceeded in late 1991 and early 1992 Hungary took the view that it had no option but to terminate the 1977 Treaty, which apparently provided the sole basis upon which Czechoslovakia claimed to be able to proceed to its unilateral and provisional solution. In May 1992 Hungary purported to terminate the 1977 Treaty. A complicated situation which was made no easier when, in January 1993, Czechoslovakia split into two countries, with the Czech Republic and Slovakia agreeing as between themselves that Slovakia would succeed to ownership of the Czechoslovak part of the project. In the meantime, in October 1992 Czechoslovakia had dammed the Danube and diverted over 80 per cent of the waters of the Danube into a bypass canal on Slovak ter-

ICJ Reports 1997, 7 et seq. The Court had previously referred to Principle 24 of the Rio Declaration on Environment and Development in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq., (242).

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ritory. In April 1993, largely under the pressure of the Commission of the European Communities, Hungary and Slovakia agreed to refer the matter to the ICJ. The Court was presented with an opportunity to address a wide range of international legal issues, including the law of treaties, the law of state responsibility, the law of international watercourses, the law of the environment, and the inter-relation of these areas. The Court was specifically asked to address three questions posed by the parties. What did it rule? First, it found on the facts that Hungary was not entitled in 1989 to suspend or terminate — on environmental grounds — work on the joint project. Second, it ruled that Czechoslovakia (and subsequently Slovakia) was not entitled to operate from October 1992 a unilateral solution diverting the Danube without the agreement of Hungary (although it ruled that construction prior to operation was not unlawful). Third, the Court went on to say that Hungary was not entitled in May 1992 to terminate the 1977 Treaty, which remained in force to this day. As to the future, the Court indicated the basis for cooperation and agreement which it hoped the Parties might pursue, suggesting that the preservation of the status quo — one barrage not two, jointly operated, no peak power — would be an appropriate solution, in effect rewriting the 1977 Treaty. It was in relation to future arrangements that the majority of the Court invoked the "concept of sustainable development" to suggest a way forward. Specifically, what it said was this "Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities, but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development."*

Ibid., 78 (para. 140) (emphasis added).


The Court followed this by concluding, in the same paragraph of the Judgment, that "For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river." At least three aspects of what the Court said are to be noted. First, the fact that it invokes "sustainable development" at all, indicates that the term has a legal function. Second, "sustainable development" is a "concept" and not a principle or a rule. And third, as a "concept" it has both a procedural/temporal aspect (obliging the parties to "look afresh" at the environmental consequences of the operation of the plant) and a substantive aspect (the obligation of result to ensure that a "satisfactory volume of water" be released from the by-pass canal into the main River and its original side arms). The Court does not, however, indicate the content of the procedural/temporal requirement (for example does this require a formal or informal environmental impact assessment? And if so, according to what standards?) or the factors for determining whether the volume of water flowing in the Danube would be said to be satisfactory. Paragraph 140 is cryptic, to say the least. During the course of written arguments both sides had invoked "sustainable development" to justify their positions.5 The pleadings will repay a careful study, since they reflect the inherent malleability and uncertainty of the term. Hungary invoked "sustainable development" to justify its view that there should be no barrages, whereas for Slovakia the "concept" justified the opposite conclusion, namely that "sustainable development" could only 5

See e.g. Slovakia: "It is clear from both the letter and the spirit of these principles that the overarching policy of the international community is that environmental concerns are not directed to frustrate efforts to achieve social and economic development, but that development should proceed in a way that is environmentally sustainable. Slovakia submits that these have been, and are today, the very policies on which the G/N Project is based." (Counter-Memorial, para. 9.56). In reply, Hungary takes the opposite view to support its argument that the G/N Project is unlawful: "Well-established ... operational concepts like "sustainable development" ... help define, in particular cases, the basis upon which to assess the legality of actions such as the unilateral diversion of the Danube by Czechoslovakia and its continuation by Slovakia." (Hungarian Reply, para. 3.51).

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be achieved if both barrages envisaged by the 1977 Treaty were constructed. It might be said that Hungary focused on the environmental aspect of the concept whilst Slovakia focused on its "developmental" elements. For its part the Court invokes the concept to achieve an accommodation of views and values whilst leaving to the parties the task of fleshing out the harder practical consequences. The Court appears to use the concept to build a bridge, justifying a conclusion other than that which would tend to flow directly from its earlier reasoning and conclusions, namely that with its finding that the 1977 Treaty remained in force Hungary ought logically to be required to construct the second barrage at Nagymaros.6 To be clear, the Court did not rely exclusively on "sustainable development" to justify this conclusion, having found as a matter of fact that Slovakia itself had concede that no second barrage was now necessary.7 "Sustainable development" was used to fortify that conclusion and provide some guidance as to its consequences. Beyond paragraph 140 the Court provided no further assistance as to the status of "sustainable development" in international law, or its practical consequences, beyond the fact that it was to fulfil a function of integrating the potentially competitive societal objectives of environment and development. Perhaps some assistance as to what the Court might have had in mind may be gleaned from the Separate Opinion of Judge Weeramantry, who joined in the majority judgement, and whose hand may have guided the drafting of paragraph 140. According to Judge Weeramantry the Gabcikovo-Nagymaros case offered a unique opportunity for the application of the "principle" of sustainable development, focusing attention "as no other case has done in the jurisprudence of the Court, on the question of the harmonisation of developmental and environmental concepts".8 The principle fulfilled a harmoOr, as two other authors have put it: "What is perhaps more remarkable, however, is that the Court, despite its endorsement of a treaty regime that smacked of unsustainability, went on to invoke sustainable development in order to miraculously salvage something from a sinking ship": S. Stec and G. Eckstein, "Of Solemn Oaths and Obligations: Environmental Impact of the ICJ's Decision in the Case Concerning the Gabcikovo-Nagymaros Project" , Yearbook of International Environmental Law 8 (1997), 41 et seq., (47). "Equally, the Court cannot ignore the fact that, not only has Nagymaros not been built, but that, with the effective discarding by both panics of peak power operation, there is no longer any point in building it", ICJ Reports 1997, 7 et seq., (76 para. 134). Ibid., 90.


nising and reconciling function, requiring development and environment to be treated in a balanced way to avoid "a state of normative anarchy"9 "It is thus the correct formulation of the right to development that that right does not exist in the absolute sense, but is relative always to its tolerance by the environment. The right to development as thus refined is clearly part of modern international law. It is compendiously referred to as sustainable development."10 Judge Weeramantry traces the emergence of "sustainable development", noting its roots in the early 1970s, through to the "considerable endorsement" which it has received from all sections of the international community and which amounts to "a wide and general recognition of the concept".11 For him the principle of sustainable development is "a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community",12 and has "a significant role to play in the resolution of environmentally related disputes",13 providing "an important principle for the resolution of tensions between two established rights",14 within the fields of human rights, state responsibility, environmental law, economic and industrial law or other matters. It reaffirms, he says, "in the area of international law that there must be both development and environmental protection, and that neither of these rights can be neglected".15 Judge Weeramantry notes also that the concept of sustainable development is one recognised in traditional legal systems.16 In sum, it is "not merely a principle of modern international law. It is one of the most ancient of ideas in the human heritage. Fortified by the rich insights that can be gained from millennia of human experience, it has an important part to play in the service of international law".17

9 10 11 12 13 14 15 16 17

Ibid. Ibid., 92. Ibid., 93. Ibid., 95. Ibid. Ibid. Ibid. Ibid., 98. Ibid., 110, 111.

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These words provide some illumination of the place which "sustainable development" may have in the international legal order, but does not indicate with any degree of precision how reconciliation or harmonisation are to be achieved or how, on the facts of this case, one barrage rather than two might better achieve the objective of "sustainable development". This of course is not a criticism, but rather a comment on the difficulties posed for the judicial function of measuring and then balancing competing objectives. In this sense the term "sustainable development" appears useful as a means of bridging two views without necessarily having to provide close reasoning as to method or outcome.

III. WTO Appellate Body By way of contrast, the approach of the ICJ may be compared with that of the Appellate Body of the World Trade Organisation in the subsequent case concerning the import prohibition imposed by the United States on Certain Shrimp and Shrimp Products from India, Malaysia, Pakistan and Thailand, on the grounds that they were harvested in a manner which adversely affected endangered sea turtles.18 In 1987 the United States had issued regulations (pursuant to its 1973 Endangered Species Act) requiring all United States registered shrimp trawl vessels to use approved turtle excluder devices (TEDs) in specified areas where there was a significant mortality of sea turtles in shrimp harvesting. TED's allowed for shrimp to be harvested without harming other species, including sea turtles. The United States regulations became fully effective in 1990, and were subsequently modified to require the general use of approved TEDs at all times and in all areas where there was a likelihood that shrimp trawling would interact with sea turtles. In 1989 the United States enacted Section 609 of Public Law 101-162, which addressed the importation of Certain Shrimp and Shrimp Products. Section 609 required the United States Secretary of State to negotiate bilateral or multilateral agreements with other nations for the protection and conservation of sea turtles. Section 609(b)(l) imposed (not later than 1 May 1991) an import ban on shrimp harvested with the commercial fishing technology which may adversely affect sea turtles. Further regulatory guidelines were adopted in 1991, 1992 and 1996, governing inter alia annual certifications to be provided by harvesting nations. In broad terms, certification was to be granted only to those 18

AB-1998-4, 12 October 1998; ILM 33 (1999), 118 et seq.


harvesting nations which provided documentary evidence of the adoption of a regulatory programme to protect sea turtles in the course of shrimp trawling. Such a regulatory programme had to be comparable to the programme of the United States, with an average rate of incidental taking of sea turtles by their vessels which should be comparable to that of the United States vessels. The 1996 guidelines further required that all shrimp imported into the United States had to be accompanied by a shrimp exporter's declaration attesting that the shrimp was harvested either in the waters of the nation certified under Section 609, or under conditions that did not adversely affect sea turtles, including through the use of TEDs. From a WTO perspective the difficulty was that the United States was, in effect, applying its conservation laws extraterritorially to activities carried out within — or subject to the jurisdiction of — third states. This, of course, raises an issue of general international law, namely the circumstances (if any) in which a state may apply its conservation measures to activities taking place outside its territory or jurisdiction, including by non-nationals. The United States sought to justify its actions on the grounds that the sea turtles it was seeking to protect were recognised in international law as being endangered. The United States legislation was challenged by India, Malaysia, Pakistan and Thailand. At first instance a WTO Panel19 concluded that the import ban applied on the basis of Section 609 was not consistent with Article XI: 1 of GATT 1994 and could not be justified under Article XX of GATT 1994.20 The United States appealed to the WTO Appellate Body, invoking in particular Article XX(g) to justify the legality of its measures. Article XX(g) permits, as an exception to the GATT rules, measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption". In appraising Section 609 under Article XX of GATT 1994 the Appellate Body followed a three-step analysis. First, the Appellate Body asked whether the Panel's approach to the interpretation of Article XX was appropriate; and it concluded that the Panel's reasoning was flawed and "abhorrent to the principles of interpretation we are bound to apply" (paras. 112-124, at 121). Second, the Appellate Body asked whether Section 609 was "provisionally justified" under Article XX(g). Invoking the concept of "sustainable development", it found that it was so justified (paras. 125145). And third, it asked whether Section 609 met the requirements of 19

20

See in this respect also under IV., 14 the article of A. Ziegler in this Volume. WT-DS58/R of 15 May 1998.

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the chapeau of Article XX, concluding that it did not because the US actions imposed an "unjustifiable discrimination" and an "arbitrary discrimination" against shrimp to be imported from India, Malaysia, Pakistan and Thailand. It is in relation to the second and third steps that the Appellate Body invokes the principle of "sustainable development", as an aid to interpretation. The Appellate Body's approach is premised upon an application of the "customary rules of interpretation of public international law" as required by article 3 para.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), which rules "call for an examination of the ordinary meaning of the words of a treaty, read in their context, and in the light of the object and purpose of the treaty involved".21 It is these customary rules which the Panel failed to apply, leading to the conclusion at step one that the Panel's approach was flawed. It is then in relation to step two that the Appellate Body initially invokes the principle of sustainable development, in determining whether the measures taken by the United States are "provisionally justified". As a "threshold question" the Appellate Body has to decide whether Section 609 is a measure concerned with the conservation of "exhaustible natural resources", in the face of the argument that the term refers only to finite resource such as minerals, and not biological or renewable resources such as sea turtles (which, it was argued, fall to be covered by Article XX(b)). This argument was rejected by the Appellate Body. It ruled that Article XX(g) of GATT 1994 extends to measures taken to conserve exhaustible natural resources, whether living or non-living, and that the sea turtles here involved "constituted 'exhaustible natural resources' for the purpose of Article XX(g) of the GATT 1994".22 In reaching that conclusion, it stated that Article XX(g) must be read by a treaty interpreter "in the light of contemporary concerns over the community of nations about the protection and conservation of the environment".23 Referring to the Preamble to the 1994 WTO Agreement, the Appellate Body noted that its signatories were "fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy" and that the Preamble "explicitly acknowledges 'the objective of sustainable development'".24 This, says the 21 22 23 24

See note 18, para. 114. Ibid., paras. 131 and 134. Ibid., para. 129. Ibid.


Appellate Body, is a "concept" which "has been generally accepted as integrating economic and social development and environmental protection".25 According to the Appellate Body this conclusion is supported by modern international conventions and declarations, including the UN Convention on the Law of the Sea.26 It follows that the sea turtles at issue were an "exhaustible natural resource" and they were highly migratory animals, passing in and out of the waters subject to the rights of jurisdiction of various coastal states on the high seas.27 The Appellate Body then observes "Of course, it is not claimed that all populations of these species migrate to, or traverse, at one time or another, waters subject to United States jurisdiction. Neither the appellant nor any of the appellees claims any rights of exclusive ownership over the sea turtles, at least not while they are swimming freely in their natural habitat — the oceans. We do not pass upon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so, the nature or extent of that limitation. We note only that in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for the purpose of Article XX(g)".28 The concept of "sustainable development" is not expressly invoked to justify this potentially far-reaching conclusion as to the nexus between the sea turtles and the United States. Nevertheless, the concept appears to inform that conclusion, apparently establishing the necessary link between the interest of the United States in the proper conservation of a distant natural resource located from time to time outside its jurisdiction, and the finding that Section 609 is "provisionally justified" under 25

26 27 28

Ibid., para 129, at note 107 and accompanying text. The Preamble to the WTO Agreements provides inter alia that "the Parties to this Agreement, recognising that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means of doing so in a manner consistent with their respective needs and concerns at different levels of economic development ...". Ibid., para. 130, citing article 56 para. 1 lit.(a) of the 1982 UNCLOS. Ibid., paras. 132 and 133. Ibid., para. 133.

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Article XX(g). Although the Appellate Body claims that it does "not pass upon the question of whether there is an implied jurisdictional limitation in Article XX(g)", its conclusion appears hardly consistent with such a limitation. Between the lines, then, the concept of "sustainable development" (and the need to integrate economic and social development and environmental protection) appears to have been implicitly invoked to extend (by interpretation) the jurisdictional scope of Article XX(g). If this is correct then "sustainable development" has a significant substantive element. This marks a significant move away from the approach of the earlier Tuna Dolphin panels and an opening which could, depending on your perspective, either strengthen global environmental objectives or contribute to unwarranted interferences by one state in the affairs of another. Having found that the US measures are "provisionally justified" the Appellate Body then moves on to the third step of its analysis, namely whether Section 609 is consistent with the requirements of the chapeau to Article XX. In my view the Appellate Body rightly concludes they are not, because the measures are applied in an unjustifiable and arbitrarily discriminatory manner. Of interest, however, is the fact that the Appellate Body invokes "sustainable development" again, this time in the context of its conclusion that Section 609 is an "unjustifiable" discrimination.29 In the introduction to this part of its analysis, the Appellate Body revisits the Preamble to the WTO Agreement, noting that it demonstrates that WTO negotiators recognised "that optimal use of the world's resources should be made in accordance with the objective of sustainable development" and that the preambular language, including the reference to sustainable development "must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case the GATT 1994. We have already observed that Article XX(g) of the GATT 1994 is appropriately read with the perspective embodied in the above preamble".30 In support of the relevance of "sustainable development" to the process of interpretation of the WTO Agreements, the Appellate Body then invokes the Decision of Ministers at Marrakech to establish a Permanent Committee on Trade and Environment. That Decision refers, in part, to the consideration that "there should not be ... any policy contradiction 29

30

Sustainable development is not invoked or referred to justify the conclusion that Section 609 constitutes an "arbitrary discrimination". Ibid., para. 153.


between ... an open, non-discriminatory and equitable multilateral trading system on the one hand, and acting for the protection of the environment, and the promotion of sustainable development on the other ...".31 The Appellate Body notes that the terms of reference for the establishment by this Decision of the Committee on Trade and Environment, which makes further reference to the concept of sustainable development, specifically refers to Principles 3 and 4 of the Rio Declaration on Environment and Development.32 This is all by way of introduction. There is no further reference to the concept of sustainable development, at least explicitly. Why then has it been invoked by the Appellate Body? No clear answer can be given to that question. However, it appears that "sustainable development" informs the conclusion that the United States' measures constituted an unjustifiable discrimination: Section 609 established a rigid and unbending standard by which United States officials determined whether or not countries would be certified, and whilst it might be quite acceptable for a government to adopt a single standard applicable to all its citizens throughout that country, it was not acceptable, in international trade relations, "for one WTO member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory programme, to achieve a certain policy goal, as that in force within that Member's territory, without taking into consideration different conditions which may occur in the territories of those other Members".33 Shrimp caught using identical methods to those employed in the United States had been excluded from the US market solely because they had been caught in waters of countries that had not been certified by the United States, and the resulting situation was "difficult to reconcile with the declared [and provisionally justified] policy objective of protecting and conserving sea turtles".34 This suggested that the United States was more concerned with effectively influencing WTO members to adopt essentially the same comprehensive 31

32

33 34

Ibid., para. 154. See further in this respect the article by R. Tarasofsky in this Volume. Principle 3 of the Rio Declaration provides that "the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations". Principle 4 states "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process, and cannot be considered in isolation from it". Ibid., para. 164. Ibid., para. 165.

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regulatory regime as that applied by the United States to its domestic shrimp trawlers. Moreover, the United States had not engaged the appellees "in serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements for the protection and conservation of sea turtles, before enforcing the import prohibition".35 The failure to have a priori consistent recourse to diplomacy as an instrument of environmental protection policy produced "discriminatory impacts on countries exporting shrimp to the United States with which no international agreements [were] reached or even seriously attempted".36 The fact that the United States negotiate seriously with some but not other members that exported shrimp to the United States had an effect which was "plainly discriminatory and unjustifiable". Further, different treatment of different countries' certification was observable in the differences in the levels of efforts made by the United States in transferring the required TED technology to specific countries.37 Moreover, the protection and conservation of highly migratory species of sea turtles demanded "concerted and cooperative efforts on the part of the many countries whose waters [were] traversed in the course of recurrent turtle migrations".38 Such "concerted and cooperative efforts" were required by inter alia the Rio Declaration (Principle 12), Agenda 21 (para. 2.22 lit.(i)), the Convention on Biological Diversity (article 5) and the Convention on the Conservation of Migratory Species of Wild Animals. Further, the 1996 Inter-American Convention for the Protection and Conservation of Sea Turtles provided a "convincing demonstration" that alternative action was reasonably open to the United States, other than the unilateral and non-consensual procedures established by Section 609.39 And finally, whilst the United States was a party to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), it had not attempted to raise the issue of sea turtle mortality in relevant CITES Committees, and had not signed the Convention on the Conservation of Migratory 35 36 37 38 39

Ibid., para. 166. Ibid., para. 167. Ibid. Ibid., para. 168. Ibid., para. 170. The 1996 Convention establishes obligations to reduce harm to sea turtles and encourages the appropriate use of TEDs (article IV para.2 lit.(h)). It also provides expressly that in implementing the Convention the parties shall act in accordance with the WTO Agreement, including in particular the Agreement on Technical Barriers to Trade and Article XI of GAIT 1994 (article XV).

Sands, International Couns and the Concept of "Sustainable Development" 403

Species of Wild Animals or the 1982 UNCLOS or ratified the 1992 Convention on Biological Diversity.40 The concept of "sustainable development" appears to have been invoked to provide "colour, texture and shading" to the concept of an "unjustifiable discrimination" in the chapeau of Article XX. That in turn allows the Appellate Body to reach out to these other, non-trade instruments to ascertain what are the minimum standards to be met before discriminatory measures such as those to be found in Section 609 may be justified under Article XX. In this way "sustainable development" has — beyond its substantive use in relation to the meaning of Article XX(g) — a procedural element, namely the requirement that appropriate diplomatic means — including those available within relevant multilateral agreements — be exhausted before unilateral measures may be taken.

IV. Conclusions To what extent is a reader of these two decisions enlightened about sustainable development? Both the ICJ and the Appellate Body refer to sustainable development as a "concept". Both treat it as having a status in international law, in the sense that it is invoked as part of a legal analysis to justify a legal conclusion. Neither body explores its international legal status, whether as custom or convention law, or adds significantly to our sense of what it is or what role it has in the international legal order, beyond indicating that in normative terms it may have both procedural and substantive consequences. And yet both bodies apparently use "sustainable development" as a significant aid to assist in reaching fairly radical conclusions. For the ICJ "sustainable development" contributes to the construction of the bridge across which the majority travels to justify its conclusion that although the 1977 Treaty between Hungary and (Czecho)Slovakia requires the construction of two barrages and remains in force, it does not now require Hungary to participate in the building of a second barrage. In effect, "sustainable development" is utilised by the Court to assist in rewriting the 1977 Treaty, to justify an interpretative conclusion which would not on its face be outcome of its earlier prior analysis. The emergence of "sustainable development" is a post-Rio fundamental change of circumstances

40

Ibid., para. 171 and note 174 (and accompanying text).

404


which was not present in 1989 so as to justify Hungary's original suspension of works. For the Appellate Body, "sustainable development" provides the "colour, texture and shading" to permit interpretation of the GATT 94 text which legitimately permits one state to take measures to conserve living resources which are threatened by actions in another state, subject to a need to exhaust multilateral diplomatic routes which may be available. This too is a far-reaching conclusion which breaks with prior international practise and for which little, if any, international precedent can be found. From these two cases it appears, then, that "sustainable development" remains an elusive concept which essentially requires different streams of international law to be treated in an integrated manner.41 In the words of Judge Weeramantry, it aims at harmonisation and reconciliation with a view to avoiding "a state of normative anarchy". The jurisprudence of those two bodies has not added greatly to our understanding of "sustainable development": we do not know with a great deal more certainty what it is, or what international legal status it has, or in what precise way it is to be made operational, or what consequences might flow from its application.42 What we do know is that two important international judicial bodies have been prepared to invoke it to justify or support conclusions with consequences which challenge some basic tenets of traditional international law and are potentially far-reaching. At the very least, these two cases indicate that the "concept" or "principle" of "sustainable development" has gained legal currency and that its consequences will be felt more rather than less widely. One can therefore expect "sustainable development" to be relied upon in other fora, perhaps to justify the integration of environmental considerations into foreign investment protection agreements (for example in the context of ICSIE) proceedings) or the integration of

41

42

See more generally P. Sands, "Treaty, Custom and the Cross-Fertilisation of International Law", Yale Hum.Rts.Dev.L.J. 3 (1998), 1 et seq., http://diana. law.yale.edu/yhrdlj/volO 1 issO 1 /sands_philippe_article.htm. See also A. E. Boyle, "The Gabcikovo-Nagymaros Case: New Law in Old Bottles", Yearbook of International Environmental Law 8 (1997), 13 et seq. (18), noting that the International Court's treatment of "sustainable development" left open two very large questions, namely whether the Court could review development proposals on the ground that they were not sustainable, and whether the principle had an erga omnes character.


developmental considerations into the application of human rights norms.


WTO Dispute Settlement: The Implementation Stage Peter-Tobias Stoll and Arthur Steinmann I. II.

Introduction Implementation and Time to Implement 1. "Prompt Compliance" — the Forgotten Rule? 2. Approval and Mutual Agreement — Article 21 para.3 lit.(a) and (b) DSU 3. The Arbitral Decisions — Article 21 para.3 lit.(c) DSU a. 15 Months — a "Guideline" b. Impracticability: Legal Barriers or Structural Adjustment? (1) The Arguments (2) The Awards (3) Implementation and Risk Assessment under the SPSAgreement III. The System of "Trade Sanctions" — Compensation and Suspension of Concessions 1. Lessons from History: The GATT System 2. Compensation and Suspension of Concessions under the WTO a. Voluntary Compensation as an additional Element of mutually acceptable Solution b. A Right to Implementation and to Retaliation c. A Broader Scope for Suspension of Concession d. The Disciplines. Clarifying Objectives and Limits 3. Scrutinizing the Level of Sanctions by Arbitration — Article 22 para.6 and the Banana Dispute a. Subject and Scope of Review Under Article 22 para.6 b. Full and Substantial Review of Equivalence c. Doubts in View of the Appropriateness of an Arbitration Procedure IV. Proper Implementation in Dispute — Article 21 para. 5 DSU 1. The Right to Invoke Article 21 para.5: A Respondent-Driven Procedure?

408

V.

Max Planck UNYB 3 (1999) 2. Procedural Steps and Objectives of the Article 21 para.5 Procedure a. Consultations required prior to requesting a Article 21 para.5 Panel? b. Appellate Review and a new reasonable Period of Time? c. Article 21 para.5: Proper Subject and Applicable Law d. Proper Purpose: Interim Procedure or Resumed Panel Proceedings Conclusion

I. Introduction The very basis of the world trade order is the governance of the rule of law in international trade relations. The dispute settlement prominently contributes to its maintenance and enforcement. Having already enjoyed a fairly good reputation under GATT,1 the Uruguay-Round gave way to a formidable reinforcement of the institutional and legal structures of the world trade order and its dispute settlement system.2 So far, WTO dispute settlement under the DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes) met all expectations. An impressive number of matters have been put on the agenda of the Dispute Settlement Body (DSB) and were duly dealt with by panels and the Appellate Body.3 Among those were a few but important and pertinent matters, which could not be resolved by GATT dispute settlement. In contrast to GATT dispute settlement and due to the reversed consensus rule and a strict time frame, panel and appellate body reports

See e.g. R.E. Hudec, The GATT Legal System and World Trade Diplomacy, 2nd edition, 1990; id., Enforcing International Trade Law - The Evolution of the Modern GATT System, 1993; R. Rode (ed.), GATT and Conflict Management, 1990; W.F. Davey, "Dispute Settlement in GATT", Fordham Int'lLJ. 11 (1987), 51 et seq. See e.g. J.H. Jackson, The World Trading System, 2nd edition, 1997; N. Komuro, "The WTO Dispute Settlement Mechanism", JWT 32 (1995), 5 et seq.; E.U. Petersmann, The GATT/WTO Dispute Settlement System, 1997; id., "The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System since 1948", CML Rev. 31 (1994), 1157 et seq.; id., "Proposals for Strengthening the UN Dispute Settlement System - Lessons from International Economic Law", in this Volume p. 105 et seq.; T.J. Schoenbaum, "WTO Dispute Settlement: Praise and Suggestions for Reform", ICLQ 47 (1998), 647 et seq. As of 1 February, 1999 as many as 123 distinct matters have been dealt with by the WTO, see the "Overview of the State-of-play of WTO-Disputes", downloaded from the WTO-Website at www.wto.org.

Stoll/Steinmann, WTO Dispute Settlement: The Implementation Stage

409

were issued in time and adopted. This has been the case with the disputes on the EC banana regime,4 the EU hormone beef import regime5, and also with the Japanese taxes on alcoholic beverages.6 As this new dispute system came into existence only recently, the work of panels and the Appellate Body and thus the first stages of the dispute settlement procedure have attracted much attention. Some disputes meanwhile have passed those procedures. In particular the recent controversy about the EC's due compliance with the recommendations and rulings in the Banana case have thrown light on the subsequent stages of the dispute settlement procedure, which relates to implementation and potential trade sanctions. The DSU provisions on this part of the procedure contain new features. Neither the old GATT rules nor the new WTO rules, however, so far have received much attention. As now becomes apparent, while the reversed consensus rule and the shortened time frame widely exclude political interference from panel proceedings and appellate review, the overall effectiveness of the dispute settlement system will only be secured if adopted panel or appellate body reports are duly implemented.

WTO: EC-Regime for the Importation, Sale and Distribution of Bananas, Panel Reports: WT/DS27/R/ECU, /GTM, /HND, /MEX, /USA (22 May 1997); Appellate Body Report: WT/DS27/AB/R (9 September 1997); GATT47: EEC-Member States' Import Regimes for Bananas, DS32/R, circulated 3 June 1993; EEC-Import Regime for Bananas, DS38/R, circulated 11 February 1994. WTO: EC-Measures Concerning Meat and Meat Products (Hormones), Panel Reports: WT/DS26/R, WT/DS48/R (18 August 1997); Appellate Body Reports: WT/DS26/AB/R, WT/DS48/AB/R (16 January 1998); GATT 47: US-EC: Animal Hormones Directive, blocked by US in TBT/M/Spec/8 (16 September 1987); EC-US: Increase in Rates of Duty on Certain Products from the EC, blocked by US in SR.45/2 (4 December 1989). WTO: Japan-Taxes on Alcoholic Beverages, Panel Reports: WT/DS8/R, WT/DS10/R, WT/DS11/R (11 July 1996); Appellate Body Reports: WT/ DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996); GATT 47: EEC-Japan: Restrictions on Alcoholic Beverages, Panel Report adopted on 10 November 1987, GATT Doc., BISD 34S/83, 1988. The EC has raised concerns that the new regime continued to violate provisions of GATT and of the WTO since 1989, see e.g. C/M/228 (8 February 1989). The dispute over proper implementation is now finally being solved under the WTO rules on Dispute Settlement.

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II. Implementation and Time to Implement Following the general obligation of a Member state to implement WTO rules according to article XVI: 4 of the WTO agreement, the implementation of panel or appellate body reports or recommendations as adopted by the DSB is governed by article 21 DSU. This provision functions as the "meat to the bone" to the substantive rule-oriented dispute settlement procedure. In order to ensure actual performance of the rulings and recommendations of the panel or appellate body, arts 21 et seq. prescribe a detailed mechanism of implementation under the surveillance of the DSB.

1. "Prompt Compliance" — the Forgotten Rule? Following the adoption of recommendations and rulings of the panel or appellate body by the DSB, the member concerned is granted a 30 day period to inform the DSB of its intentions in respect to implementation (article 21 para.3). As has been stated by other authors7, implementation in general under the WTO has been superb, as all defendants in WTO disputes have announced their intentions to implement or have taken measures in order to implement the DSB's findings. Implementation is to be "prompt" (article 21 para.l) or "immediate(ly)" (article 21 para.3) while paying special attention to developing countries (article 21 para.2), especially as the first objective of the DSU is to secure withdrawal of the infringing measures (article 3 para.7). However, the DSU also grants an exception to this general rule. According to article 21 para.3, if immediate compliance is impracticable, a member may be granted a "reasonable period of time" to comply. Three different procedures are envisaged to define such a time period: it may be approved by the DSB (article 21 para.3 lit.(a)) or mutually agreed upon by parties to the dispute within 45 days after adoption of the report (article 21 para.3 lit.(b)), or determined by binding arbitration8 within 90 days of the adoption of the panel or appellate body report (article 21 para.3 lit.(c)). The total time span between the ad opSee e.g Schoenbaum, see note 2. According to note 12 and 13 DSU of article 21 para.3 lit.(c) an arbitrator is appointed by the Director-General in case an agreement cannot be reached between the panics, whereby the arbitrator can be either an individual or a group.


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tion of the panel or appellate body report and the determination of the "reasonable period of time" shall not exceed 15 months (article 21 para.4). At first sight, the DSU seems to allow for a longer implementation time only if special circumstances are at hand that make prompt compliance "impractical". In fact, though, immediate compliance has only occurred in two unusual cases in which the effect of the infringing had immediately ceased due to the measure's automatic expiry at the time of the panel decision.9 In all other cases a need for a "reasonable" implementation time was accepted and granted either by the parties to the dispute10 or by the arbitrator.11 Thus, the exception inherent in article 21 para.3 has turned into the rule. The reasons for this change from exception to rule becomes apparent when taking into account the practical implications of a ruling or recommendation by the DSB against a member. When observing panel recommendations or rulings members concerned will often face an array of political, economic, social, or even internal legal problems. It is understandable therefore that members confronted with this burden will wish to extend the time span of implementation, especially if compliance calls for far-reaching changes.

9

10

11

US-Restrictions on Imports of Cotton and Man-Made Fibre Underwear, WT/DS24; US-Measures Affecting Imports of Woven Wool Shirts and Blouses, WT/DS33. Canada-Certain Measures Concerning Periodicals, WT/DS31, mutual agreement announced to the DSB, WT/DSB/M/37 (4 November 1997); EC-Measures Affecting Importation of Certain Poultry Products, WT/ DS69/9 (23 October 1998); India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50, mutual agreement submitted to the DSB on 22 April 1998, WT/DSB/M/45 (10 July 1998); ArgentinaCertain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/14 (7 July 1998). Japan-Taxes on Alcoholic Beverages, WT/DS8/15, WT/DS10/15, WT/ DS11/13 (14 February 1997); EC-Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/15 (7 January 1998); EC-Measures Concerning Meat and Meat Products (Hormones), WT/DS26/15, WT/ DS48/13 (29 May 1998); Indonesia-Certain Measures Affecting the Automobile Industry, WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12 (7 December 1998); Australia-Measures affecting Importation of Salmon, WT/DS18/9 (23 February 1999).

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2. Approval and Mutual Agreement — Article 21 para.3 lit. (a) and (b) DSU As stated, article 21 para.3 leaves the member concerned three procedures to seek a reasonable period of time for implementation. Of these, the determination by the DSB pursuant to article 21 para.3 lit.(a) has not yet been used, which in view of the positive consensus needed, is not surprising. If the parties to the dispute can agree on a reasonable time period they will make use of article 21 para.3 lit.(b). In fact, such agreements have been reached in a number of disputes, with "reasonable" time periods ranging from 8 to 15 months12. However, one must take into consideration how the mutual agreements between parties to the dispute are reached: Members in settlement agreements will try to find a consensus between the opposite starting points - the victorious party clearly seeking speedy implementation, the member concerned bargaining for a longer period of time. These starting points will not be determined by the good- or ill will of the parties, but will be modeled on the decisions the parties could obtain in a dispute before an arbitrator according to article 21 para.3 lit.(c). It is in consequence not the mutual agreement, but the arbitrators who develop the definitions needed for an effective application of the DSU and in turn influence the members when agreeing to implementation periods.

3. The Arbitral Decisions — Article 21 para.3 lit. (c) DSU So far, five proceedings under article 21 para.3 lit.(c) have been concluded.13 In all of the five proceedings a reasonable time period was granted, ranging from 15 months in the first three, 12 months in the fourth and 8 months in the last proceeding. 12

13

Canada-Certain Measures concerning Periodicals, WT/DS31: 15 months; India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50: 15 months; EC-Measures Affecting Importation of Certain Poultry Products, WT/DS69/9: 8 Vz months; Argentina-Certain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/14: 8 months; see all of them note 10. Japan-Taxes on Alcoholic Beverages; EC-Regime for the Importation, Sale and Distribution of Bananas; EC-Measures Affecting Meat and Meat Products (Hormones); Indonesia-Certain Measures Affecting the Automobile Industry; Australia-Measures Affecting Importation of Salmon; see all of them note 11.


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During these arbitral proceedings two main problems have dominated: the general understanding of the 15-month "guideline" inherent in article 21 para.3 lit.(c) and the determination of the nature of the relevant circumstances which constitute "impracticability". However, before starting to analyze the arguments and the findings of the different proceedings, it is important to note that the first arbitrators, in particular, in their findings mingled the two questions inherent in article 21 para.3 - the questions of the if, namely the question of impracticability in general, and the how long, logically following the first question. The proceedings have, so far, mixed these questions in favour of a "gliding scale", in effect concluding that once a member demanded a reasonable time for implementation, such a period should be granted, putting emphasis on the duration of the time period rather than dealing specifically with the question of whether such a period should be granted at all. It is in this context that the question of the interpretation of the 15-month guideline inherent in article 21 para.3 lit.(c) was discussed by the arbitrators. a. 15 Months — a "Guideline"? Article 21para.3 lit.(c) states that as a "guideline" to the arbitrator, the "reasonable period of time" should not exceed 15 months, save for "particular circumstances" of the case. However, article 21 para.3 lit.(c) gives no indication as to the legal weight of this guideline. In the five arbitration proceedings different positions have been voiced and an interpretation of the status of the guideline has evolved. The awards in the early Japan-Taxes case and the EC Bananas case concluded that a 15-month period was to be granted, in view of the lack of persuasive evidence to the contrary presented by either of the parties, seemingly seeking an easy way out of the dilemma of the difficult task of making new law in the first arbitration proceedings.14 In essence, the reading of article 21 para.3 lit.(c) by the first arbitrators was that "as a guideline, a reasonable period of 15 months shall be granted", a reading that is only partly covered by the wording of this article. The following proceedings have interpreted the guideline differently. The arbitrator in the EC Hormones case accepted "prompt" implementation as the general rule and concluded that "the reasonable period of time, as determined by Article 21.3(c), should be the shortest period

14

WT/DS27/15, para.19; WT/DS8/15, WT/DS10/15, WT/DS/11/13, para.27.

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possible".15 The wording of article 21 para.3 lit.(c) was not seen as a rule, but as an "outer limit or a maximum in the usual case". Nevertheless, the arbitrator concluded that it was to the parties to demonstrate "particular circumstances" and found that an implementation time of 15 months was reasonable, being sympathetic to the complex legislation procedure in the EC.16 Despite reading the guideline only as an "outer limit", thus seeking the shortest possible time period for implementation, in consequence the arbitrator decided the case on the basis of the "guideline", following the arbitrators in the Japan-Taxes and EC Bananas arbitration. The basic interpretation of the 15-month guideline was cited in the following arbitration proceedings and greatly influenced their outcome. In the Indonesia-Automobiles case, after referring to the Hormones-arbitration, the arbitrator concluded that the decisive factors must be those concerning the actual "impracticability", completely discarding the "guideline" of article 21 para.3 lit.(c).17 Equally, in the recent Australia-Salmon arbitration the arbitrator cited the findings of the EC-Hormones arbitration and concluded that the reasonable implementation time should be significantly less than 15 months due to nature of the measure to be implemented by Australia.18 Clearly, in the latter two arbitration procedures "impracticability" was the decisive element. It is interesting to see that the "rule" of a 15month time period purported by the first arbitrators was substituted for the predominance of the question of "impracticability" - it is now the nature of the implementation measure that will influence the duration of the implementation time, the 15-month period being a "guideline" not to be exceeded save for "particular circumstances", the emphasis nevertheless lying on prompt or speedy implementation as demanded throughout the DSU.19 Therefore, it is important to determine the factors that constitute impracticability, as they will, in turn, lead to a longer or shorter implementation time.

15 16 17

18 19

WT/DS26/15, WT/DS48/13, see note 11, para.26. Ibid., paras 25 and 27. WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, see all of them note ll,para.22. WT/DS18/9, see note 11. Arts 3 para.7, 21 paras 1 and 3.


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b. Impracticability: Legal Barriers or Structural Adjustment? Concerning the issue of the nature of the circumstances causing impracticability, two interpretations have clashed: a policy-oriented interpretation, brought forward by members seeking a longer time of implementation, against the US-American position, which proposes a limited legal and technical understanding of these circumstances.20

(1) The Arguments In the first arbitration award Japan argued before the arbitrator that immediate compliance was "ordinarily almost impossible" and stated that it required up to five years to implement the recommended increase in taxes. The Japanese government based its arguments on two main grounds: first, on its difficulty in adopting the needed formal legislation, especially in view of the government's parliamentary minority and the strict time-frame for budgetary legislation in Japan's diet; and secondly on the adverse effect of the proposed legislation on the liquor producing industry, which was to bring about a tax rise on "Shochu B" to 2.4 times the original rate.21 Similarly, the EC in the Bananas case, in addition to citing its complex internal legislative mechanism (in this case additionally calling for consultations with Lome-Convention states), claimed the need for a 15month reasonable time period due to its administrative practice of implementing new legislation only twice each year, as well as the advance notice necessary to "permit those involved with the banana supply chain to make the necessary adjustments to their planning and logistics".22 Thus, two approaches have to be distinguished. On the one hand, practical difficulties of implementation in form of internal time-spans or a complex procedure might cause a "physical" impossibility of enacting the necessary legislation immediately. The alleged "adverse effects" of the extreme tax raise, "unprecedented in the history of any developed country"23 or adjustments in planning and logistics are only 20

21

22 23

The US has acted as the member seeking speedy implementation in four out of five arbitration proceedings. WT/DS8/15, WT/DS10/15, WT/DS11/13, see all of them note 11, paras 8 and 18-25. WT/DS27/15, see note 11, paras 9 and 10. WT/DS8/15, WT/DS10/15, WT/DSll/13, see all of them note 11, para.19.

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secondary concerns that are not directly linked to an impossibility of immediate implementation, but rather take political, social and economic consequences (i.e. policy) into consideration. A perfect example for "policy-oriented" argumentation was put forward in the Indonesia-Automobiles arbitration. Indonesia acknowledged that it was legally able to enact the necessary legislation in only six months following the adoption of the appellate body decision (and only one month after the arbitral decision). However, it claimed the need for an additional time frame of nine months due to "structural adjustments" necessary to weaken the effects on the country's industry in light of its "social and economic difficulties".24 Opposing this approach, the US has taken a different view to the problem of determining impracticability. It has pleaded to limit the application to the original semantic meaning of "incapability".25 It argued that only the "type and technical complexity" of the measure should be taken into consideration, in combination with the "minimum period of time" necessary to implement it. Factors of "economic hardship, adjustment costs and social unrest" were "inevitable" and "should not be included in an objective assessment of whether immediate compliance is impracticable".26 In support of this position Canada argued that only a legalistic approach would avoid a paradox: namely that a grave inconsistency with WTO rules calling for far-reaching changes would lead to a longer time for the member concerned to abolish this measure (should these factors be taken into consideration) than a negligible WTOinconsistency that called for only minor changes.27 Finally, after citing policy arguments in the Hormones and Bananas arbitration, the EC in the Indonesia case also adopted the US view that only the "content", "legal nature", and "procedure" should be taken into consideration.28

24 25

26

27 28

WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, see all of them note ll,para.7. For this matter the US cites Webster's Third New International Dictionary (1976), ibid., para.17. WT/DS8/15, WT/DS10/15, WT/DS11/13, para.12.; WT/DS54/15, WT/DS 55/14, WT/DS59/13,-WT/DS64/12, para.17, see all of them note 11. WT/DS8/15, WT/DS10/15, WT/DS11/13, see all of them note 11, para.26. Ibid.,para.l3.


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(2) The Awards

The cryptic award in the Japan-Taxes case did not refer to the systematic differences of argumentation (clearly reluctant to decide this matter in the very first arbitration pursuant to article 21 para.3 lit.(c)) and decided the matter by referring to the "guideline" of article 21 para.3 lit.(c).29 The award in the EC-Bananas case, however, acknowledged that the "complexity of the implementation process" could be taken into consideration,30 a concept that also inspired the decision in the EC Hormones case.31 In consequence, the legal and administrative incapability of implementing measures in a certain time was accepted by the arbitrators as a reason for granting a reasonable time of implementation.32 Nevertheless, it was not until the Indonesia Automobiles case that the systematic differences and the question of inclusion of other, policy-driven difficulties of implementation were specifically addressed by an arbitrator. After citing the assessment of the arbitrator in the EC Hormones case that the "reasonable period of time, as determined by article 21 para.3 lit.(c), should be the shortest period possible within the legal system of the Member to implement the recommendations and rulings of the DSB", the arbitrator concluded that "structural adjustment... is not a "particular circumstance" that can be taken into account in determining the reasonable period of time under Article 21.3(c)". The reasonable time frame to implement according to article 21 para.3 lit.(c) was therefore six months. This legalistic approach, however, did not exclude taking into consideration the special circumstances of the case, as Indonesia was finally granted a total of 12 months to implement the measure not because of practical circumstances according to article 21 para.3 lit.(c), but because of Indonesia's nature as a developing country according to article 21 para.2.33 Lastly, the Australia-Salmon case again reiterated the importance of speedy implementation and decided that a short implementation time of eight months was to be

29

30 31 32 33

Ibid., para.27. WT/DS27/15, see note 11, para.19. WT/DS26/15, WT/DS48/13, see note 11, paras 43-47. As this was not disputed in principle by the parties. WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, see all of them note 11, paras 22-24.

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granted due to the fact that only an administrative measure was needed for implementation.34 (3) Implementation and Risk Assessment under the SPS-Agreement Apart from this general dispute, another issue was debated before the arbitrators in the EC Hormones case and in the Australia-Salmon case. Both cases dealt with conflicts resulting from inconsistencies with the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS-Agreement), and in both cases the member concerned argued for a longer implementation time in order to conduct risk assessments.35 In both proceedings, however, this request was not granted. The arbitrators found that performing a risk assessment was, as a matter of law, an obligation under the SPS-Agreement, and that granting a longer implementation period to "demonstrate the consistency of a measure already judged to be inconsistent" due to the absence of such a risk assessment "would not be consistent with the provisions of the DSU requiring prompt compliance".36 Thus, the time needed to conduct risk assessments under the SPS Agreement was "not pertinent to the determination of the reasonable period of time".37 In consequence, in building on the findings of the EC-Hormones arbitration, the granting of a reasonable period of time to implement the DSB's findings can only be a "limited right"38 in order to relieve a member of sanctions according to article 22 DSU if it cannot, i.e. is incapable of implementing the necessary legislation immediately. The legal weight of these decisions is still meager and it remains to be seen if the following arbitration proceedings can build on these findings.39 34 35

36

37 38

39

WT/DS18/9, see note 11. EC-Hormones, WT/DS26/15, WT/DS48/13, paras 5 et seq.; Australia-Salmon, WT/DS 18/9. WT/DS26/15, WT/48/13, see note 11, paras 39 and 41 (emphasis in the original). WT/DS 18/9, see note 11. See the complainants' argumentation in the EC Bananas case, WT/DS27/ 15, see note 11, para. 13. The arbitral decision in the Korea-Taxes on Alcoholic Beverages case, is already pending, see the requests for arbitration pursuant to article 21 para.3 lit.(c) by the US, WT/DS75/13, WT/DS84/11 (15 April 1999) and by the EC, WT/DS75/14, WT/DS84/12 (15 April 1999).


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III. The System of "Trade Sanctions" — Compensation and Suspension of Concessions The aforementioned provisions of the DSU deal with the complex mechanism of implementation of the DSB's recommendations and rulings up to the stage of determining a reasonable period of time for compliance. However, the most far-reaching provision of the DSU comes into play in cases where this complex implementation procedure fails: pursuant to article 22 para.6 DSU the DSB, "upon request, shall grant authorization to suspend concessions or other obligations ...". This suspension of concession is often referred to as "trade sanction" or "retaliation". However, it has to be noted that those rather general terms cannot give any detail as to the rather peculiar and explicitly drafted concepts of article 22.

1. Lessons from History: The GAIT System The need for such measures is apparent and generally not new in the system of GATT-law: In case a member fails to comply, i.e. fails to bring its measures into conformity with the WTO provisions, a powerful tool is needed to act as a "stimulant" for immediate compliance, or, as the arbitrators in the recent Banana dispute put it, to "induce" compliance.40 Under the old GATT system Article XXIII: 2 allowed for the authorization to suspend concessions or other obligations against another member. Due to shortcomings in the old GATT system, however, this tool proved not very effective.41 The old GATT not only left it to the discretion of the Contracting Parties whether or not to authorize retaliatory action, but more importantly the members could veto the final decision.42 Consequently, in several disputes in which retaliatory action had been thought appropriate by the panel, the member concerned blocked the adoption of this decision by the Contracting

40

41 42

EC-Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the EC under article 22 para.6 of the DSU -, WT/DS27/ARB (9 April 1999), para.6.3. See e.g. Hudec, Davey, see note 1. The old GATT system operated under positive consensus, thus allowing for an easy way of blockage, see Davey, see note 1, 94.

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Parties.43 Also, the use of countermeasures was limited to the one agreement at hand, so that interestingly, in the only case in which retaliatory action was ever granted under the old GATT system, the scope of retaliatory action granted was not used, as this would have hurt the "retaliator's" economy more than that of the offender due to its dependency on the goods concerned.44

2. Compensation and Suspension of Concessions under the WTO The completion of the Uruguay rounds has brought forth a more potent system of countermeasures to accompany the general strengthening of the dispute settlement procedure. In short, it combines a clear-cut right for States to take action and a broadened range of possible targets with strict and explicit disciplines. a. Voluntary Compensation as an additional Element of mutually acceptable Solution In view of the general principle of the DSU to foster amicable and mutually acceptable solutions, article 22 DSU now provides for a new way of procedure: Aside from the suspension of concessions (or other obligations) as authorized by the DSB, parties to the dispute might opt for voluntary compensation.45 Under article 22 para.2, a member under a duty to implement, upon request, shall enter into negotiations with any 43

44

45

EC-US: Income Tax Legislations [DISC], authorization requested by EC, C/W/384 (29 April 1982) and C/W/392 (21 July 1982), blocked by US, C/ M/l 57,159,160 (7 May, 29/30 June and 21 July 1982); Mexico, Canada, ECUS: Taxes on Petroleum and Certain Imported Substances ["Super-fund" Taxes], authorization requested in C/W/608 (29 September 1989), blocked by US, C/M/236,237 (11 October and 7 November 1989); US-EC: Payments and Subsidies on Oilseeds and Animal-Feed Proteins, authorization requested by US, but blocked by EC, C/M/260 (4/5 November 1992). US: Import Restrictions on Dairy Products, GATT Doc., BISD IS/32, 1953 (8 November 1952) and Netherlands Action under Article XXIII:2 to Suspend Obligations to the US, GATT Doc., BISD IS/62, 1953 (8 November 1952). Voluntary compensation as such is not new in GATT law and was already an option for the parties to settle the dispute. However, the DSU has introduced a formal procedure of negotiations in this regard.


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party having invoked the dispute settlement no later than at the expiry of the reasonable period of time, in order to achieve such mutually acceptable solution. However, should the negotiations prove fruitless within 20 days of the adoption of the final decision by the DSB, the victorious party may seek an authorization by the DSB for suspension of concessions or other obligations under covered agreements to the dispute. Clearly, the granting of voluntary compensation is the less bellicose alternative and recent practice has shown that this alternative can also be used as a concession to compensate for a longer implementation period.46 b. A Right to Implementation and to Retaliation However, the most striking new element of the new DSU certainly is the automatic adoption of requests for authorization of retaliatory measures. According to article 22 para.6 the DSB "shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time", unless it rejects such a request by consensus or suspension is prohibited by the covered agreement (article 22 para.5). Thus, the DSB is under an obligation to authorize suspension of concessions. The GATT CONTRACTING PARTIES' discretion as to whether retaliatory measures are to be authorized is thereby substituted for a more formal function of the DSB, left only with the power to reject the retaliatory measure altogether by a consensus decision - an unlikely occurrence, as the member seeking authorization will not turn it down in the DSB. In essence, the negative consensus rule gives members a "right to implementation" and, in case of non-implementation, a "right to retaliation". c. A Broader Scope for Suspension of Concession Additionally, the DSU has considerably broadened the scope of potential targets for a suspension. In line with the GATT concept, article 22 para.3 lit.(a) directs the complaining party first to seek to suspend concessions or obligations in the "same sector(s)" as the infringing measure. However, should a party consider that such suspension is not 46

In the Japan-Taxes on Alcoholic Beverages case Japan granted tax concessions in exchange for a longer implementation period, WT/DS8/17, WT/ DS10/17, WT/DS11/15 (30 July 1997). However, this case was finally settled by arbitration, see note 11.

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practical or effective, it may seek suspension of concessions in other sectors under the same agreement (article 22 para.3 lit.(b)) or even of another covered agreement (so-called "cross-retaliation") (lit.(c)). Article 22 para.3 lit.(d) and (e) contain some additional and procedural requirements in this regard. Under article 22 para.3 lit.(d), a complaining party has to take into account the trade and the broader economic elements involved. Under article 22 para.3 lit.(e) the member, in its request, has to give reasons for the choices made and additionally has to forward its request to the Councils and relevant bodies of the WTO. The possibility of "cross-retaliation" according to article 22 para.3 lit.(c) gives retaliating members the opportunity to effectively direct their countermeasures at areas of trade more vital to the economy of the wrongdoer. The inclusion of this measure can be seen as a direct result of the practice of "economic warfare" during the last decades: States have learned that they can strike at others best in markets they control, not necessarily in the market they want to open. The US practice during the 1980s in coercing (mostly developing states) into opening markets to US products, or into securing intellectual property rights not covered under the old G ATT system by stopping imports in other sectors according to Sect. 301 of the 1974 Trade Act, proved a clearly GATT-violatory,47 but highly effective48 practice. In comparison to the single case of ineffective authorization of suspension of concessions under the old GATT system, had the member (Netherlands) been able to close other, more vital markets to secure adherence to WTO rules, this might have enhanced the retaliation's effectiveness.49 However, the practical difficulties of retaliatory measures should not be underestimated. When "coercing" an unwilling member into compliance with suspension of concessions, which might call for 100 per cent ad valorem duties on imports or denial of exports, it is not only the member concerned that must bear the weight of these measures. In a more interwoven world economy a trade war between major economic players will hurt the economies of both combatants - that of the 47

48

49

See e.g. Hudec, Enforcing International Trade Law, see note 1; J. Bhagwati, The World Trading System at Risk, 1991,48 et seq. A number of disputes were settled under the threat of "retaliatory" US action under Section 301, e.g. Taiwanese Restrictions on Beer and Wine (30157), 51 US Federal Register 44958,1986. In the Netherlands case, the Netherlands were finally authorized to limit the import of wheat flour to 60.000 tons. However, the Netherlands were dependent on imports of wheat flour from the US.


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"retaliator" as much as that of the purported "offender". This will be even more so when applying cross-sectoral countermeasures, which will tend to inflict damage on national industries not at all affected by the trade policy deemed to be WTO-inconsistent. Pressure not to introduce retaliatory duties will thus be applied by both the international and domestic industry.50 Therefore, as much as "compliance or retaliation" is legally an alternative, recourse to suspension of concessions can only be seen as the last and temporary means to settle a conflict.51 d. The Disciplines. Clarifying Objectives and Limits of Countermeasures The strengthening of rights of members to take effective action in order to induce compliance is balanced by adding explicit disciplines, which clarify and safeguard the objectives and limits of "trade sanctions". First and foremost, article 22 para.l voices a preference for full implementation and conformity with the covered agreements. This provision underlines that the objective of article 22 is the enforcement of the existing legal obligations based on agreements and concessions in the light of the rulings and recommendations of the DSB.52 The provision especially aims at preventing a situation of a sort of de facto amendment of obligations between parties, in which the inconsistent measure and the retaliatory action are upheld in disregard of the procedures provided for in the WTO agreements. The last phrase of article 22 clearly points to this aspect in regard to voluntary compensations. In the same sense, article 22 para.8 stipulates that suspensions shall be temporary. Procedurally, under article 22 para.5 the DSB shall not authorize suspensions prohibited by covered agreements. Also, the continued supervision of the DSB as called for by article 22 para.8 shall safeguard this principle. According to article 22 para.4, the other important principle is that of equivalence. This principle stipulates that the level of suspension shall be "equivalent" to the level of nullification or impairment, thus 50

51

52

See the complaints by Mattel Inc., Agfa and the Cheese Importers Association of America against the proposed 100 per cent retaliatory tariff that would cause price raises on products relying on EU-imports, International Trade Reporter, BNA ITR Vol.15, No.49, 16 December 1998, 2092 et seq., (2093). Article 3 para.7 therefore speaks of the suspension of concessions as "last resort". See also article 3 para. 7.

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foreclosing any punitive effect.53 Article 22 para.8 safeguards this principle rations temporis by stating that suspensions shall only be applied until the measure found to be inconsistent has been removed, or the dispute is settled otherwise. The procedural means to safeguard this principle of equivalence is provided for by an arbitration proceeding pursuant to article 22 para.6.

3. Scrutinizing the Level of Sanctions by Arbitration — Article 22 para.6 and the Banana Dispute According to article 22 para.6 the member concerned may object to the level of suspension or to deficiencies in procedure, thus referring the matter to another round of arbitration that is preferably to be carried out by the original panel54 and shall be completed within 60 days of the expiry of the reasonable period of time (arts 22 paras.6 and 7). Article 22 para.6 DSU clarifies that during the course of the arbitration no suspensions may be carried out. The EC in the Banana controversy initiated such arbitration in addition to requesting a panel under article 21 para.5.55 The proceedings gave rise to a number of difficult legal issues. First, a ruling of the protection of secret business information was made by the arbitrator, but later on turned out not to be crucial, as the arbitrators could rely on other data.56 Also, a request by Ecuador raised the issue of the status of third parties. However, the arbitrators declined such request by considering Ecuador's rights not to be affected, thus abstaining from more general statements in this regard.57 However, the main issue at stake was the scope of review in an arbitration under article 22 para.6. a. Subject and Scope of Review under Article 22 para.6 Article 22 para.6 envisages two different, but often closely linked subjects for arbitration. First, an objection of the member concerned as to 53

54 55

56 57

See WT/DS27/ARB, para.6.3:"there is nothing in the DSU that could be read as a justification for countermeasures of a punitive effect". Or by an arbitrator appointed by the Director-General. Request for Arbitration under article 22 para.6 DSU, WT/DS27/46 (3 February 1999). WT/DS27/ARB, paras 2.1-2.7. Ibid., para.2.8.


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the level of the suspension proposed may be referred to such arbitration. This clearly points to the general principle of equivalence and especially to article 22 para.4. On the other hand, an arbitration may also be initiated to deal with claims that the specific principles and procedures as set out by article 22 have not been followed. Article 22 para.7 carefully specifies the scope of review in those two cases. It excludes any examination of the nature of the concession or other obligations to be suspended. However, it includes determinations of whether the suspension of such concessions or other obligations is consistent with the covered agreements. b. Full and Substantial Review of Equivalence Article 22 para.4 stipulates that the level of suspension of concessions or other obligations shall be "equivalent" to the nullification or impairment suffered by the claiming member, and that this equivalence shall be determined by the arbitration. Under the GATT 47 the test as to the level of countermeasures had been one of "appropriateness", defined by the working party as a combination of "appropriate in character" and "reasonableness".58 In comparison to this test under the old GATT system, the new WTO notion of "equivalence" seems to envisage a closer relationship between nullification and countermeasure. The original meaning of the word equivalence being "of equal value", it seems to call not only for an appropriate relationship, but for an exact balance between the value of impairment and the value of the countermeasure. In securing real equivalence or balance, both sides of a "virtual scale" must be weighed against each other, and thus both sides must be exactly calculated. As to the interrelation of these two variables, the level of suspension must depend on the level of nullification or impairment felt by the claiming member at the time of the request. Indeed, the arbitrators in the Banana case held that the determination of equivalence required an assessment of the impairment or nullification of benefits suffered by the United States as the originally complainant party, a determination that both parties to the arbitration accepted in this generality.59 Furthermore, the arbitrators without objection assumed that this nullification or impairment depended on the extent of inconsistency of the measures at stake, e.g. the EC banana mar58

59

Report of the working party on Netherlands Action under Article XXIII:2 to suspend Obligations to the US, see note 44. WT/DS27/ARB, para.4.2.

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ket rules.60 To the more, now meeting some concerns from the EC, the arbitrators based their examination on the actual state of affairs, thus looking into the WTO consistency of the new and revised regime, rather than focusing on the previous regulation as dealt with by the Panel and the Appellate Body. This approach has serious implications as to the position of the arbitrators, yet, as the arbitrators rightfully found, "any assessment as to the level of nullification or impairment presupposes an evaluation of consistency or inconsistency with WTO-rules of the implementation measure" taken by the member concerned.61 Thus, the arbitrators undertook a full review of the WTO consistency of the revised EC banana import regime. As they concluded that there were still WTO-inconsistencies under this revised regime, and thus a continuation of nullification or impairment of US benefits, they entered into a calculation of the level of nullification or impairment. They concluded this calculation in determining that the level of nullification and impairment suffered by the United States amounted to US$ 191.4 million per year and finally found that the suspension of concessions and related obligations under GATT 1994 covering trade in such maximum amount would be consistent with article 22 para.4 DSU.62 c. Doubts in View of the Appropriateness of an Arbitration Procedure Having regard to the structure and concept of the DSU in general, this arbitration might very well stay an extraordinary event. Indeed, it seems quite doubtful whether an arbitral body, as instigated by the DSU seemingly in a purely procedural context, is the appropriate institution to make determinations concerning the consistency of implementation measures undertaken by members. The procedural disciplines of an arbitration are certainly less developed than those for panels and the Appellate Body. The EC in this regard especially pointed to the status of third parties and the burden of proof.63 Furthermore, the interrelationship to panel procedures under article 21 para.5 merits attention. In consequence, the question arises whether the WTOconsistency or inconsistency of the implemented measure can be determined in an arbitration procedure pursuant to article 22 para.6. 60 61 62 63

Ibid., para.4.5. Ibid., para.4.3. Ibid.,para.8.1. Ibid., para.4.12 and 4.13.


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As already said, the arbitrators in the Banana case found that they could make a determination as to the overall WTO-consistency of the implementation measures. In fact, following their understanding of "equivalence", it was necessary to establish the level of nullification or impairment suffered by the US in order to determine the level of suspension of concessions. The arbitrators based this conclusion on three arguments: First, on the wording of article 23 para.2 lit.(a), which expressly included findings of WTO-inconsistency by an "arbitration award", second on the strict time-frame of article 22 para.6, which necessitated a speedy evaluation of the implementation measures, and lastly on the (certainly not indecisive) fact that the three individuals acting as the arbitrators in the article 22 para.6 procedure were, in fact, the same individuals acting as Panelists in Ecuador's and the EC's article 21 para.5 proceedings.64 Apart from the interesting fact of personal identity of the Panel and the arbitrators, the two arguments sound convincing - at least at first sight. Article 23 para.2 lit.(a) does include reference to arbitration awards. However, this article could also be understood as a general reference as to the monopoly of the DSU to make determinations concerning any issues touching international trade under the WTO system. Article 23 para.2 lit.(a) in this respect could be seen as a mere enumeration of the mechanisms of the DSU that can be utilized to secure multilateralism, and not as a norm granting competence to specific bodies of the DSU.65 The shortened time span of 60 days inherent in article 22 para.6, on the other hand, seems to convincingly exclude other parallel (or prior) procedures regarding the WTO-consistency of the implementation measure. However, if this were the only argument in respect to the arbitrators' usurpation of power to determine the WTO-consistency of the implementation measure, this reasoning seems - at least - questionable in light of the overall "constitutional" problems concerning proper implementation. In sum, subsequent procedures66, as well as the ongoing discussion on the relationship between article 22 para.6 and article 21 64 65

66

Ibid., paras 4.3, 4.8, 4.11, 4.6, 4.9 and 4.15. For a general analysis of article 23 DSU see C. Schede, "The Strengthening of the Multilateral System", W.Comp. 20 (1996/97), 109 et seq. The next highly disputed dispute between the EC and the US Measures Concerning Meat and Meat Products (Hormones), WT/DS26 and WT/48 is coming to a climax with the US announcing to seek authorization for suspension of concessions by the DSB, see Frankfurter Allgemeine Zeitung, 15 May 1999, p.l. See also International Trade Reporter, BNA ITR Vol.16, No. 18, 5 May 1999, 779 et seq.

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para.5 will show if this excessive interpretation concerning the powers vested into the arbitration pursuant to article 22 para.6 will be followed.

IV. Proper Implementation in Dispute — Article 21 para.5 DSU International trade disputes and related rulings and recommendations often involve complex legal issues. Also, they not only have international, but also - and some may say primarily - national policy implications.67 States under a duty to implement have to cope with the legal complexity and often meet with economic difficulties and internal opposition, often tempting them to tailor implementation measures as narrowly as possible. As has been shown, those aspects have been considered in view of a reasonable period of time to be granted for implementation under article 21 para.3.68 They also make it likely that different points of view emerge as to proper implementation among parties to the dispute. To some extent, the continued surveillance of the DSB, as called for by arts 21 para.3 and 21 para.6. DSU, may provide for transparency, allow for early review and discussion of the implementation measures, and thus may prevent conflicts. Such surveillance includes an obligation of the member concerned to inform and report on intentions and status regarding implementation69 and a right of any member to raise related issues at the DSB at any time.70 In addition to those means, the DSU in article 21 para.5 provides for a specific procedure to resolve controversies regarding proper implementation. With regard to a "disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings", article 21 para.5 states that "such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel." 67

68 69 70

P.T. Stoll, "Freihandel und Verfassung, Einzelstaatliche Gewahrleistung und die konstitutionelle Funktion der Welthandelsordnung (GATT/ WTO)", ZaoRV 57 (1997), 83 et seq., (Ill et seq.) See Part II. Arts 21 para.3 and 21 para.6 DSU, see Part II. See the statement by the original claimants in the DSB meeting of 22 September 1998 "about the EC's failure to comply with the DSB's recommendations" concerning Reg. (EC) No.1637/98, referred to in WT/DS27/40 (15 December 1998).


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The provision gives some more details as to the time frame and composition of the panel, but otherwise contains little guidance. The article 21 para.5 procedure has been an issue in discussions regarding implementation in the Banana case. In an attempt to react to criticism by the original complaining parties and alleged preparations to resort to sanctions by the United States, the EC requested the establishment of a panel under article 21 para.5 on 14 December 1998.71 Four days later, Ecuador - a complaining party to the panel and appellate body proceedings - made a similar request.72 Subsequently, as has been mentioned above, the EC requested an arbitration according to article 22 para.6.73 Indeed, these multiple proceedings offered a formidable challenge and opportunity to explore the nature of article 21 para.5 proceedings and their interrelationship with the article 22 para.6 arbitration. The Ecuadorian request, albeit provoking a number of important but detailed procedural questions was otherwise in line with what can be considered the very purpose and aim of article 21 para.5. In comparison, the EC request under article 21 para.5 was a rather peculiar one. Firstly, the EC invoked article 21 para.5 as an original respondent to the dispute. Moreover, the relief sought by the EC was special, as the EC requested the panel to find that the EC's implementation measures "must be presumed to conform to WTO rules unless their conformity has been duly challenged under the appropriate DSU procedures."74

1. The Right to invoke Article 21 para.5: A RespondentDriven Procedure? The question whether the original responding party is entitled to invoke article 21 para.5 is a difficult one due to its far reaching implications and was explicitly left unanswered by the panel. Article 21 para.5 DSU is drafted in a special way, quite apart from the notion of a "complaint" as provided for in other parts of the DSU. 71

WT/DS/27/40 (15 December 1998). WT/DS27/41(18 December 1998). 73 WT/DS27/46 (3 February 1999). 74 WT/DS27/RW/EEC, para.4.13. See also para.2.22 and for the terms of reference of the panel: paras 1.5, 4.1 - 4.3. 72

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Under Article XXIII GATT 1994 and GATS, panel procedures require that a party put forward a claim considering benefits accruing to it being nullified or impaired. In contrast, article 21 para.5, in a rather neutral and objective way, relies on a "disagreement". Given the fact that implementation issues can be raised by any member in the DSB, this wording, taken as such, could theoretically even cover action by any member.75 While certainly the dispute settlement system contains many features which clearly head for the enforcement of the WTO in the common interest of all members, the procedures as such are designed in a more restrictive way, requiring at least some substantial interest for participation. However, article 21 para.5 is certainly worded wide enough to include the case of an originally responding party invoking it. India and Japan in their submissions as third parties to the panel proceedings have indicated a number of good reasons why indeed article 21 para.5 should cover actions by responding parties.76 First, is seems to be unsatisfactory that a party that has taken efforts to implement has no means to justify its measures if criticism is voiced by a other member. Furthermore, a complaining party can go ahead with measures under article 22 without having to consider implementing measures already carried out. In the end, this would mean that the complaining party has a right on its own to determine whether implementation has been carried out properly without any multilateral review of those findings. However, accepting initiatives by originally responding parties has a number of important implications, as partly witnessed by the EC article 21 para.5 panel. The originally complaining parties abstained from participating in the panel, only partly because they found the EC request impermissible in substance. More importantly, they felt that "there is no provision in the DSU for a Member to compel other countries to come forward to serve as complaining parties against its measures at a time determined by that member ..." and furthermore considered that "any conclusion regarding the conformity of the EC measures cannot bind a non-party to the process, despite the EC's attempts to achieve this purpose".77 Thus, only one party - the EC - and a number of third parties took part in the proceedings. 75 76 77

Submission by the EC, WT/DS/27/RW/EEC, para.2.12. WT/DS27/RW/EEC, paras 3.1-3.8 (India) and paras 3.10-3.14 Qapan). Extracts from a letter of Guatemala, Honduras and the United States to the Panel of 19 January 1999, WT/DS27/RW/EEC, para.2.6.


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Indeed, the question whether responding parties may invoke article 21 para.5 provokes the further question, how the originally complaining parties can be persuaded to take part in the proceedings. From their point of view, they are justified in proceeding and requesting authorization from the DSB to suspend the application of concessions or other obligations under the covered agreements under article 22 para.2 without having to take into account that implementation measures have been taken. It therefore seems necessary to either require them to participate in a proceeding under article 21 para.5, or to mandate recourse to such a proceeding prior to the initiation of article 22 measures.78 It is only under those conditions that a respondent-driven article 21 para.5 procedure will make sense. Other options, which could include furnishing findings and conclusions of a one - party - article 21 para.5 panel with some binding legal effect upon absent originally complaining parties79, or allowing a responding party to request a normal panel to counter actions of complaining parties, are beyond the letter and spirit of the DSU. The three panelists, owing to the fact that they acted as panelists in this case as well as arbitrators in the article 22 para.6 arbitration, found a rather pragmatic solution to this dilemma. As explained earlier, they extensively interpreted their arbitral mandate under article 22 para.6 in a way to include a full substantive review of implementation measures. Thus, article 22 para.6 will cover a broad range of cases which otherwise would - or supposedly should - fall in the realm of article 21 para.5. It has been doubted whether dealing with such questions in an arbitral procedure is appropriate. Indeed, arbitration pursuant to arts 21 to 23 DSU seems to be a process primarily envisaged to resolve purely procedural matters, such as implementation periods, level of suspension of concessions or adherence to special procedures. However, the panelists in their arbitral report pointed to article 23 para.2 lit.(a), which envisages that arbitral awards have the same legal validity as panel reports.80

78

79 80

Argument by India in favour of the EC position,WT/DS27/RW/EEC, para.3.4. Suggested by Japan, WT/DS27/RW/EEC, para.3.14. See the discussion of the article 22 para.6 procedure under Part III.

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2. Procedural Steps and Objectives of the Article 21 para.5 Procedure Aside from the question of a right to initiate proceedings under article 21 para.5, a number of other procedural matters were raised in the two panels, relating to consultations, an appeal, the granting of another period of time for implementation and the proper subject of proceedings. Those aspects all point to the rather poor procedural guidance given by article 21 para.5, which merely states that "such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel...", while on the other hand imposing a rather strict and short time frame: "The panel shall circulate its report within 90 days after the date of referral of the matter to it. "81 a. Consultations required prior to requesting an Article 21 para.5 Panel? This short time frame, cutting down normal panel procedures amounting to an overall period of nine months under article 20 to 90 days (article 21 para.5), would seem to exclude recourse to a full new cycle including consultations according to article 4 para.7, as this would add a maximum of 60 days to what was supposed to be a specifically shortened procedure. On the other hand, the wording of article 21 para.5, referring to "these dispute settlement procedures, including ... resort to the ... panel", can hardly be understood to exclude other stages of procedure. In particular, as the dispute settlement mechanism gives priority to negotiated solutions to conflicts, and as such emphasizes the need for consultations in all stages of the proceedings, the exclusion of such consultations in the last stages of implementation would seem inappropriate. Indeed, requests for consultations have actually been made in article 21 para.5 procedures, furnished, however, with an express disclaimer, whereby the States reserved all rights in this question.82 In the article 21 81

82

It should be noted though, that article 21 para.5 provides for some possibility for the Panel to extend the time frame on notice to the DSB. On 18 August 1998 Ecuador, Guatemala, Honduras, Mexico and the US requested consultations with the EC in the ongoing Banana-dispute, stating that "this request is without prejudice to our right to request review under Article 21.5 procedures...", WT/DS27/18 (31 August 1998).

Stall/Steinmann, WTO Dispute Settlement: The Implementation Stage

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para.5 panel initiated by Ecuador, it was held by the original complainants that consultations were not required under article 21 para.5. This view was contested by the EC in pointing to article 21 para.5 and the phrase "these dispute settlement procedures", which would include consultations under article 4 para.7. As consultations took place notwithstanding those views, the panel did not need to decide on the issue.83 In the panel requested by the EC, three originally complaining parties in their letter explaining their position to remain outside the proceedings voiced concerns with regard to a lack of consultations concerning the claims made by the EC. However, the panel did not address these arguments, because the three members did not become parties to the dispute.84 b. Appellate Review and a new reasonable Period of Time? The more lingering question relates to the admissibility of an appellate review, and even more so, to another grant of a reasonable period of time under article 21 para.3 - all elements of "dispute settlement procedures" as referred to by article 21 para.5. The question of the possibility of an appellate review of the Panel's findings is not answered by the wording of article 21 para.5 and was disputed in the recent Banana case. In view of ensuring due process the right of an appeal serves the legitimacy of the process,85 however, this would call for another lengthy procedure until the conformity of the measures was finally established. Again taking advantage of serving in all three procedures in identical composition, the three panelists briefly referred to this point in their article 22 para.6 arbitral award in stating that it is up to the Appellate Body to decide, "whether [it] will accept jurisdiction of an appeal in an Article 21.5 proceeding."86 As the article 21 para.5 proceeding is to be seen as a speedy procedure - this much can be assumed in light of the short time frame - a granting of a new reasonable period of time (including the possibility of an arbitral proceeding under article 21 para.3 lit.(c)) cannot be deemed inherent in article 21 para.5. Indeed, the EC as the defendant in Ecuador's recent article 21 para.5 proceeding in the Banana dispute even ac83

84 85

86

WT/DS27/RW/ECU, para.3.1. WT/DS27/RW/EEC, para.4.12. Argument by India as a Third Party in favour of the possibility of appell review, WT/DS27/RW/EEC, para.3.6. WT/DS27/ARB, para.9.1.

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knowledged that it did not expect a new implementation period to be granted by the Panel.87 c. Article 21 para.5: Proper Subject and Applicable Law Another point at issue is the subject of the procedure under article 21 para.5. It clearly must be the implementation measure at hand, quite distinct from the original measure in dispute.88 This measure has to be examined in a twofold way. First, its compliance with the rulings and recommendations of the DSB has to be ascertained. The defending party is generally obliged to bring the disputed measure or related policy into conformity with those specific Articles of the Agreements which were cited by the complaining party and, subsequently, the breach of which was confirmed in the panel or appellate body procedure. However, in referring to "consistency with a covered agreement", article 21 para.5 DSU, furthermore, requires that it be examined whether the implementation measure conforms to other provisions of the WTO legal order as well. This reading of article 21 para.5 DSU was disputed by the EC in Ecuador's article 21 para.5 proceeding during the most recent round of the Banana dispute. The EC argued that no new claims were to be submitted by Ecuador and that only the "matter" discussed by the original panel and Appellate Body reports was to be subject to the test of WTO-conformity by the panel under article 21 para.5. This was due to the dually shortened time period granted to the member concerned under article 21 para.5: firstly, to counter new arguments of the claimant and secondly, to finally adopt measures needed without another reasonable period of time.89 However, the panel refuted the EC's arguments stating that otherwise two procedures would be necessary - one procedure to ascertain whether the offending measures had been removed, and another procedure to consider the overall WTOconsistency of the new measures. The panel in the Banana dispute thus acknowledged that in light of the need for prompt dispute settlement a panel under article 21 para.5 DSU had the right to examine the new measure's full WTO- consistency.90

87 88 89

90

WT/DS27/RW/ECU, para.6.3. WT/DS27/ARB, para.7; WT/DS27/RW/ECU, paras 2.1 and 6.7. WT/DS27/RW/ECU, para.6.3. WT/DS27/RW/ECU paras.6.9 and 6.12.


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The panel under article 21 para.5 will be bound by the rulings and recommendations but is free to examine new aspects of the implementation measure, including new concerns in view of WTO provisions. d. Proper Purpose-Interim Procedure or Resumed Panel Proceedings In sum, the procedural issues discussed can only be properly answered on the basis of a more general outline of the objectives and the purpose of article 21 para.5 in the light of the three Banana proceedings. From first reading, article 21 para.5 suggests itself as a speedy interim procedure to settle disagreements as to proper implementation in the wake of enforcement measures. If seen in this perspective, the short time frame plays an important role, and thus there is good reason to assume that consultations and an appellate review are misplaced in this regard. In this perspective, however, the interrelationship with article 22 is critical, especially as article 21 para.5 - unlike article 22 para.6 - does not explicitly call for a suspension of measures under article 22. As stated above, however, the extensive use that the three panelists have made of their mandate as arbitrators under article 22 para.6 will cover most situations in this regard. If their approach is followed in other arbitration proceedings in the future there will be little room left for article 21 para.5 in this respect. Another way to look upon article 21 para.5 would be to consider it a special way to reconsider or to resume the original dispute on the basis of the implementation measure. Article 21 para.5 could thus be considered to address situations in which trade conflicts have not been settled by panel or appellate body proceedings and urgently require speedy response under the multilateral system as to proper implementation. Article 21 para.5 in this perspective can be considered a shortcut panel procedure, which, while ensuring effective work, provides for a shortened time span for panel proceedings, whereby the identical composition of the panel, as called for by article 21 para.5, secures familiarity with the matter at hand and a continuity of views. In this case, consultations and an appellate review seem right in place. In this regard, one could even consider the automatic participation of all original parties to the dispute by arguing that article 21 para.5 serves as a means to resume initial panel proceedings in the light of implementation measures in order to address what has proven to be a serious and pertinent conflict.

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V. Conclusion The new round of Banana controversies has caused some turbulence in the dispute settlement system. The EC article 21 para.5 request though being quite outside the range of that procedural tool - has raised a number of important issues which will need to be addressed in the future. The enforcement part of the dispute settlement system, it appears, is not yet completely ready to meet the needs of a strictly ruleoriented trade dispute settlement mechanism. Inviting further delays at the implementation level is as unsatisfactory as is invoking measures under article 22 without any regard to a responding party's endeavour to comply with its obligations. In this respect it should be noted that the DSU seems be even less explicit as to how to handle cases in which a responding party claims that measures under article 22 should cease, as the measure found to be inconsistent with a covered agreement has been removed. The three individuals in the three proceedings have managed to abstain from dealing with those general or even "constitutional" questions, the identical composition of the panels and of the arbitration enabling a practical handling of the complex matter.91 This is in line with the specific objectives and purposes of dispute settlement in the WTO framework, which is a rather limited one. The dispute settlement system is not yet considered a court-like institution within the WTO framework, but rather is seen as a limited mechanism which is not mandated to issue expertise or engage in judicial activism. As preparations for the DSU review are already under way and a new WTO round will probably take place in the foreseeable future, there is ample opportunity for members to deal with those questions at a political level, which seems appropriate in view of the importance of these questions for the overall effectiveness of dispute settlement. It can be expected that members will succeed in addressing some of the shortcomings of the DSU text. However, any such solution has constraints which are inherent in the very concept of enforcement and compensation in the WTO dispute settlement system. The proceedings and issues outlined above in sum point to the more general question of reconciling the interest of speedy law enforcement on the one hand, and

91

The panelists referred to the task of "finding a logical way forward", with which they were entrusted by the Chairman of the DSB,WT/DS27/RW/ EEC, para.4.16;WT/DS27/ARB, para.4.9.


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justice on the other. This is a general legal concern and a number of concepts have been developed in this regard. The law in general in many instances allows for the enforcement of monetary claims in parallel to the procedure dealing with the claim in substance, often combined with some requirement to make a security deposit prior to taking enforcement action. Also, interest payments for arrears are often due. The WTO law enforcement system, on the other hand, merely provides for compensation of future trade losses.92 It neither allows for compensation of past losses, nor for interest. Furthermore, it is confined to reciprocal cuts to trade opportunities, although the appropriateness of such measures is determined in monetary figures. A system providing for monetary damages for past unlawful acts and for interest, as is in place in many other areas of international and national law, is able to reconcile the conflicting interests of speedy enforcement and material justice more easily. Of course, this point is made in order to explain the source of the problem, rather than to suggest that such approach should be adopted by the WTO. Nevertheless, v/hen looking at the WTO enforcement system's peculiar structure and its effectiveness from a more distant perspective, such proposed monetary sanctions would look much more familiar to a lawyer than putting the blame and consequences for the EC's failure to fix its banana import regime on French producers and even American importers of, for example, women's luxury handbags.93

92

93

Building on the GATT system, see e.g. the Trondheim Panel Report, GATT Doc., BISD 395/4000,1990. See the final list of EU Imports to suffer retaliatory duties published by the US, published in the International Trade Reporter, BNA ITR Vol.16, No.15, 14 April 1999, 621 et seq.


Scope and Function of the WTO Appellate System: What Future after the Millennium Round? Andreas R. Ziegler

I. II.

Introduction From the GATT 1947 Panels to the WTO Appellate System 1. The WTO Dispute Settlement System 2. The Appellate Review 3. The Review Process III. Characteristics of Existing Review Mechanisms in International Law 1. Basic Principles 2. The International Court of Justice as a Court of Second Instance 3. ICSID Annulment Tribunals 4. CUSFTA and NAFTA Extraordinary Challenge Committees IV. The WTO Appellate Body at Work - Existing Case Law (1996, 1997, and 1998) 1. Overview 2. United States — Standards for Reformulated and Conventional Gasoline (22 April 1996) 3. Japan — Taxes on Alcoholic Beverages, Complaints by the European Communities (4 October 1996) 4. United States — Restrictions on Imports of Cotton and Man-Made Fibre Underwear (10 February 1997) 5. Brazil — Measures Affecting Desiccated Coconut, Complaint by the Philippines (21 February 1997) 6. United States — Measures Affecting Imports of Woven Wool Shirts and Blouses (25 April 1997) 7. Canada — Certain Measures Concerning Periodicals (30 June 1997) 8. European Communities — Regime for the Importation, Sale and Distribution of Bananas (9 September 1997) 9. India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (19 December 1997)

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V.

Max Planck UNYB 3 (1999) 10. European Communities — Measures Affecting Livestock and Meat (Hormones) (16 January 1998) 11. Argentina — Certain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (27 March 1997) 12. European Communities — Customs Classification of Certain Computer Equipment (5 June 1998) 13. European Communities — Measures Affecting Importation of Certain Poultry Products (13 July 1998) 14. United States — Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) 15. Australia — Measures Affecting the Importation of Salmon (20 October 1998) 16. Guatemala — Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico (2 November 1998) The Appellate Body's Role in the WTO Dispute Settlement System 1. Almost every Panel Decision Is Appealed Against 2. Almost in every Appeal the Original Decision Is Modified 3. Conceptual Problems and Outlook

I. Introduction The creation of the World Trade Organization (WTO) in 1994 led to a substantive change in the dispute settlement system formerly used under the General Agreement on Tariffs and Trade of 1947 (GATT 1947).1 One of the major reforms was the introduction of a new separate standing institution, i.e. the Appellate Body, which can be seized in order to have Decisions by dispute panels reviewed. The original texts of the Agreement establishing the WTO (WTO-Agreement)2 as well as the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)3 left open many questions with regard to the exact

General Agreement on Tariffs and Trade, concluded on 30 October 1947, reprinted in: Basic Documents and Selected Instruments (BISD) 1 (1952), 1 and UNTS Vol. 55 No. 814, also available on the Internet at http://www. wto.org/wto/legal/finalact.htm. Agreement Establishing the World Trade Organization, as reprinted in: GATT Secretariat (ed.), The Results of the Uruguay Round of Multilateral Trade Negotiations — The Legal Texts, 1994, 1 et seq. and available on the Internet at http://www.wto.org/wto/legal/finalact.htm. Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), as reprinted in: GATT Secretariat, above note 2, and ILM 33 (1994), 1226 et seq.

Ziegler, Scope and Function of the WTO Appellate System

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functioning, character, and scope of review to be applied by the Appellate Body in its task. The Working procedures for Appellate Review4 did not fill this gap either as they mostly address practical questions with regard to the exact procedure to be followed before the Appellate Body. The same is true for the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes as adopted by the Dispute Settlement Body (DSB) on 15 November 1996.5 As with many (international) courts and tribunals it is therefore only a thorough analysis of the actual practice of the body and the comparison thereof to the work of other institutions which can lead to a proper evaluation of the role played by such an institution and the practical problems encountered therein. One of the main characteristics of any appellate or review process to be examined is the scope of review applied. It has a major influence on the role of the separate bodies within a dispute settlement system and the behaviour and expectations of the parties. After three years of proper working and the first wave of heavy criticism of the work undertaken by the WTO Appellate Body it, therefore, seems appropriate to engage in a focused exercise. This is true despite the already existing extensive general analysis of the WTO dispute settlement system.6 At the same time, this text will give a comparative overview of the existing appellate bodies and procedures in international law in order to identify the specific objectives and problems arising in this field, a task which to my knowledge has so far never been undertaken in a comprehensive way.7 Several WTO parties have recently announced their agenda for a possible Millennium Round that could take off after the Ministerial meeting in late 1999. Most of them As adopted by the Appellate Body itself on the basis of article 17 para.9 DSU on 15 February 1996; Working Procedures for Appellate Review (WT/AB/WP/1) of 15 February 1996, several times modified. Accessible via Internet at http://wto.org/dispute/wpab.htm. WT/DSB/RC/W/1,15 November 1996. Such as undertaken in an exemplary way by E.U. Petersmann (ed.), The GATT/WTO Dispute Settlement System: International Law, International Organizations and Dispute Settlement, 1997; and E.U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, 1997.

The work by M. W. Reisman, Nullity and Revision — The Review and Enforcement of International Judgments and Awards, 1971; and E. Lauterpacht, Aspects of the Administration of International Justice, 1991 include descriptions of existing appellate systems but are not exhaustive in view of the limited existence of such standing bodies at the time of their writing.

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have included reform proposals for the WTO dispute settlement process and, in particular for the Appellate Review. This text will serve as a first, although admittedly very superficial, analysis of the current state of the Appellate Body and identify possible areas of problems.

II. From the GATT 1947 Panels to the WTO Appellate System 1. The WTO Dispute Settlement System The dispute settlement system of the WTO is basically a modified version of the preexisting mechanism under arts XXIII and XXIV GATT 1947. At the same time, these amendments have changed the character of the dispute settlement in a way that strengthens not only the enforcement capability of the Decisions as such but also the WTO legal system as a whole.8 The old dispute settlement system was only very vaguely mentioned in article XXIII GATT and mostly exercised according to the practice developed over time,9 until it was partly codified in the Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance of the Tokyo Round.10 The new dispute settlement is extensively outlined in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). There are provisions in several of the specific WTO agreements which contain 8

9

10

Besides the mentioned works by Petersmann, see note 6; see also M. Esser, "Die Reform des GATT und des Streitschlichtungsverfahrens in den Verhandlungen der Uruguay-Runde", ZVglRWiss 91 (1992), 365 et seq. and O. Fauchald, "Tvistelesningsmekanismen i verdens handelsoganisasjon", Retferd — Nordisk juridisk tidsskritt 66/67 (1994), 73 et seq. The old system is well commented in R. A. Brand, "Competing Philosophies of GATT Dispute Resolution in the Oilseed Case and the Draft Understanding on Dispute Settlement", JWT 27 (1993), 117 et seq.; R. Hudec, The GATT Legal System and World Trade Diplomacy, 1990; R. Hudec, Enforcing International Trade Law — The Evolution of the Modern GATT Legal System, 1993; E.U. Petersmann, "Violation-Complaints and NonViolation Complaints in Public International Trade Law", GYIL 34 (1991), 175 et seq.; R. Plank, "An Unofficial Description of How a GATT Panel Works and Does not Work", Swiss Review of International Competition Law 29 (1987), 81 et seq. GATT Secretariat, The Texts of the Tokyo Round Agreements, 1989, 200 et seq.


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separate rules and amendments to this procedure, such as article 17.6 in the Uruguay Round Agreement on the Implementation of article VI of the GATT 1994 (on anti-dumping measures).11 As under the traditional GATT system, a WTO party initially has to request bilateral consultations with another WTO party if it wishes to raise issues under the dispute settlement mechanism of the WTO (article 4 DSU). Only if this request remains unanswered or after unsuccessful consultations may the complainant request the DSB of the WTO to establish a panel of experts for the settlement of the dispute (arts. 4 para.7, 6 DSU). The DSB consists of representatives of all WTO parties and is a newly created body of the Uruguay Round which administers the entire dispute settlement mechanism. The DSB can only deny the establishment of a panel if all the DSB members decide so unanimously. As in the past, the dispute settlement panels normally consist of three trade experts (article 8 para.5 DSU) from a roster which shall establish a report concerning the matter of dispute between the parties. If this report is not unanimously rejected by the DSB within 60 days after circulation, it is considered adopted by the DSB (article 16 para.4). Under the old GATT the reports had to be unanimously adopted which lead to a situation — especially in the last years of the old GATT — where the adoption of several highly disputed panel Decisions was blocked. The new system which requires unanimity to block adoption (article 16 para.4) — inverted consensualism — strengthens the independent and legal character of the dispute settlement procedure.12

11

12

See, for example, E.U. Petersmann, "The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System since 1948", CML Rev. 31 (1994) 1157 et seq., (1204). T. Montana i Mora, "A GATT With Teeth: Law Wins Over politics in the Resolution of International Trade Disputes", ColumJ.Transnat.'lL. 31 (1993), 105 et seq.; E.U. Petersmann., "The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System Since 1948", CML Rev. 31 (1994), 1157 et seq.; E.U. Petersmann, "The GATT Dispute Settlement System and the Uruguay Negotiations on its Reform", in: P. Sarcevis and H. Van Houtte (eds), Legal Issues in International Trade, 1990, 53 et seq.

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2. The Appellate Review Besides the unlikely event of an unanimous blocking of the adoption of a panel report in the DSB there is now, also, under the new system a second way of preventing the automatic adoption of a panel report. The new WTO system allows the parties to appeal against a panel report and take it to a quasi-judicial body at second instance (arts 17- 20 DSU). The institution charged with deciding these appellate procedures is a standing Appellate Body, consisting of 7 permanent members. The members are nominated for a period of four years at a time with one possible re-election (article 17 para.2 DSU). Although the DSU itself asked for persons of recognized authority in the field of law, international trade and specialists with regard to the agreements that were to be interpreted, at least John Jackson, one of the leading authorities on GATT, considered that some of the appointed members were not particularly experts in GATT/WTO law and jurisprudence but he also admitted that the initial time they were given for study before their first case had worked out reasonably well.13 One of the reasons why such an appellate review is considered necessary under the new system is exactly because that it is very unlikely for a report to be blocked under the DSB with the new voting system. While the old dispute settlement system had — at least with regard to its concept — a rather diplomatic character, the new system is quasijudicial and considered by many to be the most successful and reliable judicial dispute settlement system in international law in general. The lack of a filter procedure against legally badly argued or wrong panel reports,14 however, has been substituted through the introduction of an appellate review which will increase legal certainty and support the development of well established WTO case law.

3. The Review Process Article 17 para.6 DSU provides that only issues of law and the legal interpretation developed by a panel can be reviewed by the Appellate Body. The Appellate Body has to address all issues that are brought up 13 14

J. Jackson, The World Trading System, 2nd edition, 1997,127. There were rare examples of panel reports under the old system which were generally considered unsatisfactory, see for examples Petersmann, see note 12, 1189et seq.


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by the complaining parties before it but shall not take up any other issues on its own initiative (article 17 para. 12 DSU). The DSU does not contain any clear indication as to which standard of review shall be applied by the Appellate Body when reviewing panel Decisions. The Uruguay Round Agreement on the Implementation of article VI of the GATT 1994 (on anti-dumping measures), however, contains (on a last minute initiative by the United States) a special provision that defines the standard. Article 17 para.6 of that agreement reads: In examining the matter referred [...]: (i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; (ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. In this agreement the United States have imposed what is usually called in the US legal system the "clearly erroneous test"15 which puts a high limitation on the standard of review for the panels under this particular agreement. It seems that some parties would still like to extend this limited scope of review to all dispute panels under the WTO system, an idea, however, which is highly controversial and is regularly attacked by members such as the European Union.16 The discussion on the standard of review for the panels at first instance with regard to Decisions by member states is parallel to the one on the standard of review of the Appellate Body with regard to panel Decisions. The former involves, 15

16

An often quoted example of this standard is the one expressed by the United States Supreme Court in US v. Gypsum Co., 333 US 364, 395: "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." See EU Paper on the Proposed Changes to the WTO Dispute Settlement System, as reported in Inside U.S. Trade, of 30 October 1998, 12.

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however, rather the issue of sovereignty of member states,17 while the second has above all to do with the institutional balance of the dispute settlement system of the WTO. This article focuses on the latter.

III. Characteristics of Existing Review Mechanisms in International Law 1. Basic Principles Every legal system that provides for some kind of a "second round" in the judicial review of legal disputes is facing the question of whether and how the second instance shall be limited in its review of the dispute that has already been adjudicated by another instance. In principle, each review system wishes to guarantee that at least the second instance is able to correct whatever mistake the first instance has committed. At the same time, a full new round at the second instance (de novo proceedings) makes the proceedings considerably longer and more expensive and does not necessarily improve the general quality of Decisions. It is therefore quite popular to put some limitation on the standards of review of higher courts and tribunals. In particular, courts of last instance tend sometimes even autonomously to limit their own scope of review in order to limit their work load and maintain the autonomy and credibility of lower courts.18 It is quite common in civil law countries as well as in common law countries for specific courts to put a high limitation on their standard of review or the degree of scrutiny they apply. Most civil law systems apply two basic types of appeal: the first type is quite open with regard to the reviewability of the challenged Decisions and almost always allows a continuation of the proceedings as started at the first instance. This kind of review usually takes the name of appeal, appello (Italian), appell (French), and Appellation or Berufung 17

18

See the most outstanding contribution by S.P. Crowley and J.J. Jackson, "WTO Dispute Procedures, Standard of Review, and Deference to National Governments", AJIL 90 (1996), 193 et seq., (195); J.H. Jackson, "The Uruguay Round Results and National Sovereignty", in: J. Bhagwati and M. Hirsch (eds), The Uruguay Round and Beyond - Essays in Honour of Arthur Dunkel, 1998, 293 et seq. For an overview see, for example, R.C. von Caenegem, "History of European Civil Procedure", International Encyclopedia of Comparative Law, Vol. XVI, Chapter 2, 1973.


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(German). Quite often this instrument even allows for a fresh determination of the merits of a case.19 A more limited possibility of appeal within civil law countries is usually the one that stems from the old Roman legal institution of the "quaerula nullitatis" which found its way through French law into Italian and German law and from there into many modern legal systems. A common characteristic is a limited number of grounds for annulment that can be invoked before the second instance. Normally these comprise only: (a) clearly erroneous findings with regard to the facts; and (b) clearly erroneous legal findings (impairment of fundamental procedural rights or false application of the law as well as arbitrary interpretation of the law).20 While civil law countries usually have a number of different names for the actions that can be taken against a Decision that was delivered by a court of first instance, common law systems almost always refer to an "appeal" in these cases. Despite all the existing differences between common law systems and civil law systems is it astonishing to notice that there is a basic similarity with regard to the different types of appeals in the two systems. Like civil law systems, most common law systems have a more open kind of review which serves mostly the interest of reaching a better result albeit at a higher cost for the system as a whole (correctness review). As opposed to this, there usually exists a rather narrow review mechanism which takes into account only the need for legal certainty and guarantee of the most fundamental legal principles (institutional review).21 Generally in cases where the institutional review is of primary importance, the standard of review with regard to the legal and factual findings of the first instance is often limited to cases where those findings are either clearly erroneous (clearly erroneous test) or where the discretion given to the first instance was abused (abuse of discretion test).22 It is obvious that these elements are almost identical to the ones used in civil law countries in those instruments that stem from the Roman quaerula nullitatis.

19

20

21 22

For details see RE. Herzog and D. Karlen, "Attacks on Judicial Decisions International", International Encyclopedia of Comparative Law, Vol. XVI, Chapters, 1982. A historic explanation can be found in: A. Skedl, Die Nichtigkeitsheschwerde in ihrere gescbichtlichen Entwicklung, 1886 and W. Rein, Privatrecbt ttnd Zivilprozess der Romer, 2nd edition 1858 (reprinted 1964). For details see M. B. Friedenthal et al., Civil Procedure, 1985. Friedenthal, see above, 605.

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2. The International Court of Justice as a Court of Second Instance In international law the institution of appeal is quite rare. This may not surprise those who know how few international tribunals, courts, and similar judicial bodies the international legal system has known until recently and that even those were sometimes quite inactive. The most famous of all courts today remains certainly the ICJ. It is less known, however, that it serves sometimes also as a court of appeal for other legal bodies. This is provided for in Arts 36 and 37 of the Statute and article 87 of the Rules of Court.23 The are two main areas where the ICJ serves as a Court of Appeal: the first category comprises those cases where the ICJ serves as a court of second instance in staff cases for the United Nations24 and its specialized agencies, such as the ILO and the World Bank.25 The second — and for our analysis more interesting — category consists of those cases which come under Conventions or Treaties which themselves provide their parties with a right to an appeal to the ICJ against a Decision delivered by their treaty organs. This is, for example, the case for the ILO26 and the ICAO.27 The only case which ever arose in this category was the so-called ICAO Council Case of 1972. In this case India appealed against a Decision that had been delivered by the ICAO Council in a case involving India and Pakistan under article 84 of the Convention on International Civil Aviation.28 In the absence of any procedural guidelines for cases where the ICJ acts as a court of appeal, the ICJ decided to undertake a de novo analysis of this particular case. The ICJ considered its own role and function in

23 24

25

26

27 28

See S. Rosenne, The World Court, 4th edition, 1989, 102. There is a possibility of appeal against decision by the United Nations Administrative Tribunal. See, for details, C.F. Amerasinghe, Law of the International Civil Service, 2nd edition, 1993, 49 et seq. and P. Pescatore, "Two Tribunals and one Court — Some Current Problems of International Staff Administration in the Jurisdiction of the ILO and UN Administrative Tribunals and the International Court of Justice", in: N. Blokker and S. Muller, Towards More Effective Supervision by International Organizations, Essays in Honour of Henry G. Schermers, 1994, 217 et seq. N. Valticos, "Once More about the ILO System of Supervision: In What Respect is it Still a M'odel ?", in: Blokker and Muller, see above, 99 et seq. See Rosenne, see note 23, 39-40. Done in Chicago on 7 December 1944.


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such cases as one that was to preserve the good functioning of the international organizations concerned, in this case the ICAO.29 On the occasion of one of the last revisions of the Rules of Court of the ICJ, the title of article 87 was changed from "appeals" to "special reference to the Court".30

3. ICSID Annulment Tribunals A more active international appeal system exists under the World Bank's Convention on the Settlement of Investment Disputes of 1965 with the creation of the International Centre for the Settlement of Investment Disputes.31 The convention provides in its article 25 for separate conciliation and arbitration procedures between private investors and host countries. In both cases a panel of five experts is chosen from a list, not unlike in the GAIT/WTO framework. If a party is dissatisfied with the outcome of a binding conciliation or arbitration procedure before a panel, article 52 provides it with the opportunity to ask the Secretary-General for the annulment of the Decision of the panel.32 Article 52 para.l reads: Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.

29

30 31 32

Appeal Relating to the Jurisdiction of the ICAO Council, ICJ Reports 1972, 46 et seq., (60). See Rosenne, see note 23, 103. UNTS Vol.575 No.8359. See, for example, I. Seidl-Hohenveldern, "Die Aufhebung von ICSIDSchiedsspriichen", Jahrbuch ftir die Praxis der Schiedsgerichtsharkeit III (1989), 100 et seq.

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Apart from manifest procedural mistakes (wrong constitution of the panel, missing statement of reasons, serious departure from a fundamental rule of procedure) and corruption, the main reason for annulment is that the panel has exceeded its powers. This includes according to the case law also erroneous legal findings which do not even necessarily have to constitute manifest or serious failures.33 This case law has been criticized by several authors who argue that erroneous legal findings (errores in iudicando) should not constitute a ground for annulment and that such an interpretation is incompatible with article 52 of the Convention which under article 52 para.l lit.(d) only allows an annulment for errores in procedendo.*4 While the Conventions annulment procedure as such is not construed as an appeal, "the perception of the ICSID annulment process as shading into appeal is fuelled and justified in part by the language of Article 52.1 (e), which seemingly invites scrutiny of tribunal Decisions but also in terms of substantive correctness."35 Reportedly, the Secretary-General of ICSID at one time feared that such an extension of the number of grounds for annulment might lead to more disputes in the future and thereby damage the ICSID system. " . . . [I]f parties, dissatisfied with an award, made it a practice to seek annulment, the effectiveness of the ICSID machinery might become questionable and both investors and Contracting Parties might be deterred form making use of ICSID arbitration."36

4. CUSFTA and NAFTA Extraordinary Challenge Committees Among the many regional integration arrangements that exist today, the one that has shaped the trade relationship between the United States and Canada first — the Canada-United States Free Trade Agreement (CUSFTA)37 — and later between those two countries and Mexico - the

33

34 35

36 37

Klockner v. Cameroon, Decision of the ad-hoc-Committee, ICSID Review 1986, 90, (93). See Lauterpacht, see note 7, 102. See D. Caron, "Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction between Annulment and Appeal", ICSID Review, 1993,21, (34). As quoted in Lauterpacht, see note 7, 103. As reprinted in ILM 27 (1988), 281 et seq.


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North American Free Trade Agreement (NAFTA)38 — contain a dispute settlement mechanism that merits comparison to the WTO system. The world's most renowned regional integration system - the European Union (EU) - has an even more developed dispute settlement system with a highly sophisticated appellate system but it is close enough to a domestic judicial system to make it inappropriate for generalized comparison to international organizations.39 CUSFTA and NAFTA both are relatively close in their architecture to the new WTO system and the old GATT. We will focus on the NAFTA system here as it takes up most of the interesting CUSFTA mechanisms, but will have to refer to CUSFTA case law at times. Chapter 20 NAFTA incorporates basically Chapter 18 CUSFTA, and Chapter 19 NAFTA is based on the same chapter under CUSFTA. NAFTA contains three types of dispute settlement mechanisms: (a) Chapter 19 provides for bilateral expert panels in cases where antidumping duties and countervailing duties are at the origin of a dispute; (b) Chapter 20 establishes a Trilateral Free Trade Commission which can establish ad hoc expert panels for the general settlement of disputes; and (c) in various chapters of the agreement there exist specific provisions concerning the dispute settlement for specific areas, such as in Chapter 11B on investment disputes. Of these three areas of dispute settlement only Chapter 19 NAFTA contains a possibility for some kind of appeal, while the general dispute settlement under Chapter 20 NAFTA and the specific chapter provisions contain only an expert panel mechanism as under the old GATT.40 The characteristic element of the dispute settlement under Chapter 19 is that it establishes panels which review Decisions by domestic administrative authorities. Domestic authorities and judicial or gw^sj-judicial bodies take Decisions based on domestic law with regard to antidumping proceedings and the imposition of countervailing duties. These domestic Decision can then be appealed against before Chapter 19 NAFTA and CUSFTA panels; they replace the existing domestic bodies 38 39

40

As reprinted in ILM 32 (1993), 296 et seq. and 605 et seq. For details see T. Millet, The Court of First Instance, 1990 and K. Brandt, "Der Europaische Gerichtshof und das Gericht erster Instanz (EuG) Aufbau, Funktion und Befugnisse", Juristisches Schulung 34 (1994), 300305. For details see, however, D.S. Huntington, "Settling Disputes Under the North American Free Trade Agreement", Harv.Int'l L.J. 34 (1993), 407 et seq.

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of second or last instance (article 1904.1 CUSFTA and NAFTA). In adjudicating the cases the panels have to apply the domestic law and standards of review, exactly as a domestic body would have to apply them (e.g. article 1904.3 NAFTA). The first stage of the NAFTA and CUSFTA procedure under Chapter 19 is therefore not a review of a Decision that was taken by an international institution but an internationalized review of a domestic Decision, much like we know it in the international human rights field (European Court of Human Rights or any of the specialized UN institutions).41 The Decisions presented by these panels, however, can be taken before a so-called Extraordinary Challenge Committee (arts 1904 and 1904.13 CUSFTA/NAFTA) . This is a true appeal against a Decision by a multilateral panel. Under CUSFTA, of the 49 Decisions, presented by panels under Chapter 19 from January 1989 to April 1994, three were subsequently challenged before an Extraordinary Challenge Committee. This small number has most probably to do with the narrow scope of review the Extraordinary Challenge Committee has.42 The Extraordinary Challenge Committee is composed of three judges from a permanent list of ten experts. Each party to a bilateral dispute has the right to propose one candidate. The third candidate is chosen by these two, much as in a traditional arbitration procedure. The possible grounds for challenge under article 1904.13 CUSFTA are: (a) (i) a member of the panel was guilty of gross misconduct, bias, or a serious conflict of interest, or otherwise materially violated the rules of conduct, (ii) the panel seriously departed from a fundamental rule of procedure, or (iii) the panel manifestly exceeded its powers, authority or jurisdiction set forth in this Article; and (b) any of the actions set out in subparagraph (a) has materially affected the panel's Decision and threatens the integrity of the bi-national panel review process. This very small number of grounds for review and the difficulty in proving that an error has materially affected the Decision made this re41

42

See R.St.J. Macdonald, "Margins of Appreciation", in: R.St.J. Macdonald et al. (eds), European System for the Protection of Human Rights, 1993, 83 et seq. See Huntington, see note 40, 415 and T.M. Boddez and A.M. Rugman, "Effective Dispute Settlement: A Case Study of the Initial Panel Decisions Under Chapter 19 of the Canada-United States Free Trade Agreement", in: E.H. Fry and L.H. Radebaugh (eds), Investment in the North American Free Trade Areas: Opportunities and Challenges, 1991, 93 et seq.


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view mechanism unattractive under CUSFTA. The United States was the plaintiff in all three cases brought before an Extraordinary Challenge Committee and expressed a desire to enable the system more generally to review and correct cases that were incorrectly decided at the first level, while Canada, on the other hand, advocated a narrow and limited review for manifest errors in order to maintain the efficiency and reliability of the system.43 The three existing cases were tended to be decided according to the Canadian philosophy and kept the reviewability rather narrow. One panel eventually expressed its view that article 1904.13 "provides explicit, narrow grounds for extraordinary challenges and makes clear that an extraordinary challenge is not intended to function as a routine appeal."44 Most commentators considered that this attitude by the Extraordinary Challenge Committee itself had led to both a strengthening of the process and the authority of the panels at first instance as well as to the prevention of an excessive use of the Extraordinary Challenge Committee.45

IV. The WTO Appellate Body at Work - Existing Case Law (1996,1997, and 1998) 1. Overview At least as far as the case load is concerned, the dispute settlement system of the WTO was, almost from the start, a great success. This is particularly true for the Appellate Body which after a slow beginning in 1996 with only two reports — obviously due to the fact that there had first to be cases decided by panels which could be appealed against to the Appellate Body — delivered six reports in 1997 and eight reports in 1998. Of the total of 20 reports circulated by panels in the first three 43

44

45

See H.E. Moyer, "Chapter 19 of the NAFTA: Binational Panels as the Trade Court of Last Resort", Int'l Law 27 (1993), 707 et seq., (724). Fresh, Chilled or Frozen Pork from Canada, Secretariat File No. EEC-911904-01 United States, decided on 14 June 1991, quoted in Huntington, see note 40, 437. G.N. Horlick and A. De Busk, "Dispute Resolution Panels of the USCanada Free Trade Agreement: The First Two and a Half Years", McGill Law Journal 36 (1992), 575 et seq., (598); J.A. McKinney, "Dispute Settlement under the US-Canada Free Trade Agreement", JWT 25 (1991), 117 et seq., (125).

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years, all but three Decisions were appealed against,46 bearing in mind that for one Decision the period for the request of an appeal was still not completed at the time of the writing of this article.47 All three panel reports presented directly to the DSB during this period as well as all the 16 joint submissions of panel reports and the subsequent Appellate Body reports were adopted by the DSB. A very simple statistical analysis of the results of the appeal proceedings before the WTO Appellate Body shows that of the 16 cases analyzed for the period of 1996 to 1998, the Appellate Body in only two cases fully upheld the result and the legal reasoning of the panels. These two instances were namely the Decisions in Brazil — Measures Affecting Desiccated Coconut, circulated on 21 February 1997, and United States — Measures Affecting Imports of Woven Wool Shirts and Blouses, circulated on 25 April 1997. In all the other cases the Appellate Body has at least modified or partly reversed the panel Decisions. The degree of reversal varied from a mere correction of the legal argumentation to a substantial reversal of the findings of the panel as to whether Parties had nullified or impaired benefits accruing under the relevant WTO agreements. In one very recent case, the Appellate Body even annulled the effect of the panel Decision all together by stating that the issue had to be considered as not having been properly before a panel due to the lack of a clear statement of the claims submitted by the plaintiff. This

46

47

The first case concerned: Indonesia — Certain Measures Affecting the Automobile Industry, complaint by Japan (WT/DS55), request dated 4 October 1996. The report of the panel was circulated to members on 2 July 1998. At its meeting on 23 July 1998, the DSB adopted the panel report. The second case concerned: Japan — Measures Affecting Consumer Photographic Film and Paper, complaint by the United States (WT/DS44), request dated 13 June 1996. The report of the panel was circulated to members on 31 March 1998. The panel report was adopted by the DSB on 22 April 1998. The third case concerned India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, complaint by the European Communities (WT/DS79/1), request dated 28 April 1997. The report of the panel was circulated to members on 24 August 1998. At its meeting on 2 September 1998, the DSB adopted the panel Report. This last case was preceded by a similar US complaint (India-Patent Protection for Pharmaceutical and Agricultural Products, WT/DS50, see below note 63), where the panel and Appellate Body reports were adopted on 16 January 1998. Japan — Measures Affecting Agricultural Products. The Panel Report was circulated on 27 October 1998.


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amounts to a full annulment of the Decision of the panel.48 The following is a short description of the appeals heard by the Appellate Body and shows the degree of activism and the action taken by the Appellate Body. This shall serve to illustrate the relationship between the expert panels and the Appellate Body.49 The dates in brackets indicate the time of circulation of the Appellate Body reports.

2. United States — Standards for Reformulated and Conventional Gasoline (22 April 1996) A single panel considered the complaints of both Venezuela and Brazil.50 The complainants alleged that a US gasoline regulation discriminated against complainants' gasoline in violation of GATT arts I and III and article 2 of the Agreement on Technical Barriers to Trade (TBT). The report of the panel found the regulation to be inconsistent with GATT article III para.4 and not to benefit from an article XX exception.51 The United States appealed on 21 February 1996. On 22 April, the Appellate Body issued its report, modifying the panel report on the interpretation of GATT article XX lit.(g), but concluding that article XX lit.(g) was not applicable in this case.52

3. Japan — Taxes on Alcoholic Beverages, Complaints by the European Communities (4 October 1996) In this joint dispute settlement procedure complainants claimed that spirits exported to Japan were discriminated against under the Japanese liquor tax system which, in their view, levied a substantially lower tax

48

49

50

51 52

Guatemala — Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, 2 November 1998. The following material and short descriptions have been entirely taken from the WTO homepage. United States-Standards for Reformulated and Conventional Gasoline, complaints by Venezuela (WT/DS2) and Brazil (WT/DS4). WT/DS2/R, 29 January 1996. WT/DS2/AB/R. The Appellate Report, together with the panel report as modified by the Appellate Report, was adopted by the DSB on 20 May 1996.

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on "shochu" than on whisky, cognac and white spirits.53 A joint panel was established at the DSB meeting on 27 September 1995. The report of the panel, which found the Japanese tax system to be inconsistent with GATT article III para. 2, was circulated to members on 11 July 1996. On 8 August 1996 Japan filed an appeal. The report of the Appellate Body was circulated to members on 4 October 1996. The Appellate Body's Report affirmed the panel's conclusion that the Japanese Liquor Tax Law was inconsistent with GATT article III para.2, but pointed out several areas where the panel had erred in its legal reasoning. The Appellate Report, together with the panel report as modified by the Appellate Report, was adopted on 1 November 1996.54

4. United States — Restrictions on Imports of Cotton and Man-Made Fibre Underwear (10 February 1997) This dispute involved United States restrictions on textile imports from Costa Rica, allegedly in violation of the Agreement on Textiles and Clothing.55 The panel found that the United States restraints were not valid. The report of the panel was circulated to members on 8 November 1996. On 11 November 1996, Costa Rica notified its Decision to appeal against one aspect of the panel report. The Appellate Body upheld the appeal by Costa Rica on that particular point. The report of the Appellate Body was circulated to members on 10 February 1997. The Appellate Body's report and the panel report as modified by the Appellate report, were adopted by the DSB on 25 February 1997.56

53

54

55

56

Japan — Taxes on Alcoholic Beverages, complaints by the European Communities (WT/DS8), Canada (WT/DS10) and the United States (WT/DS 11). On 24 December 1996, the US, pursuant to article 21 para.3 lit.(c) of the DSU applied for binding arbitration to determine the reasonable period of time for implementation by Japan of the recommendations of the Appellate Body. The Arbitrator found the reasonable period for implementation of the recommendations to be 15 months. The Arbitrator's report was circulated to members on 14 February 1997. United States — Restrictions on Imports of Cotton and Man-Made Fibre Underwear, complaint by Costa Rica (WT/DS24). At the meeting of the DSB on 10 April 1997, the United States informed the meeting that the measure which had been the subject of this dispute had expired on 27 March 1997 and had not been renewed, effectively meaning


457

5. Brazil — Measures Affecting Desiccated Coconut, Complaint by the Philippines (21 February 1997) The Philippines claimed that the countervailing duty imposed by Brazil on the Philippine's exports of desiccated coconut was inconsistent with WTO and GATT rules.57 The report of the panel concluded that the provisions of the agreements relied on by the claimant were inapplicable to the dispute.58 The report was circulated to members on 17 October 1996. On 16 December 1996, the Philippines notified its Decision to appeal against certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld the findings and legal interpretations of the panel. The report of the Appellate Body was circulated to members on 21 February 1997. The Appellate Body's report and the panel's report, as modified by the Appellate Body's report, were adopted by the DSB on 20 March 1997.

6. United States — Measures Affecting Imports of Woven Wool Shirts and Blouses (25 April 1997) This case concerned the transitional safeguard measure imposed by the United States.59 India claimed that the safeguard measure was inconsistent with arts 2, 6 and 8 of the Agreement on Textiles and Clothing. A panel was established at the DSB meeting on 17 April 1996. The panel found that the safeguard measure imposed by the United States violated the provisions of the Agreement on Textiles and Clothing. The report of the panel was circulated to members on 6 January 1997. On 24 February 1997, India notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld the panel's Decisions on those issues of law and legal interpretations that were appealed against. The report of the Appellate Body was circulated to members on 25 April 1997. The Appellate Body report and the panel

57

58 59

that the United States had immediately complied with the recommendations of the DSB. Brazil — Measures Affecting Desiccated Coconut, complaint by the Philippines (WT/DS22). (WT/DS22/R). United States — Measure Affecting Imports of Woven Wool Shirts and Blouses, complaint by India (WT/DS33).

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report, as upheld by the Appellate Body, were adopted by the DSB on 23 May 1997.

7. Canada — Certain Measures Concerning Periodicals (30 June 1997) In its request for consultations dated 11 March 1996, the United States claimed that measures prohibiting or restricting the importation into Canada of certain periodicals were in contravention of GATT article XI.60 The United States further alleged that the tax treatment of socalled "split-run" periodicals and the application of favourable postage rates to certain Canadian periodicals were inconsistent with GATT article III. The DSB established a panel on 19 June 1996. The panel found the measures applied by Canada to be in violation of GATT rules. The report of the panel was circulated to members on 14 March 1997. On 29 April 1997, Canada notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld the panel's findings and conclusions on the applicability of GATT 1994 to Part V.I of Canada's Excise Tax Act, but reversed the panel's finding that Part V.I of the Excise Tax Act was inconsistent with the first sentence of article III para.2 of GATT 1994. The Appellate Body further concluded that Part V.I of the Excise Tax Act was inconsistent with the second sentence of article III para.2 of GATT 1994. The Appellate Body also reversed the panel's conclusion that Canada's "funded" postal rate scheme was justified by article III para.8 lit.(b) of GATT 1994. The report of the Appellate Body was circulated to members on 30 June 1997. At its meeting on 30 July 1997, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body.

8. European Communities — Regime for the Importation, Sale and Distribution of Bananas (9 September 1997) The complainants alleged that the EC's regime for importation, sale and distribution of bananas was inconsistent with GATT arts I, II, III, X, XI and XIII as well as provisions of the Import Licensing Agreement, the 60

Canada — Certain Measures Concerning Periodicals, complaint by the United States (WT/DS31).


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Agreement on Agriculture, the Agreement on Trade Related Investment Measures (TRIMs Agreement) and the GATS.61 A panel was established at the DSB meeting on 8 May 1996. The panel found that the EC's banana import regime, and the licensing procedures for the importation of bananas in this regime, were inconsistent with the GATT. The panel further found that the Lome waiver waived the inconsistency with GATT article XIII, but not other inconsistencies arising from the licensing system. The report of the panel was circulated to members on 22 May 1997. On 11 June 1997, the European Communities notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body mostly upheld the panel's findings, but reversed the panel's findings that the inconsistency with GATT article XIII was waived by the Lome waiver, and that certain aspects of the licensing regime violated article X of GATT and the Import Licensing Agreement. The report of the Appellate Body was circulated to members on 9 September 1997. At its meeting on 25 September 1997, the Appellate Body and the panel report, as modified by the Appellate Body, were adopted by the DSB.62

9. India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (19 December 1997) This request, dated 2 July 1996, concerned the alleged absence of patent protection for pharmaceutical and agricultural chemical products in In-

61

62

European Communities — Regime for the Importation, Sale and Distribution of Bananas, complaints by Ecuador, Guatemala, Honduras, Mexico and the United States (WT/DS27).The complainants in this case other than Ecuador had requested consultations with the EC on the same issue on 28 September 1995 (WT/DS16). After Ecuador's accession to the WTO, the current complainants again requested consultations with the EC on 5 February 1996. On 17 November 1997, the complainants requested that the "reasonable period of time" for implementation of the recommendations and rulings of the DSB be determined by binding arbitration, pursuant to article 21 para.3 lit.(c) of the DSU. The Arbitrator found the reasonable period of time for implementation to be the period from 25 September 1997 to 1 January 1999. The report of the Arbitrator was circulated to members on 7 January 1998.

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dia.63 Violations of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) arts 27, 65 and 70 were claimed. The United States requested the establishment of a panel on 7 November 1996. The DSB established a panel at its meeting on 20 November 1996. The panel found that India had not complied with its obligations under article 70 para.8 lit.(a) or article 63 paras. 1 and 2 of the TRIPS Agreement by failing to establish a mechanism that adequately preserved novelty and priority in respect of applications for product patents for pharmaceutical and agricultural chemical inventions, and was also not in compliance with article 70 para.9 of the TRIPS Agreement by failing to establish a system for the grant of exclusive marketing rights. The report of the panel was circulated on 5 September 1997. On 15 October 1997, India notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld, with modifications, the panel's findings on arts 70 para.8 and 70 para.9, but ruled that article 63 para.l was not within the panel's terms of reference. The report of the Appellate Body was circulated to members on 19 December 1997. The Appellate Body report and the panel report, as modified by the Appellate Body, were adopted by the DSB on 16 January 1998.64

10. European Communities — Measures Affecting Livestock and Meat (Hormones) (16 January 1998) On 25 April 1996, the United States requested the establishment of a panel in this dispute, claiming that measures taken by the EC under the Council Directive Prohibiting the Use in Livestock Farming of Certain Substances Having a Hormonal Action restricted or prohibited imports of meat and meat products from the United States, and were apparently inconsistent with GATT arts III or XI, Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) arts 2, 3 and 5, TBT Agreement article 2 and the Agreement on Agriculture article 4.65 A panel was established at the DSB meeting on 20 May 1996. The 63

64

65

India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, complaint by the United States (WT/DS50). At the DSB meeting of 22 April 1998, the parties announced that they had agreed on an implementation period of 15 months. European Communities — Measures Affecting Meat and Meat Products (Hormones), complaint by the United States (WT/DS26).


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panel found that the EC ban on imports of meat and meat products from cattle treated with any of six specific hormones for growth promotion purposes was inconsistent with arts 3 para.l, 5 para.l and 5 para.5 of the SPS Agreement. The report of the panel was circulated to members on 18 August 1997. Already on 28 June 1996, Canada had also requested consultations with the EC regarding the same problem.66 The Canadian claim was essentially the same as the United States claim (WT/DS26), for which a panel had been established earlier. The DSB established a second panel on 16 October 1996, which was identical in its composition to the panel established for the complaint by the United States. The findings in the second panel report were substantially equal to those in the complaint by the United States. On 24 September 1997, the EC notified its intention to appeal certain issues of law and legal interpretations developed by the panel in both Decisions. The Appellate Body upheld the panel's finding that the EC import prohibition was inconsistent with arts 3 para.3 and 5 para.l of the SPS Agreement, but reversed the panel's finding that the EC import prohibition was inconsistent with arts 3 para.l and 5 para.5 of the SPS Agreement. On the general and procedural issues, the Appellate Body upheld most of the findings and conclusions of the panel, except with respect to the burden of proof in proceedings under the SPS Agreement. The report of the Appellate Body was circulated to members on 16 January 1998. The Appellate Body report and the panel report, as modified by the Appellate Body, were adopted by the DSB on 13 February 1998.67

66

67

European Communities — Measures Affecting Livestock and Meat (Hormones), complaint by Canada (WT/DS48). On 16 April 1997, the respondent requested that the "reasonable period of time" for implementation of the recommendations and rulings of the DSB be determined by binding arbitration, pursuant to article 21 para.3 lit.(c) of the DSU. The Arbitrator found the reasonable period of time for implementation to be 15 months from the date of adoption (i.e. 15 months from 13 February 1998). The report of the Arbitrator was circulated to members on 29 May 1998.

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11. Argentina — Certain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (27 March 1997) This request, dated 4 October 1996, concerned the imposition of specific duties on these items in excess of the bound rate and other measures by Argentina.68 The United States contended that these measures violated arts II, VII, VIII and X of GATT 1994, article 2 of the TBT Agreement, article 1 to 8 of the Agreement on Implementation of article VII of GATT 1994, and article 7 of the Agreement on Textiles and Clothing. On 9 January 1997, the United States requested the establishment of a panel. At its meeting on 25 February 1997, the DSB established a panel. The panel found that the minimum specific duties imposed by Argentina on textiles and apparel were inconsistent with the requirements of article II of GATT, and that the statistical tax of three per cent ad valorem imposed by Argentina on imports was inconsistent with the requirements of article VIII of GATT. The report of the panel was circulated on 25 November 1997. On 21 January 1998, Argentina notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld, with some minor modification, the panel's findings and conclusions. The report of the Appellate Body was circulated to members on 27 March 1998. The Appellate Body report and the panel report, as modified by the Appellate Body, were adopted by the DSB on 22 April 1998.

12. European Communities — Customs Classification of Certain Computer Equipment (5 June 1998) The complaints in this case were in respect of the reclassification by the European Communities, for tariff purposes, of certain Local Area Network (LAN) adapter equipment and personal computers with multimedia capability.69 The United States alleged that these measures violated article II of GATT 1994. On 11 February 1997, the United States requested the establishment of a panel. At its meeting on 25 February 1997, the DSB established a panel. The panel found that the EC failed to 68

69

Argentina — Certain Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, complaint by the United States (WT/DS56). European Communities, United Kingdom, and Ireland-Customs Classification of Certain Computer Equipment, complaint by the United States (WT/DS62, 67, 68).


463

accord imports of LAN equipment from the United States treatment no less favourable than that provided for in the EC Schedule of commitments, thereby acting inconsistently with article II para.l of GATT 1994. The report of the panel was circulated to members on 5 February 1998. On 24 March 1998, the EC notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body reversed the panel's conclusion that the EC tariff treatment of LAN equipment was inconsistent with article II para.l of GATT 1994. The report of the Appellate Body was circulated to members on 5 June 1998. At its meeting on 22 June 1998, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.

13. European Communities — Measures Affecting Importation of Certain Poultry Products (13 July 1998) This request dated 24 February 1997, was in respect of the EC regime for the importation of certain poultry products and the implementation by the EC of the Tariff Rate Quota for these products.70 Brazil contended that the EC measures were inconsistent with arts X and XXVII of GATT 1994 and arts 1 and 3 of the Agreement on Import Licensing Procedures. Brazil also contended that the measures nullified or impaired benefits accruing to it directly or indirectly under GATT 1994. On 12 June 1997, Brazil requested the establishment of a panel. At its meeting on 30 July 1997, the DSB established a panel. The panel found that Brazil had not demonstrated that the EC had failed to implement and administer the tariff rate quota for poultry in line with its obligations under the cited agreements. The report of the panel was circulated to members on 12 March 1998. On 29 April 1998, Brazil notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body upheld most of the panel's findings and conclusions, but reversed the panel's finding that the EC had acted inconsistently with article 5 para.l lit.(b) of the Agreement on Agriculture. The Appellate Body, however, concluded that the EC had acted inconsistently with article 5 para.5 of the Agreement on Agriculture. The report of the Appellate Body was circulated to members on 13 July 1998. At its meeting on 23 July 1998, the DSB adopted the Appel70

European Communities — Measures Affecting Importation of Certain Poultry Products, complaint by Brazil (WT/DS69).

464


late Body report and the panel report, as modified by the Appellate Body report.

14. United States — Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) This request, dated 8 October 1996, concerned a joint complaint by India, Malaysia, Pakistan and Thailand against a ban on importation of shrimp and shrimp products from these countries imposed by the United States under Section 609 of US Public Law 101-162.71 Violations of arts I, XI and XIII of GATT 1994, as well nullification and impairment of benefits, were alleged. On 9 January 1997, Malaysia and Thailand requested the establishment of a panel. On 30 January 1997, Pakistan also requested the establishment of a panel. At its meeting on 25 February 1997, the DSB established a panel.72 The panel found that the import ban in shrimp and shrimp products as applied by the United States was inconsistent with article XI para.l of GATT 1994, and coulJ not be justified under article XX of GATT 1994. The report of the panel was circulated to members on 15 May 1998. On 13 July 1998, the United States notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body reversed the panel's finding that the United States measure at issue was not within the scope of measures permitted under the chapeau of article XX of GATT 1994, but concluded that the United States measure, while qualifying for provisional justification under article XX lit.(g), failed to meet the requirements of the chapeau of article XX. The report of the Appellate Body was circulated to members on 12 October 1998. The DSB adopted the Appellate Body Report and the panel Report, as modified by the Appellate Body Report, on 6 November 1998. It was particularly on the occasion of the adoption of this report by the DSB

71

72

United States — Import Prohibition of Certain Shrimp and Shrimp Products, complaint by India, Malaysia, Pakistan and Thailand (WT/DS58). On 25 February 1997, India also requested the establishment of a panel in the same matter. At its meeting on 10 April 1997, the DSB agreed to establish a panel in respect of India's request but agreed to incorporate this with the panel already established in respect of the other complainants.


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that heavy criticism with regard to the role of the Appellate Body was for the first time made public.73

15. Australia — Measures Affecting the Importation of Salmon (20 October 1998) This request for consultations, dated 5 October 1995, related to Australia's prohibition of imports of salmon from Canada based on a quarantine regulation.74 Canada alleged that the prohibition was inconsistent with GATT arts XI and XIII, and also inconsistent with the SPS Agreement. On 7 March 1997, Canada requested the establishment of a panel. At its meeting on 10 April 1997, the DSB established a panel. The panel found that the Australian measures complained against were inconsistent with arts 2 para.2, 2 para.3, 5 para.l, 5 para.5, and 5 para.6 of the SPS Agreement, and also nullified or impaired benefits accruing to Canada under the SPS Agreement. The report of the panel was circulated to members on 12 June 1998. On 22 July 1998, Australia notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body reversed the panel's reasoning with respect to arts 5 para.l and 2 para.2 of the SPS Agreement but nevertheless found that Australia had acted inconsistently with arts 5 para.l and 2 para.2 of the SPS Agreement; broadened the panel's finding that Australia had acted inconsistently with arts 5 para.5 and 2 para.3 of the SPS Agreement; reversed the panel's finding that Australia had acted inconsistently with article 5 para.6 of the SPS Agreement but was unable to come to a conclusion whether or not Australia's measure was consistent with article 5 para.6 due to insufficient factual findings by the panel. The report of the Appellate Body was circulated to members on 20 October 1998. The DSB adopted the Appellate Body Report and the panel Report, as modified by the Appellate Body Report, on 6 November 1998.

73

74

See for example the heavy criticism by India, Malaysia and Pakistan as reported in: Neue ZUrcher Zeitung, 10 November 1998, No. 261, 23. Australia-Measures Affecting the Importation of Salmon, complaint by Canada (WT/DS18).

466


16. Guatemala — Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico (2 November 1998) This request, dated 15 October 1996 was in respect of an anti-dumping investigation commenced by Guatemala with regard to imports of Portland cement from Mexico. Mexico alleged that this investigation was in violation of Guatemala's obligations under arts 2, 3, 5 and 7 para.l of the Anti-Dumping Agreement.75 On 4 February 1997, Mexico requested the establishment of a panel. At its meeting on 20 March 1997, the DSB established a panel. The panel found that Guatemala had failed to comply with the requirements of article 5 para.3 of the AntiDumping Agreement by initiating the investigation on the basis of evidence of dumping, injury and casual link that was not "sufficient" as a justification for initiation. The report of the panel was circulated to members on 19 June 1998. On 4 August 1998, Guatemala notified its intention to appeal certain issues of law and legal interpretations developed by the panel. The Appellate Body reversed the panel's finding that the dispute was properly before the panel, on the ground that Mexico did not comply with article 6 para.2 of the DSU in its request for a panel since it did not identify the measure it was complaining against. Having found that the dispute was not properly before the panel, the Appellate Body could not make any conclusions on the findings by the panel on the substantive issues that were also the subject of the appeal. The Appellate Body stressed that its Decision was without prejudice to Mexico's right to pursue fresh dispute settlement proceedings on this matter. The report of the Appellate Body was circulated to members on 2 November 1998. At the DSB meeting on 25 November 1998, the DSB adopted the Appellate Body Report and the panel Report, as reversed by the Appellate Body Report.

V. The Appellate Body's Role in the WTO Dispute Settlement System 1. Almost every Panel Decision Is Appealed Against Unfortunately, this contribution is too limited in scope to give a detailed account of the exact differences between the panel reports and the 75

Guatemala-Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, complaint by Mexico (WT/DS60).


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reports circulated by the Appellate Body. There are two elements which are immediately clear, and which are presumably linked to each other to some extent. Of the first 19 decisions delivered by dispute settlement panels all but three were appealed against. Of the three cases not appealed one involved the United States - a party that has otherwise appealed all the panel Decisions which were not favourable to its own view. The one case not appealed by the United States was the so called Fuji/Kodak-Case76 in which the legal argumentation used by the United States had been considered quite weak under the existing rules from the beginning and where some commentators argued that it was in the interest of the United States to demonstrate the inefficiency of the existing rules. On the whole, one can therefore say that parties usually almost automatically appeal against panel Decisions which are not favourable to their view. It is not surprising to conclude that this must eventually lead to a heavy workload for the Appellate Body, just as had once been stated with regard to the ICSID review process by its Secretary-General.77

2. Almost in every Appeal the Original Decision Is Modified With regard to the attitude taken by the Appellate Body towards the panels, the mere numbers show, that the Appellate Body has virtually modified all the Decisions of the first instance. As shown above in a comparative analysis of existing appeal mechanisms, this is an outcome which would surprise both in most domestic systems and also under the few existing international mechanisms. Not every system is so narrow as to would only allow for a reversal of clearly erroneous cases, but most systems would aim at preserving a certain credibility of the Decision at the first instance and provide incentives to prevent an appeal at any cost. Admittedly, the Appellate Body has in many cases upheld the result of the question of whether a party had nullified or impaired benefits accruing under an agreement, but the Appellate Body at the same time was not timid at all to impose its own view of certain questions of interpretation where the panels' views were certainly not fully erroneous. It seems that the Appellate Body perceives its main task very much as to establish a clear authoritative interpretation of the entire set of rules under the existing WTO Agreements and to reach a high stan76 77

See note 46. See above the remarks in Section 3.

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dard of legal argumentation, in many cases based on general international law.78 Following the highly disputed reversal of the panel findings in the "Shrimp/Turtle Case"79 the complainants and several third parties, such as Thailand, Malaysia, India, the Philippines and Pakistan argued that the Appellate Body was acting too much like a tribunal of last instance or even a Constitutional Court — a task that was lying clearly outside its vocation and consisted an abuse of the power it had been given by the founding members of the WTO. Furthermore, there have been critical voices which consider the Appellate Body as leaning towards "judicial activism" and going too far in its own interpretations whereas the panels are generally more moderate in their legal interpretations.80

3. Conceptual Problems and Outlook The WTO Appellate Body certainly has a difficult task. In comparison with the other existing appellate review systems in international law it is unique with regard to the regular use made of it and the sophistication of its jurisprudence. It is a standing judicial body that certainly has a vocation and a real chance to maintain the credibility and reliability of the WTO dispute settlement system. This may make it necessary to repeal or modify the Decisions handed down by expert panels if their content would otherwise put at risk the credibility and reliability of the WTO dispute settlement mechanism as a whole. The question of how perfect the legal reasoning of the panels reviewed has to be and whether the Appellate Body is doing the right thing by modifying almost the entire body of Decision as rendered at the first instance is a different one. Currently the strong activism by the Appellate Body puts at risk the panel system whose authority has probably never been as weak as today. The current situation seems difficult to maintain. There are two explanations for the current situation where almost every panel Decision is appealed against by the parties and subsequently almost certainly modified by the Appellate Body. One explanation 78

79 80

Which of course is laudable form a purely legal point of view; see for example D. Palmeter and P. Mavroidis, "The WTO Legal System: Sources of Law", AJIL 92 (1998), 39 et seq., (406 et seq.). See note 71. See the discussion within the DSB as reported, for example, in: Inside U.S. Trade of 13 November 1998, 7.


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could be that the panel Decisions are generally of bad quality and almost always erroneous. If this were true, one could only congratulate the Appellate Body for its activity and the degree to which it has been able to prevent the adoption of legally erroneous Decisions by the DSB. At the same time this implies, however, that the Decisions at first instance would be almost useless and that the panel review system would definitely have to be revised in the near future. It also casts a strange light on the panel system under the old GATT where the vast majority of the panel Decisions were adopted by the Parties without major criticism. Has the quality of the Decisions changed so much or was the old system blind? An alternative explanation for the high number of challenged and modified Decisions is that the new system has put enormous political pressure on the parties to seek an appeal if they lose at the first instance. There have been fears since the introduction of the Appellate Body that this could happen. One remedy suggested to prevent this was that the Appellate Body should be cautious not to undermine the authority of the panels and apply a rather narrow standard of review with regard to the Decisions challenged. From the number of modified reports one must assume that the Appellate Body has chosen to be active and take its task seriously. This, however, has led to a situation where an appeal is politically very attractive for the appellees, as it will almost always achieve some modification of the legal findings of the first instance, even if this does not change the substantial outcome of a claim as such. Politically, both parties become winners at the second instance if a panel Decision is later modified by the Appellate Body. This is, however, detrimental for the authority of the panels and the panelists who are no longer present in the appellate review. The European Union recently suggested that WTO members establish a permanent body of qualified individuals to serve on dispute settlement panels in order to achieve more consistency between rulings than current panels.81 The high number of modified Decisions has certainly strengthened the incentive to appeal under the WTO appellate system. At the same time the Decision in the Shrimp/Turtle-Case,82 despite the fact that it was welcomed by many developed countries due to its ecological considerations, may prove to lead to a weakening of the authority of the Appellate Body in the eyes of developing countries. It seems clear that 81

82

See EU paper presented on 19 October 1998, reported in: Inside U.S. Trade of 30 October 1998,12. See note 71.

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the current policy of the Appellate Body puts the panel system under great pressure for reform in the next round of multilateral negotiations which may start in autumn 1999. But it is also not impossible that the standard of review of the Appellate Body itself will be the object of intensive discussions.

The WTO Committee on Trade and Environment: Is it making a Difference? Richard G. Tarasofsky

I. Introduction The decision to create the WTO Committee on Trade and Environment (CTE) was taken by the ministers who met in Marrakesh to sign the Final Act of the Uruguay Round on 15 April 1994.1 It followed from the decision taken in 1993 by the Trade Negotiations Committee that a program of work on trade and environment be developed along with recommendations on an institutional structure for its execution. The CTE was established by the WTO General Council, acting under article IV para.7 of the Agreement Establishing the World Trade Organization, and its mandate has been renewed at successive meetings of the Ministerial Conference. One of the objectives of the CTE, as envisaged by the Trade Negotiations Committee included making "appropriate recommendations on whether any modifications of the provisions of the multilateral trading system are required, compatible with the open, equitable and non-discriminatory nature of the system ... "2

1

GATT Doc. MTN/TNC/45(MIN).

2

Trade Negotiating Committee Decision of 15 December 1993.

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The programme of work agreed in 1994 included seven items.3 The SubCommittee on Trade and Environment, established to prepare for the commencement of work by the CTE pending the entry into force of the Uruguay Round Agreements, extended this list to ten.4 At its first meeting in 1995, the program of work was expanded to a total of ten items. These include: multilateral environmental agreements, environmental measures with trade effects, charges, taxes and other product standards, transparency of environmental measures, dispute settlement, market access, domestically prohibited goods, intellectual property rights, services and relationships with inter- and non-governmental organisations. The CTE was not the first effort of the world trading system to address environmental issues. In 1971, a Group on Environmental Measures and International Trade (EMIT) was created under the General Agreement on Tariffs and Trade (GATT). Such a body was ostensibly considered useful given the heightened concern at that time with environmental issues and uncertainty how measures taken to deal with pollution issues might impact on international trade. However, in reality this Committee did not meet for almost 20 years, when after request of the European Free Trade Agreement countries in December 1990 it was finally convened in October 1991.5 By this time, a GATT dispute settlement panel had decided the now-notorious Tuna-Dolphin case, which aroused widespread public concern that the GATT was a significant obstacle to achieving environmental protection. The EMIT Group met frequently from 1991-1994. The discussions were mainly exploratory, but they did serve to help shape the work of the CTE. Since it began meeting in 1995, the CTE has been one of the WTO's most active committees. The main output of the CTE's work to date has been the issuance of its 1996 report to the Ministerial Conference.6 Prior to that report, many proposals were tabled by delegations on a variety of issues. The text of the 1996 report was subject to considerable 3

Ibid.

4

See, e.g. GATT (ed.), Trade and Environment - News and Views from the General Agreement on Tariffs and Trade, GATT Doc. TE Oil of 6 January 1995. See Group on Environmental Measures and International Trade, Interim Report by the Chairman, 3 December 1992, annexed to GATT Doc. TE 001 of 1 April 1993. Report (1996) of the Committee on Trade and Environment, WTO Doc. WT/CTE/W/1 of 12 November 1996.

5

6

Tarasofsky, The WTO Committee on Trade and Environment

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negotiation amongst WTO members, although it ultimately contained very few concrete recommendations. Indeed, some observers were so disappointed in the outcomes of the CTE process by then that some NGOs called for disbanding the CTE at the 1996 WTO Ministerial Conference in Singapore. Since 1996, expectations as to the CTE's ability to actually resolve controversies in the near future have been lowered.

II. A Review of the substantive Discussion in the CTE The following section surveys the substantive discussion within the CTE since its inception.7 Item 1 The relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements Item 1 has been the focus of considerable discussion in the CTE, some of it rather interesting, although to date the main issues remain unresolved. The amount of attention paid to this topic is perhaps not surprising, since one of the major fears of the environmental community was that the international trade regime would undermine hard-won gains achieved through multilateral environmental agreements (MEAs). In the run-up to the 1996 Singapore Ministerial Conference, several proposals were made on reconciling MEAs with the WTO. But it is important to preface any description of these proposals with the observation that not all delegations were of the view that any changes to the status quo ante were necessary. Indeed, some developing countries were of the view that the current regime can sufficiently accommodate legitimate trade-related environmental measures. The proposals made can generally be grouped into those which were "ex ante", "ex post", or a combination of the two. As regards the stronThis section draws on several descriptions of the CTE's work: K. Ewing/R. Tarasofsky (eds), The "Trade and Environment" Agenda: Survey of Major Issues and Proposals — From Marrakesh to Singapore, IUCN, 1997; R. Tarasofsky/F. Weiss, "Report on the World Trade Organization", Yearbook of International Environmental Law 8 (1997), 582 et seq. and the regular Trade and Environment Bulletins of the WTO (under the Press/TE series).

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gest type of "ex ante" actions, namely amendment of the GATT, only Switzerland proposed changing article X of the WTO Agreement in order to create a "coherence clause" which would apply across all WTO Agreements. This clause would provide that in case of conflict between WTO rules and a specific trade provision of a listed MEA, the WTO dispute settlement process would assume both the legitimacy and the necessity of the provision, and would only test it against the chapeau of article XX. Most of the other proposals put forth by delegations concerned developing a non-binding understanding on the interpretation of GATT article XX, which would assist WTO dispute resolution panels in dealing with cases involving MEAs. These proposals could be divided into two categories: those which proposed criteria for MEAs to be accommodated by the WTO, and those which proposed criteria for specific trade measures contained in MEAs to be accommodated by the WTO. Regarding the former, criteria included clearly specified environmental objectives, scientific evidence of the environmental problem, open and transparent negotiating process, and openness of membership to all states sharing the environmental problem. As regards the latter, criteria included specificity of the trade measures in the MEA text, necessity, least-trade restrictiveness, effectiveness, and proportionality. New Zealand proposed a gradation of testing by WTO dispute settlement procedures. At one end, measures taken against MEA parties, which were specifically mandated and notified, would be exempt, while at the other end, no special protection from a WTO challenge would be granted for a non-specified measure taken against a non-party to an MEA. In between, measures taken pursuant to but not specifically mandated by an MEA, or specifically-mandated measures taken against non-members of an MEA, would be subject to specific tests under the WTO dispute settlement procedures. Korea too put forth a proposal with a sliding scale of disciplines, depending on the specificity of the mandate in the MEA for the trade measure. Several developing countries favoured ex post options, which related to the grant of specific waivers for MEAs. ASEAN and Hong Kong proposed guidelines for granting such waivers. The ASEAN proposal was based on a "quid pro quo", whereby the grant of a waiver was accompanied by a commitment not to resort to non-specific measures pursuant to the MEA. The European Community's proposal combined ex post with ex ante approaches. It involved either adding a para.(k) to GATT article XX or adding "environment" to article XX lit.(b), which would have the effect


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of allowing measures to be taken pursuant to MEAs complying with a separate Understanding that would set criteria for qualifying MEAs. Dispute settlement panels would only test a trade measure meeting the terms of the Understanding against the chapeau of article XX. The recommendations contained in the 1996 CTE report to the Singapore Ministerial Conference reveal that there has been some movement on these issues. For example, the report states "... Trade measures based on specifically agreed-upon provisions can also be needed in certain cases to achieve the environmental objectives of an MEA, particularly where trade is related directly to the source of an environmental problem."8 The report further states "A range of provisions in the WTO can accommodate the use of trade-related measures needed for environmental purposes, including measures taken pursuant to MEAs. That includes the defined scope provided by the relevant criteria of the "General Exceptions" provisions of GATT article XX. This accommodation is valuable and it is important that it be preserved by all."9 However, one should not overestimate the value of the statements made in the 1996 Report, since a condition for its acceptance was that the Chairman read a statement prior to the report's adoption that indicated that nothing in the report affected the balance of rights and obligations of members under WTO rules.10 Most recently, Canada asserted that it was unlikely that any formal accommodation between the WTO and MEAs was feasible in the medium-term, and proposed that a "soft" approach be taken in the form of a statement on the interaction between MEAs and the WTO. Item 2 The relationship between environmental policies relevant to trade and environmental measures with significant trade effects and the provisions of the multilateral trading system The discussions in the CTE key under this item have been largely exploratory. Topics raised include: pollution havens, green countervailing 8 9 10

Para.173. Para.l74(ii). W. Lang, "Trade and Environment: Progress in the World Trade Organization?", Environmental Policy and Law 27 (1997), 275 et seq., (278).

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duties, take back and recycled content obligations, along with more general issues. No concrete proposals have been made. To some extent, the CTE also addressed the more general issues about how the international trade rules impact upon environmental policies. Questions aired included - should the principle of non-discrimination, which anchors the international trading regime, be modified in light of environmental principles such as the polluter pays principle or the precautionary approach? -

should the WTO establish common understandings on how concepts such as "necessity", "effectiveness", "least trade-restrictiveness" and "proportionality" apply to environmental policies? - whether trade rules permit a sufficiently wide range of policy options to address environmental concerns, e.g., cost internalization and instruments relating to processing and production methods? - whether trade rules contribute to non-sustainable production and consumption patterns? - should the Agreement on Subsidies be modified so as to address environmentally detrimental energy or agricultural subsidies? The United States proposed that the WTO endorse the notion of environmental reviews of trade agreements by member governments. Indeed, the United States submitted such a review in 1997, which was met with praise by other members, although not unanimity as to how such reviews can best be used in the WTO context. Item 3 The relationship between the provisions of the multilateral trading system and: (a) charges and taxes for environmental purposes (and): (b) requirements for environmental purposes related to products, including standards and technical regulations, packaging, labelling and recycling The discussion on charges and taxes centred on the rules relating to border tax adjustments. In particular, the debate revolved around whether border tax adjustments can be applied to non-product-related production and processing methods. While some members argued that border tax adjustment rules only apply to taxes levied on products or product-related Process and Production Methods (PPMs), others claimed that the rules were less certain in that environmental taxes and charges may be "tax occultes". Members have also been divided about whether there was a need to clarify the rules, with some members ar-


477

guing that discussions on non-product-related PPMs are not relevant. Furthermore, some members pointed out that additional difficulties exist in relation to the potential for double taxation, the lack of a common approach for defining and dealing with environmental charges and taxes , and that the value of environmental damage is often uncertain. Despite the observation by several members that taxes were useful incentive measures, as compared to command-and-control measures, a proposal for increasing coordination on eco-taxation in appropriate international fora did not attract consensus. The discussion on item 3 (b) focused mainly on the issue of ecolabelling, and in particular whether the Code of Good Practice for the Preparation, Adoption and Application of Standards, of the Agreement on Technical Barriers to Trade (TBT Agreement), applied to voluntary ecolabelling schemes. That Agreement is silent on its applicability to ecolabelling, although it is clear that voluntary standards for products and "related processes and production methods" are covered. Canada presented a draft decision based on the view that mandatory ecolabelling measures, voluntary ecolabelling measures, and ecolabelling compliance procedures, both governmental and non-governmental, are within the scope of the TBT Agreement and its Code of Good Practice.11 It went on to propose that standardising bodies which develop ecolabelling programmes should accept the Code of Good Practice. The draft decision suggested that the CTE and the WTO Committee on Technical Barriers to Trade should jointly analyse the impact of developing international standards based on life-cycle approaches. It noted, however, that its proposal is without prejudice to whether eco-labels based on non-product-related PPMs are within the scope of the TBT Agreement, although it was of the view, that they were so long, as they are based on ecolabelling guidelines that are multilaterally agreed, based on scientific criteria, and are transparent, consensual and nondiscriminatory. The United States and the European Community presented proposals aimed at enhancing transparency in the development and implementation of ecolabelling programmes, with the European Community proposing the adoption of an ad hoc instrument for ecolabelling based on the TBT Agreement. Colombia tabled a paper describing its negative experience with ecolabelling in the flower-growing industry as part of its argument that eco-labels should indeed be cov-

Communication from Canada, Draft Decision on Eco-Lahelling Programmes, WTO Doc. WT/CTE/W/38 and G/TBT/W/30 of 24 July 1996.

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ered by the Code of Good Practice.12 Meanwhile, India, concerned about the potentially adverse impact of ecolabelling on developing countries access to markets, suggested that special and differential treatment be applied to developing countries within the meaning of article 12 of the TBT Agreement. To date, consensus on any of these proposals has not been achieved. Item 4 The provisions of the multilateral trading system with respect to the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects The discussion on item 4 has focused on the technical aspects of notification procedures for national and international environmental measures. Hong Kong proposed clarification of the existing notification procedures, which are currently subject to differing interpretations among WTO members. It further proposed establishing national enquiry points, a suggestion which was further refined by Brazil, which proposed that measures not covered by the enquiry points under the TBT Agreement and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) be covered by national enquiry points. The European Community suggested that rather than creating new notification requirements, the WTO could establish and update a list of notification measures and other information submitted under already existing notification obligations. Indeed, the CTE included in 1996 that no modifications to WTO rules were necessary to ensure adequate transparency for environmental measures, and discussions since then have focused on the establishment of the database. Item 5 The relationship between the dispute settlement mechanisms in the multilateral trading system and those found in multilateral environmental agreements Item 5 discussions have been grouped together with those connected with item 1, although in fact the main focus has been the dispute settle12

Document from Colombia,Environmental Labels and Market Access: Case Study on the Colombian Flower-Growing Industry, WTO Doc. WT/ CTE/W/76, G/TBT/W/60 of 9 March 1998.


479

ment mechanism of WTO, rather than those in MEAs. This is perhaps understandable, given the experience in MEAs with dispute settlement is very limited. As indicated, some of the proposals for reconciling MEAs with WTO, involved providing guidance to the WTO dispute settlement mechanism. Nonetheless, the CTE's 1996 report may reveal a slight preference for environmental disputes to be settled within MEA frameworks "While WTO Members have the right to bring disputes to the WTO dispute settlement mechanism, if a dispute arises between WTO Members, Parties to an MEA, over the use of trade measures they are applying between themselves pursuant to the MEA, they should consider trying to resolve it through the dispute settlement mechanisms available under the MEA. Improved compliance mechanisms and dispute settlement mechanisms available in MEAs would encourage resolution of any such disputes within the MEA."13 According to one commentator, this carefully crafted text reveals a certain priority for MEA procedures over those in the GATT/WTO.14 As regards the way environmental disputes are handled within the WTO, the CTE noted that article 13 and Appendix 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes provide a means for a WTO dispute resolution panel "to seek information and technical advice from any individual or body, which it deems appropriate", and to consult experts, including by establishing expert review groups. In 1998, the CTE also considered the Appellate Body Report on U.S. Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-Turtle). Several members asserted that this decision made an important contribution to WTO jurisprudence, and particularly the interpretation of GATT article XX. Reference was made to the confirmation in that decision that a key consideration in determining the existence of unjustifiable discrimination under article XX was whether cooperative multilateral approaches had been pursued to address environmental problems to which the trade measure in issue related. In addition, the European Community appeared pleased with the Appellate Body's broad interpretation of "exhaustible natural resources" in article XX lit.(g), which could accommodate a wide range of environmental issues. The United States also expressed support for the ruling by the Appellate Body that unsolicited material provided to panels by private 13 14

Para. 178. Lang, see note 10, at 278.

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parties may be relied on. However, other members were uncomfortable with discussing that decision in the CTE, especially as it had yet to be discussed in the Dispute Settlement Body. This raises issues still to be resolved in the WTO, namely how the CTE relates to similar work being done in other WTO bodies. Item 6 The effect of environmental measures on market access, especially in relation to developing countries, in particular to the least developed among them, and environmental benefits of removing trade restrictions and distortions Market access has been the theme in the CTE mandate to be of greatest addressed to developing countries. Indeed, the 1996 CTE report balances "the importance of market access opportunities in assisting developing countries [to] obtained the resources to implement adequate developmental and environmental policies determined at the national level... At the same time, however, the CTE underlines that implementing appropriate environmental policies determined at the national level as part of sustainable development strategies is needed in order to ensure that these benefits are realized and that trade-induced growth will be sustainable." Prior to 1996 discussion on this item involved either general principles, mainly based on the Rio Declaration on Environment and Development, or the environmental effects of agricultural subsidies. Australia proposed providing assistance to low-income, commodity-dependent countries to diversify and expand their export opportunities. India suggested that guidelines might be developed to counter abuses that might arise from relaxing trade disciplines in a manner which endangers the market access of developing countries. Somewhat radically, Norway proposed modifying trade rules so that they accommodate only incentives for the production and use of environmentally friendly products. More recently the CTE has engaged in a somewhat technical examination of several sectors, including: agriculture, energy, fisheries, forestry, non-ferrous metals, textiles and closing, and leather. The discussion on agriculture has been the most intensive, and the most divisive, as members dispute the environmental impacts of subsidies. There was more agreement that trade liberalisation does not per se lead to environmental improvement, in that governments must still ensure that appropriate environmental policies are in place, but that trade liberalisation can correct policy failures that interfere with environmental man-


481

agement. Members seem increasingly keen on identifying "win-win" situations, where trade liberalisation and environmental policy objectives are compatible.15 Interestingly, the discussion on this item appears to tread on matters discussed in other WTO committees, e.g. agricultural subsidies which are dealt with by the Committee on Agriculture, and eco-labels, raised in the context of forests, which are also being dealt with under the TBT Committee. Item 7 The issue of exports of domestically prohibited goods This issue was heavily discussed in the GAIT, without resolution. The 1991 draft decision of the GATT Working Group on Domestically Prohibited Goods and Hazardous Substances was drawn on for Nigeria's proposed decision on this item. This proposal included an obligation of exporting countries to notify other WTO members of domestically prohibited goods unless this notification would occur under another international instrument.16 In addition to dissention on the substance of this proposal, there was concern about a lack of precise definition of "domestically prohibited goods" and no consensus on the determination of risks. Item 8 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) The discussion on this item has focused on several themes: transfer of technology, patenting of life forms and the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD). Various proposals, most notably from India, were made to amend the TRIPS Agreement. No resolution on any of these issues has yet been reached in the CTE, largely reflecting differing views about intellectual property rights. As regards the transfer of technology, India proposed in 1996 that arts 31 (compulsory licensing) and 33 (term of protection) of the TRIPS 15

16

See, e.g. Submission by New Zealand, Item 6: The Fisheries Sector, WTO Doc. WT/CTE/W/52 of 21 May 1997. Proposal by Nigeria, Domestically Prohibited Goods, WTO Doc. WT/ CTE/W/32 of 30 May 1996.

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Agreement be made to ensure the transfer of environmentally sound technologies. It was further proposed that the TRIPS Agreement stipulates that owners of intellectual property be required to sell such products on "fair and equitable conditions", by which the use of such products is mandated by national and international law. This proposal also envisaged financial compensation from a financial mechanism for owners of intellectual property rights who suffer consequential losses. However, other members resisted proposals to amend the TRIPS Agreement, arguing that the current rules are the best arrangement for inducing the development and transfer of environmentally sound technology. Korea proposed a middle ground position, urging that no amendment be made to the TRIPS Agreement, but that article 31 be interpreted such that any alternative technology required under any multilateral environmental agreement be considered as falling within its scope. The patenting of life forms was discussed in relation to the planed review in 1999 of article 27 para.3 lit.(b) of the TRIPS Agreement in a very preliminary fashion. No concrete proposals on this were made. In 1996, members were divided as to whether this matter was best left to the TRIPS Council; since then, this issue has scarcely been raised. The discussion about the relationship between the TRIPS Agreement and the CBD was more concrete. In 1996, India proposed that the TRIPS Agreement be amended so as to incorporate notification requirements relating to the origins of biological material, and that special material transfer agreements be executed by patent applicants involved in international transactions where the convention involves the use of biological material or relies on indigenous or traditional knowledge. In 1998, India and Colombia proposed that the TRIPS Agreement be amended to require that patent applications indicate the origins of genetic samples and reference whether living organisms have been extracted in accordance with the norms of the country of origin. All of these proposals were controversial, with some members arguing strongly that no contradiction existed as between the TRIPS Agreement and the CBD. Other members, were less certain that the TRIPS Agreement dealt adequately with the issues raised by arts 8 lit.(j) and 16 para.(5) of the CBD. There was general agreement that further information on the interaction between the two instruments was desirable.


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Item 9 Interactions between trade in services and protection of the environment Discussion on this item has only been exploratory, in that it has been seen as dependent upon the evolution of the General Agreement on Trade in Services (GATS). In general, members were of the view that liberalisation of the services sector could yield environmental benefits. Some concern was raised about the adequacy of GATS article XIV in dealing with environmental issues — this was seen in part as linked to the interpretation of GATT article XX, although the more practical suggestion was also made that the CTE ensures that GATS working parties take account of environmental considerations. In addition, some members suggested that more work be done on the classification of environmental goods and services, to reflect a more integrated approach to the market. The suggestion was made that the CTE provide input into the work of the Council for Trade in Services on classification and definitional issues, although the United States was doubtful that the CTE could contribute meaningfully. Item 10 Input to the relevant bodies in respect of appropriate arrangements for relations with Intergovernmental and Non-Governmental Organizations referred to in article V of the WTO Agreement Although the CTE has not so far elaborated a fully developed policy towards other organisations, its practice in this area has been significant. Firstly, the CTE has taken the General Council's Decisions of 18 July 1996 rather far, in terms of de-restricting most of its documents and encouraging members that have submitted papers and non-papers to do the same. Secondly, the CTE has admitted a host of MEA secretariats and other intergovernmental organizations as observers, although not non-governmental organizations. In 1998, the CTE convened an information session with MEA secretariats and intergovernmental organizations, from which the beginnings of a dialogue can be detected. For example, UNEP's submission challenged the tendency in the CTE key to characterize trade-related measures in MEAs either as trade measures or positive measures. According to UNEP, this terminology "bears almost no resemblance to the actual way in which MEA's are designed, implemented or amended. Indeed, we regard this classifi-

484


cation as somewhat regressive; it distorts the policy context of MEAs."17 UNEP went on to state its concern that the discussion in the CTE on MEAs was not sufficiently "guided by a sufficiently clear scientific and technical understanding of how MEAs are designed and actually function".18 UNEP concluded by leaving the CTE with several questions on which it sought clarification, including the feasibility of creating a "framework" to clarify the relationship between MEAs and the WTO. The CBD Secretariat used the opportunity to make several concrete suggestions about potential collaboration between it and the CTE on areas which are tackled in their respective work programmes. These include biosafety, providing expert input into the WTO dispute settlement process, intellectual property rights, and agricultural biodiversity. So far, no decision on how the WTO will respond has been taken. As regards the more general matters of transparency and public participation in the WTO, the debate on this item reveals that differences still remain. Most recently, divisions emerged as regards the ruling by the WTO Appellate Body that dispute panels may accept unsolicited material from private parties.19 Similarly, while the Singapore Ministerial Declaration recognised the importance of having environmental expertise in dealing with trade and environment issues, it stops short of formalising this input.20

III. Assessment From a purely substantive perspective, the CTE has not yet succeeded in resulting or coming to closure on many of the issues relating to the interface between trade liberalisation and environmental conservation. This may be due to a number of reasons. The first is a lack of political will to resolve these issues at the global level. Indeed, an examination of the recent work of the WTO leaves the 17

18 19

20

Communication from the Secretariat of UNEP, Statement by the United Nations Environment Programme (UNEP) to the WTO Committee on Trade and Environment, WTO Doc. WT/CTE/W/94 of 22 July 1998. Ibid. Report on US Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS/58/ABR.1998. Para. 16, WTO Doc. WT/MIN(96)/DEC of 18 December 1996.


485

observer with the impression that "trade and environment" occupies less of a politically important position than it did even a few years ago.21 Indeed, the momentum which existed prior to the Singapore Ministerial Conference was partly assisted by the back-channel diplomacy undertaken by the Consensus Building Institute.22 That project ended in 1996 and since then no meaningful process for engaging key governmental and non-governmental actors has emerged. The lack of sufficient will, combined with the CTE's more recent inclination to delve into the more technical aspects of the issues, likely means that little resolution can be expected in the near future. A second reason is that the CTE program of work does not contain the full range of issues arising from the interface between trade liberalisation and environmental conservation. For example, it does not consider the impact of trade liberalisation on environmental conservation, although it does examine the impact of environmental measures on trade objectives. This is more than a matter of perspective; rather it is one of fundamental orientation. This orientation is apparent in the 1996 Singapore Ministerial Declaration, which states that "full implementation of the WTO Agreements will make an important contribution to achieving the objectives of sustainable development".23 While that statement repeats the 1996 CTE Report, absent from the Declaration is the preceding sentence in the Report, which adds balance "These two areas of policy-making (trade and environment) are both important and they should be mutually supportive in order to support sustainable development."24 Within the CTE itself, the European Community has expressed its disagreement with the Secretariat's assertion that trade liberalisation is a precondition to sustainable development. According to the European Community, while trade liberalisation has a key role to play, sustainable development must be based on sustainable management practices and

21

22

23 24

One concrete indication of this phenomenon is that a proposal made in 1998 for a high-level meeting to take place between trade and environment ministers has been downgraded to a "symposium", which will be held in 1999. See Consensus Building Institute, "The Policy Dialogue on Trade and Environment 1994 - 1996", in: Background Papers, Summary Reports, Participants List, February 1997, on file with the author. Para 16. Para. 167.

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appropriate environmental policies are needed at national level to give effect to the environmental benefits of trade liberalisation.25 To some extent, the WTO's orientation on these issues is understandable. After all, its primary mission is to advance trade liberalisation. It is not, and never has claimed to be, an environmental organization. Neither it, nor any of the government missions based in Geneva, has the capacity to deal with complex environmental matters. Furthermore, there is still no international environmental organization of the stature of the WTO with which it can engage in effective dialogue and can develop constructive solutions. In these circumstances, there are real limits to what the WTO alone can achieve. That said, the Preamble to the Agreement Establishing the World Trade Organization does contain a strong commitment to environmental protection and sustainable development. As such, the WTO is bound as an institution to address its mandate in a more balanced manner than it has, perhaps particularly because the overall institutional framework is imperfect. This lack of balance is also evident in the somewhat unsystematic examination by CTE of measures relating to processing and production methods. These measures are at the heart of the environmental agenda,26 but to date the CTE has not addressed this issue head on. Even the topic of MEAs has been addressed by some members from a trade-defensive position. The proposals establishing "criteria" for MEAs are based on an assumption that WTO rules ought to be protected from some of the trade-distorting effects of MEAs. The implicit assumption here is one of hierarchy of norms, although such an assertion may not be tenable in international law. 27 A third reason why the CTE has been less effective than it otherwise might have been, is the North-South political divide that exists in the committee. Although somewhat artificial, the result of this dynamic has been that issues relating to multilateral environmental agreements have 25

26

27

Note from the European Community-, European Community Comments on the Note by the Secretariat of the WTO's Committee on Trade and Environment — Environmental Benefits of Removing Trade Restrictions and Distortions (WTO Doc.WT/CTE/W/67), WTO Doc. WT/CTE/W/83, para.6. See, e.g. International Institute for Sustainable Development (ed.), The WTO and Sustainable Development - An Independent Assessment, 1996. See, e.g. R. Tarasofsky, "Ensuring Compatibility Between Multilateral Environmental Agreements and GATT/WTO", Yearbook of International Environmental Law 7 (1996), 52.


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been considered as "Northern" interests, while those relating to market access are seen as "Southern" matters.28 While it is unclear the extent to which particular issues have been held hostage to this pattern, the recent clustering of items in the program of work under the broad headings of market access and linkages between the multilateral environment and trade agendas may prove constructive. More fundamentally, however, is the wedge between the developed and developing world over the South's perception that the North has failed to implement their part of the "Rio Bargain" - i.e. provisions of financial and technical assistance to developing countries to allow them to meet the incremental costs arising from global environmental issues.29 Fourthly, the relative strength of the CTE within the WTO is unclear. Environment is certainly not yet mainstreamed into the overall work of the Organization, although many of the same people who sit in the CTE also sit in other WTO bodies. However, there does seem to be some movement in this direction, in that members are beginning to see the discussions in the CTE are relevant to work be undertaken in other WTO bodies. For example, some documents recently tabled by delegations have been prepared for the CTE and other committees. More directly, some members may have proposals that the CTE examined issues clearly on the agenda of other WTO bodies.30 While the end result of this might be better integration within the WTO, the outside observer becomes handicapped on account of the fact that the CTE process is relatively more transparent than that of other WTO bodies.31 As such, the actual effect of the CTE within the overall organization is difficult to measure. The only WTO body coming to real closure on some trade and environment issues is the Dispute Settlement Body, in that recent panel and Appellate Body decisions have helped clarifying the interpretation of article XX. Certainly, the recent engagement of MEA secretariats and 28 29

30

31

On the latter point, see Lang, see note 10, 278. D. Runnalls, "Shall We Dance: What the North Needs to do to fully engage the South in the trade and sustainable development debate", USD Working Paper, 1996. For example, ASEAN has proposed that the CTE develops definitions of the terms plants, animals, micro-organisms and biological processes, plant varieties and effective sui generis systems, all of which are to be dealt with by the TRIPS Council in the 1999 review of article 27 para.3 lit.(b). E.g. the environment components of the WTO Internet site is much more comprehensive than other subject areas on the site.

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UNEP by the CTE is to be seen as positive, although a meaningful dialogue between relevant entities still needs to be constructed.32 The recent decision by the CBD Conference of the Parties to request the Executive Secretary to apply for observer status at the WTO Committee on Agriculture may be an indication that the CTE is not the only, nor perhaps even the most important, body in the WTO dealing with environmental issues. At the end of the day, the balancing between trade and environmental objectives will involve difficult choices, which will have economic consequences. Until the CTE becomes more "action-oriented" towards dealing with what are key political choices, it cannot be expected that it will be the forum where these issues are ultimately resolved.

32

The need for such a dialogue is evident in the proposal by IUCN and USD for a Standing Conference on Trade and Environment, which would be a forum to bring together representatives from international organisations and civil society. See IUCN and USD, A Standing Conference on Trade and Environment, undated, on file with the author.

The Committee on the Elimination of Racial Discrimination Riidiger Wolfram

I. Origins, New Challenges The Committee on the Elimination of Racial Discrimination (CERD) was established in 1970; it has the function to monitor States Parties' implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention).1 The Convention provides for four functions of the Committee: to examine States Parties' reports (article 9); to consider inter-State communications (arts 11-13); to consider individual communications (article 14); and to assist other UN bodies in their review of petitions from inhabitants of Trust and Non-Self Governing Territories and of reports of those territories (article 15). The Committee has further developed a mechanism on early warning and urgent procedure. CERD was the first special organ to implement a human rights treaty. As such it was able to pave the way for all following human rights treaty bodies, such as the Human Rights Committee under the 1

UNTS Vol. 660 No. 9646; as to the drafting history of the Convention see E. Schwelb, "The International Convention on the Elimination of All Forms of Racial Discrimination", ICLQ 15 (1966), 996 et seq.; N. Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination, 2nd edition, 1980; M. Banton, International Action Against Racial Discrimination, 1996, 50 et seq.; KJ.Partsch, "Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights", Tex.Int'lL.J. 14 (1979), 191 et seq.

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International Covenant on Civil and Political Rights. As of 1999 the Convention had been ratified by 159 States. One reason for starting the process for the drafting of what later became the International Convention on the Elimination of All Forms of Racial Discrimination were manifestations of anti-Semitism and other forms of racial and national hatred and religious and racial prejudices of a similar nature.2 When the Convention was adopted there was neither a common perception about the definition of racial discrimination nor about the reasons for this phenomenon. This is, to a certain extent, still the case amongst States Parties to the Convention and even among the members of the Committee. However, this does not impede the functioning of the Committee. The different approaches at the time of the drafting of the Convention are, to a certain extent, reflected in its Preamble. Reference is made to the condemnation of colonialism and the practices of segregation. It is stressed that the Declaration of the United Nations General Assembly on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (A/RES/I 514(XV)) had affirmed the necessity of bringing them to a speedy and unconditional end. Hence, the objective of the Convention is connected with the process of decolonization. This, however, is only one facet. The Preamble further states that the doctrine of superiority based on racial differentiation is, apart from being dangerous, scientifically false, morally condemnable and socially unjust. This is directed against ideologies such as Nazism and Fascism in their historical and modern forms as well as against comparable modern ideologies based upon or using racism for the promotion of their political objectives. This aspect has lost nothing of its validity. The Preamble further states that racial discrimination is "an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples". Developments in the recent years have proven this to be correct to an extent probably not anticipated when the Convention was drafted. By referring to the potential of racial discrimination as a threat to peace and security a connection to Article 39 of the United Nations Charter has been established, although it has not yet been explicitly used as such by the Security Council. The most important reason for the elimination of racial discrimination is somewhat hidden in the Preamble, namely that Schwelb, see note 1, 997; M. Banton, "Effective Implementation of the UN Racial Convention", New Community 20 (1994), 475; Banton, see note 1, 54.

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racial discrimination is a violation of human dignity. This puts the Convention within the context of other human rights instruments, in particular, the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. This latter aspect deserves to be highlighted in the work of the Committee as well as in the reports submitted by States Parties. Occasionally a tendency exists to emphasize the protection of certain ethnic groups and the discussion between the Committee and the States Parties then sometimes becomes limited to the question as to whether such groups exist or are distinct compared to the dominant population as to criteria referred to in article 1 para.l of the Convention or not. The reason for its final approval and its comparatively quick entry into force was that the Convention was perceived by many States Parties as a mechanism directed against apartheid and comparable policies.3 Although the system of apartheid has been dismantled, the Convention has nothing lost of its relevance for reasons already addressed at the time when the Convention was drafted and reflected in the Preamble. Evidence to that extent are the conflicts which have amounted to genocide in the recent years. Another reason why the Convention soon gained wide acceptance may have been that already the United Nations Charter formulates the rule of non-discrimination as a directly binding principle.4 In spite of the attempts which have been made to abolish policies and practices based upon or promoting xenophobic and racist motivations and to counter theories based upon or endorsing such practices, these theories, policies and practices are still in existence or even gaining ground again or taking new forms or both. A serious new form of racism is reflected in the so-called policy of "ethnic cleansing". For the reason that the manifestation of racism and xenophobia is gaining ground the international community has renewed its efforts to combat racism, racial discrimination, xenophobia and related forms of intolerance. The World Conference on Human Rights has called for the See in this respect Lerner, see note 1, 40 et seq.; as to the new developments see A/RES/49/146 of 23 December 1994, Third Decade to Combat Racism and Racial Discrimination. The International Court of Justice has stated that: "to establish ... and to enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter", ICJ Reports 1971, para. 131.

492


elimination of racism and racial discrimination as a primary objective for the international community.5 The General Assembly of the United Nations has proclaimed a Third Decade to Combat Racism and Racial Discrimination, from 1993 to 2003.6 It has adopted a programme to achieve measurable results in reducing and eliminating discrimination through specific national and international actions.7 The Commission on Human Rights has decided to appoint a Special Rapporteur on contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance.8 Subsequently the Commission made the mandate of the Special Rapporteur more explicit by requesting him to examine incidents of contemporary forms of racism, racial discrimination, any form of discrimination against Blacks, Arabs and Muslims, xenophobia, negrophobia, anti-Semitism, and related intolerance.9 The reason for 5 6 7

8 9

A/CONE 157/24 (Part I), Chapter III. A/RES/48/91 of 20 December 1993. A/RES/49/146 of 7 February 1995, Annex. The proclamation of the First Decade on Action to Combat Racism and Racial Discrimination coincided with the 25th anniversary of the Universal Declaration of Human Rights (A/RES/2919 (XVII) of 15 November 1972). In launching the First Decade, the General Assembly defined the goals to be the promotion of human rights and fundamental freedoms for all, without distinction of any kind on grounds of race, colour, descent or national or ethnic origin, especially by eradiction of racial prejudice, racism and racial discrimination. In A/RES/ 38/14 of 22 November 1983 the General Assembly approved the Programme of Action for the Second Decade. CHR Resolution 1993/20 of 2 March 1993. CHR Resolution 1994/64 of 9 March 1994; see also report of the Special Rapporteur Doc.E/CN.4/1995/78, para.3. In his report A/49/677 to the General Assembly the Special Rapporteur defined the terms of his mandate as follows: "Racism is a product of human history, a persistent phenomenon that recurs in different forms as societies develop, economically and socially and even scientifically and technologically and in international relations. In its specific sense, racism denotes a theory, which purports to be scientific, but is in reality pseudo-scientific, of the immutable natural (or biological) inequality of human races, which leads to contempt, hatred, exclusion and persecution or even extermination" (6/7). Defining "racial discrimination" the Special Rapporteur refers to article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (8). "Xenophobia is defined as a rejection of outsiders... Xenophobia is fed by such theories and movements as "national preference", "ethnic cleansing", by exclusions and by a desire on the part of communities to turn inward and reserve society's benefits in order to share them with people of the same culture or the same level of development."(9). "Negrophobia is the

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this action is the "growing magnitude of the phenomena of racism, racial discrimination, xenophobia and related intolerance in segments of many societies and the consequences for migrant workers." Finally, the Sub-Commission on Prevention of Discrimination and Protection of Minorities has suggested that a world conference should be held against racism, racial and ethnic discrimination, xenophobia and other contemporary forms of intolerance.10 In general more effective and sustained measures at the national and international level are necessary to fight all forms of racism and racial discrimination. CERD is just one element within this struggle. It has to adjust its working methods to the new challenges; first steps have been taken to that extent.11

II. Composition CERD is composed of eighteen independent experts who serve in their personal capacity.12 The composition of the Committee reflects the principle of equitable geographical distribution and the representation of different forms of civilization as well as of principal legal systems. When the Committee first assembled, five of its members where nationals belonging to the Asian group, four were from Africa, two from Latin America, five from Eastern Europe and two from Western Europe. Since then the understanding has developed that four of the members should come from Asia, four from Africa, three from Latin America, three from Eastern Europe and four from Western Europe. However, since this distribution is not mandatory the distribution of seats may vary if there is disagreement in the regional groups about whom to present. Such disagreement or lack of co-ordination has resulted in the last sessions in a shift in the membership of the Committee

10 11

12

fear and rejection of Blacks... The African slave trade and colonization have helped to forge racial stereotypes... " (9). "anti-Semitism ... can be considered to be one of the root causes of racial and religious hatred..." (10). Recommendation 1994/2. See report of CERD to the General Assembly Doc.A/48/14, 126-127; Report of the Secretary-General, Efforts made by the United Nations Bodies to prevent and combat Racism, Racial Discrimination, Xenophobia and related Intolerance, Doc.E/CN.4/Sub.2/1994/12 of 25 July 1994. Article 8 para.l of the Convention.

494


to the disadvantage of the African group. At present, since the elections in 1998, only one of the experts comes from Africa, which thus is highly underrepresented, four from Asia, four from Latin America, which is over represented, three from Eastern Europe and six from Western Europe and Others, which is clearly over represented. The experts have different professional backgrounds; some are active or retired diplomats, others are civil servants and others are professors. Over the years the share of experts with a professional academic background has increased. This plurality of experience and in particular the fact that the Committee is not only composed of lawyers has always been regarded as a positive factor of the Committee. Experts serve in their personal capacity, a principle which is reiterated in the solemn declaration each expert has to make after his or her election or re-election. Nevertheless, the independence of experts has turned out to be a problematic issue in the past13 and it still is. Since it is a prerogative of States Parties to nominate experts for election they exercise a certain influence upon the composition of the Committee. This reflects that the Committee is not a court, but a body combating racial discrimination by political rather than by legal means although the experts have to make the same declaration as required of the judges of the ICJ. At the 49th Session the question of the independence of experts was brought up from a particular point of view. Several experts challenged the until then prevailing practice of the Committee that experts should not participate in the discussion of their home State's reports although this possibility would give an advantage to States Parties whose nationals serve as experts. It has been argued that under the terms of the Convention the members of the Committee are chosen not only for their impartiality but also in consideration of geographical distribution and the representation of different forms of civilization and the principal legal systems. This, however, does not mean that experts may act as agents of their States when discussing their reports or even take part in formulating the respective Concluding Observations. This

13

See the examples given by Banton, see note 1, 100-101; K.J. Partsch, "The Committee on the Elimination of Racial Discrimination", in: P. Alston (ed.), The United Nations and Human Rights: A Critical Appraisal, 1992, 339, (340/341) — The Committee has refused two proposals that experts unable to attend Committee sessions be allowed to send alternates and it has refused to recognize a State Party's notification that an expert had resigned. The Committee held that experts serving in their personal capacity must personally submit their resignations.


495

issue, which touches upon the self-understanding of the Committee and the role of experts, was further discussed in the Committee at its 50th Session. The Rapporteur of the Committee, Mr. Chigovera, submitted a draft amendment to the Rules of Procedure of the Committee according to which "as a general rule" experts would not participate in the deliberation of the reports of the State Party of which they are nationals. This draft met with the objection of several of the experts although the majority endorsed it. Apart from that the question of independence of experts occasionally is invoked when an expert relies on sources, particularly from nongovernmental organizations, which others regard as one-sided.

III. The Notion of the Term Discrimination and the Practise of the Committee All international human rights instruments dealing with the protection of human rights either on the universal or the regional level contain a provision prohibiting racial discrimination. Compared to the Convention they either cover specific aspects only or are of a more general nature. The first international treaty to deal with one particular aspect of racial discrimination is the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. According to its article II genocide means specific acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. However, there are very few occasions in which the Genocide Convention has been invoked on the international or national level, so far. This will change with the intensification of the jurisprudence of the International Criminal Tribunals for the prosecution of the crimes committed in former Yugoslavia and Rwanda and the actual establishment of the International Criminal Court.14 Since discrimination in respect of employment and occupation is common, the ILO already in its Declaration of Philadelphia affirmed in 1944 that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity. This principle was trans14

A. Zimmermann, "The Creation of a Permanent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq.

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formed into an international treaty by ILO Convention No. Ill- Concerning Discrimination in Respect of Employment and Occupation of 15 June 1960. It prohibits any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The Convention against Discrimination in Education adopted on 14 December 1960 by the General Conference of UNESCO follows the approach adopted by the ILO Convention No. I l l and prohibits any discrimination based on race, colour, sex, language, economic condition or birth which has the purpose or effect of nullifying or impairing equality of treatment in education. Further specific aspects of racial discrimination are dealt with in the International Convention on the Suppression and Punishment of the Crime of Apartheid, and in the International Convention against Apartheid in Sports. Finally, the prohibition of racial discrimination is enshrined in article 3 of the Convention relating to the Status of Stateless Persons, 1954; article 3 of the Convention relating to the Status of Refugees, 1950; article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; article 2 of the Convention on the Rights of the Child, 1989; and in article 85, para. 4, of the Additional Protocol (Protocol I) to the Geneva Conventions of 12 August 1949 on the Protection of Victims of International Armed Conflicts, 1977. The two Human Rights Covenants of 1966 follow a more general approach. They copied the catalogue of the Universal Declaration verbatim; States Parties to the Covenants undertake to guarantee that the rights enunciated in the Covenants will be exercised without discrimination of any kind as to race, colour, sex, language etc. The Convention goes beyond the realm of most other human rights treaties since it not only obliges States Parties to refrain from racial discrimination (article 2 para.l lit.(a),(b), article 3, article 5 lit.(a),(b),(c),(d) of the Convention) but also to take positive steps on the legislative and administrative level to ensure that the society will develop in a manner that it is free from racial discrimination or related practices. This is not always correctly perceived by States Parties when submitting their reports. It is not enough to indicate that racial discrimination is prohibited by law or even by the Constitution. They have further to indicate that individuals from various ethnic groups in fact enjoy the same rights and equally participate in the economic, social and cultural development of a State Party, that there is no incitement to racial discrimination


497

and that individuals or groups are protected against racial discrimination by society. The core provision of the Convention is article 1 para.l defining the notion of racial discrimination; paras 2 and 3 of the same article define cases when the Convention does not apply. Para. 4 deals with temporary measures and in that respect overlaps with article 2 para. 2, of the Convention. The Committee has so far not made an attempt to further specify what is meant by the notion of race as referred to in article 1 para.l, of the Convention ("... any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin...").15 In general, it was felt that there was no need to do so since the terms of reference in article 1 para.l, of the Convention are broad enough to cover all situations the Convention attempts to eliminate. In particular the Committee can resort to descent or national or ethnic origin. However, occasionally States Parties questioned whether the Convention was applicable to them at all or whether it was appropriate to refer to a particular group as falling under the scope of the Convention. For example, Mr. Lamptey asserted that Zairians were all of the same stock and there existed no racial or ethnic differences in that State Party.16 This approach was rejected by the majority of the Committee which looked upon ethnic diversity as a means of enriching cultural life. Developments in 1998 drastically proved how wrong it was to accept the approach advanced by the government of Zaire that the population of this country was ethnically homogenous. The same approach has been taken by the representative of Burundi at the 50th, by Mexico at the 49th Session, for example, and by other States Parties particularly from Latin America and Asia. They all alleged that their population was mixed and that one could not speak of differences as of race. In particular the representative of Burundi held that the differentiation between Hums and Tutsi was introduced by the colonial powers and did not reflect the realities of life. When India stated in its report17 that the caste system did not fall under the jurisdiction of CERD, the majority of experts argued that since one became member of a caste by birth this was a matter of descent and therefore fell under article 1 para.l, of the Convention. Iraq has at the 50th Session objected to questions con-

15

16 17

Banton, see note 1, 76 et seq. makes an attempt to give some sociological clarification to the notion of race. See Banton, see note 1, 251. CERD/C/299/Add. 3.

498


cerning the Arabs living in the marshes since they were Arabs and belonged to the majority of the population. The Committee has in its majority never accepted such statements. It has referred to the broad wording of article 1 para.l of the Convention and its General Recommendation VIII (1990) according to which individuals are generally identified as being members of a particular racial or ethnic group by way of self-identification.18 Thus they do not depend upon objective criteria. A group may also be identified as such by the dominant population in a country although it does not regard itself as being ethnically or racially different. Apart from that reference has been made in this context by the Committee to linguistic differences or to the affiliation to a distinct religion serving as indicators for the existence of particular groups. States Parties claiming ethnic conformity or denying the existence of particular ethnic groups often do so in order not to endanger a national policy of integration. Such integration may often take the form of enforced assimilation to a dominant group or groups which would violate the objective of the Convention. As far as indigenous peoples are concerned many States of Latin America now rediscover the cultural heritage of their indigenous populations. CERD has frequently emphasized that it is particularly concerned with their status and prospect of development. At its 51st Session (August 1997) the Committee has adopted a General Recommendation on Indigenous Peoples adding new elements concerning their protection. Its operative part reads: "... The Committee calls in particular upon States parties to: a. recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation; b. ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity; c.

d.

18

provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no deci-

HRI/GEN/l/Rev.2,1996, 92.


499

sions directly relating to their rights and interests are taken without their informed consent; e. ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. The Committee especially calls upon States Parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. The Committee further calls upon States Parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention." Although religious discrimination does not fall under the purview of the Convention, CERD has dealt with it arguing that a particular religion may be an essential element in forming a particular ethnic group. This, however, is a very sensitive issue on which the opinions of the experts differ. Whereas the often discriminatory treatment of Muslims in European countries is frequently referred to the same experts object to questions concerning the status of Christians in Muslim States. There exists however some justification for the different approaches. Muslims in Europe are by their majority immigrants or descendents of immigrants whereas Christians in Iraq, Egypt etc. have always been nationals of these States. As already stated the Convention prohibits not only intentional but also unintentional discrimination. CERD adopted a General Recommendation to emphasize this point.19 According to it a distinction is contrary to the Convention if it either has the purpose or the effect of impairing particular rights and freedoms. CERD stated that a differentiation of treatment would not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of

19

General Recommendation XIV (1993), HRI/GEN/l/Rev.2, 1996, 95.

500


the Convention, were legitimate or fell within the scope of article 1 para.4, of the Convention. The Committee has frequently dealt with the treatment of noncitizens although according to article 1 para.2 of the Convention it does not apply to "distinctions, exclusions, restrictions or preferences" between citizens and non-citizens. However, the Committee has held that a State Party may not discriminate against any particular nationality. Experts have questioned in this context the special treatment citizens from a European State receive in other European States and the special treatment given in some Gulf States to citizens from other Arab countries. More generally the Committee is concerned with the nonapplication of civil, economic, social and cultural rights to non-citizens although such application is provided for in international human rights instruments.20 In General Recommendation XI (1993) CERD has emphasized that at least the reporting obligation applies to non-citizens.21 It has further emphasized that article 1 para.2 of the Convention must not detract from rights and freedoms granted to non-citizens in other international instruments. In spite of this interpretation article 1 para. 2 of the Convention limits the possibilities of the Committee to reset efficiently against xenophobic tendencies and policies. CERD still has to develop a working method concerning the elimination of xenophobia and related phenomena.

IV. States Parties Obligations According to article 1 para.l of the Convention only those discriminations are prohibited which impair the enjoyment of human rights in a field of public life. The Committee had a long discussion on this issue. It finally agreed that political, economic, social and cultural spheres of life are always to be considered to come within the scope of public life. A privatization of schools, for example, would not exempt them from the reach of the Convention.22 Nevertheless, more work is to be done on this. For example, as far as the right to housing is concerned (article 5 lit.(e)(iii) of the Convention) does this mean that every landlord is under an obligation to accept any potential tenant regardless of race or 20

21 22

R. Wolfrum, "International Law on Migration Reconsidered Under the Challenge of New Population Movements", GYIL 38 (1995), 191 et seq. HRI/GEN/l/Rev.2,1996, 94. Banton, see note 1, 195.

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ethnic or national origin? The majority of the Committee may argue into this direction, the implementation of such interpretation will however meet the resistance of some States Parties. According to para.l, four types of acts may be considered discriminatory, namely distinctions, exclusions, restrictions or preferences. They shall be considered as discriminatory in the meaning of the Convention if they are based on race, or colour, or descent, or national origin, or ethnic origin.23 Further, such acts must have the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms or have such an effect. Under the Convention States Parties have various obligations. Such obligations differ widely as to their content. Generally speaking States Parties are under an obligation to eliminate racial discrimination as defined by the Convention. This requires the State Party to undertake four different actions, to pursue a policy of non-discrimination24 and to undertake repressive, remedial or educational action. Except for particular issues the Convention does not specify how this objective is to be achieved. However, States Parties are under an obligation to exhaust all their possibilities to achieve this objective, including the enactment of specific legislation. For that reason the Committee endorses the enactment of a specific racial discrimination act although such an act is not mandatory under the Convention. Whether a State Party implements the Convention through public law or private law will very much depend upon the national legal system. However, the implementation of article 4 of the Convention requires specific legislative action namely the issuing of criminal law. Often experts inquire whether the Convention has been incorporated into national law and may be invoked before national courts. Such question may be misleading. The incorporation of the Convention into domestic law does not suffice to meet the obligations under article 4 of the Convention. In consequence, the Committee has always rejected the approach of some States Parties that such incorporation would render the adoption of the required criminal law rules unnecessary. Further the question concerning the incorporation of the Convention does not adequately reflect that different means that exist of how to ensure the effective application 23 24

For the drafting history see Lerner, see note 1, 28 et seq. Occasionally one expert insists that such policy should find its manifestation in a public document. However, such obligation has no foundation in the Convention.

502


of the Convention in national law as required by international treaty law. The verbal incorporation of an international agreement into national law is but one of the means available. According to article 2 of the Convention States Parties are under an obligation to condemn racial discrimination and to pursue a policy of eliminating racial discrimination in all its forms. Article 2 para.l lit.(a)(e), of the Convention contains further specification to this end. Article 3 of the Convention provides that States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. The Committee drafted a General Recommendation in 1995 to advise States Parties that the scope of article 3 of the Convention was not restricted to measures directed against apartheid and that segregation could arise from State policy as well as other sources. Further, the General Recommendation emphasizes that article 3 of the Convention covers the action of segregation as well as the condition of being segregated.25 Article 4 obliges States Parties to penalize certain forms of racial discrimination. In saying that certain acts shall be punishable, the Convention requires sanctions under criminal la^. Actions under other articles of the Convention can be dealt with under other branches of law.26 CERD has always focused on this obligation; it has also emphasized that article 4 of the Convention restricts the freedom of expression and association.27 The question is whether States Parties may invoke the protection of the freedom of expression and association to avoid the implementation of the Convention28 or whether States Parties must strike a balance between these freedoms and their duties under the Convention.29 This is a matter of controversy in CERD.

25 26

27

28

29

Banton, see note 1, 201/202. R. Wolfrum, "Das Verbot der Rassendiskriminierung im Spannungsfeld zwischen dem Schutz individueller Freiheitsrechte und der Verpflichtung des einzelnen im Allgemeininteresse", in: E. Denninger et al. (eds), Festschrift Peter Schneider, 1990, 515. K.J. Partsch, "Racial Speech and Human Rights: Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination", in: S. Coliver (ed.), Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, 1992, 24; Banton, see note 1, 202 et seq. UN Study, Positive Measures Designed to Eradicate all Incitement to, or Acts of, Racial Discrimination, CERD/2,1986. Partsch, see note 27, 24.


503

Article 5 of the Convention lists the human rights to be guaranteed without discrimination. Almost all of these rights are covered by the two Covenants, hence the jurisdictional competences of the three treaty bodies overlap. Although CERD may deal with the enjoyment of civil and political rights as well as economic, social and cultural rights, it is restricted in this respect since it may do so only under the aspect of intentional or de facto discrimination. However, in this regard it has to play an important role particularly as far as the implementation of economic and social rights against a private counterpart are concerned. The rights to work, to free choice of employment etc. (article 5 lit.(e)(i) of the Convention), for example, are amongst the most important economic rights. They require enforcement against private as well as public employers. Article 5 lit.(e)(iii) of the Convention provides that any resident in a country shall enjoy any right to housing without discrimination as to race or ethnic origin. The implementation of these rights raises as already mentioned problems in practice. Although States Parties often provide for guarantees against dismissal of work on racial motives there is less protection, if any at all, against the denial of housing or work by private landlords or employers. In the practice of the Committee the border line between criticizing discriminatory practices or the human rights situation in a given State Party is not always fully respected. Some members have taken the opportunity to inquire about the implementation of human rights standards in general. In 1996 CERD adopted a General Recommendation interpreting its functions under article 5 of the Convention.30 Article 6 obliges States Parties to establish a judicial system which effectively protects against any act of racial discrimination. This provision serves as a basis for CERD to discuss the judicial system of States Parties. This is, however, justifiable. An effective protection against racial discrimination requires the availability of judicial recourse. In respect of non-dominant groups it further requires that they may address the judges in their language or, at least, that the State Party provides for interpretation. The Committee equally inquires as to whether judges receive a particular training in respect of such groups. Finally, in dealing with an individual complaint from the Netherlands the Committee has indicated that the obligations under the Convention may have an impact upon the criminal procedure of States Parties. In effect the Committee did not accept that prosecution might exercise its discretionary power in a manner that in practice would condone racist offences which 30

See above.

504


the State Party is obliged to prosecute under article 4 of the Convention.31 Finally, article 7 of the Convention requires States Parties to adopt measures in the field of teaching, education, culture and information which combat racial prejudices and promote understanding and tolerance. The reports of States Parties on that aspect are very often without substance. In this respect a methodology of CERD still needs to be developed. To elaborate an approach to this end may be CERD's contribution for the Third Decade. In its 14th periodic report32 Iceland has provided for some rather unprecedented information concerning the implementation of article 7 of the Convention. The measures taken range from the wide publication of international human rights treaties, particularly in schools, over the training of immigrant children in their mother tongue to courses and programs in schools designed to increase tolerance and understanding for foreigners. Unlike both Covenants, the Convention emphasizes the duties of States Parties rather than the rights of individuals or groups.33 Nevertheless, article 14 of the Convention clearly indicates that individuals or groups enjoy rights under the Convention; otherwise the individual complaint procedure established by the Convention would be meaningless. Apart from those obligations referred to so far States Parties are in accordance with article 9 of the Convention under the obligation to regularly report on the implementation of the Convention. The basic duty on reporting is expressed in article 9 para.l of the Convention. The wording of this provision contains just the bare minimum on the content of reports; it is different from the one in other human rights treaties which were adopted later. The Convention additionally encourages States Parties also to report about "factors and difficulties affecting the degree of fulfillment of obligations". According to the International Covenant on Civil and Political Rights it is an obligation to provide for such information. However, in practice these differences in the reporting obligations have little impact.34 The intensity of the monitoring ef31 32 33 34

Case 4/1991, L.K. v. The Netherlands. CERD/C299/Add.4, 29 April 1996. Partsch, see note 13, 341. V. Dimitrijevic, "The monitoring of human rights and the prevention of human rights violations through reporting procedures", in: A. Bloed, L. Leicht, M. Nowak, A. Ross (eds), Monitoring Human Rights in Europe, 1993, 1 et seq., (12).


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feet of reports depends nearly entirely upon depth of the oral exchange of views. The quality of the dialogue between the State Party concerned again is a matter of the preparedness of the State Party to engage in such a dialogue, the preparedness of the Committee for the particular State Party and the time available for the dialogue.

V. Reporting System The Committee concentrates to a higher degree than other treaty bodies on the assessment of periodic reports of States Parties. Since 1996 it has dealt with more than ten reports per session. Other treaty bodies such as the Human Rights Committee or the Committee on Economic, Social and Cultural Rights only consider five each. Nevertheless, the time spent on each report is not much less than in these two bodies, namely two meetings, occasionally one meeting and a half. This means that most of its time the Committee is engaged in a dialogue with States Parties or in formulating Concluding Observations. The Committee can only do so since it has very few individual complaints to deal with,35 and refrains from engaging itself in other activities such as the preparation of the Third Decade. Equally, very little time is devoted to the drafting of General Recommendations. Finally, no time at all is spent on the preparation for future sessions. This is all left to the country Rapporteurs. In fact, to assess so many reports in a three week session relies very much upon the introduction of the country Rapporteur system. It has enabled the Committee to make an indepth study36 which again establishes the basis for the dialogue with the State Party concerned. However, the 50th Session has shown that dealing with more than 10 periodic reports exceeds the possibilities of the Committee and, in particular, the quality of the dialogue with the State Parties. Apart from that too little time is left for dealing with reports under the urgent procedure.

35

36

At the 50th Session not even half a meeting was spent on individual complaints, the time used for that purpose at the 53rd Session was only marginally longer. Reports of Country Rapporteurs take between 30 minutes to one hour or more. Attempts have been made to restrict the length of the statements of Country Rapporteurs particularly by those who question the merits of such reports.

506


In dealing with the reports submitted by States Parties, CERD had to address several issues over the years and, by gradually deciding upon them, further developed and refined the reporting system. These issues included the question whether a State Party should be present when its own report is discussed; how to deal with overdue reports; the content of reports; the appointment of country Rapporteurs; the information which may be used by the experts when considering the reports of States Parties and the question whether CERD should formulate Concluding Observations after having finished the examination of a report. These issues are not just of a technical nature. The Committee's approach in addressing them and thereby further developing the reporting system reflects and reveals changes in CERD's perception about the objectives pursued through the reporting system. The Convention and the Rules of Procedure give little indication about the procedure to be followed by CERD in examining reports. Over the years CERD has developed the following practice:37 The examination of reports usually begins with an introductory statement by the representative of the reporting State. This introduction is followed by the presentation of the country Rapporteur of the Committee and the questions asked or suggestions and opinions voiced by the experts. After the experts have completed their observations and questioning, the State's representative is once again invited to take the floor. This may be followed by another round of questions and remarks from the experts and a reply from the representative of the State Party concerned. The examination of each report is concluded by the Concluding Observations which are formulated in the absence of the representative of the reporting State although in public meeting. The development of this procedure was undertaken gradually. Some of its important elements met with resistance and it was only possible to introduce them after considerable debate. The decision to allow representatives of States Parties to be present when their reports are discussed was only taken upon recommendation of the General Assembly.38 Only this decision has made it possible to establish a constructive dialogue between the experts and the represen37

38

See in this respect the revised guidelines on reporting adopted by CERD on 9 April 1980, Doc.A/35/18 (1980) Annex IV as well as the consolidated guidelines for the initial part of the reports of States Parties as suggested by the Chairpersons of the Treaty Bodies Doc. A/45/636, at 18. A/RES/2783 (XXVI) of 6 December 1971; Rule 64; for details see Partsch, see note 13, 354 et seq.


507

tatives of States Parties. Hence, it has to be regarded as one of the most important innovations concerning the working methods of the Committee. In drafting its Rules of Procedure the Human Rights Committee included a similar provision for having States' parties representatives attend its meetings. The introduction of the system of country Rapporteurs, already referred to, which was decided upon in 1988 represents another major change in the procedure of CERD. Proposals for appointing country Rapporteurs were first advanced in 1974 and repeated at a closed meeting in 1986.39 CERD's annual report for 1988 in paras. 21 and 24 lit.(b) described the responsibilities of a country Rapporteur as being to prepare "a thorough study and evaluation of each State report, to prepare a comprehensive list of questions to put to the representatives of the reporting State and to lead the discussion in the Committee". Later, the Chairpersons meeting recommended40 that treaty bodies should consider the appointment of Rapporteurs. CERD reviewed its country Rapporteur system as it stood in 1989. Its annual report, at paras. 24 and 26 lit.(d), indicated that the introduction of the system had been successful.41 The country Rapporteur procedure has facilitated a division of labour between members of the Committee. Apart from that, under the new procedure the Committee has often experienced commentaries of a quality that was rarely achieved under the previous procedure. The Convention does not give clear guidance as to how CERD may react either to reports which do not meet the reporting requirements of the Convention or the Guidelines, or when a State Party has been found to have not fully met its obligations concerning the implementation of the Convention. The Committee has changed its policy in this respect over the years. First of all the Convention does not specify which information the experts may use to assess the reports. Over a long period, CERD did not accept information provided by non-governmental organizations or by the mass media. This policy, however, has been changed following the example of other human rights treaty bodies.42 39

CERD/SR. 771.

40

Doc.A/44/98, 17 para. 57 and 24 para. 91. All but three experts have in the past acted as country Rapporteurs. Human Rights Committee (ed.), Manual on Human Rights Reporting, 1991,121.

41 42

508


As to the reaction to reports following its examination, the Convention does not provide the Committee with the power to reject a report. It may only "request further information" (article 9 para.l) and may make "suggestions and general recommendations" (article 9 para. 2). In accordance with its Rules of Procedure, CERD evaluates each State's report with respect to the formal reporting guidelines, taking into account that State's previous reports. The members seek to determine: whether the information requested in earlier reports has been delivered, whether information missing in previous reports is included in the report under consideration, whether questions initially incompletely answered have now been responded to fully and whether new developments in the reporting country give rise to a need for additional information. During its early years the Committee would conclude its examination of reports by qualifying them as satisfactory or unsatisfactory without indicating whether unsatisfactory reports lacked sufficient information or whether the reporting State had failed to comply with its substantive obligations under the Convention. In 1972, the Committee amended its Rules of Procedure43 in order to distinguish more clearly the two phases of its evaluation. In its recent practice CERD has asked for additional information also in cases where it felt that a State Party had not fully discharged the obligations under the Convention, thus closing again the distinction between the two stages of examining reports. In this respect, requesting further information was regarded as a kind of verdict concerning the situation in the given State Party. Another means for CERD to express its opinion upon the situation in a given State Party are Concluding Observations. The Committee at its 39th Session (March 1991) decided that the adoption of the country Rapporteur procedure enabled it to go further 44 towards the adoption of a common statement embodying a collective opinion. Since 1992 the procedure for drafting these observations is that the country Rapporteur is asked to circulate a draft within the Committee, to take account of the comments of colleagues, and then to present at a later session a draft that could be adopted by consensus. However, the possibility of a

43

Rule 67.

44

The previous system was criticized in the Alston Report (Doc.A/44/668, para. 134).


509

vote is not excluded. Initially the discussion of the Concluding Observations was undertaken in a private meeting. Since 1996 they have been discussed in public meeting. This has had the effect that experts refrained from participating in the deliberation of the Concluding Observations on those States Parties they are nationals of. This effect was intended by changing the rules on the deliberation of the Concluding Observations. Some of the Concluding Observations adopted since then have made reference to particular General Recommendations of the Committee and at a later stage it inquired why the State Party concerned had not responded thereto. This raises the question as to the status of General Recommendations. They are not binding upon States Parties since the Committee lacks legislative power. However, they are binding the experts amongst themselves as to the interpretation and application of the Convention. As such they give an indication to States Parties how the Committee will look upon certain aspects of the Convention. In recent years all human rights treaty bodies have encountered the problem that States parties do not meet their reporting requirements.45 This endangers the monitoring functions of the human rights treaty bodies. CERD decided at its 39th Session (March 1991) to review the implementation of the Convention in those States Parties whose periodic reports were excessively overdue. The annual report for that year states that in the case of reports excessively overdue, the Committee "agreed that this review would be based upon the last reports submitted by the State Party concerned and their consideration by the Committee". So far, the practice of CERD has turned out to be quite successful. In some cases the States Parties concerned have taken the opportunity to submit their report. Apart from that an increasing number of States Parties have participated in the review and have thus resumed the dialogue with the Committee.

45

See Report of the Secretary-General, Improving the Operation of the Human Rights Treaty Bodies, HRI/MC/1996/2, 10 et seq. and the report by P. Alston, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, Doc.E/CN.4/1997/74, 7 March 1997, para. 48 et seq. The figures given on CERD and in particular the conclusions drawn from such figures do not meet with reality. According to Alston it would take CERD 24.3 years to deal with all outstanding reports. However, if States Parties resume the dialogue after, for example, ten years, they submit five reports in one. Nevertheless the backlog of reports is significant.

510


At its 47th Session the General Assembly in 1992 recommended that other treaty bodies should adopt measures similar to the practice of CERD to proceed with the examination of the situation in States Parties whose reports were long overdue, on the basis of existing information. It was further recommended that each treaty body should follow, as a last resort and to the extent appropriate, the practice of scheduling for consideration the situation in States Parties that have consistently failed to report or whose reports are long overdue. This recommendation was based upon the consideration that a persistent and long-term failure to report should not result in the State Party, concerned being immune from supervision, while others which have reported are subject to careful monitoring.46 Assessing the reporting system it has to be stated that it has undergone significant changes. In introducing such changes CERD has altered the objective of the reporting system. At the beginning when representatives of States Parties were not allowed to orally present the reports the Committee was not in a position to engage in a dialogue with the respective State Party. It could only collect some information and on this basis make General Recommendations to the General Assembly concerning the elimination of racial discrimination. Hence, in this early period the reporting system only rudimentarily provided for means to monitor the implementation of the Convention, higher emphasis being placed upon CERD as an expert body intended to provide the General Assembly with information that would enable the latter to discuss the elimination of racial discrimination. This element of the reporting system has receded into the background, as reflected by the fact that the topic "elimination of racial discrimination"' no longer plays a prominent role in the deliberations of the General Assembly. Instead, by involving representatives of the reporting States, allowing CERD to use information other than that provided by the reporting State Party and by formulating "Concluding Observations" the Committee focuses more heavily upon the monitoring of the situation in the States Parties. Nevertheless, CERD does not work and is not intended to work as a court. Quite frequently experts point out that they are primarily interested in establishing and upholding a dialogue with the States Parties. This is why considerable effort is undertaken to convince States Parties whose reports are overdue to resume cooperation with the Committee. Asking for further information has to be seen from this point of view. It is to be understood as the desire from the side of the Committee to en46

A/RES/47/111 of 16 December 1992.


511

hance and intensify the dialogue with those States Parties which face problems in the full implementation of the Convention.

VI. Inter-State Complaints The practice of States Parties concerning inter-State complaints is unsatisfactory.47 When dealing with the reports of some States Parties bordering former Yugoslavia, the respective representatives have been asked by members of the Committee why no attempt had been made to initiate a procedure under article 11. Equally the representative of Iraq was recommended to consider this procedure when he claimed that northern Iraq was under the influence of foreign powers and hence he could not report about the implementation of the Convention in this area. The same approach was taken vis-a-vis Mexico when it complained about the discrimination of Mexicans in the United States. The answer was evasive. Obviously there is a reluctance to resort to such procedure although it has been used under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since States did not hesitate, recently, in cases of grave and persistent violations of human rights to involve the Security Council, the reluctance to use the inter-State complaint procedure cannot result from an excessive respect for the sovereignty of the States concerned. It may be rather the feeling that a quasi-judicial procedure is hardly suited to provide a solution in cases where political decisions are called for. Apart from that the procedure of article 11 of the Convention does not enshrine any enforcement mechanism; it may seem questionable to invoke a lengthy procedure the result of which may only be a recommendation for the amicable solution of the dispute (article 13 of the Convention).

VII. Individual Complaints Within the United Nations human rights system three treaty-based procedures exist providing for the possibility for individuals to submit petitions directly to the respective supervisory committees. These are the optional article 14 of the Convention, the Optional Protocol to the 47

Previous article 9 reports have contained various forms of disguised interstate disputes, see T. Buergenthal, "Implementing the UN-Racial Convention", TexJnt'lLJ. 12 (1977), 202 et seq.

512


International Covenant on Civil and Political Rights and the optional article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The two former procedures require the specific acceptance of ten States and the latter of five States to become effective. Receiving these acceptances took much longer for article 14 of the Convention than for the Protocol. As at 10 July 1998 25 of the 159 States Parties to the Convention have made the declaration envisaged in article 14 recognizing the competence of the Committee to receive and consider communications from individuals who claim that the government has not provided them with the required protection. Although optional article 14 entered into force in 1982, only nine communications have so far reached the Committee. Article 14 of the Convention differs from the Protocol and the Convention against Torture in that it provides that groups of individuals as well as individuals may present communications to the Committee. So far, no group action has been received. All the three procedures require the alleged victim to present to the Committee prima, facie evidence of personal involvement which excludes the procedure being used as actio popularis.48 Examining such individual complaints should constitute an important part of the work of human rights treaty bodies. This, however, will only be the case if more States Parties accept the respective procedure and the information on the availability of such procedure is disseminated widely in the States Parties. For example, Ecuador, Peru, the Russian Federation and Uruguay have made the Declaration recognizing the competence of CERD under article 14 of the Convention. However, no communication has been transmitted yet from any of these States Parties. So far, individual complaints came from the Netherlands, Denmark, Australia, Finland and Sweden. This does not reflect the human rights situation prevailing in these States. The limited acceptance of this procedure and the insufficient information about its availability may be the reasons why the procedure has not been used more frequently. Several members of the Committee routinely encourage States Parties to adhere to this procedure. The Committee simply has a limited practice with respect to individual complaints. It applies in most cases a two-stages procedure, first 48

However, the Human Rights Committee did agree to consider communications submitted "on behalf" of alleged victims by others, even without formal mandate or power of attorney, when it appeared that the victim was "unable to submit the communication himself.


513

establishing admissibility and thereafter considering the merits. This makes the procedure a slow one, cases are pending for too long which may be considered to be a denial of justice. In two cases the Committee has asked the States Party concerned to report about the admissibility as well as on the merits (Australia and Sweden). States Parties and some of the experts are reluctant to accept such a procedure since they consider (wrongly) that the decision to have a case admitted already carries some verdict.

VIII. Preventive Action, Including Early Warning and Urgent Procedure CERD at its 43rd Session adopted a paper on preventive action, including early warning and urgent procedures as a guide for its future work concerning possible measures to prevent and more effectively respond to violations of the Convention.49 Under the same title a permanent item was included in the agenda of the Committee's future sessions. Successive annual reports of the Committee to the SecretaryGeneral of the United Nations summarize the working paper.50 Similar steps have teen taken and implemented by the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. However, as far as conceptuality and the implementation of such procedure are concerned, CERD has developed the most systematic and far-reaching practice.51 Like the other human rights treaty bodies the Committee was particularly induced to establish such a procedure by the events in former Yugoslavia and in the Great Lakes region of Central Africa. The members of the Committee felt that the regular monitoring of the human rights situation in States Parties through the reporting system had

49

50

51

This was encouraged by the General Assembly with the Agenda for PeaceA/RES/47/120 of 18 December 1992. Doc.A/49/18, para. 19; Doc.A/50/18, para. 22; Doc.A/51/18, para. 26. For further details see Banton, see note 1,161 et seq. M. O'Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies, 1996,103 et seq.; Banton, see note 1,161 et seq.

514


proven to be inadequate to prevent the occurrence or recurrence of such man-made disasters.52 53 Preventive actions of CERD shall include early warning measures to address existing structural problems which might escalate into conflicts. Such a situation calling for early warning exists, in the view of the Committee, inter alia when the national implementation procedures are inadequate or there exists the pattern of escalating racial hatred and violence, or racist propaganda or appeals to racial intolerance by persons, groups or organizations, notably by elected or other officials. To formulate such early warning CERD will have to make full use of its sources of information and of its expert capacity to assess them. The criterion for initiating an urgent procedure, according to the decision of CERD, is the presence of a pattern of massive or persistent racial discrimination. In nearly all cases dealt with by the Committee, so far, one expert took the initiative and made a reasoned suggestion to have a particular situation dealt with under this procedure. In all cases such a suggestion was accepted after a brief discussion. The reactions in its preventive function and in response to problems requiring immediate attention are similar although under the early 52

53

T. van Boven, "Prevention, Early-Warning and Urgent Procedures: A New Approach by the Committee on the Elimination of Racial Discrimination", in: E. Denters, N.Schrijver (eds), Reflections on International Law from the Low Countries in Honour of Paul de Waart, 1998,165 et seq. When in 1993 the Committee adopted its prevention, early-warning and urgent procedure its Chairman justified such decision in its covering letter to the annual report to the Secretary-General of the United Nations in the following terms: "The forms of racial discrimination which in the 1960s were regarded as most abhorrent were those of discrimination by whites against blacks. Racial discrimination was frequently described as caused by the dissemination of doctrines of racial superiority by the institutions of colonial rule and by policies of racist regimes. The international community could counter these abuses by political means and in this way racial discrimination could be eliminated." The letter continued to say: "In 1993 we contemplate the success of policies initiated in the 1960s. The struggle against colonial rule and racist regimes has been successful even if the consequences of apartheid will continue to give trouble for a long time. New challenges started to emerge at the end of the 1980s with the disintegration of some of the larger political structures, particularly in eastern Europe, and the weakening of some structures in other regions ... racial or ethnic conflicts are appearing in areas previously characterized by tolerance..." (Report of the Committee on the Elimination of Racial Discrimination, 1993, Doc.A/48/18, 6).

Wo//r«m, The Committee on the Elimination of Racial Discrimination

515

warning procedure CERD will first exhaust its advisory functions visa-vis the respective State Party. The Committee may address its concern, along with recommendations for action, to all or any of the following: the State Party concerned; the Special Rapporteur established under a Commission on Human Rights resolution; the SecretaryGeneral; and all other human rights bodies. The information addressed to the Secretary-General may in the case of urgent procedures include a recommendation to bring the matter to the attention of the Security Council. In the case of urgent procedures CERD may designate a Special Rapporteur. As already indicated the attempt to improve the functions of the Committee, as far as its response to serious, massive or persistent patterns of racial discrimination is concerned or the upcoming threat thereof, was very much influenced by the situation in the former Yugoslavia. In consequence Bosnia Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro) belonged to the States Parties that were placed under the early-warning procedure. Others were or still are Rwanda and Burundi, Papua New Guinea, with regard to the serious violations of human rights in Bougainville, Mexico with regard to the ethnic conflict involving the indigenous population of the Chiapas, the Russian Federation concerning the massive loss of life in the Republic of Chechnya and Liberia, Afghanistan as well as Zaire/the Democratic Republic of Congo concerning the situation brought about by civil war. Other cases dealt with under this procedure were States Parties where serious incidents caused concern in the Committee as to the implementation of the Convention and where it feared the aggravation of the situation. These incidents included the massacre committed by an Israeli settler against Palestinian worshippers, the racist terrorist acts against Jews in Buenos Aires in 1994 and in London 1994, the clashes that took place in Cyprus in 1996 and the terrorist attacks in Algeria in 1994 and 1995. The actions taken by the Committee differed widely depending on the extent to which the respective State Party was willing to cooperate with the Committee. In the case of the Federal Republic of Yugoslavia (Serbia and Montenegro) an intensive dialogue commenced at an early stage which resulted in sending a good offices mission of three experts (Mrs H. Ahmadu, Mr. I. Reshetov and Mr. R. Wolfrum) to Belgrade and the Kosovo to promote a dialogue between the Albanians in Kosovo and the Government of the State Party. The dialogue broke off due to the decision of the meeting of States Parties to exclude the Federal Republic of Yugoslavia (Serbia and Montenegro) from its delibera-

516


tions.54 In spite of that unofficial contacts have been maintained between members of the Committee and the representative of the Federal Republic of Yugoslavia with a view to resuming the dialogue. Croatia invited one member of the Committee (Mr. M. Yutzis) to give technical advice as to the drafting of the report. The response of Israel was less cooperative. The Permanent Representative of Israel informed the United Nations of the establishment by the government of a Commission of Inquiry and agreed, while questioning the competence of the Committee, to transmit a copy of the findings to the Committee. However, it refused to submit a special report that the Committee had asked for. It has finally submitted the reports (7th, 8th and 9th in one) at the 52nd Session (in March 1998). In the introduction of the report the delegation of Israel questioned whether Israel was receiving fair and equal treatment. Representatives of Rwanda, Burundi and Algeria took the opportunity to address the Committee whereas no reaction was received from Afghanistan, Papua New Guinea, Liberia and the Democratic Republic of Congo when they were informed that the Committee intended to deal with the situation under its early warning and urgent procedure and were asked to provide for information. The Russian Federation has provided the required information in its periodic report and, in particular, in the dialogue following the submission of such report. Considering the experience of the Committee with this new procedure, so far, the overall assessment is positive.55 The focus of this procedure should be less on such States in the situation of a civil war56 but rather on States Parties where tension is building up or might build up or where civil war has ended and the State Party concerned needs all assistance for restructuring its legal, judicial and administrative system.

54

55 56

See the letter of the Charge d'affaires of the Permanent Mission of the Federal Republic of Yugoslavia in Geneva of 15 February 1995 as reproduced in the Report of the Committee on the Elimination of Racial Discrimination, 1995 (Doc. A/50/18, para. 227). See also the reply of the Chairman of 6 March 1995 (in the same report at para. 227). Different Alston, see note 44, para.79. Here, in fact, the principle of the division of labour should apply as suggested by Alston, see note 44, para. 79. This, however, requires that the Security Council or a regional organization has become active. This cannot be taken for granted. In the cases of inactivity it is the function of the human rights treaty bodies engaged in such procedure to induce activities of international organizations engaged in the preservation of peace and security.

Wolf rum, The Committee on the Elimination of Racial Discrimination

517

IX. Relation with the General Assembly, the Secretariat and Other Human Rights Bodies CERD is an autonomous body established under the Convention which is linked to the UN System. It submits its reports to the General Assembly through the Secretary-General. However, interest in the work of the Committee in the General Assembly, notably its Third Committee, is limited. The secretarial services for CERD are provided by the Secretariat. The funding formally provided for by States Parties now comes from the UN budget; the respective amendment of the Convention has not yet entered into force. Though the Committee has appointed experts as liaison officers to be informed about the activities of other human rights bodies its connection to such bodies is limited. An improved coordination amongst the treaty bodies, at least, would render the functioning of such bodies more effective. Such coordination can only be achieved with the assistance of the Secretariat, which at the moment does not fulfill this function. Receiving information about activities of other human rights bodies, particularly, the Commission on Human Rights, UNHCR or other treaty bodies depends totally upon the initiative of each single expert. Additionally, there is little interest from the other human rights bodies to cooperate more closely. For example, the Commission on Human Rights has appointed a Special Rapporteur on contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance. Although his tasks overlap with the ones of the Committee and although he reports about States which are reporting to the Committee he does not make use of the material accumulated by CERD over decades. Given the limited resources for the protection of human rights such duplication of efforts seems unacceptable.

X. Conclusions The international efforts against racism, racial discrimination, xenophobia and other related forms of intolerance have, so far, not been successful. Although the struggle against apartheid has led to a positive result, new forms of racism, racial discrimination and ethnical prejudice or prosecution have emerged. The international bodies engaged in the struggle against all these forms of intolerance and violence based there-

518


upon, in particular the Committee, nevertheless have to continue and even have to strengthen their efforts. Only through these efforts will a public awareness be created as well as a conviction within the world community that the mentioned forms of intolerance and racial discrimination are intolerable violations of the human dignity and constitute an international crime. However, the possibilities of the Committee to effectively eradicate racial discrimination are limited. The reporting system has its merits although it is lacking enforcement mechanisms. Its effect rests in enforcing States Parties to self-assess the human rights situation in the given country. Such effects could be strengthened if the reports were made public and became the object of a national discussion. This can be achieved through publishing national reports either before submitting them to CERD and inviting comments which would be communicated to the Committee, or after the dialogue together with the Concluding Observations. Another option would be the discussion of the report in Parliament. Any of these approaches would initiate a public discussion which again would fertilize the next dialogue with the Committee. CERD should strongly encourage States Parties to pursue such a policy.57 CERD's possibilities are limited in cases where ethnic conflicts become violent. In cases such as Rwanda or former Yugoslavia, where ethnic tensions have resulted in an armed conflict, CERD has only limited possibilities to ameliorate the situation, apart from calling for international awareness and intervention. The latter functions, however, should not be underestimated. International awareness concentrates on specific conflicts and for a limited period only, thereafter conflicts are neglected. This is, for example, true in respect of the civil war in Sudan, equally no attention was paid in the international media to the ongoing violations of human rights in Bougainville. Hence the international community made no or very little effort to ameliorate the situation and to put pressure on the States concerned. In this respect CERD could and should provide for a more balanced approach and a sharpened awareness of the international community concerning systematic and grave violations of the Convention otherwise neglected. In respect of cases taken up under the prevention, early-warning and urgent procedure CERD has a twofold function. It should warn States Parties about the building up of ethnic tensions and inform United Na57

Emphasized in the Alston report Doc.A/44/668, 36 et seq.


519

tions bodies accordingly. After the ending of a conflict the Committee should play an active role in assisting the reorganisation of the respective State. The necessity of this approach was clearly felt in the Committee when it discussed Bosnia Herzegovina after the conclusion of the Dayton Accord. It was the prevailing view in the Committee — clearly expressed in the Concluding Observations — that the Dayton Accord had not been prepared adequately and that in particular the rules on elections might lead to the confirmation of the facts established by ethnic cleansing. This approach was also expressed in respect of Rwanda where the Committee indicated its readiness to assist in the restructuring of the country so as to avoid the repetition of the previous ethnic conflicts. This approach was clearly inspired by the positive role the Venice Commission has played and still plays concerning the drafting of constitutional laws of eastern European States. In this regard the Committee still has to define its role more clearly which States Parties will have to accept and to utilize.


Book Reviews John R.W.D. Jones: The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda Transnational Publishers, 1998. XVII +743 pages; VIII +353 pages. The dramatic events in Kosovo and the ongoing horrendous crimes being committed there demonstrate - if need existed - the continued importance of the work of both the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia as well as that of the International Criminal Tribunal for Rwanda. Given these circumstances, the book under review constitutes an extremely helpful working tool for everybody dealing with the legal issues with which the two tribunals are confronted. It contains an articleby-article commentary on both the two statutes and the rules of procedure of the two tribunals. In that regard, the author not only gives rather brief but, nevertheless, succinct academic analyses of the respective provisions but more importantly refers extensively to the practice of the Tribunal concerned. Thus, any reader may very easily have access to the drafting history of each individual provision as well as to possible amendments that the rules have been undergoing. In particular, the author also refers to the jurisprudence of the two tribunals when applying and interpreting the respective provisions of the statutes and the rules of court. The high quality of the work undertaken might be very well explained by the fact that the author has, over a significant period of time, worked in the Hague with the ICTY. One might hope, that the author will, in due time, provide readers with an updated version of his work, given that the jurisprudence of the two tribunals evolves rather fast. In such a second volume, he could add both a list of bibliographical references to the work of the two tribunals, as well as a list of references

522


where the decisions of the tribunals might be found (e.g. references to the ones published in International Legal Materials), given that not everybody might have otherwise direct access to these decisions. This work constitutes one of the essential, if not indispensable, working tools for everybody involved in monitoring the ongoing work of the two tribunals. Assistant Professor Andreas Zimmermann, Heidelberg

Virginia Morris/Michael P. Scharf: The International Criminal Tribunal for Rwanda Transnational Publishers, 1998. 2 Vols. XX + 743 pages; VIII + 572 pages. After the creation of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, the setting up of the International Criminal Tribunal for Rwanda under Security Council Resolution 955 (1994) again showed the determination of the international community to not let acts of genocide, crimes against humanity and war crimes whether committed in international or internal armed conflicts, go unpunished. It is against this background that the two authors of the book under review — similar to their previous endeavour to analyse the coming about of the Yugoslavia Tribunal1 — undertake to give an in-depth analysis of the political and legal issues that led to the creation of the Rwanda Tribunal. The structure of the work is identical mutatis mutandis to this book on the Yugoslavia Tribunal. After giving an overview over the process leading to the creation of the tribunal (p. 1 - 74), the most interesting parts of Volume 1 deal with the legal basis for the establishment of the tribunal (p. 75 et seq.) as well as with the limits of its jurisdiction (p. 117 et seq.). Another important part of that volume (p. 349 et seq.) further analyses the organization and procedure of the Tribunal (p. 349 et seq.) as well as the cooperation and judicial assistance to be rendered by United Nations member States (p. 627 et seq.) 1

See V. Morris/M. P. Scharf, Ah Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia.

Book Reviews

523

Volume 2 consists of a range of relevant documents related to the creation and work of the Tribunal ranging from the Statute of the Tribunal itself as contained in Security Council 955 (1994) including documents related to its drafting history as well as documents dealing with the internal work of the Tribunal, such as, for example the Directive on Assignment of Defence Counsel (p. 74 et seq.). Part VII of Volume 2 contains texts of national legislation which provide cooperation with the Tribunal. While it is obvious that the Rwandan legislation had to be included (p. 369 et seq.), it seems rather strange that only the municipal legislation of the United States is included (p. 389 et seq.) and not that of other States which, at the time, had also adopted such legislation. This fact could be explained, although not excused, inter alia, by the inability of the two authors to have access to non-English speaking sources. One might also wonder whether the inclusion of the documents contained in Part IX of Volume 2, dealing with predecessors of the Rwanda Tribunal such as for example, the Nuremberg Tribunal and the Yugoslavia Tribunal, was really necessary, given that, first, they are readily available all over the world and, secondly that those relating to the Yugoslavia Tribunal have already been reproduced in the above mentioned Insider's Guide. Although there seems to be some overlap between the two books, the two authors have not simply repeated their arguments as to specific questions but seem to have updated them, taking into account both the practice of the Yugoslav Tribunal as well as that of the Rwanda Tribunal itself. They have also analysed those issues which specifically arose within the context of the purely internal conflict in Rwanda (see e.g. p. 206 et seq.). In that context, however, one might have expected a closer scrutiny of the notion of "serious violations of Additional Protocol II" as well as general description of its contents. On the whole, the book is an essential working tool for everyone who is involved in following the work of the Rwanda tribunal. Moreover, given its value as a precedent, it is also helpful when it comes to analyse the parallel and sometimes indeed identical provisions of the Rome Statute for the creation of a (permanent) International Criminal Court. Assistant Professor Andreas Zimmermann, Heidelberg

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Edward Newman: The UN Secretary-General from the Cold War to the New Era. A Global Peace and Security Mandate? St. Martin's Press, 1998. vii + 239 pages. In his 1986 Cyril Foster Lecture, Perez de Cuellar emphasized that to understand the role of the Secretary-General is to appreciate the United Nations as a whole. Newman's book can be seen as an attempt in this spirit: "The Office is a focal point of post-Cold War multilateral turbulence as the UN struggles to adapt to rapidly evolving circumstances." (p.2) Whereas the changes in international relations since the time of de Cuellar's speech do not seem to have affected their basic relationship, both the Secretary-General and the United Nations have undergone dramatic changes regarding their role, possibilities and limitations. In this sense, a careful analysis of the Secretary-Generalship after the end of the Cold War seems to be an inevitable step towards understanding the ongoing transformation of international relations and international law as epitomized in the United Nations. In a wider context the issue also deals with the reciprocal influences of power, institutions and norms. The book consists of seven Chapters and a Conclusion. Chapter 1 sets the framework for the analysis by introducing the basic features of the development of an international civil service. Chapters 2, 3 and 4 focus on the office of the UN Secretary-General, outlining its functions as well as a short overview of the incumbents from Trygve Lie to Kurt Waldheim. The largest part of the book then concentrates on de Cuellar's and Boutros Boutros-Ghali's terms of office (Chapters 5 and 6) resulting in a tentative outline of trends and options of a "Post-Cold War Secretary-Generalship" (Chapter 7). The first question one encounters when dealing with the role of the Secretary-General is how to measure his influence. Can he be considered as an independent actor, or do other factors such as organizational patterns and great power policies determine his activities? Newman tends to neglect the personality factor in favour of the institutional and international influences, and he identifies a number of incidents to support this view. Even with regard to Dag Hammarskjold, whose outstanding personality he acknowledges, Newman's judgement is that "Hammarskjold should be seen in the context of institutional shifts which were in turn a reflection of systemic trends" (p.49). But throughout his brief surveys of the incumbents Newman stresses the complex interplay of various factors. One such factor that has gained even more

Book Reviews

525

importance during the last ten years is the US attitude toward the United Nations. In these circumstances the Secretary-General's resources have to be distinguished from classical tools of power politics. With a large amount of his work happening behind-the-scenes his influence is not easily discernible. But this is also a precondition for the effective use of the office's specific tools. Newman especially emphasizes the SecretaryGeneral's speeches and most of all the annual reports, that give him a unique opportunity to exercise political leadership. But his ideas have to be supported by successes and usefulness in day-to-day politics to convince member states. This is especially true when exercising executive functions as for example in the organization of peacekeeping operations. The Chapters on de Cuellar and Boutros-Ghali offer a wealth of case studies on the Secretary-General's activities: From the Falklands Crisis and Rainbow Warrior dispute through the second Gulf War up to the events in the former Yugoslavia, Somalia or Rwanda. Newman's case studies succeed in establishing a balance between necessary background information and the overriding interest of finding common features and trends of the Secretary-General's involvement. One such common feature of nearly all the cases presented is the importance of the Secretary-General's special envoys or representatives (e.g. Diego Cordovez, Giandomenico Picco, Alvaro de Soto etc.) who do much of the foot work while the Secretary-General takes personal initiative only when the circumstances allow that he can effectively use the office's authority. Apart from that, there is one paradigmatic shift, which can be portrayed by comparing de Cuellar's two terms of office. He started in the midst of the crisis of multilateralism but ended with a strengthened organisation that gave rise to euphoric feelings about the future of the United Nations. Newman finds the key to this development in an analysis of the exercise of leverage by the various parties and their respective patron-client relationships. The exercise of leverage can obstruct and support the Secretary-General's activities: During de Cuellar's second term former superpower patronage changed into superpower leverage on the parties involved to solve the conflict: "In the window of opportunity between 1987 and 1992, the Secretary-General was a useful instrument through which a superficially united Security Council could bring to an end some of the residual conflicts of the Cold War. It is interesting therefore that the source of Perez de Cuellars ear-

526


Her marginalization — superpower involvement — was later to pave the way to his activism." (p. 107) De Cuellar's successor, Boutros-Ghali, tried to build on this development and to establish a role of "global leadership" for the SecretaryGeneral. But this new concept went even further introducing a new assertiveness both at the declaratory as well as practical level. BoutrosGhali's concept was encouraged by the members of the Security Council when they entrusted him with the task of elaborating proposals for international peace and security after the Cold War. His Agenda for Peace introduced a number of innovative ideas such as preventive diplomacy as well as the institutional establishment among others of the Departments of Peace-Keeping Operations and of Political Affairs. But over the time and due to the frustrations in the former Yugoslavia and Somalia, the new approach lost its momentum and support. In fact, Newman argues, Boutros-Ghali, started on false premises: "The misunderstanding was prevalent in 1992 that the deficiencies of the Organization during the Cold War emanated primarily from Council votes (...) and so as a corollary the absence of vetos in the post-Cold War era would enable the UN to address the ills of the world. (...) However, the buoyancy of 1992 was mistakenly based on the successful 1988-92 period, when the UN facilitated the settlement of a number of regional conflicts in which the superpowers had been involved; the US and Soviet Union had an interest in supporting the UN in its activities then. It was a mistake to believe this level of support would continue." (p. 115). This, among other things, finally led to the US resistance against Boutros-Ghali's re-election. But Newman still sees a lasting legacy of his tenure: "In sending envoys on his own initiative, talking to the Security Council members and the Council informally, making normative public statements, and assuming political-military control and authority, Boutros-Ghali imposed an activist stamp upon his office which has set the tone for the post-Cold War model." (p. 189) Beyond these evaluations Newman tries to discover further trends for the future. The conclusion points to new constraints but also new opportunities for the Secretary-General after the Cold War. So on the one hand, the cooperative atmosphere in the Security Council narrows down the traditional Secretary-General's fields of activity (the "vacuum" in Hammarskjold's word) but at the same time it creates new areas of activity and possibly leadership as well as fewer "no-go areas" (p.3). The financial crisis dominates all the Secretary-General's activities, as Newman argues with reference to the Guatemala mission:

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"Again, this is a symptom of financial constraint, political prioritization, and multilateral fatigue: good offices on a shoestring." (p. 181). Nonetheless, the Secretary-General can not neglect his duty — a duty that has become even more complicated in the last ten years according to Newman: "It is a reflection of the 'new era' of UN activities that the Secretary-General — in fact both Boutros-Ghali and Kofi Annan — had to shake hands with the warlord Jonas Savimbi, and give legitimacy to UNITA, before he had irreversibly committed himself to the peace process. Few peace and security situations in the post-Cold War world — and particularly those of a domestic nature — are 'black and white' and the Secretary-Generalship must be seen in this light, even though it may lay itself open to the criticism of flirting with warlords. Unfortunately, the international civil service has to address the local strongmen, however risky or distasteful this may at times appear." (p.144). In this context Newman offers a plea for a diplomatic approach that was coined during Hammarskjold's tenure: the Peking formula. With this formula the Secretary-General negotiated the release of American pilots from China in 1955, by stressing his independent position as Secretary-General and even distancing himself from earlier resolutions and condemnations by other UN organs. De Cuellar employed this strategy in his mediation efforts on Afghanistan and Cambodia. This approach remains vital for the Office in the future. It is also a variation on the classical question of how to interpret the political powers as implied in Article 99 of the Charter. Newman's final conclusion stays ambivalent and points to the need of a case-by-case analysis: "While the SecretaryGeneralship will always largely reflect the dynamics of the Security Council, it can go beyond this, albeit with the full support of the Council. The Office remains an anomaly, a political chimera." (p.201) Newman's thorough analysis shows that the observation of this chimera can reveal some of the underlying structures of international relations. Manuel Frohlich, M.A., Jena


P.Radler

Verfahrensmodelle zum Schutz vor Rassendiskriminierung

G. Nolte

Eingreifen auf Einladung

Rechtsvergleichende Untersuchung zum Verfassungsauftrag In Art. 3 Abs. 3 Grundgesetz

Zur volkerrechtlichen Zulassigkett des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung

Article 3 (3) of the German Grundgesetz contains a constitutional directive to combat racial discrimination between private persons. On a comparative basis of Anglo-American and European States, the study examines various models of non-discrimination bodies and their constitutionality under German law.

Invitation by the Government is a classical but highly disputed justification for interventions by foreign troops in internal conflicts. Based on a comprehensive analysis of state practice and of a discussion of the pertinent principles of international law the book analyzes the validity ot this justification.

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V. Gotz, P. Selmer, R. Wolf rum (Hrsg.)

Liber amicorum Giinther Jaenicke Zum 85. Geburtstag The more than 40 articles in German, English and French from authors all over the world contained in this book deal with a variety of issues of international law, in particular law of the sea and international economic law. 1998. XXV, 1038 S. 2 Abb. (Bd. 135) Geb. DM 298,-; 6S 2176,-; sFr 269,ISBN 3-540-65125-X

Forthcoming A. Zimmermann Staatennachfolge in volkerrechtliche Vertrage Zugleich ein Beitrag zu Moglichkeiten und Grenzen volkerrechtlicher Kodffikationsvorlagen Since the beginning of the 19905 and the demise of both the USSR and Yugoslavia as well as the German reunification, the question of succession in respect of treaties has been one of the most important questions of public international law. Against this background the study contains an in-depth analysis of state practise since 1990. 1999.(Bd.141) ISBN 3-540-66140-9

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Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht

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