Max Planck Yearbook
of
United Nations Law
Volume 8
2004
Max Planck Yearbook
of
United Nations Law
Founding Editors
Jochen A. Frowein
Rüdiger Wolfrum
Max Planck Yearbook
of
United Nations Law
Volume 8
2004
Editors
Armin von Bogdandy
Rüdiger Wolfrum
Managing Editor
Christiane E. Philipp
Max-Planck-Institut für ausländisches
öffentliches Recht und Völkerrecht
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
This book should be cited as follows: Max Planck UNYB
Printed on acid-free paper.
ISBN 90-04-14285-1
© Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints
Brill Academic Publishers, Martinus Nijhoff Publishers and VSP.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical, photocopying,
microfilming , recording or otherwise, without written permission from the Publisher.
Authorization to photocopy items for internal or personal use is granted by Brill Academic
Publishers provided that the appropriate fees are paid directly to The Copyright Clearance
Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to
change.
Printed and bound in The Netherlands.
Contents
List of Contributors ............................................................................... VII
Abbreviations ........................................................................................... IX
Ulfstein, Geir,
Indigenous Peoples’ Right to Land...................................................... 1
Viljoen, Frans,
Fact-Finding by UN Human Rights Complaints Bodies –
Analysis and Suggested Reforms........................................................ 49
Hestermeyer, Holger P.,
Access to Medication as a Human Right ......................................... 101
Benzing, Markus,
U.S. Bilateral Non-Surrender Agreements and Article 98 of
the Statute of the International Criminal Court: An Exercise
in the Law of Treaties ........................................................................ 181
Allain, Jean,
The True Challenge to the United Nations System of the Use
of Force: The Failures of Kosovo and Iraq and the Emergence
of the African Union ......................................................................... 237
Max Planck UNYB 8 (2004)
VI
De Wet, Erika,
The Direct Administration of Territories by the United
Nations and its Member States in the Post Cold War Era:
Legal Bases and Implications for National Law ............................. 291
Orrego Vicuña, Francisco,
Of Contracts and Treaties in the Global Market ............................ 341
Grotto, Andrew J.,
Organizing for Influence: Developing Countries, NonTraditional Intellectual Property Rights and the World
Intellectual Property Organization.................................................. 359
Lietzau, William K.,
Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism ....... 383
Book Reviews .......................................................................................... 457
List of Contributors
Allain, Jean
Senior Lecturer of Public International Law at the Queen’s University
of Belfast, Northern Ireland. Until September 2004, Associated
Professor of Public International Law at the American University in
Cairo, Egypt
Benzing, Markus
Junior Fellow at the Max Planck Institute for Comparative Public Law
and International Law, Ph.D. candidate at the Faculty of Law,
University of Heidelberg
De Wet, Erika
Dr. iur., LL.M. (Harvard); Professor of International Constitutional
Law, University of Amsterdam, The Netherlands; Extraordinary
Professor, North-West University, Potchefstroom, South Africa
Grotto, Andrew J.
Associate Scholar in National Security and International Policy, Center
for American Progress, Washington, D.C.; J.D., University of
California at Berkeley, Boalt Hall School of Law; M.P.A., Harvard
University, John F. Kennedy School of Government
Hestermeyer, Holger P.
LL.M. (Berkeley); Attorney at Law (New York); Ph.D. candidate at the
Faculty of Law, University of Hamburg
VIII
Max Planck UNYB 8 (2004)
Lietzau, William K.
Lieutenant Colonel, United States Marine Corps; M.S., National War
College, 2004; LL.M. U.S. Army Judge Advocate General’s School,
1996; J.D., Yale Law School, 1989; B.S., U.S. Naval Academy, 1983
Orrego Vicuña, Francisco
Professor of International Law at the Law School and the Institute of
International Studies of the University of Chile, Membre de l’Institut
de Droit International
Ulfstein, Geir
Professor Dr. juris; Director, Norwegian Centre for Human Rights,
University of Oslo, Norway
Viljoen, Frans
Professor of Law; MA LLB LLD (Pret); LL.M (Cantab); Centre for
Human Rights, Faculty of Law, University of Pretoria, South Africa
Abbreviations
ACABQ
Advisory Committee on Administrative and Budgetary Questions
AD
Annual Digest of Public International
Law Cases
A.F.D.I.
Annuaire Français de Droit International
AJDA
Actualité Juridique-Droit Administratif
AJIL
American Journal of International Law
Am. U. J. Int’l L. & Pol’y
American University Journal of International Law and Policy
Am. U. Int’l L. Rev.
American University International Law
Review
Anu. Der. Internac.
Anuario de Derecho Internacional
Arch. de Philos. du Droit
Archives de Philosophie du Droit
Aus Pol. & Zeitgesch.
Aus Politik und Zeitgeschichte
Austrian J. Publ. Int. Law
Austrian Journal of Public International
Law
Austr. Yb. Int’l L.
Australian Yearbook of International
Law
AVR
Archiv des Völkerrechts
Brook. J. Int’l L.
Brooklyn Journal of International Law
B. U. Int’l L. J.
Boston University International Law
Journal
BVerfGE
Decisions of the German Federal
Constitutional Court
BYIL
British Yearbook of International Law
Cal. W. Int’l L. J.
California Western International Law
Journal
X
Max Planck UNYB 8 (2004)
Cal. W. L. Rev.
California Western Law Review
Case W. Res. J. Int’l L.
Case Western Reserve Journal of International Law
CLJ
Cambridge Law Journal
CML Rev.
Common Market Law Review
Colo. J. Int’l Envtl. L. & Pol’y Colorado Journal of International Environmental Law and Policy
Colum. Hum. Rts. L. Rev.
Columbia Human Rights Law Review
Colum. J. Transnat’l L.
Columbia Journal of Transnational Law
Colum. L. Rev.
Columbia Law Review
Comunità Internaz.
La Comunità Internazionale
Conn. J. Int’l L.
Connecticut Journal of International
Law
Cornell Int’l L. J.
Cornell International Law Journal
CYIL
Canadian Yearbook of International
Law
Den. J. Int’l. L. & Pol’y
Denver Journal of International Law
and Policy
DGVR
German Society of Public International
Law
Dick. J. Int’l L.
Dickinson Journal of International Law
Duke J. Comp. & Int’l L.
Duke Journal of Comparative and International Law
Duq. L. Rev.
Duquesne Law Review
EA
Europa-Archiv
ECOSOC
Economic and Social Council
ed.
editor
eds
editors
EFTA
European Free Trade Association
e.g.
exempli gratia
EJIL
European Journal of International Law
ELJ
European Law Journal
Envtl. L. Rep.
Environmental Law Reports
Env. Policy & Law
Environmental Policy and Law
Abbreviations
XI
EPIL
Encyclopedia of Public International
Law
et al.
et alii
et seq.
et sequentes
etc.
et cetera
EuGRZ
Europäische Grundrechte Zeitschrift
EuZW
Europäische Zeitschrift für Wirtschaftsrecht
FAO
Food and Agriculture Organization
Fla. J. Int’l L.
Florida Journal of International Law
Fordham Int’l L. J.
Fordham International Law Journal
Foreign Aff.
Foreign Affairs
Foreign Pol’y
Foreign Policy
Ga. J. Int’l & Comp. L.
Georgia Journal of International and
Comparative Law
Geo. Int’l Envtl. L. Rev.
Georgetown International Environmental Law Review
Geo. L. J.
Georgetown Law Journal
Geo. Wash. J. Int’l L. & Econ. George Washington Journal of International Law and Economics
Geo. Wash. L. Rev.
George Washington Law Review
GYIL
German Yearbook of International Law
Harv. Int’l L. J.
Harvard International Law Journal
Harv. L. Rev.
Harvard Law Review
Hastings Int’l & Comp. L.
Hastings International and Compara-
Rev.
tive Law Review
HRLJ
Human Rights Law Journal
HRQ
Human Rights Quarterly
HuV-I
Humanitäres Völkerrecht - Informationsschrift
IAEA
International Atomic Energy Agency
ibid.
ibidem; in the same place
IBRD
International Bank for Reconstruction
and Development
XII
Max Planck UNYB 8 (2004)
ICAO
International Civil Aviation Organisation
ICJ
International Court of Justice
ICLQ
International and Comparative Law
Quarterly
ICSID
International Centre for the Settlement
of Investment Disputes
id.
idem; the same
IDA
International Development Association
i.e.
id est; that is to say
IFAD
International Fund for Agricultural
Development
IJIL
Indian Journal of International Law
ILA
International Law Association
ILC
International Law Commission
ILCYB
Yearbook of the International Law
Commission
ILM
International Legal Materials
ILO
International Labour Organization
ILR
International Law Reports
ILSA J. Int’l L.
ILSA Journal of International Law (International Law Students Association)
IMF
International Monetary Fund
IMO
International Maritime Organization
Ind. J. Global Legal Stud.
Indian Journal of Global Legal Studies
Int’l Aff.
International Affairs
Int’l Law.
The International Lawyer
Int’l Rev. of the Red Cross
International Review of the Red Cross
Iowa L. Rev.
Iowa Law Review
IP
Die internationale Politik
Isr. L. R.
Israel Law Review
Isr. Y. B. Hum. Rts
Israel Yearbook on Human Rights
J. Int’l Aff.
Journal of International Affairs
JIEL
Journal of International Economic Law
JIR
Jahrbuch für internationales Recht
Abbreviations
XIII
JPR
Journal of Peace Research
JWT
Journal of World Trade
JWTL
Journal of World Trade Law
Law & Contemp. Probs
Law and Contemporary Problems
LJIL
Leiden Journal of International Law
LNTS
League of Nations Treaty Series
Loy. L. A. Int’l Comp. L. Rev. Loyola of Los Angeles International and
Comparative Law Review
Mc Gill L. J.
McGill Law Journal
Mich. J. Int’l L.
Michigan Journal of International Law
Mich. L. Rev.
Michigan Law Review
Mil. L. Rev.
Military Law Review
Minn. J. Global Trade
Minnesota Journal of Global Trade
NAFTA
North American Free Trade Area
NATO
North Atlantic Treaty Organization
NILR
Netherlands International Law Review
NJCL
National Journal of Constitutional Law
Nord. J. Int’l L.
Nordic Journal of International Law
NQHR
Netherlands Quarterly of Human
Rights
NYIL
Netherlands Yearbook of International
Law
N. Y. U. J. Int’l L. & Pol.
New York University Journal of International Law and Politics
N. Y. U. L. Rev.
New York University Law Review
Ocean & Coastal L. J.
Ocean and Coastal Law Journal
ODILA
Ocean Development and International
Law
ÖZöRV
Österreichische Zeitschrift für öffentliches Recht und Völkerrecht
OJEC
Official Journal of the European
Communities
Pace Int’l Law Rev.
Pace International Law Review
PCIJ
Permanent Court of International Justice
XIV
Max Planck UNYB 8 (2004)
Pol. Sci.
Political Science
RADIC
Revue Africaine de Droit International
et Comparé
RBDI
Revue Belge de Droit International
RdC
Recueil des Cours de l’Académie de
Droit International
RDI
Revue de Droit International, de Sciences Diplomatiques et Politiques
RECIEL
Review of European Community and
International Environmental Law
REDI
Revista Española de Derecho Internacional
Rev. Dr. Mil. Dr. Guerre
Revue de Droit Militaire et de Droit de
la Guerre
Rev. ICR
Revue Internationale de la Croix Rouge
RGDIP
Revue Générale de Droit International
Public
RIAA
Reports of International Arbitral
Awards
RIW
Recht der Internationalen Wirtschaft
Riv. Dir. Int.
Rivista di Diritto Internazionale
RTDE
Revue Trimestrielle de Droit Européen
RUDH
Revue Universelle des Droits de
L’homme
San Diego L. Rev.
San Diego Law Review
Santa Clara L. Rev.
Santa Clara Law Review
Stanford J. Int’l L.
Stanford Journal of International Law
SZIER/RSDIE
Schweizerische Zeitschrift für internationales und europäisches Recht/Revue
Suisse de Droit International et de Droit
Européen
Temp. Int’l & Comp. L. J.
Temple International and Comparative
Law Journal
Tex. Int’l L. J.
Texas International Law Journal
Tex. L. Rev.
Texas Law Review
Transnat’l L. & Contemp.
Transnational Law and Contemporary
Abbreviations
Probs
XV
Problems
Tul. Envtl. L. J.
Tulane Environmental Law Journal
Tul. J. Int’l & Comp. L.
Tulane Journal of International and
Comparative Law
U. Chi. L. R.
University of Chicago Law Review
UCDL Rev.
University of California Davis Law
Review
UCLA J. Envtl. L. & Pol’y
University of California Los Angeles
Journal of Environmental Law and Policy
UCLA J. Int’l L .&
Foreign Aff.
University of California Los Angeles
Journal of International Law and Foreign Affairs
UCLA Pac. Basin L. J.
University of California Los Angeles
Pacific Basin Law Journal
UNCIO
United Nations Conference on International Organization
UNCITRAL
United Nations Commission on International Trade Law
UNCTAD
United Nations Conference on Trade
and Development
UNDP
United Nations Development Programme
UNEP
United Nations Environment Programme
UNESCO
United Nations Educational, Scientific
and Cultural Organization
UNFPA
United Nations Population Fund
UNHCR
United Nations High Commissioner
for Refugees
UNICEF
United Nations Children’s Fund
UNIDO
United Nations Industrial Development Organization
UNITAR
United Nations Institute for Training
and Research
UNJYB
United Nations Juridical Yearbook
UNOSOM
United Nations Operation in Somalia
XVI
Max Planck UNYB 8 (2004)
UNPROFOR
United Nations Protection Force in
(former) Yugoslavia
UNRWA
United Nations Relief and Works
Agency for Palestine Refugees in the
Near East
UNTS
United Nations Treaty Series
UNU
United Nations University
UNYB
Yearbook of the United Nations
UPU
Universal Postal Union
Va. J. Int’l L.
Virginia Journal of International Law
Va. L. Rev.
Virginia Law Review
Vand. J. Transnat’l L.
Vanderbilt Journal of Transnational
Law
Vol.
Volume
VRÜ
Verfassung und Recht in Übersee
W. Comp.
World Competition
Wash. L. Rev.
Washington Law Review
WFP
World Food Programme
WIPO
World Intellectual Property Organization
WMO
World Meteorological Organization
WTO
World Trade Organization
Yale L. J.
Yale Law Journal
Yale J. Int’l L.
Yale Journal of International Law
ZaöRV
Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht
ZEuS
Zeitschrift für europarechtliche Studien
ZRP
Zeitschrift für Rechtspolitik
Z. vgl. R. Wiss.
Zeitschrift für die vergleichende Rechtswissenschaft
Indigenous Peoples’ Right to Land
Geir Ulfstein!
I.
II.
Introduction
The International Covenant on Civil and Political Rights
1. Article 1
2. Article 27
III. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries
1. Introduction
2. Methodological Issues
3. Right of Participation
4. Land Rights
a. Article 13
b. Article 14
aa. “Traditionally occupy”
bb. “The rights of ownership and possession”
cc. “Shall be recognised”
dd. “Object and purpose”
ee. “Article 34”
c. Article 15
IV. Sami Land Rights and the Proposed Finnmark Act
1. Introduction
2. Article 14
3. Article 34
4. Case Law
5. Consent of the Sami Parliament
V.
Conclusions
!
The author would like to thank Ann-Gøril Johansen† (who passed away
far too young) and Martin Scheinin for sharing their views on indigenous
rights. Hans Petter Graver deserves special thanks for co-operation in our
joint study on the Finnmark Bill for the Norwegian Ministry of Justice,
and for allowing me to use our report as a basis for this article.
Max Planck UNYB 8 (2004)
2
I. Introduction
The rights of indigenous peoples to the land they traditionally inhabit
have been controversial ever since the time of the Spanish conquistadors. While such rights were acknowledged by what has been called the
Spanish school of international law of the sixteenth century (Francisco
de Vitoria, Domingo de Soto, Francisco Suarez, Bartolomé de Las Casas), the acceptance of these rights weakened in the nineteenth and early
twentieth century.1
In recent years, however, indigenous issues have gained considerable
international attention. ECOSOC established the Working Group on
Indigenous Populations (WGIP) in 1982, under the Sub-Commission
on the Promotion and Protection of Human Rights (formerly SubCommission on the Prevention of Discrimination and Protection of
Minorities). The Working Group elaborated a draft United Nations
Declaration on the rights of indigenous peoples, which was adopted by
the Sub-Commission in 1994.2 The Commission on Human Rights established an open-ended inter-sessional working group to consider the
text and work out a draft declaration to be adopted by the General Assembly during the International Decade of the World’s Indigenous
People (1995-2004). The Permanent Forum on Indigenous Issues was
established by ECOSOC as an advisory body in 2002. The rights of indigenous peoples, including land issues, are also being addressed in several conferences, declarations and treaties, both at the global and regional level.3
1
2
3
G.C. Marks, “Indigenous Peoples in international law: the significance of
Francisco de Vitoria and Bartolome de Las Casas”, Austr. Yb. Int’l L. 13
(1992), 1 et seq. (2-3 and 7-8). Also printed in S.J. Anaya (ed.), International Law and Indigenous Peoples, 2003, 3 et seq. (4-5, 9-10).
1994/45 Draft United Nations Declaration on the Rights of Indigenous
Peoples. The draft declaration may be found at the web site of the UN
High Commissioner for Human Rights <http://ap.ohchr.org/documents/
E/SUBCOM/resolutions/E-CN_4-SUB_2-RES-1994-45.doc>.
See, inter alia, article 30 of the United Nations Convention on the Rights
of the Child, 1989, UNTS Vol. 1577 No. 27531; Principle 22 of the Rio
Declaration on Environment and Development, 1992 (ILM 31 (1992), 874
et seq.); Part I, para. 20 of the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna, 1993
(ILM 32 (1993), 1661 et seq.); and para. 5 of the General Recommendation
XXIII by the Committee on the Elimination of Racial Discrimination, under the International Convention on the Elimination of All Forms of Ra-
Ulfstein, Indigenous Peoples’ Right to Land
3
Indigenous peoples have applied two different approaches in their
legal argumentation.4 First, they claim the status of “nations” predating
existing states, thus trumping the sovereignty of states. Secondly, they
accept the sovereignty of states, but argue for rights within the framework of international human rights. The arguments based on indigenous self-determination at the expense of state sovereignty have met
strong resistance among states. But the two approaches are inter-related
in the sense that references to historic rights of indigenous peoples predating the existing states may strengthen their human rights arguments.
This article will discuss the land rights of indigenous peoples based
on relevant human rights conventions. The background is that the Justice Committee of the Norwegian Parliament in June 2003 asked the
Ministry of Justice to “obtain an expert, independent international law
assessment of the Bill proposing a new Finnmark Act”.5 This Bill was
the Norwegian Government’s proposal to resolve the claims of the
Sami people to land in the county of Finnmark. Professor Hans Petter
Graver and the present author were commissioned by the Ministry to
undertake the legal assessment. While having a more general purpose,
the article will draw upon the analysis in our study.
The article is divided into three parts. First, articles 1 and 27 of the
International Covenant on Civil and Political Rights6 will be discussed
in relation to land rights of indigenous peoples. Then, land rights under
the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries7 are examined, particularly its articles 14
and 15. Thirdly, the proposed Finnmark Act will be scrutinized with
regard to these two Conventions. Finally, some conclusions are drawn.
4
5
6
7
cial Discrimination UNTS Vol. 660 No. 9464. See further R. Wolfrum,
“The Protection of Indigenous Peoples in International Law”, ZaöRV 59
(1999), 369 et seq.
S.J. Anaya, “Introduction”, in: Anaya, see note 1, xii-xxi at xiii-xiv.
Proposition to the Odelsting No. 53 for 2002-2003 concerning an Act relating to legal relations and management of land and natural resources in
the county of Finnmark (Finnmark Act).
International Covenant on Civil and Political Rights, 1966, UNTS Vol. 999
No. 14668.
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries, 1989, UNTS Vol. 1650 No. 28383.
Max Planck UNYB 8 (2004)
4
II. The International Covenant on Civil and Political
Rights
The International Covenant on Civil and Political Rights (ICCPR) contains two articles of relevance for indigenous peoples’ right to land, i.e.
article 1 on self-determination and article 27 on minority rights.
1. Article 1
The right to “self-determination of peoples” is recognised in Article 1
para. 2, as well as Article 55 of the United Nations Charter. This right is
also incorporated as article 1 of the ICCPR and article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR),
which reads:
1. All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations.
The right of self-determination has been contentious in international
law. First, it must be determined what should be considered “peoples”:
is it the whole population of a state or may a state consist of several
peoples? Secondly, in the latter case, would such peoples have the right
to decide their state affiliation (external self-determination)?8 In our
8
There is an extensive literature on self-determination in international law,
among others, J. Crawford (ed.), The rights of peoples, 1998; C. Tomuschat
(ed.), Modern law of self-determination, 1994; A. Cassese, Selfdetermination of peoples. A legal appraisal, 1995; M. Koskenniemi, “National self-determination today: problems of legal theory and practice”,
ICLQ 43 (1994), 241 et seq.; P. Aikio/ M. Scheinin (eds), Operationalizing
Ulfstein, Indigenous Peoples’ Right to Land
5
context it is, however, the right to decide over a people’s economic, social and cultural future, in the form of control over lands and natural resources, as understood in the ICCPR, that is of relevance (internal selfdetermination).
The right of self-determination is regarded as a collective right of the
people in question. This has the procedural effect that the individual
right of appeal to the Human Rights Committee (HRC) under article 1
of the (first) Optional Protocol to the ICCPR, since it only covers individuals claiming to be victims of violations of any of the rights under
the Covenant, does not encompass article 1.9 However, the Committee
has in its General Comment No. 12 (1984)10 stated that the right of selfdetermination “is of particular importance because its realization is an
essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those
rights”, (para. 1). Furthermore, in noting that only some state reports
give detailed explanations regarding the implementation of article 1, the
Committee “considers it highly desirable that States parties’ reports
should contain information on each paragraph of article 1”, (para. 3).
The HRC, since 1999, commented on article 1 in connection with
the mandatory country reporting under article 40 of the Covenant. In
its report on Canada in 1999, the Committee stated:
“7. The Committee, while taking note of the concept of selfdetermination as applied by Canada to the aboriginal peoples, regrets that no explanation was given by the delegation concerning the
elements that make up that concept, and urges the State party to report adequately on implementation of article 1 of the Covenant in
its next periodic report.
8. The Committee notes that, as the State party acknowledged, the
situation of the aboriginal peoples remains ‘the most pressing hu-
9
10
the right of indigenous peoples to self-determination, 2000; P. Alston (ed.),
Peoples’ rights, 2001; and G. Pentassuglia, “State sovereignty, minorities
and self-determination: a comprehensive legal view”, International Journal
on Minority and Group Rights 9 (2002), 303 et seq.
See Chief Bernard Ominayak and the Lubicon Lake Band v. Canada,
Communication No. 167/1984: Canada, of 10 May 1990, Doc.
CCPR/C/38/D/167/1984 (Jurisprudence), para. 13.3. The decisions of the
HRC are available on the web site of the UN High Commissioner for
Human Rights, <http://www.unhchr.ch/tbs/doc.nsf>.
General
comments
by
the
HRC
are
available
under
<http://www.unhchr.ch/tbs/doc.nsf>.
6
Max Planck UNYB 8 (2004)
man rights issue facing Canadians’. In this connection, the Committee is particularly concerned that the State party has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With reference to the conclusion by RCAP
that without a greater share of lands and resources institutions of
aboriginal self-government will fail, the Committee emphasizes that
the right to self-determination requires, inter alia, that all peoples
must be able to freely dispose of their natural wealth and resources
and that they may not be deprived of their own means of subsistence (art. 1, para. 2). The Committee recommends that decisive and
urgent action be taken towards the full implementation of the
RCAP recommendations on land and resource allocation. The
Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1
of the Covenant.”11
Paragraph 7 only calls for reporting on the implementation of article
1. The statement in paragraph 8 indicates, however, that the Committee
considers that article 1 para. 2 on the right to dispose over natural resources also applies to peoples of multi-ethnic states, i.e. that one state
may consist of more than one people. The final sentence declares a substantive breach of article 1.12
When dealing with Norway’s report from 1999, the Committee also
called for reporting under article 1:
“17. As the Government and Parliament of Norway have addressed
the situation of the Sami in the framework of the right to selfdetermination, the Committee expects Norway to report on the
Sami people’s right to self-determination under article 1 of the
Covenant, including para. 2 of that article.”13
In the Committee’s observations on Mexico’s report from 1999, it is
stated that appropriate measures should be taken to increase the indigenous communities’ “participation in the country’s institutions and the
exercise of the right to self-determination”.14
The views of the Committee are further developed in the observations on Australia’s report from 2000:
11
12
13
14
Doc. CCPR/C/79/Add.105.
See M. Scheinin, “The right to self-determination under the Covenant on
Civil and Political Rights”, in: Aikio/ Scheinin, see note 8, 179 et seq. (190).
Doc. CCPR/C/79/Add. 112 (1999).
Doc. CCPR/C/79/Add. 109 (1999), para. 19.
Ulfstein, Indigenous Peoples’ Right to Land
7
“The State party should take the necessary steps in order to secure
for the indigenous inhabitants a stronger role in decision-making
over their traditional lands and natural resources (art. 1, para. 2).
The Committee is concerned, despite positive developments towards recognizing the land rights of the Aboriginals and Torres
Strait Islanders through judicial decisions (Mabo, 1992; Wik, 1996)
and enactment of the Native Title Act of 1993, as well as actual demarcation of considerable areas of land, that in many areas native title rights and interests remain unresolved and that Native Title
Amendments of 1998 in some respects limit the rights of indigenous
persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects
their interests in native title lands, particularly pastoral lands.”15
The Committee regards self-determination in relation to land rights
first of all to cover procedural rights in the form of a “stronger role in
decision-making” and “effective participation” in relevant land issues,
but it seems also to express a more general concern about the limitations in land rights and interests.
Finally, the Committee makes the following observation on participation regarding decision-making when commenting on Sweden’s report from 2002, although reference is made not only to article 1, but
also to articles 25 and 27:
“The State Party should take steps to involve the Sami by giving
them greater influence in decision-making affecting their natural environment and their means of subsistence.”16
The HRC’s approach to article 1 has been cautious. It seems that the
Committee is developing a practice, in dialogue with the states parties,
on the content of self-determination as it should be understood under
the Covenant. The requirement is first of all that indigenous peoples
should participate in decision-making over land rights, but the Committee has also indicated that article 1 contains certain substantive requirements. At this stage, it is, however, difficult to determine in more
detail the content of the procedural and substantive requirements.
15
16
Doc. CCPR A/55/40, para. 498-528 (2000).
Doc. CCPR/CO/74/SWE (2002), para. 15.
Max Planck UNYB 8 (2004)
8
2. Article 27
Article 27 of the ICCPR is worded as follows:
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or
to use their own language.”
It should first be noted that this article gives minority protection to
ethnic, religious and linguistic groups, and not only to indigenous peoples. Furthermore, it is not concerned with land rights as such, but with
cultural, religious and linguistic rights. Finally, as opposed to article 1,
individual and not collective rights are provided, although the rights
shall be exercised “in community with the other members of their
group.” This means that the individuals are entitled to use the complaints procedure under the (first) Optional Protocol.
In its General Comment No. 23 on article 27 from 1994,17 the HRC
states that this provision entails an obligation to take positive action,
and that where indigenous peoples are concerned such action includes
protecting the material basis for their culture, as well as giving members
of such groups a right to participate in relevant decision-making:
“7. With regard to the exercise of the cultural rights protected under
article 27, the Committee observes that culture manifests itself in
many forms, including a particular way of life associated with the
use of land resources, especially in the case of indigenous peoples.
That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment
of those rights may require positive legal measures of protection and
measures to ensure the effective participation of members of minority communities in decisions which affect them.”
These conclusions also build upon established and consistent practice on the part of the HRC. In the Lubicon Lake Band case, the Committee found a violation of article 27 due to interference by oil and gas
drilling, and plans about a pulp plant and logging:
“33. Historical inequities, to which the State party refers, and certain
more recent developments threaten the way of life and culture of the
17
CCPR General Comment 23. The rights of minorities (article 27) of 8
April 1994.
Ulfstein, Indigenous Peoples’ Right to Land
9
Lubicon Lake Band, and constitute a violation of Article 27 so long
as they continue.”18
The Committee is, however, not very specific about the factors determining this conclusion.19
In the first Länsmann case, where the Finnish state had granted a
quarrying concession in a reindeer husbandry area, the Committee, referring to its General Comment No. 23, stated:
“9.4. A State may understandably wish to encourage development
or allow economic activity by enterprises. The scope of its freedom
to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in Article
27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact
amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority
will not necessarily amount to a denial of the right under Article 27.
9.5. The question that therefore arises in this case is whether the impact of the quarrying on Mount Riutusvaara is so substantial that it
does effectively deny to the authors the right to enjoy their cultural
rights in that region. The Committee recalls paragraph 7 of its General Comment on Article 27, according to which minorities or indigenous groups have a right to the protection of traditional activities such as hunting, fishing or, as in the instant case, reindeer husbandry, and that measures must be taken “to ensure the effective
participation of members of minority communities in decisions
which affect them.”20
The Committee determines that the threshold for substantive interference is that “measures whose impact amounts to a denial of the
right” to enjoy a certain culture are not allowed, whereas members of
minority groups must accept “measures that have a certain limited impact.” It is worth noting that the Committee emphasises that the state
has no margin of appreciation in this context and that article 27 sets an
absolute barrier. The standard of “effective participation” is not developed further, but the Committee notes “in particular that the interests
18
19
20
Lubicon Lake Band v. Canada, see note 9.
Scheinin, see note 12, 194.
Ilmari Länsman et al. v. Finland, Communication No. 511/1992: Finland,
of 8 November 1994, Doc. CCPR/C/52/D/511/1992 (Jurisprudence).
10
Max Planck UNYB 8 (2004)
of the Muotkatunturi Herdsmen’s Committee and of the authors, were
considered during the proceedings leading to the delivery of the quarrying permit, that the authors were consulted during the proceedings,
and that reindeer herding in the area does not appear to have been adversely affected by such quarrying as has occurred.”21
The second Länsman case, concerning logging operations, confirmed the conclusions in the first case, and also pointed out that cumulative effects of activities must be taken into account:
“Even though in the present communication the Committee has
reached the conclusion that the facts of the case do not reveal a violation of the rights of the authors, the Committee deems it important to point out that the State party must bear in mind when taking
steps affecting the rights under Article 27, that though different activities in themselves may not constitute a violation of this article,
such activities, taken together, may erode the rights of Sami people
to enjoy their own culture.”22
The Mahuika case on fishing rights is also supportive of the conclusions in the earlier case law. It points out that not only traditional
means of livelihood are protected:
“The right to enjoy one’s culture cannot be determined in abstracto
but has to be placed in context. In particular, Article 27 does not
only protect traditional means of livelihood of minorities, but allows
also for adaptation of those means to the modern way of life and ensuing technology.”23
The Committee also refers to extensive consultation and the attention paid to the sustainability of the fishing activities:
“While it is a matter of concern that the settlement and its process
have contributed to divisions amongst Maori, nevertheless, the
Committee concludes that the State party has, by engaging itself in
the process of broad consultation before proceeding to legislate, and
by paying specific attention to the sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries Settle21
22
23
Ibid., para. 9.6.
Jouni E. Länsman et al. v. Finland, Communication No. 671/1995: Finland,
of 22 November 1996, Doc. CCPR/C/58/D/671/1995 (Jurisprudence),
para. 10.7.
Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993:
New Zealand, of 15 November 2000, Doc. CCPR/C/70/D/547/1992 (Jurisprudence), para. 9.4.
Ulfstein, Indigenous Peoples’ Right to Land
11
ment and its enactment through legislation, including the Quota
Management System, are compatible with article 27.”24
It may be concluded that indigenous peoples must accept measures
with a limited impact, but that article 27 prevents measures denying
them the use of land necessary to enjoy their culture. They also have a
right of “effective participation” in decision-making which affects their
use of land. It may be somewhat uncertain what the exact standard is
regarding such participation. In the Mahuika case it is referred to as
“broad consultation”, but a right of participation is, on the other hand,
different from a right of veto. Although this case also opens up the possibility of using article 1 on the collective right to self-determination in
the interpretation of the individual rights in article 27, nothing is said
about what may be gained by such interpretation.25
III. ILO Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries
1. Introduction
ILO Convention No. 169 concerning Indigenous and Tribal Peoples in
Independent Countries (the ILO Convention) aims to protect indigenous and tribal peoples’ way of life and culture based on these peoples’
own priorities.26 This sets it apart from the previous ILO Convention
of 195727 which aimed at assimilating these peoples into the national
culture.
The use of the term “peoples” was highly contested at the negotiations because of its connotation of self-determination. The result of the
negotiations was to include a provision to the effect that the use of this
24
25
26
27
Ibid., para. 9.8.
Ibid., para. 9.2.
The ILO Convention No. 169 entered into force in 1991. Seventeen states
are parties to the Convention, including several central Latin American
countries, Norway and Denmark. But among the non-parties we find the
United States, Canada, Sweden and Finland. The Convention encompasses
no
countries
in
Africa,
and
in
Asia
only
Fiji.
See
<http://www.ilo.org/ilolex/english/convdisp1.htm>.
ILO Convention No. 107 on Indigenous and Tribal Populations, 1957. The
Convention may be found under <http://www.ilo.org/ilolex/english/
convdisp1.htm>.
Max Planck UNYB 8 (2004)
12
term should not “be construed as having any implications as regards the
rights which may attach to the term under international law” (article 1
para. 3). While the use of “peoples” may have the effect of recognizing
the special situation of the indigenous groups, it does not provide a basis for a right of external self-determination in the form of secession. 28
But, as we shall see, the Convention provides for extensive rights of
participation in decision-making, which is an important part of internal
self-determination. In addition, in the following discussion a particular
emphasis will be placed on the substantive land rights contained in the
Convention.
2. Methodological Issues
In accordance with article 31 para. 1 of the Vienna Convention on the
Law of Treaties, the main task in treaty interpretation is to establish the
meaning of the provisions of the treaty on the basis of their wording in
the light of their object and purpose.29 The provisions on land rights
were highly contentious at the negotiations on the ILO Convention.30
A large number of changes were proposed, and agreement was reached
only after the chairman proposed that the provisions should be treated
as a package solution, instead of the usual procedure of voting on each
individual article.31 This suggests that there is even more reason that the
wording should be assigned central significance when interpreting these
provisions.
28
29
30
31
See L. Swepston, “A New Step in the International Law on Indigenous and
Tribal Peoples: ILO Convention No. 169 of 1989”, Oklahoma City University Law Review 15 (1990), 677 et seq. (692-695).
The Vienna Convention on the Law of Treaties, 1969, UNTS Vol. 1155 No.
18232.
The negotiations on land rights have been described as “heated and protracted”; see M. Tomei/ L. Swepston, Indigenous and Tribal Peoples: a
Guide to ILO Convention No. 169, ILO 1969 (“ILO Guide”). See also
Swepston, see note 28, 696 and 699.
101 changes were proposed in the provisions on land rights, see ILO Prov.
Records 76th Sess. 1989 (25), 16-17. See also R. Barsh, “An Advocate’s
Guide to the Convention on Indigenous and Tribal Peoples”, Oklahoma
City University Law Review 15 (1990), 209 et seq. (210), and N. Lerner,
“The 1989 ILO Convention of Indigenous Populations. New Standards?”,
Isr. Y. B. Hum. Rts. 20 (1991), 223 et seq. ( 237).
Ulfstein, Indigenous Peoples’ Right to Land
13
Official preparatory works of the ILO Convention show proposals
made by experts and states’ reactions to these proposals. The disagreement between the states and the adoption of the provisions on land
rights as a package solution meant that the provisions were formulated
in the final negotiations and do not necessarily build on the original text
proposals. Moreover, states may have had differing, and conflicting,
grounds for accepting the various particulars of the provisions grounds whose content cannot be ascertained after the event. Hence the
text proposals in question and the grounds given for them should be assigned limited significance. This said, the competing text proposals
show the gist of the disagreements, thereby giving guidance on why the
final Convention text was chosen.
The parties to the ILO Constitution are, under articles 22 and 23,
required to file regular reports with the ILO on their implementation of
ILO conventions which are dealt with by the ILO’s bodies. The reports
are examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR). Articles 24 and 25 of the
Treaty on the establishment of the ILO open the way for private organisations (employers or employees) to complain against nonobservance of ILO Conventions (“representations”). Such complaints
are examined by a tripartite committee established by the Governing
Body. Like statements from monitoring bodies established by other
human rights conventions, statements from the ILO on parties’ observance of ratified Conventions are not legally binding. They should,
however, be assigned importance when interpreting the Conventions.
Article 34 states that the Convention shall be applied in a flexible manner, having regard to the conditions characteristic of each country. This
may limit the precedent effect of statements in relation to other states
parties.32
3. Right of Participation
The right of indigenous peoples to participate in decision-making is reflected in ILO Convention articles 6 and 7. These provisions have been
emphasized by the ILO supervisory organs, often in connection with
article 15, both in examining land reports and complaints. It has been
stated that “the spirit of consultation and participation constitutes the
32
See Barsh, see note 31, 213.
Max Planck UNYB 8 (2004)
14
cornerstone of Convention No. 169 on which all its provisions are
based.”33
Article 6 para. 1 (a) provides that the indigenous peoples shall be
consulted with regard to measures which may affect them directly. The
consultations shall be conducted in good faith and “with the objective
of achieving agreement or consent to the proposed measures” (article 6
para. 2).
Any wording that could be interpreted as giving a right to veto to
indigenous peoples was unacceptable to several countries.34 Accordingly, the result was that, although being a strongly worded obligation
to try to reach a mutually agreed result, the provision does not provide
a right of veto. As has been stated in a case against Colombia:
“In the Committee’s view, although article 6 does not require that
consensus be reached in the consultation process, it does envisage
that the peoples concerned should have an opportunity to participate freely at all levels in the formulation, application and evaluation
of measures and programmes that directly affect them.
…
The Committee considers that the concept of consultation with the
indigenous communities that might be affected with a view to exploiting natural resources must encompass genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus. A meeting conducted merely for information purposes cannot
be considered as being consistent with the terms of the Convention”
(emphasis added).35
33
34
35
Representation alleging non-observance by Ecuador of the Indigenous and
Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the
ILO Constitution by the Confederación Ecuatoriana de Organizaciones
Sindicales Libres (CEOSL), para. 31.
Barsh, see note 31, 219.
Representation alleging non-observance by Colombia of the Indigenous
and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of
the ILO Constitution by the Central Unitary Workers’ Union (CUT),
paras. 78 and 90. See also Ecuador, see note 33, para. 39. Swepston says that
what is required is a “true dialogue” (L. Swepston, “The ILO Indigenous
and Tribal Peoples Convention (No. 169): eight Years after Adoption”, in:
C. Price Cohen (ed.), The Human Rights of Indigenous Peoples, 1998, 17 et
seq., 23).
Ulfstein, Indigenous Peoples’ Right to Land
15
Parallels may be drawn to obligations to negotiate between states, as
in the judgement by the ICJ in the Cameroon v. Nigeria case:
“However, articles 74 and 83 of the United Nations Law of the Sea
Convention do not require that delimitation negotiations should be
successful; like all similar obligations to negotiate in international
law, the negotiations have to be conducted in good faith.”36
The right to consultation is a collective right, and article 6 para. 1 (a)
provides that consultations shall take place particularly through the
peoples’ representative institutions. The principle of representation has
been considered by the ILO as “a vital component of the obligation of
consultation.”37
The right of participation is stated in article 6 para. 1 (b), which requires governments to:
“Establish means by which these peoples can freely participate, to at
least the same extent as other sectors of the population, at all levels
of decision-making in elective institutions and administrative and
other bodies responsible for policies and programmes which concern them.”
This provision does not, however, specify the participatory rights in
more detail, and does not give special privileges to indigenous peoples.
Article 7 para. 1 expresses the general spirit of the Convention in
protecting indigenous culture and ways of life, and in respecting their
right to determine their own future:
“The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs,
institutions and spiritual well-being and the lands they occupy or
otherwise use, and to exercise control, to the extent possible, over
their own economic, social and cultural development. In addition,
they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.”
Article 7 para. 3 requires studies to be carried out, in co-operation
with the indigenous peoples, on the possible impacts of planned development activities. Such studies have also been requested from the ILO:
36
37
Case Concerning the Land and Maritime Boundary Between Cameroon
And Nigeria, ICJ Reports 2002, 303 et seq. (424, para. 244).
Case against Ecuador, see note 33, para. 44.
Max Planck UNYB 8 (2004)
16
“In these circumstances, the Committee considers it appropriate to
re-commend that the Governing Body request the Government to
consider the possibility of establishing, in each particular case, especially in the case of large-scale exploitations such as those affecting
large tracts of land, environmental, cultural, social and spiritual impact studies, jointly with the peoples concerned, before authorizing
exploration and exploitation of natural resources in areas traditionally occupied by indigenous peoples.”38
Articles 6 and 7 go a long way in requiring a meaningful cooperation with indigenous peoples through consultations with their
representative institutions, but they fall short of granting full internal
self-determination. The right of participation in decision-making in legislative and administrative bodies is not well-defined. This means that
rights of ownership and control over land, and rights of participation in
public management of land areas, are essential.
4. Land Rights
a. Article 13
The ILO Convention Part II articles 13 to 19 contains provisions on
the land rights of indigenous peoples. As already mentioned, several of
the provisions contained in this Part were highly controversial. This is
easily understood by the importance of the land issue both for indigenous peoples and states.
Article 13 para. 1 recognizes the close relationship between indigenous peoples and the lands they inhabit or use:
“In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the
lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.”
38
Report of the Committee set up to examine the representation alleging
non-observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the
Bolivian Central of Workers (COB) Submitted: 1998 Document:
(GB.272/8/1), Document: (GB.274/16/7).
Ulfstein, Indigenous Peoples’ Right to Land
17
This provision points out the collective aspect of indigenous peoples’ relationship to land. The ILO Committee has emphasized the importance of collective ownership and referred to the right of indigenous
peoples to decide their own priorities. It has warned that “when communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the
community or the indigenous peoples and in general they may end up
losing all or most of the land, resulting in a general reduction of the resources that are available to indigenous peoples when they own their
land communally.”39
A sensitive issue was the term “territories”. On the one hand, indigenous peoples claimed rights to the total environment, and not only
to the land. But states argued that “territory” is used in connection with
the sovereignty of a state. 40 As such, the concept may have implications
both for internal and external self-determination. The compromise was
article 13 para. 2:
“The use of the term ‘lands’ in Articles 15 and 16 shall include the
concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.”
b. Article 14
The most important provision on land rights is article 14:
“1. The rights of ownership and possession of the peoples concerned
over the lands which they traditionally occupy shall be recognised.
In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively
occupied by them, but to which they have traditionally had access
for their subsistence and traditional activities. Particular attention
shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
39
40
Report of the Committee set up to examine the representation alleging
non-observance by Peru of the Indigenous and Tribal Peoples Convention,
1989 (No. 169), made under article 24 of the ILO Constitution by the
General Confederation of Workers of Peru (CGTP) para. 32 (b), see also
paras 30-31.
See Swepston, see note 28, 698-699 and ILO Guide, see note 30.
Max Planck UNYB 8 (2004)
18
2. Governments shall take steps as necessary to identify the lands
which the peoples concerned traditionally occupy, and to guarantee
effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal
system to resolve land claims by the peoples concerned.”
The wording of article 14 presents several problems of interpretation. In the following, the discussion will focus on article 14 para. 1.
First, the expressions “traditionally occupy”, “the rights of ownership
and possession”, and “shall be recognised” will be examined. Then the
focus turns to the object and purpose of the provision. Finally, the significance of national adaptation under article 34 is addressed.
aa. “Traditionally occupy”
The distinction between the lands which the peoples “traditionally occupy” and lands “not exclusively occupied by them” is fundamental in
article 14 para. 1.
The Oxford English Dictionary defines “occupy” as “to hold possession of; to have in one’s possession or power; to hold (a position, office, or privilege)” or “to live in and use (a place) as its tenant, or regular
inhabitant; to inhabit; to stay or lodge in”.41 Black’s Law Dictionary
gives the following definition of “occupancy”: “the act, state, or condition of holding, possessing, or residing in or on something; actual possession, residence, or tenancy, esp. of a dwelling or land”.42 There are
three crucial elements in these definitions: the requirements of living in;
using; and possessing an area of land. The Oxford English Dictionary
defines possession as “the visible possibility of exercising over a thing
such control as attaches to lawful ownership (but which may also exist
apart from lawful ownership)”. Black’s defines “possession” as “the fact
of having or holding property in one’s power; the exercise of dominion
over property.”
Indigenous peoples would thus have the rights of ownership and
possession of the land in which they live, use, and exercise control. In
assessing these requirements, a parallel may be drawn to acquisition of
territory by states. In the Eastern Greenland case, the PCIJ stated that
less was required of effective control in remote areas, and that two ele-
41
42
OED Online <http://dictionary.oed.com/>.
Black’s Law Dictionary, 7th edition, 1999.
Ulfstein, Indigenous Peoples’ Right to Land
19
ments must be shown to exist: the intention and will to act as sovereign,
and some actual exercise or display of such authority.43
In determining the required exercise of control under the ILO Convention, it is, however, also necessary to take into account the importance for indigenous peoples of the relationship to land (article 13),
their practices in using the land (article 5), and respect for their customs
or customary law (article 8). This means taking into account use of land
which is not necessarily of an intensive character. Furthermore, acquisition of rights similar to ownership should not necessarily require exclusive control to the same extent as under ordinary national property law.
Finally, for occupancy to have been exclusive does not mean that
others have not used the area on the basis of limited rights or tolerated
use. Since the term “occupy” includes both living in, using and controlling a land area, the fact that others have used the area will not at the
outset entail that the occupation has not been exclusive unless other
parties have also occupied the land area by living there, using and controlling it. A crucial criterion for stating that it is a matter of areas coming under “land not exclusively occupied by them” must be that others
have also practised a combination of settlement and use like the indigenous people in question.
bb. “The rights of ownership and possession”
The next terms that require interpretation are “ownership” and “possession.” “Ownership” is defined in the Oxford English Dictionary as
“the fact or state of being an owner; legal right of possession; property,
proprietorship, dominion” and in Black’s Law Dictionary as “the collection of rights allowing one to use and enjoy property, including the
right to convey it to others.” In other words, the wording refers not to
various types of material rights, but to the right’s formal status as the
collection of rights in the owner. “Possession” has been defined above.
Another complex of issues attaches to the use of the plural form
“rights of ownership and possession.” One possible explanation for the
plural form is that it refers to the two rights right of ownership and right
of possession. Another is that it builds on a perception that right of
ownership and right of possession are both generic terms for rights of
ownership (owner’s powers) and rights of possession and that it is the
recognition of these types of powers which the provision requires.
43
The Eastern Greenland case, PCIJ Ser. A/B, No. 53, 63.
20
Max Planck UNYB 8 (2004)
Against the background of the perception of the terms “ownership”
and “possession” explained above, a clarification of the text in the firstmentioned sense entails that governments are required to grant their indigenous peoples all rights that accrue to an owner in a legal and factual
sense, in other words formal title, right of disposal in a legal and factual
respect (ownership) and factual opportunity to exercise owner’s powers
(possession). This understanding of the wording has not been taken as a
basis in practice or in the literature. The ILO’s Committee of Experts
has stated, with reference to the situation in Norway, that formal title is
not necessary:
“The Committee does not consider that the Convention requires title to be recognized in all cases in which indigenous and tribal peoples have rights to lands traditionally occupied by them, although
the recognition of ownership rights by these peoples over the lands
they occupy would always be consistent with the Convention. The
Committee awaits with interest the final determination of this question in Norway.”44
It is also accepted in the literature that article 14 does not require
recognition of formal ownership rights.45 Implicit in this is the notion
that the Convention does not require indigenous peoples to have formal title to the lands concerned. This means that recognition of ownership rights need not entail indigenous peoples being given the right to
exercise legal powers that require formal title, such as conveyance,
mortgaging and creation of limited rights. Indeed this follows to an extent from article 17 para. 2 of the Convention which opens the way for
granting the peoples concerned competency to transmit their rights
outside their own community. If the peoples concerned are not given title, it follows from article 17 para. 1 that the legal system must open the
way for a system enabling rights to be transferred within the group in
conformity with their own customs. Moreover, the non-transfer of title
does not entail that the entity which retains title can use it to exercise
legal powers in conflict with the indigenous peoples’ rights under article 14 para. 1 first sentence. If title and material rights are not assembled
in a single entity, the underlying material rights must set limits to the
formal competence to exploit the title. This follows directly from the
44
45
CEACR 1995/65th Session. See also L. Hannikainen, “The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four
Nordic States”, Nord. J. Int’l L. 65 (1996), 1 et seq. (54).
Swepston, see note 28, referring to the preparatory works of the ILO Convention, 701.
Ulfstein, Indigenous Peoples’ Right to Land
21
fact that the indigenous peoples’ rights of possession and ownership
must be recognised.
In other words it must be assumed that what the provision requires
is recognition of owner’s powers in the legal and factual sense. An
analysis of what this entails must start from the powers that accrue to
an owner and possessor. Key elements of rights of ownership and possession both in systems of common law and civil law are an actual disposal over a particular area, i.e. the right to use and reap the fruits of a
property and to prevent others from using it. Disposal is negatively defined, i.e. the owner and possessor can use and dispose over the property in all ways that are not prohibited by the legal system. In addition
to actual disposal, owner powers include legal disposal, i.e. the right to
let or sell the property and to create limited rights to it.46
A particular question is whether “rights of ownership and possession” in the provision’s first sentence can be interpreted in a narrow
sense, such that awarding any power that accrues to an owner or possessor, including any right of use, would satisfy the Convention. An alternative is that a certain minimum level of powers has to be incorporated in order for there to be talk of recognition of rights of ownership
and possession in the meaning of the Convention. This cannot be resolved on the basis of the concepts of “functional ownership right” or
“substantive ownership right”; it must be resolved on the basis of a
concrete interpretation of the Convention.
The wording, the use of the terms “ownership” and “possession,”
argues in its own right against recognition of a pure right to use a land
area being considered sufficient. Where someone is given a right to do
something within a land area that otherwise accrues to an owner or possessor - for example a right to cross cultivated land – it would, according to general language norms, be somewhat contrived to characterise
this as granting owner’s powers. The central aspect of an owner’s right
is that it is negatively defined, in contrast to a right of use which is positively defined. A right of use is limited to what expressly follows from
the right in question and is not in itself dynamic. An ownership or possessory right on the other hand is a right to everything that is not ex46
The ILO’s Committee of Experts has the following view of the definition
of “ownership” in the ILO Convention of 1957: “While the Committee of
Experts had not found an exact equivalence between ‘possession’ and
‘ownership’, it had not found the firm assurance of possession and use to
be in violation of the requirement for ‘ownership’” (ILO Prov. Record
76th Sess. 1989 (25), 23).
22
Max Planck UNYB 8 (2004)
pressly restricted, and is subject to development by the owner. Hence
an owner’s right to exploit woodlands within a land area or to move his
livestock to grazing land is significantly different from the right held by
someone with usage rights or grazing rights. Moreover, rights to use a
land area are, as a rule, subject to the owner’s instructions. The fact that
the provision refers to rights of ownership and possession is an argument in favour of the notion that the rights to be recognised should
bear the stamp of exclusiveness, and not be derived from any other
party’s right of ownership or possession and should permit development by the owner in step with the latter’s changing wishes and needs.
Moreover, the use of “(the) rights” in the definite plural argues that the
indigenous people in question should be able to exercise all powers accruing to an owner or possessor.
Article 14 para. 1 distinguishes between lands indigenous peoples
“traditionally occupy” in the first sentence and “lands not exclusively
occupied by them, but to which they have traditionally had access for
their subsistence and traditional activities” in the second sentence. The
distinction between the first sentence where indigenous peoples shall be
granted “rights of ownership and possession”, and the second where
measures shall be designed to “safeguard the rights of the peoples concerned to use lands” is pertinent. This must be interpreted in such a way
that while the second sentence gives a right of use, the first sentence
gives a right to something more than use, namely “(t)he rights of ownership and possession”. This also implies that within lands coming under the first sentence indigenous peoples shall be able to exercise a form
of control or right of disposal, and not just to practise traditional use or
use which changes in step with the evolution of their culture.
The background to article 14 also indicates that something more
than rights of use is needed to satisfy the provision. The previous Convention on indigenous peoples’ rights, the Indigenous and Tribal Populations Convention from 1957, which ILO Convention No. 169 was intended to replace, states in article 11:
“The rights of ownership, collective or individual, of the members
of the populations concerned over the lands which these populations traditionally occupy shall be recognised.”
The introduction of “possession” alongside “ownership” in ILO
Convention No. 169 was not intended to weaken an indigenous peo-
Ulfstein, Indigenous Peoples’ Right to Land
23
ple’s land rights.47 It is important here, in the first place, that the alternative text proposal “rights of ownership or possession” was rejected.48
This indicates that the inclusion of the word “possession” was not intended to weaken rights of ownership.49
cc. “Shall be recognised”
The use of the term “recognised” in connection with indigenous peoples’ rights underpins this interpretation. It could be taken to mean that
states parties are not obliged to allocate new rights to these peoples,
only to recognize existing rights under national law. Article 14 contains,
however, a legal norm requiring an “autonomous interpretation” independent of who is entitled to ownership rights under national law. The
content of this international legal norm has been developed above.
47
48
49
See the ILO’s comment during the negotiations: “As concerns the use of
the terms ‘ownership’, ‘possession’ and ‘use’, the Governments of Canada
and Norway have made identical proposals based on a proposal submitted
during the first discussion. In view of other observations received, the Office considers that to assimilate the term ‘use’ to ownership and possession
would weaken the revised Convention by comparison with Convention
No. 107, which recognises the right to ownership; it has therefore dealt
with this question separately. The Government of India considers that the
concept of possession is unacceptable, and proposes its deletion. This
wording would, however, correspond to cases in which the rights which
indigenous or tribal peoples have acquired through occupation should be
recognised, but it is not appropriate to recognise them through ownership.
Several respondents, and the Meeting of Experts convened on this question
in 1986, have put forward effective arguments in favour of including the
concept, and representatives of indigenous and tribal peoples themselves
have indicated that they often attach more importance to possession than
to ownership.” (Report IV (2 A) ILO 76th Sess. 1989, 36).
Swepston, see note 28, 700. He also refers to the fact that the introduction
of “use” alongside “ownership and possession” was rejected. See also
Barsh, see note 31, 224-25.
Swepston, see note 28, asserts: “No consensus appeared to exist among the
members of the Committee on either the meaning or the implications of
the wording that it adopted in this sentence. It would seem, however, that
the Committee’s intent was not to weaken the right of ownership which
existed in Convention No. 107, but rather to make the new convention
more broadly applicable to a wide range of circumstances”, (700). See also
Barsh, see note 31, 224-25 on protection of “the highest form of ownership
or tenure accorded to others in the country.”
Max Planck UNYB 8 (2004)
24
An alternative and more convincing meaning of the term “recognized” is that it suggests that indigenous peoples’ rights are not something “allocated” by the state, but are rights they already hold by virtue
of being indigenous peoples who have traditionally occupied an area.
This is consistent with a view of these peoples as the original population or the population inhabiting the country before establishment of
its present borders (article 1 para. 1 (b)).
The term “recognized” is also in harmony with the assertions in the
official ILO Guide and in the legal literature that the Convention does
not require the transfer of formal ownership rights to the indigenous
people. It is sufficient that they obtain rights equivalent to rights of
ownership.50
dd. “Object and purpose”
A particular question is whether the provision has, based on considerations of object and purpose, a somewhat weaker content than is suggested by its wording.51 The purpose of the provisions on land rights is
to provide indigenous peoples with a stable basis for their culture and
future development. It is difficult to see what considerations of purpose
should be cited to render a limiting interpretation necessary. A limiting
interpretation could alternatively be supported by a general principle of
international law requiring a restrictive interpretation of treaties. As a
general principle of interpretation, this principle is, however, of little
significance in contemporary international law. Hence the issue is not
whether considerations of object and purpose render it necessary to in50
51
The ILO Guide, see note 30, asks the following: “Does this mean that indigenous and tribal peoples always have the right to title over their traditional lands? Not necessarily – the Convention talks of ‘rights’ in the plural. There are many cases in which indigenous and tribal peoples do not
have full title to their traditional lands. After a long discussion in the Conference, it was concluded that in some circumstances the right to possession
and use of the land would satisfy the conditions laid down in the Convention, as long as there was a firm assurance that these rights would continue
… It should be made very clear that this sentence is not meant to deprive
these peoples of the greatest degree of land rights attainable. It had to be
drafted in a way that would take into account different situations, and the
fact that not all indigenous and tribal peoples are in a position to exercise
the full rights of ownership.”
This was adduced by a majority of the Sami Rights Committee’s working
group on legal matters, NOU (Norway’s Official Reports) 1993: 34, 56.
Ulfstein, Indigenous Peoples’ Right to Land
25
terpret the provision along limiting lines, but whether such considerations call for a limiting interpretation.
When proposing the Finnmark Bill, the Norwegian Government
claimed that considerations of purpose will guide the establishment of
what rights are to be recognised in the particular case, and that “the salient point (must) be that the indigenous people’s right of disposal over
their lands is such that the aim of the ILO Convention’s provisions is
achieved”.52
In connection with this statement, reference can be made to article
13 para. 1, requiring that governments shall, when interpreting the provisions of the Convention concerning land rights, respect the importance for indigenous peoples’ culture and spiritual values of their relationship with the lands. Furthermore, indigenous peoples’ “social, cultural, religious and spiritual values and practices” shall be recognised
and protected (article 5 (a)).
An issue in this connection is whether the purpose goes further than
providing for recognition and protection of the actual enjoyment of a
property or, put it another way, whether the exclusivity, control and
right of “residual use” inherent in rights of ownership and possession
“over-fulfil” the purpose. If the purpose is understood to be merely to
provide indigenous peoples with a stable basis for their culture and future development, these aspects of the right of ownership and possession could appear to be superfluous. However, the provision must also
be interpreted in light of article 7 para. 1, which gives the indigenous
peoples the right to decide over the development of their lands and to
exercise control over their economic, social and cultural development.
Article 8 para. 2 assures the right to maintain the indigenous peoples’
customs. This does not, however, provide a basis for limiting the indigenous peoples’ rights to what is necessary for the preservation and
development of their culture and influence on land management.
Accordingly, when the introductory provisions are viewed as a
whole, the purpose makes no allowance for any clarifying interpretation of the provision in relation to what is implied by its wording and
background. Hence considerations of purpose cannot provide grounds
for recognition of anything less than rights which afford the indigenous
peoples such control and disposal as accrues to the holder of rights of
ownership and possession. How rights of ownership and disposal are to
52
Proposition to the Odelsting No. 53, see note 5, 88-89.
Max Planck UNYB 8 (2004)
26
be formulated in detail and how the issue of title is to be formally dealt
with, on the other hand, is not established by the provision.
Based on the above, the point of departure should be that indigenous peoples are entitled to all rights usually held by an owner in the
national legal system in question, insofar as this does not result in significantly poorer protection than that which follows from the dominant
legal cultures of continental legal systems and common law. However,
the Convention sets no absolute requirement to the effect that the indigenous peoples should be allocated a legal right of disposal over the
lands in question (that which distinguishes ownership rights from possessory rights) or formal title to the lands in question. Where other parties are accorded such title and legal right of disposal, this does not entail any right to dispose over the property by sale, lease or creation of
limited rights to the neglect of the indigenous peoples’ rights under article 14.
ee. “Article 34”
Another basis for a limiting interpretation could be article 34:
“The nature and scope of the measures to be taken to give effect to
this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country.”
This entails that rights, inter alia, under article 14 para. 1 first sentence, can be adapted to national conditions. However, article 34 cannot
provide a basis for undermining the rights following from article 14.
This indicates that article 34 should make allowance for rights whose
content differs somewhat from those customarily held by an owner, but
not for rights that are poorer or significantly different from those following from article 14.
c. Article 15
Article 15 deals with natural resources pertaining to lands to which indigenous peoples have rights under article 14. Article 15 establishes that
these rights, including the right to participate in the use, management
and conservation of the resources in question, shall be specially safeguarded. A distinction is drawn between mineral or subsurface resources of which the state retains ownership, and other resources of
which the state retains rights. Where natural resources in respect of
which the state retains ownership and other rights are concerned, provi-
Ulfstein, Indigenous Peoples’ Right to Land
27
sions are laid down to protect the indigenous peoples in connection
with the utilisation of such resources, to assure them influence over decisions on utilisation and to ensure that the indigenous peoples receive a
share of the financial proceeds and compensation for any curtailment of
their rights resulting from such utilisation.
The article reads:
“1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or
sub-surface resources or rights to other resources pertaining to
lands, governments shall establish or maintain procedures through
which they shall consult these peoples, with a view to ascertaining
whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration
or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of
such activities, and shall receive fair compensation for any damages
which they may sustain as a result of such activities.”
This article was the subject of substantial disagreement during the
negotiations. On the one hand many states maintained that the government generally has ownership rights to natural resources and that
there was no question of departing from this in respect of indigenous
peoples.53 In indigenous peoples’ quarters, on the other hand, it was asserted that ownership rights to lands are of no interest without control
over the natural resources to be found there.54
The provision raises several questions. The first question is what is
implied by the notion that an indigenous people shall be assured rights
of participation and management of natural resources pertaining to
their lands, cf. para. 1. The next question is what rights accrue to an in-
53
54
See ILO Report VI (1) 75th Sess. 1988, 72: “During the Meeting of Experts
it was noted that in many countries those who hold title to land do not
have rights to the subsoil and other resources; even though indigenous and
tribal peoples have special needs and special claims in regard to such resources, a stronger provision which simply extends ownership of these resources to these peoples would prove incompatible with the legal systems
of a number of countries.”
See Swepston, see note 28, 703.
28
Max Planck UNYB 8 (2004)
digenous people in terms of exploitation of natural resources of which
the state retains ownership, cf. para. 2.
As regards the question of what natural resources the state can retain
ownership of, the starting point is the general rules governing an
owner’s right to exploit natural resources pertaining to the land he
owns and the right of the state or anyone empowered by the state to
exploit natural resources on other parties’ property. Since these rules
vary from country to country, the provision is worded in general terms
and does not establish what resources accrue to the owner and what do
not.55 Discriminating against indigenous peoples by excepting their
right of disposal over natural resources from their land ownership
rights to a greater degree than in the case of real property in general is
not permitted.56 The provision in question applies to all lands which indigenous peoples occupy or otherwise use; see article 13 para. 2. Hence
a distinction needs to be drawn between lands coming under article 14
para. 1 first sentence and second sentence, respectively. Only in connection with lands coming under the first sentence of the provision is it
necessary to draw a line between the indigenous people’s ownership
rights and the state’s right to natural resources. In the case of other areas the situation under the Convention must be that the indigenous
people cannot oppose other parties having rights to natural resources
which do not directly collide with their own use of the land in question.
However, the rules on procedures and compensation set out in article
15 para. 2 also apply to such situations.
The starting point concerning lands to which an indigenous people
has rights of ownership or possession under article 14 para. 1 first sentence is, as stated, the general limitation on the owner’s sole right of
disposal under the general rules of property law. For example, in Norwegian law, the point of departure is that the owner has the sole right to
exploit all resources pertaining to a property. Exceptions apply in the
case of certain minerals and sub-surface resources where the principle
of freedom to mine applies to claimable minerals while the right to subsurface petroleum deposits belongs to the state.57 Other natural re55
56
57
See Swepston, see note 28, 704.
See Barsh, see note 31, 229 and S.J. Anaya, Indigenous Peoples in International Law, 1996, 106.
See section 3 of lov om bergverk (Mining Act) of 30 June 1972 No. 70 and
section 1 of lov om undersøkelser etter og utvinning av petroleum i grunnen
under norsk landområde (Act relating to Onshore Exploration for and
Production of Petroleum in Norway) of 4 May 1973, No. 21.
Ulfstein, Indigenous Peoples’ Right to Land
29
sources accrue to the owner, subject to the restrictions entailed by concrete usage rights held by other parties by agreement, prescription or
immemorial usage and public right.58 As a general point of departure,
this entails that in areas covered by article 14 para. 1 first sentence, the
Sami people are entitled under article 15 to exploit all natural resources
that accrue to an owner subject to the reservations entailed by public
right, the right to prospect and the state’s exclusive right to petroleum
deposits.
Deviations from this general point of departure are conceivable in
both directions. In countries where restrictions on the owner’s right to
exploit natural resources are wider-ranging than in Norway, it is conceivable that consideration for indigenous people’s traditional livelihoods and life conditions may call for them to be granted wider rights
to their lands than indicated by the country’s general rules. It may also
be relevant to ask, in the particular case, whether there is a basis for
greater curtailment of the indigenous people’s right of disposal over
natural resources than is generally the case. Curtailment of such peoples’ disposal of resources on the grounds that they are an indigenous
people and therefore do not have rights to their lands on a par with others, conflicts with the prohibition of discrimination. The same will apply in the case of curtailment grounded in the notion that the indigenous peoples, due to their customs and traditions, have practised a different usage of their lands and have referred to their use and their relationship to their lands in different terms than the public in general.
A different situation applies with regard to rights grounded in individual or collective traditional rights acquired through immemorial usage, prescription etc., such as rights accruing to certain properties or rural communities. Recognition of such rights could not be said to discriminate against the indigenous people as owner of the land in relation
to other owners in the national legal system since these are rights that
any owner has to respect in such a situation. The provisions of article 15
para. 2 will nonetheless apply in relation to these rights.
Article 15 para. 1 entitles the indigenous peoples to participate in the
use and management of natural resources pertaining to their land. What
this means in practice will depend on whether it is a matter of land to
which the indigenous peoples have rights of ownership and possession,
or whether it is a matter of land which they have the right to use under
article 14 para. 1 second sentence. It is clear that article 15 applies to
58
See T. Falkanger, Tingsrett, 5th edition, 2000, 428-436.
30
Max Planck UNYB 8 (2004)
both categories of land areas; see article 13 para. 2 where this is expressly stated.59
In areas over which indigenous peoples have rights of ownership
and possession, the right to participate in the use and management of
natural resources will primarily be of significance for public law rules
on the exploitation, management and protection of natural resources.
They will already enjoy the private law right to exploit the natural resources by virtue of the rights that are recognised in pursuance of article
14. In other words the provision entails a right to participate in the
public law management of natural resources. Article 15 para. 1 provides
a right to “participate in the use”, in contrast to for example article 15
para. 2 which refers to “consult these peoples” and article 6 which mentions “consult the peoples concerned.” Based on the wording, it is natural to assume that the indigenous peoples must be represented in the
agencies that make decisions and are responsible for the management of
resources in the indigenous peoples’ lands. However, since the provision uses the word “participate” there cannot be any requirement that
public law management should be left to the indigenous peoples or that
the latter should be given decisive influence in matters concerning resources pertaining to their lands. To the extent that lands under article
14 para. 1 first sentence are situated in municipalities where the indigenous peoples are in a majority or constitute such a large part of the
population that they can be said to participate in the formation of the
municipality’s policies and decisions, the assumption would be that the
requirement is fulfilled where municipal agencies participate in the formulation of decisions.
In land outside the scope of article 14 para. 1 first sentence, i.e. land
which the indigenous peoples inhabit or otherwise use, but where they
are not the predominant population, the right to participate in the exploitation and management of the natural resources must have both private law and public law implications. This follows directly both from
the wording and from the fact that the provision of article 13 applies to
land to which the indigenous peoples do not have rights of ownership
and possession. In private law terms the provision entails that these
peoples must not only be given the right to use the land under article 14
para. 1 second sentence but also a right to exploit natural resources to
the requisite extent. In addition they must be entitled to participate in
the exploitation and management of natural resources in cases where
this may come into conflict with indigenous exploitation rights. Such
59
See C. Thornberry, Indigenous Peoples and Human Rights, 2002, 356.
Ulfstein, Indigenous Peoples’ Right to Land
31
conflict is conceivable where several parties are entitled to exploit the
same resource, and for example where exploitation of one type of resource may displace exploitation of another.
Article 15 para. 2 concerns the exploitation of resources of which
the state retains ownership. Based on the purpose of this provision, it
necessarily embraces all natural resources which can be exploited by
parties other than the indigenous people concerned, i.e. in Norway’s
case all claimable minerals in addition to petroleum resources owned by
the state. True enough, under Norwegian law claimable minerals are not
a type of resource of which “the state retains ownership.” If claimable
minerals do not come under article 15 para. 2, the alternative is that
they come under para. 1 and thereby constitute a natural resource
whose exploitation and management the Sami are entitled to participate
in directly in those areas which come under article 14 para. 1 first sentence, and indirectly to the extent that their right of use is affected in areas coming under the second sentence. It must be justifiable to interpret
the provision such that it is applicable in all cases where the landowner’s right of disposal is restricted for the benefit of other parties, either because ownership of the resource is, in the first instance, reserved
for the state which can then grant production licences or, as in the case
of Norway’s Mining Act, exploitation rights accrue to the first party to
claim such rights. In both cases it is a matter of limiting the landowner’s
exploitation rights for the benefit of others on the basis of general political, economic and social considerations. With reference to article 34
it must be justifiable to assert that the applicability to the indigenous
people’s right of disposal of a general limitation cannot depend on the
state being the owner of the resources in question. Hence it should not
be considered to be in conflict with the Convention that the principle of
freedom to mine should also be retained for areas coming under article
14 para. 1 first sentence.60
60
Norway has been criticized by the ILO for not conducting consultations
under article 15 para. 2 prior to granting mineral exploration permits
(Comments made by the Committee of Experts on the Application of
Conventions and Recommendations (from 1990) Indigenous and Tribal
Peoples Convention, 1989 (No. 169), CEACR 1995, 65th Sess., para. 23).
Max Planck UNYB 8 (2004)
32
IV. Sami Land Rights and the Proposed Finnmark Act
1. Introduction
The Sami people inhabit areas of Sweden, Finland and Russia, but most
of its population (more than 40.000) lives in Norway. The rights to the
land areas in Finnmark, which is the northernmost county of Norway
2
of 48.649 km (larger than Denmark), have long been disputed. The
Sami Rights Committee was established by the Norwegian government
in 1980 as a result of the conflict over the interference of hydro-electric
power development in the Alta-Kautokeino watercourse. The first report by the Committee resulted in the Sami Act of 1987 and establishment of the Sami Parliament, and a new article 110 A of the Norwegian
Constitution relating to the Sami people in 1988. The Committee submitted a new report in 1997 relating to rights to natural resources and
land.61 This report formed the basis for the government’s Bill concerning land rights and management in Finnmark (the Finnmark Act).62
The proposed Finnmark Act presents a common administrative arrangement for all land in Finnmark that is currently registered as the
property of Statskog SF, i.e. 95 per cent of the county’s land area. The
Bill establishes a legal entity, the Finnmark Estate. Registered title to
state land in Finnmark is transferred from Statskog to the new
Finnmark agency. This unequivocally turns the new agency into a landowning body, and not, in principle, an administrative agency. In relation
to public authorities, the Finnmark Estate essentially has the same
status as a private owner, subject to two important modifications: a.) its
legal position can be changed by subsequent legislation (section 19); and
b.) compensation will not be paid in the event that land is expropriated
for a number of public purposes (section 18). In relation to private right
holders the situation is more complicated. The Bill expressly makes no
encroachments on private or collective rights based on prescription or
immemorial usage, while not defining what types of rights this may involve in different geographical areas (section 5). Evidently there may be
a question here of rights of use within the usual meaning of property
law. However, in light of recent practice by the Norwegian Supreme
Court,63 the possibility cannot be ruled out that in some areas the local
61
62
63
NOU (Norway’s Official Reports) 1997: 4 Naturgrunnlaget for samisk
kultur.
Proposition to the Odelsting, see note 5.
See especially Supreme Court Reports 2001, 769, and 2001, 1229.
Ulfstein, Indigenous Peoples’ Right to Land
33
population must also be regarded as holding formal ownership rights to
certain areas within the Finnmark Estate.
Since the Bill does not seek to define a boundary between the powers of ownership assigned to the Finnmark Estate and the rights held by
the Sami people on the basis of prescription or immemorial usage, the
crucial point in relation to the ILO Convention article 14 para. 1 is
whether the proposed administrative arrangement in itself fulfils the requirements of the provision. Sections 22-24 of the Bill give the local
population of Finnmark, which of course includes the Sami population,
the right to exploit certain resources. However, they give no special
rights to the Sami as an indigenous people. The rights are positively
enumerated, and the exercise of them depends on what regulations the
Finnmark Estate lays down as regards permits, fees and allotment of areas. Against this background it is obvious that the rights of use granted
by these provisions of the Bill do not meet the requirements of article
14 para. 1 first and second sentence as regards ownership or possessory
rights or rights of use.
Since, equally, the Bill draws no distinction between areas coming
under article 14 para. 1 first and second sentence, it follows that the
administrative arrangement for the entire area has to fulfil the requirements of article 14 para. 1 first sentence. It has been concluded above
that article 14 para. 1 first sentence requires the indigenous peoples in
the geographical areas encompassed by this provision to be granted
rights of ownership and possession which correspond in both the legal
and de facto sense to those normally accruing to an owner, with the reservation that title over these areas need not be transferred. How these
rights are to be formulated in detail is not established in the provision.
The provisions of the Bill that raise problems in relation to article 14
para. 1 first sentence are first of all the governance arrangement for the
Finnmark Estate (section 7).
The focus of the following discussion will be, first of all, to what extent the governance arrangement proposed by the Finnmark Bill is consistent with the requirements of the ILO Convention No. 169 article 14
para. 1 first sentence. Article 27 of the ICCPR will also be addressed.
The content of the Covenant’s article 1 on self-determination is not
clarified in sufficient detail by the HRC to conclude that the Bill does
not fulfil its requirements.
34
Max Planck UNYB 8 (2004)
2. Article 14
Section 30 of the Finnmark Bill assigns registered title to the lands in
question to the Finnmark Estate. According to section 6, the Finnmark
Estate is an independent legal entity with its seat in Finnmark which
shall administer land and natural resources etc., that it owns in compliance with the act. Apart from this transfer of title, the Bill makes no
changes in the underlying existing proprietary conditions or rights.
Since the Sami as an indigenous people are neither awarded material
rights to their lands directly nor receive title, the question is whether
management via the Finnmark Estate can be equated with the rights of
ownership and possession to which the Sami people are entitled under
article 14 para. 1 first sentence.
This is, above all, a matter of the content of the governance arrangement for the Finnmark Estate. According to section 7, the board
of the Finnmark Estate shall comprise seven members. Finnmark
County Council and the Sami Parliament shall each elect three members with a personal deputy. The members and deputies shall be resident in Finnmark. Among the members elected by the Sami Parliament
at least one board member and that person’s deputy shall be representatives for reindeer husbandry. One non-voting member with a personal
deputy shall be appointed by the government. The board itself will appoint its chairperson and deputy chairperson from among its members.
If no-one achieves a majority, the board member appointed by the state
shall be the chairperson.
This composition of the board does not at the outset give the Sami
people sufficient rights over the lands in question to support the contention that their rights of ownership or possession are thereby recognised. However, control over the land in question depends on voting
procedures, the interplay between the Finnmark Estate, the Sami Parliament and other public bodies, and any material limitations on decision-making authority.
Under section 9, the board has responsibility for the management of
the Finnmark Estate. Section 9 establishes that the board may make decisions when at least five voting members are present. Except as otherwise provided by section 10, decisions are made by simple majority.
Where a vote is tied, a decision is deemed not to have been made. If the
board member appointed by the state regards it as necessary for the operation of the Finnmark Estate that a decision be made, the member
may request that the matter be decided by the ministry. A decision by
the ministry has the same effect as such a decision by the board.
Ulfstein, Indigenous Peoples’ Right to Land
35
To the extent that governmental decisions can be made in cases concerning private law management of the land in question, the requirement as to Sami control under article 14 cannot be regarded as being
fulfilled. However, section 10 sets out further rules on the treatment of
cases concerning changes in the use of uncultivated land etc.
Section 10 first paragraph contains rules regarding what interests are
to be attended to in cases concerning changes in the use of uncultivated
land:
“In matters concerning changes in the use of uncultivated land, the
Finnmark Estate shall assess the significance a change will have for
Sami culture, reindeer husbandry, commercial activity and social life.
In making this assessment, the guidelines of the Sami Parliament
pursuant to section 4 shall be followed.”
Section 10 fourth paragraph establishes that this section applies correspondingly to cases concerning “sale and leasing of uncultivated land
or rights to uncultivated land, concerning assignment of special rights
for local utilization of renewable resources and concerning local management of hunting and fishing.” The section does not apply to the
management of cultivated land.
Section 4 states the following on the Sami policy guidelines:
“The Sami Parliament may issue guidelines for assessing the effect of
changes in the use of uncultivated land on Sami culture, reindeer
husbandry, commercial activity and social life. The guidelines and
amendments to the guidelines shall be approved by the Ministry.
In matters concerning changes in the use of uncultivated land, state,
county and municipal authorities shall on the basis of the guidelines
issued by the Sami Parliament assess the significance such changes
will have for Sami culture, reindeer husbandry, commercial activity
and social life.”
According to section 4 first paragraph, the guidelines shall be established by the Sami Parliament but both the guidelines and changes to
the guidelines will require ministry approval. However, the ministry
will not undertake any review of the Sami Parliament’s assessment of
what would be detrimental to Sami culture etc. The Sami Parliament’s
assessments will be left entirely to that body’s discretion. Nonetheless,
part of the approval process will be to check whether the guidelines
comply with the delimitation in section 4 or, in other words, whether
they address impacts on Sami culture, reindeer husbandry, commercial
activity and social life or go beyond this. Disagreement between the
Sami Parliament and the ministry may lead to no guidelines being
Max Planck UNYB 8 (2004)
36
adopted. Hence the Sami Parliament does not have ultimate control
over the content of the guidelines.
It is also important that section 10 first paragraph does not entail
that the Sami Parliament’s guidelines represent binding limitations on
the Finnmark Estate’s decisions concerning changes in the use of uncultivated land. This provision establishes that the guidelines shall underlie
assessments of what significance changes in the use of uncultivated land
will have for Sami culture, reindeer husbandry, commercial activity and
social life: the guidelines do not establish binding rules for the content
of the Finnmark Estate’s decisions. This is also clear from the commentary to this provision which states: “The guidelines are not directly
binding, but there is a clear presumption that substantial importance
will be given to the guidelines in the assessment.”64
This entails that importance shall be attached to the Sami policy
guidelines when the Finnmark Estate considers changes in the use of
uncultivated land. According to section 4 second paragraph, assessments made by state, county municipal and municipal authorities shall
also be based on the guidelines. But since the Sami Parliament does not
have the final say on the content of the guidelines and the guidelines are
not binding for decisions made concerning the use of uncultivated land,
the provisions on the guidelines cannot be placed on the same footing as
the rights of ownership and possession required by ILO Convention
article 14.
Section 10 second paragraph sets forth rules on the decision-making
process in regard to changes in the use of uncultivated land:
“Decisions concerning changes in the use of uncultivated land always require the support of at least four board members who are
entitled to vote if the whole minority bases its opinion on due consideration for Sami culture, reindeer husbandry, commercial activity
and social life assessed on the basis of the guidelines of the Sami Parliament. If the majority consists of four or less, a collective minority
may during the board meeting demand that the matter be placed before the Sami Parliament. If the Sami Parliament does not ratify the
decision of the majority or does not consider the matter within a
reasonable time, a collective majority of the board may demand that
the Finnmark Estate place the matter before the King [i.e. the Government], who shall then decide whether the decision shall be ap-
64
Proposition to the Odelsting, see note 5, 127.
Ulfstein, Indigenous Peoples’ Right to Land
37
proved. Such approval of the decision has the same effect as such a
decision by the board.”
This provision entails that at least one representative appointed by
the Sami Parliament must support a decision to change the use made of
uncultivated land in order for the decision to be made, in cases where a
collective minority justifies its standpoint with reference to Sami culture etc. on the basis of the Sami Parliament’s guidelines. This collective
minority can have the decision submitted to the Sami Parliament, but
the Sami Parliament cannot prevent the decision from being made. A
collective majority of the board of the Finnmark Estate is namely entitled to submit the matter to the King who will then make a final decision.
The above procedure provides protection against interference with
Sami culture, reindeer husbandry, commercial activity and social life.
The commentary to this provision states that the procedure “will assure
the Sami Parliament substantive influence over land management.”65 It
also states that “it is the state authorities that are ultimately responsible
for compliance with international law obligations and for ensuring that
ratification of a decision regarding changes in the use of uncultivated
land does not conflict with the protection afforded by international
law.”66 However, the procedure does make encroachments possible
provided that majority decisions are supported by a minority of the
board representatives appointed by the Sami Parliament. This entails
that the Sami, as an indigenous people, do not have rights on a par with
owners as required by article 14 of the Convention. Nor is it sufficient
to cite the state authorities’ obligation to comply with obligations under international law if the act lays the basis for a decision-making system that is contrary to international law.
Equally, the Bill’s object and purpose clause (section 1) cannot make
any difference in relation to the administrative arrangement’s status under international law:
“The purpose of the Act is to facilitate the management of land and
natural resources in the county of Finnmark in a balanced and ecologically sustainable manner for the benefit of Sami culture, reindeer
husbandry, commercial activity and social life, the inhabitants of the
county and the public at large.”
65
66
Proposition to the Odelsting, ibid., 127.
Proposition to the Odelsting, ibid., 128.
Max Planck UNYB 8 (2004)
38
This provision enjoins an overall assessment in which Sami interests
are one of several considerations to be attended to. Moreover, it is
merely of a guideline nature, and does not provide binding protection
in terms of substantive law.67
Section 3 of the Bill is a general provision on the significance of international law for the application of this act:
“The Act shall be applied in compliance with the provisions of international law concerning indigenous peoples and minorities and
with the provisions of agreements with foreign states concerning
fishing in border zones.”
This section requires the act to be interpreted and applied in compliance with ILO Convention No. 169. It does not, however, provide a
basis for setting aside provisions of the act should they conflict with
Norway’s obligations under international law. Hence section 3 does not
remedy those elements of the Bill that are contrary to the ILO Convention. However, the provision entails a limit to the Finnmark Estate’s
competence to dispose over the land areas in question where such disposal conflicts with Sami rights based on the international rights of indigenous peoples. While this may partially serve to remedy the conflict
between the Bill and the Convention, viewing the Convention as a limitation on the Finnmark Estate’s competence will not suffice to fulfil obligations in those areas coming under article 14 para. 1 first sentence.
Thus far the conclusion is that the governance arrangement for the
Finnmark Estate, and the rules governing the content of decisions
which may be taken, do not afford the Sami population the rights of
ownership and possession to which this indigenous people is entitled to
under article 14 para. 1 first sentence.
3. Article 34
A pertinent question is, however, whether article 34 of the Convention,
which establishes that the Convention shall be implemented “in a flexible manner, having regard to the conditions characteristic of each country,” makes allowance for the solutions contained in this Bill.
It has already been concluded that article 34 provides a basis for
adapting the application of the Convention to conditions in the respective countries, but not where this results in poorer or significantly dif67
Proposition to the Odelsting, ibid., 120.
Ulfstein, Indigenous Peoples’ Right to Land
39
ferent rights for indigenous peoples than those afforded by other provisions of the Convention. Since the Bill is not considered to fulfil the
Convention’s requirements in the geographical areas encompassed by
article 14 para. 1 first sentence, the issue is whether this can be compensated for with Sami influence over a significant portion of the lands in
Finnmark, in an area which is far larger than that which is assumed to
be encompassed by article 14 para. 1 first sentence.
It may be asserted that such an arrangement gives opportunities to
protect Sami interests in 95 per cent of lands in Finnmark, which may,
inter alia, be of positive significance for reindeer husbandry. Moreover,
it is conceivable that such an arrangement would be more acceptable in
relation to non-Samis, and would thereby mitigate conflict since geographical division into areas under and outside Sami control would be
avoided. However, it is difficult to compare the disadvantages of having
less control over the lands encompassed by article 14 para. 1 first sentence with the advantages of having influence over a significantly larger
geographical area.
The ministry bases itself on the notion that the crucial point is the
“totality of the arrangement and whether it effectively promotes the
considerations underlying the provisions of the Convention” and has
stated that “an overall solution for Finnmark will be in accordance with
international law if the Sami people acquire sufficient influence over
land management in such a way as to ensure a stable basis for the preservation and development of Sami culture.”68
How far the Bill assures a stable basis for the preservation and development of Sami culture depends on how the Finnmark Estate and
the state exercise the powers which the Bill accords the board and the
state, respectively. The rules on decision-making are formulated so as to
enable the Sami Parliament to exercise influence on the basis employed
for assessing the impact of the management on Sami culture, reindeer
husbandry, commercial activity and social life. Cases concerning
changes in the use of uncultivated land which are not supported by a
majority of the Sami representatives can be submitted to the King by
the Sami Parliament. In other words, the design of the Bill lays the basis
for the state to fulfil its obligation under the ICCPR article 27 to protect the material basis for Sami culture. However, this is not crucial to
an assessment of whether the obligations under the ILO Convention
are fulfilled.
68
Proposition to the Odelsting, ibid., 90-91.
40
Max Planck UNYB 8 (2004)
As mentioned above, considerations of purpose should not justify a
limiting interpretation of the rights following from article 14 para. 1
first sentence. Hence the fact that an area is managed in such a way as to
protect Sami culture is not sufficient to fulfil article 14 para. 1 first sentence unless the Sami people themselves are assured such influence over
the management as accrues to an owner or possessor of the relevant areas of land. The question of whether the influence required by article 14
para. 1 first sentence can be “exchanged” for greater influence over
lands other than those which the Sami would otherwise have been entitled to use under article 14 para. 1 second sentence is a distinctly political issue that is poorly suited to an assessment of a purely legal nature.
There is no basis in the Convention for the notion that states are accorded such leeway to implement their obligations, without the indigenous people itself participating in such political assessments by, in the
event, expressing its support for them. Hence the crucial point is that
the Bill does not lay a basis for Sami rights of ownership and possession
in areas traditionally occupied by them. This being the case, article 34
cannot be cited as a basis for stating that non-fulfilment of article 14
para. 1 first sentence is compensated for by greater Sami influence on
the management of other areas. The conclusion is thus that article 34
does not provide a basis for accepting the Bill’s system for management
of land in Finnmark.
4. Case Law
In the ILO’s examination of state reports on the implementation of
ILO Convention No. 169, and in complaints made under the same
Convention, it is difficult to find cases comparable to the management
of land areas proposed in the Finnmark Bill. But the system for rights
to land in Greenland merits some examination.
Denmark has an administrative system for the whole of Greenland
that is not based on a division of lands falling respectively inside and
outside the geographical scope of the ILO Convention article 14 para. 1
first sentence, and where the administrative agency is not formally
composed of representatives of the indigenous Inuit people and nonindigenous peoples. In Greenland it is not possible to gain ownership to
land by physical or legal entities. The land is administered by the
Ulfstein, Indigenous Peoples’ Right to Land
41
Greenland Home Rule Administration.69 This means that the management of property is undertaken by an institution where the indigenous
69
The Danish State issued on 9 October 1997 the following declaration upon
ratifying the Convention:
“With reference to article 14 of the Convention, the Danish government
wishes to state the following:
1. In Denmark there is only one indigenous people in the meaning of Convention no. 169. This is the original population of Greenland, the Inuit.
The Greenland Home Rule Act (no. 577 of 29 November 1978) introduced
a home rule system for Greenland. The home rule system consists of a
popularly elected assembly, the Landsting or Home Rule Parliament,
elected by permanent residents of Greenland, and a politically elected leadership, the Landsstyret or Home Rule Administration, which is elected by
the Home Rule Parliament. According to the Greenland Home Act,
Greenland is a special community within the Kingdom of Denmark.
2. The Greenland Home Rule Act (no. 577 of 29 November 1978) laid a basis for legislative and administrative competency in a large number of judicial areas to pass to the Home Rule Administration. By agreements between the Danish government and the Greenland home rule administration, legislative and administrative competency in a number of the areas encompassed by the Convention in question have subsequently been transferred.
3. It has at no point been possible to achieve land ownership rights in
Greenland, either for physical or legal entities.
4. Property rights to land in Greenland are organised in a unique manner
along traditional lines. The various legal and actual rights, together constituting the right of ownership, are divided between the State, the Greenland
Home Administration and the individual Greenlanders. The point of departure is that the public authorities -- the State -- has right of ownership
to Greenland’s lands as such. However, the day-to-day right of determination over lands in Greenland resides with the Greenland Home Rule Administration which i.a. is empowered to render decisions on the allocation
of land use rights. Greenlanders who are allocated land use rights in
Greenland are entitled to erect buildings on land so allocated. Such buildings may in given cases be mortgaged, and may, with the Home Rule Administration’s permission, be made over to others together with the right to
use the land on which they built.
The state of law described above applies to all citizens of Greenland, both
the original Greenland population and immigrants. As mentioned, the state
of the law is of very old provenance inasmuch as it has never been possible
for individuals to acquire complete ownership rights to land in Greenland.
Hence it is a matter of a state of law determined by tradition which has
very long historical roots in Greenland society and which Greenland’s
Home Rule Administration attaches great importance to preserving.
42
Max Planck UNYB 8 (2004)
people have a majority. This system has been accepted by the Inuits, as
well as by the ILO.70
It could be asserted that the fact that Denmark has gained ILO acceptance for an administrative system for the whole of Greenland that
is not based on a division of lands falling respectively inside and outside
the geographical scope of article 14 para. 1 first sentence, means that it
must be possible to opt for the same type of solution for Finnmark.
However, the situation in Greenland cannot be compared with that in
Finnmark since the Inuit people of Greenland account for more than 80
per cent of the population of this land area. The fact that the Sami people also enjoy voting rights and are eligible for election to the Finnmark
County Council does not mean that the influence that the Sami minority in Finnmark as a whole has over the governance of the Finnmark
Estate will be comparable with the Inuit people’s influence over the
Greenland Home Rule Administration. Besides, the Inuit people have
not laid claim to special arrangements for administration of the lands in
question; they have on the contrary declared to the ILO that they agree
with the existing arrangement.
Furthermore, the ILO has already had the opportunity to consider
the Finnmark Bill in connection with Norway’s report of 2003. The
ILO Committee (CEACR) made, inter alia, the following observation
70
5. Against this background both the Danish Government and the
Greenland Home Rule Administration are of the view that the state of law
described above is expedient and in conformity with article 14 of the Convention. Hence the state of law in Greenland, according to which the
Home Rule Administration has complete right of disposal over land, fully
promotes the considerations underlying article 14, namely that the original
population’s right of disposal over the areas traditionally occupied by them
should be respected. In addition, the Convention imposes on governments
of the participating states a number of obligations i.a. with a view to ensuring respect for tribal and indigenous peoples’ customs and traditions. To
the extent that conflict might arise between a special provision such as article 14 of the Convention and this overarching principle, it is the Danish
government’s perception that respect for these peoples’ customs and traditions constitutes such a fundamental principle as to admit of no restriction
resulting from a special provision in the Convention.”
Report of the Committee set up to examine the representation alleging
non-observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by
the National Confederation of Trade Unions of Greenland (Sulinermik
Inuussutissarsiuteqartut Kattuffiat-SIK) (SIK), Submitted: 2000 Document:
(GB.277/18/3), Document: (GB.280/18/5).
Ulfstein, Indigenous Peoples’ Right to Land
43
supporting the conclusion that the arrangement proposed in the
Finnmark Act does not fulfil the requirements of article 14 para. 1 first
sentence:
“16. As concerns the substance of the proposal for the Finnmark Estate, it appears to go beyond what is permitted under Article 14 of
the Convention, though under proper circumstances it could be in
conformity with Article 15.”71
5. Consent of the Sami Parliament
A particular issue is whether the Sami Parliament can remedy breaches
of articles 14 and 15 by consenting to the administrative arrangement.
The international law group of the Sami Rights Committee assumed in
its report that an arrangement of the type posited by the Bill can be defended on the basis of a “makeshift” point of view provided the arrangement does not impinge upon the Sami people’s opportunities to
preserve and further develop their way of life and culture, and provided
the Sami Parliament consents to it.72
The international law group’s standpoint was based on the assumption that article 17 para. 2 of the Convention does not prevent “national
legislation from establishing that rights to lands and other natural resources which an indigenous people is entitled to have recognised, may
be transferred to others.”73 The international law group considered the
Sami Parliament to be a competent representative of the right holders
regardless of whether the latter are considered being the Sami population group as such or Sami individuals on a collective basis.
It is not obvious that the Sami Parliament has competency to consent to an arrangement which departs from the rules of article 14 and
15. Article 17 para. 2 opens the way for the people in question to be
given legal capacity to “alienate their lands or otherwise transmit their
rights outside their own community.” However, this provision does not
71
72
73
Report of the Committee of Experts on the Application of Conventions
and Recommendations, Indigenous and Tribal Peoples Convention, 1989
(No. 169), Observation, CEACR 2003/74th Sess., para. 16.
NOU (Norway’s Official Reports) 1997: 5, 44.
NOU (Norway’s Official Reports) 1997: 5, 41. Article 17 para. 2 provides:
“The peoples concerned shall be consulted whenever consideration is being
given to their capacity to alienate their lands or otherwise transmit their
rights outside their own community.”
44
Max Planck UNYB 8 (2004)
itself assign competency to transfer property, but confines itself to establishing that indigenous peoples’ rights to land need not necessarily
be such that such rights cannot be transferred.
There are few constraints under international law on the authority
that representative bodies can be granted vis-à-vis their own population. However, any assessment of the Sami Parliament’s competency
must be made on the basis of the Sami Parliament’s status as an agency
of the Norwegian State. This means that limits to the Norwegian State’s
authority vis-à-vis the population pursuant to the European Convention on Human Rights (ECHR)74 and the ICCPR article 27 must also
be applied to the Sami Parliament’s competency. It would be in breach
of ECHR Protocol 1 article 1 to empower the Sami Parliament to transfer private law rights without compensation to, or without consent or
other allocation of competency from, the holders of these rights. It has,
however, been concluded above that the Bill, according to section 5,
does not encroach upon existing rights based on prescription and immemorial usage. The issue which it is pertinent for the Sami Parliament
to consent to will accordingly be confined to the administrative arrangement envisaged by the Bill. Such consent will not violate ECHR
Protocol 1 article 1.
It is, however, conceivable that the ICCPR article 27 sets limits to
the Sami Parliament’s competency. As shown in the treatment of article
27 above, this provision assigns individual rights to members of a minority. This must entail that the rights are protected against decisions
adopted by public law agencies which do not derive their competency
directly from the right holders involved. On this basis there is reason to
agree with the international law group that if the Sami Parliament is to
be able to consent to a legal arrangement which does not fulfil the ILO
Convention’s rules, a necessary condition is that “the arrangement is
not to the detriment of the Sami people’s possibilities for preserving
and further developing their way of life and culture.”
On the other hand, the administrative arrangement itself is hardly
protected by article 27. The crucial point under this provision is that the
land in question should not be managed in such a way that the Sami
people are deprived of the opportunity to exploit lands and resources in
a way that enables them to maintain and further develop their culture.
As long as the Finnmark Estate respects the rights protected by article
27, there is nothing to prevent the Sami Parliament from consenting to
74
European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ETS No. 5).
Ulfstein, Indigenous Peoples’ Right to Land
45
departure from the protection that the ILO Convention articles 14 and
15 affords the Sami people on a collective basis.
The right of the Sami Parliament to consent to the arrangement in
the Finnmark Bill finds support in the above-mentioned observation of
the ILO Committee in connection with Norway’s report of 2003:
“19. The process and the substance are inextricably intertwined in
the requirements of the Convention, and in the present conflict. It
appears to the Committee that if the Sami Parliament, as the acknowledged representative of the Sami people of Norway, were to
agree to the proposal, they could accept this solution as a resolution
of the claims of land rights which have long been the subject of negotiation between the Sami and the Government.”75
V. Conclusions
It is essential to resolve the indigenous peoples’ right to land, based on
their long-standing connection to the land areas they traditionally have
inhabited, and the need to secure their cultural identity and economic
development. While states have not been willing to accord these peoples
external self-determination in the form of a right to secession, relevant
human rights conventions have acknowledged their rights to land, both
of a substantive and procedural character.
Articles 1 and 27 of the ICCPR have been interpreted by the HRC
in the form of General Comments No. 12 (1984) and No. 23 (1994), as
well as in comments to state reports and decisions in cases of individual
complaints. The Committee has applied a judicious approach to article
1 on self-determination by requiring indigenous peoples a role in decision-making concerning land rights, and indicated certain substantive
requirements. Under article 27 a right of “effective participation” in decision-making has been stated, and also a protection against measures
that may amount to a denial of their right to enjoy their culture. Hence
there is a threshold for the interference that can be made in the cultural
life of indigenous peoples through the use of land. While recognizing an
individual right of participation in decision-making, the collective right
of internal self-determination is, however, still wanting.
ILO Convention No. 169 concerning Indigenous and Tribal Peoples
in Independent Countries, although only ratified by a limited number
75
Observation, CEACR 2003/74th Sess., see note 71, para. 19.
46
Max Planck UNYB 8 (2004)
of states, is of special importance since it contains concrete land rights,
especially in its articles 14 and 15. These provisions not only establish a
negative right to protection against interference, but provide positive
rights to ownership and use. In this sense they go far in recognizing the
traditional ownership rights of indigenous peoples. The collective character of the rights under the ILO Convention is also expressed in the
rights of participation as expressed, inter alia, in articles 6 and 7. These
peoples are allowed a consultative status in matters relating to the use of
land and natural resources. The content of these articles has also been
the subject of comments from the ILO bodies to reports by states parties and individual complaints. Although self-determination is not explicitly stated, the ILO Convention represents an important step towards internal self-determination.
The proposed Finnmark Bill represents an innovative approach to
ownership rights and management of land by proposing to establish the
Finnmark Estate and transfer ownership rights to this body. Article 14
of the ILO Convention requires, however, that the Sami people be
given ownership or possession rights to those parts of the county where
the Sami population traditionally reigns supreme. The Bill’s administrative arrangements, in the form of representation of Sami interests on the
board and the procedures for decision-making, fail to meet these requirements. It has also been concluded that article 34 on national adaptation of the Convention cannot remedy this deficiency. While the Sami
Parliament can endorse an administrative arrangement for the Finnmark
Estate that falls short of the requirements of the ILO Convention, such
endorsement cannot be given with effect for rights enjoyed by individuals or groups of individuals with a basis in prescription and immemorial usage or in article 27 of the ICCPR.
If the Finnmark Act is to meet the ILO Convention’s requirements
as regards land rights, the Sami representation and rules on decisionmaking in the Finnmark Estate must be changed so as to assure the
Sami people the control that is inherent to an ownership position. If
this is not pertinent for the entire county, the specific Sami areas must
be identified under article 14 para. 2, with a view to assuring the Sami
people control and right of disposal over these areas. The Norwegian
government has recently indicated that it would be possible to include
mechanisms in the Finnmark Bill in order to demarcate the land areas
that would fall under article 14 para. 1 first sentence.76 Such approaches
76
Letter of 14 June 2004 from the Ministry of Justice to the Justice Committee of the Norwegian Parliament.
Ulfstein, Indigenous Peoples’ Right to Land
47
are being discussed with the Sami Parliament. The consultations and
possible mutual consent are of political importance, but may also be decisive for the status of the arrangement under international law.
Fact-Finding by UN Human Rights Complaints
Bodies – Analysis and Suggested Reforms
Frans Viljoen*
I.
II.
Introduction
Forms of Human Rights Fact-Finding
1. Investigative Fact-Finding
2. Indirect Fact-Finding through the Examination of State Reports
3. Complaints-Based Fact-Finding
III. Fact-Finding under the Treaty-Based Complaints Procedure
1. Pre-Admissibility Phase
2. Admissibility Phase
3. Merits
a. Local Remedies have been exhausted
b. Exemption of Local Remedies
c. Post-Trial or New Facts
d. Sui generis: Applications involving non-refoulement
4. Follow-Up Phase
IV. Fact-Finding by the Working Group on Arbitrary Detention as
Complaints Body
V.
Some Implications of Current Complaints-Based Fact-Finding
1. Fundamental Contradiction between Greater Judicialisation
and Written Fact-Finding
2. Domestic Remedies: Between Usurpation and Deference
3. Delays due to Written Procedures
4. Defensive Strategies adopted by Complaints Bodies
Max Planck UNYB 8 (2004)
50
VI.
Some Suggested Solutions
1. Intra-Institutional Solutions
a. Improve the Current Practice
b. Introduce Oral Hearings
c. Introduce Investigative Fact-Finding by a Special
Rapporteur on Fact-Finding
2. Inter-Institutional Solutions
a. A Single, Dedicated Consolidation Complaints Body
b. A UN Court of Human Rights
VII. Conclusion
I. Introduction
In 1990, Henkin earmarked our age the age of rights.1 What this should
become, in the 21st century, is the age of implementation; a move away
from the elaboration of human rights to their enforcement. Compared
to the 1980s, when Falk noted that the “absence of any real enforcement prospect makes it feasible to give lip service to human rights”,2
significant progress has been made towards ensuring implementation.
At the institutional level, there has been an increase in the number of
United Nations human rights treaty bodies with amongst others mandates to examine state reports and to consider individual complaints. In
1980, there existed only four treaty bodies, of which only two had the
potential competence to consider complaints. They are the Committee
on the Elimination of Racial Discrimination (CERD Committee)3, and
the Human Rights Committee (HRC), established under the International Covenant on Civil and Political Rights (ICCPR).4 By 2004, the
number of treaty bodies has grown to seven. Two of the new treaty
bodies, the Committee against Torture (CAT Committee)5 and the
*
1
2
3
4
5
The assistance of the Alexander von Humboldt Stiftung in making possible
this research is acknowledged.
L. Henkin, The age of rights, 1990.
R. Falk, Human rights and state sovereignty, 1981, 33.
Under article 14 of CERD a state may accept the competence of the CERD
Committee to consider individual complaints submitted against that state.
Under the First Optional Protocol (OP) to the ICCPR, states may accept
the right of individuals to bring petitions to the Human Rights Committee
(HRC).
Under article 22 of CAT, a state party may make a declaration accepting the
competence of the CAT Committee to consider individual communications
against that state.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
51
Committee on the Elimination of Discrimination against Women (CEDAW Committee)6 also provide for complaints mechanisms. The Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (CMW), adopted in 1990, which entered
into force in 2003, establishes the CMW Committee, which also has the
potential competence to consider complaints.
Greater concern for implementation of human rights standards
highlights the importance of establishing facts about human rights violations. Implementation is often equated with realisation, the process of
rendering visible, of impacting on the reality of peoples’ lives. Asking
the question whether human rights treaties have made a difference,
Hathaway makes a statistical analysis of the factual information provided by four sources, including reports by the United States Department of State.7 Her concession that “the accuracy of the analysis necessarily depends on the accuracy of the data” that may be “imperfect”8 is
also raised by her critics, who point out that the analysis relies on recorded and reported violations, rather than “actual violations”.9 Her response is telling: it is “not possible ever to know with certainty what
‘actually’ occurred”, but by employing empirical techniques she seeks
to “produce results that are not unacceptably biased by measurement
error”.10
This move towards the increased reliance on “facts” comes as postmodern thinking has called into question numerous notions treasured
in traditional legal discourse, such as objectivity, coherence, closure, fact
and truth. One of the major critiques of the liberal legal tradition, the
Critical Legal Studies (CLS) movement, is for example that law cannot
be applied consistently and with certainty, due to the indeterminacy inherent in all language, including legal texts.11 While their attack was
6
7
8
9
10
11
Introduced by way of an Optional Protocol to CEDAW, which entered
into force on 22 December 2000.
O.A. Hathaway, “Do human rights treaties make a difference?”, Yale L. J.
111 (2002), 1935 et seq. (1967).
See above, 1940.
R. Goodman/ D. Jinks, “Measuring the effects of human rights treaties”,
EJIL 14 (2003), 171 et seq. (175).
O.A. Hathaway, “Testing conventional wisdom”, EJIL 14 (2003), 185 et
seq. (190).
See e.g M. Tushnet, “Critical Legal Studies and constitutional law: an essay
in deconstruction”, Stanford Law Journal 36 (1984), 623 et seq.
52
Max Planck UNYB 8 (2004)
launched mainly at the interpretation of legal texts, much of these criticisms may also be levelled at the process of fact-finding in law.
These insights should alert those engaged in fact-finding that there is
no pre-existing “reality” (facts-out-there), in need of mere discovery,
through the distillation of its essence, by finders of fact. Instead, factfinders should be aware of their active role in constructing a social reality. Just as in domestic judicial fora, this process is dependent on and
plays itself out through language. Even “real” evidence or on-site inspections are reduced to written (or oral) observations. Reliance on the
word is even more apparent at appeal hearings, where courts of appeal
rely exclusively on written records and materials, in the absence of oral
testimony. The fact-finder is thus engaged in a process of constructing a
platform on which to base legal findings. Put another way, the factfinding body constructs a text by reading and interpreting available
texts, for a very specific purpose – that of enabling the body to respond
to an allegation of the violation of human rights.
Although some may regard fact-finding as a quest to uncover the
truth,12 it should not be equated with truth seeking. One may have
some understanding for the invocation of “truth” in answering whiteor-black questions about matters that seem to allow for very little grey
in their answering, such as whether someone has died or was released.13
On the whole, though, fact-finding is inherently subjective and depends
on a multiplicity of factors relevant to the construction of the factual
text. It is impossible to find the “real facts” or “truth”, both as a matter
of epistemology and pragmatism.
Human rights fact-finding should be regarded as the outcome of a
discursive contest in which the fact-finder plays a co-constitutive role.
12
13
To Herndl, for example, the main purpose of fact-finding is “the establishment of the truth”, and to make proposals “based on the true facts” (K.
Herndl, “Recent developments concerning United Nations fact-finding in
the field of human rights”, in: M. Nowak et al. (eds), Progress in the spirit
of human rights. Festschrift für Felix Ermacora, 1988, 1 et seq. (32.).
Even a hardened post-modernist may have some sympathy for the CAT
Committee that concluded its article 20 inquiry in which it found systematic torture in Egypt, as follows (Doc. A/51/44 of 3 May 1996, paras 180222 (para. 222): “In addition, the Egyptian authorities should undertake
expeditiously a thorough investigation into the conduct of the police forces
in order to establish the truth or otherwise of the many allegations of acts of
torture, bring the persons responsible for those acts before the courts and
issue and transmit to the police specific and clear instructions designed to
prohibit any act of torture in the future.” (emphasis added).
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
53
There may be greater legitimacy in a more participatory process of establishing a version of events that may be referred to as “procedural” or
“institutional truth”. As the focus shifts from standard setting to implementation, more and more governments and NGOs display awareness for the contested nature of human rights “facts”. They increasingly
participate in fora such as the annual sessions of the UN Commission
on Human Rights and sessions of the African Commission on Human
and Peoples’ Rights, in the examination of state reports and make use of
opportunities to comment and criticise fact-finding.14 The establishment of “government NGOs” (GONGOs) and national human rights
institutions without any real autonomy or independence may be viewed
as cynical attempts on the part of some governments to secure an advantage in the process of constructing the social reality of human rights
violations.
In this contribution, three main forms of human rights fact-finding
are first identified, before focusing on one of them, fact-finding forming
part of considering complaints. The practice of the three relevant
treaty-based bodies, in particular the HRC, is reviewed, followed by a
discussion of that of the Working Group on Arbitrary Detention
(Working Group). Although their practices are described separately, the
two types of bodies share many characteristics. For the remainder of
the discussion, these bodies (all dealing with individual complaints) are
grouped together under the umbrella term “complaints bodies”. The
terms “complaint” and “complainant” are also used as general terminology, although they do not correspond to the exact terminology used
by these bodies. After highlighting problematic implications of the current fact-finding practice of these complaints bodies, some solutions are
suggested and considered.
14
For example: In 1997, the United Kingdom delegation at the examination
of the state report consisted of 11 members, the delegation of France numbered some sixteen persons, and that of Gabon eight (Doc. A/52/40/ Vol.
II). At the African Commissions 31st Sess. (in 2002), for example, 36 of the
state parties attended; for the 21st Sess. (in 1997), the number was 19 (11th
and 15th Annual Activity Report of the African Commission).
Max Planck UNYB 8 (2004)
54
II. Forms of Human Rights Fact-Finding
Fact-finding by human rights mechanisms and bodies takes three main
forms: investigation, indirect fact-finding as part of examining state reports, and complaints-based fact-finding.15
1. Investigative Fact-Finding
Although information about human rights violations are essential in
both the UN Charter-based and treaty-based human rights systems,
fact-finding is mostly associated with and discussed in the context of
the numerous ad hoc Charter-based instruments and procedures, functioning under the UN Commission on Human Rights. These factfinding procedures undertake “investigations”, usually entailing a visit
to a country or countries, followed by a report to the Commission.
At first concerning itself with standard setting that culminated in the
“International Bill of Rights”, the United Nations after 1967 increasingly concerned itself with the violation of those standards. In that year,
the UN organ with primary responsibility for human rights, the
ECOSOC, adopted Resolution 1235, allowing for the examination and
public discussion of gross and systematic human rights violations.16 A
first fact-finding body, the ad hoc Woking Group of Experts on Human
Rights in Southern Africa, was also appointed in the same year.17 After
some tentative extensions, for example to Chile, the 1980s saw a multiplication of fact-finding organs mandated to investigate country situations and thematic issues of broader concern. As these mechanisms developed incrementally, and do not form part of a holistic design, there is
no standard fact-finding procedure or format. Attempts to formalise
such a uniform code have respected the reality of the diversity of institutions and aims, as well as the need for flexibility. However, they share
the common understanding that the reception of and value attached to
their reports depend on the “correct assessment of the correct information”.18 For this reason, they share some basic characteristics aimed at
15
16
17
18
See also F. Ermacora, “International enquiry commissions in the field of
human rights”, Revue de Droits de l’Homme/Human Rights Journal 1
(1968), 180 et seq.
E/RES/1235 (XLII) of 6 June 1967.
See Herndl, see note 12, 9.
Herndl, see note 12, 28.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
55
ensuring fair procedures, such as adhering to the principle of audiatur
et altera pars.19 These reports serve as discussion documents in political
fora, in particular the Commission on Human Rights, and need to
withstand possible criticism of being biased or unsubstantiated. World
opinion, the Commission and UN bodies are unlikely to be mobilised
or influenced by facts they find unconvincing.
A recent example of an investigative fact-finding mission that led to
a dispute about the accuracy of the reported facts involves Australia.
Responding to an invitation by the government, the Working Group on
Arbitrary Detention in 2002 visited that country. The aim of the visit
was to investigate and report on the situation of mandatory detention
of unauthorised arrivals in Australia. The Working Group concluded
that the system in place constitutes conditions similar to imprisonment,
raised a number of concerns and made recommendations.20 In relation
to the automatic nature of detention, for example, it recommended that
unauthorised arrivals should not be treated in generalised terms, but
should be dealt with individually, in terms of court orders.
After receiving and studying the Working Group’s draft report, the
government presented detailed comments, requesting that the report be
rid of “inaccuracies”, “incorrect” statements, assumptions and inferences, and unsubstantiated allegations.21 The Working Group took note
of these observations, but went ahead to publish its final report without
the suggested amendments. In a letter to the Australian Permanent Representative at the UN Office in Geneva, it remarks that any inaccuracies
in the report may be ascribed to the variety of sources from which the
Working Group obtained information, and “is not due to any lack of
good intention or fairness” on its part.22 Implying that the government
is overplaying some of these “inaccuracies” or facts that are open to
dispute, such as whether the detainees are, as a rule, handcuffed when
leaving the detention centres, the Working Group dismisses these as
“not having a decisive impact” on the main issue under investigation.23
In its report, and requesting that the government’s comments should be
attached to the report when it is discussed at the Commission on Hu19
20
21
22
23
“Also hear the other side”, also referred to as the audi alteram partem-rule.
Doc. E/CN.4/2003/8/Add.2 of 24 October 2002.
See Doc. E/CN.4/2003/G/22 of 10 January 2003, Annex III.
Doc. E/CN.4/2003/G/22 of 10 January 2003, Annex II, also noting that the
Working Group established the facts in “as objective and impartial” a manner as was possible in the short time available.
Ibid.
56
Max Planck UNYB 8 (2004)
man Rights’ 52nd Session in order to present a “balanced” view, the
Permanent Representative reiterates the government’s concern about
the “reluctance to address factual errors”, viewing that a UN body
should not “knowingly perpetuate such inaccuracies, regardless of these
source”.24 Clearly, the government wanted one, sanitised version to be
presented to the Commission (and the broader community), while the
Working Group preferred to let the different versions speak for themselves, thus refusing to construct a single overarching narrative.
In contrast to the Charter-based mechanisms, fact-finding by UN
human rights treaty bodies only exceptionally takes the form of an “investigation”. One of the UN human rights treaties, CAT, provides for
fact-finding similar to that of the UN Charter-based special mechanisms. Under article 20 of CAT, the CAT Committee may conduct an
inquiry, including an on-site visit, if it receives “reliable information”
indicating that torture was being practiced systematically in the territory of a state party to CAT. The near future may witness the extension
of this more investigative form of fact-finding. Under the Optional
Protocol to CAT, which is not yet in force,25 a system of preventive visits to supplement the inquiry procedure is foreseen. State parties to the
Optional Protocol to CEDAW not only accept the right of individual
petition, but also the possibility of a confidential inquiry when the
Committee “receives reliable information indicating grave or systematic
violations” in that state.26 Such an inquiry may include a visit to the
state concerned after the state’s consent has been obtained. However,
states may exclude the possibility of an inquiry (but not of individual
communication) by making an explicit “opt out” declaration.27
Some of the problems encountered in the course of applying article
20 of CAT are illustrated by the CAT Committee’s inquiry into the
situation of detainees in Egypt. Although the CAT Committee targeted
Egypt for an article 20 inquiry, the Committee never managed to visit
Egypt, and had to rely on NGO reports (mainly provided by Amnesty
International, the Egyptian Organization for Human Rights and the
World Organization against Torture) and the UN Special Rapporteur
on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Concluding its inquiry in May 1996 with the finding that tor24
25
26
27
See Doc. E/CN.4/2003/G/22 of 10 January 2003, Annex I.
Adopted 2002, requiring 20 ratifications to enter into force. By 31 December 2003, only two formal acceptances have been forthcoming.
Article 8 of the Optional Protocol to CEDAW.
In terms of article 10 of the Optional Protocol to CEDAW.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
57
ture is “systematically practised by the security forces in Egypt, in particular by State Security Intelligence”,28 the Committee recommends
that Egypt reinforce its legal and judicial infrastructure “in order to
combat the phenomenon of torture in an effective way”.29
Although the Egyptian government provided detailed information
about efforts to combat torture, it did not address the main issue raised
by the NGO reports, which consistently describe the “State Security
Intelligence premises and military camps of the Central Security Forces
as places where torture allegedly occurs”.30 Instead, the Egyptian government adopted the formalistic stance that “State Security premises are
administrative buildings and that Central Security camps are military
installations and, that, therefore these places are not among those where
people may be detained”.31 Given that the two parties have essentially
spoken at cross purposes, the Committee’s finding that “there is a clear
contradiction between the allegations made by non-governmental
sources and the information provided by the Government with regard
to the role of the Egyptian security forces and the methods they use”,
comes as no surprise.32 In addition to making use of NGO sources, the
Committee relied on written information presented by Egypt, as well as
meetings with Egyptian delegations in Geneva. However, in the light of
the contradictions, it reiterated its “conviction that a visiting mission to
Egypt would have been extremely useful to complete the inquiry”.33
In another example of speaking at cross purposes, the acceptance by
Egypt of a visit also became the object of a factual dispute. Formally,
the Egyptian government continuously expressed its commitment to
engage in dialogue with the Committee. It never expressly declined
permission for a visit, but drew attention to the need to discuss “the
framework through which the visit could take place”.34 However, the
Egyptian government never responded to two explicit proposals to visit
within a specified time,35 thus rendering unconvincing the argument
that “at no stage of its dialogue with the Committee did it protest
28
29
30
31
32
33
34
35
Doc. A/51/44 of 3 May 1996, para. 220.
Ibid., para. 22.
Ibid., para. 208.
Ibid., para. 209.
Ibid., para. 209.
Ibid., para. 209.
Ibid., para. 216.
See ibid., paras 185, 186.
58
Max Planck UNYB 8 (2004)
against the request for a visiting mission to Egypt”.36 The extended nature of these deliberations is one of the main reasons why the investigation took three years to be finalised (from November 1991 to 1994).
In the end, the Committee accepted that the allegations appear to be
well founded. Its conclusion is based on the quantity of (the “existence
of a great number of allegations”), variety in (“which came from different sources”), consistency between (“allegations largely coincide and
describe in the same way the methods of torture, the places where torture is practised ...”) and consistent reliability of sources (“sources that
have proved to be reliable in connection with other activities of the
Committee”).37 There can be little doubt that the government’s objection to the publication of the inquiry report is just as much about a denial of the factual basis of the finding as it is about the reasons stated,
namely the implicit support of terrorism.38
Thereafter, in December 2002, the CAT Committee concluded, after
examining Egypt’s fourth state report, that torture and ill treatment of
detainees is still a problem.39 Recalling the recommendations arising
from the inquiry under article 20 of the Convention, the Committee
requested information about implementation, which had still not been
provided.40 Responding to the government’s expressed willingness to
co-operate with the UN bodies and procedures, the Committee recommended that the government agree to a visit by the UN Special
Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.41 In his report on 2002, the Special Rapporteur
notes that numerous allegations and urgent appeals have been directed
36
37
38
39
40
41
Ibid., para. 216.
Ibid., para. 219.
See the following statement, contained in a letter by the Egyptian government to the Committee, pre-empting post-11 September 2001 United
States rhetoric: “If a summary account of the results of the confidential
proceedings concerning Egypt were published in the Committee’s annual
report, this might be interpreted as signifying support for terrorist groups
and would encourage the latter to proceed with their terrorist schemes and
to defend their criminal members who engage in acts of terrorism by resorting to false accusations of torture. In other words, it might ultimately
be interpreted as signifying that the Committee is indirectly encouraging
terrorist groups not only in Egypt but worldwide. This is definitely not
one of the objectives specified in the Committee’s mandate.”
Doc. CAT/C/CR/29/4 of 23 December 2002.
Ibid., para. 7.
Ibid., para. 8.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
59
against Egypt, but that a number of them received no response. The report expresses regret at the fact that the Special Rapporteur had yet not
been invited, and reiterates the concerns raised during the latest HRC
and CAT Committee examinations of state reports.42
2. Indirect Fact-Finding through the Examination of State
Reports
While the investigative fact-finding of the UN human rights treaty bodies is limited, other forms of fact-finding are central to the exercise of
much of their mandates. This may not be apparent at first, given that
the main obligation of state parties is to “take the necessary steps ... to
adopt such legislative or other measures as may be necessary to give effect”43 to the treaty, or to “take effective legislative, administrative, judicial or other measures” to do so.44 Indeed, if states fully domesticate
treaties, no disputes (of a legal or factual nature) should arise. Superficially, compliance with this obligation may also seem easily ascertainable, for example with reference to the theory of monism, or to a specific statute transforming the treaty into national law in respect of dualist countries. Yet, as soon as one moves beyond formulae and formalism, when one debates the “effectiveness” of measures and their implementation in practice, questions about domestication dissolve into
questions about compliance-in-fact. It is mainly through the process of
examining state reports that the treaty bodies assess compliance with
the obligation of state parties to give effect to the provisions of treaties.
All the seven human rights treaty bodies are mandated to examine
initial and periodic state reports. The process of examination has been
termed “indirect fact-finding”.45 A sensitivity for the factual basis of
such an examination has inspired the practice to allow NGOs to submit
parallel or shadow reports as part of the process of examination. Presented with only one version, the treaty body would be reduced to a
mere rubberstamp, and the exercise watered down to a formalistic one
in which the only question is if the state reported, and whether its report complied with the reporting guidelines. Without the available information, the treaty body would not be in a position to adopt con42
43
44
45
Doc. E/CN.4/2003/68/Add.1 of 27 February 2003, paras 475 and 476.
Article 2 (2) of ICCPR.
Article 2 (1) of CAT.
Ermacora, see note 15, 186.
60
Max Planck UNYB 8 (2004)
cluding observations containing conclusions identifying main areas of
“concern”, or “problem areas”, and to formulate useful and pointed
recommendations. Both the dialogue and the concluding observations
are thus premised on the existence of reliable facts. A question that
arises in this context is how the body resolves a factual dispute, for example when a government blankly denies allegations of noncompliance.
Such a case presented itself when the HRC in 2001 examined the
second state report from Syria.46 In general, the Committee expressed
regret at the lack of information in the state report “on the human
rights situation in actual fact”.47 This lack of a factual basis made it difficult to assess the realisation of human rights in the country. One of
the subjects of concern raised in the concluding observations relates to
conditions of detention. Noting the information provided by the delegation, the Committee “remains concerned about the many allegations
of inhumane prison conditions and inadequate medical care in a number of prisons, particularly military prisons, including Tadmur prison”,
and recommended that the state party should “ensure that appropriate
and timely medical care is available to all detainees”.48 In its subsequent
“Comments” on the concluding observations, the Syrian government
expressed amazement at “the false information” contained in that paragraph.49 Numerous other parts of the observations are denied as “false
and tendentious information disseminated by bodies hostile to Syria
which are seeking to cause harm and confusion”50 or as containing “no
truth”.51
The question may be posed how such an impasse is to be bridged.
Especially in respect of conditions of detention and allegations of torture the possibility of an investigative fact-finding mission invites itself.
Another option is that the treaty bodies may work closer with UN ad
hoc fact-finding procedures that are already appointed, using data they
have accumulated, and referring matters for their further action. Although some advances have been made in integrating the work of the
human rights treaty bodies through meetings of chairpersons (and even
enlarged groups involving other members of treaty bodies), the modali46
47
48
49
50
51
Doc. CCPR/CO/71/SYR (Concluding Observations) of 24 April 2001.
Ibid., para. 1.
Ibid., para. 13.
Doc. CCPR/CO/71/SYR/Add.1 of 28 May 2002, para. 15.
Para. 10 of the Comments, and para. 8 of the Concluding Observations.
Para. 14 of the Comments, and para. 12 of the Concluding Observations.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
61
ties of co-operation between treaty bodies and the special procedures
still need much attention and discussion.
The three categories of fact-finding identified here are interrelated.
When the CAT Committee examined Cameroon’s second state report,
for example, it drew attention to the “gap between the adoption of rules
in accordance with human rights standards, including those designed to
prevent the practice of torture, and the findings made in situ”52 by an
independent entity such as the Special Rapporteur on Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment, who has reported on the existence of numerous cases of torture. This statement illustrates the potential benefit to treaty bodies of investigative reports
on human rights, and suggests that investigative fact-finding may supplement indirect fact-finding through the examination of state reports.
3. Complaints-Based Fact-Finding
The main concern of this contribution is with the third form of factfinding by human rights treaty bodies, that of establishing facts as part
of reaching a finding on the basis of individual communications. Four
of the seven human rights treaty bodies allow for individual complaints
to be brought, and the competence of one more awaits a sufficient
number of formal acceptances. Only the supervisory mechanisms under
the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the Convention on the Rights of the Child (CRC) still
lack individual complaints mechanisms. The four already in place are
the CERD Committee, the Human Rights Committee, the CAT
Committee and the CEDAW Committee. However, by 31 December
2003, the CEDAW Committee has not dealt with any individual communications, thus minimising its role in the discussion. The CMW
Committee may in the future also consider inter-state and individual
communications. Acceptance of its complaints mechanism is optional
though, and of the ten declarations accepting the CMW Committee’s
competence to consider individual communications required before this
mechanism enters into force, none has as yet been deposited.53
The investigative function of the Charter-based special mechanisms
has been highlighted above. Despite the lack of a clear mandate, some of
52
53
Doc. A/56/44 of 6 December 2000, para. 65(c).
As required under article 77 of CMW.
62
Max Planck UNYB 8 (2004)
the thematic mechanisms, such as the Working Group on Enforced or
Involuntary Disappearances, started to deal with individual communications.54 Building on these cautious beginnings, the Working Group
on Arbitrary Detention has developed a sophisticated and formalised
complaints procedure reminiscent of those of the treaty bodies. Formally forming part of the UN Charter-based thematic special mechanisms, the Working Group on Arbitrary Detention is not a treaty-based
body. However, the Working Group “adopts a methodology more akin
to that of treaty bodies with competence over individual communications”55 and has interpreted its mandate to become a “full-fledged supervisory mechanism outside the specific human rights treaties”.56
Adopting “quasi-judicial” working methods similarly to those of relevant treaty bodies, the Working Group has finalised a huge number of
complaints.57 It is therefore included as a “complaints body” for the
purpose of the discussion here.
The reason for focusing on the role of fact-finding with reference to
complaints bodies, to which this article now turns, is the relative neglect
of this area in the literature, combined with the “considerable growth in
terms of the number of communications received and the complexity of
the issues raised” under the UN complaints mechanisms.58
54
55
56
57
58
Established as the first thematic mechanism under the Commission on
Human Rights in 1980, the Working Group aims at clarifying instances of
disappearances. This is done on the basis of individual cases. Although statistics of these cases are kept, no individual findings are made (see e.g. Doc.
E/CN.4/2004/58 of 21 January 2001, Annexes).
J. Fitzpatrick, “Human rights fact-finding”, in: A.F Bayefsky, The UN
Human Rights Treaty System in the 21st Century, 2000, 65 et seq. (77).
B. Rudolf, “The Thematic Rapporteurs and Working Groups of the United
Nations Commission on Human Rights”, Max Planck UNYB 4 (2000), 289
et seq. (319).
Rudolf, see above also emphasises the “unequivocal evaluation” of complaints and the self-image of the Working Group as being a “quasi-judicial
body”, 319 and 315.
See e.g. the informal note serving before the 13th Mtg. of Chairpersons of
the (Human Rights) Treaty Bodies, held in June 2001, Geneva: Strengthening support to and enhancing the effectiveness of the treaty bodies, Doc.
HRI/MC/2001/Misc. 2 of 16 May 2001, para. 16: “This reflects developments in the regional bodies – the European Court of Human Rights, the
Inter-American Court of Human Rights, the Inter-American Commission
on Human Rights, and the African Commission on Human and Peoples’
Rights.”
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
63
III. Fact-Finding under the Treaty-Based Complaints
Procedure
Treaty bodies have been established partly as diplomatic bodies, with
the limited competence to make recommendations to a political parent
body, and partly as technical committees of experts, able to act independently on their findings. Especially in relation to their competence
to consider individual complaints, these bodies have however soon
evolved into quasi-judicial bodies, displaying a formalised and relatively
rigid procedure.
The process of consideration of complaints takes an exclusively
written format,59 starting with the submission of a complaint, which is
registered if it meets minimum requirements. These requirements are
set out in the treaties, but are also mirrored on the “Complaint Form”
to be completed by authors of communications. The principle of audiatur et altera pars is applied. Once a complaint is registered, information
is obtained from the state party. After the case is declared admissible,
the state party has another opportunity to submit information and arguments on the merits, to which the author may respond. There is no
requirement that the allegation or other statements be in the form of
sworn statements. Only evidence submitted by the parties is allowed.
However, under article 22 (4) of CAT, the CAT Committee considers
communications in the light of “all information made available to it by
or on behalf of the individual and by the State Party concerned”. In this
respect, CAT differs from the emphasis on written proceedings in respect of CERD and the Human Rights Committee, by omitting the
word “written” before “information”. Article 7 (1) of OP of CEDAW
mirrors the provisions of CAT in this regard.
Going one step further, the Rules of Procedure of the CAT Committee allow the Committee to “invite” complainants or their representatives, or both, to “provide further clarifications or to answer questions on the merits of the complaints”.60 In its practice, the CAT Committee has not made use of this implicitly broadened scope for factfinding, though.
59
60
See article 5 (1) of OP ICCPR, as well as C. Tomuschat, Human Rights Between Idealism and Realism, 2003, 179-180.
Rule of Procedure of the CAT Committee, Rule 111(4), Doc.
CAT/C/3/Rev. 4 of 9 August 2002 An invitation to one party should be extended to the other party as well. Non-appearance following an invitation
does not prejudice any party.
Max Planck UNYB 8 (2004)
64
In the findings of these bodies, one may identify three phases: finding the facts, stating the law, and applying the law to the facts in order
to reach a conclusion.61 In many cases, but by no means all, the applicable law is quite clear. The process of application of law to facts is mostly
based on logic, deductive reasoning and analogy, for instance by relying
on precedents. However, even legal findings are inevitably factually
based, making a lasting divorce or true separation between facts and law
impossible. At a first glance, this is not always clear from a reading of
the findings. In Länsman and others v. Finland,62 for example, the question is posed whether the quarrying on a flank of a mountain would
violate the right under article 27 of the ICCPR. Finding itself as mediator between tradition and progress, the HRC had to answer the question whether the forces of progress violate the right to culture of a minority. The Committee resolves this issue by positing two factual situations against one another – the activities may have “a certain limited
impact”,63 or their impact may be “substantial”.64 It is clear what the legal consequences of each of these possibilities are: no violation in the
case of the former, a violation in the case of the latter, thus collapsing a
“legal” question into a factual determination.
The central role of factual findings and ways in which complaints
bodies have dealt with them are discussed in the four phases through
which a complaint may proceed: the pre-admissibility phase, the admissibility phase, the finding on the merits, and the follow-up phase.
1. Pre-Admissibility Phase
Complaints are received by the secretariats of the treaty bodies, by the
Petitions Unit at the Office of the High Commissioner for Human
Rights (for HRC, CERD and CAT Committees), or the UN Division
for the Advancement of Women (for CEDAW). Based on the information that approximately 30 “pieces of correspondence pertaining to the
61
62
63
64
See e.g. Communication No. 195/1985, Delgado Páez v. Colombia, Doc.
A/45/50, Vol. II of 21 July 1990, where the facts and legal exposition is followed by the “question of the application of this finding to the facts of the
case under consideration”, (at para. 5.6).
Communication No. 511/1992, Doc. A/50/40, Vol. II of 26 October 1994.
Ibid., para. 9.4.
Ibid., para. 9.5.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
65
petitions procedures arrive each day” at the Office of the HCHR,65 one
can draw a rough conclusion that more than 10, 000 complaints-related
“pieces of correspondence” are received yearly. Allowing that some of
this correspondence may relate to communications already submitted,
in the form of follow-up, queries or further information, the number
still falls very far short of the number of communications that are dealt
with by the treaty bodies. In the period between 1977 and 2000, a total
of 936 communications have for example been registered (in which 346
final views were given) before the most active of these bodies, the
HRC.66
The difference in these numbers draws attention to the important
sifting role performed at the Secretarial level. At this stage, the issue to
be determined is whether the “piece of communication” constitutes a
communication-complaint. Very little is known about this gate-keeping
process, which is characterised as administrative. However, it seems
evident that the factual basis provided in these “pieces of communication” is crucial in a decision to process them as complaints. Only once
the “piece of communication” is registered as a communication do the
bodies exert some influence and potential control over their processing.67
2. Admissibility Phase
A significant number of complaints never proceed beyond the admissibility phase. Can the complaint be declared inadmissible for lack of
substance, that is, for want of a substantiated factual basis?
Each of the relevant treaties set out admissibility requirements that
need to be met. The criterion that complaints have to be “compatible
with” the treaty provisions forms the basis for the rather obvious requirement that complaints must reveal some indication of a material
breach of the treaty. In some instances this has been set as a prima facie
standard,68 in others merely as providing some substantiation.69 Al-
65
66
67
68
Doc. HRI/MC/2001/Misc. 2 of 16 May 2001, para. 16.
A.F. Bayefsky, The UN human rights treaty system. Universality at the
crossroads, 2001, 506.
See e.g. Rules of Procedure of CAT, Rule 98.
See e.g. KL v. Denmark, Communication No. 81/1980, Doc. A/42/40 of 27
March 1981, 139.
66
Max Planck UNYB 8 (2004)
though none of the admissibility requirements refer explicitly to nonsubstantiation as a ground for inadmissibility,70 the requirement that
complaints should not constitute an abuse of the submission procedure
has to some extent fulfilled that role. The OP to the ICCPR, for example, does not contain a similar provision, but allows the HRC to declare
inadmissible communications it “considers to be an abuse of the right
of submission”.71 As Ghandi shows, it is often difficult to separate findings on admissibility based on abuse of rights from those based on nonsubstantiation.72 The OP to CEDAW deals more openly with the matter by providing that a complaint may be declared inadmissible if it is
“manifestly ill-founded or not sufficiently substantiated”.73
As all the relevant treaties require that local remedies be exhausted
before applications are admitted, this aspect is most frequently invoked.74 Although framed in legal terms, the question whether a matter
is admissible is also often factual in nature. Factual differences may arise
about the legal position pertaining to remedies, the “prospect of success” of making use of a particular remedy, whether a remedy is “effective”, or if it has been or is likely to be “unreasonably prolonged or delayed”. The following admissibility finding provides an illustration: the
complaint in Simalae Toala and Others v. New Zealand75 arose from
the adoption by New Zealand of the Citizenship (Western Samoa) Act
of 1982, which allegedly constituted a mass denationalisation of people
of Samoan descent in New Zealand. Initially, the HRC found the communication admissible. At a later meeting, a majority of the HRC reversed the decision, declaring the communication inadmissible on the
grounds of non-exhaustion of local remedies. However, it would seem
that the factual basis of the two decisions does not differ. At the initial
69
70
71
72
73
74
75
See e.g. Doc. E/CN.4/2004/3 of 15 December 2003, para. 33. Visits have
been undertaken to e.g. Indonesia, Peru, Romania and Mexico.
See, in contrast, the European system, where the admissibility requirement
that applications should not be “manifestly ill-founded” is applied to reject
“wholly or clearly unsubstantiated” allegations, lacking “evidence of the alleged facts to support a claim” (A. Drzemczewski, “Fact-finding as part of
effective Implementation: the Strasbourg experience”, in: Bayefsky, see
note 66, 2001, 115 (122).
Article 3 of OP ICCPR.
P.R. Ghandi, The Human Rights Committee and the right of individual
communication – law and practice, 204.
Article 4 (2)(iii) of the 1999 OP to CEDAW.
Article 5 (2)(b) of OP ICCPR; article 22 (5)(b) of CAT.
Doc. CCPR/C/79/D/675/1995 of 22 November 2000.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
67
hearing, the state’s submission that the authors should “have indicated
their intention to apply to the Courts to seek judicial review of the removal orders” was noted.76 The HRC rejected this argument, as it “was
not apparent to the Committee that any remedies that might still be
available to the authors would be effective to prevent their deportation”.77 Reversing its decision by way of “review”, the HRC remarks
that the state “provided information about the procedures open to the
authors to seek judicial review of the decision of the Removal Review
Authority. It appears that although the authors had indicated that they
intended to make use of this procedure, they did not do so”.78 Not seeing “any reason to change” the initial finding, a minority of four members expresses the view that it is “extremely doubtful” that the local
remedies would have been effective. In a barely hidden accusation that
the majority has manipulated the “facts”, the minority casts some doubt
on the their reasoning: “We find it difficult to take this apparently easy
route in order to by-pass a decision on merits which might possibly
lead to a rather inconvenient result”.79
Often, when complaints are found inadmissible on this ground, the
finding is not on the basis of non-exhaustion of local remedies, but on
the basis of lack of information that local remedies have been exhausted.
Sometimes all this is easily cleared with a submission of court records,
but often matters are more complicated.
The availability of facts also determines the burden of proof. To be
exempted from using local remedies, the complainant has to make specific allegations about the ineffectiveness or non-existence of local
remedies, or about unreasonable delay. Once this has been done, the
burden of proof shifts to the state. Should the state not respond to these
allegations, or if it only makes vague or general observations about the
formal availability of such remedies, “without relating them to the circumstances of the case”,80 the bodies will find the matter admissible.
76
77
78
79
80
Ibid., para. 4.1.
Ibid., para. 6.4.
Ibid., para. 10.
Committee Members Amor, P. N. Bhagwati, de Pombo, Solari-Yrigoyen.
Mukong v. Cameroon, Communication No. 458/1991, Doc. A/49/40, Vol.
II of 21 July 1994, para. 5.1.
Max Planck UNYB 8 (2004)
68
3. Merits
Findings on the merits vary according to a number of factors. Four
categories of cases, each giving rise to different issues related to factfinding, are discussed: findings after local remedies have been exhausted; findings following an exemption to make use of local remedies;
findings about facts arising after the local remedies have been (or could
have been) used; and findings in non-refoulement cases.
a. Local Remedies have been exhausted
Under anticipated model circumstances, where the remedies have been
exhausted, the body should be in the possession of a full record of the
domestic court decision(s). Without a dispute about the factual finding
of the domestic courts, the applicant’s submissions serve to reinforce
and emphasize contentions most likely already raised, and argue for a
favourable application of the law to the given facts. In my view, such
occasions are very rare. When they do come before complaints bodies,
such complaints mostly entail an allegation that the legal position itself,
and not only its application in the particular instance, violates the treaty.
An example is the HRC finding in Kavanagh v. Ireland,81 where the
complainant was tried by the Special Criminal Court, thus facing an extraordinary court procedure, without the right of a trial by jury, as is allowed in ordinary criminal trials. He was tried pursuant to a determination by the Director of Public Prosecutions (DPP), acting in terms of
legislation allowing the DPP an unfettered discretion to decide who
should be tried in these extraordinary courts. There was no significant
dispute about the facts. Finding a violation of the right to “equal protection of the law” in the particular circumstances, the HRC generalises
its findings by requiring the state to “ensure that persons are not tried
before the Special Criminal Court unless reasonable and objective criteria for the decision are provided”.82 Another example is provided by
Aumeeruddy-Cziffra v. Mauritius,83 where the HRC explicitly requires
the state to “adjust” the provisions of its immigration laws in line with
the Committee’s findings. If the complainant did not contest the constitutionality of the legislation as such at the domestic level, the full implications of a finding calling for legislative amendment may not have been
81
82
83
Communication No. 819/1998, Doc. A/56/40, Vol. II of 4 April 2002.
Ibid., para. 12.
Communication No. 35/1978, Doc. A/36/40 of 9 April 1981.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
69
considered there. Lacking an appropriate factual basis, such a finding
by a complaints body may consequently be perceived as facile or superficial.
More often the complaint also contests a factual finding or the factual basis of the local court’s findings. In terms of the adversarial process adopted by the bodies, the government is provided with an opportunity to respond. Governmental responses may take three forms: no
reply whatsoever; a general denial of the assertions in the complaint; or
specific denials with reference to the allegations. For the complaints
system to function optimally, states should evidently make use of the
last of the three possibilities.
Faced with the government’s silence, the bodies all have recourse to
the notion of an ex parte or default judgement. The reason for reverting
to this fiction is understandable – the bodies cannot be rendered powerless by the lack of government co-operation. The fiction applies equally
when the state provides a general, unhelpful denial. The reasoning behind its application here is that by giving weight to such a general denial, the body would legitimate sham co-operation, while in fact the
government undermined the process by not addressing the specific facts
in issue. In the first two scenarios, the allegations of one party are taken
as given, thus allowing no other voice or possibility to impact on the
process of “constructing” the “factual text”. From this point of view,
the application of the default rule is less than desirable. Only when the
government makes a clear and bona fide attempt to deal with the specific allegations are the relative versions of the two parties really considered.
Generally, the bodies adopt a deferential approach to the text
(judgements) produced by the local courts. In a recurring phrase, it is
reiterated that “it is generally for the courts of States parties”, and “not
for the Committee, to evaluate facts and evidence in a particular case,
unless it is apparent that the courts’ decisions are manifestly arbitrary”.84 In some instances, a “denial of justice” is added as possible
ground for interference.85 In its first General Comment, the CAT
Committee implicitly identifies the tension between the “considerable
weight” that is to be given to “findings of fact that are made by organs
84
85
See e.g. H C v. Jamaica, Communication No. 383/1989, Doc.
CCPR/C/45/D/838/ 1989 of 13 August 1992, para. 6.2.
See e.g. Ashby v. Trinidada and Tobago, Communication No. 580/1994,
Doc. A/57/40, Vol. II of 21 March 2002, para. 10.3.
Max Planck UNYB 8 (2004)
70
of the State party” and the competence of “free assessment of the facts
based upon the full set of circumstances in every case concerned”.86
A communication against Finland submitted under the ICCPR illustrates some consequences of reliance on local findings. In that matter,
reindeer breeders of Sami ethnic origin claim that by allowing logging
to take place in parts of its best winter herding land, the state fails to
protect their rights to enjoy their Sami culture under article 27.87 Both
parties accept that the claim could in principle give rise to a violation of
article 27, but disagree about the impact of the logging on the area. As
in Länsman, the Committee applies its test whether the interference is
“so substantial” as to constitute a violation of the right to enjoy their
culture.88 As part of the domestic proceedings, an on-site investigation
was undertaken to the area, assessing the potential impact. The two
relevant Finnish Courts (District Court and Court of Appeal) differed
in their interpretation of the report of this investigation – the first
Court finding in favour of the authors, the second, against them. There
was also a dispute about whether the area was “the best” winter herding
land, as the authors claimed. Basing itself “on the submissions before it
from both the authors and the State party”, the Committee “considers
that it does not have sufficient information before it in order to be able
to draw independent conclusions on the factual importance of the area
to husbandry and the long-term impacts on the sustainability of husbandry”.89 Consequently, the Committee declared itself “unable to
find” whether the logging caused a violation, thus highlighting the importance and consequences of failed fact-finding.
b. Exemption of Local Remedies
The need for fact-finding by complaints bodies becomes much more
pronounced when the local remedies requirement has not been fulfilled.
An applicant or author is required to exhaust local remedies only if
they are “available” and “effective”. If they are not, he or she is exempted from exploring relief locally. The same principle applies when
the domestic remedies are excessively prolonged. When the author is
86
87
88
89
CAT Committee General Comment No.1, para. 9, contained in Doc.
A/53/44, Annex IX of 21 November 1997.
Aärelä and another v. Finland, Communication No. 779/1997, Doc.
A/57/40, Vol. II of 24 October 2001.
Ibid., para. 7.5.
Ibid., para. 7.6.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
71
exempted from making use of local remedies, the absence of a set of
facts decided by at least one judicial level domestically changes the role
of the complaints body. Clearly, it is very difficult to talk of merely being a treaty monitoring or supervisory body under such circumstances,
given that there is no factual basis on which to rely. The complaints
body here has a clear duty to find the facts itself, rather than merely interpreting facts already established.
It may be that the state co-operates, and supplements the dearth of
information caused by the domestic judicial vacuum, but this is unlikely
and mostly does not happen. Under such circumstances, the complaints
body has to formulate its views on the strength of the author’s version
alone. Applying a default rule is understandable, because states would
otherwise be shielded from adverse findings by their silence. However,
the situation is not ideal, especially when the matter has not been raised
in any forum other than before the Committee.
Sometimes governments participate in proceedings, even when the
requirement of local remedies has been discarded, but do not assist in
resolving factual matters. In Coronel v. Colombia, for example, the
HRC found that local remedies were unduly prolonged, and exempted
the applicants from making use thereof.90 Although the government
participated in the proceedings, it insisted – even at the merits phase –
that local remedies were available and effective, but did not present any
information or arguments on the merits. The HRC then applied the
principle that “due consideration should be given to the authors’ complaints to the extent that they are substantiated”,91 given the absence of
information presented by the state.
c. Post-Trial or New Facts
Some complaints contain allegations that have arisen after the local
remedies have been or should have been exhausted. One such example
is Osborne v. Jamaica.92 This complaint raises the question whether the
imposition of corporal punishment on Mr. Osborne constitutes a violation of the ICCPR. Some time after the corporal punishment had been
administered, Mr. Osborne wrote to the HRC, forwarding a “new
claim” about a severe beating by prison warders.93 The government
90
91
92
93
Doc. CCPR/C/76/D/778/1997 of 29 November 2002.
Ibid., para. 9.2.
Communication No. 759/1997, Doc. A/55/40 of 15 March 2000.
Ibid., para. 3.1.
Max Planck UNYB 8 (2004)
72
presented the HRC with a result of an investigation, including a medical report inconsistent with the author’s allegations. As a result, the
Committee found that, “based on the material before it”, no violation
had been revealed.94 The Committee thus investigated the factual circumstances arising from a complaint without raising the need to establish the facts through local judicial mechanisms. It should be pointed
out, though, that the government did not object to the admissibility of
this claim.95 Under these conditions, the complaints body also becomes
the primary fact-finder, similar to cases where complainants are exempted from exhausting local remedies.
d. Sui generis: Applications involving non-refoulement
In a number of cases before especially the CAT Committee, complainants have alleged that their expulsion from a state party to CAT would
expose them to torture or ill treatment in the receiving country. This
kind of cases is brought under article 3 of CAT, but also under article 7
of ICCPR. In these applications the local remedies in the delivering
state may be exhausted, but often the material issue concerns the situation in another country, the receiving country. These issues relate to the
general human rights situation in that country, and to the specific
threats that the complainant would face on his or her return to that
country.
In such cases, disputes are often about oral evidence, but may also
relate to written material. An example is KM v. Switzerland,96 alleging a
violation of article 3 of CAT. Briefly stated, the facts are that KM, a
Kurdish Turkish national, fled Turkey in 1995, fearing that he would be
unjustly prosecuted for supplying shoes to Kurdish rebels. Arriving in
Switzerland, his application for asylum was rejected, and he risked being expelled to Turkey. KM consequently approached the CAT Committee for a finding that his expulsion would expose him to the substantial risk of imprisonment or torture on his return to Turkey. Pointing to
a number of “discrepancies, contradictions and inconsistencies” in his
versions, the Swiss government disputed the exact nature of his initial
arrest.97 Avoiding a resolution of this dispute, the Committee considered that information irrelevant “for the assessment of the risk under
94
95
96
97
Ibid., para. 9.2.
Ibid., para. 8.4.
Doc. CAT/C/23/D/107/1998 of 4 July 2000.
Ibid., para. 4.2.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
73
which the author might be if he is returned to Turkey”.98 The factual
dispute then turned on the risk of prosecution (and thus, of mistreatment and imprisonment) KM faces as a returnee. Central to this inquiry
are two questions – one generalised and broad, and the other individualised and narrow.
Although it is not determinative of the issue, proof about the general
human rights climate in a particular country is an important aspect in
clearing the article 3 hurdle. Burgers and Danelius comment that the
“lack of evidence may frequently be a serious obstacle”, and point to
the difficulty of calling witnesses and collecting other evidence due to
unwillingness of “receiving states” to co-operate.99 Plainly, it is easier
for the individual to prove “substantial personal risk” if such a claim is
embedded in a general situation of consistent patterns of gross, flagrant
or massive human rights violations. Quite obviously, it is very difficult
for the individual to provide “evidence” of this nature. In its finding,
the CAT Committee refers, without specifying them, to “numerous reports concerning the use of torture in Turkey”.100 One may thus assume something akin to judicial notice, as this information is seemingly
known to the Committee, without need of substantiation.
As to the individualised inquiry, it centred on the authenticity of a
document produced by the author, and on information supplied by the
Swiss Embassy in Ankara. The document in question was “issued by
the prosecutor of Gaziantep, dated 28 March 1995, indicating that he
[KM] was wanted by the police”.101 KM requested this document from
his father, who sent it to him after “he had had to go to the police station several times in order to obtain the document”.102 The Swiss government considers this to be a fake, on the grounds of its appearance
(the quality of paper), the absence of official indications “that generally
appear in this type of document” and the nature of the document (it
was not normally intended for the “wanted person”).103 The Committee finds that the “explanations provided by the author to demonstrate
that the said document is authentic are not convincing”.104 This seems
98
99
100
101
102
103
104
Ibid., para. 6.5.
J. H. Burgers/ H. Danelius, The United Nations Convention against Torture, 1988, 138.
Doc. CAT/C/23/D/107/1998 of 4 July 2000, para. 6.7.
Ibid., para. 2.5.
Ibid., para. 5.1.
Ibid., para. 4.7.
Ibid., para. 6.6.
Max Planck UNYB 8 (2004)
74
to place some form of burden on the complainant – it is not so much
for the complainant to show that the document is authentic, as it is for
the government to show that it is not. If the Committee applied a “balance of probabilities” test here, it did not make that clear. Nor is it clear
who had the burden of persuasion. In my view, the context suggests
that this burden was shifted or placed onto the complainant. Even so,
whoever has such a burden, the finding does not sufficiently take into
account the criminal justice system in Gaziantep, aspects about which
no information appears on the record. Why should it be unlikely that
the prosecutorial service is unwilling to provide the relevant documentation, and provide instead a document not tailor-made for that purpose? Should the quality of paper really be an indication of anything, or
could it just as well be explained by official neglect as by forgery? The
Committee thus takes an a-contextual decision, favouring the state in
the absence of information about the context, and the ability to establish the facts, thus opening itself to the criticism that there is an unspoken assumption of dishonesty on the part of the applicant.
Of some importance, too, in the Committee’s view, is the question
whether the Turkish police has a file on KM, and whether they are
seeking him actively. Not being in a position to establish these facts itself, the Committee has to rely on information provided by either the
complainant or the government. It is unlikely that the complainant will
be able to produce conclusive proof of such information. In casu, as in
other cases, the state – and the Committee – relies on the government’s
embassy – here, the Swiss Embassy in Ankara. This is done in an unquestioning fashion, noting the information, and then deducing a conclusion therefrom (“accordingly”).105 In so doing, the Committee
shows very little awareness of the inherent bias and hearsay nature of
this evidence. Even if there is no specific reason to mistrust a government in its revision of information of this nature, it must be noted that
the Embassy is, or may be seen to be a biased party in the proceedings;
and the provision of such information leaves no opportunity to the
complainant to contest the facts, thus relinquishing the principle of
audiatur et altera pars. Even if this is guaranteed in theory, with an opportunity to contest information, access to an alternative source, or the
same sources to verify them may be very unlikely or problematic for
many complainants. In addition thereto, the Swiss Embassy merely
serves as a conduit for the Turkish government in such instances. The
information provided by the Swiss government is therefore pure hear105
Ibid., para. 6.6.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
75
say – it cannot vouch for the authenticity, correctness, or truth of the
information, merely because the Turkish government has provided it. It
is not clear from the record how this information was obtained, at
which level of the “police”, whether it was verified, cross checked or
merely accepted at face value. These aspects, if carefully undertaken,
should either be reflected in the record, or the lack thereof must be
pointed out. Reliance on the written record opens the possibility of a
very contentious (or incorrect) finding.
In C v. Australia, a majority of the HRC found that article 7 of
ICCPR had been violated under similar circumstances. In their dissent,
three members of the Committee take issue with the factual findings of
the majority, questioning how the state’s “detailed arguments could be
so lightly set aside in favour of an article 7 violation as has been done by
the majority”.106 The contest thus arises about the information provided by one state (the respondent) about the situation in another (the
receiving) state, which is not a party to the dispute.
4. Follow-Up Phase
Follow-up differs from one complaints body to another. The HRC has
put in place the most comprehensive of these procedures. When it finds
a violation, the HRC routinely indicates to states that they have to provide an effective and enforceable remedy, and requests the state party to
supply it with “information about the measures taken to give effect to
the Committee’s Views”. The HRC has also routinely set a time limit of
90 days within which a state has to respond, providing information that
would enable the Committee to ascertain “the measures taken by
states”.107 This process is overseen by one of the Committee members
designated as Special Rapporteur for Follow-up. Information about follow-up is contained in the Committee’s annual report.108
The practice of the Committee has fluctuated between adopting
vague, open-ended remedies, leaving states much scope to determine
106
107
108
See e.g Communication No. 900/1999, C v. Australia, Doc.
CCPR/C/76/D/900/1999 of 13 November 2002, Opinion of Committee
Members Ando, Klein and Yalden.
Rule 95 (1) of the Committee’s Rules of Procedure.
Rule 95 (4) of the Rules of Procedure.
76
Max Planck UNYB 8 (2004)
their content,109 and precise and circumscribed remedies, calling for
specific measures. An example of the latter category is the requirement
to amend specific legislation, as was required of Mauritius in the Aumeeruddy-Cziffra Case.110 Remedies not requiring clearly defined action are more likely to lead to disputes about the adequacy of follow-up
than detailed or specific remedies. This factor at least partially explains
why the Aumeeruddy-Cziffra Case has been hailed as a clear example
of successful follow-up.111
This is an area in which treaty bodies should involve local NGOs.
Their permanent presence in the country makes them better suited to
ascertain whether remedies have been given effect to and to exert pressure on governments to comply. However, the body should not rely exclusively on fact-finding by NGOs, as their information may suffer
from bias or inaccuracy.
IV. Fact-Finding by the Working Group on Arbitrary
Detention as Complaints Body
Established in 1991, the Working Group on Arbitrary Detention has
the mandate to investigate “cases of detention imposed arbitrarily or
otherwise inconsistently with the relevant international standards set
forth in the Universal Declaration or in relevant international legal instruments accepted by the States concerned”.112 These cases include
administrative detention and detention following the completion of a
criminal trial. The Working Group’s substantive mandate arises from
article 56 of the UN Charter, and by way of state consent to being
bound by treaties, in particular the ICCPR. In respect of states that
have not ratified the ICCPR, the Working Group uses the Universal
Declaration as a yardstick, thereby confirming the view that at least the
relevant provisions, usually articles 9 and 10, have attained the status of
109
110
111
112
See e.g. the requirement to provide an “appropriate remedy” (Kivenmaa v.
Finland, Communication No. 412/1990, Doc. A/49/40, Vol. II of 31 March
1994, para. 11).
See above, para. 11.
See generally D. McGoldrick, The Human Rights Committee, 1991, 154155.
Doc. CHR/RES/1991/421 of 5 March 1991, Suppl. 2, 103, para. 2
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
77
customary international law or ius cogens.113 In some of its findings, the
Working Group has also called on states to become party to the
ICCPR.114 In 2003, for example, the Working Group adopted 26 opinions involving 151 persons; in respect of 131 of these complainants, it
considered the deprivation of liberty to be arbitrary.115
The complaints procedure before the Working Group is triggered
when a “source” provides information alleging arbitrary detention. Resorting to the principle of audiatur et altera pars, the information is
then brought to the attention of the state party, with the request to respond to the allegations within 90 days. If the state responds, the
“source” is given an opportunity to reply to the information provided
by the state. The Working Group then evaluates the evidence before it,
and makes a finding (initially called a “decision”, later an “opinion”). In
this process, it takes note of circumstantial evidence, and of the reports
by other special mechanisms and the treaty bodies (such as an inquiry
in terms of article 20 of the CAT, to Turkey),116 and applies as standard
of proof the criterion of “convincing evidence”.117 Follow-up of recommendations is mainly by way of written procedure. Information on
government follow-up is reported annually.118
In some instances governments have taken direct issue with findings
of the Working Group. Taking the form of a letter to the UN Commission on Human Rights, governments request that their response be attached to the report of the Working Group and be made available to all
the delegates to the Commission’s session where the Working Group’s
report is discussed, as the following example shows.
113
114
115
116
117
118
See e.g. Opinion 3/2002 against Eritrea, Doc. E/CN.4/2003/8/Add.1 of 24
January 2003, para. 15.
See above. The WG expresses the opinion that the detention violates articles 9 and 10 of the Universal Declaration. These provisions afford guarantees against arbitrary arrest and detention, and of a fair and public hearing,
respectively. The Opinion concludes with the request that the government
should take “adequate initiatives with a view to becoming a State party to
the International Covenant on Civil and Political Rights”. See also Opinion
10/2002, Sidi Fall v. Mauritania, Doc. E/CN.4/2003/8/Add. 1 of 24 January 2003, 81.
Doc. E/CN.4/2004/3 of 25 December 2003, Summary.
See e.g. Doc. E/CN.4/1996/40/Add.1 of 31 October 1995, Decision
38/1994 (Turkey), para. 9.
See e.g. Doc. E/CN.4/1993/24 of 12 January 1993, Decision 14/1992
(Cuba), para. 6(h).
Doc. E/CN.4/2004/3 of 15 December 2003, paras 10 to 22.
78
Max Planck UNYB 8 (2004)
In an opinion dealing with two persons of Indian descent detained
in the United States, the Working Group found that the two persons
“have been detained for more than 14 months, apparently in solitary
confinement, without having been officially informed of any charge,
without being able to communicate with their families and without a
court being asked to rule on the lawfulness of their detention”.119 In its
response to the communication as part of the process before the Working Group, the United States government made a general statement
about the treatment of detainees in the country, beginning with the sentence: “Without providing any specific information about the cases reported …”. Expressing dissatisfaction that the government’s response
“merely described the current procedure under United States law without providing any information on the individuals in question”,120 and in
the absence of any specific information by the government, the Working Group relied on the information provided by “the source”. This information consists of the statements of the two detainees and a letter
written to the mother indicating that they were detained for 14 months,
in the immediate aftermath of the destruction of the World Trade Centre in New York on 11 September 2001. This information is apparently
substantiated by an American pro bono lawyer.
Responding to the finding in its letter to the Commission on Human Rights, the United States government for the first time presented
detailed information about the circumstances of the case. In short, it argued that the opinion was “unsubstantiated” and was based on “false
facts” as well as a “fundamental misunderstanding of our law”.121
However, the misunderstanding seems rather to be on the American
side. It is quite conceivable that the Working Group’s opinion could
have been affected had the information been provided by the state at the
appropriate time. The American version is that the two persons were
detained for “overstaying their immigration visa”, and were subsequently charged and convicted for credit card fraud, to which they
pleaded guilty in June 2002. After a sentence of one year, they were deported. By not providing any of this information before the Working
Group, the United States government thwarted the process. Its strongly
worded reply, with a string of sentences stingingly starting with “There
is no factual support ...” is mere rhetoric and cannot undo the initial
119
120
121
Opinion 21/2002 of 3 December 2002, Doc. E/CN.4/2004/8/Add.1, para.
15.
Ibid., para. 12 of the Opinion.
Doc. E/CN.4/3003/G/72 of 7 April 2003.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
79
lack of co-operation by the United States government to establish the
facts.
There are similarities and differences between the procedures of the
Working Group and those of the treaty-based complaints bodies. Both
procedures take an exclusively written form, contain formal requirements such as time limits and embody procedural fairness. Like the
treaty bodies, the Working Group applies a default rule when states fail
to respond to allegations, routinely observing that it is “left with no option but to proceed to render its decision” on the basis of what has been
“brought to its knowledge:122 “[S]ince the facts and allegations contained in the communication have not been challenged by the Government in spite of the opportunity which was given to it to do so”, the
Working Group takes a decision on the facts and circumstances of the
cases.123 Similar to the treaty bodies, the Working Group is reluctant to
second-guess domestic fact-finding processes.124 Follow-up to the findings of both the Working Group and the treaty bodies remains unsatisfactory.125
The procedure before the Working Group is less rigid and does not
contain a distinct admissibility phase. When an allegation is unsubstantiated, the Working Group has on occasion requested the “source” to
provide additional information.126 Not restricting itself to the submis122
123
124
125
126
See e.g. Doc. E/CN.4/1996/40/Add.1 of 31 October 1995, Decision
33/1995 (Turkey), para. 2.
Ibid., para. 3.
In a case against China the Working Group points out that “its task is not
to evaluate facts and evidence in a particular case; this would be tantamount
to replacing the national courts, which falls outside the Working Group’s
remit” (Opinion 2/2003 (China) of 7 May 2003, Doc.
E/CN.4/2004/3/Add.1, para. 17).
The HRC’s annual reports contain detailed information about steps taken
to ensure compliance with opinions, see e.g. Doc. A/57/40 (Vol. I), Part VI,
containing a table of follow-up by states. The information sometimes
merely reveals non-compliance, see e.g. para. 239, in respect of the DRC:
“With regard to case No. 16/1977 – Mbenge et al. (Doc. A/45/40), the author informed the Committee by letter of 3 June 2002 that the State party,
both before and after the change of regime, had failed for over a decade to
give effect to the Committee’s Views. The author remained without the use
of his property and had not been compensated for his losses. The authorities had ensured that certain property of other persons was returned to
them, but the author had not been treated in like fashion.”
See note 122, para. 9.
80
Max Planck UNYB 8 (2004)
sions of the parties, the Working Group makes use of a broader range
of sources, including the reports of other special mechanisms and human rights treaty bodies. The Working Group also deals with “urgent
appeals”,127 and may conduct country visits, especially when complaints have revealed the need for legislative changes.128
Decision 7/1992 (Peru) provides an example of disputed fact-finding
before the Working Group.129 In this matter, involving the alleged torture of Dr. Saavedra, the Working Group held that it “is not appropriate” for it to “pronounce on a matter which has already been dealt with
by another organ of the Commission”. In this previous report, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment stated that a special commission headed by
the Dean of the Medical Association “had found that Dr. Saavedra’s
wrists bore marks of having been bound and there were contusions on
his body”. In its subsequent criticism, the NGO American Association
of Jurists noted as follows:130 “The fact of withholding action in favour
of the Special Rapporteur runs counter to the explanations provided by
the Group itself about its mandate (E/CN.4/1993/24, paras 6 and 7).
This body is supposed to collaborate with Rapporteurs of the Commission and Sub-Commission and with treaty monitoring bodies. Such
collaboration should take the form, inter alia, of the exchange of information for the sake of co-ordination, the saving of time and resources,
and the following-up of all information.”131 As far as the evaluation of
evidence is concerned, the Working Group found that “there is no evidence to justify a finding by the Working Group that this allegation has
been proved”.132 In the view of the American Association of Jurists,
this finding “overlooks the view of the medical commission”.133
127
128
129
130
131
132
133
In 2003, 157 such appeals (involving 812 persons) were made, Doc.
E/CN.4/2004/3 of 15 December 2003, para. 23.
In 2003, e.g. the Working Group visited Iran and Argentina. Since 1998,
letters are addressed to governments to follow up appeals, which in some
instances have led to legislative reform (see e.g. the situation in Indonesia
Doc. E/CN.4/2004/3, paras 33, 38-40.
Doc. E/CN.4/1993/24 of 12 January 1993, para. 6(h).
Doc. E/CN.4/1994/NGO/18 of 8 February 1994.
Ibid., para. 11.
Doc. E/CN.4/1993/24 of 12 January 1993, Annex I, para. 6(k).
Doc. E/CN.4/1994/NGO/18 of 8 February 1994, para. 12.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
81
V. Some Implications of Current Complaints-Based
Fact-Finding
1. Fundamental Contradiction between Greater
Judicialisation and Written Fact-Finding
When the earliest complaints systems were devised in the 1960s, the
treaty bodies seem to have been modelled on domestic courts of appeal.
This meant that the proceedings would be in writing only, based on the
record as established through the domestic judicial system, which has to
be exhausted. Oral hearings consequently do not form part of these
proceedings. Just like domestic courts of appeal, these bodies do not
undertake fact-finding investigations (on-site-visits). Different to the
domestic appeals court, though, the treaty bodies do not entertain legal
argument. This possibility was most likely omitted due to the resource
implications, as well as some uneasiness about over-judicialising these
bodies.134 Although the mandate of the later CAT Committee leaves
open the possibility for relying on non-written evidence, this possibility has not been exploited. The submission of evidence is also restricted
to the parties. This has the cumulative effect that the factual basis of the
complaints bodies is restricted to what the parties put on paper and present to the bodies.
Greater judicialisation has characterised the complaints bodies,
which may now be described as “quasi-judicial” bodies. It may be argued that, initially, the judicial character of the complaints bodies was
not very clear. Established by state parties as monitoring bodies with
declaratory powers only, or as diplomatic bodies empowered to make
recommendations, they nonetheless developed into quasi-judicial bodies.135 Findings by treaty bodies have acquired a status that closely resembles binding “judgements”, in all but name, as exemplified in the
expectation of compliance that is supervised through an increasingly effective system of follow-up, thus approximating a judicial finding in
134
135
See e.g. R. Hanski/ M. Scheinin, Leading cases of the Human Rights Committee, Institute for Human Rights, 2003, 14.
CAT Committee General Comment No. 1 para. 9, Doc. A/53/44, Annex
IX of 21 November 1997 seems to be a case of “protesting too much”.
82
Max Planck UNYB 8 (2004)
form and effect. This development towards judicialisation can be derived from a number of factors.136
As Tomuschat notes, from the very beginning none of the findings
of the HRC reads “like a diplomatic communiqué”, as they are drafted
“on the pattern of a judicial decision”.137 In his view, the persuasiveness
of the findings depends on their “judicial” nature – their “impartiality,
objectiveness, and soberness”.138 Generally, the arguments of the two
parties are stated, followed by the finding in which the factual position
is clarified, applied to the relevant law, and the conclusions stated.139
Although some of the CERD Committee findings contain an extensive
exposition of the arguments of the two sides, and only a brief application of the facts to the law, with almost no analysis, they are still in
principle modelled on the “pattern” of legal decisions. In substantiating
their findings, complaints bodies refer to their own precedents, thus
136
137
138
139
As opposed to the flexible and ad hoc nature of fact-finding under the UN
Charter-based organs, the treaty-based organs have a more rigid and
strictly legal basis, based on relatively detailed rules of procedure, for factfinding in respect of individual communications, thus lending themselves to
judicialisation. As has been pointed out, the Working Group displays characteristics similar to that of the treaty bodies dealing with communications.
In respect of three cases against Cuba (Decisions 9, 14 and 15 of 1992), the
NGO American Association of Jurists remarked that the Working Group’s
decisions to file them without taking further action are in contradiction
with other decisions, in which the Group declared detention arbitrary
notwithstanding certain gaps in the information provided by the state or by
the author of the request. The Association continues: “It would be as well,
therefore, especially in view of the lack of information from the Government in question, to keep the case under review as far as possible, before
taking a final decision. In doing otherwise the Working Group would run
the risk of losing some of its effectiveness.” (Doc. E/CN.4/1994/NGO/18
of 8 February 1994, para. 2).
C. Tomuschat, “Evolving Procedural Rules: The UN-Human Rights
Committee’s First Two Years of Dealing with Individual Communications”, HRLJ 1 (1980), 249 et seq. (255).
Ibid.
See also the observation by the member of the HRC, Klein, in Hill v.
Spain, Communication No. 526/1993, Doc. A/52/40 of 2 April 1997, that
the authority of the Committee’s views largely depends on “a convincing
ratio decidendi”.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
83
also basing themselves on their own institutional authority rather than
on outside influence or pressure.140
Not only the findings, but the underlying procedure follows a judicial model, namely audiatur et altera pars. The exchange of information
is indicative of an adversarial process between the parties. In the event
of this exchange not being realised, relatively rigid rules pertaining to
standard of proof, rather than flexible ad hoc principles, come into play.
An increasing trend to issue minority views, as part of the body’s
finding, not only illustrates the seriousness with which members approach findings, but also testifies to the rational and considered discourse that underlies the findings.141 These views are not necessarily
“dissenting”, but sometimes present a separate opinion in which specific issues are stated or positions clarified. An analysis of the HRC’s
annual reports in 1993 and 2002 reveals that the number of minority
opinions as a percentage of the total number of findings has increased
from about 28 per cent to around 54 per cent.142
Although lawyers are not required for the preparation of complaints
to any of these bodies, for some time now the majority of complaints
are prepared with the assistance of lawyers. In 1993, some 28 per cent of
complainants before the HRC were without legal representation; in
1997 the percentage dropped to approximately 18 per cent and in 2002
140
141
142
See, in this regard, the minority view of Christine Chanet in Communication E and AK v. Hungary, No. 520/1992, Doc. CCPR/C/50/D/520/1992
of 5 May 1994, where she disagrees with the majority’s view declaring the
communication inadmissible on the basis of jurisdiction ratione temporis:
“Finally, it is my view that when the Committee considers a communication under the Optional Protocol, its decisions should be guided only by
the legal principles found in the provisions of the Covenant itself, and not
by political considerations, even of a general nature, or the fear of a flood
of communications from countries that have changed their system of Government.”
See e.g. M. Nowak, UN Covenant on Civil and Political Rights (CCPR
Commentary), 1993, 172, who identifies the adoption of minority views as
part of a development towards strengthening the quasi-judicial nature of
the HRC. (See also article 5 (4) of OP ICCPR, and Rule 94 (3) of the Rules
of Procedure of the HRC).
Doc. A/48/40 of 1 November 2003, Part II: 6 minority opinions in a total
of 21 cases decided on the merits; Doc. A/57/40, Vol. II: 20 separate opinions in 35 cases.
84
Max Planck UNYB 8 (2004)
it was again around 28 per cent.143 Lawyers have thus been used in
about three quarters of all communications heard on the merits by the
HRC.
The greater acceptance of the moral authority of the findings of
complaint bodies goes hand in hand with greater judicialisation of the
procedures and working methods of these bodies. However, in respect
of fact-finding, the working methods have not changed or advanced,
leaving the impression of a dichotomy, or inherent contradiction, between the increasingly judicialised bodies at odds with an unchanged
fact-finding procedure. More than that, the fact-finding methods may
also undermine the process towards securing greater binding authority
for these findings especially if there is a perception that “the unavailability of relevant information may have resulted in decisions which
were, either in law or in fact, incomplete or misleading”.144 Although
the complaints process has become more judicialised in many respects,
the way of reaching these findings has lagged behind. Complete reliance
on written information seems more and more anachronistic.
2. Domestic Remedies: Between Usurpation and Deference
As has been illustrated, the model of domestic-dependent fact-finding
breaks down when complainants are exempted from exploring domestic relief. Particularly in cases where no attempt has been made to exhaust local remedies, the complaints body becomes, in toto, the court of
record. Under such conditions, the body principally relies on the allegations of the complainant, as set out in the Complaints Form, which
does not require sworn statements. As these are the types of cases
where governments are less likely to respond to allegations, the default
rule will often be applied. In this event, the complaints body becomes
the court of first and last instance on the basis of the uncontroverted,
143
144
These statistics relate to communications finalised on the merits. Doc.
A/48/40 of 1 November 1993, Part II: in 6 out of 21 complaints there is no
indication of legal representation; Doc. A/52/40 of 8 November 1996, Part
II, 4 out of 22 complaints were not represented; Doc. A/57/40 of 21 March
2002, Vol. II: 10 out of a total of 35 complainants not represented.
M. Schmidt, “Individual human rights complaints procedures based on
United Nations treaties and the need for reform”, ICLQ 41 (1992), 645 et
seq. (652). (Schmidt at the time worked in the Communications Section of
the UN Centre for Human Rights in Geneva).
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
85
but untested and unscrutinised version of the complainant. The logical
consequence of the use of fact-finding under such circumstances would
be that the international body serves as a substitute to the domestic system. This approach is less than ideal, as it requires members of bodies to
rely on assumptions, as well as “logic and experience”, without the
benefit of hearing more than one voice. However, the adoption of this
approach, favouring the prima facie acceptance of untested allegations
above inaction that would legitimise the lack of co-operation by states,
was unquestionably the best possible result under the circumstances.
The total usurpation of the fact-finding role in these cases starkly
contrasts with the deferential attitude of the complaints bodies towards
the facts found by domestic courts in instances where domestic remedies have in fact been exhausted. Under those circumstances, a reassessment of the facts is exceptional. The fluidity of the standard on
which interference is allowed to some extent accounts for an openended and inconsistent practice in this regard.
3. Delays due to Written Procedures
As Schmidt points out, using a written procedure forces a complaints
body to “engage in time-consuming exchanges of correspondence” before arriving at a finding.145 This is especially the case when the cooperation of the government is not forthcoming, but attempts are nonetheless made to secure information from it.
Perhaps because it has adopted a low threshold standard of proof,
the bodies have tended to bend backwards to accommodate especially
states to make use of additional procedural possibilities, thus further
prolonging the process. Although these rules are relatively rigid and
precise, they are not always strictly applied. In a case involving the
United States, the Working Group on Arbitrary Detention for example
expressed the view that it “would have appreciated more cooperation
from the Government, which has had over seven months, rather than
the 90 days provided for under paragraph 15 of the methods of work of
the Working Group, to clarify the situation”.146 In this regard, the
Working Group recalled that the government “requested additional
145
146
Schmidt, see above, 651-652.
Opinion 21/2002, Doc. E/CN.4/2004/3/Add.1 of 26 November 2003.
86
Max Planck UNYB 8 (2004)
time, which it was granted in accordance with paragraph 16 of the
methods of work”.147
In the Lubicon Lake Band case,148 no less than 78 pieces of information (documents, fact sheets, papers) were used as a basis for the HRC’s
finding.149 The time lapse between submission of the complaint (in
1984) and the final decision (in 1990) was more than six years. The delay in this matter was due to the complexity of the legal issues involved,
as well as the “new” allegations made after the communication had been
declared admissible in respect of article 27, and not article 1 and 2.
Dealing instantly with all these matters during an oral hearing (after a
shortened exchange of written information) could have reduced the delay considerably.
4. Defensive Strategies adopted by Complaints Bodies
It is not contested that there is individual and institutional awareness of
the complexities and pitfalls of fact-finding as part of the consideration
of complaints. What follows, are examples of strategies adopted in treaties and by complaints bodies to alleviate some of the problems arising
from their fact-finding mandate and role.
To some extent, all the bodies are institutionally insulated from
criticism that they find facts subjectively. The members of the bodies
are elected through a relatively transparent and impartial process involving all regions of the world. Geographic representation is in practice strictly adhered to.150 A good illustration of an institutionalised
claim to “objectivity” is found in the Optional Protocol to CAT, which
provides that the Subcommittee on Prevention of Torture shall be
guided by the principles of confidentiality, impartiality, non-selectivity,
universality and objectivity.151 Members of these bodies all serve as independent experts, not as government agents. The Rules of Procedure
allow members to recuse themselves in instances where they have a personal interest, or if for “any reason” a member considers not to take
147
148
149
150
151
Ibid.
Communication No. 167/1984, Ominayak and Another v. Canada, Doc.
A/45/40, Vol. II of 26 March 1990.
Schmidt, see note 144, 652.
See e.g. arts 29 (3) and 31 (2) of the ICCPR.
A/RES/57/199 of 18 December 2002, para. 2 (3).
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
87
part in the examination. 152 This provision has been interpreted to lead
to the recusal of a member in all matters involving the state of which he
or she is a national. In an illustration of what “any reason” would constitute, Buergenthal withdrew as member from the HRC’s consideration in Faurisson v. France, involving “Holocaust denial”, on the basis
that he was a survivor of the Nazi concentration camps.153
This institutional “objectivity” is sometimes internalised and made
part of the body’s rhetorical strategies.
The CAT Committee has described itself as a monitoring body created by the states parties themselves with declaratory powers only, and
not an “appellate, a quasi-judicial or an administrative body”.154 The
Working Group on Arbitrary Detention, for example, has been adopting the following standard formulation in its findings:155 “The Working
Group on Arbitrary Detention, in accordance with the methods of
work adopted by it ... and in order to carry out its task with discretion,
objectivity and independence, forwarded to the Government concerned
the communication received by it and found to be admissible, in respect
of allegations of arbitrary detention reported to have occurred”. In a
famous rhetorical backtrack, the Working Group changed the tag of its
findings from “decisions” to “opinions”. An NGO enjoying consultative status with ECOSOC, the American Association of Jurists, in 1994
submitted a written statement to the Commission on Human Rights,
noting the inappropriate use of the term “decision” to designate the
findings of the Working Group: “The Group’s opinions have no binding legal force; it can only ‘request [States] to take the necessary steps to
remedy the situation’. It is up to the good will of the Government concerned to respect such a request or not. If the Group uses terms such as
‘decide’ or ‘declare’, which correspond not to its mandate but rather to
a jurisdictional mandate, it risks giving rise to serious confusion. ... In
order to avoid creating unfortunate confusion, the Group should use
terms of a more neutral nature, such as ‘opinions’ or ‘views’, and confine itself to ‘considering’ or ‘believing’ that a detention is or is not arbitrary. All the resolutions adopted by the Group are described as ‘deci152
153
154
155
Rules of Procedure of the HRC, Rules 84 and 85; Rules of Procedure of the
CAT Committee, Rules 103 and 104.
Doc. A/52/40, Vol. II, Communication No. 550/1993 of 8 November 1996.
CAT Committee General Comment No.1, para. 9, Doc. A/53/44, Annex
IX of 21 November 1997.
This quoted from Decision 7/1992 (Peru), Doc. E/CN.4/1993/24 of 12
January 1993, Annex I para. 1 (emphasis added).
88
Max Planck UNYB 8 (2004)
sions’”.156 In 1997, the Working Group changed its practice, “in order
to avoid any controversy over the interpretation of its mandate”.157
Displaying at least an implicit awareness of the complexity of factual
and truth claims, complaints bodies are (understandably and correctly)
wary of invoking the notion of unqualified “facts” or “truth” in relation to their findings. For one thing, the allegations of the authors need
not be in the form of sworn statements. For another, the rules pertaining to the burden and standard of proof underscore the relative “truth”
of their findings. Thus, the findings invariably refer to the body’s view
or opinion on the basis of “the facts before it”,158 the “information before it”,159 or “the material before it”,160 rather than “the fact”, “the information” or “the material” as such. The Working Group often invokes the formulation that it “believes it is in a position to give an opinion on the facts and circumstances of the case”.161 Linked hereto, is the
application of a standard of proof that is quite flexible, but never requires proof beyond reasonable doubt (as is the case in for example the
European system).162 The Working Group has used the standard that
the allegation should provide “convincing evidence for a finding that
the detention is arbitrary”.163
The bodies have emphasised the importance of procedural fairness.
The central role of co-operation by governments has also been stressed
in this context. As a general rule, states have an opportunity to respond
to the allegations within a fixed period of time. Thereafter, the complainant has an opportunity to reply to the government version of
events.
156
157
158
159
160
161
162
163
Doc. E/CN.4/1994/NGO/18 of 8 February 1995, para. 15
Doc. E/CN.4/1999/63 of 18 December 1998, para. 9.
See also Decision 7/1992 (Peru), in which the Working Group observes the
following: “In the light of the allegation made, the Working Group welcomes the cooperation of the Government of Peru. The Working Group
believes that it is in a position to take a decision on the facts and circumstances of the case, in the context of the allegations made and the response
of the Government thereto”.
H C v. Jamaica, see note 84, para. 6.4.
See above, para. 10.4.
See e.g. Opinion 15/2002 (Tunisia), para. 4, 17/2003 (Cuba), para. 4,
18/2002 (United Arab Emirates), para. 4.
K. Rogge, “Fact-Finding”, in: R.St.J. Macdonald/ F. Matzscherand/ H.
Petzold (eds), The European System for the Protection of Human Rights,
1993, 677 et seq. (690).
Decision 9/1992, Doc. E/CN.4/1993/24 of 12 January 1993, para. 6(h).
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
89
Apart from standard of proof, the complaints bodies have adopted a
number of strategies that are devised to minimise the intrusiveness of its
fact-finding role. They have adopted the principle of complementarity
as to factual matters, emphasising that they are not replacing domestic
courts. In fact, when domestic remedies have been exhausted, these
bodies showed great deference for the decisions of domestic courts, in
particular as far as the facts are concerned.
In particular the CERD Committee has developed a practice of not
finding a violation, but of stating a “reminder” of the state’s obligations,
when the factual basis for a finding of violation is, in its view, lacking,
but there are some indications that a violation might have been occurred. As an illustration, the two concluding paragraphs of the CERD
Committee’s finding in M B v. Denmark, bears quoting in full:164 “Due
to the above mentioned specific circumstances of the case, the police
could not accomplish a complete and in-depth investigation of the case.
Therefore, the Committee has no elements at its disposal that would allow it to conclude that a violation by the State party of the provisions
of the Convention has indeed taken place in this case. However, the
Committee wishes to emphasize the importance it attaches to the duty of
the State party and, for that matter, of all States parties, to remain vigilant, in particular by prompt and effective police investigations of complaints, that the right established under article 5, paragraph f, is enjoyed
without discrimination by all persons, nationals or foreigners, under the
jurisdiction of the State party.” Finding no violation on the facts in
Sadic v. Denmark,165 the CERD Committee similarly invited the state
“to reconsider its legislation, since the restrictive condition of ‘broad
publicity’ or ‘wider dissemination’ required by article 266 (b) of the
Danish Criminal Code for the criminalization of racial insults does not
appear to be fully in conformity with the requirements of articles 4 and
6 of the Convention”.166
164
165
166
M
B
v.
Denmark,
Communication
No.
20/2000,
Doc.
CERD/C/60/D/20/2000 of 15 March 2002, paras 9 and 10, emphasis
added.
Doc. CCPR/C/62/D/25/2002 of 16 April 2003.
Ibid., para. 6.8.
Max Planck UNYB 8 (2004)
90
VI. Some Suggested Solutions
Two broad possible ways of addressing the issues discussed above present themselves. One set of solutions relates to the procedures within
complaints bodies (here termed “intra-institutional”), the other set of
possibilities are linked to reform that affect the co-existence of the bodies (termed “inter-institutional”).
1. Intra-Institutional Solutions
a. Improve the Current Practice
One option is to keep the current system in place, with improvements
to fact-finding methods. Essentially, this would entail better communication with the parties, more efforts to obtain information, a more rigorous analysis of the written material provided to complaints bodies,
and making better use of “authenticated depositions and independent
expert opinions”.167 In the latter respect, the possibility of working
with independent local academics may be explored.
b. Introduce Oral Hearings
Evidence and information received in writing are by necessary implication to be evaluated and assessed. The possibility of oral hearings,
which the OP of the ICCPR does not exclude, and CAT already allows,
is one way of such evaluation and assessment. The introduction of oral
hearings finds support in the practice of some regional human rights
bodies, as well as in the fact that parties have “in the past offered to present oral clarification in the Committee plenary”.168 So far, none of the
complaints bodies have made use of oral hearings.
Two possibilities arise with respect to oral hearings – the one minimal, the other optimal. A minimal position would be reached when the
parties are allowed to present arguments through lawyers or personally
at the hearing of the complaints body. From the point of view of complainants, that would entitle them to make a statement to the complaints body, even if unrepresented. The optimal position would be a
167
168
Nowak, see note 141, 694.
Schmidt, see note 144, 653.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
91
fully-fledged hearing, in the sense that witnesses would be sworn in,
their evidence would be lead, and cross-examination or questioning
would be allowed in the presence of all parties. Thereafter, parties
would be able to make oral presentations on the evaluation of facts, the
demeanour and credibility of witnesses, the applicable law and the application of the facts to the law.
If the minimal position prevails, the main advantage is that the presence of lawyers may assist the complaints body towards a better understanding of the applicable legal provisions of the country concerned.
Under international law, establishing the legal position in a country is
also a question of fact. In the absence of any expert, the complaints
bodies may feel disempowered when they do not fully understand the
functioning of a legal system, leading to greater disinclination to interfere with the findings of local courts. The presence of lawyers and legal
argument will also enhance the quality of legal analysis, thus increasing
the rigour displayed in legal findings. The complaints body may further
use the opportunity to direct questions to parties and hear their comments on contentious or problematic aspects related to the facts.
If the optimal solution is adopted, the advantages extend to factfinding proper. Even after exchanging documents, the dispute between
the parties may still remain, and the complaints body may not be able
to determine the facts. In such an instance, the current practice has been
to rely on intuition, and to apply a burden of proof in favour of the
complainant. These methods may be unsatisfactory, and in fact may
lead to incorrect findings. Oral hearing may go some distance in assisting the body to arrive at “the objective truth”.169 The additional opportunity of hearing witnesses, taking note of their demeanour, and testing
their versions during cross-examination may provide the complaints
body with a much clearer picture of events. If witnesses are called to resolve specific factual uncertainties, their testimony may clarify matters
instantaneously, thus shortening the process of finalisation. Oral hearings will arguably not only lead to an improved construction of the
facts, but will also increase the legitimacy of the complaints bodies. This
could ultimately enhance respect for their findings, and improve protection and implementation of human rights.
Allowing for oral hearings would also bring the UN complaints
practice in line with that of the three regional human rights systems.
Cassel points to both the direct impact of oral evidence and the pres-
169
Nowak, see note 141, 694.
92
Max Planck UNYB 8 (2004)
ence of complainants or witnesses, and the practical problems of conducting such hearings due mainly to a lack of resources.170
The most obvious disadvantage of oral hearings is the concern about
the “substantial cost” that such a process would involve.171 At the very
least, that cost could relate to the travel expenses of the complainant to
the seat of the complaints body. If lawyers are involved, as is here argued, the question of their costs also arises. Given a state’s greater access (in principle) to financial resources, it seems feasible to provide financial support to the complainant, in order to ensure “equality of
arms”.172 The question arises: would that include support to witnesses
as well?
Most authors do not regard the exclusive reliance by the HRC (and
other treaty bodies, for that matter) on written material as inevitable. 173
They accept that by omitting reference to, rather than by prohibiting
the use of oral evidence, the OP to the ICCPR does not legally exclude
the possibility of oral hearings, either as “a preliminary phase before the
submission of final briefs”,174 or oral argument on the merits of the
case. As a matter of fact, some complainants and states have in the past
been more than willing to present oral testimony.175
Most have argued or accepted that state consent to oral hearings is
required or advisable.176 However, such a course will lead to an inconsistent procedure, differing according to the presence or absence of state
consent,177 making “the stage of taking evidence” dependent on the
“preparedness of the State party concerned to allow for additional
methods of proof”.178 Notwithstanding these concerns, McGoldrick
170
171
172
173
174
175
176
177
178
J. Cassel/ W. Douglas, “Fact-finding in the Inter-American system”, in:
Bayefsky, see note 55, 106-107.
Nowak, see note 141, 694.
See D. Kretzmer, “Human Rights Committee”, in: Bayefsky, see note 55,
165.
See e.g. Hanski/ Scheinen, see note 134, 14. See, however, the contrary view
of Nowak, see note 141, 694, observing that neither the wording of OP
ICCPR nor the historical background supports the extension of consideration of communications to oral hearings.
Hanski/ Scheinen, see note 134, 14.
Ghandi, see note 72, 310.
See e.g. Kretzmer, see note 172, 165.
Kretzmer, see note 172, 165, calls it an “equality problem”, because the
committee would “have two levels of decisions”.
Tomuschat, see note 137, 254.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
93
supports such a course as being “eminently sensible”, arguing that the
body “should take advantage of that co-operation rather than reduce
procedures to those dictated by States who do not wish to permit oral
hearings”.179 Such a solution would lead to a situation not very different
from that pertaining in any event between those states that have accepted the Optional Protocol, and those that have not. Of importance,
though, is that all states should know about the options and consequences. This information may be provided to states by way of a general comment on oral hearings, ensuring that states know where they
stand from the outset.
It may even be possible that state consent is not required. On the
basis that the power to allow oral hearings is “implied” by the OP, such
a change may arguably be introduced by a change to the Rules of Procedure.180 As far as the CAT Committee is concerned, it has already
been pointed out that the Rules of Procedure allow for the possibility
of oral evidence. The principles of equal opportunity to both parties
and no negative consequences for non-appearance, as set out in the
CAT Rules of Procedure, should be adhered to.
Whether state consent is required or not, recalcitrant states, such as
the Zaire/Democratic Republic of the Congo in the 1980s and Uruguay
in the 1970s, are unlikely to be more co-operative. They are unlikely to
give explicit consent or to abide by changed Rules of Procedure. For
this reason, the course of adopting amended Rules seems to me to be
preferable, as those states that are unlikely to give their consent are in
any event unlikely to abide by the Rules.
c. Introduce Investigative Fact-Finding by a Special Rapporteur on
Fact-Finding
At the outset, the concept of “investigation” should be clarified. The
term is sometimes applied to refer to oral examinations that are taken
on commission. If the European Commission sent three delegates to
hear the testimony and cross-examine twelve witnesses in Turkey, was
that in itself an “investigation”?181 An oral hearing is still an oral hearing, no matter where it takes place. For purposes of this discussion, an
“oral hearing” converts itself into an “investigation” if something more
179
180
181
McGoldrick, see note 111, 144.
See Ghandi, see note 72, 310.
See e.g. Mentes v. Turkey, Case 58/1996/667/867, ECHR, Judgement of 28
November 1997.
94
Max Planck UNYB 8 (2004)
than mere oral evidence is at stake. Is it sufficient that the delegation
also collects some documentary evidence, or may that be construed as
merely corroboration to the oral evidence? It should be accepted that
an on-site investigation usually consists of identifying witnesses, hearing and subjecting their testimony to scrutiny, and collecting other information. At least in these respects may “investigation” be clearly distinguished from “hearings” as such.
So far, the bodies have not undertaken country-specific investigative
visits to establish facts. There seems to be a possibility that the Working
Group may undertake such missions.182
Under the HRC at least in respect of follow-up, this possibility is
also suggested. The Rules of Procedure allow the Special Rapporteur
for Follow-up to “take such an action as appropriate for the due performance of the follow-up mandate”.183
By adopting investigative missions to establish facts, the complaints
bodies under discussion may draw on the experience of the primary
complaints body in the International Labour Organisation (ILO), the
Committee on Freedom of Association (CFA).184 The CFA is responsible for complaints submitted to the ILO Governing Body alleging violations of freedom of association. In the year 2002 – 2003, the CFA examined “about 200 cases” involving trade union and collective bargaining disputes.185 It meets in private sitting at every session of the ILO
Governing Body. In terms of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25
of the ILO Constitution, a representative of the ILO Director-General
may visit a state complained against to obtain relevant information.
This procedure adapts the method of “direct or preliminary contacts”
(which enables the ILO officials to visit a country to “make contact”,
obtain information and seek possible solutions) to “a fact-finding device in complaints procedures”.186
182
183
184
185
186
See e.g. Doc. E/CN.4/2004/3 of 15 December 2003, para. 33; on follow-up
of such visits, see para. 36.
Rule 95 (2) of the Rules of Procedure of the HRC.
See <www.ilo.org>.
Report of the Chairperson of the Governing Body to the Conference for
the Year 2002-2003, ILO Conference, Geneva, 2003, Provisional Record 1,
7.
G. von Potobsky, “The experience of the ILO”, in: B.G. Ramcharan (ed.)
International law and fact-finding in the field of human rights, 1982, 160 et
seq. (165).
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
95
2. Inter-Institutional Solutions
a. A Single, Dedicated Consolidation Complaints Body
Buergenthal argues that the existing six (now seven) treaty bodies be
replaced by two “consolidated committees”, one inter-disciplinary
committee specialising on state reports, and the other a committee of
legal professionals dealing with communications.187 His motivation relates mainly to the duplication, as well as administrative and bureaucratic burdens occasioned by state reporting. As far as individual communications are concerned, the rationale for a single, separate specialised committee is the “ever-increasing backlog” of cases due to an increased caseload.188
How will a single treaty consolidated treaty body eliminate this
problem? It may in fact have more cases, thus attaining the opposite result, as it will consolidate the possible avenues for redress. The core
problem remains the available time, and resources to prepare and follow
up cases. The essential requirement he leaves unstated, namely that the
new committee will have to meet much more often, and be supported
more seriously. Others have translated this into a call for a permanent
or “standing” body.189
This logic has already seen the creation of a single, dedicated and
“comprehensive” unit (the “Petitions Team”) at the secretarial level. 190
As secretariat to all the Committees but one, the OHCHR is responsible for processing most individual complaints directed at UN bodies.
Comprising screening of correspondence, registration of communications, preparation of draft findings, supplying legal advice and technical
assistance for follow-up, this is a burdensome and time-consuming exercise.191 Since its establishment in November 2000, the Petitions Team,
187
188
189
190
191
T. Buergenthal, “A Court and Two Consolidated Treaty Bodies”, in: Bayefsky, see note 55, 299 et seq. (300).
Buergenthal, see above, 300.
Schmidt, see note 144, 658.
See e.g. the informal note serving before the 13th Mtg. of Chairpersons of
the (Human Rights) Treaty Bodies, held in June 2001, Geneva: strengthening support to enhancing the effectiveness of the treaty bodies, Doc.
HRI/MC/2001/Misc. 2 of 16 May 2001.
Para. 16: “It must be borne in mind that approximately 30 pieces of correspondence pertaining to the petitions procedures arrive each day. One of
the major problems facing the Petitions Team is addressing a backlog of
Max Planck UNYB 8 (2004)
96
consisting of a co-ordinator and seven staff members, centralises previously disparate communications-related activities at the OHCHR secretariat.
How would the existence of a single body affect fact-finding? If the
body is permanent, then it could devote more time to fact-finding, thus
overcoming some of the main objections to the proposal to have oral
proceedings or on-site investigations, which will also require resources.
However, truth is, if existing bodies were supported, with more time
and more resources, they could also undertake oral proceedings and onsite investigations.
b. A UN Court of Human Rights
If a UN human rights court were established, it would probably function on the lines of the three regional human rights courts, created under the Council of Europe, the Organisation of American States (OAS)
and the Organisation of African Unity (OAU)/ African Union (AU).
Such a court would no doubt address many of the failings of the complaints bodies, such as the non-binding, recommendatory nature of
their findings, the confidentiality of their proceedings, the lack of hearings at which evidence is lead or legal issues argued, and the inability to
conduct on-site inspections.
Some regard the evolution towards a UN human rights court as an
inherent end-result of current developments. For Buergenthal, a Court
for Human Rights is an ideal.192 Pre-empting principled objections to
its creation, he offers the option of a disempowered court, able only to
issue advisory opinions, and only at the request of treaty bodies or state
parties. To be fair, he regards this as a foot in the backdoor, paving the
way for a subsequent extension of jurisdiction to contentious cases and
the right of appeal to individuals.
Following this development, there is arguably an inherent and inevitable development towards the judicialisation of the UN complaints
system. However, the move towards a human rights court of global jurisdiction will not be realised overnight. Its essential contribution, that
of providing unequivocally binding decisions, is likely to be resisted by
states on the basis of inroads into their sovereignty.193 In response, it
192
193
correspondence written in languages other than the working languages of
the Secretariat”.
Buergenthal, see note 187, 301.
Schmidt, see note 144, 658.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
97
may be argued that acceptance of the UN Human Rights Court’s jurisdiction, like that of the treaty-based complaints bodies, is likely to be
optional.
Pre-empting resource-based resistance, Buergenthal raises the possibility of a special chamber of the ICJ or ICC dedicated to this task,
rather than the establishment of another self-standing institution.194
Such a course should, in my view, rather be avoided, as the human
rights mandate cannot be fused with the mandates of those courts without detracting from its importance. Making use of their physical facilities and co-operating with them is another matter, though.
While it seems feasible that a court can effectively develop and
strengthen universal human rights law,195 the question remains whether
such a court will necessarily deal better with fact-finding. The establishment of a single dedicated complaints body, with the competence to
conduct oral hearings and undertake investigative fact-finding, should
be regarded as a prerequisite for the later emergence of a human rights
court. In this way, the experience and expertise would be transferred to
the court, when it either replaces or supplements the consolidated complaints body.
VII. Conclusion
Factual issues are of central importance in all the phases during which
complaints are processed and considered by the complaints bodies.
Whatever solution in improving fact-finding is adopted, the use of a
written process should be retained. The exchange of written information has advantages. In an ideal case, where the domestic remedies have
been exhausted and if the parties collaborate, the written process may
reveal that there are no factual differences of any significance. Even if
factual differences remain, the written exchange should at least have
clarified the points of contention or disagreement between the two parties. In both instances, the written process plays an indispensable role.
Proposals for a supplementary oral process, which would create a space
for more contested and reasoned fact-finding, should take into account
the result of the written process. The oral process may thus take two
194
195
Buergenthal, see note 187, 301.
Buergenthal, see above.
98
Max Planck UNYB 8 (2004)
very divergent forms, depending on the outcome of the written proceedings.
In the first situation, where there is no substantial factual disagreement, oral proceedings would be aimed at resolving legal disputes arising from the agreed facts. Most likely, legal counsel from both parties
will supplement their written arguments with an oral presentation.
However, questions may be posed about the necessity of allowing
counsel to address the bodies under these circumstances. It may be argued that written arguments are sufficient, and that possible benefits are
outweighed by the increase in cost and the possibility of further backlogs and delays. The financial burden of instructing counsel and securing their presence in Geneva or New York may be something most
states can easily bear, although individuals may find it prohibitively
heavy. It seems very unlikely that the bodies would be able to undertake visits to states, given the existing lack of resources for their activities. Would it make sense for the UN to sponsor a lawyer at cost that
may approximate the eventual compensation awarded to the complainant? The introduction of lawyers also implies greater legal complexity,
and the very real risk of greater inaccessibility, especially for people in
the developing world. The major advantage of oral legal arguments is
that the presence of and exchange between lawyers may assist the body
to focus its mind on the essential legal dispute between the parties,
something that may lead to an improvement in the quality of findings.
In the second situation, oral proceedings would be directed at resolving the remaining significant factual differences between the parties.
Such a determination need not involve lawyers, and could be done at
lesser cost. The oral process would involve the examination, by the
body, or part of it, of the complainant, or another witness. Some of the
difficulties raised above may also be raised here, but are less persuasive
in the light of the fact that the process actually stalls without a factual
basis on which to proceed.196 Oral fact-finding should be prioritised in
these situations, where there are no facts, or where there is serious disagreement about the facts to the extent that there is no factual basis on
which to apply the law. The introduction of an oral process should seek
to create a balance between the need for the development of a contested
discourse on human rights violations, in which both facts and law is
196
See also Kretzmer, see note 172, 165, arguing that “unless the Committee
were to hear witnesses, the oral pleadings of the parties would probably
add little to the pleadings which are at present in writing”.
Viljoen, Fact-Finding by UN Human Rights Complaints Bodies
99
constantly opened to debate, on the one hand, and the requirements
imposed by efficiency and institutional and political realities.
These modalities may be implemented in the current complaints
bodies, but the optimal solution is the consolidation of the treaty bodies into two, one specialising on state reports, and the other on complaints. Such a course makes sense form the point of view of resourceallocation, development of expertise and efficiency. To be sure, a consolidated complaints body should consist of a group of full-time lawyers, they need to be representative of all legal cultures, and should be
well resourced and serviced. I agree with those who see such a body as
an interim step towards an eventual UN Court of Human Rights. Obviously, such reforms can be brought about only by way of treaty
amendment. Lack of political will, rather than the complex or timeconsuming nature of the amendment process, has stifled debate on this
possibility.197 As pressure increases to rationalise the complaints procedures, more states may come round to accepting that fundamental reform of the system is the best long-term solution to the problems of an
increased workload in the face of limited resources.
There is still the question whether any of these bodies should have
an investigative function. This form of fact-finding may either be reserved for exceptional cases, and be undertaken by the complaints body,
or may be entrusted to bodies better equipped to undertake investigations, such as the Charter-based Special Rapporteurs. The latter option
would require the improved integration of the activities of the complaints body and the special mechanisms. Although the need for an inquiry may arise from the submission of numerous complaints against
one state, for example, there is good reason to doubt whether a quasi or
fully legal body dedicated to considering complaints is best suited to
undertake general, urgent or preventive investigative missions. A consolidated fully-fledged quasi-judicial body or court can never replace
the resolution of deeply embedded conflicts about structure, or in situations of total breakdown of government authority. One may pose the
question: would a finding by a UN Human Rights Court have made a
difference to the genocide in Rwanda? Although one may argue that a
finding that the government itself is involved in genocide would not
have undone that government’s actions or swayed it, such a finding
197
See the report by P. Alston, “Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights”, Doc. A/44/668 of 8 November 1989,
paras 193 – 197.
100
Max Planck UNYB 8 (2004)
could have served as a factual basis for a clearer obligation of the international community to intervene, rather than to confess in retrospect.
Perhaps the best solution would then be to establish three dedicated
bodies, one to examine state reports, one to consider communications,
and one to undertake on-site missions especially in matters of great urgency, but also as a supplement to the mandate of the complaints body.
The creation of the third body will recognise the central role of and the
deficiencies in the present system of fact-finding by UN human rights
complaints bodies.
Access to Medication as a Human Right
Holger P. Hestermeyer
“Healing is a matter of time, but it is sometimes also a matter of
opportunity.”
(Hippocrates, Precepts, Chapter 1)
102
I.
Max Planck UNYB 8 (2004)
Background
1. International Human Rights
2. Health and Human Rights
II. The Interpretation of Human Rights Conventions
III. Justiciability
1. Terminology
2. Economic, Social and Cultural Rights as Justiciable Rights
IV. Conventions
1. ICESCR
a. Access to Medication in the Right to Health
aa. Content of the Right
bb. Duties imposed on State Parties
aaa.
Obligation to Respect
bbb. Obligation to Protect
ccc.
Obligation to Fulfill
ddd. Obligation to Cooperate
eee.
Justifying Non-Compliance
2. The WHO
a. WHO Constitution
3. ICCPR
a. Content of the Right
b. Duties imposed on State Parties
4. Universal Declaration of Human Rights
5. Other Agreements
V.
General International Law
1. Customary International Law
a. Treaties and Customary International Law
b. State Practice
c. Opinio Iuris
2. General Principles
VI. Conclusion
Hestermeyer, Access to Medication as a Human Right
103
When in 1981 several unusually aggressive cases of Karposi’s sarcoma, a
rare skin-disease, were identified in young gay men in New York1 no
one was in a position to know that this was but the beginning of what
would develop into a pandemic of biblical proportions: HIV/AIDS.
We have all heard the numbers: 37.8 million people have been infected with HIV, 2.9 million have died of AIDS, in Botswana 37.3 per
cent of the adult population is infected.2 They defy the imagination.
Currently available antiretroviral medication cannot heal patients, but it
prolongs their life significantly and improves their quality of life.3
However, only 1 per cent of the people who need AIDS medication in
southern Africa actually have access to it.4 This raises the question
whether and to what extent access to medication is guaranteed by current international human rights law. The importance of the question is
highlighted by the debate on international patent law and access to
medication.5 NGOs,6 scholars,7 the WHO,8 the U.N. General Assem-
1
2
3
4
5
6
7
K.B. Hymes et al., “Kaposi’s sarcoma in homosexual men: A report of
eight cases”, Lancet 2 (1981), 598.
UNAIDS (ed.), 2004 Report on the Global AIDS Epidemic. 4th Global Report, 2004, 190 et seq.
DHHS/ H.J. Kaiser Family Foundation (eds), Guidelines for the Use of
Antiretroviral Agents in HIV-Infected Adults and Adolescents, 4 February
2002, 13.
A.C. D’Adesky, Moving Mountains. The Race to Treat Global AIDS, 2004,
11.
This paper, too, is inspired by a Ph.D. thesis on the issue of patents and access to medication.
Most relevant are the lobbying work of Médecins Sans Frontières’ Access
to Essential Medicines Campaign (MSF, Access News, February 2002); Oxfam International’s Cut the Cost Campaign (Oxfam, TRIPS and Public
Health. The next battle), Oxfam Briefing Paper 15, 2002; CPTech’s Health
Care and Intellectual Property Campaign (CPTech, Health Care and Intellectual Property, at <http://www.cptech.org/ip/health> (last visited 20
January 2004); other very active NGOs in the area include Health Action
International, Act Up, Treatment Action Campaign, HealthGAP; N. Geffen, “Pharmaceutical Patents, Human Rights and the HIV/AIDS Epidemic”, TAC Discussion Document (2001).
See only W.P. Nagan, “International Intellectual Property, Access to Health
Care, and Human Rights: South Africa v. United States”, Fla. J. Int’l L. 14
(2002), 255 et seq.; S. Ghosh, “Pills, Patents, and Power: State Creation of
Gray Markets as a Limit on Patent Rights”, Florida Law Review 53 (2001),
789 et seq.
104
Max Planck UNYB 8 (2004)
bly,9 the Commission on Human Rights,10 the Sub-Commission on the
Promotion and Protection of Human Rights,11 the Committee on Eco-
8
9
10
11
Intellectual Property Rights, Innovation and Public Health, WHA Res.
56.27 (28 May 2003) (initiating the establishment of a body to study intellectual property rights and their effect on public health); Ensuring Accessibility of Essential Medicines, WHA Res. 55.14 (18 May 2002); World
Health Organization, “Globalization, TRIPS and Access to Pharmaceuticals”, WHO Policy Perspectives on Medicines, No. 3 (March 2001); World
Health Organization, Network for Monitoring the Impact of Globalization
and TRIPS on Access to Medicines. Meeting Report, 19-21 February 2001
Chulalongkorn University Bangkok, Thailand, 2002, 20 et seq.
See Access to Medication in the Context of Pandemics such as HIV/AIDS,
Tuberculosis and Malaria, A/RES/58/179 of 22 December 2003; The Right
of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/RES/58/173 of 22 December 2003.
The Commission on Human Rights is a subsidiary organ of ECOSOC
(Article 68 U.N. Charter) established in 1946 by an ECOSOC Resolution,
E/RES/5 (I) of 16 February 1946; E/RES/9 (II) of 21 June 1946. It is active
e.g. in the area of standard-setting for human rights, cf. E. Riedel, in: B.
Simma et al. (eds), The Charter of the United Nations. A Commentary.
Volume II, 2nd edition 2002, Article 68 sidenote 84 et seq., R.K.M. Smith,
Textbook on International Human Rights, 2003, 61 et seq.; Access to Medication in the Context of Pandemics such as HIV/AIDS, Commission on
Human Rights Res. 2002/32, para. 7 (22 April 2002), less obvious: Access to
Medication in the Context of Pandemics such as HIV/AIDS, Commission
on Human Rights Res. 2001/33, para. 3 b (23 April 2001); Access to Medication in the Context of Pandemics such as HIV/AIDS, Tuberculosis and
Malaria, Commission on Human Rights Res. 2003/29, para. 5 b (22 April
2003); Access to Medication in the Context of Pandemics such as
HIV/AIDS, Tuberculosis and Malaria, Commission on Human Rights Res.
2004/26, paras. 6 b, 7, 11 (16 April 2004); The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,
Commission on Human Rights Res. 2004/27, chapeau (16 April 2004).
The Sub-Commission was set up in 1946 as the Sub-Commission on Prevention of Discrimination and Protection of Minorities, as SubCommission of the Commission on Human Rights, see E/RES/9 (II), see
note 10, paras 9 et seq. It was renamed in 1999 by ECOSOC Decision
1999/256. It is mostly charged with undertaking studies and making recommendations to the Commission, see Smith, see note 10, 63. Intellectual
Property and Human Rights, Sub-Commission on Human Rights Res.
2001/21 (16 August 2001); Intellectual Property and Human Rights, SubCommission on Human Rights Res. 2000/7 (17 August 2000).
Hestermeyer, Access to Medication as a Human Right
105
nomic, Social and Cultural Rights,12 the U.N. High Commissioner for
Human Rights13 and the Special Rapporteurs on Globalization14 have
all alleged that the TRIPS Agreement imposing patent legislation on all
World Trade Organization Member States touches on human rights
standards that guarantee the accessibility of medication by enabling
pharmaceutical companies to demand higher prices – and thus hamper
access to the medication.
This article will first provide a background note on international
human rights law in general and health as a human right in particular
(I.), as well as on the interpretation of human rights conventions (II.).
We will find that access to medication is closely connected to the notion
of economic, social and cultural rights. Some authors argue that this
category of human rights is of doubtful legal relevance at best, an objection we will treat under the heading of “justiciability” (III.). Finally we
will discuss the right to access to medication in detail, proceeding in the
order of the sources recognized by international law as stated in Article
38 of the Statute of ICJ,15 international conventions, customary international law and general principles of law (IV.-V.). The analyses of the
right to access to medication that have been conducted so far often determine the content and scope of the right and then point to several
12
13
14
15
Although charged with monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR) the Committee was not set up
by the ICESCR itself, but in 1985 by E/RES/1985/17 of 28 May 1985 to
help ECOSOC in its monitoring task; Smith, see note 10, 69 et seq. Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights. Follow-up to the day of general discussion on article 15.1 (c), Monday, 26 November 2001. Human
Rights and Intellectual Property. Statement by the Committee on Economic
Social and Cultural Rights, Doc. E/C.12/2001/15 (14 December 2001).
The office of the High Commissioner was created in 1993 by a General Assembly Resolution: High Commissioner for the Promotion and Protection
of All Human Rights, A/RES/48/141 of 20 December 1993. The High
Commissioner has the primary responsibility for the United Nations human rights activities under the direction of the Secretary-General of the
United Nations, Smith, see note 10, 63 et seq. Economic, Social and Cultural Rights. The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights. Report of the High Commissioner, Doc. E/CN.4/Sub.2/2001/13 (27 June 2001).
J. Oloka-Onyango/ D. Udagama, Economic Social and Cultural Rights.
Globalization and its Impact on the Full Enjoyment of Human Rights,
Doc. E/CN.4/Sub.2/2001/10, paras. 19-34 (2 August 2001).
UNYB 55 (2001), 1449.
Max Planck UNYB 8 (2004)
106
treaties as its sources. Not all states, however, have signed all of the
treaties scholars have used as a basis for the right. The scope of the obligation incurred by State Parties to only some of the treaties differs from
the obligations undertaken by State Parties to other or all treaties. We
shall therefore determine the scope of the obligations imposed by each
of the legal sources separately. Equally relevant is the question whether
access to medication is guaranteed under general international law.
I. Background
1. International Human Rights
Originally public international law was conceived as the body of law
regulating the relationship between states. As Oppenheim wrote in his
seminal treatise on International Law in 1912: “Subjects of the rights
and duties arising from the Law of Nations are States solely and exclusively.”16 International law did provide rules for the treatment of foreigners (the “law of aliens”), but it was the home countries of the foreigners and not the individuals themselves that could appeal to these
rules.17 Treatment of individuals by their own home state was regarded
as an internal matter of that state. But little18 presaged the sweeping
16
17
18
L. Oppenheim, International Law. A Treatise. Vol. I. Peace, 2nd edition
1912, 19; D. Anzilotti, Corso di Diritto Internazionale (Ad uso degli studenti dell’Università di Roma), Volume Primo: Introduzione – Teorie Generali, 3rd edition 1928, 112 et seq. (somewhat critical, though not from a
human rights standpoint, but because of empirical observations); J. Delbrück/ R. Wolfrum, Völkerrecht. Begründet von Georg Dahm. Band I/1
Die Grundlagen. Die Völkerrechtssubjekte, 2nd edition 1989, 125.
L. Henkin, The Age of Rights, 1990, 14; K. Ipsen, in: K. Ipsen (ed.), Völkerrecht, 4th edition 1999, 704 et seq. In-depth: J. Delbrück/ R. Wolfrum,
Völkerrecht. Begründet von Georg Dahm. Band I/2 Der Staat und andere
Völkerrechtssubjekte; Räume unter internationaler Verwaltung, 2nd edition
2002, 104 et seq.; K. Doehring, Völkerrecht, 2nd edition 2004, 374 et seq.;
A. Bleckmann, Völkerrecht, 281 et seq. (2001). The law of aliens does not
just prohibit the discrimination of foreigners – as many developing countries argued under the Calvo Doctrine, but also establishes minimum standards for their treatment. F.V. García-Amador, “Calvo Doctrine, Calvo
Clause”, in: R. Bernhardt (ed.), EPIL Volume I, 1992, 521.
Commonly named progenitors of international human rights law (besides
the law of aliens) include the doctrine of humanitarian intervention, inter-
Hestermeyer, Access to Medication as a Human Right
107
change that international law would undergo after World War II – a
truly ‘constitutional moment’.19 After the genocidal rule of the Nazi regime international law could no longer stand idly by when a state
abused and killed its own citizens. Protecting the individual from its
own government by granting rights to individuals became a moral imperative.20 International law had come to see the person behind the
state.21
President Roosevelt set the stage for the development of modern
human rights law when he called for a world founded upon four essential human freedoms, among them both civil and political freedoms and
“freedom from want.”22 The U.N. Conference on International Organizations made good that promise by including several references to
19
20
21
22
national humanitarian law, documents banning slave trade, and the protection of minority rights within the League of Nations system. T. Buergenthal, International Human Rights in a Nutshell, 2nd edition 1995, 3 et seq.;
Smith, see note 10, 7 et seq.; A. Verdross/ B. Simma, Universelles Völkerrecht. Theorie und Praxis, 3rd edition 1984, 797; I. Brownlie, Principles of
Public International Law, 5th edition 1998, 558.
The term, constitutional moment, is closely tied to Ackerman’s writing, B.
Ackerman, We the People. 1st Foundations, 1991, 266 et seq. Here it is
meant to imply that the historical crisis led to a radical change in the structure of international law.
An excellent discussion of this issue is H. Lauterpacht, International Law
and Human Rights, 1950, 3 et seq. (linking rights and duties of individuals);
The International Military Tribunal explicitly rejected the argument that
international law is concerned only with actions of sovereign states: International Military Tribunal, Trial of The Major War Criminals Before the
International Military Tribunal. Nuremberg 14 November 1945 – 1 October 1946. Volume XII. Proceedings 27 August 1946 – 1 October 1946, 1948,
465 et seq.; For earlier precedence see Jurisdiction of the Courts of Danzig,
PCIJ Ser. B, No. 15, 17 et seq. (Judgment of 3 March 1928) .
For a clear and outright rejection of the traditional tenet that only states are
subjects of international law see H. Kelsen, Principles of International Law,
1952, 114 et seq.; Contra: A. Verdross, Völkerrecht, 2nd edition 1950, 101
et seq. Thoroughly: Delbrück/ Wolfrum, see note 17, 259 et seq.
Buergenthal, see note 18, 21 et seq.; A.N. Holcombe, Human Rights in the
Modern World, 1948, 4. Already as a Democratic presidential candidate
campaigning at a time of economic crisis Roosevelt had stated that “[e]very
man has a right to life, and this means that he also has a right to make a
comfortable living.” M. Gilbert, History of the Twentieth Century, 2001,
212.
108
Max Planck UNYB 8 (2004)
human rights in the Charter of the U.N.,23 though falling short of including a declaration of human rights.24 Besides being mentioned in the
preamble of the U.N. Charter the promotion of human rights is one of
the purposes of the organization, as stated by Article 1 (3) U.N. Charter which reads in the relevant part:
“[The Purposes of the United Nations are:] To achieve international
co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms
for all (...).”
To achieve this purposes both the U.N. (Article 55 U.N. Charter)
and its members (Article 56 U.N. Charter) commit themselves to promote higher living standards, solutions of international economic, social
and health problems and universal respect for, and observance of, human rights. Even though states are obliged to promote rather than to
abide by human rights, U.N. involvement in human rights law became
a success story – partly because it succeeded in internationalizing human rights concerns and partly because it provided a forum for further
developments.25 The U.N. Charter endows both the General Assembly26 and ECOSOC27 with competencies in the human rights field. Additionally, ECOSOC is required to set up commissions in economic
and social fields and for the promotion of human rights.28 It was the
Commission on Human Rights that prepared the Universal Declaration
of Human Rights (UDHR), which was adopted by the U.N. General
Assembly in 194829 as a description of the “common standard of
achievement” in the human rights field. As a General Assembly Resolu23
24
25
26
27
28
29
Hereinafter U.N. Charter.
Proposals for such a declaration had been made by the Netherlands (in case
an alternative proposal fails), Panama, Cuba (proposing to bind Member
States to a General Assembly Resolution in the Charter). United States
Department of State, The United Nations Conference on International Organization. San Francisco, California April 25 to June 26, 1945. Selected
Documents, 1946, 97, 103 et seq.
R. Wolfrum, “The Progressive Development of Human Rights: A Critical
Appraisal of Recent UN Efforts”, in: J. Jekewitz et al. (eds), Des Menschen
Recht zwischen Freiheit und Verantwortung, Festschrift für Karl Josef
Partsch zum 75. Geburtstag, 1989, 67 et seq.
Article 13 (1) (b) U.N. Charter.
Article 62 U.N. Charter.
Article 68 U.N. Charter.
A/RES/217A (III) of 10 December 1948.
Hestermeyer, Access to Medication as a Human Right
109
tion the UDHR was not binding.30 The U.N. continued to strive for a
legally binding document on human rights, but the road towards this
goal proved cumbersome. It had become commonplace to distinguish
two categories of rights: civil and political rights, the heritage of the
French Revolution and the U.S. Bill of Rights, protect the individual
from undue interference from the state. Economic, social and cultural
rights, stemming from socialist ideas born during the Industrial Revolution, require states to promote the economic, social and cultural wellbeing of the individual.31 At times the former rights are referred to as
“first generation rights”, whereas the latter are called “second generation rights.”32 The discussions exposed an ideological rift. Socialist
countries saw both categories on an equal footing – if they preferred
any category it was the economic and social rights as they were seen as
a prerequisite for the exercise of civil and political rights. They therefore wanted both categories to be included in a comprehensive human
rights document.33 Western liberal democracies gave clear preference to
30
31
32
33
Over time, however, it achieved a significant legal status as discussed below.
A. Eide et al. (eds), The Universal Declaration of Human Rights: A Commentary, 1992.
For this distinction see T.C. Van Boven, “Les Critères de Distinction des
Droits de l’Homme”, in: K. Vasak (ed.), Les Dimensions Internationales des
Droits de l’Homme, 1978, 45, 53. It is submitted that the two categories
cannot be neatly distinguished, nor can they be properly defined, as it is
unclear whether the definition of the categories hinges on the subject matter of the right as implied by their names or on the distinction between
positive and negative duties. See also M.C.R. Craven, The International
Covenant on Economic, Social, and Cultural Rights. A Perspective on its
Development, 1995, 7 et seq.; A. Eide/ A. Rosas, “Economic, Social and
Cultural Rights: A Universal Challenge”, in: A. Eide/ C. Krause/ A. Rosas
(eds), Economic, Social and Cultural Rights. A Textbook, 2nd edition 2001,
3 et seq.
This terminology appears e.g. in K. Drzewicki, “The Right to Work and
Rights in Work”, in: Eide /Krause/ Rosas, see note 31, 223, 227; M.
Nowak, “The Right to Education”, in: Eide/ Krause/ Rosas, ibid., 245, 252
et seq.; K. Hailbronner, “Der Staat und der Einzelne als Völkerrechtssubjekte”, in: W. Graf Vitzthum (ed.), Völkerrecht, 2nd edition 2001, 161, 237.
It was criticized forcefully by Eide/ Rosas, see note 31, 4.
Draft International Covenants on Human Rights. Annotation prepared by
the Secretary General, 23 para. 9, Doc. A/2929 (1 July 1955); I. Szabo,
“Fondements historiques et développement des droits de l’homme”, in: K.
Vasak (ed.), Les dimensions internationales des droits de l’homme. Manuel
destiné à l’enseignement des droits de l’homme dans les universités, 1978,
110
Max Planck UNYB 8 (2004)
civil and political rights, arguing that (1.) only those rights were justiciable, (2.) only civil and political rights were immediately applicable,
whereas economic and social rights had to be progressively implemented and (3.) political rights guaranteed freedom from state action
whereas, generally speaking, economic and social rights required states
to take action to protect and promote those rights. Consequently, according to Western countries only two separate instruments could account for the fundamental differences between the two categories.34
The latter position ultimately prevailed and two treaties were drafted:
the International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social, and Cultural Rights
(ICESCR). Despite numerous resolutions, proclamations and declarations affirming that the two sets of rights are indivisible and interdependent,35 symbolized also by them having been opened for signature
simultaneously on 16 December 1966, 36 the distinction between them
endures: economic, social and cultural rights have long been neglected
34
35
36
11, 20 et seq.; P. Daillier/ A. Pellet, Droit International Public. Nguyen
Quoc Dinh, 6th edition, 1999, 641 et seq.
Ibid., K. Arambulo, Strengthening the Supervision of the International
Covenant on Economic, Social and Cultural Rights. Theoretical and Procedural Aspects, 1999, 17; H.J. Steiner/ P. Alston, International Human
Rights in Context. Law, Politics, Morals, 1996, 256. On the Development of
the Covenant on Economic, Social and Cultural Rights in general Craven,
see note 31.
Alternative Approaches and Ways and Means within the United Nations
System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, A/RES/32/130 of 16 December 1977, para. 1 (a); Declaration on the Right to Development, A/RES/41/128 of 4 December 1986;
Question of the Realization in All Countries of the Economic, Social and
Cultural Rights Contained in the UDHR and in the ICESCR, and Study
of Special Problems Which the Developing Countries Face in their Efforts to
Achieve these Human Rights, Commission on Human Rights Res. 2004/29,
para. 8 (19 April 2004); Proclamation of Teheran, Final Act of the International Conference on Human Rights. Teheran, 22 April to 13 May 1968,
Doc. A/CONF.32/41, 3 para. 13, (1968); Vienna Declaration and Program
of Action, Doc. A/CONF.157/23, I para. 5 (12 July 1993); Craven, see note
31, 9.
International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the
International Covenant on Civil and Political Rights, A/RES/2200A (XXI)
of 16 December 1966.
Hestermeyer, Access to Medication as a Human Right
111
and only recently started to attract more interest.37 Since the coming
into force of the two Covenants many new additional human rights instruments have been created, but the UDHR and the two Covenants
remain the centerpiece of universal human rights protection, the “International Bill of Human Rights”, their commitment to which states
have reaffirmed in numerous declarations.38
2. Health and Human Rights
At the beginning of the development of a human rights approach to
health stands the exercise of governmental functions in health care. The
remnants of the ancient Roman sewage system are eloquent testimony
to the fact that governments have striven to improve sanitation and thus
public health since ancient times.39 By the 18th century German monarchs had come to regard the protection of public health as part of their
duty, their task to build a gute policey, a good order.40 Public health became an international concern as international transportation became
more common and knowledge about infectious diseases spread. Several
International Conferences were held in the 19th century to prevent the
spread of alien diseases to Europe and International Sanitary Conven37
38
39
40
Eide/ Rosas, see note 31, 3. On the reasons for the neglect of economic, social and cultural rights see the discussion between van Hoof and Vierdag, F.
van Hoof, “Explanatory Note on the Utrecht Draft Optional Protocol”,
in: F. Coomans/ F. van Hoof (eds), The Right to Complain about Economic, Social and Cultural Rights, 1995, 147, 159; E.W. Vierdag, “Comments on the Utrecht and Committee Draft Optional Protocols”, in: F.
Coomans/ F. van Hoof (eds), The Right to Complain about Economic, Social and Cultural Rights, 1995, 199, 200; B. Simma, “Der Schutz
wirtschaftlicher und sozialer Rechte durch die Vereinten Nationen”, in: S.
Vassilouni (ed.), Aspects of the Protection of Individual and Social Rights,
1995, 75.
Proclamation of Teheran, see note 35, para. 3; Vienna Declaration and Programme of Action, see note 35; Status of the International Covenants on
Human Rights, Commission on Human Rights Res. 2004/69, para. 4 (21
April 2004); Final Act of the Conference on Security and Co-operation in
Europe of 1 August 1975 (Helsinki), ILM 14 (1975), 1292.
B.C.A. Toebes, The Right to Health as a Human Right in International
Law, 1999, 8.
M. Stolleis, Geschichte des öffentlichen Rechts in Deutschland. Erster Band,
Reichspublizistik und Policeywissenschaft 1600-1800, 1988, 345; Toebes, see
note 39, 12 et seq.
112
Max Planck UNYB 8 (2004)
tions were signed for the same purpose.41 In the first half of the 20th
century two international organizations were set up to supervise these
conventions and to fulfill the League of Nations members’ commitment
to “take steps in matters of international concern for the prevention and
control of disease.”42 The concept of a human right to health, however,
has not developed until after World War II, when the World Health
Organization (WHO), a specialized agency of the U.N.,43 replaced the
two old organizations at the helm of global health policy. Going beyond the mere concern for health expressed in the U.N. Charter,44 the
Constitution of the WHO, which went into force on 7 April 1948,45
became the first international legal document to contain an explicit right
to the “enjoyment of the highest attainable standard of health”, albeit
only in its preamble. Health was defined as “a state of complete physical, mental and social well-being.” Despite its potential of exposing
normal states of life, such as sadness after the death of a relative, to
treatment as a disease the new definition became very influential.46 The
right to health was taken up in numerous legal instruments, most significantly in the ICESCR.
II. The Interpretation of Human Rights Conventions
Before we delve into the material legal issues and interpret the Human
Rights Covenants, a few words on the methodology of interpreting the
41
42
43
44
45
46
Toebes, see note 39, 12; H.K. Nielsen, The World Health Organisation.
Implementing the Right to Health, 2nd edition, 2001, 12.
Article 23 (f) of the Covenant of the League of Nations. The two organizations were the Office International d’Hygiène Publique and the Health
Organization of the League of Nations. Nielsen, see note 41, 13.
Article 57 U.N. Charter.
The concern had been included after the Brazilian delegation had submitted
a statement that “[m]edicine is one of the pillars of peace.” Toebes, see note
39, 15.
Nielsen, see note 41, 14 et seq. On the history of the WHO see S. Sze, The
Origins of the World Health Organization. A Personal Memoir 1945-1948,
1982; World Health Organization, The First Ten Years of the World Health
Organization, 1958.
This potential should not be underestimated, given that pharmaceutical
companies have an incentive to market and sell their products to as broad a
customer-base as possible. R. Moynihan/ R. Smith, “Too much medicine?
Almost certainly”, British Medical Journal 324 (2002), 859.
Hestermeyer, Access to Medication as a Human Right
113
Covenants seem warranted. The rules of treaty interpretation are laid
down in articles 31 et seq. of the Vienna Convention on the Law of
Treaties, which are not applicable only for State Parties of this Convention, but for every state, as the rules are deemed to be rules of customary international law.47 According to article 31 (1) of the Convention a
treaty is to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose.” A treaty authenticated in two or
more languages is presumed to have the same meaning in all language
versions.48 Together with the context any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation as well as any relevant rules of international
law applicable in the relations between the parties and any subsequent
agreement between the parties regarding the interpretation of the treaty
or the application of its provision has to be taken into account.49 Article
32 of the Convention permits recourse to supplementary means of interpretation, particularly the travaux préparatoires, only to confirm the
result of an interpretation or to determine the meaning of a norm where
the interpretation leads to an absurd or unreasonable result or leaves the
meaning ambiguous or obscure. Human rights treaties move beyond
the traditional reciprocal international order. Their object and purpose
of establishing universal respect for human rights calls for an interpretation that provides an effective protection of those rights rather than one
following the principle in dubio mitius (choosing the interpretation that
restricts state sovereignty the least).50 Thus a dynamic approach to in-
47
48
49
50
Territorial Dispute (Libyan Arab Jamahiriya/Chad), ICJ Reports 1994, 4 et
seq. (21, 22 para. 41). See A. Aust, Modern Treaty Law and Practice, 2000,
10 et seq., 184 et seq.; Gabč íkovo-Nagymaros Project (Hungary/Slovakia),
ICJ Reports 1997, 3 et seq. (36-38, 62 paras 42-46, 99) (on other provisions
of the Convention). For a thorough examination see A. Watts, “The International Court and the Continuing Customary International Law of Treaties”, in: N. Ando/ E. McWhinney/ R. Wolfrum (eds), Liber Amicorum
Judge Shigeru Oda. Volume I, 2002, 251.
Article 33 (3), (4) Vienna Convention on the Law of Treaties.
Article 31 (3) ibid.
F. Reindel, Auslegung menschenrechtlicher Verträge am Beispiel der
Spruchpraxis des UN-Menschenrechtsausschusses, des Europäischen und des
Interamerikanischen Gerichtshofs für Menschenrechte, 1995, 82, 113, 139 et
seq.; V. Pechota, “The Development of the Covenant on Civil and Political
Rights”, in: L. Henkin (ed.), The International Bill of Rights. The Covenant on Civil and Political Rights, 1981, 32, 69 et seq.; J. Kokott, Beweis-
Max Planck UNYB 8 (2004)
114
terpretation has to be adopted, taking changes in society into account.51
Finally interpretations of other human rights instruments and national
human rights provisions are frequently used as persuasive arguments
for the purposes of interpreting a human rights convention. Human
rights instruments thus cross-fertilize each other.
III. Justiciability
Access to medication, is at its core, about more than a state’s negative
obligation to abstain from interfering with the right. It imposes the obligation to take positive measures to protect and fulfill the right. Some
commentators regard the imposition of positive obligations as a feature
of rights granted in the ICESCR and have argued that the rights in that
Covenant, including the right to health, are not justiciable. The debate
is fraught with misunderstandings stemming from the vagueness of the
concept of “justiciability”52 and from inappropriate analogies to national debates on the question of adopting economic, social and cultural
rights in national constitutions.53
51
52
53
lastverteilung und Prognoseentscheidungen bei der Inanspruchnahme von
Grund- und Menschenrechten, 1993, 408 et seq.; P.M. Dupuy, “L’Unité de
l’Ordre Juridique International. Cours Général de Droit International
Public”, RdC 297 (2002), 9et seq. (31).
R. Bernhardt, “Thoughts on the Interpretation of Human-Rights Treaties”,
in: F. Matscher/ H. Petzold (eds), Protecting Human Rights: The European
Dimension, Studies in honor of Gérard J. Wiarda, 1988, 65 et seq. (69); R.
Bernhardt, “Evolutive Treaty Interpretation, Especially of the European
Convention on Human Rights”, GYIL 42 (1999), 11 et seq. (12); G. Letsas,
“The Truth in Autonomous Concepts: How to Interpret the ECHR”,
EJIL 15 (2004), 279 et seq. (301 et seq.).
Justiciability has rightly been called a “fluid concept”, C. Scott, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights”, Osgoode
Hall Law Journal 27 (1989), 769 et seq. (839); F. Coomans, “Clarifying the
Core Elements of the Right to Education”, in: F. Coomans/ F. van Hoof
(eds), The Right to Complain about Economic, Social and Cultural Rights,
1995, 11 et seq. (19); M. Ssenyonjo, “Justiciability of Economic and Social
Rights in Africa: General Overview, Evaluation and Prospects”, East African Journal of Peace & Human Rights 9 (2003), 1 et seq. (7).
J.P. Müller, “Soziale Grundrechte in der Verfassung?”, Zeitschrift für
Schweizerisches Recht, Neue Folge 92 (1973), 687 et seq.; E. Grisel, “Les
Hestermeyer, Access to Medication as a Human Right
115
1. Terminology
The dictionary defines justiciability as “1. appropriate for or subject to
court trial (...) 2. That can be settled by law or a court of law (...).”54
Some commentators55 apply the term to indicate that the ICESCR,
unlike the ICCPR through its First Optional Protocol,56 is not implemented by way of an individual communication procedure but by a reporting procedure, in which Member States submit reports on their
progress in the implementation of the agreement57 and those reports are
examined by the Committee on Economic, Social and Cultural Rights,
a Committee of 18 independent experts established by ECOSOC for
this purpose, and to report back to ECOSOC.58 Thus there is no judi-
54
55
56
57
58
droits sociaux”, Zeitschrift für Schweizerisches Recht, Neue Folge 92
(1973), 1 et seq.; E.W. Vierdag, “The Legal Nature of the Rights Granted
by the International Covenant on Economic, Social and Cultural Rights”,
NYIL 9 (1978), 69 et seq. (80).
J.P. Picket et al. (eds), The American Heritage Dictionary of the English
Language, 4th edition 2000; R.L. Bledsoe/ B.A. Boczek, The International
Law Dictionary, 1987; G. Evans/ J. Newnham, Dictionary of International
Relations, 1998; Nixon v. United States, 506 U.S. 224 (1993).
Vierdag, see note 53, 73. P. Alston, “Economic and Social Rights”, Studies
in Transnational Legal Policy 26 (1994), 137. See also H. Kelsen, Reine
Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik, 1934, 47
et seq. (stating that a right requires the power of enforcement, if necessary
by a lawsuit).
Article 1 of the Optional Protocol allows individuals claiming a violation
of their rights under the ICCPR to submit written communications to the
Human Rights Committee.
Article 17 et seq. ICESCR.
E/RES/1985/17, see note 12. On the enforcement mechanism see B. Simma/ S. Bennigsen, “Wirtschaftliche, soziale und kulturelle Rechte im Völkerrecht”, in: J.F. Baur/ K.J. Hopt/ K.P. Mailänder (eds), Festschrift für
Ernst Steindorff zum 70. Geburtstag am 13. März 1990, 1990, 1477 et seq.
(1492 et seq.); B. Simma, “The Implementation of the International Covenant on Economic, Social and Cultural Rights”, in: F. Matscher (ed.), Die
Durchsetzung wirtschaftlicher und sozialer Grundrechte, 1991, 75; E. Riedel, “New Bearings to the State Reporting Procedure: Practical Ways to
Operationalize Economic, Social and Cultural Rights – The Example of the
Right to Health -”, in: S. von Schorlemer (ed.), Praxishandbuch UNO. Die
Vereinten Nationen im Lichte globaler Herausforderungen, 2003, 345. Efforts to introduce an individual communication procedure are being undertaken, but have not succeeded so far. The Committee itself started contemplating the adoption of an optional protocol in its fifth session. The idea
116
Max Planck UNYB 8 (2004)
cial enforcement mechanism, but rather a procedure occasionally described as a “constructive dialogue.”59 This observation is certainly
true. In fact, automatic court enforcement of rules is the exception
rather than the rule in all public international law.60
Others, however, assert that economic, social and cultural rights are
inherently different from civil and political rights and not amenable to
application by judicial bodies at all.61 The distinction between this and
59
60
61
was taken up in reports by Türk and Alston (D. Türk, The Realization of
Economic, Social and Cultural Rights, Doc. E/CN.4/Sub.2/1992/16, para.
210 (1992); P. Alston, Draft Optional Protocol Providing for the Consideration of Communications, Doc. E/C.12/1994/12 (1994)) and encouraged by
the Vienna Declaration and Programme of Action, see note 35, Part II,
para. 75. The Committee finally submitted a draft to the Commission on
Human Rights: Draft Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights. Annex, Doc. E/CN.4/1997/105
(1997). See K. Arambulo, “Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal
Become Reality”, University of California, Davis Journal of International
Law and Policy 2 (1996), 111 et seq.; Alternative suggestions include e.g. a
proposal to merge human rights treaty bodies – R. Wolfrum, “International
Convention on the Elimination of All Forms of Racial Discrimination”, in:
E. Klein (ed.), The Monitoring System of Human Rights Treaty Obligations, 1998, 49 et seq. (69).
Simma, see note 37, 82; E. Riedel, “Verhandlungslösungen im Rahmen des
Sozialpakts der Vereinten Nationen”, Arbeitspapiere – Mannheimer Zentrum für Europäische Sozialforschung Nr. 28 (2000).
On the different notions of justiciability M.K. Addo, “Justiciability Reexamined”, in: R. Beddard/ D.M. Hill (eds), Economic, Social and Cultural
Rights. Progress and Achievement, 1992, 93 et seq. (96). The question
whether international law itself is law need not be discussed here, e.g. Kelsen, see note 21, 18 et seq., especially viii.
Note that others regard them as imposing obligations on states, but not as
creating rights. These obligations are sometimes called programmatic.
Vierdag, see note 53, 83, 95; M. Bothe, “Les concepts fondamentaux du
droit à la santé: Le point de vue juridique”, in: R.J. Dupuy (ed.), Le droit à
la santé en tant que droit de l’homme. The Right to Health as a Human
Right, RdC 1978 Colloque, 1979, 14 et seq. (21); R.J. Dupuy (ed.), “Résumé des débats – Summing up”, in: Dupuy, ibid., 124 et seq. (130 et seq.).
Minow argues that the individualism of rights rhetoric is unhelpful for allocating resources; nevertheless she sees the value of using a rights rhetoric.
Harvard Law School Human Rights Program (ed.), Economic and Social
Rights and the Right to Health. An Interdisciplinary Discussion Held at
Harvard Law School in September, 1993, 1995, 3.
Hestermeyer, Access to Medication as a Human Right
117
the former notion of “justiciable” might seem contrived to a national
lawyer, but in international law the notion of legal rights that exist, but
are not enforceable in judicial proceedings is rather common.62 It is this
challenge we need to discuss.
2. Economic, Social and Cultural Rights as Justiciable Rights
Traditionally the main distinction between civil and political and economic, social and cultural rights has been seen in that the former protect individuals from government interference by granting them a right
to demand abstention from the state (negative right). Implementing this
pledge of abstention does not require the state to commit financial resources. In contrast the latter category of rights demands action on the
part of the state (positive rights) and thus also the committal of resources.63 From these budgetary implications many authors have inferred the non-justiciable character of economic, social and cultural
rights. At the most radical it is alleged that because of their limited resources states are simply unable to fulfill economic, social and cultural
62
63
Support for the position that this is also true for individual rights can be
found in the LaGrand Case (Germany/United States of America), ICJ Reports 2001, 466 et seq. (494, para. 77, 515, para 128) (concerning the rights
of the individual under article 36 para. 1 of the Vienna Convention on
Consular Relations, which can only be enforced by the home state as the
enforcement procedure of the optional protocol is only available to the
state); note Separate Opinion of Vice-President Shi (finding the view that
article 36 para. 1 creates individual rights for the detained person in addition to the rights of the sending state at least questionable); the court affirmed its finding in the Case Concerning Avena and other Mexican Nationals (Mexico/United States of America), ICJ Reports (31 March 2004)
(para. 61, 153), again note the Declaration of President Shi. K. OellersFrahm, “Die Entscheidung des IGH im Fall LaGrand – Eine Stärkung der
internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht”, EuGRZ 2001, 265 et seq. (267 et seq.).
M. Bossuyt, “La Distinction Juridique entre les Droits Civils et Politiques
et les Droits Économiques, Sociaux et Culturels”, Revue des Droits de
l’Homme/ Human Rights Journal (1975), 783, 788, 790, 796; T. Tomandl,
Der Einbau sozialer Grundrechte in das positive Recht, 1967, 6; M. Scalabrino-Spadea, “Le Droit à la Santé. Inventaire de Normes et Principes de
Droit International”, in: Institut International d’Études des Droits de
l’Homme (ed.), Le Médecin face aux Droits de l’Homme, 1990, 95.
118
Max Planck UNYB 8 (2004)
rights.64 Invoking the old Roman maxim that impossibilium nulla obligatio est65 – there is no duty to do the impossible – it is argued that
these rights cannot be legal in character, but merely “utopian”66 or
“moral.”67 A less radical proposition is that the budgetary implications
of economic, social and cultural rights makes them mere relative rights,
as opposed to the absolute civil and political rights rooted in human
dignity.68 Whereas the content of the latter is fixed, and they are immediately applicable, the content of the former varies according to a state’s
financial resources and they are to be implemented progressively only.69
Progressive implementation, however, implies that some parts of the
rights are implemented before others, requiring a state to choose which
parts to implement first and which groups obtain benefits before others.
These choices are not necessary in the domain of civil and political
rights as those have to be applied to everybody immediately.70 Not only
does the necessity of choices allegedly demonstrate that the rights are
too vague to be enforced in court,71 courts are also ill-equipped (and
lack the legitimacy) to take the necessary decisions on the priorities in
64
65
66
67
68
69
70
71
M. Cranston, What are Human Rights?, 1973, 66; C. Tomuschat, “International Standards and Cultural Diversity”, Bulletin of Human Rights. Special Issue. Human Rights Day 1985, 24, 4; Vierdag, see note 53, 93; C. Tomuschat, “Die Bundesrepublik Deutschland und die Menschenrechtspakte der
Vereinten Nationen”, Vereinte Nationen 26 (1978), 1 et seq. (2); J. Isensee,
“Verfassung ohne soziale Grundrechte. Ein Wesenszug des Grundgesetzes”, Der Staat 19 (1980), 367 et seq. (376 et seq.).
Dig. 50, 17, 185 (Celsus), printed in: P. Krueger/ T. Mommsen (eds), Corpus Iuris Civilis. Volumen Primum. Institutiones Digesta, 7th edition 1895,
873.
Cranston, see note 64, 68.
Harvard Law School Human Rights Program, see note 61, 1 (question
asked by Henry Steiner).
Bossuyt, see note 63, 790 et seq.; Vierdag, see note 53, 82.
Article 2 (1) ICESCR.
Bossuyt, see note 63, 791 et seq.; Vierdag, see note 53, 82.
Vierdag, see note 53, 93 et seq. S. B. Shah, “Illuminating the Possible in the
Developing World: Guaranteeing the Human Right to Health in India”,
Vand. J. Transnat. L. 32 (1999), 435 et seq. (446 et seq.). Roth has pointed
out that effective advocacy in this area requires a clear identification of violation, violator and remedy and goes on to show the difficulties involved in
this identification, albeit he considers the rights as binding. K. Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an
International Human Rights Organization”, HRQ 26 (2004), 63 et seq. (68
et seq.).
Hestermeyer, Access to Medication as a Human Right
119
the implementation of the rights.72 Additionally, given how allencompassing these “programmatic”73 rights are, court enforcement of
them would deal a death-blow to the separation of powers.74 These decisions should be left to the discretion of the administration.
This traditional distinction between civil and political rights on the
one hand and economic, social and cultural rights on the other cannot
be maintained. Not only does it fly in the face of numerous documents
claiming the indivisibility and interdependence of all human rights,75
but the conceptual distinction between the rights itself is hard to maintain. The dichotomy of negative and positive state obligations cannot
serve as its basis, as nowadays civil and political rights contained in
most of the relevant documents, such as the ICCPR,76 the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR)77 and many national constitutions, 78 have been rec72
73
74
75
76
77
78
Bossuyt, see note 63, 793 et seq. (806). Note that Bossuyt advocates a regional system with enforceable minimum standards.
See General Debate on the Draft International Covenant on Human
Rights and Measures of Implementation, GAOR, 6th Sess., 3rd Committee,
368th Mtg. (13 December 1951), 127, Doc. A/C.3/SR.368, para. 20 et seq.
(1951); Brownlie, see note 18, 576. Note that the notion of programmatic
(“programme rights”) implies a state obligation to establish a program for
taking measures, but not an enforceable right. Vierdag, see note 53, 83.
Vierdag, ibid., 92 et seq.
See note 35. For a thorough discussion of the notion of indivisibility see I.
E. Koch, “Social Rights as Components in the Civil Right to Personal Liberty: Another Step Forward in the Integrated Human Rights Approach?”,
NQHR 20 (2002), 29 et seq.
Human Rights Committee, General Comment 31 [80] (2004), paras 6, 8;
replacing Human Rights Committee, General Comment 3/13 (1981), para.
1. See e.g. Dimitry L. Gridin v. Russian Federation, Communication No.
770, Doc. CCPR/C/69/D/770/1997, para. 8.2 (2000) (holding that the failure by a trial court to control the hostile atmosphere and pressure created
by the public in the court room making it impossible for defense counsel to
properly cross-examine and present a defense constitutes a violation of the
right to a fair trial).
European Court of Human Rights, Marckx v. Belgium, 31 Eur. Ct. H. R.
(Ser. A), 15 (13 June 1979); European Court of Human Rights, Airey v. Ireland, 32 Eur. Ct. H. R. (Ser. A), 14 et seq. (9 October 1979); C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, 2003, 284 et seq.
A notable exception is the United States Constitution, D.P. Currie, “Positive und negative Grundrechte”, Archiv des öffentlichen Rechts 111 (1986),
120
Max Planck UNYB 8 (2004)
ognized to contain a positive component. Conversely, economic, social
and cultural rights include a negative component, requiring state abstention, e.g. the right to education79 includes the freedom to teach and
to establish schools and not just the duty of the state to establish
schools.80 As Eide has stated, all human rights analytically entail an obligation to respect, protect and fulfill the right,81 albeit the center of
gravity might be on a different obligation for each right. Neither can
the budgetary implications of economic, social and cultural rights serve
as a distinguishing factor. Some of the most classic civil and political
rights require state expenditure, e.g. periodic elections.82
Given that the premise is faulty, it is unconvincing to argue that
economic, social and cultural rights are impossible to fulfill. At times
such an argument seems to draw on the wording of the rights such as
“the right to health.” The establishment of such a right would, of
course, be absurd, as no one can provide good health where nature and
human frailty take their toll. But the term “right to health” is a misnomer as the right is actually a right to health care. It is conceded that even
immediate full realization of a right to health care or of the right to
food and other such rights is impossible. Human misery cannot be
ended in a day. If the ICESCR imposed such an obligation it would
have to be read as merely hortatory even though it is contained in a
binding international treaty.83 But the Covenant does not demand the
immediate full implementation of its rights and instead commits State
Parties:
“to take steps, individually and through international assistance and
co-operation, especially economic and technical, to the maximum of
[their] available resources, with a view to achieving progressively the
full realization of the rights recognized in the present Convention
79
80
81
82
83
230 et seq. (238, 249 et seq.); T. Giegerich, Privatwirkung der Grundrechte
in den USA, 1992, 46 et seq.
Arts 13 et seq. ICESCR
Vierdag, see note 53, 86.
A. Eide, The New International Economic Order and the Promotion of
Human Rights. Report on the Right to Adequate Food as a Human Right,
Doc. E/CN.4/Sub.2/1987/23, paras 66 et seq., 115 (1987); Koch, see note
75, 32.
Vierdag, see note 53, 82; Koch, see note 75, 32.
P. Weil, “Towards Relative Normativity in International Law”, AJIL 77
(1983), 413 et seq.
Hestermeyer, Access to Medication as a Human Right
121
by all appropriate means, including particularly the adoption of legislative measures.”84
This provision shows convincingly that the Covenant is not utopian
– it does not demand the immediate full realization of the rights of the
ICESCR.85
The argument that the ICESCR fails to be justiciable because of the
intricacies involved in the progressive implementation is somewhat
more convincing, but it, too, ultimately fails. The notion of progressive
realization of rights does not imply that there are no immediate state
obligations.86 The Covenant itself clarifies that State Parties undertake
“to take steps” towards the realization of the rights.87 This obligation is,
according to a good faith interpretation of its wording in light of the
objective of achieving the rights in the ICESCR,88 an obligation to take
concrete steps in a reasonable time, as well as a duty to use reasonable
care in trying to achieve the goals.89 The interpretation is affirmed by
the even stronger Spanish and French wording of the obligation (adoptar medidas, agir). The Committee for Economic, Social and Cultural
Rights in its General Comment No. 3 adopted a similar interpretation
and states that the Covenant imposes various obligations with immediate effect, in particular the undertaking to take steps and the duty of
non-discrimination.90 General Comments are non-binding interpretations adopted to assist states in their interpretation of the Covenant. In
drafting them the Committee draws on its expert knowledge of state
practice in the application of the Covenant.91 Secondly, to state that the
84
85
86
87
88
89
90
91
Article 2 (1) ICESCR.
Simma/ Bennigsen, see note 58, 1488 (arguing that the ICESCR is justiciable, but does not grant individual rights).
Simma, see note 37, 78 et seq.
Article 2 (1) ICESCR.
Article 31 (1) Vienna Convention on the Law of Treaties.
Simma, see note 37, 80.
Committee on Economic, Social and Cultural Rights, General Comment
No. 3 (1990), para. 1 et seq.
Rule 65, Rules of Procedure of the Committee on Economic, Social and
Cultural Rights. Provisional Rules of Procedure Adopted by the Committee at its third session (1989), as amended 1993, Compilation of Rules of
Procedure Adopted by Human Rights Treaty Bodies, Doc.
HRI/GEN/3/Rev. 1 (28 April 2003). Note that some authors claim that
General Comments are (binding) authoritative interpretations. However
there is little to support such a claim. D. Weissbrodt/ K. Schoff, “The Sub-
122
Max Planck UNYB 8 (2004)
obligations imposed by the ICESCR are too vague to be justiciable
overlooks that vague legal obligations are rather common. Some of the
civil and political rights, too, are formulated in a very imprecise manner,92 not to mention that international and national judicial bodies are
regularly called upon to apply such notions as “good faith”. Courts enjoy much leeway in the interpretation of vague terms, which gives credence to the claim, however doubtful it may be under international law,
that economic, social and cultural rights might violate the separation of
powers, particularly as their decisions will have a stark impact on the
budget. The argument was before the Constitutional Court of South
Africa in Certification of the Constitution of the Republic of South Africa. The Court dismissed it, arguing that the budget is often also implicated in civil and political rights and the tasks conferred on the courts in
the area of socio-economic rights is not different enough from the normal tasks of a court to warrant a different treatment of the rights.93
Courts should, of course, tread carefully in these waters, but in other
areas of the law, too, courts have properly recognized that political organs are better situated to analyze and weigh the facts involved and thus
they grant deference to those bodies. A correct interpretation of economic, social and cultural rights will give some deference to the executive and the legislature.94 The Constitutional Court of South Africa acknowledged this in Minister of Health et al. v. Treatment Action Campaign et al., in which the court had to address the scope of the socioeconomic obligations under the South African Constitution:
“Courts are ill-suited to adjudicate upon issues where court orders
could have multiple social and economic consequences for the
community. The Constitution contemplates rather a restrained and
focused role for the courts, namely, to require the state to take
92
93
94
Commission’s Initiative on Human Rights and Intellectual Property”,
NQHR 22 (2004), 181 et seq. (183).
Addo, see note 60, 101 (noting article 11, 16 ICCPR).
Certification of the Constitution of the Republic of South Africa, 1996 (4)
SA 744 (CC); 1996 (10) BCLR 1253 (CC) para. 77 et seq. (6 September
1996).
Government of the Republic of South Africa and Others v. Grootboom and
Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC), para. 32 (4 October 2000) (rejecting the notion of minimum core obligations in the South
African context with the argument that the court does not possess the information necessary to determine such obligations).
Hestermeyer, Access to Medication as a Human Right
123
measures to meet its constitutional obligations and to subject the
reasonableness of these measures to evaluation.”95
An entirely different attack on economic, social and cultural rights,
which must be seen in the context of the Cold War, purports that these
rights are inferior to civil and political rights96 and the attempt to endow them with human rights status would result in weakening traditional human rights.97 The attempt to illustrate this argument by examples (“the right to life is more important than a right to holidays with
pay”)98 shows its fallacy, as such a comparison can cut both ways: a person who is denied her right to food or health will care very little for her
freedom to express herself in artwork. The juxtaposition merely illustrates the indivisibility of human rights: only where basic needs are met
and basic freedoms granted simultaneously can a human being live in
dignity.
Arguably, much of the opposition to justiciable economic, social and
cultural rights can be explained with the justified fear that socialist
countries would abuse those rights to deflect criticism from their human rights violations by pointing to their guarantee of a workplace, inconceivable in a market economy.99 With the end of the Cold War,
however, this fear is no longer warranted. As states have ratified the
ICESCR, a binding international treaty, they are bound by its rules.100
Any argument that these rights are not of a legal nature has to overcome the simple truism that a legally binding document is legally binding. We thus conclude that the rights contained in the ICESCR are justiciable. This position has recently been confirmed by the ICJ in its Advisory Opinion on the Legal Consequences of the Construction of a
95
96
97
98
99
100
Minister of Health et al. v. Treatment Action Campaign et al. 2002 (5) SA
721 (CC); 2002 (10 BCLR 1033 (CC) para. 38 (5 July 2002).
Bossuyt explicitly rejects the thought that civil and political rights might be
more important. Bossuyt, see note 63, 805.
Cranston, see note 64, 68. The supposed danger of economic, social and
cultural rights being used to justify violations of civil and political rights
has been stressed by the US State Department – D. P. Forsythe, “Socioeconomic Human Rights: The United Nations, the United States, and Beyond”, HRQ 4 (1982), 433 et seq. (436); Harvard Law School Human
Rights Program, see note 61, 1 et seq.
Cranston, see note 64, 71.
Vierdag, see note 53, 85.
G.J.H. van Hoof, “The Legal Nature of Economic, Social and Cultural
Rights: a Rebuttal of Some Traditional Views”, in: P. Alston/ K. Tomaševski (eds), The Right to Food, 1984, 97 et seq. (101).
124
Max Planck UNYB 8 (2004)
Wall in the Occupied Palestinian Territory. It ruled that the ICESCR
was applicable and relevant in assessing the legality of the measures
taken by Israel and found possible violations of arts 6, 7, 10, 11, 12, 13
and 14 ICESCR, notably including the right to health.101 Equally the
African Commission on Human and Peoples’ Rights has applied social
and economic rights granted under the Banjul Charter.102 Thus in Social
and Economic Rights Action Centre and the Centre for Economic and
Social Rights v. Nigeria it found that Nigeria had violated the right to
health and the right to a clean environment by not requiring environmental impact studies prior to allowing an oil consortium to exploit oil
reserves in Ogoniland and by not monitoring the project.103 Several
other regional and universal human rights treaties allow complaints for
a violation of (at least some) economic, social and cultural rights104 and
many national courts have either applied those rights or extended civil
and political rights to include economic, social and cultural issues.105
The crux of economic, social and cultural rights is in determining their
content,106 or in the words of the Constitutional Court of South Africa:
101
102
103
104
105
106
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (9 July 2004) (paras. 112, 130).
The Charter allows for individual communications to the African Commission on Human and Peoples’ Rights. The system will be completed by an
African Court on Human and Peoples’ Rights, a key organ of the African
Union: Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights,
OAU/LEG/EXP/AFCHPR/PROT (III) (1998) (entry into force 25 January 2004). On the African Union cf. H.P. Hestermeyer, African Union replaces Organization of African Unity, German Law Journal 3 (2002), 8 et
seq.
Social and Economic Rights Action Centre and the Centre for Economic
and Social Rights v. Nigeria, Communication No. 155/1996,
ACHPR/COMM/A044/1, para. 53 et seq. (27 May 2002).
E.g. a protocol to the European Social Charter establishes a collective complaints system, R.R. Churchill/ U. Khaliq, “The Collective Complaints
System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?”, EJIL 15 (2004),
417 et seq. (421) (also for further examples).
See the cases mentioned below.
Committee on Economic, Social and Cultural Rights, General Comment
No. 14 (2000), para. 1; Toebes, see note 39, 170; P. Rott, Patentrecht und
Sozialpolitik unter dem TRIPS-Abkommen, 2002, 94.
Hestermeyer, Access to Medication as a Human Right
125
“The question is (...) not whether socio-economic rights are justiciable
under our Constitution, but how to enforce them in a given case.”107
IV. Conventions
We now turn to the protection of access to medication under international law. The sources of international law are habitually enumerated
along the lines of Article 38 of the ICJ Statute. Article 38 (1) (a) of the
Statute lists as the first source of law “international conventions,
whether general or particular, establishing rules expressly recognized by
the contesting states.”
1. ICESCR
With 149 State Parties as of June 2004 the ICESCR is the most widely
adopted convention on economic, social and cultural rights. Nevertheless adherence is not universal: both the United States of America and
South Africa have not ratified the Covenant, although they are signatories.
a. Access to Medication in the Right to Health
Access to medication is protected by the ICESCR as an integral part of
the right to health contained in article 12 ICESCR, which reads:
“(1) The States Parties to the present Covenant recognize the right
of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
(2) The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those
necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
107
Government of the Republic of South Africa and Others v. Grootboom and
Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para. 20 (4 October 2000).
Max Planck UNYB 8 (2004)
126
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical
service and medical attention in the event of sickness.”
The duties that the Covenant imposes on State Parties are put down
in article 2 (1) ICESCR:
“Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization
of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.”
Finally article 4 ICESCR provides that:
“... in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such
rights only to such limitations as are determined by law only in so
far as this may be compatible with the nature of these rights and
solely for the purpose of promoting the general welfare in a democratic society.”
It is appropriate to follow the structure of the Covenant and discuss
the scope of the right as it relates to access to medication first, bearing
in mind that it shall be realized progressively, and to then turn to the
obligations imposed on State Parties.
aa. Content of the Right
In recent years the right to health has gone through a remarkable development. Although it contains a non-exclusive list of steps to be taken
by State Parties in article 12 (2) ICESCR108 its scope originally seemed
too large and vague to enable the right to have a major impact. However state practice has since clarified the content of the right. Drawing
on this state practice109 the Committee on Economic, Social and Cultural Rights drafted General Comment No. 14 on the right to health
108
109
Toebes, see note 39, 293; General Comment No. 14, see note 106, para. 7.
“[B]ased on the Committee’s experience in examining State parties’ reports
over many years”. General Comment No. 14, see note 106.
Hestermeyer, Access to Medication as a Human Right
127
which has had a significant impact on the further development of the
right.110
The wording of the right as the “right to the highest attainable standard of physical and mental health” is extraordinarily broad, whether
health is defined as the absence of disease or – following the definition
of the WHO as “a state of complete physical, mental and social wellbeing (...).”111 However the wording does not go so far as to grant a
(purely utopian) right to be healthy.112 Only the highest “attainable”
standard of health, or as the equally authentic French version puts it
more clearly, the “meilleur état de santé (...) qu’elle soit capable
d’atteindre” is protected – the highest standard that a person can reach
according to its biological preconditions.113 The wording indicates that
the right is inclusive, extending to the socio-economic factors underlying a healthy life, such as food and housing just as it does to health
care.114 Evidently the right to health can also touch on the right to
life.115 Steps to be taken by State Parties to achieve the right to health
110
111
112
113
114
115
General Comment No. 14, ibid., para. 6.
J. Montgomery, “Recognising a Right to Health”, in: R. Beddard/ D.M.
Hill (eds), Economic, Social and Cultural Rights. Progress and Achievement, 1992, 184, 186 et seq. For the discussion in the drafting process see
H.D. Roscam Abbing, International Organizations in Europe and the
Right to Health Care, 1979, 70 et seq.
General Comment No. 14, see note 106, para. 8.
There has been some debate as to whether “attainable” refers to the available resources of the state. Toebes, see note 39, 45 et seq. General Comment No. 14, see note 106, para. 9 opines that “attainable” includes both
limitations. Given the clear wording of the French version the better view
is that the limitation to state resources is introduced by article 2 ICESCR.
In practice the debate is insignificant as both limitations are indubitably
imposed by the Covenant.
The interpretation is confirmed by the drafting history. General Comment
No. 14, see note 106, para. 4. P. Hunt, Economic, Social and Cultural
Rights. The Right of Everyone to the Enjoyment of the Highest Attainable
Standards of Physical and Mental Health. Report of the Special Rapporteur,
Paul Hunt, Submitted in Accordance with Commission Resolution 2002/31,
Doc. E/CN.4/2003/58, para. 23 (13 February 2003). See also A.R. Chapman, “Monitoring Women’s Right to Health under the International
Covenant on Economic, Social and Cultural Rights”, American University
Law Review 44 (1994-1995), 1157 et seq. (1166).
This relationship is stressed in the jurisprudence of the Corte
Constitucional of Colombia that holds economic, social and cultural rights
only enforceable where they are connected to rights such as the right to life
128
Max Planck UNYB 8 (2004)
include those necessary for “the prevention, treatment and control of
epidemic, endemic, occupational and other diseases” and for “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
In early medical science drugs played only a marginal role in the
treatment of diseases. Nowadays, however, prevention, treatment and
control of most diseases rely on medication as an integral, vital, indispensable part of the therapy. Treatment of serious infections without
antibiotics, of fungal infections without antifungal agents and increasingly, of viral infections without antiviral agents is unthinkable – it
would constitute malpractice.116 Thus access to medication is certainly
necessary for the prevention and treatment of most diseases as well as
the control of communicable diseases. Medical service and medical attention in the event of sickness equally necessitate the provision of
drugs.117 They are now an integral part in enabling individuals to reach
their “highest attainable” standard of health and thus of the right to
health, as affirmed in numerous resolutions.118 The provision of medication, of course, has to be part of the provision of general health services and health facilities.
The fact that access to medication is part of the right to health under
the South African Constitution has been recognized by the Constitutional Court of South Africa in Minister of Health v. Treatment Action
116
117
118
or the unviolability of the body: “Los derechos económicos, sociales o
culturales se tornan en fundamentales cuando su desconocimiento pone en
peligro derechos de rango fundamental o genera la violación de éstos,
conformándose una unidad que reclama protección íntegra, pues las
circunstancias fácticas impiden que se separen ámbitos de protección.”
Corte Constitucional de Colombia, Alejandro Moreno Alvarez v.
Ministerio de Salud, SU.819/99 (1999), see also Corte Constitucional de
Colombia, Alonso Muñoz Ceballos v. Instituto de los Seguros Sociales, T484-92 (1992).
J. Drews (transl. D. Kramer), In Quest of Tomorrow’s Medicines. An Eminent Scientist talks about the Pharmaceutical Industry, Biotechnology, and
the Future of Drug Research, 1999, 3 et seq.
General Comment No. 14, see note 106, 17.
See only Declaration of Commitment on HIV/AIDS, A/RES/S-26/2 of 27
June 2001, para. 15; Access to Medication in the Context of Pandemics such
as HIV/AIDS, Tuberculosis and Malaria, Commission on Human Rights
Res. 2004/26, para. 1 (16 April 2004); Access to Medication in the Context
of Pandemics such as HIV/AIDS, Commission on Human Rights Res.
2001/33, para. 1 (23 April 2001).
Hestermeyer, Access to Medication as a Human Right
129
Campaign, in which the court ordered the government to make nevirapine, a drug preventing mother-to-child transmission of HIV, more
widely available.119 The Tribunal Supremo de Jusicia de Venezuela held
the same under the Venezuelan Constitution in Cruz Bermúdez v. Ministerio de Sanidad y Asistencia Social, in which it required the government to provide antiretroviral treatment to all AIDS-infected patients
in Venezuela.120 The Inter-American Commission on Human Rights
has decided to tackle access to medication in Jorge Odir Miranda Cortez v. El Salvador, in which the HIV-positive petitioners allege a violation of the right to health, as the government has not provided them
with the necessary triple therapy. Even though the Commission found
itself not competent ratione materiae to examine a violation of the right
to health, which is contained in article 10 of the Protocol of San Salvador, it decided that it could consider the Protocol in the interpretation
of the provisions of the American Convention on Human Rights and
declared the case admissible for alleged violations of, amongst others,
social and cultural rights under article 26 of the American Convention
on Human Rights.121
Conceptually, access to medication contains four elements, as stated
in General Comment No. 14: (a.) the availability of the medication in
sufficient quantity, (b.) the accessibility of the medication to everybody,
(c.) the acceptability of the treatment with respect to the culture and
ethics of the individual and (d.) an appropriate quality of the medication. Accessibility includes physical accessibility, e.g. the patient cannot
be required to travel long distances, accessibility of information about
the medication, economic accessibility of the medication, and accessibility of the medication without discrimination.122 Economic accessibility
implies that:
119
120
121
122
Minister of Health et al. v. Treatment Action Campaign et al. 2002 (5) SA
721 (CC); 2002 (10 BCLR 1033 (CC) (5 July 2002).
Tribunal Supremo de Justicia de Venezuela, Cruz Bermúdez v. Ministerio
de Sanidad y Asistencia Social, Case No. 15.789, Decision No. 916 (1999).
M.A. Torres, “The Human Right to Health, National Courts, and Access
to HIV/AIDS Treatment: A Case Study from Venezuela”, Chicago Journal
of International Law 3 (2002), 105 et seq.
Jorge Odir Miranda Cortez et al. v. El Salvador, Inter-American Commission on Human Rights Report No. 29/01. Case 12.249, paras 35 et seq., 49
(7 March 2001).
General Comment No. 14, see note 106, para. 12; A.E. Yamin, “Not just a
Tragedy: Access to Medications as a Right under International Law”, B.U.
Int’l L. J. 21 (2003), 325 et seq.
130
Max Planck UNYB 8 (2004)
“health facilities, goods and services must be affordable for all (...)
ensuring that these services, whether privately or publicly provided,
are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.”123
The requirements of an appropriate quality of medications and the
accessibility of the medication can come into conflict. Most countries
require a drug to be approved before it can be brought to the market.
The agency responsible for approving drugs, in the United States the
Food and Drug Administration (FDA), generally requires a showing
that the drug is both safe and effective.124 The trials necessary to support such a finding are lengthy and during this time access to the drugs
is limited – a fact that was highly criticized by AIDS activists during the
early AIDS medication trials.125 Besides the potential for a real conflict
between the two components there is also the danger that safety concerns are abused as an argument to curtail accessibility of drugs (e.g. to
favor the innovative pharmaceutical industry).126
123
124
125
126
General Comment No. 14, see note 106, 12.
For a description of the FDA process see G.M. Levitt/ J.N. Czaban/ A.S.
Paterson, “Human Drug Regulation”, in: D.G. Adams/ R.M. Cooper/ J.S.
Kahan (eds), Fundamentals of Law and Regulation. Volume II. An indepth look at therapeutic products, 1997, 159.
M.M. Dunbar, “Shaking up the Status Quo: How AIDS Activists Have
Challenged Drug Development and Approval Procedures”, Food Drug
Cosmetic Law Journal 46 (1991), 673 et seq.; M.C. Lovell, “Second
Thoughts: Do the FDA’s Responses to a Fatal Drug Trial and the AIDS
Activist Community’s Doubts about Early Access to Drugs Hint at a Shift
in Basic FDA Policy?”, Food and Drug Law Journal 51 (1996), 273 et seq.
The point is illustrated by the discussion about President Bush’s “Emergency Plan for AIDS Relief”, which initially restricted spending to brandname drugs and now establishes an expedited review procedure with the
FDA to approve the badly needed generic fixed-dosed combinations of
anti-retroviral medication. United States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003, Pub. L. 108-25, 117 Stat. 711 (27
May 2003); Office of the United States Global AIDS Coordinator (ed.),
The President’s Emergency Plan for AIDS Relief, U.S. Five-Year Global
HIV/AIDS Strategy, 2004. S. Lueck, “White House Gets Pressure on
AIDS Plan – Activists, Drug Firms Duel Over Use of Funds For Generic
Combination Drugs in Africa”, Wall Street Journal, 25 March 2004; “Botswana Conference Sparks Debate on Generics”, Bridges Weekly Trade Digest, 31 March 2004. S. Lueck, “White House Aims To Answer Critics Of
Hestermeyer, Access to Medication as a Human Right
131
Health as a human right would lose its contours and its purpose if it
protected access to all pharmaceuticals. General Comment No. 14
rightly quotes only “essential drugs” as included within the scope of the
right.127 The WHO maintains a regularly updated list of essential
drugs,128 defined as:
“those that satisfy the priority health care needs of the population.
They are selected with due regard to public health relevance, evidence on efficacy and safety, and comparative cost-effectiveness. (...)
The implementation of the concept of essential medicines is intended to be flexible and adaptable to many different situations; exactly which medicines are regarded as essential remains a national
responsibility.”129
Based on its experience with state practice the Committee on Economic Social and Cultural Rights is of the view that “a minimum core
obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State
party.”130 The concept is of particular significance when it comes to justifying non-compliance with a right with a lack of financial means as we
will see below. The Committee considers the provision of essential
drugs as defined under the WHO Action Program on Essential Drugs
as well as ensuring access to the drugs on a non-discriminatory basis,
especially for vulnerable or marginalized groups as part of these minimum core obligations – as well as the adoption and implementation of a
national public health strategy and plan of action.131 The Constitutional
Court of South Africa declined to follow the concept of a core content,
127
128
129
130
131
Its AIDS Fight”, Wall Street Journal, 29 April 2004. Note that the United
States has not ratified the ICESCR and thus is not bound by it.
General Comment No. 14, see note 106, para. 12 (a), 34 (additionally including contraceptives). Contra Yamin, see note 122, 360.
WHO (ed.), Essential Medicines. WHO Model List, 13th edition 2003.
WHO
(ed.),
Essential
Drugs
and
Medicines
Policy,
at
<http://www.who.int/medicines> (last updated 6 January 2004).
General Comment No. 3, see note 90, para. 10. On the concept see P. Alston, “Out of the Abyss: The Challenges of Confronting the New UN
Committee on Economic, Social and Cultural Rights”, HRQ 9 (1987), 331
et seq. (352 et seq.); E. Örücü, “The Core of Rights and Freedoms: The
Limit of Limits”, in: T. Campbell et al. (eds), Human Rights: From Rhetoric to Reality, 1986, 37, 45 (referring to the German concept of Wesensgehalt).
General Comment No. 14, see note 106, para. 44 (a), (d), (f); Rott, see note
106, 97.
Max Planck UNYB 8 (2004)
132
stating that it simply does not have the data and the experience for determining its scope.132 The situation is different on the international
level, as the Committee profits from its long-standing experience in the
examination of state reports. The concept of core obligations contributes significantly to the clarity of the right to health.
bb. Duties imposed on State Parties
It would be illusory to require states to realize the full extent of the
right immediately. The Covenant regulates state obligations in its article
2 (1).133 These obligations are not modified by article 12 (1) ICESCR,
which provides that State Parties are to “recognize” the right, rather
than stating that “everyone has” the right. Even though the wording
was consciously adopted because it is weaker,134 for all intense and purposes, the difference is naught. “Recognize” is defined as “acknowledge
the existence, validity, character, or claims of.”135 A state that acknowledges the right of everyone to health must guarantee the right.
Even though article 2 (1) ICESCR provides only for “achieving
progressively the full realization of the rights” in the Covenant, the
132
133
134
135
See also Government of the Republic of South Africa and Others v. Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) para.
32 (Judgment of 4 October 2000).
General Comment No. 3, see note 90, para. 9. The duty of progressive realization is at times called an “obligation of result”, requiring states to
bring about a result leaving them the choice of means to be distinguished
from an obligation of conduct, requiring the performance or omission of a
specific determined action. The distinction stems from the International
Law Commission’s work on State Responsibility. R. Ago, Sixth Report on
State Responsibility, ILCYB 1977 (II), 3 et seq. (8 et seq.). The present author agrees with Dupuy’s criticism in P.M. Dupuy, “Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means
and Obligations of Result in Relation to State Responsibility”, EJIL 10
(1999), 371 et seq. (375 et seq.) that the distinction is both confusing and
unnecessary. As it does not add analytical clarity to the study of human
rights the distinction will not be discussed any further. See also P.M. Dupuy, “The Duty to Protect and to Ensure Human Rights under the International Covenant on Civil and Political Rights – Comment on the Paper by
Eckart Klein –”, in: E. Klein (ed.), The Duty to Protect and to Ensure Human Rights. Colloquium Potsdam, 1-3 July 1999, 2000, 321 et seq. (391).
Toebes, see note 39, 293.
Della Thompson (ed.), The Concise Oxford Dictionary of Current English,
9th edition 1995.
Hestermeyer, Access to Medication as a Human Right
133
wording clearly imposes obligations with immediate effect,136 most significantly the obligation to take steps to the maximum of a State Party’s
available resources and, in article 2 (2) ICESCR the principle of nondiscrimination. Read in the light of the purpose of the Covenant, the
full realization of the rights, the “obligation to take steps” means that
State Parties have to establish a reasonable action program towards the
full realization of the rights and to start its implementation within a reasonably short time.137 The action plan has to comply with the principle
of non-discrimination, involve individuals and groups in the decisionmaking, be based on transparency and accountability, establish targets
and time-frames, designate responsible parties and establish recourse
procedures.138 States have to employ all appropriate means to realize
the right, including – but not limited to – legislative measures. The provision leaves the choice of means to the states,139 but shows that the
rights are relevant for all levels of state action, be it the drafting of
health policies, the negotiation of trade agreements, the drafting of a
law on social security or adjudication. Violations can occur through
commission (including the repeal or the adoption of legislation) or
omission (e.g. the failure to adopt a national health policy).140
To describe states’ human rights obligations in more detail it has become habitual to refer to Eide’s typology of obligations: the obligations
to respect, protect and to fulfill the right.141 We will describe these obli136
137
138
139
140
141
International Commission of Jurists et al., The Limburg Principles on the
Implementation of the International Covenant on Economic, Social and
Cultural Rights, Doc. E/CN.4/1987/17, Annex, para. 21 (2-6 June 1986).
General Comment No. 3, see note 90, paras 1, 2. General Comment No.
14, see note 106, para. 30. Simma/ Bennigsen, see note 58, 1489. Drafting
National AIDS programs was an important part of the WHO’s first resolution on AIDS, Global Strategy for the Prevention and Control of AIDS,
WHA Res. 40.26 (5 May 1987); G. Behrman, The Invisible People. How
the U.S. Has Slept through the Global AIDS Pandemic, the Greatest Humanitarian Catstrophe of Our Time, 2004, 44 et seq.
General Comment No. 14, see note 106, paras. 54-56; M. Sepúlveda, The
Nature of the Obligations under the International Covenant on Economic,
Social and Cultural Rights, 2003, 364 et seq.
General Comment No. 3, see note 90, para. 4.
General Comment No. 14, see note 106, para. 48.
Eide, see note 81, paras 66 et seq. Koch, see note 75, 32. General Comment
No. 14, see note 106, para. 33. The African Commission additionally assumes an obligation to promote, see Social and Economic Rights Action
Centre and the Centre for Economic and Social Rights v. Nigeria, see note
Max Planck UNYB 8 (2004)
134
gations and then turn to the question to what extent a State Party can
excuse its poor performance in realizing the right to access to medication by appealing to the limitation of its obligation by the “maximum
of its available resources.”
aaa. Obligation to Respect
The duty to respect obligates a state to refrain from interfering with a
right and to abstain from discriminatory practices.142 In the domain of
access to medication that means that a state has to refrain from denying
or limiting equal access to essential medication.143 The Commission on
Human Rights phrased the duty as one “to refrain from taking measures which would deny or limit equal access for all persons to preventative, curative or palliative pharmaceutical products (...).”144 The danger
of discrimination is particularly high with respect to vulnerable
groups,145 such as prisoners, minorities, asylum seekers, drug users,
women and children. The AIDS epidemic aptly illustrates the danger:
HIV-positive patients in many parts of the world have encountered
stigmatization and discrimination (including quarantine and imprisonment) rather than treatment and help, partly because of the disease’s
early identification with homosexuality and drug use.146 Any discrimination constitutes a violation of the obligation to respect. The duty of
non-discrimination is strengthened by article 2 (2) ICESCR which bans
“discrimination of any kind as to race, colour, sex (...) or other status.”
Besides banning discriminatory practices the obligation to respect
demands abstention from state action that interferes with the right to
health. In the area of access to drugs such actions would include marketing unsafe drugs, limiting access to contraceptives, applying coercive
142
143
144
145
146
103. The different existing typologies have been studied in-depth by
Sepúlveda, see note 138, 157 et seq. The triparte typology was originally
proposed with a different wording by H. Shue, Basic Rights: Subsistence,
Affluence & U.S. Foreign Policy, 1980, 52.
Yamin, see note 122, 352 et seq.
General Comment No. 14, see note 106, para. 34.
Access to Medication in the Context of Pandemics such as HIV/AIDS, Tuberculosis and Malaria, Commission on Human Rights Res. 2004/26, para.
7 (a) (16 April 2004).
The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Commission on Human Rights Res.
2004/27, para. 8 (16 April 2004).
Behrman, see note 137, 32 et seq.
Hestermeyer, Access to Medication as a Human Right
135
treatment or prohibiting traditional medicine.147 State Parties also have
to take the right to access to medication into account when negotiating
treaties.148 Two words of caution must be added concerning traditional
medicine: were the said medicine is actually detrimental to health, a
state may certainly (and has the duty to) take action. Furthermore,
there recently has been an increased awareness of the pharmaceutical
industry’s practice of bioprospecting: learning about medicinal uses of a
plant from the indigenous population, extracting the active ingredient
and patenting it. These patents may not prevent the indigenous population from using their traditional medication. The result can be reached
by not allowing any patent claim that would have this effect, because
the claimed subject matter is not new. Problems arise where countries
do not allow evidence of commonly non-written indigenous practices
both domestic and foreign, to defeat patent claims. Thus in the United
States evidence of foreign use or knowledge of an invention, unlike the
description of the invention in a foreign patent or printed publication,
does not defeat novelty according to 35 U.S.C. § 102 (a), the definition
of “novelty” in the U.S. Patent Act.
It has been argued that the adoption of patent laws leads to higher
prices and thus, too, constitutes a state interference with the right to
health.149 But in the end it is not the state that takes the action that interferes with the economic accessibility of drugs, it is private parties. We
are faced with the question to what extent a state is under a duty to prevent private parties from interfering with access to medication.
bbb. Obligation to Protect
The obligation to protect requires State Parties to prevent third parties
from interfering with the right. General Comment No. 14 states that
this obligation includes:
“inter alia, the duties of States to adopt legislation or to take other
measures ensuring equal access to health care and health-related services provided by third parties; to ensure that privatization of the
health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and ser-
147
148
149
General Comment No. 14, see note 106, para. 34.
General Comment No. 14, see note 106, para. 50.
Yamin, see note 122, 353 et seq.
136
Max Planck UNYB 8 (2004)
vices; to control the marketing of medical equipment and medicines
by third parties (...).”150
With the privatization of the health care sector the duty to protect
plays a key role in the achievement of the right to health. This is all the
more so as international law itself is not directly binding on private parties.151 If anything, the importance of the obligation to protect is even
greater for access to medication, as pharmaceuticals tend to be almost
entirely manufactured and marketed by the private sector. The duty includes taking measures to ensure the safety of the drugs and the correctness of the information provided about the drug by its manufacturer. Given that accessibility and particularly economic accessibility is
part of the right to health, the state is also under an obligation to make
sure that pharmaceutical manufacturers do not limit the accessibility of
essential drugs. This danger is of particular importance where a drug is
patented, as the patent-holder might abuse its rights and engage in excessive pricing. Such excessive pricing raises no issue under the right to
health where states acquire the drugs for the patients or finance a comprehensive health insurance system that provides the drugs to all patients who need them.152 But most countries cannot afford such a policy. They can (and are under an obligation to) make full use of the flexibilities that the TRIPS Agreement provides for, such as imposing compulsory licenses, allowing parallel imports or adopting price controls
such as those in force in many developed countries to guarantee the
150
151
152
General Comment No. 14, see note 106, para. 35. See also B.C. Alexander,
“Lack of Access to HIV/AIDS Drugs in Developing Countries: Is There a
Violation of the International Human Rights (sic) to Health?”, Human
Rights Brief 8 (2001), 12 et seq.
E. Klein, “The Duty to Protect and to Ensure Human Rights Under the
International Covenant on Civil and Political Rights”, in: E. Klein (ed.),
The Duty to Protect and to Ensure Human Rights. Colloquium. Potsdam,
1-3 July 1999, 2000, 296 et seq.; N.S. Rodley, “Can Armed Opposition
Groups Violate Human Rights?”, in: K.E. Mahoney/ P. Mahoney (eds),
Human Rights in the Twenty-first Century. A Global Challenge, 1993, 297;
Human Rights Committee, General Comment No. 31 [80], see note 76,
para. 8. But see J.J. Paust, “Human Rights Responsibilities of Private Corporations”, Vand. J. Transnat’l L. 35 (2002), 801 et seq. (803 et seq.).
Note that even in that situation, though, states will want to intervene for
budgetary reasons.
Hestermeyer, Access to Medication as a Human Right
137
economic accessibility of medication.153 Of similar importance is the
enforcement of laws preventing anti-competitive practices. This is illustrated by a recent case before the South African Competition Commission: the complainants charged GlaxoSmithKline, which markets antiretrovirals such as AZT in South Africa, and Boehringer Ingelheim,
which markets the antiretroviral nevirapine in South Africa, with excessive pricing of antiretrovirals to the detriment of consumers in violation
of the South African Competition Act. Among others, the complainants compared the prices charged by the defendants with the prices of
generics, which are unavailable in South Africa as the defendants’ products are patented. Even after granting a reasonable allowance for research and development and additional profit as an incentive for innovation the complainants considered the prices excessive and an impediment to access to medication.154 The Commission followed that argument and announced:
“Our investigation revealed that each of the firms has refused to license their patents to generic manufacturers in return for a reasonable royalty. We believe that this is feasible and that consumers will
benefit from cheaper generic versions of the drugs concerned.”155
The case was settled with the defendants agreeing to grant voluntary
licenses to other manufacturers.156
153
154
155
156
S. Joseph, “Pharmaceutical Corporations and Access to Drugs: The
“Fourth Wave” of Corporate Human Rights Scrutiny”, HRQ 25 (2003),
425 et seq., 438 et seq.; Yamin, see note 122, 355 et seq.
Competition Commission of South Africa, Hazel Tau et al. v. GlaxoSmithKline, Boehringer Ingelheim et al., Competition Commission, Statement of
Complaint in Terms of Section 49B(2)(b) of the Competition Act 89 of
1998.
Competition Commission, “Competition Commission finds pharmaceutical firms in contravention of the Competition Act, Press Release”, 16 October 2003.
Settlement Agreements with Boehringer Ingelheim and GlaxoSmithKline,
on file with author; on the case see Law and Treatment Access United of
the AIDS Law Project/ Treatment Action Campaign (eds), The Price of
Life. Hazel Tau and Others v. GlaxoSmithKline and Boehringer Ingelheim:
A Report on the Excessive Pricing Complaint to South Africa’s Competition
Commission, 2003.
Max Planck UNYB 8 (2004)
138
ccc. Obligation to Fulfill
The duty to fulfill requires appropriate measures including legislative,
administrative and budgetary to work towards the full realization of the
right.157 The right to health has to be given sufficient recognition in the
national political and legal system and State Parties have to adopt a national health policy. The provision of a public, private or mixed health
insurance system affordable for all is part of the duty, as is the provision
of health information.158 In the area of medication, states have to provide information on available pharmaceutical treatment for diseases
such as HIV/AIDS and they have to adopt a pharmaceutical policy, including a policy on generics.159 But the duty to fulfill demands further
positive measures to be taken, 160 such as assistance for indigents by
providing them with essential medication. Indubitably this obligation
entails severe budgetary implications and will therefore quite often be
limited by budgetary constraints.
ddd. Obligation to Cooperate
Finally, article 2 (1) ICESCR imposes an obligation of international assistance and co-operation on State Parties. The duty to cooperate in the
realization of human rights was established by Articles 1 (3), 55 (b), (c)
and 56 U.N. Charter and later included in the U.N. General Assembly
Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation among States in Accordance with the Charter of the United Nations.161 The importance of the obligation is
157
158
159
160
161
Koch, see note 75, 32; General Comment No. 14, see note 106, para. 33.
General Comment No. 14, see note 106, para. 36.
Yamin, see note 122, 358 et seq.
Koch, see note 75, 32.
A/RES/2625 (XXV) of 24 October 1970; R. Rosenstock, “The Declaration
of Principles of International Law concerning Friendly Relations: A Survey”, AJIL 65 (1971), 713 et seq.; M. Šahović, “Codification des Principes
du Droit International des Relations Amicales et de la Coopération entre
les États”, RdC 137 (1972), 243 et seq.; E. McWhinney, “The Concept of
Co-operation”, in: M. Bedjaoui (ed.), International Law: Achievement and
Prospects, 1991, 425. See also Declaration on the Right to Development,
A/RES/41/128 of 4 December 1986, Doc. A/41/53, article 3 (3), article 4,
article 6 (1); articles 8 et seq. Charter of Economic Rights and Duties of
States, A/RES/3281 (XXIX) of 12 December 1974; C. Tomuschat, “Die
Charta der wirtschaftlichen Rechte und Pflichten der Staaten. Zur Gestal-
Hestermeyer, Access to Medication as a Human Right
139
stressed by the Committee on Economic, Social and Cultural Rights
that regards it as a core obligation of states that are in a position to assist other states.162 The obligation can claim a noble and long line of
heritage. It brings to mind Grotius’ statement about man’s appetitus societatis defying the idea that man only pursues his own good.163 Vattel
famously declared:
“les Nations n’étant pas moins soumises aux lois naturelles que les
particuliers (...), ce qu’un homme doit aux autres hommes, une Nation le doit, à sa manière, aux autres Nations (...). Tel est le fondement de ces devoirs communs, de ces offices d’humanité, auxquels
les Nations sont réciproquement obligées les unes envers les autres.
Ils consistent en général à faire pour la conservation et le bonheur
des autres tout ce qui est en notre pouvoir, autant que cela peut se
concilier avec nos devoirs envers nous-mêmes.”164
For all its long heritage and its firm roots in the highest aspirations
of mankind it meets with considerable skepticism. Its vagueness, the
myriad of ways to feign compliance and the difficulty to enforce the
obligation seem to put cooperation into the realm of wishful thinking.165 Whatever the merits of these doubts are where the question of a
162
163
164
165
tungskraft von Deklarationen der UN-Generalversammlung”, ZaöRV 36
(1976), 445 et seq. (457 et seq.).
General Comment No. 14, see note 106, para. 45; General Comment No. 3,
see note 90, paras 13 et seq.
H. Grotius, De iure belli ac pacis, 1646, prologomena. Pufendorf deduced
duties of men towards other men from common obligations with which
God wanted to join men together, S. von Pufendorf (transl. K. Luig), Über
die Pflicht des Menschen und des Bürgers nach dem Gesetz der Natur, 1994,
Kapitel 6 § 1.
E. de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, Appliquée
à la Conduite et aux Affaires des Nations et des Souverains, 1839, liv. II, § 2.
(as nations are just as much subject to natural law as individuals (...), it
owes, in its own way, to other nations what man owes to other men (...).
That is the foundation of these common duties, of these offices of mankind,
which nations are bound by in reciprocity one towards the others. In generally they consist of doing everything within our power for the conservation of the happiness of others, to the extent that this can be conciliated
with our duties towards ourselves (translation by author)).
B. Graf zu Dohna, Die Grundprinzipien des Völkerrechts über die freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten,
1973, 188 et seq.; G. Arangio-Ruiz, “The Normative Role of the General
Assembly of the United Nations and the Declaration of Principles of Friendly Relations”, RdC 137 (1972), 419 et seq. (573 et seq.); H. Neuhold,
140
Max Planck UNYB 8 (2004)
“general obligation to cooperate” is concerned,166 they are less warranted for a duty to co-operate in reaching a specific goal – in such a
context the obligations imposed take a clearer form.167
Cooperation of states in the achievement of the right to access to
medicine, i.e. states working together towards the realization of the
right whether in an institutional or in a bilateral setting, addresses the
global imbalances in access to medicines that are currently all too obvious.168 Reflecting the typology of human rights obligations, State Parties may not interfere with access to medicine in other states, e.g. they
may not pressure other State Parties to adopt regulations that would
hamper access to medicine. Furthermore, where possible they have to
prevent third parties from violating the right in other states. Finally
they have to help other states fulfill the right depending on the availability of resources.169 It is this last mentioned obligation that is the
most doubtful. Developing countries have attempted repeatedly to construct an obligation to grant development aid, but while there seems to
be an obligation of solidarity going beyond mere token cooperation, it
would be difficult to give a precise definition to its scope:170 is technical
166
167
168
169
170
“Die Pflicht zur Zusammenarbeit zwischen den Staaten: Moralisches Postulat oder völkerrechtliche Norm?”, in: H. Miehsler et al. (eds), Ius
Humanitatis. Festschrift zum 90. Geburtstag von Alfred Verdross, 1980,
575.
For a forceful statement in favor of such a general obligation see P.M. Dupuy, “The Place and Role of Unilateralism in Contemporary International
Law”, EJIL 11 (2000), 19 et seq. (22 et seq.).
J. Delbrück/ R. Wolfrum, Völkerrecht. Begründet von Georg Dahm. Band
I/3 Die Formen des völkerrechtlichen Handelns; Die inhaltliche Ordnung
der internationalen Gemeinschaft, 2nd edition 2002, 851 et seq.
This definition of cooperation is taken from L. Fisler Damrosch, “Obligations of Cooperation in the International Protection of Human Rights”, in:
J. Delbrück (ed.), International Law of Cooperation and State Sovereignty.
Proceedings of an International Symposium of the Kiel Walther-SchückingInstitute of International Law May 23-26, 2001, 2002, 15, 24, who includes
negative cooperation – the withholding of certain benefits from the target
nation – in the concept of cooperation.
General Comment No. 14, see note 106, paras 38 et seq.
Rott, see note 106, 102 et seq.; Declaration on the Right to Development,
A/RES/41/128 of 4 December 1986; Para. IX Declaration of Alma-Ata (12
September 1978), in World Health Organization (ed.), From Alma-Ata to
the year 2000. Reflections at the midpoint, 1988. The idea that in the pursuit
of common goals the rich have to pay more than the poor in many respects
is now rather common, though falling short of being a norm of customary
Hestermeyer, Access to Medication as a Human Right
141
aid sufficient? Or is there a duty to pay development aid? If so, what
amount is necessary? Developed countries insist that development aid is
granted on a purely voluntary basis and it would be unrealistic to assume the contrary.171 Nevertheless in dire emergencies there is at least
some duty to assist: it seems justified to say that developed nations have
failed to comply with this obligation at the beginning of the AIDS pandemic. Even after the domestic response to HIV/AIDS picked up, held
back initially by the stigma attached to the modes of transmission and
the marginalization of the initially most affected groups, the global effort long remained minuscule for a disease that affects 7.5 per cent of all
adults in Sub-Saharan Africa – global AIDS spending was just US $300
million in 1996. Since then it has increased significantly to US $4.7 billion in 2003, which is still less than needed,172 but more than just token
help.
Another route to assist other State Parties with the fulfillment of the
right was opened by a recent WTO decision. It allows WTO members
to grant compulsory licenses for the manufacture and export of patented medication to countries without manufacturing capacities.173 This
171
172
173
international law: C.D. Stone, “Common but Differentiated Responsibilities in International Law”, AJIL 98 (2004), 276 et sq. Note that the European Communities have included human rights as an objective in their developmental policies, see Council Regulation (EC) No. 975/1999 of 29 April
1999 Laying down the Requirements for the Implementation of Development Cooperation Operations which Contribute to the General Objective
of Developing and Consolidating Democracy and the Rule of Law and to
that of Respecting Human Rights and Fundamental Freedoms, Official
Journal EC L 120 (8 May 1999).
F. Menghistu, “The Satisfaction of Survival Requirements”, in: B.G. Ramcharan (ed.), The Right to Life in International Law, 1985, 63, 76; E.U. Petersmann, “Entwicklungsvölkerrecht” “Droit International Du Développement”, “International Economic Development Law”: Mythos oder
Wirklichkeit”, GYIL 17 (1974), 145 et seq. (165 et seq.); D.E. Buckingham,
“A Recipe for Change: Towards an Integrated Approach to Food under International Law”, Pace Int’l L. Rev. 6 (1994), 285 et seq. (301) (concerning
food assistance).
UNAIDS (ed.), 2004 Report on the Global AIDS Epidemic. 4th Global Report, 2004, 131, 191; E. Becker, “Donor Nations Reach Accord for Efficient
Use of AIDS Funds”, N.Y. Times, 26 April 2004.
H.P. Hestermeyer, “Flexible Entscheidungsfindung in der WTO – Die
Rechtsnatur der neuen WTO Beschlüsse über TRIPS und Zugang zu Medikamenten”, Gewerblicher Rechtsschutz und Urheberrecht Int. 2004, 194
et seq.
Max Planck UNYB 8 (2004)
142
enables the latter countries to obtain cheap generics they could not have
obtained otherwise. To implement the new mechanism, states with
manufacturing capacities have to amend their domestic patent legislation. Canada recently became the first country to do so, while India has
introduced a bill for that purpose and the EU is preparing a draft regulation.174 The adoption of such legislation is not just laudable, but a way
to comply with the obligation to co-operate.175
eee. Justifying Non-Compliance
Economic, social and cultural rights often require budgetary measures
by states. But financial resources are limited. The ICESCR takes account of this fact in that states only undertook to take steps towards the
full realization of the rights “to the maximum” of their available resources. Non-compliance with the obligations under the Covenant can
thus be excused by a lack of resources. The Committee has specified
that where states adopt retrogressive measures, i.e. measures reducing
an already achieved standard of protection of the rights, the state carries
the burden of proving that the measures are justified by reference to the
totality of the rights provided for in the Covenant in the context of the
full use of the state party’s maximum available resources.176 A State
Party that does not comply with the core obligations, including access
to essential medicines, is prima facie violating the ICESCR. To justify
174
175
176
An Act to Amend the Patent Act and the Food and Drugs Act (The Jean
Chrétien Pledge to Africa), Statutes of Canada 2004, Chapter 23, Bill C-9
(The Bill received Royal Assent on 14 May 2004 and is not yet in force). §
49 The Patents (Amendment) Bill, 2003 (Bill No. 92 of 2003). The dissolution of the Lok Sabha (the lower house of the Indian Parliament) necessitates the re-introduction of the bill. M. Singh Nair, “India Moving Towards
a TRIPS Compliant Patent Regime – Implications for the Pharmaceutical
Industry”, at <http://www.mondaq.com/i_article.asp_Q_articleid_E_
27499> (28 July 2004); S. Mukherjee, “The Journey of Indian Patent Law
towards TRIPS Compliance”, IIC 2004, 125, 148; European Union (ed.),
Intellectual Property. The WTO Agreement on the Trade Related Aspects of
Intellectual Property Rights (TRIPs), at <http://europa.eu.int/comm/
issues/sectoral/intell_property/memo230604_en.htm> (23 June 2004); L.
Elliott, “Cheap Drugs Law Held up by Lack of Translators”, The Guardian, 28 July 2004; S. Taylor, “Brussels rejects Aids drug claims”, The
Guardian, 30 July 2004.
Yamin, see note 122, 368.
General Comment No. 3, see note 90, para. 9; General Comment No. 14,
see note 106, para. 30.
Hestermeyer, Access to Medication as a Human Right
143
its non-compliance the state must “demonstrate that every effort has
been made to use all resources that are at its disposition in an effort to
satisfy, as a matter of priority, those minimum obligations.” However,
State Parties have to continue to strive to realize the right, monitor their
progress and protect the vulnerable members of society.177 General
Comment No. 14 goes a step further and does not allow a state to justify non-compliance with core obligations at all.178 Sadly, however,
some developing countries lack the resources to even provide a bare
minimum of medical services. Rather than demanding the impossible
the minimum core concept should be understood as requiring a heightened burden of proof that the state has committed all its available resources.179
How states implement access to medicine, e.g. by financing general
health insurance, by providing drugs at the government’s expense in
hospitals or by safeguarding the economic accessibility of the drugs by
preventing excessive pricing, is, as far as the right to health is concerned,
left to their discretion. In providing access to medicine it should be
noted that often states will not be able to plead lack of resources, e.g.
where the medication is made available for free by pharmaceutical companies. Where resources are relevant and the prioritization of resources
is at issue, deference should be given to the decisions of the administration; however, the reasonableness of those decisions should be controlled. Two cases of the Constitutional Court of South Africa properly
demonstrate how such a control can be put into operation.
In 1997 the Constitutional Court had to answer to the request of an
indigent diabetic in an irreversible condition who was ineligible for a
kidney transplant but whose life could be prolonged by regular renal
dialysis. He had been refused access to dialysis because treatment was
reserved to patients whose conditions could be remedied or patients
eligible for a kidney transplant. The Department of Health had already
177
178
179
General Comment No. 3, see note 90, paras 10 et seq.
General Comment No. 14, see note 106, para. 47.
The South African Supreme Court regards the full realization of the core
obligations as impossible, Minister of Health et al. v. Treatment Action
Campaign et al. 2002 (5) SA 721 (CC); 2002 (10 BCLR 1033 (CC) para. 35
(Judgment of 5 July 2002). Note the interpretation in P. Alston/ G. Quinn,
“The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights”, HRQ 9 (1987),
156 et seq. (181) that is somewhat more lenient (entitling a plea to resource
scarcity to some deference, but allowing “some sort of objective scrutiny”).
Max Planck UNYB 8 (2004)
144
overspent its budget and the dialysis machines were stretched beyond
their capacity by handling the patients eligible for treatment according
to the guidelines. Admitting the significant number of people in the
same situation as the diabetic would have made substantial inroads in
the health budget, already burdened by South Africa’s HIV/AIDS crisis, the court upheld the health policies of the state in the name of the
larger needs of society.180
Five years later the court had to examine an aspect of South Africa’s
response to the HIV/AIDS pandemic. The government had restricted
the provision of nevirapine, a drug preventing mother-to-child transmission of HIV, to pilot sites, which could offer additional services such
as substitution of bottle-feeding for breastfeeding at the option of the
mothers. The drug was unavailable for women without access to either
private health care or these public sites, albeit their doctors regarded the
treatment as indicated. The government argued that it wanted to evaluate the safety and efficiency of the drug as well as the provision of formula-feed along with nevirapine. Costs of the drug itself were not an issue as the manufacturer had offered it to the government for free for a
period of five years. It was demonstrated that administering nevirapine
without substituting breast-feeding would save a significant number of
infants, but some infants would acquire HIV through breastmilk. The
court ruled that the reasons given by the government did not justify the
restrictions of the program and that the drug should be available where
there is the capacity to administer it and its use is medically indicated.
The government was ordered to train counselors and extend testing and
counseling facilities to facilitate the use of nevirapine.181
2. The WHO
The WHO is an international organization, a specialized agency of the
United Nations. It formally came into existence in 1948. According to
article 1 of its Constitution WHO’s objective is “the attainment by all
peoples of the highest possible level of health.” Membership is open to
180
181
Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC);
1997 (12) BCLR 1696 (CC) (27 November 1997).
Minister of Health et al. v. Treatment Action Campaign et al. 2002 (5) SA
721 (CC); 2002 (10 BCLR 1033 (CC) (5 July 2002).
Hestermeyer, Access to Medication as a Human Right
145
all states182 and territories not responsible for the conduct of their international relations.183 It currently boasts 192 Member States.
a. WHO Constitution
The WHO Constitution was the first international legal document to
mention the right to health. The preamble states that:
“The enjoyment of the highest attainable standard of health is one of
the fundamental rights of every human being without distinction of
race, religion, political belief, economic or social condition.
The health of all peoples is fundamental to the attainment of peace
and security and is dependent upon the fullest cooperation of individuals and States.
The achievement of any State in the promotion and protection of
health is a value to all.”
The preamble also adopted a new definition of health that went far
beyond the theretofore common understanding that health is the absence of disease:184
“Health is a state of complete physical, mental and social well-being
and not merely the absence of disease or infirmity.”185
It has been alleged that the WHO preamble is one of the sources of
a binding right to health.186 The discussions that promote this idea usually list the sources of the right to health such as the ICESCR and the
WHO preamble and then proceed to discuss its content. This faulty
methodological approach glosses over the differences in the scope of
the rights granted under various instruments. Indeed, the WHO pre-
182
183
184
185
186
Article 3 WHO Constitution.
Article 8 WHO Constitution. Such territories can be admitted as Associate
Members. For details Y. Beigbeder, The World Health Organization, 1998,
31.
M. Vierheilig, Die rechtliche Einordnung der von der Weltgesundheitsorganisation beschlossenen Regulations, 1984, 14.
Preamble WHO Constitution.
Toebes, see note 39, 33 (“The Constitution of the WHO is therefore binding upon States that are a party to the WHO. States parties will accordingly
have to comply with the right to health as set forth in the preamble to the
WHO Constitution.”); Shah, see note 71, 453; A. Gupta, “Patent Rights for
Pharmaceuticals: TRIPS and the Right to Health at Crossroads”,
<http://users.ox.ac.uk/~edip/gupta.pdf> (last visited 31 July 2004).
146
Max Planck UNYB 8 (2004)
amble should not be listed as a source of the right to health at all, as it is
not legally binding. Preambles of international agreements set forth the
motives of the parties as well as the object and purpose of the treaty.
They serve as “context” for the purposes of treaty interpretation187 and
do not create any legal commitment beyond the treaty’s operative
part.188 It is in this context that the WHO Constitution’s right to health
was referred to in the ICJ’s Advisory Opinion on the Legality of the
Use by a State of Nuclear Weapons in Armed Conflict when it interpreted the WHO’s functions in the light of the object and purpose of
the organization and held that its request for an Advisory Opinion was
not within the scope of its activities in accordance with Article 96 (2)
U.N. Charter.189 There is nothing in the operative part of the Constitution that would allow us to infer a right to health under the document.
This limited legal relevance of the preamble’s right to health explains
why it received little attention in the drafting process of the Constitution.190
187
188
189
190
J.A. Corriente Cordoba, Valoración jurídica de los preámbulos de los
tratados internacionales, 1973, 21; A. Maresca, Il diritto dei trattati. La
convenzione codificatrice di Vienna del 23 Maggio 1969, 1971, 355. The ICJ
referred to the preamble for treaty interpretation e.g. in Case concerning
Rights of Nationals of the United States of America in Morocco (France/
United States of America), ICJ Reports 1952, 176 et seq. (196).
H.D. Treviranus, “Preamble”, in: R. Bernhardt (ed.), EPIL Volume III,
1997, 1097, 1098; Daillier/Pellet, see note 33, 131; C. Rousseau, Droit International Public. Tome I: Introduction et Sources, 1970, 87; I. SeidlHohenveldern/ G. Loibl, Das Recht der Internationalen Organisationen
einschließlich der Supranationalen Gemeinschaften, 7th edition 2000, 247;
Aust, see note 47, 336 et seq.; Contra P. You, Le préambule des traités internationaux, 1941, 140 (“un engagement plus ou moins général inséré dans
le préambule reste un engagement”).
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66 et seq. (75, 76 paras 20 et seq.).
The right was not mentioned in any of the four proposals submitted to the
Technical Preparatory Committee, even though, naturally, they stress the
importance of health: Proposals for the Establishment of an International
Health Organization (United Kingdom) E/H/PC/9 (20 March 1946), 1 Official Records of the World Health Organization 42 (1947); Proposals for
the Establishment of an International Health Organization (USA)
E/H/PC/6 (19 March 1946), 1 Official Records of the World Health Organization 46 (1947); Proposal for an International Convention Establishing the International Health Organization (France) E/H/PC/5 (19 March
1946), 1 Official Records of the World Health Organization 49 (1947);
Hestermeyer, Access to Medication as a Human Right
147
Even though it is conceivable that later state practice changes a
treaty – indeed, states are free to modify a treaty in violation of its
amendment procedures if the decision is taken unanimously191 – this
has not taken place. The World Health Assembly, one of the three principal bodies of the WHO192 has adopted numerous resolutions mentioning and reaffirming the right to health, 193 but these resolutions are
191
192
193
Suggestions Relating to the Constitution of an International Health Organization (Yugoslavia) E/H/PC/10 (20 March 1946), 1 Official Records of
the World Health Organization 54 (1947). The right was first included in a
draft preamble by a 4 Member Sub-committee of the Technical Preparatory
Committee: Draft of “Preamble” to the Convention of the World Health
Organization, E/H/PC/W/2 (21 March 1946), 1 Official Records of the
World Health Organization 61 (1947) and became part of the Technical
Preparatory Committee’s proposal after only minor changes. Proposals for
the Constitution of the World Health Organization, 1 Official Records of
the World Health Organization 69 (1947). Neither did the provision elicit
debate during the International Health Conference. Summary Report on
Proceedings Minutes and Final Acts of the International Health Conference, 2 Official Records of the World Health Organization 5 (1948). Abbing, see note 111, 105 (stating that it is realistic to conclude that the objective was to express the need for adequate health measures for a dignified
life).
Seidl-Hohenveldern/ Loibl, see note 188, 234. On an international organization’s power to adopt legal instruments see J. Klabbers, An Introduction
to International Institutional Law, 2002, 197 et seq.; J. Verhoeven, “Les activités normatives et quasi normatives – élaboration, adoption, coordination”, in: R.J. Dupuy (ed.), Manuel sur les organisations internationales,
2nd edition 1998, 413 et seq.; M.D. de Velasco Vallejo, Las Organizaciones
Internacionales, 12th edition 2002, 140 et seq.
Beigbeder, see note 183, 31.
Human Rights, WHA Res. 23.41 (21 May 1970) (reaffirming that the right
to health is a fundamental human right). Note that the resolution merely
requests the Director-General to affirm the WHO’s willingness to draft a
report on the health aspects of human rights and was consented as the item
“Co-ordination with the United Nations, the specialized agencies and the
International Atomic Energy Agency: Programme matters – Human
Rights” (15th Plen. Mtg. Thursday, 21 May 1970, 185 Official Records of
the World Health Organization 241 (1970)); see also Para. I Declaration of
Alma-Ata, see note 170 (the Declaration was adopted by the International
Conference on Primary Health Care, convened by the WHO and UNICEF and attended by country, UN and NGO delegates, Beigbeder, see
note 183, 24).
Max Planck UNYB 8 (2004)
148
not legally binding194 and did not establish a right to health under the
Constitution. Be that as it may, the constant reaffirmation of the right
to health might have contributed to the establishment of the right under
customary international law. We will come back to this question later
on.
3. ICCPR
With an Optional Protocol providing for an individual communication
procedure the ICCPR is one of the more potent human right conventions. By June 2004, it has been ratified by 152 nations. 104 of them are
also parties to the Optional Protocol. However, China has not yet ratified the ICCPR, although it has signed it.
Article 6 (1) ICCPR contains the right to life in the following wording:
“Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.”
The obligations imposed on State Parties are explained in some detail in article 2 of the Covenant:
“(1) Each State Party to the present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex (...).
(2) Where not already provided for by existing legislative or other
measures, each State Party to the present Covenant undertakes to
take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such
194
The WHA can adopt conventions and agreements (article 19 et seq. WHO
Constitution), regulations (article 21 et seq. WHO Constitution) and recommendations (article 23 WHO Constitution). Its resolutions according to
article 23 WHO Constitution are not binding. M. Vierheilig-Langlotz,
“WHO – World Health Organization”, in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice. New, Revised English Edition. Volume 2,
1995, 1425 et seq. (1426 et seq.); Beigbeder, see note 183, 71 et seq. It appears that the WHA has exercised the power to adopt conventions only
once – in case of the WHO Framework Convention on Tobacco Control,
WHO Framework Convention on Tobacco Control, WHA Res. 56.1 (21
May 2003).
Hestermeyer, Access to Medication as a Human Right
149
legislative or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.
(3) Each State Party to the present Covenant undertakes:
a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official capacity;
b) To ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c) To ensure that the competent authorities shall enforce such remedies when granted.”
a. Content of the Right
The right to life, the first substantive right granted by the ICCPR, is the
quintessential fundamental human right, a prerequisite for the enjoyment of all other human rights.195 The right is non-derogable, according
to article 4, i.e. even in times of a public emergency threatening the life
of the nation it may not be derogated from.196 The significance of the
right is also stressed by its wording: it is an “inherent” right, a right that
the individual “has” originating in natural law, not a right that he/she
195
196
Such statements have been made by the Human Rights Committee, General Comment No. 6/16 (27 July 1982), para. 1 as well as during the drafting
of the Covenant (M.J. Bossuyt, Guide to the “Travaux Préparatoires” of
the International Covenant on Civil and Political Rights, 1987, 115) and
later by commentators); Y. Dinstein, “The Right to Life, Physical Integrity
and Liberty”, in: L. Henkin (ed.), The International Bill of Rights. The
Covenant on Civil and Political Rights, 1981, 114; Nowak, see note 151, article 6 sidenote 1; Inter-American Court of Human Rights, Villagrán
Morales v. Guatemala (Caso de los “niños de la Calle”), 1999 Inter-Am. Ct.
H.R. (Ser.C) No. 63, para. 144 (19 November 1999); see also Human Rights
and Scientific and Technological Developments, A/RES/37/189A of 18 December 1982, paras 1, 6; E. Klein, “Bedeutung des Gewohnheitsrechts für
den Menschenrechtsschutz”, in: E. Klein (ed.), Menschenrechtsschutz durch
Gewohnheitsrecht. Kolloquium 26.-28. September 2002 Potsdam, 2003, 11
et seq. (17).
Article 4 (2) ICCPR.
150
Max Planck UNYB 8 (2004)
“shall have.”197 The importance of the right has led many commentators to categorize it as ius cogens,198 a norm accepted and recognized by
the international community of states as a whole, as a norm from which
no derogation is permitted.199
Does the “right to life” include access to medication? According to
the traditional view such a broad reading of the right to life is unjustified, the right is limited to the state killing persons or protecting persons from murder and does not guarantee an appropriate standard of
living, food, housing, or medical care.200 Textually, this view argues either with the last sentence of article 6 (1) ICCPR or with the fact that
article 6 protects the “right to life” and not “life.”201 However such a
distinction between “right to life” and “life” is not only artificial, it also
seems unclear why it should support a limitation of the right. Also
there is no plausible reason why the first sentence of article 6 (1)
ICCPR should not have a broader content than the provision’s last sentence. Even more importantly, there is no reason why a lack of food or
medical services should be less significant for the right to life than insufficient penal laws on murder. To be meaningful, the right to life has
to extend to the basic conditions of life, the components necessary for
survival, even if that part of the right to some extent coexists with economic, social and cultural rights.202 This includes access to life-saving
medication, a narrower scope than access to medication under the right
to health. This broader reading of the right to life has also been adopted
by the Human Rights Committee, which rejected a restrictive interpretation building on its experience in the examination of state reports:
197
198
199
200
201
202
Nowak, see note 151, article 6 sidenote 2.
B.G. Ramcharan, “The Right to Life”, NILR 30 (1983), 297 et seq. (307,
308, 311et seq.); R. Higgins, “Derogations under Human Rights Treaties”,
BYIL 48 (1976-1977), 281 et seq. (282); Report of the Economic and Social
Council. Protection of Human Rights in Chile, Doc. A/37/564, para. 22
(1982).
Article 53 Vienna Convention on the Law of Treaties.
Dinstein, see note 195, 115; F. Przetacznik, “The Right to Life as a Basic
Human Right”, Revue des Droits de l’Homme/Human Rights Journal
1976, 585 et seq. (586 et seq., 603); N. Robinson, The Universal Declaration of Human Rights, 1958, 106 (concerning the UDHR).
For the ECHR: J.E.S. Fawcett, The Application of the European Convention on Human Rights, 2nd edition 1987, 37.
Ramcharan, see note 198, 305 et seq.; Yamin, see note 122, 330 et seq.; B.
Gammie, “Human Rights Implications of the Export of Banned Pesticides”, Seton Hall Law Review 25 (1994), 558 et seq. (585).
Hestermeyer, Access to Medication as a Human Right
151
“it would be desirable for States parties to take all possible measures
to reduce infant mortality and to increase life expectancy, especially
in adopting measures to eliminate malnutrition and epidemics.”203
Our position that access to life-saving medication is part of the right
to life is further supported by a survey of the right to life in other
documents, which confirms a trend towards including basic survival
conditions. Thus, according to a concurring opinion of two judges of
the Inter-American Court of Human Rights the right to life under the
American Convention on Human Rights includes the right to live with
dignity.204 The African Commission on Human and Peoples’ Rights has
adopted a broad interpretation of the right to life in Social and Economic Rights Action Centre and the Centre for Economic and Social
Rights v. Nigeria, citing, amongst others, destruction of farms on which
the survival of the Ogonis depends as well as pollution and environmental degradation to such an extent that it made living in the territory
“a nightmare”, as violations of the right to life.205 The right to life under
the ECHR is worded somewhat more narrowly and has generally been
interpreted accordingly.206 However, the European Commission of
Human Rights explicitly did not rule on the question whether the right
to life includes a positive duty to provide free medical services to indigents,207 and did hold, in the context of a vaccination scheme, that states
have to take appropriate steps to safeguard life.208
203
204
205
206
207
General Comment No. 6/16, see note 195, para. 5.
Inter-American Court of Human Rights, Villagrán Morales v. Guatemala
(Caso de los “niños de la Calle”), 1999 Inter-Am. Ct. H.R. (Ser. C) No. 63,
Voto Concurrente Conjunto de los jueces A. A. Cançado Trindade y A.
Abreu Burelli, para. 4 (19 November 1999). Note that Jose Odir Miranda
v. El Salvador, see note 121, explicitly left the question of the admissibility
with respect to the right to life open and can therefore not be cited in support of the proposition here advanced (thus incorrect Yamin, see note 122,
334).
Social and Economic Rights Action Centre and the Centre for Economic
and Social Rights v. Nigeria, see note 103, para. 67.
C. Grabenwarter, Europäische Menschenrechtskonvention, 2003, 147 et
seq.; P. van Dijk/ G.J.H. van Hoof, Theory and Practice of the European
Convention on Human Rights, 3rd edition 1998, 296 et seq.; T. Opsahl,
“The Right to Life”, in: R.St.J. Macdonald/ F. Matscher/ H. Petzold (eds),
The European System for the Protection of Human Rights, 1993, 207.
European Commission of Human Rights, X v. Ireland, Application No.
6839/74, 7 DR 78, 79 (1976). See also M. O’Boyle, “The development of
152
Max Planck UNYB 8 (2004)
National courts, too, are embracing a broad approach, often explicitly ruling on the question of access to medication. The right to life under the Indian Constitution has been held to include a right to livelihood and a right to live with human dignity. The protection of health
has been adjudged to be among the minimum requirements of the thus
understood right to life.209 Access to life-saving medication is certainly
part of this right. The Sala Constitucional of Costa Rica, reasoning that
the right to life is a right to a dignified life, ruled that health is part of
the right to life and that the state therefore has to provide AIDS medication.210 Other courts have similarly included access to AIDS medication in the right to life.211 Even though the right to life under the German Grundgesetz includes a guarantee of the means for basic subsistence, commentators have doubted whether it grants an individual
claim to medical care.212 However the Bundesverfassungsgericht has
ruled in the context of the AIDS pandemic that the objective content of
the right to life imposes a duty on the state to protect society from the
disease, albeit the court can only rule against the state where it does not
act at all or acts in a manifestly insufficient manner.213 Recently the
court emphasized that the judiciary has to pay due attention to the right
to life when considering whether the state has to pay for the medical
treatment of an individual.214
208
209
210
211
212
213
214
the Right to Life”, in: D.Þ. Björgvinsson et al. (eds), Afmælisrit Þór
Vilhjálmsson. Sjötugur. 9. Júní 2000, 2000, 65.
European Commission of Human Rights, X v. United Kingdom, Application No. 7154/75, 14 DR 31, 32 (1978).
D. De, The Constitution of India. Volume I Articles 1-104, 2002, 805, 842 et
seq., 866 et seq.; Shah, see note 71, 475 et seq.
C. Chinchilla Sandí, “Artículo 21”, in: N. Cheves Aguilar/ C. Araya
Pochet (eds), Constitución Política Comentada de Costa Rica, 2001, 54.
See e.g. Corte Constitucional de Colombia, Juan Guillermo Gómez
Morales v. Ministerio de Salud, T-328/98 (1998).
H.D. Jarass in: H.D. Jarass/ B. Pieroth, Grundgesetz für die
Bundesrepublik Deutschland, 7th edition 2004, Artikel 2 sidenote 69; P.
Kunig, in: I. von Münch/ P. Kunig (eds), Grundgesetz-Kommentar. Band 1
(Präambel bis Artikel 20), 4th edition 1992, Artikel 2 sidenote 60; C. Starck
in: H. v. Mangoldt/ F. Klein/ C. Starck (eds), Das Bonner Grundgesetz.
Kommentar. Band 1: Präambel, Artikel 1 bis 19, 4th edition 1999, Artikel 2
sidenote 192 et seq.
BVerfG Neue Juristische Wochenschrift 1987, 2287.
BVerfG Neue Juristische Wochenschrift 2003, 1236.
Hestermeyer, Access to Medication as a Human Right
153
b. Duties imposed on State Parties
Article 6 (1) ICCPR does not just establish the right to life, it also explicitly demands that the right be protected by law. This takes up and
does not limit215 the obligations in article 2 (1) ICCPR to respect and
ensure the rights in the Covenant. These duties, both of which have
immediate effect for all State Parties,216 include the negative obligation
to refrain from violations of the right as well as the positive duty to take
measures to fulfill the legal obligation and to protect individuals against
violations of the right by the state and by private parties.217 Thus again
we encounter the obligations to respect, protect218 and fulfill. The duty
to protect resonates through the cases of the Human Rights Committee.219 The immediate effect of the obligations was confirmed by the
215
216
217
218
219
At a first glance the wording “protected by law” is more limited than that
of article 2 (2) ICCPR demanding legislative or other measures. However
to read article 6 (1) ICCPR as a restriction of the general obligations would
run counter to the effective protection of human rights. See statement by
Tomuschat in the 443rd Meeting of the Human Rights Committee, Yearbook of the Human Rights Committee 1983-1984. Volume 1, 204, para. 55
(“it was not only for the legislator, but for all State authorities – the executive, the police, the military – actively to protect life”); see also Guillermo
Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato v. Uruguay,
Communication No. 84/1981, Doc. A/38/40 (1983), printed in Yearbook
of the Human Rights Committee 1983-1984, Volume I, 419 et seq. (488).
General Comment No. 31 [80], see note 76, para. 5.
Article 2 (2) ICCPR; General Comment No. 31 [80], see note 76, paras 5 et
seq.
Klein, see note 151, 301 et seq.
W. Delgado Páez v. Colombia, Communication No. 195/1985, in Yearbook
of the Human Rights Committee 1989-1990, Volume II, 396, para. 5.6.
Herrera Rubio v. Colombia, Communication No. 161/1983, in Yearbook
of the Human Rights Committee 1987-1988 Volume II, 430, para. 10.3;
Guillermo Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato v.
Uruguay, Communication No. 84/1981, Doc. A/38/40 (1983), in: Yearbook of the Human Rights Committee 1983-1984, Volume I, 419 et seq.
(488) (stating that the Uruguayan authorities were responsible by act or
omission for not taking adequate measures to protect the life of Hugo
Dermit even though it could not be established whether he committed suicide, was driven to suicide or was killed by others while in custody); Nydia
Bautista de Arellana v. Colombia, Communication No. 563/1993, printed
in GAOR, 51st Sess., Suppl. No. 40, 132, Doc. A/51/40, para. 8.3 (1997).
On the duty to protect see K. Wiesbrock, Internationaler Schutz der Menschenrechte vor Verletzungen durch Private, 1999, 136 et seq.
154
Max Planck UNYB 8 (2004)
Human Rights Committee when it did not accept tense economic circumstances to justify poor prison conditions in violation of the Covenant.220
The State Parties are obligated to create a legal order in which access
to life-saving medication is guaranteed. This includes measures to prevent private parties from hampering access to life-saving medication.221
How access is guaranteed is within the discretion of the state: states
could provide the medication or regulate the private sector in a way
that accessibility of the medication is guaranteed. Developing countries,
however, will have to adopt the latter option as the former is outside
their financial means.
The right to life just like the right to health obliges states to cooperate – an obligation that results from Articles 1 (3), 55 (b), (c) and 56
U.N. Charter and is reiterated in (non-binding) General Assembly
resolutions like the Friendly Relations Declaration. The obligation to
cooperate has already been described with respect to the right to health.
It is worth discussing a further issue, though, that has been raised with
respect to President Bush’s ambitious emergency plan to combat AIDS.
At times developed nations attach conditions to their aid, or threaten
withdrawal of the aid if the recipient does not adopt a certain policy.
Those conditions are problematic where they are not linked to the goal
that the aid itself pursues. The AIDS plan, for example, urges state recipients of HIV/AIDS help not to reject U.S. food assistance with genetically modified food.222 One might argue that where there is no duty
to provide aid at all, a state is free to grant aid on whatever conditions it
wants to impose as the recipient will in any event not be worse off than
without aid. But this assumes that the recipient can freely choose
whether to accept the offer of aid or not. Often this is not the case and
220
221
222
Klein, see note 151, 299.
Menghistu, see note 171, 63 et seq. (arguing that there is no meaningful difference between depriving a person of basic needs and thus killing him or
to execute him wrongfully); Dinstein, see 195, 119 (noting that protection
against interference by individuals has to be provided, but limiting this
duty mostly to prevention of mass murder); L.O. Gostin/ Z. Lazzarini,
Human Rights and Public Health in the AIDS Pandemic, 1997, 12 et seq.
(emphasizing that vaccines and treatment have to be made available to everybody). With far more expansive propositions Ramcharan, see note 198,
302 et seq. However the submissions made by Ramcharan include the ones
made here, ibid., 304.
§ 104 A (g) (1) (C), (2) United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, see note 126.
Hestermeyer, Access to Medication as a Human Right
155
the recipient state will have to accept whatever conditions are attached
to the offer – in such a case the conditions seem to go against the spirit
of cooperation.
4. Universal Declaration of Human Rights
So far we have failed to mention one of the most significant sources of
international human rights law, the UDHR. In fact, it might come as a
surprise that we mention it under the heading of conventions at all. After all, as the reader will remember, it is solely a resolution of the General Assembly of the United Nations – not a treaty. We will ask for
some patience before we solve this puzzle. First the relevant rights contained in the UDHR deserve to be mentioned verbatim:
Article 3
“Everyone has the right to life, liberty and security of person.” (...)
Article 22
“Everyone, as a member of society, has the right to social security
and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” (...)
Article 25
“(1) Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.” (...)
Article 27
“(1) Everyone has the right freely to participate in the cultural life of
the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
As a resolution of the General Assembly of the United Nations the
UDHR is, if we are to take the U.N. Charter seriously, merely a rec-
156
Max Planck UNYB 8 (2004)
ommendation223 and, as such, not binding.224 Nevertheless, most scholars agree that the UDHR has obtained at least some legal effect. Some
authors argue that the UDHR, possibly along with the Covenants and
other human rights instruments, has become part of customary international law225 – an argument we will pursue below. Sohn favors another
highly noteworthy approach. He regards the UDHR and the Covenants as interpretations of the human rights provisions of the U.N.
Charter, i.e. Articles 55 et seq. U.N. Charter. This would put the
UDHR squarely under the heading of treaty law. He refers to state
practice to back up his argument. Not only have states invoked the
UDHR as soon as it was passed, the International Conference on Human Rights at Teheran in 1968 proclaimed the Declaration to constitute
“an obligation for the members of the international community.” Many
later resolutions are based simultaneously on the Charter and the
UDHR.226 The ICJ, too, applied the Charter and the UDHR simultaneously in the United States Diplomatic and Consular Staff in Tehran
Case.227 Were we to follow this argument the UDHR and the Covenants would be binding on all U.N. Member States. But alas, we resist
223
224
225
226
227
Articles 10-14 U.N. Charter.
K. Hailbronner/ E. Klein, in: B. Simma (ed.), The Charter of the United
Nations. A Commentary. Volume I, 2nd edition 2002, Article 10 sidenote,
44 et seq.
M.S. McDougal/ H.D. Lasswell/ L. Chen, Human Rights and World Public
Order. The Basic Policies of an International Law of Human Dignity, 1980,
273 et seq. (274, 325) (concerning the UDHR); K. Oellers-Frahm, “Comment: The erga omnes Applicability of Human Rights”, AVR 30 (1992), 28
et seq. (claiming that most of the treaty based human rights have to be
qualified as customary international law). For a general overview see the
treatment in T. Meron, Human Rights and Humanitarian Norms as Customary Law, 1991, 79 et seq.; A. Bleckmann, “Zur originären Entstehung
gewohnheitsrechtlicher Menschenrechtsnormen”, in: Klein, see note 151,
29; K. Doehring, “Gewohnheitsrechtsbildung aus Menschenrechtsverträgen”, in: Klein, ibid., 84.
L.B. Sohn, “The Human Rights Law of the Charter”, Tex. Int’l L. J. 12
(1977), 129 et seq. (132 et seq.); L.B. Sohn, “The New International Law:
Protection of the Rights of Individuals Rather than States”, American University Law Review 32 (1982-1983) 1 et seq. (16); T. Buergenthal, “International Human Rights Law and Institutions: Accomplishments and Prospects”, Wash. L. Rev. 63 (1988), 1 et seq. (9); Proclamation of Teheran, see
note 35, para. 2.
United States Diplomatic and Consular Staff in Tehran (United States of
America/ Iran), ICJ Reports 1980, 3 et seq. (42 para. 91).
Hestermeyer, Access to Medication as a Human Right
157
the temptation to do so. It is already doubtful whether the mere mention of human rights in the Charter without further ado is a sufficiently
solid ground to accommodate the colorful modern-day crowd of human rights.228 What is more, the General Assembly does not have the
power to make authentic and binding interpretations of the Charter.
Such a power is simply not contained in the Charter – in fact, a Belgian
proposal to incorporate it was explicitly rejected.229
5. Other Agreements
The ICESCR and the ICCPR are not the only conventions that a plea
for a right to access to medication can be based on.230 Article 24 of the
United Nations Convention on the Rights of the Child contains a right
to health for children. Article 25 of the International Labour Organisation Convention No. 169 concerning Indigenous and Tribal Peoples in
Independent Countries231 guarantees the right to health for indigenous
and tribal peoples. Gender-specific health provisions can be found in
the Convention on the Elimination of All Forms of Discrimination
against Women. Race-discrimination in health care is tackled by article
5 (e) (iv) of the International Convention on the Elimination of All
Forms of Racial Discrimination. Furthermore many regional documents protect health and/or life, such as the African Charter on Human
and Peoples’ Rights (Banjul Charter), the ECHR, the European Social
Charter, the Charter of Fundamental Rights of the European Union,
the American Declaration of the Rights and Duties of Man, the Ameri228
229
230
231
B. Simma, “Die Erzeugung ungeschriebenen Völkerrechts: Allgemeine
Verunsicherung – klärende Beiträge Karl Zemaneks”, in: K. Ginther et al.
(eds), Völkerrecht zwischen normativem Anspruch und politischer Realität.
Festschrift für Karl Zemanek zum 65. Geburtstag, 1994, 95 et seq. (108 et
seq.).
Hailbronner/ Klein, see note 224, Artikel 10 sidenote 46.
For a collection of documents see G. Alfredsson/ K. Tomaševski (eds), A
Thematic Guide to Documents on Health and Human Rights. Global and
Regional Standards Adopted by Intergovernmental Organizations, International Non-Governmental Organizations and Professional Associations,
1998; D.P. Fidler, International Law and Public Health: Materials on and
Analysis of Global Health Jurisprudence, 2000.
See A. Mestri, “The Violation of the Human Right to Health as a Factor in
the Zapatista Revolution of Chiapas, México”, Tulsa Journal of Comparative & International Law 10 (2003), 473 et seq. (497 et seq.).
Max Planck UNYB 8 (2004)
158
can Convention on Human Rights, the Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador). As the scope of
protection of all of these instruments is limited either ratione materiae
or ratione loci we will not discuss them in any detail.
V. General International Law
We will now turn our attention to the question of whether access to
medication is also part of general international law, i.e. in the words of
Article 38 (1) (b) and (c) of the Statute of the ICJ “international custom,
as evidence of a general practice accepted as law” and “the general principles of law recognized by civilized nations.” The body of general international law, i.e. customary international law and general principles
of law, binds all states, albeit custom is not binding on a state that persistently objected to a rule.232
1. Customary International Law
For a long time customary international law was perhaps the defining
source of international law.233 One might assume that its old age implies
that the rules pertaining to this area are settled and clear, but nothing
could be further from the truth – if anything the uncertainty about
customary law has recently grown. It does not only involve the obvious
practical questions arising in proving custom, namely that both sides
will use arguments from a large amount of often contradictory state
practice which will always vary to a greater or lesser extent. More worrying is the fact that there is no definite rule of recognition234 for customary international law – generations of scholars have now quarreled
232
233
234
There is an increasing tendency to regard customary international norms as
binding on all states regardless of individual consent. Weil, see note 83, 433
et seq. (criticizing this tendency). Nevertheless the law remains that states
consistently objecting to a rule of customary international law are not
bound by it, Colombian-Peruvian Asylum Case (Colombia/Peru), ICJ Reports 1950, 266 et seq. (277 et seq.); Fisheries Case (United Kingdom/Norway), ICJ Reports 1951, 116 et seq. (131).
Dupuy, see note 50, 157.
H.L.A. Hart, The Concept of Law, 1961, 92 et seq., 228 et seq.
Hestermeyer, Access to Medication as a Human Right
159
about what exactly it takes to form customary international law.235 The
confusion about customary international law led Jennings to quip,
“most of what we perversely persist in calling customary international
law is not only not customary international law: it does not even faintly
resemble a customary law.”236 To make matters worse, norms that fall
short of whatever definition of customary law is adopted are no longer
discarded as non-law. Numerous of the staggering amount of (nonbinding) declarations and resolutions have been seized upon to support
“nascent norms”, “norms in the making”, or political commitments – a
sliding scale of normativity often captured under the heading of “soft
law.”237 It goes without saying that such an unsettled area is a treasure
trove for “creative lawyering” – bending, twisting and tweaking rules
and facts until the outcome suits the taste.238 The charge that the multitude of documents in international relations can support just about any
customary claim, just like the charge that under the Common Law the
rich body of precedent can justify any outcome239 certainly has a grain
of truth to it, but a degree of uncertainty about the precise scope of
rules is a common occurrence in law and state practice does provide at
least some amount of clarity.
As the language of the Statute of the ICJ suggests, customary international law arises where two components are present: an objective
component – state practice – and a subjective one. The subjective element, known as opinio iuris sive necessitatis, requires, in the words of
the ICJ, that the “States concerned must (...) feel that they are conform-
235
236
237
238
239
On customary international law see: Brownlie, see note 18, 4 et seq.; Verdross/ Simma, see note 18, 345 et seq.; P.M. Dupuy, Droit International
Public, 5th edition 2000, 301 et seq.; M. Byers, Custom, Power and the
Power of Rules. International Relations and Customary International Law,
1999.
R.Y. Jennings, “The Identification of International Law”, in: B. Cheng
(ed.), International Law: Teaching and Practice, 1982, 3 et seq. (5) (emphasis in the original).
On this point and the different meanings of soft law see Weil, see note, 83.
M. Koskenniemi, From Apology to Utopia. The Structure of International
Legal Argument, 1989, 363.
Llewellyn analyzed the use of precedent in court decisions and offers a
stinging presentation of almost random use of precedent: K.N. Llewellyn,
The Common Law Tradition. Deciding Appeals, 1960, 62 et seq.; see also
U. Fastenrath, “Relative Normativity in International Law”, EJIL 4 (1993)
305 et seq. (317 et seq.).
160
Max Planck UNYB 8 (2004)
ing to what amounts to a legal obligation”240 and not just following a
tradition or usage.
a. Treaties and Customary International Law
At this point a national lawyer would feel compelled to object. Why are
we even discussing customary law, he might ask, after all human rights
law is now contained in treaties. Do those not “overrule” customary
law or count as lex specialis?241 In the Nicaragua Case the ICJ explicitly
ruled on this question and held that norms of customary international
law and of treaty law have a separate existence, even if they have the
same content and even if they both bind the same state.242 To treat the
two sources separately is more than a mere academic exercise. Even
though the universal human rights treaties have been widely embraced
not all states have ratified them. Customary international law, on the
other hand, binds every state with the exception of “persistent objectors.” Moreover, numerous countries treat customary international law
as the law of the land whereas they require treaty law to be transformed
into national law.243
Notwithstanding their “separate existence” the two sources interact
with each other: customary international law can modify treaty rules244
240
241
242
243
244
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports
1969, 3 et seq. (44 para. 77); see also The Case of the S.S. “Lotus” (French
Republic/Turkish Republic), PCIJ Reports 1927, Ser. A, No. 10 (28).
This is implied by H. Dreier, “Kontexte des Grundgesetzes”, Deutsches
Verwaltungsblatt 1999, 667 et seq. (675); cf. Klein, see note 195, 26 et seq.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua/United States of America), ICJ Reports 1986, 14 et seq. (95 para. 178);
Watts, see note 47, 261. See also United States Diplomatic and Consular
Staff in Tehran (United States of America/Iran), ICJ Reports 1980, 3 et seq.
(30 para. 62); article 43 Vienna Convention on the Law of Treaties.
Meron, see note 225, 3 et seq., 79 et seq.
Case concerning the Temple of Preah Vihear (Cambodia/Thailand), ICJ
Reports 1962, 6 et seq. (33-34) (admitting a later document as an interpretation of an earlier treaty); 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
para. 22) (on the practice of abstention of permanent members in Security
Council voting); Byers, see note 235, 172 et seq.; G.M. Danilenko, Law-
Hestermeyer, Access to Medication as a Human Right
161
and, more significant to our study, a treaty norm can give rise to a norm
of customary international law, which unlike the treaty norm (pacta tertiis) binds states that are not parties to the treaty.245 We will see that
many of the details of this process are still unclear.
b. State Practice
The concept of customary law evokes a practice hardening into law.
While this sociological premise largely holds true for public international law we immediately encounter two problems. The first one concerns the question of what acts of the state are to count as state practice.
Possible answers range from D’Amato’s claim that only acts and not
statements of states can be admitted as practice246 to Akehurst’s assertion that any act or statement by a state from which its view can be inferred counts as state practice247 – including press releases, state legislation, international and national judicial decisions, the practice of international organs, and resolutions of the United Nations General Assembly.248
The second problem is the required duration of the practice. Some
authors require the practice to be of a certain duration, consistency, and
generality.249 This is well in line with common perceptions of custom as
a practice going back to times immemorial. But the exigencies of our
quickly changing times and the frequency of international conferences
at which numerous states can voice their opinions on what the law is,
might well indicate otherwise – particularly as to resolutions and conventions becoming part of customary international law. In the North
Sea Continental Shelf Cases the ICJ stated that:
245
246
247
248
249
Making in the International Community, 1993, 162 et seq. (listing the arguments contra).
Article 38 Vienna Convention on the Law of Treaties; Weil, see note 83, 434
et seq.; Meron, see note 225, 81.
A.A. D’Amato, The Concept of Custom in International Law, 1971, 88;
A.A. D’Amato, Trashing Customary International Law, AJIL 81 (1987),
101 et seq. (102); K. Wolfke, Custom in Present International Law, 2nd edition 1993, 41 et seq. (84).
M. Akehurst, “Custom as a Source of International Law”, BYIL 47 (19741975), 1 et seq.; Case concerning Rights of Nationals of the United States of
America in Morocco, see note 187, 200 (examining diplomatic correspondence as state practice).
Brownlie, see note 18, 5.
Brownlie, see note 18, 5 et seq.; D’Amato, see note 246, 56.
162
Max Planck UNYB 8 (2004)
“it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in
the convention might suffice of itself, provided it included that of
States whose interests were specially affected”
to make a norm-creating conventional rule enter customary international law.250 Cheng, famously, in some circumstances is ready to discard any durational requirement completely and accept the creation of
“instant customary law.”251 The acceptability of such a proposition depends very much on the view of opinio iuris one prefers to adopt. Adherents of a consensual notion of international law that regard custom
as nothing but a tacit sort of treaty will have no problem accepting the
instant meeting of the minds of states, so to speak.
Given the wide range of positions that easily fill numerous shelves,
dressing up a concise argument on state practice with respect to access
to medication seems preposterous. All the more so because human
rights law is quite particular in many respects: no other area is so inextricably linked to morality, no other area can point to so many various
documents affirming, re-affirming and re-reaffirming concepts that
have already been re-affirmed a hundred times over. What is more significant for our legal task is that state practice in international law is
normally found in the international relations of states, but practice in
the area of human rights concerns the treatment by a state of its own
nationals.252 The degree to which morality permeates human rights law
makes Koskenniemi doubt the value of technical legal arguments altogether:
“Some norms seem so basic, so important, that it is more than
slightly artificial to argue that states are legally bound to comply
with them simply because there exists an agreement between them
250
251
252
North Sea Continental Shelf Cases, see note 240, para. 73; South West Africa, Second Phase (Ethiopia/South Africa; Liberia/South Africa), ICJ Reports 1966, 6 et seq. (250, 291) (Dissenting Opinion Judge Tanaka); M.E.
Villiger, Customary International Law and Treaties, 1985, 24.
B. Cheng, “Some Remarks on the Constituent Element(s) of General (or
So-called Customary) International Law”, in: A.Anghie/ G. Sturgess (eds),
Legal Visions of the 21st Century: Essays in Honour of Judge Christopher
Weeramantry, 1998, 377 et seq. (385); B. Cheng, “United Nations Resolutions on Outer Space: “Instant” International Customary Law?”, IJIL 5
(1965), 23 et seq. (35 et seq.).
O. Schachter, “International Law in Theory and Practice. General Course
in Public International Law”, RdC 178 (1982), 9 et seq. (334).
Hestermeyer, Access to Medication as a Human Right
163
to that effect, rather than because (...) noncompliance would shock
... the conscience of mankind and be contrary to elementary considerations of humanity.”253
However appealing this position is, it does little to clarify the scope
of customary human rights law as it fails to answer precisely what
would shock the conscience of mankind. This is not to deny the enormous importance of moral considerations in the area of human rights as
customary law. Indeed – the impact of morality can hardly be overestimated. Whereas in other areas states will be quite willing to reject rules,
in human rights law they tread more carefully, afraid of a backlash in
public opinion, afraid to end up on the morally and ethically wrong
side. Publicly they will almost always deny that they breached their
human rights obligations rather than refuse to accept the rule as such.
But the effect of this is simply that some human rights norms have entered customary international law – we will expand on this when we
talk about the requirement of opinio iuris.
The wide variety of doctrinal positions on customary law allows us
to argue that the whole International Bill of Human Rights (along with
the right to life and the right to health) has become customary international law.254 With respect to state practice two arguments could do that
trick: The first relies on the North Sea Continental Shelf Cases’ passage
we have just quoted. The very widespread and representative participation in the human rights conventions, the immediate approval of both
the negotiating states and the world community at large by themselves
let the whole International Bill enter customary international law.255
But the conclusion is rash. States are free to choose whether they want
to enter into treaty obligations. If they choose not to, the principle of
pacta tertiis nec nocent nec prosunt protects them from any harmful ef253
254
255
M. Koskenniemi, “The Pull of the Mainstream”, Mich. L. Rev. 88 (19891990), 1946 et seq. (internal quotation marks omitted).
W.P. Gormley, “The Right to Life and the Rule of Non-Derogability: Peremptory Norms of jus cogens”, in: B.G. Ramcharan (ed.), The Right to
Life in International Law, 1985, 120 (advancing broad claims as to the customary international law and ius cogens status of human right norms).
L.B. Sohn, “‘Generally Accepted’ International Rules”, Wash. L. Rev. 61
(1986), 1073 et seq. (1077-1078); G. Abi-Saab, “La Coutume dans Tous ses
États ou le Dilemme du Développement du Droit International Général
dans un Monde Éclaté”, in: H.C. Batiffol et al. (eds), Le Droit International
à l’Heure de sa Codification. Études en l’Honneur de Roberto Ago. I, 1987,
53 et seq. (64); A. Cassese, International Law in a Divided World, 1986,
183 et seq. (but regarding the UDHR as formally non-binding).
164
Max Planck UNYB 8 (2004)
fects of the treaty.256 To extend treaty obligations to them under the
guise of customary law not only violates this central element of treaty
law,257 it is also logically erroneous. It alleges a form of tacit consent to
surmount a quite definite absence of willingness to ratify a treaty. A
similar argument applies to the UDHR: even where all states agreed to
a non-binding resolution this, by itself, means hardly more than that all
states agreed to a non-binding resolution. To argue that wide agreement
by itself makes the non-binding resolution binding overlooks that states
might have agreed because the resolution is non-binding.
Our second (and enhanced) argument consists of dressing up a list
of all the conventions, resolutions, statements and documents emanating from states, U.N. human rights bodies and other bodies repeating,
citing and reaffirming the UDHR, the ICCPR and the ICESCR. Surely
this must be sufficient state practice to back up the customary international law status of those documents.258 But we should not allow the
sheer number of repetitions to dazzle and overwhelm us. The first intricate argument against this plethora of state practice beseeches us to
dismiss the documents, statements and other behavior emanating from
states that are legally bound by the human rights documents. After all,
their practice only shows that they try to comply with their obligations.
What we have to scrutinize is the state practice dehors the treaty, i.e.
state practice of non-party states.259 In our opinion the argument misperceives customary international law. Customary law as a source of
law is based on the evolution of a behavior to a habit that solidifies and
raises expectations of that behavior in others until ultimately opinio
iuris arises. Such expectations, the understanding of the norm as being
deeper and stronger than just based on the treaty, can arise from the
practice of parties. But apart from these abstract considerations,
D’Amato has shown that the argument leads to an absurd result: the
256
257
258
259
Article 35 Vienna Convention on the Law of Treaties.
R.R. Baxter, “Multilateral Treaties as Evidence of Customary International
Law”, BYIL 41 (1968), 275 et seq. (286).
A. D’Amato, “Human Rights as Norms of Customary international Law”,
in: A. D’Amato (ed.), International Law: Prospect and Process, 1987, 123 et
seq.; L. Chen, “Protection of Persons (Natural and Juridical)”, Yale J. Int’l.
L. 14 (1989), 542 et seq. (546 et seq.); Schachter, see note 252, 334 et seq.;
Meron, see note 225, 89. See generally Buergenthal, see note 18, 36.
H. Waldock, “General Course on Public International Law”, RdC 106
(1962), 5 et seq. (84); R.R. Baxter, “Treaties and Custom”, RdC 129 (1970),
27 et seq. (64 et seq.); H. Lauterpacht, International Law. A Treatise. By L.
Oppenheim. Vol. I. – Peace, 8th edition 1955, 28.
Hestermeyer, Access to Medication as a Human Right
165
more support a convention has garnered, the more difficult it is to find
state practice outside the convention and hence the more unlikely it
would be to pass into customary international law.260
But there are more profound doubts about our showing of state
practice. They concern, on the one hand, the acts we included: many of
the documents we used are non-binding. We must assume that states
agree to them fully aware that they do not commit themselves legally.261
It is dubitable that custom can arise from them. As Weil put it so eloquently “thrice nothing is still nothing.”262 What is worse, we referred
to “paper practice” only and excluded the deeds of states from our
analysis. Such an analysis would certainly show a different level of
compliance for different rights. A casual glance at the numerous reports
of human rights organizations shows that some human rights provisions are commonly violated by states. What to do in this conundrum:
admit the sad reality of non-adherence or take heed of the lip service
that states pay to human rights and hold them to their words?263 Simma
cautions against the all to hasty reliance on “paper practice” only. Sole
reliance on paper practice supports claims for norms that have not
withstood the test of time, “coutume sauvage”, and depart from the
“coutume sage” of the olden days deduced from the actual deeds of
states. 264 According to Simma if there is any customary international
human rights law it is not the substantive standards, but the droit de regard, entitling the United Nations to respond to gross violations of
human rights, e.g. through decisions of the human rights bodies.265
Whereas Simma nevertheless considers paper practice as state practice266 others do not even want to go that far, as we have already seen.
260
261
262
263
264
265
266
D’Amato, see note 258, 129.
Weil, see note 83; Arangio-Ruiz, see note 165, 444 et seq.
Weil, see note 83.
Bleckmann, see note 225, 31.
Simma, see note 228, 105 et seq.; R.J. Dupuy, “Coutume Sage et Coutume
Sauvage”, in: R. Ago et al. (eds), La Communauté Internationale. Mélanges
Offerts à Charles Rousseau, 1974, 75; G.J.H. van Hoof, Rethinking the
Sources of International Law, 1983, 107 et seq.; A.M. Weisburd, “Customary International Law: The Problem of Treaties”, Vand. J. Transnat’l L. 21
(1988), 1 et seq. (10 et seq.).
B. Simma/ P. Alston, “The Sources of Human Rights Law: Custom, Jus
Cogens, and General Principles”, Austr. Yb. Int’l L. 12 (1992), 82 et seq.
(88 et seq.).
Simma, see note 228, 98 et seq.
166
Max Planck UNYB 8 (2004)
Wolfke represents this position and he summarized it in a brilliant, if
somewhat cynical manner:
“repeated verbal acts are also acts of conduct in their broad meaning
and can give rise to international customs, but only to customs of
making such declarations.”
But despite the pointed language the argument is mistaken. Customary international law requires the analysis of all available practice. A
state’s verbal affirmation of the existence of a right bears on the right itself and cannot automatically be taken as empty words. Many practitioners have relied on statements on the existence vel non of a norm of
customary international law as state practice.267 A state’s deeds, however, are equally relevant. This does not mean that any contrary act vitiates a whole body of state practice supporting a norm. The state practice only needs to be consistent and dense.268 A dense and consistent
paper practice is highly significant for a showing of state practice, as a
state can be held to its word, but it is not sufficient where there is no
non-paper practice at all. However, mere instances of non-compliance
that are condemned by the international community do not prevent the
development of a customary norm.269
Here we would like to submit a note of caution against the common
belief that non-paper state practice disproves most norms of customary
international human rights law. Orthodox scholarship examines this
practice with an inherent bias against such norms, due to the selection
of the non-paper practice. Even though a wide definition of non-paper
practice might include national court decisions and possibly even national legislation, the decisive factor remains the establishment of “the
facts on the ground”, the de facto compliance with the right. We will
not bore the reader with the obvious workload difficulties of such a
Herculean task, of rather more interest are the conceptual difficulties.
Human rights elicit attention solely where they are violated. Such reports are the point of departure for orthodox claims that actual nonpaper practice does not bear out customary human rights norms. A fair
267
268
269
Bleckmann, see note 225, 32; Simma, see note 228, 101.
Military and Paramilitary Activities in and against Nicaragua, see note 242,
para. 186; A. Kiss, “The Role of the Universal Declaration of Human
Rights in the Development of International Law”, Bull. of Hum. Rts. Special Issue, Fortieth Anniversary of the Universal Declaration of Human
Rights (1988), 47 et seq. (48).
Kiss, see above.
Hestermeyer, Access to Medication as a Human Right
167
evaluation has to establish instances of compliance with the right as well
as instances of its violation.270
It is rather self-evident that the scrutiny of state practice, including
non-paper practice, will yield different results for different rights and
will not support a claim that the whole International Bill of Rights has
entered customary international law.271
Our examination of state practice on access to medication starts
with a look at the “right to health” and the “right to life”. The right to
health is contained in some 60 national constitutions,272 but there is insufficient non-paper practice to support it as a whole.273 In contrast the
right to life is commonly mentioned as a part of customary international law. State practice consists not just of numerous international
conventions mentioning the right to life,274 resolutions,275 and national
270
271
272
273
274
This, of course, is rather an impossible task. There are millions of instances
a day where a state does not kill its citizens and where the citizens do have
access to medication. Not all of these are relevant to our analysis. Instead
we would have to isolate the cases where the right in question did or
should have made a difference.
Schachter, see note 252, 334 et seq.
Hunt, see note 114, para. 20.
With the same conclusion, but arguing that the right is too vague, nebulous
and infinitely malleable Flores et al. v. Southern Peru Copper Corporation,
343 F.3d 140, 160 (2nd Cir. 2003), see Toebes, see note 39; S. D. Jamar, “The
International Human Right to Health”, Southern University Law Review
22 (1994), 1 et seq. (49 et seq.). Note that the ICESCR has not been ratified
by the United States that is skeptical towards economic, social and cultural
rights. Rott, see note 106, 94; P. Alston, “U. S. Ratification of the Covenant
on Economic, Social and Cultural Rights: The Need for an Entirely New
Strategy”, AJIL 84 (1990), 365 et seq. (366 et seq.); R. Copelon, “The Indivisible Framework of International Human Rights: A Source of Social Justice in the U. S.”, New York City Law Review 3 (1998), 59 et seq. (63 et
seq.); Interpretative Statements for the Record by the Government of the
United States of America, I.) First Paragraph, in Report of the World Food
Summit. 13-17 November 1996. Doc. WFS 96/REP Part One (1996). Nevertheless in favor of such a customary right (but failing to address nonpaper practice) E.D. Kinney, “The International Human Right to Health:
What Does this Mean for Our Nation and World?”, Indian Law Review
34 (2001) 1457 et seq. (1464 et seq.).
For example: article I American Declaration of the Rights and Duties of
Man; article 2 (1) ECHR; article 6 (1) ICCPR; article 4 (1) American Convention on Human Rights; article 4 African Charter on Human and Peo-
168
Max Planck UNYB 8 (2004)
constitutions,276 but also a rich body of both national and international
case law.277 Numerous violations of the right are documented by
NGOs such as Amnesty International,278 but they are often condemned
by other states. It would be wrong, however, to now simply assume
that the scope of the customary right to life is coexistent with the one
under the ICCPR.279 It is far from clear whether its positive component, of which access to life-saving medication is a part, has also entered
275
276
277
278
279
ples’ Rights; article 6 (1) Convention on the Rights of the Child; article 2
(1) of the Charter of Fundamental Rights of the European Union.
For example article 3 UDHR, Declaration on the Protection of All Persons
from Enforced Disappearance, A/RES/47/133 of 18 December 1992, article
1 (2) (adopted without a vote); Declaration on the Elimination of Violence
against Women, A/RES/48/104 of 20 December 1993, article 3 (a) (adopted
without a vote); U.N. World Food Conference, Universal Declaration on
the Eradication of Hunger and Malnutrition, Report of the World Food
Conference, Rome 5-16 November 1974, Doc. E/CONF.65/20 (1975) (16
November 1974) (adopted without a vote).
For a collection of Documents see A. Weber, Menschenrechte. Texte und
Fallpraxis, 2004. Examples include (in various wordings) Algeria (article 34
(1)); Brazil (article 5); Bulgaria (article 28); Canada (article 7); Chile (article
19 No. 1); Czech Republic (article 6); Estonia (§ 16); Finland (§ 7); Germany (article 2 (2)); India (article 21); Ireland (article 40 (3.2)); Japan (article 13); Namibia (article 6); Poland (article 38); Portugal (article 24 (1));
Russia (article 20 (1)); South Africa (§ 11); Spain (article 15); Switzerland
(article 10); Thailand (§ 31); Tunisia (article 5); United States of America
(XIVth Amendment § 1).
Dinstein, see note 195, 115; Gormley, see note 254, 121; B.G. Ramcharan,
“The Concept and Dimensions of the Right to Life”, in: B.G. Ramcharan
(ed.), The Right to Life in International Law, 1985, 1 et seq. (3); H.A. Kabaaliođlu, “The Obligations to ‘Respect’ and to ‘Ensure’ the Right to Life”,
in: B.G. Ramcharan (ed.), The Right to Life in International Law, 1985, 160
et seq. (161); A. Redelbach, “Protection of the Right to Life by Law and by
other Means”, ibid, 185; see Commission on Human Rights, Question of
Human Rights in Chile, Doc. E/CN.4/1983/9, para. 19 (1983) (“The international community therefore considers the right to life in the context of
jus cogens in international human rights law”). For international case law
see also Nowak, see note 151, article 6.
Amnesty International (ed.), Amnesty International Report 2003.
M. Bothe, Das völkerrechtliche Verbot des Einsatzes chemischer und bakteriologischer Waffen. Kritische Würdigung und Dokumentation der Rechtsgrundlagen, 1973, 38 et seq.; The wrong approach has been adopted by A.P.
Kearns, “The Right to Food Exists via Customary International Law”, Suffolk Transnational Law Review 22 (1998), 223 et seq.
Hestermeyer, Access to Medication as a Human Right
169
customary international law. Bleckmann rightly stated that the application of a customary norm in state practice defines the precise bounds of
the norm.280 The common core of the paper practice is only a first step
in this analysis.281
While state practice concerning individual access to medication (outside the question of asylum for lack of medical services in the home
country)282 can hardly be deemed dense, the same cannot be said in respect to access to medication in national health emergencies, generally
pandemics such as HIV/AIDS, tuberculosis and malaria.283 This dovetails with the position of the Restatement (Third) of the Foreign Relations Law of the United States, that considers a “consistent pattern of
gross violations of internationally recognized human rights” (as compared to single instances of violations) as a violation of customary international law284 and regards all rights protected by the principal International Covenants as relevant for such gross violations.285
In the context of the AIDS pandemic the General Assembly of the
United Nations286 stressed in several resolutions “the importance of
280
281
282
283
284
285
286
A. Bleckmann, “Zur Feststellung und Auslegung von Völkergewohnheitsrecht”, ZaöRV 37 (1977), 504 et seq.; note also that American courts require a rule of customary international law to be clear and unambiguous,
rather than a mere abstract right or liberty devoid of coherent or discernable standards: Sosa v. Alvarez-Machain et al., 542 U.S. (2004); Hilao et al.
v. Estate of Marcos (In re Estate of Ferdinand Marcos, Human Rights Litigation), 25 F.3d 1467, 1475 (9th Cir. 1994); Filartiga v. Pena-Irala, 630 F. 2d
876, 884 (2nd Cir. 1980).
Bleckmann, see above, 524 et seq.
E.g. European Court of Human Rights, D v. United Kingdom, 24 EHRR
423 (1997) (2 May 1997); United Kingdom Court of Appeal (Civil Division), N. v. Secretary of State for the Home Department, ILM 43 (2004),
115 et seq.
Pandemics hit closer to home as infectious diseases know no frontier. Here
it is most evident that health is a public good. See M.W. Zacher, “Global
Epidemiological Surveillance. International Cooperation to Monitor Infectious Diseases”, in: I. Kaul/ I. Grunberg/ M.A. Stern (eds), Global Public
Goods. International Cooperation in the 2st Century, 1999, 266 et seq. (268
et seq.).
American Law Institute, Restatement of the Law Third. The Foreign Relations Law of the United States. Volume 2, 1987, § 702.
Ibid., § 702 comment m.
Prevention and control of acquired immune deficiency syndrome (AIDS),
A/RES/42/8 of 26 October 1987, (adopted without a vote).
170
Max Planck UNYB 8 (2004)
making these technologies and pharmaceuticals available as soon as possible and at an affordable cost” and requested efforts of the UN System
to collaborate to promote access of all peoples to therapeutic technologies and pharmaceuticals.287 Its special session on HIV/AIDS in 2001
resulted in a resolution that was adopted without a vote288 and in which
government representatives declared their commitment to “address factors affecting the provision of HIV-related drugs, including antiretroviral drugs, inter alia, affordability and pricing, including differential pricing, and technical and health-care system capacity” as well as to
make every effort to progressively provide treatment including antiretroviral therapy.289 Access to treatment was explicitly framed as a
human rights issue.290 An even clearer expression of states’ obligations
to safeguard access to medication in the context of pandemics came in
December 2003, when the General Assembly adopted Resolution
58/179 that calls upon states to pursue policies promoting availability,
accessibility and affordability of safe pharmaceutical products to treat
pandemics such as HIV/AIDS, tuberculosis and malaria and to develop
and implement national strategies to progressively realize access for all
to comprehensive treatment for all individuals infected. The resolution
mentions all three obligations of human rights law by stating that states
should adopt legislation in accordance with applicable international law
to safeguard access to the relevant pharmaceutical products from any
limitation by third parties and take all appropriate measures, to the
maximum of the resources allocated for this purpose, to promote effective access to preventive, curative or palliative pharmaceutical products.
States are furthermore called upon to take all appropriate measures to
promote research and development of new and more effective drugs.
The resolution was adopted by 181 votes to 1, the United States being
the sole dissenter.291 Similar statements have been made by the
287
288
289
290
291
Prevention and control of acquired immunodificiency syndrome (AIDS),
A/RES/44/233 of 22 December 1989, (adopted by consensus). See also Prevention and control of acquired immunodificiency syndrome (AIDS),
A/RES/45/187 of 21 December 1990, (adopted without a vote); Prevention
and control of acquired immunodeficiency syndrome (AIDS),
A/RES/46/203 of 20 December 1991, (adopted without a vote).
Declaration of Commitment on HIV/AIDS, see note 118.
Ibid., Annex para. 55.
Ibid., Annex para. 58.
Access to medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria, see note 9, adopted with the sole dissent of the United
States.
Hestermeyer, Access to Medication as a Human Right
171
WHO,292 by United Nations human rights bodies,293 and by innumerable conferences on the issue.294 We have already seen that several national constitutional courts, too, e.g. those of South Africa and Colombia, have safeguarded access to medication in the AIDS pandemic as a
human right.
292
293
294
Global Health-sector Strategy for HIV/AIDS, WHA resolution 56.30 (28
May 2003) (exhorting Member States “as a matter of urgency” to fulfil their
obligations under the Declaration of Commitment on HIV/AIDS of the
General Assembly, including those related to access to care and treatment),
Ensuring Accessibility of Essential medicines, WHA resolution 55.14 (18
May 2002) (urging Member States to reaffirm their commitment to increase
access to medicines); Scaling up Treatment and Care within a Coordinated
and Comprehensive Response to HIV/AIDS, WHA resolution 57.14 (22
May 2004) (urging Member States to pursue policies promoting affordability and availability of relevant medicines as a matter of priority). Today
the Joint United Nations Programme on HIV/AIDS (UNAIDS), a joint
program of specialized agencies set up by ECOSOC/RES/1994/24, is coordinating the response to the HIV/AIDS pandemic.
Access to medication in the context of pandemics such as HIV/AIDS,
Commission on Human Rights Res. 2001/33 (23 April 2001) (recognizing
that access to medication in the context of pandemics is a fundamental element for achieving the full realization of the right to health and calling on
states to promote availability and accessibility of pharmaceuticals) (adopted
52 votes to none, with the United States of America abstaining, see Commission on Human Rights, Report on the Fifty-Seventh Session, ESCOR
2001, Suppl. No. 3, Doc. E/CN.4/2001/167, 410 (2001)); Access to Medication in the Context of Pandemics such as HIV/AIDS, Tuberculosis and Malaria, Commission on Human Rights Res. 2004/26, para. 6 b (16 April
2004) (recognizing that access to medication in the context of pandemics
such as HIV/AIDS is one fundamental element for achieving progressively
the right to health) (adopted without a vote); Access to medication in the
context of pandemics such as HIV/AIDS, Commission on Human Rights
Res. 2002/32 (22 April 2002); The right of Everyone to the Enjoyment of
the Highest Attainable Standard of Physical and Mental Health, Commission on Human Rights Res. 2003/28 (22 April 2003) (urging states to fulfil
the right to health); Access to medication in the context of pandemics such as
HIV/AIDS, tuberculosis and malaria, Commission on Human Rights Res.
2003/29 (22 April 2003) (calling upon states to pursue policies promoting
availability and accessibility of safe medication in the context of pandemics); General Comment No. 14, see note 106.
See the overview in Declaration of Commitment on HIV/AIDS, see note
118, para. 6.
172
Max Planck UNYB 8 (2004)
Despite the favorable paper practice the access situation remains
bleak: only 1 percent of the people who need AIDS medication in
southern Africa actually have access to it.295 Bearing in mind, however,
that a customary right to access to medication would include resource
limitations just as the right to health under the ICESCR, this fact alone
does not prevent the development of a customary norm guaranteeing
access. What is more important is states’ efforts to guarantee access and
international reaction to states’ ignoring access to medication in national health emergencies. Practice here supports a right to access to
medication in national health emergencies. Most countries are working
hard towards universal access to treatment for AIDS, as is evidenced by
state reactions to the new WHO access initiative “3 by 5.”296 Even the
United States, the only major democracy that generally fails to recognize a universal entitlement to health care, has established a program to
achieve universal AIDS treatment.297 China recently reportedly established a similar program.298States that fail to provide access to medication do not argue that they do not have to make access available – they
engage in denial. Thus when South Africa’s President Mbeki refused to
make AIDS medication available he argued that HIV does not cause
AIDS.299 Some countries simply deny that an epidemic is taking
place.300 Public pressure on such countries has grown enormously in
295
296
297
298
299
300
A.C. D’Adesky, Moving Mountains. The Race to Treat Global AIDS, 2004,
11; A. Park, “China’s Secret Plague”, Time Magazine, 15 December 2003.
WHO (ed.), 3 by 5 Progress Report. December 2003 through June 2004,
2004, 23.
The so-called Ryan White CARE program, see Ryan White Comprehensive AIDS Resources Emergency Act of 1990, Pub. L. 101-381 as amended
by the Ryan White CARE Act Amendments of 1996, Pub. L. 104-146 and
the Ryan White CARE Act Amendments of 2000, Pub. L. 106-345. See also
A.R. Chapman, “Conceptualizing the Right to Health: A Violations Approach”, Tennessee Law Review 65 (1998), 389 et seq.
“China verabschiedet erstes Aids-Gesetz”, Frankfurter Allgemeine Zeitung, 30 August 2004.
A. Meldrum, “Call for ‘dishonest’ Mbeki to apologize for Aids gaffe”, The
Observer, 28 September 2003; M.W. Makgoba, “HIV/AIDS: The Peril of
Pseudoscience”, Science 288 (2000), 1171 et seq.; G.J. Annas, “The Right to
Health and the Nevirapine Case in South Africa”, New England Journal of
Medicine 348 (2003), 750 et seq.
X. Lei, “China: Sars and the Politics of Silence. SARS is Making a Change”,
World Press Review 50 (July 2003); A. Park, “China’s Secret Plague”, Time
Magazine, 15 December 2003.
Hestermeyer, Access to Medication as a Human Right
173
the last years.301 We consider this state practice sufficient to support a
customary international law norm guaranteeing access to life-saving
medication in the face of national health emergencies, particularly pandemics subject to progressive realization.
Without a doubt the United States’ position deserves some further
comment. It could be argued that with its consistent rejection of universal health care as a national policy and its track record of objection
to economic, social and cultural rights and access to medication, e.g. to
General Assembly Resolution 58/179,302 it cannot be bound by the
right to access to medication. But United States’ practice on the point is
more subtle. While it objected to sweeping claims concerning the right
to health it did not vote against resolutions aiming to tackle specific
pandemics, such as HIV/AIDS.303 Indeed, on several occasions it explicitly took the stance that access to medication in pandemics should
not be restricted, as illustrated by the following two examples: in December 1999 President Clinton announced that the United States would
“implement its health care and trade policies in a manner that ensures
that people in the poorest countries won’t have to go without medicine
they so desperately need.”304 When the United States attacked Brazil’s
patent laws in the WTO, it made it a point to mention in the Mutually
Agreed Solution reached in 2001 that the U.S. concerns “were never di-
301
302
303
304
D’Adesky, see note 295.
Interpretative Statements for the Record by the Government of the United
States of America, see note 273; Flores et al. v. Southern Peru Copper Corporation, see note 273. Note, however, that there are indications that this
attitude might change. Numerous recent bills in Congress try to expand
health care, some even invoke a right to health. See e.g. Healthcare Equality
and Accountability Act, S. 1833, 108th Congress, 6 November 2003; Afghan Women Security and Freedom Act of 2004, 2032, 108th Congress, 27
January 2004 (finding that the Taliban regime denied women the most basic
human rights, including the right to health care); Expressing the sense of the
Congress that access to basic health care services is a fundamental human
right, H. Con. Res. 56, 103rd Congress, 2 March 1993; see Chapman, see
note 297, 393 et seq.
See notes 286 et seq., 291 et seq.
W. J. Clinton, “Remarks at a World Trade Organization Luncheon in Seattle, December 1, 1999”, in: Office of the Federal Register National Archives and Records Administration (ed.), Public Papers of the Presidents of
the United States. William J. Clinton. 1999 (in Two Books). Book II – July 1
to December 31, 1999, 2001, 2189, 2192.
Max Planck UNYB 8 (2004)
174
rected” at Brazil’s HIV/AIDS program, a “bold and effective” effort.305
Thus the United States is not a persistent objector to the customary
norm guaranteeing access to life-saving medication in the face of national health emergencies, particularly pandemics.
c. Opinio Iuris
State practice by itself evidences solely a usage of states. There must be
something that raises this usage from the level of an empirical statement
about what states do to a normative rule about what states have to do.
The content of this second component of customary law, opinio iuris
sive necessitatis, is the subject of much debate. For consensualists like
Anzilotti306 the answer must appear simple. As for them all international law is based on the consent of states307 opinio iuris has to be the
305
306
307
Brazil-Measures Affecting Patent Protection. Notification of Mutually
Agreed Solution, WT/DS199/4 (19 July 2001). Further state practice stems
from the recent WTO actions relating to TRIPS and access to medication
and clearly implies different U.S. behavior in different disease areas, see e.g.
R.B. Zoellick, “Letter to Trade Ministers dated December 27, 2002”, InsideHealthPolicy.com, 17 January 2003 (complaining about a possible expansion of the scope of diseases covered under the Doha Declaration);
Council for Trade-Related Aspects of Intellectual Property Rights, Moratorium to Address Needs of Developing and Least-Developed Members
with no or Insufficient Manufacturing Capacities in the Pharmaceutical
Sector. Communication from the United States, IP/C/W/396 (14 January
2003) (declaring a moratorium on dispute settlement for article 31 (f)
TRIPS Agreement for economies facing a grave public health crises associated with HIV/AIDS, Malaria, Tuberculosis or other infectious epidemics
of comparable scale and gravity); D.R. Andresen (U.S. Embassy Singapore), “US Active in Helping Poorer Nations Tackle Health Crises”, IPHealth, 27 January 2003; R.B. Zoellick, “Statement of Robert B. Zoellick,
U.S. Trade Representative before the Committee on Ways and Means of
the House of Representatives”, 26 February 2003, IP-Health, 26 February
2003 (emphasizing U.S. commitment to help poor countries obtain medication). Understanding between Canada and the United States regarding the
implementation of the Decision of the WTO General Council of August 30,
2003 and NAFTA, <http://www.ustr.gov/regions/whemisphere/canada/
2004-07-16-canadatrips-mou.pdf> (last visited 16 July 2004).
Anzilotti, see note 16, 41 et seq.
The Case of the S.S. “Lotus”, see note 240, 18 (“The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law”).
Hestermeyer, Access to Medication as a Human Right
175
tacit consent of states. In practice they infer this consent, i.e. they accept
acquiescence as consent, and only exempt states from the new rule that
have persistently objected to its formation.308 Other authors reject the
consensual premise to be able to include the majority of “passive
states”309 and even natural law notions rear their head in the debate. 310
The majority view on opinio iuris has been expressed by the ICJ in the
North Sea Continental Shelf Cases in the following terms:
“the acts (...) must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. (...) The states concerned
must therefore feel that they are conforming to what amounts to a
legal obligation.”311
Scholars have had an extraordinarily hard time to come to terms
with this notion. The problems begin with proving opinio iuris. Obviously any such proof will have to recur to verbal acts of state officials.
Peculiarly, the same acts could also evidence state practice. Mendelson
strongly cautions against using the same act for both purposes. Such an
approach, he asserts, is incompatible with the two-prong test of customary international law.312 Once this difficulty is overcome we encounter the next challenge. The opinio iuris formula premises the development of a new customary norm on the belief of a state that it is legally bound by the norm. But how can this be if the norm is not yet in
existence? Are we to demand that states mistakenly assume the existence of a binding norm?313 In the face of this challenge Kelsen initially
wanted to abandon the notion of opinio iuris altogether.314 The alleged
308
309
310
311
312
313
314
Byers, see note 235, 142 et seq.
G. Scelle, Manuel de Droit International Public, 1948, 575.
E.g. J.C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als
Rechtsbuch dargestellt, 2nd edition 1872, 58 et seq.
North Sea Continental Shelf Cases, see note 240, para. 77.
M. Mendelson, The Formation of Customary International Law, RdC 272
(1999), 155 et seq. (206 et seq.); J. Kammerhofer, “Uncertainty in the Formal Sources of International Law: Customary International Law and Some
of its Problems”, EJIL 15 (2004), 523 et seq. (526).
F. Geny, Méthode d’Interprétation et Sources on Droit Privé Positif, 2nd
edition 1919, 367 et seq.
H. Kelsen, “Théorie du Droit International Coutumier”, Revue Internationale de la Théorie du Droit. Nouvelle Série 1 (1939), 253 et seq. (263 et
seq.); P. Guggenheim, “Les deux Éléments de la Coutume en Droit International”, in: La Technique et les Principes du Droit Public. Études en
l’Honneur de Georges Scelle. Tome Premier, 1950, 275 et seq. (283).
Max Planck UNYB 8 (2004)
176
difficulties disappear, however, if we conceive the development of customary law as a process and bear in mind such notions as legitimate expectations and soft law. Through repetition acts give rise to a usage, usage begins to raise expectations of a certain behavioral pattern and ultimately what was a mere fact hardens to soft and then to hard law.
Those who criticize using verbal practice for both the opinio iuris and
the state practice element apply an overly static approach. We submit
that where such verbal acts evince both elements they can be used as
evidence for both elements. Often opinio iuris can be inferred from paper practice.315 Moral considerations, too, are not misplaced here, for
which nation will publicly take a stance against the right to life or access
to medication? Given the numerous documents in which states explicitly guarantee access to medication in pandemics we have no doubt that
opinio iuris exists and that access to life-saving medication in national
health emergencies, particularly in pandemics, subject to progressive realization is part of customary international law.
2. General Principles
“[G]eneral principles of law recognized by civilized nations”316 are, as a
source of international law, to be examined after treaties and customary
law.317 Doctrine admits several types of general principles. First and
foremost they can be derived from principles recognized in foro domestico, i.e. common rules in a large majority of states representing all legal
systems. The restriction of the comparative exercise to “civilized nations” is a remnant of eurocentristic views that are no longer valid. The
second category of general principles are general principles of the international legal order arising directly in international relations. The astute
reader will already have noticed that distinguishing general principles
and customary law is not a simple task. If anything can be deduced
315
316
317
C. DeVisscher, Theory and Reality in Public International Law, 1957, 149
n. 29; Wolfke, see note 246, 70; D’Amato, see note 246, 47 et seq.
Article 38 (c) ICJ Statute.
This does not imply an inferiority of general principles in the sense of a hierarchy. R.A. Billib, Die allgemeinen Rechtsgrundsätze gemäß Art. 38 I c
des Statuts des Internationalen Gerichtshofes – Versuch einer Deutung -,
1972, 168 et seq.
Hestermeyer, Access to Medication as a Human Right
177
from the vague definitions of general principles it is that these can be
more general than customary rules.318
It is far from settled whether human rights can be admitted as general principles. Most established general principles stem from the
branch of private law, such as the principle of good faith or the law of
unjust enrichment.319 The predominance of private law principles is an
acknowledgement of the contract – treaty analogy. But there is nothing
inherent in the notion of general principles itself that would limit it to
private law principles320 and in their seminal study on the issue Simma
and Alston convincingly argue that human rights can be general principles. Both routes of genesis of general principles are open to human
rights: recognition in foro domestico,321 or as basic considerations that
have obtained general acceptance or recognition by states on the international plane.322 The old objection that human rights are within the
exclusive domestic jurisdiction of states has long been overcome.323
The inclusion of human rights in the ambit of general principles
gains support from the Corfu Channel Case of the ICJ, in which it recognized “elementary considerations of humanity” as a general principle, but with little regard to the method used to discern the principle:
“The obligations incumbent upon the Albanian authorities consisted
in notifying, for the benefit of shipping in general, the existence of a
minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the
minefield exposed them. Such obligations are based (...) on certain
general and well-recognized principles, namely: elementary consid-
318
319
320
321
322
323
On general principles see H. Mosler, “General Principles of Law”, in: R.
Bernhardt (ed.), EPIL Volume II, 1995, 511 et seq.; H. von Heinegg, in: Ipsen, see note 17, 198 et seq.; Billib, see note 317; B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953.
Bleckmann, see note 225, 38 et seq.; E. Fanara, Gestione di affari e arrichimento senza causa nel diritto internazionale, 1966; R. Yakemtchouk, La
Bonne Foi dans la Conduite Internationale des États, 2002, 72 et seq.
Mosler, see note 318, 512, 521.
Meron, see note 225, 88 et seq.
Simma/ Alston, see note 265, 102 et seq.; B. Vitanyi, “Les positions doctrinales concernant le sens de la notion de ‘principes généraux de droit reconnus par les nations civilisées’”, RGDIP 86 (1982), 48 et seq. (85 et seq.)
(discussing the genesis of general principles).
Interpretation of Peace Treaties, ICJ Reports 1950, 65 et seq. (70 et seq.);
Meron, see note 225, 106.
Max Planck UNYB 8 (2004)
178
erations of humanity, even more exacting in peace than in war
(...).”324
Similarly in the Genocide Convention Case the ICJ held that “the
principles underlying the Convention are principles which are recognized by civilized nations as binding on states, even without any conventional obligation.”325 The German Bundesverfassungsgericht considers a minimum human rights standard as part of general international
law.326
The wide acceptance of human rights makes it plausible to follow
the new trend to accept basic human rights as general principles.327
The national practice we have scrutinized in our analysis of the customary law status of access to medication allows us to conclude that access to life-saving medication in national health emergencies subject to
progressive realization is also a general principle of law.
VI. Conclusion
The AIDS pandemic has focused the spotlight of international attention
on the issue of access to medication. Only recently has the international
community stepped up its efforts to combat the disease. Nevertheless in
much of the world the affected population still does not have access to
the necessary medication. At times it seems that the very real size of the
looming catastrophe defies the imagination and stifles many an attempt
at combating the disease. Despite this fact and even though the access
debate is commonly set within the context of HIV/AIDS, we should be
aware that access to medication is not just a pressing issue within the
HIV/AIDS debate, but it covers all essential medicines and all diseases.
324
325
326
327
Corfu Channel Case (United Kingdom/Albania), ICJ Reports 1949, 4 et
seq. (22).
Reservations to the Convention on Genocide, ICJ Reports 1951, 15 et seq.
(23).
BVerfGE 46, 342, 362 (1977); BVerfGE 60, 253, 304 (1982).
Mosler, see note 318, 525; Simma/ Alston, see note 265, 102 et seq.; Meron,
see note 225, 88 et seq.; Waldock, see note 259, 198; J. P. Humphrey, “The
Universal Declaration of Human Rights: Its History, Impact and Juridical
Character”, in: B.G. Ramcharan (ed.), Human Rights: Thirty Years After
the Universal Declaration, 1979, 21 et seq. (29).
Hestermeyer, Access to Medication as a Human Right
179
We have seen that the issue is more than just a moral one – the right
to access to medication is guaranteed under the ICESCR, the ICCPR
and general international law. However the scope of the right varies for
the different sources: the ICESCR protects access to essential medication. The ICCPR is restricted to life-saving medication and general international law, as expected, is even more limited and guarantees access
to life-saving medication in national health emergencies, particularly in
pandemics. We have also seen how the right is subject to progressive
implementation, i.e. how non-compliance can at times be justified by
financial constraints. Particularly the jurisprudence of the South African Constitutional Court has given valuable guidance in operationalizing the right, emphasizing the deference that has to be granted to the
executive, yet also imposing limits on the executive’s discretion and
striking down a policy that was proven to be irrational.
But, the esteemed reader might wonder, what is the use of rights
language in this context? Are we not falling into a trap that Pellet refers
to as “Droits-de-l’Hommisme”?328 He describes this phenomenon as
the admirable mindset of human rights lawyers or even more so of human rights activists, struggling to bring relief to the downtrodden and
using human rights law as a tool in their fight. Two risks flow from the
agenda: the (erroneous) belief that human rights require special legal
techniques, quite distinct from those applied in other legal areas, and
the tendency to hang on to new lines of thinking and to regard them as
binding law. We cannot but agree that some of the claims raised under
human rights law seem to rely on wishful thinking rather than legal reasoning. But the charge of undifferentiated human rights claims329 fails
where such claims are properly founded.
It would also be illusory to assume that framing access to medication as a right alone solves the problems in providing access. Many of
the problems are factual and deeply rooted in underdevelopment and
poverty: how can medication be made available without infrastructure
and without clean water? Even where framing access to medication as a
right could make a difference, the full effectiveness of human rights law
is often hampered by a comparatively weak enforcement mechanism
that relies on shaming countries into compliance rather than threaten
328
329
A. Pellet, “Droits-de-l’Hommisme” et Droit International, Droits fondamentaux 1 (2001).
K. Doehring, Die undifferenzierte Berufung auf Menschenrechte, in: U.
Beyerlin (ed.), Festschrift für Rudolf Bernhardt, 1995, 355 et seq.
180
Max Planck UNYB 8 (2004)
any serious consequences.330 This is of particular concern where the
human rights regime encounters regimes that are associated with “hardand-fast” enforceable rules, such as the WTO regime. This, however, is
not the place to discuss the encounter. Asking for forgiveness for such
reckless advertising I would refer the reader interested in that conflict
to my forthcoming book on the subject of TRIPS and access to medication.
Nevertheless human rights language has shown to be effective. It
provides a tool for prioritizing and as an argument has often proven
helpful in promoting concerns that were neglected, even if it is at times
only through public pressure that the human rights argument prevails.
Despite their notoriously weak enforcement under public international
law we should not dismiss the value of such claims easily, if only for
their power as an argument.
330
See P. Alston, “Resisting the Merger and Acquisition of Human Rights by
Trade Law: A Reply to Petersmann”, EJIL 13 (2002) 815 et seq. (833 et
seq.); O.A. Hathaway, “Do Human Rights Treaties Make a Difference?”,
Yale L. J. 111 (2002), 1935 et seq. (with a rather doubtful attempt at measuring compliance with human rights treaties).
U.S. Bilateral Non-Surrender Agreements and
Article 98 of the Statute of the International
Criminal Court: An Exercise in the Law of
Treaties
Markus Benzing
I.
II.
Introduction
U.S. Objections to the International Criminal Court and Efforts to
Prevent the Exercise of Jurisdiction by the Court over U.S. nationals
1. U.S. Objections to the ICC
2. Activities undertaken by the U.S. to exempt U.S. Nationals from the
Jurisdiction of the Court
a. Security Council Resolutions 1422 (2002), 1487 (2003), 1497 (2003)
b. American Servicemembers’ Protection Act
c. Bilateral Non-Surrender Agreements
III. The Consistency of Bilateral Non-Surrender Agreements with the
ICC Statute
1. Article 98 in the Context of the ICC Statute
2. Article 98 (1): State or Diplomatic Immunity
a. General International Law
aa. State Immunity in General
bb. Diplomatic Personnel
cc. Military Personnel
b. Position under the ICC-Statute
c. Effects of the Non-Surrender Agreements in the Light of the Law
of Immunity
Max Planck UNYB 8 (2004)
182
IV.
V.
3. Article 98 (2): Requirement of Consent of a Sending State
a. Is Article 98 (2) a priori limited to Status of Forces Agreements
and Extradition Treaties?
b. The Requirement of “Consent of a Sending State”
aa. Person of the Sending State
bb. Consent of the Sending State
c. Questions of Time of Conclusion of the “International
Agreement” in the Sense of Article 98 (2) of the Statute
d. Subsequent State Practice as an Interpretation Aid?
4. Preliminary Conclusions
Consequences of the Inconsistency in the Light of General International
Law
1. Questions of the Law of Treaties concerning Conflicting Obligations
a. Conflicts between Treaties under the Vienna Convention of 1969
b. Conflicts between Treaties under Customary International Law
2. Questions of State Responsibility
Concluding Remarks
I. Introduction
The overtly negative, or even hostile, position the government of the
United States has taken on the issue of the International Criminal
Court (ICC) – after playing an active role in the preparatory work leading up to the adoption of the ICC Statute, in particular the Rome Conference in 1998 – is a matter of common knowledge. It has received ample attention from the media as well as NGOs, and forms the subject of
numerous academic publications.1 The adverse attitude culminated in
President George W. Bush’s retraction of the signature of the United
States on the ICC Statute on 6 May 2002.2 Moreover, being under the
1
2
Compare only S.B. Sewall/ C. Kaysen, The United States and the International Criminal Court, National Security and International Law, 2000; D.
Mundis, “The United States of America and International Justice”, Journal
of International Criminal Justice 2 (2004), 2 et seq.; P.W. Kahn, “Why the
United States Is So Opposed”, <www.crimesofwar.org/icc_magazine/icckahn.html> (last visited 20 May 2004); R. Wegdwood, “The International
Criminal Court: An American View”, EJIL 10 (1999), 93 et seq. (105); id.,
“The Irresolution of Rome”, Law & Contemp. Probs 64 (2001), 193 et seq.;
K. Ailslieger, “Why the United States Should Be Wary of the International
Criminal Court”, Washburn Law Journal 39 (1999), 80 et seq. (all with further references).
Letter by John R. Bolton to the Secretary General of the UN of 6 May
2002, cited in: Richard Boucher, Press Statement, International Criminal
Benzing, U.S. Bilateral Non-Surrender Agreements
183
impression that merely not joining the Court would insufficiently protect its national interests, the United States has embarked on a campaign
to actively ensure that the Court will not exercise jurisdiction over its
nationals.
Comments on U.S. policy range from “disbelief and bewilderment”3
over harsh criticism to support. It has been observed that prospects for
U.S. participation in the ICC in the foreseeable future look slim.4 While
the rhetoric on both sides of the divide continues to get progressively
intemperate, commentators have drawn attention to the fact that much
energy is wasted on criticising the U.S. approach and have proposed to
“learn to deal with rejection”.5 This contribution proceeds from this basis and, rather than examining the U.S. position from a point of view of
international policy, attempts to legally analyse a specific manner the
U.S. rejection of the ICC has taken, i.e. efforts to prevent the surrender
of U.S. nationals to the ICC by way of concluding a series of bilateral
agreements with as many countries as possible. These accords have
sometimes somewhat polemically been referred to as “bilateral impunity agreements”,6 or, given that they are purportedly based on article
98 (2) of the ICC Statute, simply “article 98 agreements”. To avoid prejudgement of the legal quality of those agreements, as well as to steer
clear of resorting to “international polemics”, the present article adopts
the more neutral term “bilateral non-surrender agreements”.7
3
4
5
6
7
Court: Letter to UN Secretary General Kofi Annan, <www.state.gov/r/pa/
prs/ps/2002/9968.htm> (last visited 24 May 2004).
H. Corell, “A Question of Credibility”, available at <http://www.
iccnow.org/documents/declarationsresolutions/unbodies/CorellHansArticl
eonUS-ICC23May04.pdf> (last visited 25 May 2004).
P.M. Wald, “Is the United States’ Opposition to the ICC Intractable?”,
Journal of International Criminal Justice 2 (2004), 19 et seq.
W. M. Reisman, “Learning to Deal with Rejection: The International
Criminal Court and the United States”, Journal of International Criminal
Justice 2 (2004), 17 et seq.
Amnesty International, “International Criminal Court: US efforts to obtain impunity for genocide, crimes against humanity and war crimes”, August 2002, available at <http://web.amnesty.org/aidoc/aidoc_pdf.nsf/
Index/IOR400252002ENGLISH/$File/IOR4002502.pdf> (last visited 5
June 2004).
The term has been introduced by J. Crawford, P. Sands and R. Wilde in
their Joint Opinion in the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements sought by the United
States under article 98 (2) of the Statute, 5 June 2003, para. 21, available at
Max Planck UNYB 8 (2004)
184
It does not seem too probable that cases before the ICC involving
bilateral non-surrender agreements may start any time soon, given that,
as one commentator has sardonically observed, “there is greater likelihood that elephants will soon learn to fly than that an ICC Prosecutor
will soon provoke an international confrontation by indicting American peacekeepers [...]”.8 However, the agreements raise interesting questions of treaty interpretation and conflict between treaties that go beyond the immediate context of (potential) judicial activity and thus
merit closer scrutiny.
This article sets out with a short overview of the objections against
the ICC proffered by the United States and the action taken by the
United States to secure its nationals from the jurisdiction of the ICC
(II.). It continues with a legal analysis of the bilateral non-surrender
agreements concluded by the United States in the light of the ICC Statute (III.). The last part will focus on questions of conflict of treaties under international law and offer some reflections on possible consequences of the agreements in terms of state responsibility (IV.).
II. U.S. Objections to the International Criminal Court
and Efforts to Prevent the Exercise of Jurisdiction by
the Court over U.S. nationals
1. U.S. Objections to the ICC
The long list of objections by the United States administration to the
ICC is encapsulated in a statement of a senior member of the Bush administration, arguing that the “ICC is an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence”.9 Several major specific concerns with the ICC as an institu-
8
9
<www.humanrightsfirst.org/international_justice/Art98_061403.pdf> (last
visited on 6 June 2004).
N.A. Combs, “Establishing the International Criminal Court”, International Law FORUM du droit international 5 (2003), 77 et seq. (79).
J.R. Bolton, “American Justice and the International Criminal Court”,
Remarks at the American Enterprise Institute, 3 November 2003, available
at <www.state.gov/t/us/rm/25818.htm> (last visited 20 May 2004). See also
U.S. Department of State, Bureau of Political-Military Affairs, “The Inter-
Benzing, U.S. Bilateral Non-Surrender Agreements
185
tion have been voiced by the United States, which may be briefly summarised as follows:10 (1.) danger of frivolous and politically motivated
investigations and prosecutions against United States nationals, in particular because of the Prosecutor’s competence to trigger proceedings;11
(2.) inadequate safeguards of fair trial rights of the accused in the procedure of the ICC, in particular the right to be tried by jury;12 (3.) general
concerns about United States national sovereignty, in particular the
purportedly unlawful jurisdictional reach of the ICC over nationals of
non-State Parties;13 (4.) extension of crimes beyond what is recognised
by customary international law;14 (5.) a certain uneasiness with the po-
10
11
12
13
14
national Criminal Court”, Fact Sheet of 2 August 2002, available at
<www.state.gov/t/pm/rls/fs/2002/23426.htm> (last visited 24 May 2004).
This general summary is based on an overview of several sources, such as
U.S. Department of State, Bureau of Political-Military Affairs, “The International Criminal Court”, Fact Sheet of 2 August 2002, available at
<www.state.gov/t/pm/rls/fs/2002/23426.htm> (last visited 24 May 2004); J.
Trahan/ A. Egan, “U.S. Opposition to the International Criminal Court”,
Human Rights 30 (2003), 10.
For a discussion of the powers of the Prosecutor under the ICC Statute see
V. Röben, “The Procedure of the ICC: Status and Function of the Prosecutor”, Max Planck UNYB 7 (2003), 513 et seq. (540); G. Turone, “Powers
and Duties of the Prosecutor”, in: A. Cassese/ P. Gaeta/ J.R.W.D. Jones
(eds), The Rome Statute of the International Criminal Court: A Commentary, 2002, Vol. 2, 1137 et seq.
See S. Stapleton, “Ensuring a fair trial in the International Criminal Court”,
N.Y.U.J. Int’l L. & Pol. 31 (1999), 535 et seq.; S. Zappalà, “The Rights of
the Accused”, in: Cassese/ Gaeta/ Jones, see note 11, 1319 et seq.
See for example J. Paust, “The Reach of the ICC Jurisdiction over NonSignatory Nationals”, Vand. J. Int’l L. 33 (2000), 1 et seq.; M. Morris,
“High Crimes and Misconceptions: The ICC and Non-Party States”, Law
& Contemp. Probs 64 (2001), 13 et seq.; M. Bergsmo, “Occasional remarks
on certain state concerns about the jurisdictional reach of the International
Criminal Court, and their possible implications for the relationship between the Court and the Security Council”, Nord. J. Int’l L. 69 (2000), 87
et seq.; M. Scharf, “The ICC’s jurisdiction over the Nationals of Non-State
Party States: A Critique of the U.S. Position”, Law & Contemp. Probs 64
(2001), 67 et seq.
For a discussion of the jurisdiction ratione materiae of the Court see M.
Wagner, “The ICC and its Jurisdiction – Myths, Misperceptions and Realities”, Max Planck UNYB 7 (2003), 409 et seq. (413).
186
Max Planck UNYB 8 (2004)
tential inclusion of the crime of aggression;15 (6.) the perceived lack of
influence of the UN Security Council as the primary organ for ensuring
international peace and security.16
In the light of perceived or actual anti-Americanism around the
globe, the concern seems to prevail that the ICC might be used by less
potent states to second-guess foreign policy decisions of the United
States and ultimately as an instrument of vendetta against United States
foreign policy,17 as well as, more specifically, endanger the success of
peacekeeping and humanitarian missions in which United States military forces and civilian personnel participate by subjecting American
citizens to baseless, politically motivated prosecutions.18 Another concern may be the prospect of the eventual inclusion of the crime of aggression into the ICC Statute, which would obviously have an enormous impact on decisions to use force for the solution of international
disputes.19
The legal merits of such criticism have been analysed in numerous
academic comments20 and it would exceed the framework of this article
to recapitulate this discussion here. For present purposes, a short synopsis of United States reactions on a national and international level inspired by these objections should suffice.
15
16
17
18
19
20
W.M. Reisman, “The Definition of Aggression and the ICC”, Proceedings
of the 96th Annual Meeting of the American Society of International Law
(2002), 181 et seq.
Compare Wedgwood, see note 1, 97.
M. Tia Johnson. “The American Servicemembers’ Protection Act: Protecting Whom?”, Va. J. Int’l L. 43 (2003), 405 et seq. (450).
T.M. Franck/ S.H. Yuhan, “The United States and the International Criminal Court: Unilateralism Rampant”, N.Y.U.J. Int’l L. & Pol. 35 (2003), 519
et seq.; W.L. Nash, “The ICC and the Deployment of U.S. Armed Forces”,
in: Sewall/ Kaysen, see note 1, 153 et seq. (passim), D.R. Sands, “ICC seen
as ‘forum’ for hits on U.S., allies”, Washington Post of 18 May 2004.
Compare Wegdwood, see note 1, 105; C.C. Joyner/ C.C. Posteraro, “The
United States and the International Criminal Court: Rethinking the Struggle Between National Interests and International Justice”, Criminal Law
Forum 10 (1999), 359 et seq. (365); D. Orentlicher, “Unilateral Multilateralism: United States Policy toward the International Criminal Court”, Cornell Int’l L. J. 36 (2004), 415 et seq. (421).
Compare only: G. Hafner/ K. Boon/ A. Rübesame/ J. Huston, “A Response to the American View as Presented by Ruth Wegdwood”, EJIL 10
(1999), 108 et seq.; Frank/ Yuhan, see note 18, 541.
Benzing, U.S. Bilateral Non-Surrender Agreements
187
2. Activities undertaken by the U.S. to exempt U.S. Nationals
from the Jurisdiction of the Court
After the adoption of the ICC Statute, the United States government
took multiple steps to ensure that, while it remained non-party to the
treaty, no member of U.S. forces and, eventually, no U.S. citizen, would
be exposed to the jurisdiction of the ICC. These efforts took place in
various “battlefields”, both on the domestic and international level,
such as the Preparatory Commission for the International Criminal
Court21, the UN Security Council and in bilateral negotiations.
a. Security Council Resolutions 1422 (2002), 1487 (2003), 1497 (2003)
On 30 June 2002, the United States vetoed a Security Council resolution to extend for six months the mandate of the UN peacekeeping mission to Bosnia. As condition for its consent, it demanded a clause in the
resolution guaranteeing that U.S. military personnel serving on the mission in Bosnia-Herzegovina would not be subject to the jurisdiction of
the ICC.
Following arduous negotiations, the Security Council unanimously
passed S/RES/1422 (2002) of 12 July 2002. Acting under Chapter VII of
the UN Charter, the Security Council:
“1. Requests, consistent with the provisions of Article 16 of the
Rome Statute, that the ICC, if a case arises involving current or
former officials or personnel from a contributing State not a Party to
the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month
period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;
2. Expresses the intention to renew the request in paragraph 1 under
the same conditions each 1 July for further 12-month periods for as
long as may be necessary; [...]”.
The legal validity of this part of the resolution has been doubted on
various grounds, in particular the lack of the requirements of Article 39
21
Compare C.K. Hall, “The First Five Sessions of the UN Preparatory
Commission for the International Criminal Court”, AJIL 94 (2000), 773 et
seq. (785). For a discussion of rule 195 (2) of the Rules of Procedure and
Evidence, see at III. 3.
188
Max Planck UNYB 8 (2004)
UN Charter (existence of a threat to the peace, breach of the peace or
act of aggression) as well as the compatibility with article 16 of the ICC
Statute.22 Nevertheless, the Security Council extended the deferral for
one more year in resolution S/RES/1487 (2003) of 12 June 2003. An
even broader exemption of personnel participating in a Multinational
Force in Liberia was included in S/RES/1497 (2003) of 1 August 2003,
initially drafted by the United States.23
On 23 June 2004, the Bush administration abandoned its proposal to
seek a second renewal of S/RES/1422 by reason of adamant opposition
of other Security Council members and the slim prospect of reaching
the necessary majority in the Council.24 Commentators mostly related
the failure to secure a majority to the scandal over abuse of U.S. detainees in Iraq and Afghanistan. In the absence of a renewal, the U.S. has
signalled that the negotiation of bilateral non-surrender agreements is
now a priority in order to avoid the exercise of jurisdiction by the ICC
over U.S. nationals.25
22
23
24
25
See A. Zimmermann, “‘Acting under Chapter VII (...)’ – Resolution 1422
and Possible Limits of the Powers of the Security Council”, in: J.A.
Frowein/ K. Scharioth/ I. Winkelmann/ R. Wolfrum (eds), Verhandeln für
den Frieden – Negotiating for Peace, Liber Amicorum Tono Eitel, 2003, 253
et seq.; S. Heselhaus, “Resolution 1422 (2002) des Sicherheitsrates zur Begrenzung der Tätigkeit des Internationalen Strafgerichtshofes”, ZaöRV 62
(2002), 907 et seq.
Its operative para. 7 reads:
“7. Decides that current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International
Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to
the Multinational Force or United Nations stabilization force in Liberia,
unless such exclusive jurisdiction has been expressly waived by that contributing State; [...].” See S.D. Murphy, “Contemporary Practice of the
United States Relating to International Law, U.S. Support for Multinational Intervention in Liberia”, AJIL 98 (2004), 193 et seq.
C. Lynch, “U.S. Abandons Plan for Court Exemption”, Washington Post of
24 June 2004; W. Hoge, “U.S. Drops Plant to Exempt G.I.’s From U.N.
Court”, New York Times of 24 June 2004. See also: F.L. Kirgis, “U.S.
Drops Plan to Exempt G.I.’s from U.N. Court”, ASIL Insights, July 2004,
available at <www.asil.org/insights/insigh139.htm> (last visited 27 July
2004).
Statement by J.B. Cunningham, Deputy U.S. Representative to the United
Nations, on the ICC, at the Security Council Stakeout, 23 June 2004, available at <www.un.int/usa/04_111.htm> (last visited 3 August 2004).
Benzing, U.S. Bilateral Non-Surrender Agreements
189
b. American Servicemembers’ Protection Act
Following two earlier unsuccessful attempts at passing it,26 the American Servicemembers’ Protection Act27 (ASPA) was approved with
strong bipartisan support by both houses of Congress and signed into
law by the President on 2 August 2003. The most relevant provisions of
the Act, Sections 2004 to 2007, contain numerous restrictions on interaction by United States Federal or State government entities or courts
with the ICC. Amongst the prohibitions on co-operation with the
Court are the ban on responding to requests for co-operation by the
ICC, to extradite any person from the United States to the Court, to
use any appropriated funds to assist the Court or to conduct investigative activities relating to a proceeding at the ICC (Section 2004). Furthermore, the Act proscribes transfer of classified national security information to the ICC (Section 2006), prohibits United States military
assistance to States Parties of the ICC, subject to the possibility of
Presidential waiver (Section 2007). Section 2005 addresses the participation of United States military in UN peacekeeping or peace enforcement operations and merits being partially quoted:
“(b) RESTRICTION- Members of the Armed Forces of the United
States may not participate in any peacekeeping operation under
chapter VI of the charter of the United Nations or peace enforcement operation under chapter VII of the charter of the United Nations, the creation of which is authorized by the United Nations Security Council on or after the date that the Rome Statute enters into
effect pursuant to Article 126 of the Rome Statute, unless the President has submitted to the appropriate congressional committees a
certification described in subsection (c) with respect to such operation.
(c) CERTIFICATION- The certification referred to in subsection
(b) is a certification by the President that-(1) members of the Armed Forces of the United States are able to
participate in the peacekeeping or peace enforcement operation without risk of criminal prosecution or other assertion of jurisdiction by
the International Criminal Court because, in authorizing the opera26
27
L.V. Faulhaber, “American Servicemembers’ Protection Act”, Harvard
Journal on Legislation 40 (2003), 537 et seq. (544).
2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107-206, §§
2001-2015, 116 Stat. 820 (2002).
Max Planck UNYB 8 (2004)
190
tion, the United Nations Security Council permanently exempted,
at a minimum, members of the Armed Forces of the United States
participating in the operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court for actions undertaken by them in connection with the operation;
(2) members of the Armed Forces of the United States are able to
participate in the peacekeeping or peace enforcement operation
without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because each country in
which members of the Armed Forces of the United States participating in the operation will be present either is not a party to the International Criminal Court and has not invoked the jurisdiction of the
International Criminal Court pursuant to Article 12 of the Rome
Statute, or has entered into an agreement in accordance with Article
98 of the Rome Statute preventing the International Criminal Court
from proceeding against members of the Armed Forces of the United
States present in that country; [...].28
c. Bilateral Non-Surrender Agreements
As envisaged under ASPA, negotiations for the conclusion of bilateral
non-surrender agreements commenced in the late summer of 2002 as
part of a major diplomatic campaign.29 The first agreement was signed
with Romania in August 2002.30 As of June 2004, it appears that 89
countries have already signed bilateral agreements with the United
States. The administration has signalled that more may soon be added
to the list.31 The United States has made it a priority to ensure that all
U.S. nationals are covered by the terms of the agreements.32 The agree-
28
29
30
31
32
Emphasis added.
In April 2002, all U.S. ambassadors were asked to examine whether other
nations were willing to conclude bilateral agreements protecting United
States nationals from ICC jurisdiction. At the same time, considerable diplomatic and financial pressure was exerted. See D. McGoldrick, “Political
and Legal Responses to the ICC”, in: D. McGoldrick / P. Rowe/ E. Donnelly (eds), The Permanent International Criminal Court, Legal and Policy
Issues, 2004, 389 et seq. (424).
McGoldrick, see above, 427.
See C. Giacomo, “US Pushes World Court Immunity Amid Iraq Scandal”,
Washington Post of 14 May 2004.
Bolton, see note 9.
Benzing, U.S. Bilateral Non-Surrender Agreements
191
ments sought by the United States are either one-sided or reciprocal,
depending on the political situation. A standard proposal would read
that the two parties:33
“Reaffirming the importance of bringing to justice those who commit genocide, crimes against humanity and war crimes,
Recalling that the Rome Statute of the International Criminal Court
done at Rome on July 17, 1998 by the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of the International Criminal Court is intended to complement and not supplant national criminal jurisdiction,
Considering that the Government of the United States of America
has expressed its intention to investigate and to prosecute where appropriate acts within the jurisdiction of the International Criminal
Court alleged to have been committed by its officials, employees,
military personnel, or other nationals,
Bearing in mind Article 98 of the Rome Statute,
Hereby agree as follows:
1.
For purposes of this agreement, ‘persons’ are current or former
Government officials, employees (including contractors), or
military personnel or nationals of one Party.
2.
Persons of one Party present in the territory of the other shall
not, absent the expressed consent of the first Party,
(a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or
(b) be surrendered or transferred by any means to any other
entity or third country, for the purpose of surrender to or
transfer to the International Criminal Court.
33
3.
[this paragraph for reciprocal agreements only] When the United
States extradites, surrenders, or otherwise transfers a person of
the other Party to a third country, the United States will not
agree to the surrender or the transfer of that person to the International Criminal Court by the third country, absent the expressed consent of the Government of X.
4.
When the Government of X extradites, surrenders, or otherwise
transfers a person of the United States of America to a third
Cited after: S.D. Murphy, “Contemporary Practice of the United States Relating to International Law, International Criminal Law”, AJIL 97 (2003),
200 et seq. (201-202).
Max Planck UNYB 8 (2004)
192
country, the Government of X will not agree to the surrender or
transfer of that person to the International Criminal Court by a
third country, absent the expressed consent of the Government
of the United States.
5.
This Agreement shall enter into force upon an exchange of notes
confirming that each Party has completed the necessary domestic legal requirements to bring the Agreement into force. It will
remain in force until one year after the date on which one Party
notifies the other of its intent to terminate this Agreement. The
provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination”.
The conclusion of bilateral non-surrender agreements has spurred
criticism from individual states, international organisations and
NGOs.34 On 25 September 2002, the Parliamentary Assembly of the
Council of Europe adopted Resolution 1300 (2002), voicing its uneasiness with the agreements.35 In Resolution 1336 (2003), the Assembly reiterated its concern36.
34
35
36
Several NGO’s have released detailed analyses of the issue, see Amnesty
International, see note 6; Human Rights Watch, “Bilateral Immunity
Agreements”, 20 June 2003, available at <http://www.hrw.org/campaigns/
icc/docs/bilateralagreements.pdf> (last visited 5 June 2004).
The relevant part of the resolution reads: “9. [...] the Assembly is greatly
concerned by the efforts of some states to undermine the integrity of the
ICC treaty and especially to conclude bilateral agreements aimed at exempting their officials, military personnel and nationals from the jurisdiction of the court (exemption agreements). 10. The Assembly considers that
these exemption agreements are not admissible under the international law
governing treaties, in particular the Vienna Conventions on the Law of
Treaties, according to which states must refrain from any action which
would not be consistent with the object and the purpose of a treaty. 11. The
Assembly recalls that states parties to the ICC treaty have the general obligation to co-operate fully with the court in its investigation and prosecution of crimes within its jurisdiction (Article 86) and that the treaty applies
equally to all persons without any distinction based on official capacity
(Article 27). It considers that the exemption agreements are not consistent
with these provisions”.
“8. The Assembly regrets the ongoing campaign by the United States to
convince state parties to the Rome Statute of the ICC, including member
states of the Council of Europe, to enter into bilateral agreements aimed at
subjecting these states’ co-operation with the ICC, in cases concerning
United States citizens accused of crimes giving rise to the jurisdiction of the
Benzing, U.S. Bilateral Non-Surrender Agreements
193
As part of the United States campaign, the Member States of the
European Union were individually approached with a view to negotiating non-surrender agreements, making it necessary to adopt a common
position in order to avoid a divergence of approaches to the issue
within the Union. At its meeting in Copenhagen in 2002, the European
Council adopted conclusions on the ICC and developed a set of principles “to serve as guidelines for Member States when considering the necessity and scope of possible agreements or arrangements in responding
to the United States’ proposal”:37
“ANNEX:
EU Guiding Principles concerning Arrangements between a State
Party to the Rome Statute of the International Criminal Court and
the United States Regarding the Conditions to Surrender of Persons
to the Court
The guiding principles listed below will preserve the integrity of the
Rome Statute of the International Criminal Court and – in accordance with the Council Common Position on the International
Criminal Court – ensure respect for the obligations of States Parties
under the Statute, including the obligation of States Parties under
Part 9 of the Rome Statute to cooperate fully with the International
Criminal Court in its investigation and prosecution of crimes falling
within the jurisdiction of the Court.
The guiding principles are as follows:
-
37
Existing agreements: Existing international agreements, in particular between an ICC State Party and the United States,
should be taken into account, such as Status of Forces Agreements and agreements on legal cooperation on criminal matters,
including extradition;
ICC, to prior agreement by the United States Government. 9. The Assembly considers that such agreements are in breach of the Rome Statute of the
ICC (in particular its Articles 27, 86 and 98, paragraph 2 which allow only
narrowly-defined exemptions within the framework of status of force [sic]
agreements), and of Article 18 of the Vienna Convention on the Law of
Treaties, according to which states must refrain from any action which
would not be consistent with the object and purpose of a treaty”.
2450th Council Session (General Affairs and External Relations), 30 September 2002, Doc. No. 12134/02 (Presse 279), available at <http://
ue.eu.int/ueDocs/cms_Data/docs/pressData/en/gena/72321.pdf> (last visited 25 May 2004).
Max Planck UNYB 8 (2004)
194
-
The US proposed agreements: Entering into US agreements – as
presently drafted – would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute and may be inconsistent with other international agreements to which ICC
States Parties are Parties;
-
No impunity: any solution should include appropriate operative
provisions ensuring that persons who have committed crimes
falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation
and – where there is sufficient evidence – prosecution by national jurisdictions concerning persons requested by the ICC;
-
Nationality of persons not to be surrendered: any solution
should only cover persons who are not nationals of an ICC
State Party;
-
Scope of persons:
-
Any solution should take into account that some persons
enjoy State or diplomatic immunity under international law,
cf. Article 98, paragraph 1 of the Rome Statute.
-
Any solution should cover only persons present on the territory of a requested State because they have been sent by a
sending State, cf. Article 98, paragraph 2 of the Rome Statute.
-
Surrender as referred to in Article 98 of the Rome Statute
cannot be deemed to include transit as referred to in Article
89, paragraph 3 of the Rome Statute.
-
Sunset clause: The arrangement could contain a termination or
revision clause limiting the period in which the arrangement is
in force.
-
Ratification: The approval of any new agreement or of an
amendment of any existing agreement would have to be given in
accordance with the constitutional procedures of each individual state”.
In its Common Position 2003/444/CFSP on the ICC, the Council
calls upon the Union and its Member States to “continue, as appropriate, to draw the attention of third States to the Council Conclusions of
30 September 2002 on the International Criminal Court and to the
Guiding Principles annexed thereto, with regard to proposals for
agreements or arrangements concerning conditions for the surrender of
Benzing, U.S. Bilateral Non-Surrender Agreements
195
persons to the Court”.38 Most recently, the Troika of the European Union has undertaken a demarche with the U.S. State Department on the
question of bilateral non-surrender agreements, stressing that the EU
will continue to oppose efforts undermining the integrity of the ICC
and underlining its commitment to the Guiding Principles.39
III. The Consistency of Bilateral Non-Surrender
Agreements with the ICC Statute
The issue under analysis in this part is whether bilateral non-surrender
agreements are capable of producing effects as intended by the United
States, i.e. to prohibit the Court from proceeding with a request for surrender under article 98 of the ICC Statute. To this end, an intra-ICC
Statute approach needs to be adopted, meaning that the agreements
have to be scrutinised in the light of the provisions of the ICC Statute.
Depending on the answer found, it will be necessary to turn to the
broader issue of the consequences of those agreements under general international law, in particular rules on international treaties and state responsibility.
1. Article 98 in the Context of the ICC Statute
Article 98 is part of the co-operation regime of the ICC (Part 9: “International Cooperation and Judicial Assistance”). It has become a truism
to state that state co-operation is an essential requirement for the success of the ICC, given that, as opposed to domestic courts, international
tribunals cannot rely on enforcement agencies of their own.40
38
39
40
Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court, OJ L 150/67.
Statement by the Presidency on behalf of the European Union on reaffirming the EU position supporting the integrity of the Rome Statute, Doc. No.
11680/04 (Presse 235) P 85/04, available at <http://ue.eu.int/uedocs/
cms_Data/docs/pressdata/en/cfsp/81560.pdf> (last visited 3 August 2004).
A. Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections”, EJIL 10 (1999), 144 et seq. (164); B. Swart, “International Cooperation and Judicial Assistance, General Problems”, in:
Cassese/ Gaeta/ Jones, see note 11, 1589 et seq.
196
Max Planck UNYB 8 (2004)
Under article 86, all States Parties – and generally only those41 – are
under an obligation to co-operate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court, in
accordance with the provisions of the ICC Statute. The Court may also
invite “any State not party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement, an agreement with such
State or any other appropriate basis” (article 87 (5)(a)). The obligation
to co-operate is thus based on treaty law, rather than on a Security
Council resolution, as is the case with the ad hoc international criminal
tribunals.42
One form of such co-operation and assistance is the arrest and surrender43 of a person44 by any state which the Court may request if that
person may be found in the territory of that state (article 89). As is clear
from the wording of article 89, the Court is not precluded from addressing such a request to non-State Parties. However, according to the
pacta tertiis rule,45 only States Parties must comply with requests under
article 89 (1), second sentence,46 unless non-States Parties have accepted
the Court’s jurisdiction on an ad hoc basis in accordance with article 12
(3), or entered into an ad hoc arrangement or other binding agreement
with the Court under article 87 (5), in which case they are under the
same obligation, subject to the provisions of the agreement. The same
holds true in case of Security Council referrals under article 13 (b) of
the Statute.47
41
42
43
44
45
46
47
G. Dahm/ J. Delbrück/ R. Wolfrum, Völkerrecht, 2nd edition, Vol. I/3,
2003, 1146.
See S/RES/827 (1993) of 25 May 1993, operative para. 4; S/RES/955 (1994)
of 8 November 1994, operative para. 2.
The term “surrender” is defined, for the purposes of the Rome Statute, in
article 102 ICC Statute, by virtue of which “‘surrender’ means the delivering up of a person by a State to the Court, pursuant to this Statute”.
The content of a request for arrest and surrender is specified in article 91
ICC Statute.
Arts 34, 35 VCLT.
The duty to comply with such requests for arrest and surrender is also contained in article 59 (1) in relation to arrest warrants.
A. Ciampi, “The Obligation to Cooperate”, in: Cassese/ Gaeta/ Jones, see
note 11, 1607 et seq. (1609). Ciampi also argues that a co-operation obligation on all UN Member States may be imposed by the Security Council in
case of State Party referrals and proprio motu investigations by the Prosecutor if the Security Council decided that co-operation with the Court is
needed in a situation amounting to a threat to the peace. To the question
Benzing, U.S. Bilateral Non-Surrender Agreements
197
Systematically speaking, article 98 is an exception to the duty to surrender a person to the Court.48 It is also a tribute to the fact that the
Court is not based on a Chapter VII Security Council resolution which
would place the co-operation regime above other international obligations by virtue of article 103 UN Charter.49 The negotiating history of
article 98 appears to be somewhat uncertain, as it was added to the draft
text of the ICC Statute only in the final days of the Rome conference.50
It reads:
“Article 98: Cooperation with respect to waiver of immunity and
consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently
with its obligations under international law with respect to the State
or diplomatic immunity of a person or property of a third State,
unless the Court can first obtain the cooperation of that third State
for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which
would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State
to the Court, unless the Court can first obtain the cooperation of
the sending State for the giving of consent for the surrender”.
48
49
50
whether the Security Council may broaden the scope of co-operation obligations for State Parties, see J. Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, 2003, 107-108.
D. Fleck, “Are Foreign Military Personnel Exempt from International
Criminal Jurisdiction under Status of Forces Agreements?”, Journal of International Criminal Justice 1 (2003), 651 et seq. (654); id., “Article 98 of
the ICC Statute and the Conclusion of New Status of Forces Agreements”,
Rev. Dr. Mil. Dr. Guerre 42 (2003), 207 et seq. (208); M. Ch. Bassiouni, Introduction to International Criminal Law, 2003, 533; Orentlicher, see note
19, 424; Internal Opinion of the Legal Service of the EU Commission, reprinted in: HRLJ 23 (2002), 158.
For a discussion of the co-operation obligations under the ICTY Statute
see Prosecutor v. Tihomir Blaškić , Appeals Chamber, 29 October 1997,
Case IT-99-14-AR 108 bis.
See J. Pejic, “The United States and the International Criminal Court: One
Loophole Too Many”, University of Detroit Mercy Law Review 78 (2001),
267 et seq. (286); P. Saland, “International Criminal Law Principles”, in:
R.S. Lee (ed.), The International Criminal Court: The Making of the Rome
Statute, 1999, 189 et seq. (202, fn. 25).
198
Max Planck UNYB 8 (2004)
If applicable, article 98 is not only a “justification” for the refusal of
co-operation by a State Party, but first and foremost an obligation of
the Court itself51 (“The Court may not proceed”) which it has to take
into account proprio motu prior to making the request.52 The Statute
thus makes the taking into consideration by the Court of potentially
competing international obligations of the state to be requested a prerequisite for the legality of the request.53 This is confirmed by rule 195
(1) of the Rules of Procedure and Evidence, which provides that information on problems raised by a request in respect of article 98 shall be
provided by the requested state to “assist the Court in the application
of article 98”.54
The rationale of article 98 is to protect the requested State Party
from being faced with conflicting obligations under international law as
to the a third state on the one hand (respect for immunity, or the requirement for consent, respectively) and the ICC on the other hand
(duty to surrender following a request),55 and hence ultimately to protect that State Party from incurring international responsibility.56 Con51
52
53
54
55
56
Crawford/ Sands/ Wilde, see note 7, para. 21.
B. Broomhall, “The International Criminal Court: A Checklist for National Implementation”, in: Nouvelles Etudes Pénales 13 quater (1999), 113
et seq. (137).
Meißner, see note 47,120.
For the drafting history of rule 195 see F. Harhoff/ P. Mochochoko, “International cooperation and judicial assistance”, in: R. Lee (ed.), The International Criminal Court: elements of crimes and rules of procedure and
evidence, 2001, 637 et seq. (665 et seq.); K. Kittichaisaree, International
Criminal Law, 2001, 283 et seq.; I. Garnter, “The Rules of Procedure and
Evidence on Co-operation and Enforcement”, in: H. Fischer/ C. Kreß/
S.R. Lüder (eds), International and National Prosecution of Crimes Under
International Law. Current Developments, 2001, 423 et seq. (430 et seq.).
Meißner, see note 47, 120; D. Akande, “The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits”, Journal of International Criminal Justice 1 (2003), 618 et seq. (643); P.
Mori, “Gli accordi di esenzione ex art. 98 dello Statuto della Corte Penale
Internazionale”, Riv. Dir. Int. 86 (2003), 1000 et seq. (1014); C. Stahn,
“Gute Nachbarschaft um jeden Preis? Einige Anmerkungen zur Anbindung der USA an das Statut des Internationalen Strafgerichtshofs”, ZaöRV
60 (2002), 631 et seq. (654); J. Herbst, “Immunität von Angehörigen der
U.S.-Streitkräfte vor der Verfolgung durch den IStGH?”, EuGRZ 29
(2002), 581 et seq. (583).
C. Kreß, “Römisches Statut des Internationalen Strafgerichtshofs – Vorbemerkungen”, in: H. Grützner/ P.G. Pötz (eds), Internationaler Rechtshilfe-
Benzing, U.S. Bilateral Non-Surrender Agreements
199
sequently, article 98 (2) is only applicable if the “requested state” under
article 98 (2) is a State Party, or a state which has accepted co-operation
duties vis-á-vis the Court, since other states could never find themselves in a situation of conflicting obligations, given that they are not
obliged to comply with requests for surrender (article 89 (1)).
It is for the ICC to resolve any questions of interpretation raised by
article 98.57 Whereas, generally, it is for the Member States to interpret a
treaty,58 the treaty may itself confer such competence on a court.59 In
the case of the ICC Statute, this does not only follow from article 119
(1),60 but also from the power of the Court under article 87 (a) to make
57
58
59
60
verkehr in Strafsachen, 2nd edition, 2002, Vor III 26, MN 248. Akande sees
the primary ratio of article 98 (2) in protecting the interests of non-State
Parties, see note 55, 643.
Crawford/ Sands/ Wilde, see note 7, para. 23; G. Sluiter, International
Criminal Adjudication and the Collection of Evidence: Obligations of
States, 2002, 171.
J. Klabbers, An Introduction to International Institutional Law, 2002, 101.
I. Brownlie, Principles of Public International Law, 6th edition, 2003, 602.
See A. Pellet, “Settlement of Disputes”, in: Cassese/ Gaeta/ Jones, see note
11, 1841 et seq. (1843). The demarcation of disputes concerning the “judicial functions” of the Court (article 119 (1)) and other disputes is doubtful.
As a general guideline it may be said that “judicial functions” include all
matters concerning the jurisdiction ratione materiae, loci and temporis of
the Court, the core area of judicial activity, but also all areas of operation of
the Court that are closely connected with the effective implementation and
enforcement of that jurisdiction without which the Court could not properly fulfil its mandate. This must necessarily include matters of state cooperation. In addition, article 119 (2) only speaks of disputes “between two
or more State Parties”, not of disputes between the Court and a Member
State as to the obligations arising under the Statute. The fact that the Court
may refer instances of non-compliance to the Assembly of States Parties or
to the Security Council under article 87 (7) does not imply that these bodies may make a finding of their own on the question of whether the State
Party in question has indeed breached its obligations towards the Court. It
is merely an expression of the fact that the Court has not been vested with
enforcement powers vis-à-vis a State Party. See G. Sluiter, “The Surrender
of War Criminals to the International Criminal Court”, Loy. L. A. Int’l
Comp. L. Rev. 25 (2003), 605 et seq. (614). For a discussion of the procedural implications of article 119 (2) see R. Higgins, “The relationship between the International Criminal Court and the International Court of Justice”, in: H.A.M. von Hebel/ J.G. Lammers/ J. Schukking (eds), Reflections
on the International Criminal Court, Essays in Honour of Adriaan Bos,
1999, 163 et seq. (164).
200
Max Planck UNYB 8 (2004)
requests to States Parties for co-operation, and under article 89 (1) to
specifically request surrender of a person. It is generally accepted in the
law of international organisations that such organisations must have the
competence to interpret their constitutive elements in the course of
their application. The ICC being not only an international organisation,
but also an international judicial body, may thus conclusively decide
any conflicts as to the interpretation of its provisions vis-à-vis State
Parties. As a consequence, the requested State Party does not have the
right to refuse co-operation in relation to a request at its own discretion, relying on an interpretation of its own.61 In interpreting the Statute, regard must be had to the general rules of interpretation as contained in the Vienna Convention on the Law of Treaties.62
2. Article 98 (1): State or Diplomatic Immunity
Even though analysis of bilateral non-surrender agreements normally
focuses on article 98 (2), bilateral non-surrender agreements refer to
“current or former Government officials” and “military personnel”,
groups which are possibly addressed by article 98 (1). Pursuant to this
provision, the Court may not issue a request if its execution would
force the requested state to breach its international obligations “with respect to the State or diplomatic immunity of a person or property of a
third State”. Article 98 (1) is a dynamic reference to general international law, in particular the customary international law of immunity.
61
62
W. Bourdon/ E. Duverger, La Cour pénale internationale: Le statut de Rome, 2000, 264; C. Kreß, “Völkerstrafrecht in Deutschland”, Neue Zeitschrift für Strafrecht 2000, 618 et seq. (622).
The VCLT is applicable to treaties establishing international organisations
by virtue of its article 5. The ICJ has confirmed this in several decisions:
Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962,
ICJ Reports 1962, 151 et seq. (157); Legality of the Use By a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ
Reports 1996, 66 et seq. (74, para. 19). See also H. G. Schermers, “The Legal Bases of International Organization Action”, in: R.J. Dupuy (ed.),
Manuel sur les organisations internationales, 2nd edition, 1998, 401 et seq.
(406). The applicability of the Convention in the context of judicial activity
by the Court, which is not a party to the Convention, follows from article
21 (b) of the Statute (“applicable treaties”).
Benzing, U.S. Bilateral Non-Surrender Agreements
201
Given that this area of law is in “constant evolution”,63 the Statute is
hence open for further developments as might occur in futuro, in particular as regards possible further limitations of immunity.64 The following section will sketch the current state of the law of immunity and
analyse its significance for bilateral non-surrender agreements.
a. General International Law
aa. State Immunity in General
The law concerning the immunity of state officials commonly distinguishes between two distinct yet related concepts: immunity ratione
personae (personal immunity) and immunity ratione materiae (functional immunity). In relation to both issues, the essential questions are:
(1.) who is entitled to immunity; and (2.) how far does immunity extend, both in terms of acts covered and temporal scope?
Immunity ratione personae has a very limited scope of personal application: only heads of state, heads of government, foreign ministers
and possibly other high-ranking state officials, such as senior members
of cabinet,65 if abroad, are included, regardless of whether they travel in
an official or private capacity, and for acts committed prior to or during
their term of office. Mid-level and low-level state officials, i.e. by far the
majority, do not enjoy immunity ratione personae.
In terms of temporal application, the far-reaching protection of personal immunity is limited to incumbent state officials, as immunity is
not granted “for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States”,66 a rationale not applicable after their leaving office. On the other hand, at
least according to the ICJ, the scope of material application is very
broad in that immunity ratione personae does not allow for excep-
63
64
65
66
ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports 2002, 182 et seq., Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, reprinted in
ILM 41 (2002), 536 et seq. (589, para. 75).
A. Zimmermann, “Role and Function of International Criminal Law in the
International System After the Entry into Force of the Rome Statute of the
International Criminal Court”, GYIL 45 (2002), 35 et seq. (48).
A. Cassese, International Criminal Law, 2003, 265.
ICJ, Congo v. Belgium, see note 63, 549 (para. 53).
202
Max Planck UNYB 8 (2004)
tions,67 not even in the case of international crimes. As the only possible
exception to the absolute immunity of incumbent high state officials as
a matter of customary international law,68 the ICJ identifies in an obiter
dictum the prosecution before an international criminal court, where it
has jurisdiction.69 This may be explained by the consideration that customary international law immunity finds its justification in the principle of sovereign equality of states, which is not a decisive factor in the
context of prosecutions before international courts provided with jurisdiction over former or acting heads of states.70
Critics may argue that this reasoning only applies as between Member States of the treaty establishing the international court, even though
the ICJ did not expressly limit the exception to that situation and hence
leaves open the possibility that high state officials of states not parties to
that treaty may also be subject to prosecution by these institutions.71
The substance of the issue is whether the customary international law
rule providing for absolute immunity of incumbent high-ranking state
officials in national jurisdictions, as spelled out clearly in Congo v. Belgium, can automatically be applied (quasi by analogy72) also before international courts established by a limited number of states by way of
treaty.73 Against such a proposition it could be argued that such a prohibitive rule would itself have to be deducted from state practice and
67
68
69
70
71
72
73
ICJ, Congo v. Belgium, see note 63, 551 (para. 58).
See G. Werle, Völkerstrafrecht, 2003, 456.
ICJ, Congo v. Belgium, see note 63, 551 (para. 61); S. de Smet, “The Immunity of Heads of States in US Courts after the Decision of the International
Court of Justice”, Nord. J. Int’l L. 72 (2003), 313 et seq. (319).
B. Stern, “Immunities for Head of State: Where Do We Stand?”, in: M. Lattimer/ P. Sands (eds), Justice for Crimes Against Humanity, 2003, 73 et seq.
(85); Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor
(Case No. SCSL-2003-01-AR72(E)), Decision on Immunity from Jurisdiction, 31 May 2004, at para. 51, available at <www.sc-sl.org>.
Compare Kreß, see note 56, MN 245.
For a discussion whether analogy is a permissible means of applying customary international law, see A. Bleckmann, “Zur Feststellung und
Auslegung von Völkergewohnheitsrecht”, ZaöRV 37 (1977), 504 et seq.
(525).
For this approach see D. Akande, unpublished paper, quoted by P. Sands
“Immunities before international courts”, Guest Lecture Series of the ICC
Office of the Prosecutor, 28 (para. 51), available at <www.icc-cpi.int/
library/organs/otp/Sands.pdf> (last visited 5 June 2004).
Benzing, U.S. Bilateral Non-Surrender Agreements
203
opinio juris to be a principle of customary international law,74 and that
in the absence of such a rule, no immunity would exist. At least one
commentator has maintained that the denial of immunity for incumbent
high state officials in case of international prosecution for international
crimes itself has become a rule of customary international law.75 This
view appears to be increasingly supported by international judicial institutions other than the ICJ, i.e. the International Criminal Tribunal
for the Former Yugoslavia (ICTY)76 and the Special Court for Sierra
Leone.77
After their term of office has ended, high state-officials cease to enjoy immunity ratione personae, leaving “residual” immunity for acts
performed during their term of office in an official capacity (immunity
ratione materiae). Consequently, acts committed prior or subsequent to
their period of office, as well as those acts committed in a private capacity during that period, are no longer covered.78
Immunity ratione materiae (functional immunity) exists in relation
to acts of any state official performed as part of his of her official duties,
regardless of where they may be performed.79 Immunity attaches to
those acts also after the official has left office, and only ends if the state
on behalf of which the person has acted ceases to exist.80 How to distinguish between acts carried out in an official or private capacity –
whether by looking at the objective character of the act or the subjective purpose of the author – is a matter not satisfactorily determined
under international law.81 A common view is that immunity ratione
materiae does not apply where international crimes, in particular core
74
75
76
77
78
79
80
81
For this approach Sands, see above, 29 (para. 55).
Werle, see note 68, 456. This again raises questions of the United States
possibly being a persistent objector to this rule, compare Zimmermann, see
note 64, 48.
ICTY, Prosecutor v. Slobodan Milošević , Decision on Preliminary Motions
of 8 November 2001, para. 28, available at <www.un.org/icty/milosevic/
trialc/decision-e/1110873516829.htm >.
Prosecutor v. Taylor, Decision on Immunity from Jurisdiction, see note 70,
para. 52.
ICJ, Congo v. Belgium, see note 63, para. 61.
P. Gaeta, “Official Capacity and Immunities”, in: Cassese/ Gaeta/ Jones,
see note 11, 975 et seq.
S. Wirth, “Immunity for Core Crimes? The ICJ’s Judgment in the Congo
v. Belgium Case”, EJIL 13 (2002), 877 et seq. (883).
de Smet, see note 69, 321.
Max Planck UNYB 8 (2004)
204
crimes as set out under article 5 of the ICC Statute are in question.82
This view coincides with the argument that international crimes can
under no circumstances be considered as acts performed in an official
capacity.83
bb. Diplomatic Personnel
The 1961 Vienna Convention on Diplomatic Relations distinguishes between three categories, i.e. members of the diplomatic staff, of the administrative and technical staff, and of the service staff, and grants degrees of immunity in a descending scale of protection.84 According to
article 31 of this Convention, which reflects customary international
law,85 diplomatic agents are completely immune from the criminal jurisdiction of the receiving state. Article 39 (2) clarifies that this absolute
immunity ratione personae ceases to exist once the diplomat leaves his
or her post, after which he or she only enjoys immunity for official acts
(immunity ratione materiae). The overall position of diplomats in terms
of immunity is thus essentially comparable to that of high-ranking state
officials. Whether the apparently emerging rule that (incumbent) state
officials may not enjoy immunity before international tribunals is also
applicable to diplomats is an interesting question, given that these immunities are not only based on customary law, but also crystallised in
international treaties. If the development of customary international
law concerning diplomatic immunities went in this direction, this could
possibly have an impact on the interpretation of relevant treaty instruments in accordance with article 31 (3)(c) VCLT.86
Alongside the protection granted to them as a matter of treaty law,
diplomats, as state officials, also enjoy immunity rationae materiae under customary international law for acts committed in their official ca-
82
83
84
85
86
S. Wirth, “Immunities, related problems, and article 98 of the Rome Statute”, Criminal Law Forum 12 (2001), 429 et seq. (437); Gaeta, see note 79,
982.
Kreß, see note 56, MN 245. See also Congo v. Belgium, Joint Separate
Opinion of Judges Higgins, Kooijmans and Buergenthal, see note 63, 591
(para. 85).
H. Fox, The law of state immunity, 2002, 450.
Brownlie, see note 59, 351.
“There shall be taken into account, together with the context: (c.) any relevant rules of international law applicable in the relations between the parties”.
Benzing, U.S. Bilateral Non-Surrender Agreements
205
pacity, granting them protection not only vis-à-vis the host state, but
any third state.87
cc. Military Personnel
Military personnel stationed on official mission in another state, and
with the consent of that state, enjoy functional immunity (immunity ratione materiae) under customary international law as organs of their
sending state.88 This immunity exists in order to ensure co-operation
between the sending and the receiving state. In principle, where serving
military personnel commit crimes, they may not be arrested or prosecuted, nor may their property be violated by the receiving state except
in the case of the consent of the sending state or an agreement between
the two states allowing for such action to be taken, a rule which is (debatably) said to extend even to international crimes.89 In most cases,
however, the position of visiting forces will be governed by Status of
Forces Agreements (SOFAs), for which article 98 (2), rather than article
98 (1), may be pertinent.
b. Position under the ICC-Statute
The ICC-Statute contains two provisions relevant to the question of
immunities for state officials, i.e. arts 27 and 98 (1). Article 27 reads:
“Irrelevance of official capacity:
1.
87
88
89
This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity
as a Head of State or Government, a member of a Government
or parliament, an elected representative or a government official
shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a
ground for reduction of sentence.
Wirth, see note 80, 883. Compare also K. Doehring/ G. Ress, “Diplomatische Immunität und Drittstaaten – Überlegungen zur erga omnes-Wirkung
der diplomatischen Immunität und deren Beachtung im Falle der Staatensukzession“, AVR 37 (1999), 68 et seq. (91 et seq.); Fox, see note 84, 457 et
seq.
Fleck, see note 48, 662; compare also Fox, see note 84, 461.
Fleck, see note 48, 663. In (international) armed conflict, immunity ratione
materiae for military personnel has been abrogated by the rules concerning
international armed conflict, compare Wirth, see note 82, 450.
Max Planck UNYB 8 (2004)
206
2.
Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”.
In the light of the state of customary law as illustrated above, article
27 clarifies two issues: paragraph 1 extends the possibility of incurring
individual criminal responsibility to all state officials, thereby abrogating any functional immunities which may prevent such responsibility.
Second, paragraph 2 excludes the procedural consequences of immunity.
Articles 27 and 98 (1) ostensibly seem to conflict with one another,
given that article 27 establishes a far reaching abrogation of immunity
for state officials, whereas article 98 (1) obliges the Court to take into
account issues of immunity when issuing a request for surrender or assistance. However, both norms can be reconciled looking at their systematic position: application of article 98 (1), contained in Part 9 of the
Statute, is limited to co-operation, determining when the Court may
request the surrender of a person, whereas article 27 essentially concerns questions of the exercise of jurisdiction of the Court.90
With regard to article 27, some important observations have to be
made: first, as between State Parties, it constitutes an inter se and a priori abrogation of all claims to immunity in any case before the Court,
and as such necessarily has to influence the interpretation of article
98 (1) in cases involving State Parties, meaning that a State Party may
not refuse a request for surrender in relation to one of its nationals or a
national of another State Party on that ground.91 Article 98 (1) can thus
only have relevance in relation to nationals of non-State Parties.92
In relation to state officials of non-State Parties, the question of
whether the Court is barred from proceeding despite article 27 depends
on the applicability of that provision in this particular situation. While
some argue that the Court equally has jurisdiction regardless of their
90
91
92
For a discussion of the relationship between arts 27 and 98 compare D. Sarooshi, “The Statute of the International Criminal Court”, ICLQ 48
(1999), 387 et seq. (391); Gaeta, see note 79, 992 et seq.
Wirth, see note 82, 452, draws attention to the fact that for national prosecutions immunities remain unaffected; Gaeta, see note 79, 994; D. Robinson, “The Impact of the Human Rights Accountability Movement on the
International Law of Immunities”, CYIL 40 (2002), 151 et seq. (171).
Stern, see note 70, 87. Apparently different Sarooshi, see note 90, 392 with
fn. 25.
Benzing, U.S. Bilateral Non-Surrender Agreements
207
official capacity, provided that the alleged crime was committed on the
territory of a State Party or the case was referred to the Court by the
Security Council under Chapter VII of the UN Charter,93 others consider this approach a violation of the pacta tertiis rule, arguing that “a
treaty establishing an international tribunal is not capable of removing
an immunity which international law grants to officials of States that
are not party to the treaty”.94 In any case, article 98 (1) prohibits the
Court to request surrender of that person.
c. Effects of the Non-Surrender Agreements in the Light of the
Law of Immunity
As far as immunity is granted to government officials, diplomats or
military personnel under international law, the persons concerned fall
under the scope of article 98 (1), making it impossible for the Court to
request their surrender without ensuring the co-operation of the state
of nationality first, unless this state is party to the ICC Statute. For
these categories, the validity of bilateral agreements is not decisive, or,
differently put, as far as the agreements concern this group of persons,
they are without doubt compatible with Part 9 of the ICC Statute.
However, recent developments make it seem debatable whether customary international law in fact recognises such immunities for international crimes in the context of international prosecutions any longer.
The recent decision of the Special Court for Sierra Leone in the Taylor
case95 may be indicative of a consolidation of the view that the days of
such immunity are numbered.96 This necessarily affects the scope of ar-
93
94
95
96
Sands, see note 73, 12 (para. 16).
Akande, unpublished paper, see note 73; Wirth, see note 82, 453; Gaeta, see
note 79, 995.
See note 70.
It should be noted that this question also has necessary implications on the
complementarity regime of the ICC. If national courts may not prosecute
(incumbent) heads of states and other high state officials due to their absolute immunity while international tribunals, such as the ICC, would not be
hindered to proceed, those states would theoretically always have to be
considered “unable” or “unwilling” to investigate and prosecute the person
concerned. This in turn signifies that the case would always be admissible,
which would seem to be in conflict with the basic principle that the ICC is
a court of last resort and subsidiary to national justice systems. Compare
generally M. Benzing, “The Complementarity Regime of the International
208
Max Planck UNYB 8 (2004)
ticle 98 (1), and consequently transfers the categories of persons which
may formerly have fallen under article 98 (1) to article 98 (2), meaning
that they would only be protected by the bilateral non-surrender
agreements, rather than customary law concerning immunities.
It must be stressed, however, that the vast majority of persons covered by the terms of the bilateral agreements do not enjoy immunity
under customary international law in the first place. To see whether the
Court would still be hindered to request their surrender, the agreements
will have to be analysed against the backdrop of article 98 (2).
3. Article 98 (2): Requirement of Consent of a Sending State
In order to produce the desired effect of preventing a request for the
surrender of United States nationals to the ICC under article 98 (2) of
the ICC Statute and ultimately their surrender to the Court, the bilateral non-surrender agreements would have to fall within the class of
agreements envisaged by that provision. Generally, article 98 (2) addresses possible conflicts of obligations of a requested state (normally a
State Party)97 vis-à-vis the ICC on the one hand and the sending state
on the other hand.
Interestingly, rule 195 (2) of the Rules of Procedure and Evidence at
first glance has a broader scope of application and would also cover obligations of the ICC as an international organisation towards states. It
reads:
“The Court may not proceed with a request for the surrender of a
person without the consent of a sending State if, under article 98,
paragraph 2, such a request would be inconsistent with obligations
under an international agreement pursuant to which the consent of a
sending State is required prior to the surrender of a person of that
State to the Court”.
However, it is clear from the text of article 98 (2) that “obligations”
in the sense of that provision refer exclusively to those of the state re-
97
Criminal Court: International Criminal Justice Between State Sovereignty
and the Fight against Impunity”, Max Planck UNYB 7 (2003), 591 et seq.
Bilateral non-surrender agreements concluded between two non-States
Parties would seem to be unproblematic, see A. Zimmermann/ H. Scheel,
“Zwischen Konfrontation und Kooperation – Die Vereinigten Staaten und
der Internationale Strafgerichtshof”, Vereinte Nationen 4 (2002), 137 et seq.
(143).
Benzing, U.S. Bilateral Non-Surrender Agreements
209
quested to surrender a person to the Court. The term cannot reasonably
be construed to extend to obligations of the ICC itself pursuant to international agreements as may be concluded by the Court.98 Even
though the Rules of Procedure and Evidence may generally constitute a
subsequent agreement in the sense of article 31 (3)(a) VCLT, they first
have to be interpreted in accordance with the Statute.99 The reference of
Rule 195 (2) to article 98 (2) confirms that it cannot go beyond the application of that norm, making it essentially redundant. Furthermore, as
evidenced by article 51 (5) ICC Statute, in the event of conflict between
the Statute and the Rules of Procedure and Evidence, the Statute shall
prevail.
a. Is Article 98 (2) a priori limited to Status of Forces Agreements
and Extradition Treaties?
Many commentators point out that article 98 (2) has been drafted to
specifically address the concern of obligations of host states under
Status of Forces Agreements,100 and possibly extradition treaties. This
fact is sometimes used to argue that article 98 (2) must necessarily be
limited to these categories of treaties, excluding any other form of
agreement, including those under consideration here. What seems to be
a historical interpretation of the norm must, however, as a matter of
treaty law first be established by reference to the main techniques of in-
98
99
100
C. Keitner, “Crafting the International Criminal Court: Trials and Tribulations in Art. 98 (2), UCLA J. Int’l L. & Foreign Aff. 6 (2002), 232 et seq.
(236); Kreß, see note 56, MN 247; M.H. Arsanjani, “The Rome Statute of
the International Criminal Court”, AJIL 93 (1999), 22 et seq. (40); Stahn,
see note 55, 640. For the contrary view see D. Scheffer, “Staying the Course
with the International Criminal Court”, Cornell Int’l L. J. 35 (2002), 47 et
seq. (77).
This rule derives from article 51(5) ICC Statute. Before concluding that the
two instruments are conflicting with each other, the Rules of Procedure
and Evidence have to be interpreted in the light of the Statute to see
whether a conflict can be avoided. It is also a general principle of treaty interpretation that instruments adopted under and within an existing treaty
regime have to be interpreted in accordance with the overarching instrument, i.e. here the Rome Statute. In the same direction: Kreß, see note 56,
MN 247. T. Maikowski, Staatliche Kooperationspflichten gegenüber dem
Internationalen Strafgerichtshof, 2002, 211, concludes that Rule 195 (2) is
inconsistent with article 98 (2).
Arsanjani, see note 98, 41.
Max Planck UNYB 8 (2004)
210
terpretation, as provided for by article 31 VCLT; i.e. the ordinary meaning to be given to the terms of the treaty (textual interpretation) in their
context and in the light of its object and purpose, before resorting to the
negotiating history only as a supplementary means of interpretation
(article 32 VCLT).
b. The Requirement of “Consent of a Sending State”
Article 98 (2) requires that “the consent of a sending state is required to
surrender a person of that state to the Court”. Taken together, the first
requirement for article 98 (2) to be applicable thus is that the person to
be surrendered to the Court is a “person of the sending state”, the second that the consent of the sending state is required to surrender that
person to the Court.
aa. Person of the Sending State
It has been suggested that, in order to fall under the provision, persons
the surrender of whom is requested must be “sent” to a “receiving
state”.101 In other words, according to the ordinary meaning of the term
“sending state”, it is required that the presence of that person on the
territory of a requested state must result from a positive official act of
the sending state,102 and that there be a relationship between the person
and the sending state of a functional or organic character.103 Furthermore, as a necessary corollary, the person must be present on the territory with the consent of the requested receiving state.
101
102
103
Akande, see note 55, 643. The International Opinion of the Legal Service of
the EU Commission argues that the use of the technical term “sending
state” per se limits the application of article 98 (2) to Status of Forces
Agreements, see note 48, 158.
Crawford/ Sands/ Wilde, see note 7, paras 43-45; Sluiter, see note 60, 633 at
fn. 95; see also the EU Guiding Principles cited under II. 2. c. The position
of the U.S. State Department’s Legal Adviser’s Office explicitly states that
the conventions cited support the view that the term “sending state” in article 98 does not rule out extending non-surrender agreements to “all persons who are nationals of the sending state”, see “The U.S. Government
and the International Criminal Court”, Remarks by L.P. Bloomfield to the
Parliamentarians for Global Action, 12 September 2003, available at
<http://www.state.gov/t/pm/rls/rm/24137pf.htm>.
Mori, see note 55, 1027.
Benzing, U.S. Bilateral Non-Surrender Agreements
211
Against this backdrop, the range of persons intended to be covered
by the agreements appears quite ambitious: they are in particular designed to protect the “media, delegations of public and private individuals travelling to international meetings, private individuals accompanying official personnel, contractors working alongside official personnel (particularly in the military context), participants in exchange
programs, former government officials, arms control inspectors, people
engaged in commerce and business abroad, [and] students in government sponsored programs”.104 If article 98 (2) is interpreted as portrayed above, it is indeed difficult to see how these categories, and U.S.
nationals in general who are unquestionably covered by the text of bilateral non-surrender agreements, can fall under article 98 (2).105 As has
been pointed out, employees or contractors may have been recruited
locally; former government officials and nationals in general may be ordinarily resident in the requested state or may be present in a private
capacity, for instance for the purpose of business or tourism.106
As substantiation for the view that the term “sending state” limits
the application of article 98 (2) to those persons who have been officially “sent” to a receiving state, it is frequently submitted that the term
“sending state” is used in standard Status of Forces Agreements, as well
as the Vienna Convention on Diplomatic Relations (1961)107 and the
Vienna Convention on Consular Relations (1963),108 and that the interpretation of the term under these instruments is relevant to the construction of article 98 (2).109
However, the phrase “sending state” as such may not be indicative
of the extent of protection ratione personae accorded under the instruments referred to. The Vienna Convention on Diplomatic Relations
does not contain a definition of the term. Persons who have not been
104
105
106
107
108
109
Bolton, see note 9.
L. Caflisch, “Der Internationale Strafgerichtshof: Straftatbestände, Schutz
der Menschenrechte, kollektive Sicherheit”, Liechtensteinische JuristenZeitung 24 (2003), 73 et seq. (81).
Crawford/ Sands/ Wilde, see note 7, para. 44; Mori, see note 55, 1025.
UNTS Vol. 500 No. 7310.
UNTS Vol. 596 No. 8638-8640.
Even though questions relating to these instruments, in particular the two
Vienna Conventions, would normally arise under article 98 (1), they can
nevertheless be considered for the purpose of interpreting the term “sending state” in article 98 (2), compare Mori, see note 55, 1027.
212
Max Planck UNYB 8 (2004)
officially “sent” as diplomatic agents,110 but who work in close relation
with, or in the immediate surroundings of, diplomats are also granted a
graded protection, if they are not nationals of or permanently residing
in the receiving state.111 It is thus possible to say that in the two conventions cited, protection is also granted to persons who stand in a specific relationship to a “sent” person. The closer the person stands in relation to the personal or professional sphere of the person officially sent
by the sending state, the higher the level of protection.
In the NATO SOFA112, a “sending state” is defined as a contracting
party to which personnel of the land, sea or air armed services of one
contracting party belongs.113 It is recognised that, to fall under the protection of the SOFA, a member of forces has to be in the territory of the
receiving state “in connection with ... official duties”, i.e. the member’s
presence must be a result of official orders.114 The protection of the
NATO SOFA, however, also extends to civilian components of such
forces, who are defined as “civilian personnel accompanying a force of a
Contracting Party who are in the employ of an armed service of a Contracting Party, and who are not stateless persons, ... , nor nationals of,
nor ordinarily resident in, the State in which the force is located”.115
The link between the civilian and the force he or she is “accompanying”
must be an employer-employee relationship based on a contract.116
Consequently, even though the term “sending state” strongly suggests that article 98 (2) is limited to persons who have been “sent” by
their state, the law of diplomatic and consular relations and the rules
contained in SOFAs seem to sustain an interpretation of the term to the
effect that article 98 (2) also encompasses persons having a “specific
110
111
112
113
114
115
116
Diplomatic agents may also be nationals or permanent residents of the receiving state. However, they only enjoy a limited immunity from jurisdiction of the receiving state, article 38 (1) Vienna Convention on Diplomatic
Relations.
Compare articles 37, 38 (2) Vienna Convention on Diplomatic Relations.
Agreement Between the Parties to the North Atlantic Treaty Regarding the
Status of Their Forces of 19 June 1951, UNTS Vol. 199 No. 2678.
Article 1(a) and (d).
W.T. Anderson/ F. Burkhardt, “Members of Visiting Forces, Civilian
Components, Dependents”, in: D. Fleck (ed.), The Handbook of the Law
of Visiting Forces, 2001, 51 et seq. (54).
Article 1 (b).
Anderson/ Burkhardt, see note 114, 55. The employment contract need not
necessarily be concluded with the force as such, but may also associated
with government agencies supporting the force.
Benzing, U.S. Bilateral Non-Surrender Agreements
213
nexus” to a state, a definition which goes beyond being “sent” on official or other mission. Put differently, it could be said that in order to fall
under article 98 (2), a “person” may have a specific relationship either
to a sending state or to a person who is present in the territory of a receiving state as the consequence of an official act of the sending state, either by way of the deployment of military forces, or diplomatic accreditation. It should be pointed out, however, that, even if one adopted
this broader interpretation, the list of persons covered by the bilateral
non-surrender agreements could still not be considered compatible with
article 98 (2), given that it goes well beyond persons with a specific link
to a state as defined above.
However, this broad view conflicts with the wording used in article
98 (2), which specifically refers to a “person of that [i.e.: the sending]
state”. While this cannot be interpreted as requiring that the person
concerned be a national of the sending state,117 it nevertheless must have
an impact on the relationship required between the sending state and
the person whose transfer is requested by the Court. While the above
analysis has shown that the term “sending state” taken for itself may
not be sufficient to require an act of “sending” in the sense of an official
mission, the term “person of the sending state” may reasonably be construed to imply that persons must have been specifically sent by the
state. A more detached relationship with the sending state cannot suffice.118
117
118
In particular, the Statute uses the term “a person of that [the sending] State”
instead of “a national of that State”. Also compare the French version “une
personne relevant de cet Etat” and the German official translation “Überstellung eines Angehörigen des Entsendestaates” which support this reading. Apparently different Crawford/ Sands/ Wilde, see note 7, paras 43 and
45.
See, however, the Spanish version of the text, which is equally authentic
(article 128 ICC Statute). It reads “una persona sujeta a la jurisdicción de
ese Estado” (emphasis added).
See also Non-paper, German ICC Task Force, “ICC – Supportive Interpretation of and Commentary to the EU General Affairs Council Conclusions
on the International Criminal Court of 30 September 2002”, page 11, available at <www.iccnow.org/documents/USandICC/BIAs.html> (last visited
24 May 2004).
This interpretation also has consequences for the question of whether extradition treaties can possibly fall under article 98 (2), compare Crawford/
Sands/ Wilde, see note 7, para. 42; Meißner, see note 47, 128, maintains that
extradition treaties are generally covered by article 98 (2).
Max Planck UNYB 8 (2004)
214
bb. Consent of the Sending State
Furthermore, article 98 (2) requires that the agreement stipulates a requirement of prior consent of the sending state for a legal surrender of
the sent person to the ICC. This consent requirement does not necessarily have to be explicitly stated in the agreement. The existence and, if
applicable, the scope of the consent prerequisite, can be ascertained by
interpreting the instrument in question.119 As far as the bilateral nonsurrender agreements are concerned, the consent requirement is stated
in express terms.
c. Questions of Time of Conclusion of the “International
Agreement” in the Sense of Article 98 (2) of the Statute
Another issue is the frequently submitted view that article 98 (2) recognises only those agreements as giving rise to a competing obligation for
the purposes of the provision which were concluded before the entry
into force of the Statute for the requested state, or, even more restrictively, at the time of the signing of the ICC Statute.120
It has been correctly pointed out that the text of article 98 (2), the
starting point of any interpretation, does not in and of itself sustain
such a conclusion.121 The drafting history may support the argument
proffered; however, under the VCLT, the travaux préparatoires are of
restricted relevance to treaty interpretation,122 in that they can only
play a subsidiary role for the purpose of interpreting a norm, i.e. in order to confirm the interpretation found by application of article 31
VCLT, or to determine the meaning of a provision when the interpreta-
119
120
121
122
Meißner, see note 47, 130.
See Keitner, see note 98, 232; K. Ambos, “‘Verbrechenselemente’ sowie
Verfahrens- und Beweisregeln des Internationalen Strafgerichtshofs”, Neue
Juristische Wochenschrift 2001, 405 et seq. (409); Internal Opinion of the
Legal Service of the EU Commission, see note 48, 158.
Maikowski, see note 99, 206; Kreß, see note 56, MN 250; S. Zappalà, “The
Reaction of the US to the Entry into Force of the ICC Statute: Comments
on UN SC Resolution 1422 (2002) and Article 98 Agreements”, Journal of
International Criminal Justice 1 (2003), 114 et seq. (124).
See R. Bernhardt, “Evolutive Treaty Interpretation, Especially in the European Convention on Human Rights”, GYIL 42 (1999), 11 et seq. (14); C.F.
Amerasinghe, Principles of the Institutional Law of International Organizations, 1996, 55.
Benzing, U.S. Bilateral Non-Surrender Agreements
215
tion according to article 31 leaves the meaning ambiguous or obscure or
leads to manifestly absurd or unreasonable results.
Taking that into consideration, the step following a textual interpretation is the context in which the norm is placed within the Statute, including other provisions of the treaty.123 It has been observed that, in
contrast to article 98 (2), other provisions of Part 9 of the ICC Statute
do use language which limits their application to already existing
agreements. For example, arts 90 (6) and 93 (3) speak of “existing
agreements” and article 97 (c) even of “pre-existing treaty obligations”.124 From a systematic point of view, it is therefore not mandatory
to restrict the application of the norm in all cases to agreements concluded before the entry into force of the ICC Statute.125
Another aspect of contextual interpretation is the fact that article 98
is an exception to the general duty to co-operate as laid down in article
86. It has frequently been stated that, as a matter of principle, exceptions to a rule should be construed narrowly under international law,126
especially where the treaty does not allow for reservations,127 meaning
that of two possible readings of a norm, the one diverging less from the
123
124
125
126
127
J. Pauwelyn, Conflict of Norms in Public International Law – How WTO
Law relates to other Rules of International Law, 2003, 247.
In effect, article 97 equally extends to agreements concluded after the coming into force of the Rome Statute. This is, however, not a case of article 97
(c), but falls under the general ambit of the norm (procedure of consultation with the Court in case of problems with the execution of a request), of
which article 97 (c) is a mere illustrative example (Meißner, see note 47, 45,
at fn. 315).
Crawford/ Sands/ Wilde, see note 7, para. 38; apparently different Mori,
see note 55, 1015.
Zappalà, see note 121, 125; Internal Opinion of the Legal Service of the EU
Commission, see note 48, 158; Amnesty International, see note 6, 2; Fleck,
see note 48, 209. This rule is not uncontested, see EC Measures Concerning
Meat and Meat Products (Hormones), Appellate Body Report
WT/DS26/AB/R, WT/DS48/AB/R of 13 February 1998, para. 104: “(...)
[M]erely characterizing a treaty provision as an ‘exception’ does not by itself justify a ‘stricter’ or ‘narrower’ interpretation of that provision than
would be warranted by examination of the ordinary meaning of the actual
treaty words, viewed in context and in the light of the treaty’s object and
purpose, or, in other words, by applying the normal rules of treaty interpretation”. (reiterated in European Communities – Trade Description of
Sardines, Appellate Body Report WT/DS231/AB/R of 26 September 2002,
para. 272).
Article 120 ICC Statute.
216
Max Planck UNYB 8 (2004)
rule should be adopted. However, in this specific incident, this rule does
not seem to be helpful for interpretation, given that the text and context
do not leave the meaning of the norm ambiguous.
This is where an interpretation of the norm could end with the conclusion that article 98 (2) does not hinder a State Party to conclude bilateral agreements after the coming into force of the ICC Statute for
that party. Indeed, several scholars do take the position that the textual
and systematic interpretation inevitably sustain this position.128
However, interpretation of the norm must necessarily include reference to its object and purpose,129 which, along with the principle of in128
129
Akande, see note 55, 645; Zappalà, see note 121, 124; Crawford/ Sands/
Wilde, see note 7, paras 46 to 51; Mori, see note 55, 1036. The latter three
sources make the validity of bilateral non-surrender agreements subject to
the imposition by those agreements of a duty on the non-State Party to investigate and, if warranted, prosecute the person whose transfer to the ICC
is prevented by the agreement. This is either deduced from the object and
purpose of the ICC Statute as a whole, i.e. to prevent immunity and to ensure the effective prosecution of the most serious crimes, inconsistently
with which no State Party may enter into new agreements without breaching its obligations under articles 18 and 26 VCLT (Crawford/ Sands/
Wilde, see note 7, paras 48-49), or from the principle of complementarity
(Mori, see note 55, 1034-35). This seems to be in line with the EU Guiding
Principles, third indent.
Article 31 of the VCLT seems to limit the interpretation to the object and
purpose of the treaty as a whole, rather than allowing having regard to the
telos of individual provisions for their interpretation. Indeed, some authors
have consequently warned against relying on the object and purpose of
single provisions of a treaty (J. Klabbers, “Some Problems Regarding the
Object and Purpose of Treaties”, Finnish Yearbook of International Law 8
(1997), 138 et seq. (152)). Among the arguments proffered is that all provisions of the Vienna Convention featuring the term “object and purpose” do
so in relation to the treaty as a whole. In relation to article 31, this is on
first sight confirmed by the fact that a treaty is to be interpreted in accordance with the “ordinary meaning to be given to the terms of the treaty in
their [the terms’] context and in the light of its [the treaty’s] object and
purpose”. However, if this were true, then article 31 could never apply to
the interpretation of single treaty provisions, but only of whole instruments, as it begins with “a treaty shall be interpreted”, an eminently unreasonable result. Moreover, referring to the object and purpose of the treaty
as such may lead to unwarranted “interpretive activism” (see P. McRae,
“The Search for Meaning: Continuing Problems with the Interpretation of
Treaties”, Victoria University of Wellington Law Review 33 (2002), 209 et
seq. (221)). To avoid this, “treaty” in article 31 should be understood to in-
Benzing, U.S. Bilateral Non-Surrender Agreements
217
stitutional effectiveness, is of particular importance with respect to constitutive instruments of international organisations.130 As indicated
above, the object and purpose of the provision is the protection of the
requested State Party from a scenario where it has conflicting international obligations as to the sending state and the ICC, and consequently
would be faced with the choice of breaching one of those obligations.
In essence, article 98 (2) seeks to prevent that state from incurring state
responsibility by choosing to abide by one obligation while breaching
the other. While this rationale does not in itself give any guidance as to
whether bilateral non-surrender agreements concluded after the coming
into force of the ICC Statute fall within the scope of the provision, it
does limit its application if the following consideration is taken into ac-
130
clude individual treaty provisions, allowing to take into account the ratio
legis of single provisions. This is in line with doctrine prior to the adoption
of the Vienna Convention. See R. Bernhardt, Die Auslegung völkerrechtlicher Verträge, 1963, 89. This does not mean that the overall object and
purpose of the treaty may be disregarded to the effect that the treaty loses
coherence; the result reached by interpreting provisions in the light of their
object and purpose must always be checked against the overall purpose of
the treaty as a whole. See H.F. Köck, “Zur Interpretation völkerrechtlicher
Verträge”, Zeitschrift für öffentliches Recht 53 (1998), 217 et seq. (225); R.
Bernhardt, “Interpretation in International Law”, EPIL Vol. II 2, 1995,
1416. This procedure is in fact used in the case law of the WTO, which frequently refers to the object and purpose of individual provisions, compare
for instance: Canada – Certain Measures Affecting the Automotive Industry, Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R of 31
May 2000, para. 84; Argentina – Safeguard Measures on Imports of Footwear, Appellate Body Report WT/DS121/AB/R of 14 December 1999,
para. 91. See also M. Lennard, “Navigating by the Stars: Interpreting the
WTO Agreements”, JIEL 5 (2002), 17 et seq. (28); J. Trachtman, “The
Domain of WTO Dispute Resolution”, Harv. Int’l L. J. 40 (1999), 333 et
seq. (360).
See Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
ICJ Reports 1996, 66 et seq. (74); Dahm/ Delbrück/ Wolfrum, see note 41,
645; R. Jennings/ A. Watts, Oppenheim’s International Law, 9th edition,
Vol. I, parts 2 to 4 (1992), 1273 (at fn. 13); I. Seidl-Hohenveldern/ G. Loibl,
Recht der internationalen Organisationen einschließlich der Supranationalen Gemeinschaften, 7th edition, 2000, 247; D. Akande, “International Organizations”, in: M.D. Evans (ed.), International Law, 2003, 269 et seq.
(280); S. Young, “Surrendering the Accused to the International Criminal
Court”, BYIL 71 (2002), 317 et seq. (319).
Critical as to the significance of teleological interpretation in relation to
international organisations: Klabbers, see note 58, 2002, 102.
218
Max Planck UNYB 8 (2004)
count: wherever State Parties have manoeuvred themselves willingly
into a situation of competing international obligations after they have
become party to the Statute, they cannot in good faith take advantage of
the protection of article 98 (2). In other words, the object and purpose
of article 98 (2), i.e. to protect a State Party from inevitably competing
obligations, finds its limits where that State Party, cognisant of its duty
to co-operate fully with the Court, purports to effectively redefine or
limit its obligations under the ICC Statute by way of excluding the potential surrender of the nationals of one state under a bilateral agreement.131
This result is consistent with the overall object and purpose of the
ICC Statute, as expressed in its Preamble, i.e. to ensure that the most
serious crimes do not go unpunished, to put an end to impunity and to
contribute to the prevention of such crimes.132
An additional consideration also buttresses the result found: the
conclusion of an agreement that effectively prohibits a State Party from
complying with a request for arrest and surrender may reasonably be
considered a breach of the obligation to fulfil obligations of a treaty in
good faith (article 26 VCLT), i.e. the obligation to co-operate fully with
the Court in its investigation and prosecution of crimes within the jurisdiction of the Court as established under article 86 of the Statute, and
not to manoeuvre oneself into a position where such co-operation is
hampered or made impossible.133 In addition, the conclusion of such
agreements comes close to a mala fide redefinition of the jurisdiction
131
132
133
Kreß, see note 56, MN 250; Meißner, see note 47, 133. In essence, the mode
of interpretation adopted here is one of “teleological reduction”, meaning
that, even though from its text and context, a situation would fall under the
norm, it is excluded as the norm, as judging from its telos, is formulated in
too wide a manner. The scope of application of a norm thus is limited by its
object of protection (Schutzzweck). It should be added that this method is
not uncontested under international law. Compare A. Aust, Modern Treaty
Law and Practice, 2000, 188, who states that “having regard to the object
and purpose is more for the purpose of confirming an interpretation”.
Preamble, paras 4 and 5. Compare Dahm/ Delbrück/ Wolfrum, see note 41,
1159.
Meißner, see note 47, 133; Fleck, see note 48, 209; T. Stein, “Der
Internationale Strafgerichtshof – Start über Stolpersteine”, in: H. Fischer/
U. Froissart/ W. Heintschel von Heinegg/ Ch. Raap (eds), Krisensicherung
und Humanitärer Schutz – Crisis Management and Humanitarian
Protection, Festschrift für Dieter Fleck, 2004, 559 et seq. (571). For a
discussion of issues of state responsibility see at IV. 2.
Benzing, U.S. Bilateral Non-Surrender Agreements
219
ratione loci of the Court, as laid down in article 12 (2)(a) of the Statute.134 It is a well accepted principle of international law that no party
to a treaty may be exempt from its treaty obligations by way of breaching the treaty.135 This fact also bears on the interpretation of article 98
(2), given that treaties are generally to be construed “in good faith” (article 31 (1) VCLT).
Finally, the negotiating history confirms the results found. At the
Rome Conference, negotiators were concerned that states may be reluctant to ratify the Statute because of concerns to breach previously concluded agreements, in particular SOFAs and bilateral extradition treaties. Article 98 (2) was specifically introduced to address that concern.136
Thus, article 98 (2) does not cover agreements concluded by a State
Party with another state after the entry into force of the Statute for that
State Party. It is questionable whether the same applies to nonsurrender agreements concluded by a State Party after it has signed the
ICC Statute, but the treaty is pending ratification. The answer depends
on whether entering into such an agreement would defeat the object
and purpose of the treaty (article 18 (a) VCLT). Several authors have argued to this effect, since making the compliance with the obligation to
surrender pursuant to article 89 (1) dependent on the consent of a nonState Party would in essence be tantamount to a limitation of the jurisdiction of the ICC under Part 2 of the Statute.137
One may legitimately ask what scope of application, if any, this interpretation leaves for article 98 (2).138 Generally speaking, the norm
covers those agreements (e.g. SOFAs or supplementary agreements to
these) concluded before the entry into force of the ICC Statute which
fulfil the requirements set out above.
134
135
136
137
138
Kreß, see note 56, MN 250; see also M.A. Alcoceba Gallego, “La ilicitud
international de los acuerdos antídoto celebrados por Estados Unidos para
evitar la jurisdicción de la CPI”, Anu. Der. Internac. 19 (2003), 349 et seq.
(363).
A. Verdross/ B. Simma, Universelles Völkerrecht, Theorie und Praxis, 3rd
edition 1984, 522.
Werle, see note 68, 461.
Kreß, see note 56, MN 250, similar Meißner, see note 47, 134.
Especially if one agrees with Fleck’s view that neither standard SOFAs nor
extradition treaties fall under the provision, see note 48.
Max Planck UNYB 8 (2004)
220
d. Subsequent State Practice as an Interpretation Aid?
To give a complete account of the status of bilateral non-surrender
agreements under article 98 (2), it is important to point to the possibility of the States Parties to influence the interpretation of a treaty norm
by subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation (article 31 (3)(b)
VCLT).139 Such practice, to be considered an interpretation aid under
the VCLT, has to be concordant subsequent practice common to all
parties.140 Given the cacophonous reactions to United States efforts to
conclude such agreements, such homogeneous practice is hardly likely
to be distilled.141
4. Preliminary Conclusions
1. Bilateral non-surrender agreements are unproblematic as far as
they have been concluded between two non-States Parties, since the
ICC Statute does not impose any obligations on them in accordance
with arts 34 and 35 VCLT.
2. Article 98 (2) does not cover the non-surrender agreements concluded by the United States insofar as they have been concluded with
States Parties to the ICC Statute. First, they appear far too widereaching ratione personae in that they include all U.S. nationals. Second,
the interpretation of article 98 (2) has shown that it only applies to preexisting agreements.
139
140
141
Compare Kreß, see note 56, MN 250.
I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd edition,
1984, 138.
See Zappalà, see note 121, 126. Apparently different Akande, see note 55,
645.
Benzing, U.S. Bilateral Non-Surrender Agreements
221
IV. Consequences of the Inconsistency in the Light of
General International Law
1. Questions of the Law of Treaties concerning Conflicting
Obligations
The discussion under III. above proceeded on the basis of an intra-ICC
Statute perspective, i.e. from the point of view of the international organisation “International Criminal Court”, and endeavoured to show
how the organisation may tackle bilateral non-surrender agreements
under its own constitutive instruments.142 However, in the case of international organisations, two levels must be distinguished: the “internal” level of the organisation and the external level of general international law.143 Whereas the ICC, in the light of discussion above, may essentially disregard the non-bilateral U.S. non-surrender agreements
when applying Part 9 of the Statute, and States Parties remain under the
obligation to surrender, they are still concluded as international agreements which in principle bind those states which have concluded such
treaties with the United States, whether parties to the ICC Statute or
not, and have to be observed by them bona fide. This section analyses
the consequences of the inconsistency of the non-surrender agreements
and the ICC Statute under the international law of treaties.
One may conceive various possible effects of the discrepancy between the two instruments. These range from the invalidity of the bilateral non-surrender agreements, insofar as they are concluded with a
State Party, over their non-applicability to the validity and applicability
of both treaties. To decide this matter, international law concerning
conflicting treaty obligations under international law must be consulted.
a. Conflicts between Treaties under the Vienna Convention of 1969
It is generally assumed that a conflict between treaties arises where two
(or more) treaty instruments contain obligations which, being mutually
142
143
I.e., for the present purposes, the Statute of the International Criminal
Court and the Rules of Procedure and Evidence.
W. Karl, “Treaties, Conflicts between”, EPIL Vol. IV 2, 2000, 935 et seq.
(940).
222
Max Planck UNYB 8 (2004)
exclusive, cannot be complied with simultaneously.144 Whether such a
conflict exists is to be ascertained by way of interpreting the instruments in question, meaning that the possibility to reconcile the two potentially conflicting instruments by way of harmonising interpretation
has to precede the analysis of conflict.145 As has been shown, the ICC
Statute and the bilateral non-surrender agreements may indeed impose
conflicting obligations on a State Party with respect to the surrender of
United States nationals to the Court, meaning that a conflict situation in
the above sense is given.
The primary norm for resolving conflicts between treaty obligations
is article 30 VCLT.146 For article 30 to be applicable, both treaties, i.e. in
this case the ICC Statute and the bilateral non-surrender agreement,
would have to relate to “the same subject-matter”, as specified in the
chapeau and paragraph 1 of article 30. The term has not received much
attention in judicial decisions or doctrine, even though it is the prerequisite on which the applicability of article 30 depends.147 It has been argued in a somewhat general manner that the term should be construed
strictly as not to render it meaningless.148 Others have proposed a qualified test to give clearer contours to the term, submitting that treaties
deal with different subject-matters where the similarity between them is
not plainly evident.149 However, the majority of scholars appears to
construe the ordinary meaning of the term “relating to the same subject-matter” to be that a conflict or incompatibility between individual
provisions of a treaty exist.150 In the case at hand, both the ICC Statute
144
145
146
147
148
149
150
Karl, see above, 936; G. Marceau, “Conflict of Norms and Conflicts of Jurisdictions – The Relationship between the WTO Agreement and MEAs
and other Treaties”, JWTL 35 (2001), 1081 et seq. (1084).
Karl, see note 143, 938. W. Jenks, “The Conflict of Law-Making Treaties”,
BYIL 30 (1953), 401 et seq. (428).
Like the interpretation of article 31 proffered here, article 30 does not only
apply to entire treaties, but also to individual treaty provisions, E. Roucounas, “Engagements parallèles et contradictoires”, RdC 206 (1987), 9 et
seq. (79).
Compare R. Wolfrum, N. Matz, Conflicts in International Environmental
Law, 2003, 148; N. Matz, Wege zur Koordinierung völkerrechtlicher Verträge – Völkervertragsrechtliche und institutionelle Ansätze, forthcoming,
(Chapter 7 D), 2; Marceau, see note 144, 1090.
Aust, see note 131, 183; Sinclair, see note 140, 98.
Wolfrum/ Matz, see note 147, 151.
Pauwelyn, see note 123, 365; E.W. Vierdag, “The time of the conclusion of
a multilateral treaty: article 30 of the Vienna Convention on the Law of
Benzing, U.S. Bilateral Non-Surrender Agreements
223
as well as the non-surrender agreements evidently concern the same
subject-matter: the question under what circumstances a person may be
surrendered to the custody of the ICC.
Before looking at specific derogation rules contained in the Vienna
Convention, regard must be had to the will of the parties concluding a
treaty on the same subject-matter as they may have expressly provided
for a solution to a potential conflict between the treaties. Thus, under
article 30 (2) VCLT, the provisions of an earlier treaty shall prevail if a
second treaty stipulates that “it is subject to, or that it is not to be considered as incompatible with”, the first treaty. From its wording, the
provision does not require that the parties to both treaties are identical.151 This is confirmed by the systematic structure of article 30, as
only paras 3 to 5 differentiate between successive treaties to which all
states parties to the earlier treaty are parties, and those to which only
some are parties. It may thus be argued that by explicit reference to the
ICC Statute (“Bearing in mind article 98 of the Rome Statute”) the nonsurrender agreements are to be read in conjunction with, and shall be
compatible with the ICC Statute, and, in case of conflict, the ICC Statute is to prevail. However, this general reference cannot be regarded as a
conflict or subordination clause. Rather than anticipating conflict and
making provisions should it occur, the parties to these agreements obviously assume that they act in accordance with article 98 (2) and thus
do not provide for a rule of priority. Section 2005 (c)(2) ASPA also
seems be based on the assumption that the agreements fall within the
ambit of article 98 (2). Furthermore, given that it is the clear and unambiguous will of the parties to the agreements to prevent any surrender
of the persons listed to the Court, the agreements cannot be read subject to an autonomous interpretation of the ICC Statute. In other
words, applying article 30 (2) VCLT would distort the will of the parties.
Article 30 (3) not being applicable for lack of identity of parties, a
solution may be sought in article 30 (4) VCLT. Lit.(b) of the said provision specifies that “When the parties to the later treaty do not include
all the parties to the earlier one: (b) as between a State party to both
treaties and a State party to only one of the treaties, the treaty to which
both States are parties governs their mutual rights and obligations”. As
151
Treaties and related provisions”, BYIL 59 (1989), 75 et seq. (100); see also
Jennings/ Watts, see note 130, 1212 (fn. 2).
M. Zuleeg, “Vertragskonkurrenz im Völkerrecht Teil I: Verträge zwischen
souveränen Staaten”, GYIL 20 (1977), 246 et seq. (259).
224
Max Planck UNYB 8 (2004)
a prerequisite, article 30 (4) stipulates that the two treaties in question
are successive. To determine this temporal dimension, doctrine generally regards the time of the adoption of the treaty-texts as decisive,152
pursuant to which rule the 17 July 1998 would be the decisive date for
the ICC Statute. It follows that all bilateral non-surrender agreements
concluded by the United States to the present date are “later” treaties in
the sense of article 30 VCLT.
In effect, article 30 (4) VCLT does not solve the conflict between the
two treaties, in the sense of giving priority to one or the other, but
rather confirms the validity of both obligations,153 accepts the collision
and points to the law of state responsibility (article 30 (5)). In the case at
hand, the rule would thus result in a State Party having concluded a bilateral non-surrender agreement being obligated both under the ICC
Statute as to other State Parties and the Court, and the United States
under the bilateral agreement.
However, it is commonly accepted that article 30 (4) VCLT presupposes that a multilateral treaty forming one of the conflicting treaties in
question can be broken up in a series of bilateral engagements,154 in the
sense that the conclusion of successive agreements will not infringe
upon the legal position of States Parties to the earlier treaty.155 It does
not apply if treaties or obligations of an integral performance structure
are involved,156 where the force of the obligation for one party is not
dependent on a corresponding performance by the other as it is not of a
do ut des character.157 Whereas earlier doctrine has focused on identifying “law-making” or “normative” treaties (traités-lois as opposed to
152
153
154
155
156
157
Sinclair, see note 140, 98; W. H. Wilting, Vertragskonkurrenz im Völkerrecht, 1996, 83; Meißner, see note 47, 132. Critical Vierdag, see note 150, 92
et seq.
Pauwelyn, see note 123, 383.
P. Reuter, Introduction au droit des traités, 3rd edition, 1995, 120; Dahm/
Delbrück/ Wolfrum, see note 41, 694; Zuleeg, see note 151, 261; Wilting,
see note 152, 99; A. Bleckmann, Völkerrecht, 2001, 130.
B. Simma, “From bilateralism to community interest in international law”
RdC 250 (1994 VI), 216 et seq. (349).
Simma, see above, 349.
Compare Third Report by G.G. Fitzmaurice, Doc. A/CN.4/115, reprinted
in: ILCYB 1958 (II), 20 et seq. (27 (article 19) and 44 (commentary)); S.
Rosenne, Breach of Treaty, 1985, 87; Simma, see note 155, 336-337.
Benzing, U.S. Bilateral Non-Surrender Agreements
225
traités-contrats) and treaties establishing an objective regime158 as treaties not susceptible to “bilateralisation”, this distinction has not been
followed by the Vienna Convention159 or international case-law, and is
rejected by a majority of scholars, especially since most treaties include
provisions both of the classical contractual type and of general rules not
of a reciprocal nature.160 As opposed to categorising entire treaties, it is,
however, accepted that specific treaty obligations may have differing
performance structures. Whereas some multilateral treaty obligations
are essentially bilateral in their application, such as those contained in
the Vienna conventions on diplomatic and consular relations, or treaties
concerning humanitarian law, others are of a not mutually reciprocating
(or synallagmatic) nature, but may more properly be labelled obligations erga omnes partes.161 This type of obligation is characterised by
the fact that their performance is not (merely) effected as between States
Parties to the treaty, but “rights and obligations of the parties to such
treaties or particular treaty provisions are inextricably interrelated,
form an indivisible whole, so that the obligations contained therein are
integral in the sense of simply having to be performed by every party
vis-à-vis every other party”.162
Pigeon-holing the co-operation part of the ICC Statute into a category seems difficult. It is clear that the Statute does not, in the majority
of its provisions, establish rights and duties as between the parties in the
classical sense. It rather, and primarily, sets up an international organisation with international legal personality and, at its centre, with a judicial
body having jurisdiction over the most serious crimes, which are committed by individuals. In some way, it is thus similar to human rights
treaties, which also concern the position of the individual and thus are
not effected between States Parties in the above sense. On the other
hand, the Statute also resembles the Genocide Convention, where “the
contracting states do not have any interest of their own; they merely
158
159
160
161
162
See ICJ, Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174 et seq.; Wilting, see note 152, 99 et seq.; E.
Klein, Statutsverträge im Völkerrecht, 1980, 275 et seq.
Compare Brownlie, see note 59, 608.
Simma, see note 155, 335.
As opposed to obligations erga omnes, denoting obligations which are
owed to the international community as a whole, which, in terms of treaty
law, is an exception to the pacta tertiis rule. See L.A. Sicilianos, “The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility”, EJIL 13 (2002), 1127 et seq. (1136).
Simma, see note 155, 336 (emphasis added).
226
Max Planck UNYB 8 (2004)
have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d’être of the convention”.163
Consequently, with regard to the performance structure of the Statute
in general, just like in the case of the Genocide Convention, one “cannot speak of individual advantages to states, or the maintenance of a
perfect contractual balance between rights and duties”.164 In the light of
these characteristics, it is reasonable to conclude that the ICC Statute
establishes obligations erga omnes partes which cannot be exhaustively
be described as a mere bundle of bilateral obligations.165 This conclusion is supported by the fact that obligations as set up by the Statute are
not only owed to other States Parties, but also, and in the case of cooperation duties primarily, to the international organisation “ICC”.
One could object to this analysis by contending that the typology
presented above is valid only as regards substantive treaty obligations as
opposed to purely formal-procedural obligations,166 arguing that the
crimes under the Statute, and possibly the jurisdiction and admissibility
provisions of the Statute share this integral character. However, given
that the co-operation obligations of States Parties with the Court as
contained in Part 9 are essential to the functioning of the organisation
and the achievement of its aims, those obligations cannot be deemed to
be of a merely “formal-procedural” character in the above sense, but are
better characterised as integral in nature. Exceptions to these obligations, such as article 98, necessarily partake in this nature.
For this erga omnes partes type of obligations, the VCLT does not
contain any conflict rule, or even a rule that would declare both obligations conflicting with one another valid, a question left open by the
ILC.167 Given that the Convention thus does not regulate the present
issue it is necessary to turn to customary international law.
163
164
165
166
167
ICJ, Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, ICJ Reports 1951, 15 et seq. (23).
Ibid.
See also Young, see note 130, 347: “The relationship [between the ICC and
a State Party] is not intended to be reciprocal as the ICC is an instrument
of the States Parties designed to serve their interests in complementary effective prosecution”.
Simma, see note 155, 337.
Rosenne, see note 157, 89.
Benzing, U.S. Bilateral Non-Surrender Agreements
227
b. Conflicts between Treaties under Customary International Law
In theory, different solutions are imaginable to filling the lacuna left by
the VCLT. These range from invalidity of the later conflicting treaty or
treaty provision,168 over its inapplicability,169 to validity and applicability of both.170 These options will be discussed in turn:
(1.) Invalidity of the later treaty, or at least the conflicting norms of
the later treaty: in the work of the ILC leading up to the adoption of
the VCLT, Sir Hersch Lauterpacht proposed that a treaty be void if its
performance involved breach of a treaty obligation previously undertaken by one or more of the contracting parties, subject to the condition that the departure from the terms of the prior treaty was such as to
interfere seriously with the interests of the other parties, or seriously
impair the original purpose of the treaty.171 A similar, though more differentiated solution was later adopted in the report prepared by Sir G.
Fitzmaurice, limiting the consequence of invalidity of the later treaty to
situations where the earlier treaty was a multilateral agreement of an
“interdependent” or “integral” type, and where the later treaty conflicted “directly in a material particular with the earlier treaty”.172 Invalidity of conflicting later treaties or individual provisions thereof, except
168
169
170
171
172
This is in line with the classical doctrine before the VCLT, compare E. de
Vattel, Le droit des gens ou principles de la loi naturelle, Vol. I, 1785, 448, §
315; J.C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als
Rechtsbuch dargestellt, 1868, 236 (Article 414); Ch. Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”,
RGDIP 39 (1932), 133 et seq. (139); G. Scelle, “Règles générales du droit de
la paix”, RdC 46 (1933), 331 et seq. (472); H. Lauterpacht, “Règles générales du droit de la paix”, RdC 62 (1937), 100 et seq. (308). The opinion is
principally based on the lack of legal capacity to enter into the conflicting
second agreement, see Central American Court of Justice, Costa Rica v.
Nicaragua, AJIL 11 (1917), 181 et seq. and P.M. Brown, “Costa Rica v.
Nicaragua”, ibid., 156 et seq. (156). For a differing view see Lord McNair,
The Law of Treaties, 1961, 220 et seq.
Dahm/Delbrück/ Wolfrum, see note 41, 694.
Wilting, see note 152, 99; W. Czapliński/ G. Danilenko, “Conflicts of
Norms in International Law”, NYIL 21 (1990), 3 et seq. (27).
First Report by Mr. H. Lauterpacht on the Law of Treaties, Doc.
A/CN.4/63, reprinted in: ILCYB 1953 (II), 90 et seq. (156 et seq.); Second
Report by H. Lauterpacht on the Law of Treaties, Doc. A/CN.4/87, reprinted in: ILCYB 1954 (II), 123 et seq. (133 et seq.).
Third Report by G.G. Fitzmaurice, see note 157, 28 (article 19).
228
Max Planck UNYB 8 (2004)
from collisions with jus cogens norms, were later on abandoned by Sir
H. Waldock. The rule was deliberately not included in the VCLT173 and,
considering its drastic consequence of nullity and its tension with the
principle of pacta sunt servanda, cannot be regarded as part of international law as it stands today.
(2.) Validity, but inapplicability of the later treaty: Another option is
to avoid the consequence of invalidity of the later treaty, and generally
regard the later, conflicting treaty or norm as illegal and inapplicable,174
or, in other words, to give the obligation of the earlier treaty precedence
over the one assumed in the later agreement.175 Some scholars contend
that with the development of international law, in particular its constitutionalisation, treaties creating integral obligations have acquired a
higher status in the hierarchy of norms and that, consequently, the later
conflicting treaty should be, if not void, then at least inapplicable.176
(3.) Validity and applicability of both treaties: The majority view applies the principle of political decision or political choice177 to the situation at hand. The state having concluded two conflicting treaties is
bound by both obligations and has to decide which obligation to abide
by in case of conflict. Ultimately, this view points to the law of state responsibility for a reconciliation of interests.178 This view is supported
by the fact that the VCLT, recognised in large parts to be indicative of
customary international law, does not recognise one treaty claiming
primacy over another, but only clauses in one treaty conferring primacy
upon another treaty.179 It has likewise been convincingly argued that it
173
174
175
176
177
178
179
See ILC Final Draft, Commentary to article 26, para. 13, reprinted in: R.G.
Wetzel/ D. Rauschning, The Vienna Convention on the Law of Treaties –
Travaux Préparatoires, 1978, 231 et seq. (235).
P. Daillier/ A. Pellet, Droit international public, 6th edition, 1999, 271.
Harvard Draft Convention on the Law of Treaties, AJIL 29 (1935), Supplement, 1024.
Dahm/ Delbrück/ Wolfrum, see note 41, 694; Jennings/ Watts, see note
130, 1215, § 591.
Pauwelyn, see note 123, 427; Klein, see note 158, 284; J. Combacau/ S. Sur,
Droit international public, 5th edition, 2001, 160; G. Schwarzenberger/
E.D. Brown, Manual of International Law, 6th edition, 1976, 131.
Wilting, see note 152, 110.
With the exception of Article 103 UN Charter. Compare E. Suy, “Constituent Treaties of International Organizations and the Hierarchy of
Norms”, in: U. Beyerlin/ M. Bothe/ R. Hofmann/ E.U. Petersmann (eds),
Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt, 1995, 267 et seq. (277).
Benzing, U.S. Bilateral Non-Surrender Agreements
229
respects the fundamental principles of pacta tertiis180 and pacta sunt servanda.181 These principles speak against invalidity or inapplicability of
the later treaty. Furthermore, it would seem that the principle of political decision is an appropriate rule for a legal order that is still characterised by a multitude of sovereign and equal law-makers.182
There is, however, incontestably a tendency in international law, in
particular in doctrine, towards the emergence of an “international public legal order” shared by the international community as a whole. This
process is sometimes described as “constitutionalisation”,183 a term capturing a plethora of phenomena on the international plane, such as the
increased role of civil society for international law,184 the status of individuals, in particular with respect to human rights law,185 the establishment of more and more international institutions which co-ordinate
and increasingly regulate the behaviour of states,186 and in particular the
180
181
182
183
184
185
186
J.B. Mus, “Conflicts Between Treaties in International Law”, NILR 45
(1998), 208 et seq. (226); H. Kelsen, The Law of the United Nations, 1950,
114.
F. Poirat, Le traité, acte juridique international – Recherches sur le traité international comme mode de production et comme produit, 2004, 117; I.
Seidl-Hohenveldern, “Hierarchy of Treaties”, in: J. Klabbers/ R. Lefeber,
Essays on the Law of Treaties – A Collection of Essays in Honour of Bert
Vierdag, 1998, 7 et seq. (18).
Zuleeg, see note 151, 267. This does not mean that international law as a legal order is necessarily imperfect: “If a legal system leaves a party to conflicting transactions to extricate itself as well as it can from its embarrassing
situation and does not perform this task for it, this is not necessarily a deficiency of the legal system in question”; G. Schwarzenberger, International
Law, Vol. I (International Law as Applied by International Courts and Tribunals I), 3rd edition, 1957, 482.
See J.A. Frowein, “Konstitutionalisierung des Völkerrechts”, in: K. Dicke/
W. Hummer/ D. Girsberger et al. (eds), Völkerrecht und Internationales
Privatrecht in einem sich globalisierenden internationalen System, Berichte
der Deutschen Gesellschaft für Völkerrecht 39 (2000), 427 et seq.
Congo v. Belgium, see note 63, Dissenting Opinion of Judge Van den Wyngaert, 622 et seq. (629, para. 27): “(...) [T]he opinion of civil society (...) cannot be completely discounted in the formation of international law today”.
For a critical comment on this statement see Ch. Maierhöfer, “Weltrechtsprinzip und Immunität: das Völkerstrafrecht vor den Haager Richtern”,
EuGRZ 30 (2003) 549 et seq.
See A. Fischer-Lescano, “Die Emergenz der Globalverfassung”, ZaöRV 63
(2003), 717 et seq. (750).
Compare Klabbers, see note 58, 102.
230
Max Planck UNYB 8 (2004)
proliferation of international courts adjudicating state disputes, but also
determining the legal situation of individuals, in a binding manner.
According to some proponents of constitutionalisation, some principles, and consequently the instruments in which those principles are
enunciated, have acquired, or are at least in the process of acquiring, a
status higher than other norms of international law. This emergence is
already reflected in the recognition of jus cogens by the VCLT187, the
ICTY,188 and in principle also the ICJ,189 as much as the special status of
obligations flowing from the UN Charter (Article 103). However, a
higher rank is also claimed for other norms. For instance, it is argued
that the conclusion of multilateral treaties covering broad subjectmatters by a substantial number of states has assumed the role of an international legislature inasmuch as these concern the protection of
common interests which are of fundamental importance to the international community as a whole,190 leading to an elevated status of such
norms.
It is nevertheless questionable whether these developments reach as
far as rendering inapplicable (or even void) a later treaty that conflicts
with norms of an earlier treaty which are not of a jus cogens character.
As a matter of lex lata, the hierarchical structure of the international legal system is at best “rudimentary”.191 Our discussion thus leads to the
187
188
189
190
191
Articles 53 and 64. For a discussion of the concept of jus cogens as a constitutional principle of international law see M. Byers, “Conceptualising the
Relationship between Jus Cogens and Erga Omnes Rules”, Nord. J. Int’l L.
66 (1997), 211.
Prosecutor v. Furundžija, Trial Chamber, Case No. IT-95-17/1-T, reprinted
in: ILM 38 (1999), 317 et seq. (349, para. 155).
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), ICJ Reports
1969, 3 et seq. (42, para. 72); Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), ICJ Reports
1986, 14 et seq. (100, paras 190 et seq.). Compare also Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, 325
et seq., Separate Opinion of Judge Lauterpacht, 407 et seq. (439, para. 100).
Dahm/ Delbrück/ Wolfrum, see note 41, 694.
Th. Cottier/ M. Hertig, “The Prospects of 21st Century Constitutionalism”, Max Planck UNYB 7 (2003), 261 et seq. (271); C. Walter, “Constitutionalizing (Inter)national Governance – Possibilities for and Limits to the
Development of an International Constitutional Law”, GYIL 44 (2001),
170 et seq. (201).
Benzing, U.S. Bilateral Non-Surrender Agreements
231
conclusion that a State Party having entered into a bilateral nonsurrender agreement with the United States will be obliged to both the
United States and the ICC in case of a request for surrender by the
Court, in a conflicting manner: on the one hand, it must surrender the
person concerned to the Court, on the other hand, it is prohibited from
doing so by the bilateral agreement.
2. Questions of State Responsibility
As noted, a State Party which has concluded a bilateral non-surrender
agreement inconsistent with article 98 (2) will nevertheless be validly
bound by both treaties. Both obligations being mutually exclusive, this
may give rise to state responsibility of this State Party. It is questionable
if this responsibility arises only once a request by the Court has been issued and the State Party refuses to surrender the person in reliance on
the non-surrender agreement, or whether the mere conclusion of the
agreement entails such accountability.
It is incontestable that, if a State Party decides not to surrender a
person contrary to a valid request by the ICC in pursuit of its obligations to the United States under a non-surrender agreement, this party
will be in breach of the ICC Statute and incur state responsibility both
towards the international organisation ICC and all other States Parties.192 Accordingly, the Court could make a finding to that respect and
refer the matter to the Assembly of States Parties or the Security Council, as specified in article 87 (7).
A further question is whether the conclusion of an agreement that
goes beyond the scope accepted by article 98 (2) in itself amounts to a
breach of a State Party’s obligations under the ICC Statute. As has been
indicated, article 98 (2) does not impose any direct obligations on states;
it rather obligates the Court not to request surrender if states have conflicting duties towards other states. It has also been rightly observed
that it does not explicitly prohibit States Parties the conclusion of
agreements that may cause a conflict of obligations with the cooperation regime of the Court.193
192
193
Unless the person the arrest or transfer of which is requested falls under a
category protected by article 98 (1) ICC Statute, see at III. 2.
Crawford/ Sands/ Wilde, see note 7, para. 21.
232
Max Planck UNYB 8 (2004)
In contrast, other treaties do include specific provisions regulating
the question of Member States concluding agreements that could potentially conflict with those treaties (e.g. article 311 (3) of the 1982 United
Nations Convention on the Law of the Sea194, and article 8 of the 1949
North Atlantic Treaty195). Consequently, Crawford, Sands and Wilde
argue that the “act of becoming a party to a bilateral non-surrender
agreement, if it went beyond the scope of the agreements permitted under Article 98 (2)” could not constitute a breach of the relevant cooperation obligations of the ICC Statute, given that, at this stage in
time, it is not clear for which of the two contradictory obligations the
State Party will opt when a request for surrender by the Court is
made.196 At first glance, this view seems to be consistent with the principle of political decision as known in the law of treaties which applies
to the situation at hand.
However, the silence of article 98, and Part 9, of the ICC Statute to
that effect does not necessarily portend that obligations under the Statute may not be breached already by the mere conclusion of nonsurrender agreements in their present form, but only once a State Party
“invokes” an incompatible obligation arising from a bilateral nonsurrender agreement in order to oppose the request for surrender by
the Court. The fact that the conclusion of a treaty may breach another,
earlier, agreement, is well accepted in doctrine197 and case law of inter194
195
196
197
“Article 311: Relation to other conventions and international agreements
[...] (3) Two or more States Parties may conclude agreements modifying or
suspending the operation of provisions of this Convention, applicable
solely to the relations between them, provided that such agreements do not
relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided
further that such agreements shall not affect the application of the basic
principles embodied herein, and that the provisions of such agreements do
not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. [...]”
“Each Party declares that none of the international engagements now in
force between it and any other of the Parties or any third State is in conflict
with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty”.
Crawford/ Sands/ Wilde, see note 7, para. 23, fn. 4. This analysis is supported by Kelsen, see note 180, 114: “According to general international
law, it is not the act of concluding a treaty inconsistent with a previous
treaty, but the nonfulfilment of this or the other treaty which is illegal”.
Reuter, see note 154, 99; Rosenne, see note 157, 85 et seq.; Combacau/ Sur,
see note 177, 160; Vierdag, see note 150 argues that the earliest possible
Benzing, U.S. Bilateral Non-Surrender Agreements
233
national courts.198 As demonstrated, this may also be explicitly provided for in the text of treaties. Equally, article 30 (5) VCLT provides
that para. 4 of that provision “is without prejudice to any question of
responsibility which may arise for a State from the conclusion or application of a treaty, the provisions of which are incompatible with its obligation under another treaty”.199 The definition makes clear that a distinction must be made between the conclusion and the application of
the treaty, i.e. the acting upon the obligations incurred under the instrument.200
It is thus a matter of construction of the instrument in question
whether the conclusion of a treaty entails international responsibility,
or whether some subsequent action in pursuance of the treaty is required.201 In this context, for the purposes of dealing with conflicts of
norms, Pauwelyn differentiates between an “inherent normative conflict”, i.e. one norm, in and of itself, breaches the other, as opposed to a
“conflict in the applicable law”. According to him, the first case is
given, inter alia, where a multilateral treaty explicitly prohibits the conclusion of certain inter se agreements or where it breaches a norm of jus
cogens.202 On the other hand, a conflict in the applicable law occurs if
compliance with, or the exercise of rights under, one of the two norms
constitutes a breach under the other norm.203 Analysed in accordance
with these two categories, the conflict between bilateral non-surrender
agreements and article 98 (2) ICC Statute would have to be classified as
a conflict in the applicable law, as the State Party faced with competing
198
199
200
201
202
203
point in time for international responsibility to arise is the entering into
force of the second treaty (p. 106).
PCIJ Advisory Opinion, Customs Regime Between Germany and Austria,
Series A/B, No. 41, 5 September 1931; Judgment of the Central American
Court of Justice, Costa Rica v. Nicaragua, reprinted: in AJIL 11 (1917),
181-229. Compare also: ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, 15 et
seq. (21): “It is [...] a generally recognised principle that a multilateral convention is the result of an agreement freely concluded upon its clauses and
that consequently non of the contracting parties is entitled to frustrate or
impair, by means on unilateral decisions or particular agreements, the purpose and raison d’être of the convention”. (emphasis added).
See also article 73 VCLT.
Compare Vierdag, see note 150, 106.
Jennings/ Watts, see note 130, 1214, § 591.
Pauwelyn, see note 123, 176.
Pauwelyn, see note 123, 275.
234
Max Planck UNYB 8 (2004)
obligations would still have to decide which obligation it wants to
comply with. As observed, a norm that would expressly proscribe the
conclusion of agreements inconsistent with Part 9 is not contained in
the ICC Statute. As a result, the conclusion of a bilateral non-surrender
agreement would not automatically entail a breach of the ICC Statute.
However, one could consider a possible breach of a different obligation: the obligation to perform treaties in good faith. Pursuant to article
86, States Parties owe full co-operation with the Court (a.) to the
Court, and (b.) to all States Parties, in all forms specified in Part 9, except where the Statute itself recognises an exemption from that duty.
Independently from the duty to comply with a request for surrender by
the Court under article 89 (1) which arises only when the Court in fact
makes a request, a State Party has the obligation to fulfil its treaty obligations in good faith pursuant to article 26 VCLT. This obligation comprises the rule not to defeat the object and purpose of a treaty (see article 18 VCLT as an obligation preceding the obligation in article 26, yet
contained therein),204 in particular not to conclude a later treaty that is
inconsistent with an earlier one.205 It is also recognised that the breach
of the obligation to fulfil a treaty in good faith may lead to state responsibility.
In the present circumstances, it may well be argued that it is an essential aspect of complying bona fide with the ICC Statute not to bring
oneself in a position where the also future compliance with a duty under a treaty is put in danger or even made impossible.206 This is even
more so where the entering of that situation is made in full knowledge
of the possible conflicts with the ICC Statute, and even with the express
intent to make such compliance impossible.207 The conclusion of bilateral non-surrender agreements does indeed endanger the future compliance with potential requests for surrender by the Court. As a conse204
205
206
207
See also article 60 (3)(b) VCLT.
Dahm/ Delbrück/ Wolfrum, see note 41, 602.
Meißner, see note 47, 133; Kreß, see note 56, MN 250, who says that it is
impermissible “to consciously put oneself in a position which establishes
obstacles for an unqualified implementation of requests for surrender”. In
this context, one should also take into consideration that “abstract treaty
rules are intended to become in due time sources of concrete rights and obligations of States” (compare Vierdag, see note 150, 97).
One could argue that the State Party concluding the agreement will regularly think that it moves within the boundaries of the Rome Statute. However, intent or blameworthiness is not a prerequisite for international responsibility, compare Brownlie, see note 59, 425-427.
Benzing, U.S. Bilateral Non-Surrender Agreements
235
quence, it is reasonable to say that their very conclusion may constitute
a breach of the obligation to perform treaties in good faith,208 entailing,
as a secondary obligation the cessation of the breach, that is the suspension or termination of the later treaty.209
V. Concluding Remarks
The above discussion has shown that bilateral non-surrender agreements raise numerous questions regarding their compatibility with article 98 of the ICC Statute, as well as the law of treaties and state responsibility. In particular with regard to questions of treaty interpretation
and conflicts between treaties, it is evident that scholarly consensus on
those fundamental areas of international law appears to be relatively
limited and merits further examination.
In terms of article 98 (1), it may be concluded that some of the intended beneficiaries of bilateral non-surrender agreements already fall
under the scope of this norm, subject, however, to future developments
in the law of state immunity.
Whether one agrees with the statement that bilateral non-surrender
agreements attempt to “pervert” article 98 (2) or not,210 the analysis has
shown that they are not consistent with the provision, and that, as a
consequence, the Court may essentially disregard them and is not hindered from requesting the surrender of a person purportedly “protected” by such an agreement. States Parties having concluded such
agreements remain under the duty to surrender the person requested to
the Court. Given that a request for surrender of a United States national by the ICC is highly unlikely, it is uncertain whether the issues
discussed are ever going to be the subject of judicial scrutiny by the
Court; much speaks for the assumption that this will at least not be the
case in the foreseeable future, as the Court still has to find its place
within the international system and may not reasonably be expected, as
a matter of policy, to confront the only remaining superpower in one of
its early cases.
208
209
210
See International Law Association, Berlin Conference (2004), Committee
on the International Criminal Court, First Report, prepared by W.A. Schabas, available at <www.ila-hq.org> (last visited 3 August 2004), 18.
Combacau/ Sur, see note 177, 160.
W. Schabas, An Introduction to the International Criminal Court, 2nd edition, 2004, 81.
Max Planck UNYB 8 (2004)
236
It is equally doubtful, in the light of the recent developments in the
UN Security Council regarding the opposition to utilise article 16 of
the ICC Statute as a general exemption clause,211 whether the United
States will reconsider its policy on the negotiation of non-surrender
agreements. In the short term perspective at least, a further push in diplomatic activity aimed at the conclusion of as many agreements as possible is to be expected.
It is to be hoped that, through a prudent and well-balanced approach in its first prosecutorial and judicial activities, the Court will be
able to convince its opponents that the concerns and fears apparently
raised by it are largely exaggerated and unfounded. In the meantime,
the best way to proceed would seem to be to “learn to deal with rejection”.212
211
212
See above under II. 2. a.
Reisman, see note 5.
The True Challenge to the United Nations
System of the Use of Force:
The Failures of Kosovo and Iraq and the
Emergence of the African Union
Jean Allain*
I.
II.
Introduction
Established Parameters of the Use of Force
1. Self-Defence (Article 51)
2. Security Council Mandate (Article 42)
3. Chapter VIII of the United Nations Charter
III. Ad Hoc Use of Force beyond the United Nations System
1. Kosovo – Humanitarian Intervention
2. Iraq – Pre-emptive Self-Defence
IV. Decisive Factors in the African move away from the United Nations
System
1. ECOWAS in Liberia and Sierra Leone
2. Rwanda and the Failure of the UN Security Council
V.
The African Union Regime for Peace and Security
1. The Peace and Security Council
2. The Peace and Security Council in Conjunction with ...
a. The Chairperson of the Commission
aa. Assisted by Continental Early Warning System
bb. Commander and Chief of the African Standby Force
cc. Chief Fund Raiser for the Peace Fund
b. The Panel of the Wise
c. The Relationship with Regional Mechanisms
VI. Institutionalized Use of Force beyond the United Nations System
1. Article 4 (h) – Interventions in Respect of Grave Circumstances
2. Article 4 (j) – Intervention in Order to Restore Peace and Security
VII. Relationship between the African Union and the United Nations
VIII. Conclusion
238
Max Planck UNYB 8 (2004)
I. Introduction
Since the end of the Cold War, much international attention has been
focused on the use of force outside the parameters of the United Nations Charter. While attempts have been made to justify actions in Kosovo and Iraq based on evolving – customary – norms of international
law, little consensus has emerged regarding state practice or opinio juris
which would allow for an expansion of legal recourse to the use of force
beyond self-defence or actions undertaken by the UN Security Council
to ensure international peace and security.
Yet, quietly, a much more fundamental challenge to the United Nations system has materialized which institutionalizes exceptions to the
use of force which go beyond both the scope of self-defence and actions
undertaken by the UN Security Council. Fundamental, this is due to
the fact that these exceptions are not based on the ill-defined vagaries of
customary law but are constituted by international treaties which override the provisions of Chapter VII of the UN Charter. Thus, the coming into force of the Protocol Relating to the Establishment of the Peace
and Security Council of the African Union, which operationalizes the
provisions of the Constitutive Act of the African Union, is the first true
blow to the constitutional framework of the international system established in 1945 predicated on the ultimate control of the use of force by
the United Nations Security Council.
The implosion of the Soviet Union in 1989 marked an end to the
Cold War and ushered in a decade of uncertainty which was manifest in
the label which was given to it. Unable to establish a coherent metanarrative which could encapsulate the geopolitics of the 1990s, the international system was considered as an appendage of what had come
before it, and thus the term “post-Cold War” became common currency. Though lacking a distinct identity, the 1990s was, most evidentially, a decade which differed from that which preceded it. Where previously, at the apex of the struggle between East and West – within the
United Nations Security Council – the Soviet Union and the United
States of America had their actions frozen by their reciprocal veto
power, the post-Cold War era allowed the United States to gain sway.
Having emerged from a deep thaw, the UN Security Council was able
to assert itself in ways that it previously had not been able. The ability
of the UN Security Council to act was a manifestation of what appeared to be the emergence of a multilateral system predicated on the
dominance of the United States. This new found vigour of the UN Security Council and the lead role of the United States was made most
Allain, The True Challenge to the UN System
239
evident in 1990 Declaration of the then US President George Bush of a
“New World Order”. By comparison, the events of 11 September 2001,
marked the emergence of a new international framework. This framework has as its meta-narrative the “War on Terror” and is manifest in
the growing assertiveness of American unilateralism beyond the parameters of the accepted norms regarding the use of force.
Since the end of the Cold War, therefore, the United States has increasingly sought to assert its dominant position internationally, acting
with the consent of the UN Security Council where it could manage its
support; but progressively choosing to act beyond the UN Charter
where it lacked the co-operation of the Security Council. In the wake of
the United States’ use of force outside the parameters of the UN Charter, has followed a number of jurists who have sought to justify American actions as being legal, by recourse to either a widening of the notion
of self-defence or by developing new exceptions to permissible use of
force, most notably that of “humanitarian intervention”. Short of having established a treaty which incorporates this expanded notion of the
use of force, what would be required to establish the normative value of
such an expansion would be the creation of customary law which is
based on state practice and opinio juris. While debates have raged as to
the legality of various actions led by the United States, the newly established African Union, having learnt the lesson of UN inaction in
Rwanda and witnessed effective interventions without UN Security
Council authorization by West African states in Sierra Leone and Liberia, decided to forego the need to seek approval of the Council to act on
the African continent. Furthermore, with the coming into force in December 2003, of the Protocol establishing an African Peace and Security
Council, African states have introduced the use of four new justifications allowing for the invocation of the use of force, thus widening the
parameters of what is to be considered as legal projection of military
might on the continent.
Before considering attempts to justify evolving customary exceptions to the use of force or the new conventional exceptions laid down
by the African Union, a review of the established parameters of the use
of force is required to expose the limits of what is currently accepted by
states as the established law.
Max Planck UNYB 8 (2004)
240
II. Established Parameters of the Use of Force
As conceived in 1945, the United Nations Charter allows for three
situations in which the use of force is permissible. Of these three exceptions, the provisions regarding ‘enemy states’ no longer holds, as they
are dead-letter law. Articles 53 and 107 of the Charter allowed for the
recourse, by the UN Security Council, to the use of force against a state
“which during the Second World War has been an enemy of any signatory of the present Charter”, whereby that enemy state would rear its
head with a “renewal of [an] aggressive policy”1. As Georg Ress notes
in Bruno Simma’s commentary on the United Nations Charter, since
“all former enemy states have become members of the UN there are no
cases where Art. 53 […] might be applied. It was conceived as a transitional provision and has become obsolete”2. Putting aside the provisions regarding “enemy states”, the United Nations Charter thus allows
for only two exceptions to an overall prohibition against the use of
force as manifest in Article 2 (4) of the Charter which establishes, as a
Principle of the United Nations Organization, that:
“All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.”
These exceptions are self-defence, as noted in Article 51, and action,
under Article 42, taken by the UN Security Council so as to ensure
international peace under Chapter VII of the UN Charter.
1. Self-Defence (Article 51)
The first exception to the use of force is Article 51 of the Charter which
provides for an inherent right to self-defence, either individually or col-
*
1
2
Author of International Law in the Middle East: Closer to Power than Justice, 2004; and A Century of International Adjudication: The Rule of Law
and its Limits, 2000.
See primarily Article 53 UN Charter.
B. Simma (ed.), The Charter of the United Nations: A Commentary, 1995,
751. Note that Dailler and Pellet speak of the provisions being caduques,
that is: null and void. See P. Dailler/ A. Pellet, Droit International Public,
1994, 887.
Allain, The True Challenge to the UN System
241
lectively, but does so under the ultimate control of the United Nations
Security Council. Article 51 reads:
“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and security.”
As a result, even in situations where a state is acting in self-defence,
it must ultimately yield to the international order as established by the
United Nations Charter, and the dictates of the UN Security Council.
Though one must emphasize that such dictates do not vitiate a state’s
“inherent right” of self-defence if the Council does not act effectively.
As the obsolete nature of the provisions of Articles 53 and 107 regarding “enemy states” indicate, the United Nations Charter is not necessarily a static document, instead its provisions may evolve over time.
Beyond provisions falling into abeyance such as those regarding the
Military Staff Committee under Chapter VII of the Charter, other provisions are understood to have been modified so as to be interpreted in
a manner which is not obvious from an ordinary reading of the Charter.
Consider two examples: first, that Russia now sits in the seat of the
United Nations Security Council which by virtue of Article 23 belongs
to the Union of Soviet Socialist Republics3; and second, that contrary to
the wording of Article 27 para. 3 Security Council Resolutions do not
require an “affirmative vote [...] including the concurring votes of the
permanent members”, but as the ICJ stated “[...] a permanent member
has only to cast a negative vote”4. Despite the fact that the UN Charter
3
4
Y. Blum, “Russia Takes Over the Soviet Union’s Seat at the United Nations”, EJIL 3 (1992), 354 et seq. (360-361). It must be noted, however, that
according to widely held opinion among legal scholars, the Russian Federation was entitled to the USSR’s seat in the Security Council due to its legal
identity with the former USSR, see A. Zimmermann, Staatennachfolge in
völkerrechtliche Verträge, 2000, 85.
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, para. 22).
242
Max Planck UNYB 8 (2004)
is a living document that has been modified in notable ways, by subsequent practice of states, the interpretation of the provisions of Article
51 have remained static. The legal parameters of self-defence remain
those outlined in Article 51, primarily that self-defence can only legally
take place when an armed attack takes place against a state. Short of
that, call it what one may, states have been unwilling to accept it as selfdefence under international law. As Christine Grey notes in her International Law and the Use of Force, “the right of self-defence arises only
if an armed attack (French: aggression armée) occurs. This right is an
exception to the prohibition of the use of force in Article 2 (4) and
therefore should be narrowly construed”5. As Malcolm Shaw notes in
his text International Law, “[D]espite controversy and disagreement
over the scope of the right of self-defence, there is an indisputable core
and that is the competence of states to resort to force in order to repel
an attack”6.
To further expose out the parameters of self-defence, consideration
should be given to both what constitutes an “armed attack” and what
would be the legal response to such an act. In the Nicaragua case which
revolved around the issue of the use of force by the United States and
paramilitaries as against this Central American State during the 1980s,
the ICJ stated plainly that: “In the case of individual self-defence, the
exercise of this right is subject to the State concerned having been the
victim of an armed attack”. The Court then goes on to say:
“There appears now to be general agreement on the nature of the
acts which can be treated as constituting armed attacks. In particular,
it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces
across an international border, but also ‘the sending by or on behalf
of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of armed forces against another State of such gravity
as to amount to’ (inter alia) an actual armed attack conducted by
regular forces, ‘or its substantial involvement therein’. This description, contained in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX),
may be taken to reflect customary international law7”.
5
6
7
C. Grey, International Law and the Use of Force, 2000, 86-87.
M. Shaw, International Law, 2003, 1034-1035.
Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14 et seq. (103, para. 195).
Allain, The True Challenge to the UN System
243
Christine Grey, for her part, notes that “the Court’s description of
the scope of armed attack is consistent with state practice and with the
practice of the Security Council”8.
Beyond this accepted understanding of what constitutes an “armed
attack”, some authors have sought to subsume the notion of protecting
nationals abroad as falling within the parameters of Article 51. While
some leading scholars have vacillated, it is clear that state practice and
opinio juris do not support such a claim and thus that no basis for such
a justification exists in international law9. Having surveyed the response
of states to a limited number of interventions to protection of nationals
abroad during the UN era, Christine Grey writes that the “international response to these interventions shows a clear division between
states”, though she notes later that there is a “rejection by a majority of
states of such a doctrine”10. The unwillingness of states to allow it to
enter into the corpus of international law is best expressed by Ian
Brownlie when he wrote, in 1963, that the denial of such a right “must
be weighed against the more calculable dangers of providing legal pretexts for the commission of breaches of the peace in the pursuit of national rather than humanitarian interest”. As Brownlie makes clear: “it
is considered that it is very doubtful if the present form of intervention
[i.e.: protecting nationals abroad] has any basis in modern law”11.
Finally, two further items should be mentioned so as to delineate the
parameters of Article 51. First, as noted by the ICJ in the Nicaragua
case and affirmed later in its 1996 Advisory Opinion in the Nuclear
Weapons case, “there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law”12. In considering the limitations on the right of self-defence,
Bruno Simma’s Commentary on the UN Charter concludes by stating:
“Consequently, lawful self-defence is restricted to the repulse of an
armed attack and must not entail retaliatory or punitive actions. The
means and extent of the defence must not be disproportionate to the
gravity of the attack; in particular, the means employed for the defence
8
9
10
11
12
Grey, see note 5, 97.
For instance see A. Cassese, International Law, 2001, 315.
Grey, see note 5, 109 and 110.
I. Brownlie, International Law and the Use of Force by States, 1963, 301.
Nicaragua case, see note 7, (94, para. 176); and Legality of the Threat or
Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (245, para. 41).
Max Planck UNYB 8 (2004)
244
have to be strictly necessary for repelling the attack”13. Second, that
self-defence may transpire individually but also, as noted in Article 51,
as a collective response. In the Nicaragua case the Court dealt with the
issue, making plain that recourse to such collective self-defence was
only possible if a state requested assistance, and that there “is no rule in
customary international law permitting another State to exercise the
right of collective self-defence on the basis of its own assessment of the
situation”14.
2. Security Council Mandate (Article 42)
Beyond the recourse to self-defence as an exception to the use of force,
the UN Charter allows for the sanctioning of the use of force. However, recourse to pre-emptive use of force is vested with a collectivity of
states which have a mandate to provide collective security to the Member States of the United Nations, by seeking to thwart possible threats
to or breaches of the peace or acts of aggression. By virtue of Chapter
VII, the UN Security Council may sanction the use of force, though
this is meant to be in an attempt to “maintain or restore international
peace and security”. To invoke the use of force, the requirements of Article 39 have to be fulfilled and the Security Council has to decide
which measures it will take in order to establish international peace and
security. Having thus made a determination, the Council may by virtue
of Article 41 take any measure, – such as sanctions – short of the use of
force; or the Council can invoke Article 42, which reads:
Should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.
As originally conceived the UN Charter called for states, under Article 43 to make available to the United Nations armed forces and other
items necessary to maintain the peace. It further called on a Military
Staff Committee to assist the Security Council in the employment of
these forces. However, such forces were never made available to the
13
14
Simma, see note 2, 677.
Nicaragua case, see note 7, 104, para. 195.
Allain, The True Challenge to the UN System
245
Council on a permanent basis, instead the practice which has developed
within the Security Council is for states to provide fighting forces on an
ad hoc basis, thus making the Council dependent on the will of individual Member States to act by way of Article 42.
It should be made clear here that the system established by the
United Nations Charter is not a “pure” collective security arrangement,
as not all threats to or breaches of the peace or acts of aggression necessitate the activating of Chapter VII. The Charter’s collective security
system is restricted by the fact that the Council must first make a determination that situations which affect international peace and security
do, in fact, exist. Further it must do so by majority vote. Making such a
determination, however, is limited by the requirement of receiving both
a majority vote of the fifteen members and no negative votes of the five
permanent members, thus effectively providing those five members
with the ability to veto the passage of any Security Council resolution15.
Since the end of the Cold War, it is obvious that the UN Security
Council has used its powers under Chapter VII in ways it was unable to
use prior to the disintegration of the Soviet Union. Nevertheless the
Council has been consistent in authorizing force only in situations
where it considers there exists a “threat to” or “breach of” the peace,
and not where an “act of aggression” may be at issue. Although the
Council may act when it considers that an act of aggression has occurred, it has never chosen to do so. Primarily, the Council has been
unwilling to take sides in a dispute by branding a state as the aggressor,
as this would thwart its attempts to re-establish the peace by diplomatic
means16. But just as important is the fact that “aggression” entails not
only state responsibility, but also individual criminal responsibility and,
as such, the Council has deemed it prudent typically to describe events
as either a threat to or a breach of the peace.
15
16
Article 27 (2) and (3) of the Charter of the United Nations reads:
2. Decisions of the Security Council on procedural matters shall be made
by an affirmative vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by
an affirmative vote of nine members including the concurring votes of the
permanent members; provided that, in decisions under Chapter VI, and
under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
Dailler/ Pellet, see note 2, 929.
246
Max Planck UNYB 8 (2004)
At a 1992 Workshop of the Hague Academy of International Law,
Benedetto Conforti noted that when one considers the wording of Article 39 of the UN Charter in conjunction with the travaux préparatoires, it becomes clear that the Security Council has large discretionary
powers as regards the interpretation of the term “threat to the peace”.
Conforti explained that as opposed to breaches of the peace or acts of
aggression, which will inevitably have a military element to them,
“threat to the peace”, in theory, can be a quite “vague and elastic” concept, and thus allow the Council much leeway in making such a determination17. Despite this, during the forty-five year period of the Cold
War, the UN Security Council invoked Chapter VII fewer than a dozen
times, and considered that threats to the peace transpired only when actual military force was being used. Yet, in the wake of the demise of the
Soviet Union and the evolution of a “New World Order”, the UN Security Council sought to assert itself in ways it had not previously been
able to. The Council made plain that “there are new favourable international circumstances under which the Security Council has begun to
fulfil more effectively its primary responsibility for the maintenance of
international peace and security”. This was made evident in its willingness to face “new challenges in the search for peace.” In a Note delivered by the President of the Security Council in 1992, the Heads of
State, sitting as members of the Security Council, went on to say that
beyond the traditional threats, others had emerged:
“The absence of war and military conflicts amongst States does not
in itself ensure international peace and security. The non-military
sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security. The United
Nations membership as a whole, working through the appropriate
bodies, needs to give the highest priority to the solution of these
matters.”18
Thus, it was made clear that the Council would henceforth enlarge
the definition of what it would consider to be a threat to international
peace and security.
17
18
B. Conforti, “Le pouvoir discrétionnaire du Conseil de sécurité en matière
de constatation d’une menace contre la paix, d’une rupture de la paix ou
d’un acte d’agression”, in: R.J. Dupuy (ed.), The Development of the Role
of the Security Council, Workshop of the Hague Academy of International
Law, 1993, 14 et seq. (52-53). Translated from the French.
United Nations Security Council, Note by the President of the Security
Council, Doc. S/23500 of 31 January 1992. Emphasis added.
Allain, The True Challenge to the UN System
247
True to its word, the United Nations Security Council used its prerogative to invoke Article 39 of the Charter in a more expansive manner
thereby constituting new situations as threats the peace. While the
Council considered the Iraqi invasion of Kuwait and the early fighting
which ultimately led to the dissolution of Yugoslavia as a threat to international peace and security, the Council was acting well within the
traditional understanding of what constituted a threat or breach of the
peace: a situation in which military force was being utilized19. However,
on 5 April 1991, in the aftermath of the Kuwait/Iraq War, the Security
Council, by way of Resolution 688, determined that the refugee flow
brought on by Iraqi repression of the Kurds constituted a threat to the
peace20:
“[…] the repression of the Iraqi civilian population in many parts of
Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region.”
Although the UN Security Council would continue to make determinations regarding “traditional” threats to the peace such as regards
armed conflict and the proliferation of various weapons and their use21,
the Council went further. Among the issues which have been declared
to constitute a threat to the peace by the Council have been humanitarian crises, such as those in Somalia in 1992, Rwanda in 1994, and Eastern Zaire in 199622; the overthrow of a democratically elected President
in Haiti23; and the situation brought on by the financial crisis in Albania
19
20
21
22
23
For Iraq-Kuwait, see S/RES/660 (1990) of 2 August 1990; for Yugoslavia,
S/RES/713 (1991) of 25 September 1991.
See S/RES/688 (1991) of 5 April 1991.
Consider for instance, the aftermath of nuclear tests of India and Pakistan
in May 1998, where the Council reiterated the statement made at the level
of the Heads of State within the Security Council in 1992: “that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security”, see S/RES/1172 (1998) of 6 June 1998. In March
2003, the Council accepted a Declaration regarding “the proliferation of
small arms and light weapons and mercenary activities” as it considered
that such propagation constituted a “threat to peace and security in West
Africa”, see S/RES/1467 (2003) of 18 March 2003.
See S/RES/794 (1992) of 3 December 1992; S/RES/929 (1994) of 22 June
1994; and S/RES/1078 (1996) of 9 November 1996.
See S/RES/940 (1994) of 31 July 1994.
248
Max Planck UNYB 8 (2004)
in 199724. Beyond these new situations which were considered threats
to the peace, the UN Security Council has been most concerned, especially since September 2001, with threats to the international peace
which have been brought on by acts of terrorism.
Since the UN Security Council first invoked the notion of terrorism
regarding Libya in 1992 over the downing of a civilian airliner over
Lockerbie, Scotland, clear practice has emerged within the UN Security
Council as to “terrorism” constituting a threat to international peace
and security25. The failure of first Libya, then Sudan, and Afghanistan
to hand - over individuals implicated in terrorist acts was seen, in part,
as a threat to international peace and security. By 1999, the Council was
willing to consider that acts of terrorism, while not in and of themselves
threats to the peace, “could threaten international peace and security”26.
If there still remained any doubt as to the possibility of terrorism constituting a threat to the peace, it vanished in the aftermath of the events
of 11 September 2001. During the two year interval after September
2001, a fundamental reshaping of international relations has transpired
whereby the UN Security Council considered that such acts are, ipso
facto, threats to international peace and security. Further, the centrality
of issues of terrorism to the mandate of the UN Security Council has
been made plain by its willingness to upgrade terrorism to “one of the
most serious threats to international peace and security in the twentyfirst century”27 – thus using nomenclature not previously seen regarding threats to the peace.
3. Chapter VIII of the United Nations Charter
The established parameters for the use of force as manifest in Articles
42 and 51 of the UN Charter are predicated on the ultimate control by
the UN Security Council. Central to this study also, is the fact that so24
25
26
27
See S/RES/1101 (1997) of 28 March 1997; and S/RES/1114 (1997) of 19
June 1997.
See J. Allain, “The Legacies of Lockerbie: Judicial Review of Security
Council Action or First Manifestation of ‘Terrorism’ as a Threat to the
Peace?”, EJIL 15 (2004), (Forthcoming).
See S/RES/1269 (1999) of 19 October 1999.
See Declaration on the Global Effort to Combat Terrorism, attached to
United Nations Security Council Resolution 1377, S/RES/1377 (2001) of
12 November 2001.
Allain, The True Challenge to the UN System
249
called “Regional Arrangements” such as the African Union, which fall
under Chapter VIII, do not escape that control. Though much regionalist political pressure was exerted at San Francisco in 1945, Inis Claude
notes that the final draft of the UN Charter reflects “the premise that
the United Nations should be supreme, and accepted regionalism conditionally”. Claude writes: “The finished Charter conferred general approval upon existing and anticipated regional organizations, but contained provisions indicating the purpose of making them serve as adjuncts to the United Nations and subjecting them in considerable measure to the direction and control of the central organization”28. With respect to the use of force, political pressure at the San Francisco Conference came from Latin American states which sought to have regional
organizations exempt from subordination to the Security Council; yet
this failed as “the majority of delegations considered prior authorization by the [Security Council] to be necessary”29.
Chapter VIII thus provides, at Article 52, the possibility of the “existence of regional arrangements or agencies” as long as they are consistent with the purposes and principles of the United Nations. Article 53
states that such regional organizations are to act subordinate to the UN
Security Council and only when authorized by it. 30
The Final provision of Chapter VIII, Article 54, mandates that regional organizations keep the UN Security Council “fully informed of
activities undertaken or in contemplation […] for the maintenance of
international peace and security”. It is thus clear that regional organizations are required, under the United Nations framework, to act under
the umbrella of the UN Security Council. As Georg Ress notes, the
“legally possible enforcement measures must remain with the powers”
28
29
30
I. Claude, Swords into Plowshares: The Problems and Progress of International Organization, 1965, 106.
G. Ress, “Article 53”, in: Simma, see note 2, 687.
Note that Article 53 does provide for an exception in regard to so-called
enemy States; See discussion above. Article 53 thus continues:
[…] with the exception of measures against any enemy state, as defined in
paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the
part of any such state, until such time as the Organization may, on request
of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.
2. The term enemy state as used in paragraph 1 of this Article applies to any
state which during the Second World War has been an enemy of any signatory of the present Charter.
250
Max Planck UNYB 8 (2004)
of the Security Council as Article 53 does not confer any additional
powers for enforcement measures; “instead these provisions broaden
the modalities for the execution of the enforcement measures available”
to the Security Council by allowing for “access to regional organizations”31.
The primacy of the Security Council over Chapter VIII is manifest,
for instance, in the North Atlantic Treaty Organization whereby
NATO states pledge, “to refrain in their international relations from
the threat or use of force in any manner inconsistent with the purposes
of the United Nations”, and makes plain that the Treaty does not affect
“the primary responsibility of the Security Council for the maintenance
of international peace and security”32. Further emphasis as to the centrality of the UN Security Council is found at article 5 of the Treaty,
which sets out the collective security arrangement (i.e.: an attack against
one will be considered an attack against all) of these North Atlantic
states and notes:
“Any such armed attack and all measures taken as a result thereof
shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and
security.”
Likewise, the Organization of American States, by a 1975 Protocol
to the 1947 Inter-American Treaty of Reciprocal Assistance, brought
states of the Americas clearly within the framework of the United Nations System. Much in the same way as NATO states, states of the
Americas “undertake, […], not to resort to the threat or the use of force
in any manner inconsistent with the provisions of […] the Charter of
the United Nations […]”. As the Inter-American Treaty is also meant
to establish a collective security system, the State Parties “undertake to
assist in meeting any such attack in the exercise of the inherent right of
individual or collective self-defense recognized by Article 51 of the
Charter of the United Nations”. However, such action will come under
the control of the UN Security Council as article 3 (6) reads:
31
32
Ress, see note 29, 730.
See arts 1 and 7, North Atlantic Treaty of 4 April 1949.
Allain, The True Challenge to the UN System
251
“Measures of self-defense provided for in this article may be applied
until the Security Council of the United Nations has taken the
measures necessary to maintain international peace and security.33”
The framework of both these regimes of collective security demonstrate the manner in which regional organizations are clearly to subordinate themselves to the dictates of the United Nations System wherein
the ultimate control of the use of force must give way if the UN Security Council moves to exercise its primacy.
III.Ad Hoc Use of Force beyond the United Nations
System
Since the end of the Cold War, attempts have been made to justify large
scale interventions using force beyond the parameters of Article 2 (4)
and the United Nations systems as developed through Article 51 and
Chapter VII of the Charter. In seeking to justify their actions, states
have sought either to develop new justifications as exceptions to the use
of force or to expand the notion of self-defence to include their recourse to force. To consider whether these interventions are legal, one
must consider both the acts themselves and the response to them by the
international community as – short of establishing a conventional norm
– such developments must transpire through the emergence of customary law. Consideration will first turn to the Federal Republic of Yugoslavia (i.e. Serbia), where the NATO sought to justify its bombing campaign as a “humanitarian intervention” to protect civilians in Kosovo.
Then consideration turns to the 2003 United States-led invasion and occupation of Iraq wherein the justification of “pre-emptive” self-defence
was used, in part, to validate its actions.
1. Kosovo – Humanitarian Intervention
In March 1999, NATO commenced an aerial bombing campaign against
the Republic of Yugoslavia in an attempt to halt the Serbian “ethnic
cleansing” of Kosovo Albanians. Although the Security Council had
dealt with the situation in Kosovo, having acted under Chapter VII and
33
See arts 1 and 3, Protocol of Amendment to the Inter-American Treaty of
Reciprocal Assistance of 26 July 1975.
252
Max Planck UNYB 8 (2004)
imposed an arms embargo in March 199834, within a year it would be
sidelined as NATO ultimately resorted to force without the authorization of the UN Security Council and thus in violation of established international law. During the 1999 bombing campaign, which lasted approximately two and a half months, the spokespersons for both NATO
and its Member States did not overtly justify their actions against the
Yugoslav Republic as being a case of humanitarian intervention. However, in the lead up to the use of force, the NATO Secretary-General
Javis Solana did make plain that the intervention envisioned was warranted on the grounds of “the danger of a humanitarian disaster in Kosovo”. On the basis of a meeting between himself and the Permanent
Representatives of NATO in October 1998, Solana noted that there was
a “continuation of a humanitarian catastrophe”; the “fact that another
UNSC Resolution containing a clear enforcement action with regard to
Kosovo cannot be expected in the foreseeable future”; and that the “deterioration of the situation in Kosovo and its magnitude constitute a serious threat to peace and security in the region”. As such, the NATO
Secretary-General concluded that “the Allies believe that in the particular circumstances with respect to the present crisis in Kosovo […] there
are legitimate grounds for the Alliance to threaten, and if necessary, to
use force”35.
The general tenure of legal scholars to the NATO intervention in
Kosovo has been that the actions were illegal; but while there exists no
international legal norm which allows for the use of force on the pretext
of “humanitarian intervention”, many writers were willing to concede
that there existed a moral imperative to act36. As the non-governmental
34
35
36
In the lead up to the NATO action the UN Security Council passed the
following resolutions: S/RES/1160 (1998) of 31 March 1998; S/RES/1199
(1998) of 23 September 1998; and S/RES/1203 (1998) of 24 October 1998.
As quoted in B. Simma, “NATO, the UN and the Use of Force: Legal Aspects”, EJIL 10 (1999), 1 et seq. (7). Note also that Belgium has sought to
justify its actions as part of NATO against Yugoslavia in their case before
the ICJ as being legal, as a case of humanitarian intervention. See A.
Schwabach, “Yugoslavia v. NATO, Security Council Resolution 1244, and
the Law of Humanitarian Intervention”, Syracuse Journal of International
Law and Commerce 27 (2000), 77 et seq. (91).
See, for instance, M. Reisman, “Kosovo’s Antinomies”, AJIL 93 (1999), 860
et seq. (862); while Pellet considers the issue directly in A. Pelet, “Brief
Remarks on the Unilateral Use of Force”, EJIL 11 (2000), 385 et seq. Note
also that NATO acted ultra vires the North Atlantic Treaty which, as mentioned earlier, is a defensive pact.
Allain, The True Challenge to the UN System
253
Independent International Commission on Kosovo concluded succinctly: “the NATO military intervention was illegal but legitimate”37.
Most of the writing which emerged in the wake of the NATO campaign
against Yugoslavia sought to bridge this gap by pushing law closer to
morality by suggesting criteria which states would have to meet to have
future actions under the rubric of “humanitarian intervention” become
acceptable. Cassese was mindful of this train of thought when he wrote:
“from an ethical viewpoint resort to armed force was justified. Nevertheless, as a legal scholar I cannot avoid observing in the same breath
that this moral action is contrary to current international law38”. Be that
as it may, most scholars have also recognized the need to place strict
controls on the use of force, so as to ensure that the justification of
“humanitarian intervention” does not become a pretext for actions
taken with other objectives in mind. It was left to Louis Henkin, to give
lucidity to this fundamental dynamic – in international law – regarding
an emergence of a norm of “humanitarian intervention”’ as an exception to the use of force. Henkin writes:
“In my view, unilateral intervention, even for what the intervening
state deems to be important humanitarian ends, is and should remain unlawful. But the principles of law, and the interpretations of
the Charter, that prohibit unilateral humanitarian intervention do
not reflect a conclusion that the ‘sovereignty’ of the target state
stands higher in the scale of values of contemporary international
society than the human rights of its inhabitants to be protected from
genocide and massive crimes against humanity. The law that prohibits unilateral humanitarian intervention rather reflects the judgment
of the community that the justification for humanitarian intervention is often ambiguous, involving uncertainties of fact and motive,
and difficult questions of degree and ‘balancing’ of need and costs.
The law against unilateral intervention may reflect, above all, the
37
38
Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned, 2000. 4. When considering
the issue in more detail, the Commission “puts forward the interpretation
of the emerging doctrine of humanitarian intervention. This interpretation
is situated in a grey zone of ambiguity between an extension of international law and a proposal for an international moral consensus. In essence,
this grey zone goes beyond strict ideas of legality to incorporate more
flexible views of legitimacy.” Emphasis in the original, see 164.
A. Cassese, “Ex iniuria ius oritur: We are Moving towards International
Legitimation of Forcible Humanitarian Countermeasures in the World
Community?”, EJIL 10 (1999), 23 et seq. (25). Emphasis added.
254
Max Planck UNYB 8 (2004)
moral-political conclusion that no individual state can be trusted
with authority to judge and determine wisely.”39
It is within the parameters of this dynamic that a proper understanding of the established law regarding humanitarian intervention
should be considered, as it is this dynamic which has been at play in determining the attitude of states vis-à-vis the issue of NATO’s intervention in Yugoslavia. Considering state practice and opinio juris, it may be
said that an evolution of a possible legal norm of “humanitarian intervention” has remained, for the most part, academic, as no consensus has
emerged as a result of the Kosovo episode40. A number of authors have
undertaken a thorough study of the issue of “humanitarian interventions” from a legal perspective. For the most part, they are in agreement
that during the Cold War era, no true case of “humanitarian intervention” was established, as few interventions were solely for humanitarian
reasons, and none were justified on such grounds. So, while possible
leading cases such as the 1978 Tanzanian intervention in Uganda to oust
Idi Amin, and the 1978 Vietnamese invasion of Kampuchea (i.e.: Cambodia) meant to, in part, overthrow Pol Pot’s Khmer Rouge may, prima
facie, appear to be legitimate cases of humanitarian intervention, neither
state justified its actions on this basis41. In his 2001 published Just War
39
40
41
L. Henkin, “Editorial Comments: NATO’s Kosovo Intervention: Kosovo
and the Law of ‘Humanitarian Intervention’”, AJIL 93 (1999), 824 et seq.
(824-825).
I say, for the most part, because there has been a movement by the UN Secretary-General, Kofi Annan, to endorse a paradigm shift which has been
put forward by the quasi-governmental, 2001 International Commission
on Intervention and State Sovereignty, which seeks to speak in terms of a
“responsibility to protect” rather than a “right of humanitarian intervention”; See International Commission on Intervention and State Sovereignty, Responsibility to Protect, 2001, 11-12 and 16-17; wherein the justification is given regarding the shifting of the parameters of the discourse. For
the endorsement by the UN Secretary-General see Secretary-General,
“Genocide is a Threat to Peace Requiring Strong, United Action: Secretary-General Tells Stockholm International Forum”, Press Release, Doc.
SG/SM/91226/Rev.1 (2004) of 11 February 2004.
See A. C. Arend/ R. Beck, International Law and the Use of Force: Beyond
the UN Paradigm, 1993, 122-123 and 124-125. Peter Hilpold makes the interesting argument that while the justification of “humanitarian intervention” would have been available in both these cases, the states instead justified their military interventions on the very weak basis of claiming selfdefence. Hilpold writes; “The fact that both Vietnam and Tanzania have
tried to justify their actions by allegations that do not withstand an even
Allain, The True Challenge to the UN System
255
or Just Peace?: Humanitarian Intervention and International Law,
Simon Chesterman, having examined eleven possible Cold War instances of “humanitarian intervention” both from the perspective of la
doctrine, and the pronouncements of states, concludes: “it seems clear
that writers who claim that state practice provides evidence of a customary international right of humanitarian intervention grossly overstate their case”42.
Since the end of the Cold War, it remains true that the majority of
states do not accept that a norm regarding “humanitarian intervention”
has been established. This was made most evident by the Declaration by
the Non-Aligned Movement and China in April 2000 where they “reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of
international law”43. This pronouncement was reaffirmed in the final
declaration of the conference of the 114 Member States of the Movement, held in February 2003, wherein “The Heads of State or Government reiterated the rejection by the Non-Aligned Movement of the socalled ‘right’ of humanitarian intervention, which has no basis either in
United Nations Charter or in international law”44.
42
43
44
rudimentary scrutiny [i.e.: recourse to self-defence] while the humanitarian
argument would have been at hand speaks volumes for the legal quality
both states have attributed to this concept: it seems that neither of the two
states attributed much reputation to this concept”. See P. Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?”, EJIL
12 (2001), 437 et seq. (444-445).
S. Chesterman, Just War or Just Peace?: Humanitarian Intervention and
International Law, 2001, 84. This assessment seems to hold: See Arend/
Beck, see note 41, 128 where they state that; “[…] since the Second World
War there may well have been no authentic example of a ‘humanitarian intervention’”. Such a view is also held in S. Murphy, Humanitarian Intervention; The United Nations in an Evolving World Order, 1996, 142-143.
For those examining, grosso modo, the same cases but coming to different
conclusions see: F. Tesón, Humanitarian Intervention: An Inquiry into
Law and Morality, 1988, 155-200; and F. K. Abiew, The Evolution of the
Doctrine and Practice of Humanitarian Intervention, 1999, 102-135.
Non-Aligned Movement, “Declaration of the Group of 77 South Summit”,
10-14 April 2000, para. 54. Available at <http://www.nam.gov.za/
documentation/southdecl.htm>.
Non-Aligned Movement, “Final Document of the XIII Conference of
Heads of State or Government of the Non-Aligned Movement Kuala
Lumpur”, 24-25 February 2003, para. 16. Available at <http://
www.nam.gov.za/media/030227e.htm>.
Max Planck UNYB 8 (2004)
256
2. Iraq – Pre-emptive Self-Defence
On 20 March 2003, the United States led “ The Coalition of the Willing” in an invasion and subsequent occupation of Iraq. Its failure to
gain a Security Council mandate for its action against Iraq meant that,
void of Chapter VII authorization, the United States sought to justify
its actions beyond the parameters of the United Nations System. A
good example for this justification given can be found in the July 2003
edition of the AJIL. Such a justification was presented, as “the fullest
statement yet to be published of the US government’s legal position” in
regard to its military intervention in Iraq45. In an article co-written by
William Taft, the Legal Advisor to the US Department of State, and
Todd Buchwald, the Assistant Legal Advisor for Political-Military Affairs also at the State Department, the authors justified the use of force,
in part, on the basis of UN Security Council Resolutions, but also on
the basis of the so-called “Bush Doctrine”, that is, the Bush Administration’s “pre-emptive self-defence” strategy.
Taft and Buchwald, citing the 2002 National Security Strategy of the
United States of America, put forward the following as the “legal basis
for the doctrine of pre-emption” used to justify the United States position regarding its invasion of Iraq:
“For centuries, international law recognized that nations need not
suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat—most
often a visible mobilization of armies, navies, and air forces preparing to attack.”46
Taft and Buchwald argue that pre-emptive self-defence, in and of itself, cannot be considered legal or illegal; instead it will depend on the
circumstances of each invocation. They note that: “‘Operation Iraqi
Freedom’ has been criticized as unlawful because it constitutes preemption”, yet they say that this “criticism is unfounded. Operation
Iraqi Freedom was and is lawful”47. While Taft and Buchwald put forward the position that the “United States and the international commu45
46
47
See L. Damrosch/ B. Oxman, “Editor’s Introduction – Agora: Future
Implications of the Iraq Conflict”, AJIL 97 (2003), 553 et seq. (555).
W. Taft/ T. Buchwald, “Preemption, Iraq, and International Law”, AJIL 97
(2003), 557 et seq. (559).
Ibid.
Allain, The True Challenge to the UN System
257
nity had a firm basis for using pre-emptive force in the face of the past
actions by Iraq and the threat that it posed, as seen over a protracted
period of time”48, they do not base their argument on the notion of preemptive self-defence per se. Instead, they claim that one must contextualize one’s analysis; and thus include “the naked aggression by Iraq
against its neighbors, its efforts to obtain weapons of mass destruction,
its record of having used weapons, Security Council actions under
Chapter VII of the United Nations Charter, and continuing Iraqi defiance of the Council’s requirements”49.
They contend that because of Iraq’s past behaviour, coupled with its
failure to respect the obligations imposed on it by the UN Security
Council, this opened the door for action. Resolution 1441, which declared Iraq in “material breach” of previous Security Council resolutions, was seen by the United States as allowing states to unilaterally
determine further such breaches as “an objective fact”50. If such a material breach was determined, Taft and Buchwald state, Resolution 1441
would “authorize the use of force to secure Iraqi compliance with its
disarmament obligations”51. Despite this line of reasoning, which apparently provides a justification within the purview of Chapter VII of
the Charter, Taft and Buchwald stick to their guns regarding preemptive self-defence as the United States’ justification for using force.
In essence, the legal advisors sought to make the military intervention
of 2003 “fit” the Bush Doctrine. Taft and Buchwald understood as
much, stating: “Was Operation Iraqi Freedom an example of preemptive use of force? Viewed as a final episode in a conflict initiated
more than a dozen years earlier by Iraq’s invasion of Kuwait, it may not
seem so”. Yet they go on to say:
“However, in the context of the Security Council’s resolutions, preemption of Iraq’s possession and use of weapons of mass destruction was a principle objective of the coalition forces. A central consideration, at least from the US point of view, was the risk embodied
in allowing the Iraqi regime to defy the international community by
pursuing weapons of mass destruction. But do US actions show a
disregard for international law? The answer here is clearly no. Both
the United States and the international community had a firm basis
for using preemptive force in the face of the past action of Iraq and
48
49
50
51
Ibid., 563.
Ibid., 557-558.
Ibid., 560.
Ibid., 562.
258
Max Planck UNYB 8 (2004)
the threat that it posed, as seen over a protracted period of time.
Preemptive use of force is certainly lawful where, as here, it represents an episode in an ongoing broader conflict initiated – without
question – by the opponent and where, as here, it is consistent with
the resolutions of the Security Council”52.
While the United States has sought to justify its invasion and occupation of Iraq as being legal, its recourse to the doctrine of pre-emptive
self-defence has no standing in international law. As Cassese for example has noted, states consider that “pre-emptive strikes should be
banned, since they may easily lead to abuse, being based on subjective
and arbitrary appraisals by individual States”. He then goes on to say:
“In the case of anticipatory self-defence, it is more judicious to consider
such action as legally prohibited, while admittedly knowing that there
may be cases where breaches of the prohibition may be justified on
moral and political grounds and the community will eventually condone them or mete out lenient condemnation”53. That being said, it remains true that states, through their practice and opinio juris, have made
plain that pre-emptive or anticipatory self-defence is legally prohibited.
Christine Gray echoes this, having considered a number of instances of
attempts by states to use such a justification, by stating that “the majority of states reject anticipatory self-defence”54.
To sum up: in both the cases of Kosovo and Iraq, states have sought
to justify their use of force on novel interpretations of international law
beyond the confines of the United Nations System. Such attempts, if
accepted, would challenge the normative framework of the United Nations System, as the multilateral control of the use of force by the UN
Security Council would come into question. However, in both in52
53
54
Ibid., 563.
Cassese, see note 9, 310-311. Emphasis in the original.
Grey, see note 5, 112. See also Simma, see note 2, 675-676, where it is stated
“that recourse to traditional customary law does not lead to a broadening
of the narrow right of self-defence laid down in Art. 51. An anticipatory
right of self-defence would be contrary to the wording of Art. 51 (‘if an
armed attack occurs’) as well as its object and purpose, which is to cut to a
minimum the unilateral use of force in international relations. […] This interpretation corresponds to the predominant state practice, as a general
right to anticipatory self-defence has been invoked under the UN Charter”. Or Cassese who, having examination of the manner in which countries have reacted to claims of pre-emptive self-defence, notes: “it is apparent that such practice does not evince agreement among States […] with regard to anticipatory self-defence”, see note 9, 309.
Allain, The True Challenge to the UN System
259
stances, there has been a failure for customary international law to
evolve which would take into consideration the exceptions sought by
those justifying their actions against Yugoslavia or Iraq. Instead, following the rationale of the ICJ, the failure of these “exceptional” instances to garner support of the international community means that
the normative framework emerges not weaker but stronger – because
there is recognition by the international community that these actions
fall outside what is considered as “normal” behaviour by states55.
Having dismissed the events regarding Kosovo and Iraq as being a
challenge to the normative order of the United Nations System, it is
now time to examine the evolution of the African Union which has, by
way of regional instruments, overridden the multilateral control over
the use of force which has been vested in the United Nations Security
Council since 1945. In so doing, African States have decided that they
will, henceforth, not require Security Council authorization to act on
the Continent, and that, in fact, they have given themselves the prerogative to intervene militarily, not only beyond the authority of the UN
Security Council, but by widening the scope of permissible use of force
in Africa, by acting in “respect to grave circumstances” such as war
crimes, genocide, and crimes against humanity. This, it may be said, is
the true challenge to the United Nations System.
IV. Decisive Factors in the African move away from the
United Nations System
Since the end of the 1990s, the African continent has been marginalized
in ways it had not been during the height of the Cold War. This remains
true in the area of international peace and security, where African states
have come to realize that they can not depend on the Members States of
the UN Security Council to ensure stability on the Continent. As a result, African leaders have decided to depart radically from the normative framework established by the United Nations in 1945. No longer
do they accept that the limitations on the use of force established by
55
Consider the following from the Nicaragua case, see note 7, 98:
“If a State acts in a way prima facie incompatible with a recognized rule,
but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in
fact justifiable on that basis, the significance of that attitude is to confirm
rather than to weaken the rule”.
Max Planck UNYB 8 (2004)
260
Article 2 (4) hold, or that recourse to the use of force other than in selfdefence can only take place by sanction of the UN Security Council.
How has this come to pass? Of great importance has been the fact that
African states witnessed the precedent-setting intervention of West African troops in both Liberia and Sierra Leone without a Security Council mandate; but just as crucial was the manifest failure of the UN Security Council to act to prevent the 1994 Rwandan Genocide. These factors led African States to come to the conclusion that they should take
control over their own destiny regarding regional peace and security
and turn their backs on the normative framework of the United Nations System.
1. ECOWAS in Liberia and Sierra Leone
During the 1990s, a precedent was established whereby West African
states undertook military interventions without the authorization of the
UN Security Council. As a result of these instances, it became clear that
not only could African states not depend on the Council to assist them
in situations which might threaten the peace, but also that if they themselves did not seek to become the primary actors in ensuring the peace,
then nobody else would. The genesis of this move, which ultimately
had all African states opting out of the normative framework of the
United Nations system, is to be found in the 1990 intervention by the
Economic Community of West African States (ECOWAS) in Liberia.
This regional organization, responding to the Liberian civil war, established the ECOWAS Ceasefire Monitoring Group or ECOMOG
which sent five thousand troops to seek to keep the peace, restore order
and ensure that the ceasefire between the Government and the rebels
held56. Although it took until 1996 to ensure a ceasefire, the break allowed elections to take place with the result that the former rebel
leader, Charles Taylor, became the Liberian President in 1997. Although
the Liberian Ambassador to the United Nations had sought to bring
the conflict to the attention of the Security Council in June 1990, the
Council failed to consider the issue until January 1991, that is, some five
months after the ECOWAS intervention57.
56
57
See D. Wippman, “Enforcing the Peace; ECOWAS and the Liberian Civil
War”, in: L. Damrosch (ed.), Enforcing Restraint: Collective Intervention
in Internal Conflicts, 1993, 167 et seq.
H. Howe, Ambiguous Order: Military Forces in African States, 2001, 136.
Allain, The True Challenge to the UN System
261
In undertaking this military intervention, ECOWAS was in violation of the normative order as established by the United Nations Charter. Without the consent of the Security Council, ECOWAS states were
in breach of their obligations regarding the use of force as Members
States of the United Nations; while the organization itself was in violation of Article 53 UN Charter which makes clear that “no enforcement
action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council [...] ”. That having been said, although “there was no legal basis for the ECOWAS intervention under the UN Charter, it was supported by the United Nations and the whole of the international community”58. While the
Council tacitly accepted the role of West African States in Liberia for
more than two years, it declared its support openly for ECOWAS in
November 1992 when, by virtue of Resolution 788, it commended
“ECOWAS for its efforts to restore peace, security and stability in Liberia”59. In so doing, and later by establishing the UN Observer Mission in Liberia (UNOMIL) to work side-by-side with ECOMOG60,
the Council created a dangerous precedent whereby a regional organization could intervene militarily without its prior authorization.
Having found its feet with respect to Liberia, ECOWAS once again
intervened without the authorization of the UN Security Council, this
time, in 1998, in Sierra Leone. As a result of a coup d’état in May 1997,
the elected President of Sierra Leone was deposed. While the Organization of African Unity was to call for the restoration of the elected
President, the UN Security Council invoked Chapter VII in October
1997, demanding “that the military junta take immediate steps to relinquish power in Sierra Leone” and imposed travel restrictions on its
members as well as a petroleum and arms embargo61. The Council,
while not giving ECOWAS a green light to intervene, did authorize it
“to ensure strict implementation of the provisions” regarding the embargo62. With the international community firmly against those who
had taken power, the parties agreed to the October 1997 Conakry Peace
Agreement which had attached to it a six-month time frame. However,
58
59
60
61
62
J. Levitt, “Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone”, Tem. Int’l &
Comp. L. J. 12 (1998), 333 et seq. (347).
S/RES/788 (1992) of 19 November 1992.
S/RES/866 (1993) of 22 September 1993.
S/RES/1132 (1997) of 8 October 1997.
Ibid., para. 8.
262
Max Planck UNYB 8 (2004)
when it became clear that the peace was not holding, ECOMOG troops
intervened – without UN Security Council authorization – in February
1998, reinstalling the elected President to power. As with Liberia, the
UN Security Council was not critical of the ECOWAS intervention; instead it once again commended it for its role in “the restoration of peace
and security”63. As Ben Kioko, the Legal Counsel of the African Union
has written – in his personal capacity: “It would appear that the UN Security Council has never complained about its powers being usurped
because the interventions were in support of popular causes and were
carried out partly because the UN Security Council had not taken action or was unlikely to do so at the time”64.
With tacit consent having been given to the ECOWAS interventions
in both Liberia and Sierra Leone, it should not come as a surprise that
this West African organization moved to institutionalize the power it
had appropriated from the UN Security Council in the domain of peace
and security. By its 1999 Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security,
ECOWAS decided that its newly established Mediation and Security
Council could “authorise all forms of intervention and decide particularly on the deployment of political and military missions”65. That this
regime, having been established to deal with issues of peace and security
in West Africa, would be promoted to hold for all the African Continent in a period of less than five years was in large part the result of the
manifest failure of the UN Security Council to act in the face of genocide.
2. Rwanda and the Failure of the UN Security Council
Although precedents had been set allowing African states to opt out of
the normative United Nations System and that possibility had been institutionalized in the ECOWAS Protocol, a far more important issue
had fundamentally changed the outlook of African leaders regarding
63
64
65
S/RES/1162 (1998) of 17 April 1998.
See B. Kioko, “The Right of Intervention under the African Union’s Constitutive Act: From Non-Interference to Non-Intervention”, Int’l Rev. of
the Red Cross 85 (2003), 807 et seq. (821).
Article 10 (c), Economic Community of West Africa States, Protocol relating to the Mechanism for Conflict Prevention, Management Resolution,
Peace-Keeping and Security of 10 December 1999.
Allain, The True Challenge to the UN System
263
the Continent’s position within the international framework. One cannot over emphasize the traumatic effects the 1994 Rwanda Genocide
had in moving African states to establish a mechanism to ensure that
such mass killing would not happen again. The memory of African
leaders and the Continent as a whole remains scared by the mass
slaughter which transpired in its midst and the indifference to it manifest by the international community as demonstrated by the United
Nations own acknowledgement of its “failure […] to prevent, and subsequently, to stop the genocide”66. A Panel of eminent personalities
brought together by the Organization of African Unity (OAU) stated
that members of the UN Security Council – specifically France and the
United States – “consciously chose to abdicate their responsibility for
Rwanda”.67 Two weeks after the genocide had commenced, the United
Nations Security Council decided to reduce its peacekeeping forces in
Rwanda; and a month into the murder spree, which saw approximately
800.000 Tutsi and moderate Hutus killed, Council members were still –
though well informed of what was transpiring on the ground – unwilling to use the term “genocide” and, as a result, delayed action which
could have mitigated some of the atrocity68.
The reputation of the UN Security Council was further tarnished in
the eyes of African leaders for its authorization of Operation Turquoise,
a French peacekeeping mission which, in essence provided assistance to
the génocidaires allowing them to escape to create, in Eastern Zaire, a
“rump genocidal state on the very border of Rwanda”69. The OAU
Panel noted that the genocide had repercussions which went far beyond
the border of Rwanda, as it noted that the “1994 genocide in one small
country ultimately triggered a conflict in the heart of Africa that has directly or indirectly touched at least one-third of all the nations on the
continent”70. In laying the blame in large part on the UN Security
Council for allowing the genocide to happen and for failing to act to
66
67
68
69
70
United Nations Secretariat, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, Doc.
S/1999/1257(1999) of 16 December 1999, 3.
Organization of African Unity, The International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding
Events, 2000, para. 13.1.
United Nations Secretariat, see note 66, 38; see also L. Melvern, A People
Betrayed: The Role of the West in Rwanda’s Genocide, 2000, 180.
The quotation is from OAU, see note 67, para. 19.28.
Organization of African Unity, ibid., Introductory Chapter, para. 3.
264
Max Planck UNYB 8 (2004)
ensure peace in the Great Lakes region, the OAU Panel called upon the
OAU “to establish appropriate structures to enable it to respond effectively to enforce the peace in conflict situations”71. That call was heeded
by the OAU, as it sought to reinvent itself and move towards taking
command over its own destiny with regard to issues of the use of force.
It would, however, take Libya to act as a catalyst, as it demonstrated
leadership and provided the financial backing required to move to end
the ineffective Organization of African Unity72 and to replace it with
the African Union which incorporates powers which go beyond what
had earlier been appropriated by ECOWAS.
V. The African Union Regime for Peace and Security
The African Union (AU) was officially launched in Durban, South Africa in July 2002, to replace the OAU. It has been noted that this development is surprising for two reasons; the speed with which the AU
came into existence, and also the lack of attention given to this new inter-governmental organization73. While the AU follows its predecessor
in seeking, as an objective, to “defend the sovereignty, territorial integrity and independence of its Member States”, it also allows for the use
of force against its members, without sanction of the UN Security
Council. This apparent contradiction is manifest in article 4 of the Constitutive Act of the African Union, adopted in 2000, which sets out, inter alia, the following Principles:
“ (a) Sovereign equality and interdependence among Member States
of the Union; […]
(e) Peaceful resolution of conflicts among Member States of the
Union through such appropriate means as may be decided
upon by the Assembly;
(f) Prohibition of the use of force or threat to use force among
Member States of the Union;
(g) Non-interference by any Member State in the internal affairs of
another; […]
71
72
73
Ibid., see Conclusions at Chapter 24.
See T. Butcher, “Gaddafi casts a shadow over African Union”, The Daily
Telegraph of 8 July 2002, 12.
See C. Packer/ D. Rukare, “The New African Union and Its Constitutive
Act”, AJIL 96 (2002), 365 et seq. (365).
Allain, The True Challenge to the UN System
265
(i) Peaceful co-existence of Member States and their right to live
in peace and security.
These principles are set against the following:
(h) The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity; […]
(j) The right of Member States to request intervention from the
Union in order to restore peace and security; […]”74.
Thus, by recourse to a treaty, the African Union has appropriated
for itself the role which the UN Security Council is meant to play on a
universal basis; in essence denying the Council, its “primary responsibility for the maintenance of international peace and security” in relation to the African continent75. Before examining the manner in which
the African Union has institutionalized this recourse to the use of force
beyond the United Nations System, consideration will first turn to the
regime which has been put in place by African leaders to seek to ensure
peace on the continent.
1. The Peace and Security Council
To give effect to the provisions of the AU’s Constitutive Act, the Assembly of Heads of State and Government meeting in Durban, South
Africa, in July 2002, adopted a Protocol Relating to the Establishment
of the Peace and Security Council of the African Union. The Protocol,
while making mention of the primary responsibility of the United Nations Security Council regarding issues of peace and security, does not
subordinate its actions to those of the Council. The Constitutive Act of
the AU, adopted in Lomé, Togo, on 11 July 2000, does not mention the
Peace and Security Council as one of its organs76. As a result, when the
74
75
76
See Constitutive Act of the Africa Union of 11 July 2000.
See Article 24, Charter of the United Nations.
Article 5 of the Constitutive Act, see note 74, entitled Organs of the Union:
1. The organs of the Union shall be:
(a) The Assembly of the Union;
(b) The Executive Council;
(c) The Pan-African Parliament;
(d) The Court of Justice;
(e) The Commission;
266
Max Planck UNYB 8 (2004)
Protocol establishing the Peace and Security Council was adopted in
July 2002 it was by authority of article 5 (2) of the Constitutive Act
which provides for the creation of “Other organs that the Assembly [of
Heads of State and Government of the Union] may decide to establish”77. Yet, since that time – as a result of the 2003 Protocol on
Amendments to the Constitutive Act of the African Union – the Peace
and Security Council has now been constituted as a named organ of the
AU by way of article 5 (1)(f)78. Having thus established a Peace and Security Council, African Heads of State and Government incorporated
into an amended Constitutive Act a provision regarding its role as an
organ of the African Union by way of article 9 of the Protocol on
Amendments to the Constitutive Act of the African Union, which
reads:
“The insertion in the Act of a new Article 20(bis):
1. There is hereby established, a Peace and Security Council (PSC)
of the Union, which shall be the standing decision-making organ for
the prevention, management and resolution of conflict.
2. The function, powers, composition and organization of the PSC
shall be determined by the Assembly and set out in a protocol relating thereto.”
The 2002 Protocol Relating to the Establishment of the Peace and
Security Council of the African Union which came into force on 26
December 2003, notes that beyond its role as the “standing decisionmaking organ for the prevention, management and resolution of conflicts”, the Council shall also be “a collective security and early-warning
arrangement to facilitate timely and efficient response to conflict and
crisis situations in Africa”79. Among the objectives in mind in establish-
77
78
79
(f) The Permanent Representatives Committee;
(g) The Specialized Technical Committees;
(h) The Economic, Social and Cultural Council;
(i) The Financial Institutions;
2. Other organs that the Assembly may decide to establish.
Ibid.
See article 5, Protocol on Amendments to the Constitutive Act of the African Union of 3 February and 11 July 2003, which reads:
“In Article 5 of the Act (Organs of the Union), the insertion of a new subparagraph (f) with consequential renumbering of subsequent subparagraphs: (f) The Peace and Security Council [...]”.
Article 2, Protocol Relating to the Establishment the Peace and Security
Council of the African Union of 9 July 2002.
Allain, The True Challenge to the UN System
267
ing the Peace and Security Council were: to “promote peace, security
and stability in Africa”, and “anticipate and prevent conflicts”. With
this in mind, the Protocol states that the Peace and Security Council
will be “guided by the principles enshrined in the Constitutive Act, the
Charter of the United Nations and the Universal Declaration of Human Rights”. The Protocol then highlights those Principles which the
Peace and Security Council “shall be guided by”. Among these principles are the “peaceful settlement of disputes and conflicts”, “respect for
the sovereignty and territorial integrity of Member States”, “and non
interference by any Member State in the internal affairs of another”; as
well as noting the right to intervene80.
On the basis of the principles articulated in article 4, the Protocol
sets out, in article 6, the following areas in which the newly established
Peace and Security Council will function:
“ (a) promotion of peace, security and stability in Africa;
(b) early warning and preventive diplomacy;
(c) peace-making, including the use of good offices, mediation,
conciliation and enquiry;
(d) peace support operations and intervention, pursuant to article 4
(h) and (j) of the Constitutive Act;
(e) peace-building and post-conflict reconstruction;
(f) humanitarian action and disaster management;
(g) any other function as may be decided by the Assembly.”
With these functions in mind, the Protocol lays down, in article 7,
the wide-ranging powers of the Peace and Security Council. These
powers bind African states as Members States to “agree to accept and
implement the decisions of the Peace and Security Council”81. Further,
it is acknowledged that the powers vested in the Council are to be carried out on behalf of the Members States which “shall extend full cooperation to, and facilitate action by the Peace and Security Council”82.
Under Article 7, the Council is vested with eighteen separate powers
including, inter alia, the anticipation and prevention of conflicts; the
undertaking of peace-making and peace-building functions; the deployment of peace support missions; the instituting of sanctions
“whenever an unconstitutional change of Government takes place in a
80
81
82
Ibid., article 4.
Ibid., article 7 (3).
Ibid., article 7 (2 and 4).
268
Max Planck UNYB 8 (2004)
Member State”; the taking of action where Members are threatened by
acts of aggression; and the supporting and facilitating of “humanitarian
action in situations of armed conflicts or major natural disasters”. Beyond these powers, and others related to the overall framework of African peace and security, the Protocol has two specific provisions regarding the use of force which will be considered in detail below. At this
point, it suffices to note that the Council has the ability to make recommendations regarding intervention in respect of grave circumstances,
and to approve the modalities of intervention regarding restoration of
peace and security.
Article 9 of the Protocol establishing the Council determines the
“Entry Points and Modalities For Action” of the Peace and Security
Council. While noting that the Council “shall take initiatives and action
it deems appropriate with regard to situations of potential conflict [and]
full-blown conflicts”, it also mandates the Council to “take all measures
that are required in order to prevent a conflict for which a settlement
has already been reached from escalating”. Nevertheless, the Protocol
calls on the Council to act, but to do so through various means:
“whether through the collective intervention of the Council itself, or
through its Chairperson [...] ”, but also through other actors including
the Chairperson of the Commission; the Panel of the Wise; or/and regional mechanisms. As a result of the coming into force of the Protocol
the regime regarding peace and security on the African continent has
been operationalized83. On 15 March 2004, the Ministers of Foreign Affairs acting in their capacity as the Executive Council of the AU84
elected the 15 members to serve on the Peace and Security Council according to article 5 of the Protocol. Since then the Council has been
meeting on a regular basis and held a Solemn Launching Ceremony at
the level of Heads of State on 25 May 2004.
The Protocol does not allow for the same distinction found within
the United Nations Security Council as between permanent and nonpermanent members, instead members of the Peace and Security are
elected “on the basis of equal rights”, though ten members are elected
for two years, and five for three years “in order to ensure continuity”85.
While the Protocol mandates that the “principle of equitable regional
83
84
85
See African Union, “The Protocol of the Peace and Security Council enters
into Force”, Press Release, No. 117/2003 of 26 December 2003. Available at
<http://www.africa-union.org>.
See article 10, Constitutive Act, see note 74.
Article 5 (1), Protocol Relating to the Establishment, see note 79.
Allain, The True Challenge to the UN System
269
representation and rotation” should be applied in electing members, it
also spells out a number of criteria which should be used in considering
prospective members. These include, according to article 5, a commitment towards the principles of the AU including the upholding of its
principles, the honouring of financial commitments towards it, and
maintaining “sufficiently staffed and equipped Permanent Missions at
the Headquarters of the Union”. Beyond these criteria vis-à-vis the
AU, further election criteria touch upon issues of peace and security including: “contribution to the promotion and maintenance of peace and
security in Africa”, participation in conflict resolution, peace-making
and peace-building at regional and continental levels, as well as a willingness to “take up responsibility for regional and continental conflict
resolution initiatives”86. On the basis of these and other criteria, the following states were elected for the inaugural three-year period: Gabon
(representing Central Africa), Ethiopia (East), Algeria (North), South
Africa (South), and Nigeria (West). As for the states elected for a twoyear term, these are: Cameroon and Congo (Central); Kenya and Sudan
(East); Libya (North); Lesotho and Mozambique (South); and Ghana,
Senegal, and Togo (West)87.
The Peace and Security Council is established so as to function continuously. It is meant to convene at the level of the Permanent Representatives to the AU at least twice a month and at the level of Foreign
Ministers or Heads of State and Government at least once a year. The
Council is meant to function at the AU Headquarters in Addis Ababa,
Ethiopia88; it is chaired on a rotational basis by the various members of
the Council by alphabetical order, and requires a quorum of ten members. In closed meetings, members of the Peace and Security Council
which are “party to a conflict or a situation under consideration” are
not allowed to “participate either in the discussion or in the decision
making process relating to the conflict or situation”. The Council may
86
87
88
Ibid., article 5 (2)
African Union, “African Union Elects Members of the Peace and Security
Council and Two New Commissioners”, Press Release No. 18/2004 of 16
March 2004. Available at <http://www.africa-union.org>. Note that the
African region they represent is stated in parenthesis.
Though the Peace and Security Council may meet elsewhere upon invitation of a state, provided that two-thirds of the members agree. See article 8
(4), Protocol Relating to the Establishment, see note 79. Such a session did
take place in Cape Town, South Africa on 3 May 2004. See Peace and Security Council, Communiqué of the Peace and Security Council,
PSC/PR/Comm. (VII) of 3 May 2004.
Max Planck UNYB 8 (2004)
270
decide to hold an open meeting; in this regard it shall invite any Member State which is not a member of the Council, if it is “a party to a
conflict or a situation” to present its case, and may invite any other
Member State, which is not a member of the Council whenever that
member considers that its “interests are especially affected”. Finally,
any “Regional Mechanism, international organization or civil society
organization involved and/or interested in a conflict or a situation […]
may be invited to participate […] in discussions” before the Council.
Beyond participation in deliberations, the Protocol provides that the
Council should be guided by the principle of consensus in seeking resolutions. However, each member of the Council has one vote, with decisions on procedural matters being settled by simple majority, and all
other matters by a two-thirds majority89.
2. The Peace and Security Council in Conjunction with ...
The Peace and Security Council is mandated under article 2 (1) of the
Protocol to be assisted in undertaking its various activities. The provision reads as follows: “The Peace and Security Council shall be supported by the Commission, a Panel of the Wise, a Continental Early
Warning System, an African Standby Force and a Special Fund”. Article
9 (2), for its part, notes as already mentioned above that beyond actions
undertaken by the Peace and Security Council itself, further entry
points into dealing with a conflict may transpire through the “Chairperson of the Commission; the Panel of the Wise, and/or in collaboration with the Regional Mechanisms”. While these last three players are
to support the activities of the Peace and Security Council, in the decentralized regime established by the African Union, each may act independent of the Council in seeking to prevent or resolve conflict. The
following is a brief description of these separate organs which work in
conjunction with the Peace and Security Council.
a. The Chairperson of the Commission
The Commission of the African Union is its secretariat, thus the Chairperson is the head of the bureaucratic wing of the AU. On 16 September 2003, that role was taken up by the former President of the Repub-
89
Article 8, of the Protocol, see note 79.
Allain, The True Challenge to the UN System
271
lic of Mali, Alpha Omar Konare.90 Where issues of peace and security
are at stake, the AU has established a department – the Peace and Security Directorate – which is headed by a Commissioner for Peace and
Security. By virtue of the Protocol establishing the Peace and Security
Council, the Chairperson of the Commission shall, under the authority
of the Peace and Security Council undertake various tasks. He shall
bring to the attention of the Council or the Panel of the Wise any matter which may threaten peace, security and stability in the Continent or
which deserves attention. Further may at his “own initiatives or when
so requested by the Peace and Security Council” use his good offices
“either personally or through special envoys, special representatives, the
Panel of the Wise or the Regional Mechanisms, to prevent potential
conflicts, resolve actual conflicts and promote peace building and postconflict reconstruction”.91 This the Chairperson has done, through, for
instance, the “Special Representative of the Chairperson of the Commission” to Côte D’Ivoire and to the Democratic Republic of the
Congo92. Beyond these initiatives, the Chairperson is meant to ensure
implementation of decisions of the Council, including a specific mandate regarding issues of intervention, that is to:
“ensure the implementation and follow-up of the decisions taken by
the Assembly in conformity with Article 4 (h) and (j) of the Constitutive Act.”93
The Chairperson of the Commission is also required to “prepare
comprehensive and periodic reports and documents” as required by the
Peace and Security Council94.
90
91
92
93
94
African Union, “Alpha Omar Konare Assumes Office as Chairperson of
the Commission of the African Union”, Press Release No. 075 A/2003 of
16 September 2003. Available at <http://www.africa-union.org>.
Article 10 (2)(c), Protocol Relating to the Establishment, see note 79.
Peace and Security Council, Communiqué of the Peace and Security
Council, PSC/PR/Comm. (V) of 13 April 2004, paras D(7) and E(4).
Article 10 (3)(b), Protocol Relating to the Establishment, see note 79.
Ibid., article 10 (3)(c). If the first handful of sessions of the Peace and Security Council are to set a precedent, it is clear that the Chairperson will be
active in preparing such reports and documents. Consider the reports prepared for the fifth and sixth sessions of the Peace and Security Council by
the Chairperson on situations in Comoros, Côte D’Ivoire, Democratic Republic of the Congo, Somalia, and Sudan. Available on the website of the
Institute of Security Studies, South Africa, at <http://www.iss.co.za>.
272
Max Planck UNYB 8 (2004)
aa. Assisted by Continental Early Warning System
Beyond these functions, the Chairperson of the Commission receives
information from the Continental Early Warning System established
under article 12 of the Protocol. The Early Warning System consists of
an observation and monitoring centre - the so called - “Situation
Room” - located within the Conflict Management Directorate. It is responsible for “data collection and analysis” and for establishing liaisons
with the various African sub-regional mechanisms, such as ECOWAS,
which deal with the issue of peace and security. The Early Warning System is meant to consider a number of indicators, be they economic,
humanitarian, military, political, or social to “analyze developments
within the continent and recommend the best course of action”95. The
Early Warning System along with the established Conflict Management
and Resolution and Post Conflict Unit of the Peace and Security Directorate are manifestations of the demise of the former system of the Organization of African Unity: the OAU Mechanism for Conflict Prevention, Management and Resolution in Africa which had been carrying
out these functions96. The sending into oblivion of the OAU mechanism is made plain in the Final Provisions of the Protocol in which it
states that the Protocol replaces the constitutive document establishing
the mechanism and that its provisions “supercede the resolutions and
decisions of the OAU relating to the Mechanism for Conflict Prevention, Management and Resolution in Africa, which are in conflict with
the present Protocol”97.
bb. Commander and Chief of the African Standby Force
In order to enable the Council to perform its responsibilities with respect to the deployment of peace support missions and interventions
“pursuant to article 4 (h) and (j) of the Constitutive Act”98 an African
Standby Force has been established. The Chairperson of the Commis-
95
96
97
98
See article 12 (2 through 4), Protocol Relating to the Establishment, see
note 79.
For consideration of the African dispute settlement regime and the development of the OAU Mechanism consider J. Allain, “The Evolution of Dispute Settlement in Africa: From Pacifism to Militarism”, South African
Yearbook of International Law 23 (1998), 65 et seq.
Article 22 (2), Protocol Relating to the Establishment, see note 79.
Ibid., article 13 (1).
Allain, The True Challenge to the UN System
273
sion is head of the chain of command of that Force. The Force is meant
to consist of a contingency of both military and civilian personnel
within various African states which would be ready to deploy on short
notice. Its mandate, beyond being used for peace support and interventions missions, is to be ready as observation and monitoring missions,
to act as a deterrent force, to be used in post-conflict situations, and to
provide humanitarian assistance to civilian populations in conflict areas
or natural disasters99. In conjunction with the establishment of an African Standby Force, the Protocol mandates the establishment of a Military Staff Committee “to advise and assist the Peace and Security
Council”. It is to be made up of senior military officers of the members
of the Council100. While the African Standby Force has yet to be established, its basic framework is starting to emerge as a result of discussions which have transpired at both the level of African Chiefs of Defence Staff and African Ministers of Defence101. That framework was
adopted as part of a Common African Defence and Security Policy in
Sitre, Libya, on 28 February 2004. The Declaration establishing the
common policy notes that the Standby Force will be “based on brigades
[i.e. 2000-5000 persons] to be provided by the five African regions”. It
is envisaged that these forces will be available by 2010 and will consist
of “military, police and civilian components and will operate on the basis of the various scenarios under African Union mandates”.102
cc. Chief Fund Raiser for the Peace Fund
The Chairperson of the Commission is also responsible for raising and
accepting voluntary contributions from “sources outside Africa” which
go towards a Special Fund established by article 21 of the Protocol. The
fund which is known as the “Peace Fund” is meant to provide the costs
99
100
101
102
Ibid., article 13 (3). Note that the modalities of the dealing with postconflict and humanitarian situations are addressed in the Protocol in arts 14
(Peace Building) and 15 (Humanitarian Action).
Ibid., article 13 (8) and (9).
See African Union, “First Meeting of the African Ministers of Defence and
Security on the Establishment of the African Standby Force and the Common African Defence and Security Policy”, EXP/Def.& Sec.Rpt.(IV) Rev.1
of 17-18 January 2004. Available on the website of the Institute of Security
Studies, South Africa, at <http://www.iss.co.za>.
African Union, Solemn Declaration on a Common African Defence and Security Policy, Second Extra-Ordinary Assembly of the Union of 28 February 2004, 19, Section A(1)(iii).
Max Planck UNYB 8 (2004)
274
of “peace support missions and other operational activities related to
peace and security”. While it is left to the limited discretion of Chairperson (“in conformity with the objectives and principles of the Union”) to accept voluntary contributions from outside Africa, the Fund
may receive money from any source within Africa, be it the Members
States or “the private sector, civil society and individuals, as well as
through appropriate fund raising activities”103. It may be noted that
while this Special Fund has been established by the Protocol, a so-called
“Peace Fund” has existed since 1993 and served the same purpose under
the auspices of the now-defunct OAU Mechanism for Conflict Prevention, Management and Resolution104. Non-African states have regularly
contributed to this Fund and have, on occasion, earmarked their donations for specific items. Norway e.g. provided money in November
2003 to assist in “upgrading facilities for the establishment of the envisaged Continental Early Warning System”105.
b. The Panel of the Wise
The Protocol establishes a “Panel of the Wise” “in order to support the
efforts” of the Council and those of the Chairperson of the Commission. The Panel of the Wise is to be “composed of five highly respected
African personalities from various segments of society who have made
outstanding contribution to the cause of peace, security and development on the continent”106. The Panel shall advise the Peace and Security
Council and the Chairperson of the Commission on “all issues pertaining to the promotion, and maintenance of peace, security, and stability
in Africa”. While the Panel of the Wise – which has yet to be constituted – has to report to the Peace and Security Council and through it
to the Assembly of Heads of State and Government, it may, at the request of the Chairperson or the Council, or “at its own initiative […]
undertake such action deemed appropriate to support the efforts” of the
Council or the Chairperson “for the prevention of conflicts, and to
103
104
105
106
Article 21 (2 and 3), Protocol Relating to the Establishment, see note 79.
See African Union, “The Government of Finland Donates 750.000 Euros
to the AU Peace Fund”, Press Release No. 122/2003 of 31 December 2003.
Available at <http://www.africa-union.org>.
African Union, “The Government of the Kingdom of Norway and the African Union sign an Agreement for the Grant of US$ 424.000 to the AU
Peace Fund”, Press Release No. 95/2003 of 17 November 2003. Available at
<http://www.africa-union.org>.
Protocol Relating to the Establishment, see note 79, article 11 (2).
Allain, The True Challenge to the UN System
275
pronounce itself on issues relating to the promotion and maintenance of
peace, security, and stability in Africa”107.
c. The Relationship with Regional Mechanisms
According to article 16 “The Regional Mechanisms are part of the overall security architecture of the Union, which has the primary responsibility for promoting peace and security and stability in Africa”108. By
this, article 16 of the Protocol makes plain the dislodging of the United
Nations Security Council from its primary responsibility for the maintenance of international peace and security on the African continent.
While it is true that the UN Security Council mandate of “maintenance” is a stronger one than that of a framework of “promoting” peace
and security, the AU means to act in both situations. Consider article 16
(1)(b), which states that the Peace and Security Council and the Chairperson of the Commission shall:
“work closely with Regional Mechanisms, to ensure effective partnership between them and the Peace and Security Council in the
promotion and maintenance of peace, security and stability. The
modalities of such partnership shall be determined by the comparative advantage of each and the prevailing circumstances.”
Article 16 (2) further notes that:
“The Peace and Security Council shall, in consultation with Regional Mechanisms, promote initiatives aimed at anticipating and
preventing conflicts and, in circumstances where conflicts have occurred, peacemaking and peace-building functions.”
The basis for the provisions of the Protocol dealing with regional
mechanisms is to ensure a co-ordinated effort between these subregional agencies and the Peace and Security Council; thus mention is
made of keeping each other “continuously informed”, of seeking to
“ensure close harmonization and coordination”, and of inviting each
other to deliberations within their respective bodies109. The cooperation between the Peace and Security Council and the Regional
Mechanism is made most evident in regard to the above - mentioned
107
108
109
Ibid., article 11 (4).
Ibid., article 16 (1).
Ibid., see article 16 (2 through 9).
276
Max Planck UNYB 8 (2004)
early warning system, as they are “linked directly through appropriate
means of communications” to the so-called “Situation Room”110.
As has been noted in the Common African Defence and Security
Policy, a number of sub-regional organizations which are “essentially
economic-orientated” have established instruments and mechanisms to
coordinate “regional defence and security policies”. Mention is made of
eight such African regional organizations which, by acting in the domain of peace and security, and being consistent with the objectives and
principles of the Union constitute Regional Mechanisms under the Protocol. They are the Arab-Maghreb Union, (AMU), Community of Sahelo-Saharan States (CEN-SAD), the Common Market for Eastern and
Southern Africa (COMESA), the East African Community (EAC), the
Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD) and the Southern African Development Community (SADC)111. With respect to such Regional Mechanisms, the Peace and Security Council has mentioned only
one during its early sessions. The Council lent its support to the efforts
of ECOWAS in Côte D’Ivoire and called on the “Chairman of the African Union [a sitting Head of State or Government elected by the AU
Assembly – Joaquim Chissanó, President of Mozambique] and the
Chairperson of the AU Commission, in liaison with the ECOWAS […]
to take the most appropriate measures to help overcome the current
problems and facilitate the implementation of the reconciliation process
in Côte D’Ivoire”112. In a more robust manner, the Council, sitting at
the level of Heads of State in May 2004, “mandate[d] ECOWAS to take
necessary action to ensure full restoration of operations of state in Côte
D’Ivoire immediately and to report progress to the Assembly of the
Union” at its next session113.
110
111
112
112
113
Ibid., article 12 (2)(b).
African Union, Solemn Declaration on a Common African Defence and Security Policy, Second Extra-Ordinary Assembly of the Union of 28 February 2004, 26, para. 25. Note that each of the sub-regional organizations
gives an indication as to its geographic reach except for IGAD; its membership includes: Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and
Uganda.
Peace and Security Council, Communiqué of the Peace and Security
Council, PSC/PR/Comm. (III) of 27 March 2004, para. 6.
Ibid., article 10 (3)(b).
Peace and Security Council, Communiqué, PSC/AHG/Comm. (X) of 25
May 2004, para. C (7).
Allain, The True Challenge to the UN System
277
Finally, before going on to consider the manner in which the African
Union has institutionalized the use of force beyond the United Nations
System, reference should be made to further relationships which have
been established under the Protocol. Article 17 – which will be considered in more detail below – establishes the relationship with the United
Nations and other international organizations. Article 18 calls for a
close working relationship with the Pan-African Parliament including
the preparation of reports and the submission of annual reports “on the
state of peace and security in the continent”114; article 19 mandates the
Council to seek cooperation with the African Commission on Human
and Peoples’ Rights115; while, finally, article 20 calls the Council to “encourage non-governmental organizations, community-based and other
civil society organizations, particularly women’s organizations, to participate actively in the efforts aimed at promoting peace, security and
stability in Africa.”
VI. Institutionalized Use of Force beyond the United
Nations System
Since it came into operation in December 2003, the Peace and Security
Council has been the focal point of the regime established by the AU to
deal with issues of peace and security. At the heart of that framework
lies the possible use of force beyond that allowed by the United Nations Charter. While this regime of peace and security is decentralized,
in that the power to act is delegated to various actors, they act in conjunction with the Peace and Security Council which is the pivot of the
system. Yet, the actual power of decision in situations of recourse to the
use of force does not lie with the Council specifically, but has been
withheld by, and remains with, the Assembly of Heads of State and
Government – the “supreme organ” of the AU.
As has been noted, on the basis of the Constitutive Act, the AU has
the “right”, pursuant to article 4 (h), “to intervene in a Member State
114
115
For discussion of the Pan-African Parliament, see K. Magliveras/ G. Naldi,
“The Pan-African Parliament of the African Union: An Overview”, African Human Rights Law Journal 3 (2003), 222 et seq.
For consideration of the African Commission on Human and Peoples’
Rights, see Nsongurua Udombana, “Can the Leopard Change its Spots?
The African Union Treaty and Human Rights”, Am. U. Int’l L. Rev. 17
(2002), 1177 et seq.
278
Max Planck UNYB 8 (2004)
pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”.
Further, by way of article 4 (j), Members States of the Union have “the
right […] to request intervention from the Union in order to restore
peace and security”. Before considering each of these provisions in turn,
consideration should be given to the manner in which the Assembly of
Heads of State and Government of the AU goes about making – what
ultimately may be – decisions regarding the use of force. The Constitutive Act notes that the Assembly, which is composed of all African
Heads of State and Government, or their representatives (with the exception of Morocco which withdrew from the Organization in 1985 as
a result of the admission of Western Sahara to the OAU), are to meet at
least once a year. Decisions are made by “consensus or, failing which,
by a two-thirds majority of the Member States.”116
The powers of the Assembly regarding recourse to the use of force
are to be found in article 9 of the Constitutive Act, though they are not
noted explicitly. Article 9 (1) states that the “functions of the Assembly
shall be to: “(b) Receive, consider and take decisions on reports and
recommendations from the other organs of the Union”. It is only when
one considers the secondary legislation of the Assembly, its Rules of
Procedure, that a manifestation of power regarding the use of force, in
the guise of intervention, reveals itself. Rule 4 states that the Assembly
of Heads of State and Government of the AU shall, inter alia:
“e) decide on intervention in a Member State in respect of grave circumstances namely, war crimes, genocide and crimes against humanity;
f) decide on intervention in a Member State at the request of that
Member State in order to restore peace and security”117.
It is from these provisions that the Assembly has the specific power
to decide to use force within the framework of the AU. Yet, as result of
the 2003 Protocol on Amendments to the Constitutive Act of the AU,
the basis upon which the Assembly may decide to project force against
one of its members has been further widened. This comes as a result of
the amendment of article 4 (h) of the Constitutive Act, which allows a
further (fourth) justification for the Union to use military force beyond
those established by the United Nations System.
116
117
Article 7 (1), Constitutive Act of the Africa Union, see note 78.
African Union, Rules of Procedure of the Assembly of the Union,
ASS/AU/2(I), 9–10 July 2002.
Allain, The True Challenge to the UN System
279
1. Article 4 (h) – Interventions in Respect of Grave
Circumstances
The first session of the Assembly of Heads of State and Government
held in Durban, South Africa, in July 2002 was caught off guard by a
far-reaching proposal made by Libya to amend the Constitutive Act of
the AU118. Though, for procedural reasons, the amendments were not
considered at Durban, they were taken up at an Extraordinary Session
held in Addis Ababa, Ethiopia, on 3 February 2003. These proposals
included “a single army for Africa, an AU Chairman with presidential
status and greater power of intervention in Member States – in other
words, for an institution that came closer to a ‘United States of Africa’”119. Beyond article 4 (h) of the Constitutive Act which reads:
“[t]he right of the Union to intervene in a Member State pursuant to
a decision of the Assembly in respect of grave circumstances,
namely: war crimes, genocide and crimes against humanity;
Libya proposed the following addition:
[…] as well as in cases of unrest or external aggression in order to restore peace and stability to the Member of the Union.”
While this amendment was not accepted, a different, “watered
down” amendment was; one which avoided conceding too “controversial or regressive” an amendment to the Constitutive Act while keeping
Libya, “an influential and potentially troublesome Member State”, placated120. The amendment which was incorporated in the Protocol
amending the Constitutive Act adds to article 4 (h) in the following
manner:
“The right of the Union to intervene in a Member State pursuant to
a decision of the Assembly in respect of grave circumstances,
namely: war crimes, genocide and crimes against humanity as well as
a serious threat to legitimate order to restore peace and stability in
118
119
120
The proposal was meant to move towards a collective security arrangement
to defend African states from outside aggression such as had been visited
upon Libya in 1986 by the United States of America.
E. Baimu/ K. Sturman, “Amendment to the African Union’s Right to Intervene: A Shift from Human Security to Regime Security?”, African Security Review 12 (2003), 37 et seq. (38).
Ibid., 39.
280
Max Planck UNYB 8 (2004)
the Member State of the Union upon the recommendation of the
Peace and Security Council”121.
While it is uncontroversial what is meant by circumstances which
constitute war crimes, genocide, or crimes against humanity, questions
may be raised regarding the meaning of the 2003 amendment of the
provisions of article 4 (h). As subsection (h) was originally conceived,
the right to intervene by the Union was predicated on violations of international law which not only incurred state responsibility, but also are
considered international crimes entailing individual responsibility. War
crimes, genocide, and crimes against humanity fall under the jurisdiction ratione materiae of the Rwanda and Yugoslavia Criminal Tribunals
established by the UN Security Council, and make up the current basis
for prosecution under the Rome Statute of the International Criminal
Court122. As such, international courts have been, and will continue to,
establish the parameters of what is meant by these provisions. By contrast, the phrase “serious threat to legitimate order” does not appear in
any previous manifestation, either internationally, or within the AU, or
its predecessor the OAU. According to Ben Kioko, the amendment is
meant to act as a residual clause. The Legal Advisor to the AU writes
that the phrase allows for the Assembly to “decide on intervention in
situations where the provision relating to genocide, war crimes and
crimes against humanity is not applicable, but where the situation nevertheless warrants the intervention”123.
As the phrase introduced by the Protocol amending the Constitutive Act allows for the use of force to restore peace and security in
situations of “serious threat to legitimate order” has not as yet been
considered, there is little to go by in seeking to determine the legal parameters of this newly established pretext for recourse to the use of
force. While some have argued that the provision “is likely to facilitate
the interventions aimed at protecting regimes rather than the people”,
Kioko disagrees, stating that an intervention would only take place
121
122
123
See article 4, Protocol on Amendments to the Constitutive Act of the African Union of 3 February and 11 July 2003. Emphasis added.
For the development of jurisprudence regarding these crimes before the
ICTY and ICTR see J. Ackerman/ E. O’Sullivan, Practice and Procedure of
the International Criminal Tribunal for the Former Yugoslavia: with Selected Materials from the International Criminal Tribunal for Rwanda,
2000. For the International Criminal Court, consider W. Schabas, An Introduction to the International Criminal Court, 2001.
Kioko, see note 64, 815.
Allain, The True Challenge to the UN System
281
where it “would conform to the hopes and aspirations of the African
peoples”124. He goes on:
“Clearly, intervening to keep in power a regime that practices bad
governance, commits gross and massive violations of human rights
or refuses to hand over power after losing in elections is not in conformity with the values and standards that the Union has set for itself”125.
As Baimu and Sturman, however, have rightly pointed out in their
study of the amendment: “[i]n the absence of the African Court of Justice, the issue of interpretation of what would constitute a serious threat
to legitimate order will fall upon the Assembly of the Union”126.
Clearly, as a political issue, the way is clear to interpret this residual
clause as the Assembly deems fit; in essence, expanding the recourse to
the use of force within the AU to, at the very minimum, what twothirds of African leaders decide upon.
Where the Assembly of Heads of State and Government is limited is
by the final phrase of the amendment of article 4 (h) of the Constitutive
Act, which introduces the need for the Peace and Security Council to
make a recommendation to intervene. This power is confirmed in the
2002 Protocol establishing the Peace and Security Council, which notes,
in article 7 (1)(e), that the Council shall – in conjunction with the
Chairperson of the Commission:
“recommend to the Assembly, pursuant to Article 4(h) of the Constitutive Act, intervention, on behalf of the Union, in a Member
State in respect of grave circumstances […]”.
As this provision, however, was adopted before the 2003 amendment to the Constitutive Act, it only cites the first three circumstances
and thus does not give the Council the power to make recommendations with regard to a “serious threat to legitimate order”. The provision continues:
“in respect of grave circumstances […] namely: war crimes, genocide
and crimes against humanity, as defined in relevant international conventions and instruments”.
This anomaly, which manifests itself elsewhere in the Protocol establishing the Peace and Security Council, raises constitutional questions regarding situations in which the Union has appropriated for itself
124
125
126
Baimu/ Sturman, see note 119, 43; and Kioko, see note 64, 816.
Kioko, see note 64.
Baimu/ Sturman, see note 119, 42.
282
Max Planck UNYB 8 (2004)
the ability to intervene in grave circumstances127. Because the Protocol
establishing the Peace and Security Council was adopted before the
amendments to the Constitutive Act, it does not foresee the possibility
of intervention as a result of “a serious threat to legitimate order”.
Thus, while the Peace and Security Council has been given the power to
make recommendations in situations of serious threats to the legitimate
order of Member States by way of the amended Constitutive Act; it
does not have the formal jurisdiction to make such recommendation by
virtue of its own founding Protocol. Further, one should highlight the
fact that the amended Constitutive Act; does not, as of yet, bind all
Member States of the AU, and thus raises further questions regarding
the framework in which the Peace and Security Council will function.
As of 25 May 2004, the date of the official launching of the Peace and
Security Council, only twenty-three states (of the fifty-three Members
States of the AU – party to the Constitutive Act) had signed the Protocol on Amendments to the Constitutive Act of the AU. However the
Comoros, South Africa, and Tanzania are the only members to have
ratified the amending instrument128. Further, it should be mentioned
that by the launch date of the Peace and Security Council, only thirtytwo states had ratified the Protocol establishing the Council.
While consideration will be given to the relationship between the
AU and the United Nations, it is relevant to note that the provisions of
article 4 (h), prima facie, are far wider than the powers of the United
Nations Security Council. It will be recalled that the only basis for the
projection of force under the UN Charter is in relation to attempts by
the Council to maintain or restore the peace where there has been a determination that there exists: 1.) a threat to the peace; 2.) a breach of the
peace; or 3.) an act of aggression. By contrast, article 4 (h) of the Constitutive Act, as amended, introduces four new bases (i.e.: war crimes,
genocide, crimes against humanity, and a serious threat to legitimate order) for the use of force. Thus, whether the AU subordinates itself or
not the United Nations System is immaterial to the possibility of the
127
128
For further manifestations of this anomaly within the Protocol establishing
the Peace and Security Council see article 4 (j) and article 6 (d).
See African Union, List of Countries which have Signed, Ratified, Acceded
to The African Union Convention on the Protocol On the Amendments to
the Constitutive Act of the African Union. See the website of the African
Union at: <http://www.africa-union.org>. Note that, by way of article 13,
the Protocol will only enter into force thirty days after the deposit of instruments by two-thirds of the members of the AU: that is when a total of
thirty-six states have ratified.
Allain, The True Challenge to the UN System
283
UN Security Council authorizing actions with respect to the provisions
of article 4 (h), as these four pretexts allowing for the use of force go
beyond the Council’s competence to act under Chapter VII of the
United Nations Charter.
2. Article 4 (j) – Intervention in Order to Restore Peace and
Security
By contrast to the provisions of article 4 (h) of the Constitutive Act, article 4 (j) is not encumbered by an amendment and thus establishes the
principle of:
“The right of Member States to request intervention from the Union
in order to restore peace and security”;
Yet, this right has been narrowly construed by the Assembly in its
Rules of Procedure, as the Heads of State and Government, based on a
request by a (singular) Member State, are called upon to intervene
solely within that state. That is, article 4 (j) has been “interpreted in a
manner that restricts the application of the clause to when an affected
member state requests intervention itself, rather than other members
states requesting intervention in a third country”129. The provision of
Rule 4 states that the Assembly shall:
“f) decide on intervention in a Member State at the request of that
Member State in order to restore peace and security.”
This narrow interpretation has, not however, been confirmed by the
Protocol establishing the Peace and Security Council. The Protocol
notes that, by virtue of article 4 (k), as a principle, the Council is to be
guided by the “right of Member States to request intervention from the
Union in order to restore peace and security, in accordance with Article
4 (j) of the Constitutive Act”130. While a second provision of the Protocol also notes that actions are to be taken “pursuant to article 4 (j) of the
Constitutive Act”, this provision speaks of a “Member State” in the
singular. The provision of article 7 (f), outlines the power of the Peace
and Security Council with respect to interventions wherein it grants the
129
130
J. Cilliers/ K. Sturman, “The Right Intervention: Enforcement Challenges
for the African Union”, African Security Review 11 (2002), 29 et seq. (3637).
Article 4 (k), Protocol Relating to the Establishment, see note 79. Emphasis
added.
284
Max Planck UNYB 8 (2004)
Council the power to “approve the modalities for intervention by the
Union in a Member State, following a decision by the Assembly, pursuant to article 4 (j) of the Constitutive Act”. As the Protocol is an international treaty which requires state consent, the Rules of Procedure of
the Assembly by contrast are mere secondary legislation; it is plain
therefore that the narrow interpretation taken by Rule 4 need not bind
the AU. As the provisions of both articles 4 (k) and 7 (f) of the Peace
and Security Council Protocol refer to article 4 (j) of the Constitutive
Act, African leaders could well allow for the use of force to transpire
against a state other than the one requesting it, “in order to restore
peace and security”.
Regardless of whether the provisions of article 4 (j) of the Constitutive Act will be interpreted restrictively or in an expansive manner, the
question persists as to whether it – and article 4 (h) – fall within the
United Nations System of the use of force or seek to escape it. As will
now be considered, the provisions of the constitutive instrument of the
Peace and Security Council belie the fact that the AU has sought to ensure a pax africana at the expense of the United Nations System and
thus, through the development of regional instruments to that effect,
undertaken the first true challenge to the normative framework regarding the use of force since the establishment of the United Nations Charter in 1945.
VII. Relationship between the African Union and the
United Nations
The challenge of the AU to the normative framework regarding the use
of force which is manifest in the United Nations System derives from
its unwillingness to subordinate its actions to those of the United Nations Security Council. While regional organizations, such as NATO
and the Organization of American States, have recognized this imperative; the AU, though paying homage to the primacy of the UN Security
Council, does not place its Peace and Security Council under the obligation to defer to the United Nations in its actions, either generally or
specifically, with respect to determining or using force – that is, with respect to intervention as envisioned by article 4 (h) and (j) of its Constitutive Act. Instead of conforming to the dictates of Chapter VIII of the
United Nations Charter, the Protocol establishing the Peace and Security Council diffuses the primary role attributed to the Security Council
by the United Nations Charter, mentioning the UN Security Council
Allain, The True Challenge to the UN System
285
as but one of a number of organizations which will assist the Peace and
Security Council in the area of logistics where peace and security is at
issue. With regard to the challenge to the United Nations System, what
is most important about the instruments of the AU is what is left unsaid. The Constitutive Act, as amended, is silent on the relationship between the United Nations and the AU. Beyond the need to register the
Act with the Secretariat of the United Nations, the sole mention of the
United Nations Organization in the Constitutive Act is in regard to
one of the Union’s objectives, to: “[e]ncourage international cooperation, taking due account of the Charter of the United Nations and the
Universal Declaration of Human Rights”131.
With respect to the 2002 Protocol relating to the Establishment of
the Peace and Security Council of the AU, the preamble acknowledges
the primary responsibility of the UN Security Council in issues of
international peace and security in the following passage:
“Mindful of the provisions of the Charter of the United Nations,
conferring on the Security Council primary responsibility for the
maintenance of international peace and security, as well as the provisions of the Charter on the role of regional arrangements or agencies
in the maintenance of international peace and security, and the need
to forge closer cooperation and partnership between the United Nations, other international organizations and the African Union, in
the promotion and maintenance of peace, security and stability in
Africa”.
Yet, this is juxtaposed against a number of further pre-ambular
paragraphs which spell out the wish of African states to take command
over issues of the use of force through the establishment of the regime
of the AU regarding peace and security:
“Concerned about the continued prevalence of armed conflicts in
Africa and the fact that no single internal factor has contributed
more to socioeconomic decline on the Continent and the suffering
of the civilian population than the scourge of conflicts within and
between our States; […]
Determined to enhance our capacity to address the scourge of conflicts on the Continent and to ensure that Africa, through the African Union, plays a central role in bringing about peace, security and
stability on the Continent;
131
Article 3 (e) Constitutive Act of the Africa Union of 11 July 2000.
286
Max Planck UNYB 8 (2004)
Desirous of establishing an operational structure for the effective
implementation of the decisions taken in the areas of conflict prevention, peace-making, peace support operations and intervention,
as well as peace-building and post-conflict reconstruction […]”.
By the time the Protocol outlines the relationship between the AU
and the United Nations at article 17; the nature of the overall regime regarding peace and security has already been given voice within the Protocol. As noted earlier, article 16 (1) states that “The Regional Mechanisms are part of the overall security architecture of the Union, which
has the primary responsibility for promoting peace, security and stability
in Africa.”132 While African states have pledged, at article 17, that the
African Union’s Peace and Security Council will “cooperate and work
closely with the United Nations Security Council, which has primary
responsibility for the maintenance of international peace and security”,
it is clear that the relationship is neither on an equal footing or one
which places the UN Security Council above that of the Peace and Security Council. The Protocol, while noting that the Peace and Security
Council “shall cooperate and work closely with the United Nations Security Council”, diffuses the primacy of the UN Security Council in
the next sentence by stating that “the Peace and Security Council shall
also cooperate and work closely with other relevant UN Agencies in
the promotion of peace, security and stability in Africa”133.
Therefore, the UN Security Council is but one of the United Nations bodies which the Peace and Security Council is expected to work
with closely, and its interaction is meant to be first and foremost of a
logistical nature as article 17 (2) does not speak of the need to seek UN
Security Council authorization to use force; instead calls on the United
Nations to provide assistance:
“Where necessary, recourse will be made to the United Nations to
provide the necessary financial, logistical and military support for
the African Unions’ activities in the promotion and maintenance of
peace, security and stability in Africa, in keeping with the provisions
of Chapter VIII of the UN Charter on the role of Regional Organizations in the maintenance of international peace and security”.
The provision, while mentioning Chapter VIII, clearly does so, not
in the context of a need to seek authorization or allow for stepping
132
133
Emphasis added. For discussion of Regional Mechanisms see Section V. 2.
c. above.
Article 17 (1), Protocol Relating to the Establishment, see note 79.
Allain, The True Challenge to the UN System
287
aside should the UN Security Council deem it necessary to take measures to restore or maintain international peace; but with respect to playing a subordinate role of assisting the Peace and Security Council in
carrying out its activities. The diffusion of the primacy of the United
Nations Security Council is further reflected in article 17 (3) where,
first the Peace and Security Council is to “maintain close and continued
interaction with the United Nations Security Council”, but also on the
same footing with African members of the UN Security Council and
the UN Secretary-General. Further dilution of the primacy of the UN
Security Council is apparent in article 17 (4), where the Peace and Security Council is to “cooperate and work closely with other relevant international organizations on issues of peace, security and stability in
Africa”. The diffusion of the primary role of the Security Council over
issues of international peace and security as developed in article 17 of
the Protocol, in essence, turns the United Nations System on its head,
as the UN Security Council is meant to assist the African Union’s Peace
and Security Council not vice versa. As a result of the fact that the Protocol, while paying lip-service to the primacy of the UN Security
Council, seeks, at every turn, to dissipate its pre-eminence makes clear
that intervention as envisioned by the Constitutive Act of the African
Union usurps the ultimate control vested in the United Nations System
over the use of force.
VIII. Conclusion
On 23 December 2003, the AU brought into operation its exception to
the normative framework of the international system as the Protocol establishing its own Peace and Security Council came into force. As a result, for the first time since 1945 the United Nations System regarding
the use of force has been truly challenged. While the cases of Kosovo
and Iraq have elicited much discussion, the justifications of recourse to
the use of force beyond Article 2 (4) of the Charter, whether “humanitarian intervention” or “pre-emptive self-defence”, have failed to meet
the threshold of state practice backed by opinio juris required to enter
the corpus of customary international law. As a result, United States’
led actions in the Balkans and in the Middle East have failed either to
fall within the established parameters of the legal use of force or to
modify the normative framework accepted by the community of states.
By contrast, African states, through their recourse to the Constitutive
Act of the AU and the Protocol establishing the Peace and Security
Max Planck UNYB 8 (2004)
288
Council of the AU have formally opted out the normative framework
of the United Nations System. Not only do they reject the primacy of
the United Nations Security Council in the domain of peace and security, they have appropriated for themselves further possibilities for the
recourse to the use of force beyond the established order; that is, allowing for armed intervention to halt crimes against humanity, genocide,
war crimes, or serious threats to the legitimate order.
What is clear, as Ben Kioko has noted, is that when “setting up the
African Union, the heads of State thus intended to endow their continental organization with the necessary powers to intervene if ever the
spectre of another Rwandan genocide loomed on the horizon”134. This,
along with the fact that the UN Security Council lent support, both
tacit and open, to ECOWAS interventions in Liberia and Sierra Leone
without a mandate to use force allowed African leaders to take their
destiny, with respect to continental control over the use of force, into
their own hands. The move away from the United Nations System is
well reflected in the words of Ben Kioko:
“When questions were raised as to whether the Union could possibly have an inherent right to intervene other than through the Security Council, they were dismissed out of hand. This decision [regarding moving beyond the UN System and allowing for intervention within the African Union] reflected a sense of frustration with
the slow pace of reform of the international order, and with instances in which the international community tended to focus attention on other parts of the world at the expense of more pressing
problems in Africa”135.
With this in mind, it is evident that in a fundamental manner, the
AU has challenged the consensus which has existed since 1945: that the
United Nations Security Council is the only entity which may legally
project force. The incorporating, within the Constitutive Act and the
Protocol Relating to the Establishment of the Peace and Security Council, four new exceptions allowing for the recourse of the use of force
and not mandating that the Council or Assembly subordinate its actions to the imperatives of the UN Charter, has meant the African states
134
135
Kioko, see note 64, 815.
Kioko, ibid., 821.
Allain, The True Challenge to the UN System
289
have truly challenged, for the first time, the framework of the United
Nations System of governance regarding the use of force as developed
more than half a century ago.
The Direct Administration of Territories by the
United Nations and its Member States in the
Post Cold War Era: Legal Bases and Implications
for National Law
Erika de Wet*
I.
II.
III.
IV.
V.
VI.
*
Introduction
United Nations-Authorized Administrations in the Post Cold War Era
1. The Direct Co-Administration of Territories by the United Nations
2. The Direct Administration of Territories by the United Nations
3. The Direct Administration of Territories by United Nations Member
States
Legal Basis for Direct (Co-) Administrations
1. The Nature of the Implied and Customary Powers of the United Nations
2. Implied and Customary Powers as a Basis for the (Co-) Administration
of Territories?
Additional Legal Bases for the Direct Administrations of Territories
1. Automatic Succession of Human Rights Treaties?
2. The Law of Occupation?
a. The (In) Applicability of the Law of Occupation to United NationsAuthorized Forces
b. The Unsuitability of the Law of Occupation as a Legal Basis for Direct
(Co-) Administrations
The Implications of the (Co-) Administrations for the Domestic Legal Order
1. The Dual Character of Directly Applicable Decisions
2. The Potential Inalterability of Directly Applicable Decisions
Conclusion
The author would like to thank Ward Ferdinandusse, Jann Kleffner, Hege
Elisabeth Kjos, André Nollkaemper, Nwamaka Okany and Fabian Raimondo for comments on earlier drafts of this text. The article was written
as part of the research project Interactions between International Law and
National Law, funded by the Netherlands Organization for Scientific Research.
Max Planck UNYB 8 (2004)
292
I. Introduction
In the following article the concept of “direct administration” refers to
the governance of a territory by an external entity on the authority of
the United Nations Security Council. The “directness” of such an administration relates, in particular, to the directly applicable nature of the
decisions of the external entity in the national legal order of the affected
entity. Although the external entity usually takes the form of a Special
Representative of the United Nations, the article will illustrate that such
direct administration is also sometimes undertaken by Member States.
It will further illustrate that it is possible to distinguish between fullyfledged administrations and co-administrations, depending on the scope
of the direct administration in question. In instances where some form
of domestic government continues to exist alongside the United Nations-authorized administration, the latter can be described as a coadministration. The term “fully-fledged administration” is reserved for
those instances where the United Nations-authorized administration is
the sole governmental authority in a particular territory. The terms
“fully-fledged” and “co-administration” are used to indicate the gradual differences in the scope of direct administrations that are authorized
by the United Nations. It is not, however, intended to describe the nature (i.e. executive, legal, judicial) of the decisions made by these administrations, as any of these decisions can fall within the mandate of
either a fully-fledged or a co-administration.
Security Council-authorized direct and co-administrations emerged
in the post Cold War era. Resolutions resulting in such direct administration include those authorizing the United Nations Transitional Authority in Cambodia (UNTAC) in 19921; the United Nations Operation in Somalia (UNOSOM II) of 19932; the institution of the HighRepresentative for Bosnia-Herzegovina in 19953; the United Nations
Transitional Authority in Eastern Slavonia, Baranja, Western Sirmium
1
2
3
This mandate was endorsed by S/RES/745 (1992) of 28 February 1992,
paras 1 et seq. See F.E. Hufnagel, UN-Friendsoperationen der zweiten Generation. Vom Puffer zur Neuen Treuhand 1996, 138.
S/RES/814 (1993) of 26 March 1993.
See S/RES/1031 (1995) of 15 December 1995, para. 27; the General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, article 5,
available at <www.ohr.int>.
De Wet, The Direct Administration of Territories by the United Nations
293
(UNTAES);4 the United Nations Interim Administration Mission in
Kososvo (UNMIK) in 1999;5 the United Nations Transitional Administration in East Timor (UNTAET);6 and the administration of Iraq by
the Coalition Provisional Authority (CPA) in 2003.7
Although these particular types of Security Council-authorized administrations only emerged in the post Cold War era, other forms of
external direct administration of territories were not uncommon during
the twentieth century. One of the most well-known examples concerns
the administration of the Saar Territory by the League of Nations after
World War I. In accordance with certain responsibilities outlined in the
Treaty of Versailles, the League of Nations administered the disputed
territory from 1920 to 1935. This administration included legislative
competencies, despite the fact that it legally remained under German
sovereignty during that time.8 Similarly, the League of Nations assumed
significant responsibilities with respect to the Free City of Danzig. In
this case, however, the League acted mainly as a mediator of disputes
between Danzig and Poland and as a guarantor of Danzig’s constitution
and independence.9
After World War II, the Berlin Declaration Regarding the Defeat of
Germany and the Assumption of Supreme Authority with Respect to
Germany of 5 June 194510 attributed to the Allied Powers the supreme
4
5
6
7
8
9
10
Basic Agreement on the Region of Eastern Slavonia, Baranja and Western
Sirmium, S/RES/1037 (1996) of 15 January 1996 and Doc.S/1995/951, Annex. This agreement, which is hereinafter referred to as Basic Agreement
entered into force on 22 November 1995; A. Zimmermann/ C. Stahn,
“Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the current and future legal status of Kosovo”, Nord. J. Int’l.
L. 70 (2001), 423 et seq. (433).
S/RES/1244 (1999) of 10 June 1999, paras 1 et seq.
S/RES/1272 (1999) of 25 October 1999, para. 1 et seq.
S/RES/1483 (2003) of 22 May 2003, para. 4.
German authority over the territory was reinstated on 13 January 1925,
following the outcome of a referendum in accordance with which the majority of the population favoured reunification with Germany. See Treaty
of Peace between the Principal Allied and Associated Powers and Germany
(“Treaty of Versailles”) of 28 June 1919, Part III, Section IV, Annex, article
19. See also Zimmermann/ Stahn, see note 4, 436.
Zimmermann/ Stahn, see note 4, 430.
See I. von Münch, Dokumente des geteilten Deutschland 1968, 19.
294
Max Planck UNYB 8 (2004)
authority over Germany.11 Subsequently, the Potsdam Accords resulted
in far-reaching interferences with Germany’s system of governance.12
The United Nations, for its part, were entrusted with governing the
former colonial territories of Japan and Italy. Territories such as Eritrea,
Italian Somaliland, Libya and the Japanese islands in the Pacific became
part of the United Nations trusteeship system, in accordance with
which they were administered by individual states such as the United
Kingdom and the United States.13
The current article will, however, confine itself to certain legal questions raised by the post Cold War direct administrations that were authorized by the Security Council. The first concerns the legal basis for
such administrations, as it is not explicitly provided for in the United
Nations Charter (the Charter). The relevance of such an examination is
reflected by the breadth of the decision-making undertaken by those
acting on the authority of the Security Council in these circumstances.
For example, it inter alia, resulted in regulations ranging from the introduction of the substantive provisions of the Convention relating to a
Uniform Law on the Formation of Contracts for the International Sale
of Goods into domestic law in Kosovo;14 to extensive banking and telecommunication reform in East Timor;15 and even to the development of
11
12
13
14
15
C. Tomuschat, “Yugoslavia’s Damaged Sovereignty over the Province of
Kosovo, in State, Sovereignty and International Governance”, in: G.P.H.
Kreijen et al. (eds), State, Sovereignty and International Governance 2002,
336.
The text of the Potsdam Accords are reprinted in von Münch, see note 10,
32; see also Tomuschat, see note 11, 336.
Less successful early attempts by the United Nations to engage in direct
administration included the administration of Trieste and Palestine, respectively. The multilateral peace treaty with Italy after World War II had authorized the Security Council to approve a provisional regime and appoint
a governor to administer the Free Territory of Trieste, but early Cold War
rivalries prevented the appointment of a governor. The status of Trieste was
eventually resolved in the Memorandum of Understanding between the
Governments of Italy, the United Kingdom, the United States and Yugoslavia regarding the Free Territory of Trieste of 5 October 1954, UNTS Vol.
235 No. 3297. The General Assembly’s partition plan for Palestine had
called for the creation of a corpus separatum for Jerusalem under a special
international regime administered by the Trusteeship Council, but the Arab
states and Israel ultimately rejected the plan. See Doc. T/L.78 (1950);
Zimmermann/ Stahn, see note 4, 430 et seq.; Tomuschat, see note 11, 336.
UNMIK/REG/ 2000/68 of 29 December 2000.
UNTAET/REG/2001/30 of 30 November 2001.
De Wet, The Direct Administration of Territories by the United Nations
295
a free market economy in Iraq.16 As these decisions could effectively result in the introduction of comprehensive amendments in all areas of
law, the question as to their legal basis becomes pertinent.
The second question to be addressed concerns the implications of
the direct (co-) administrations for the national legal order. By authorizing the external entity to adopt directly applicable binding decisions,
the Security Council deviated from the traditional public international
law principle that leaves the implementation to domestic legal systems
to determine the implementation of international obligations – including those stemming from the Security Council.17 Academic literature
has thus far paid scant attention to this development. It has hardly explored the legal basis for this deviation (a question closely related to the
first main question to be addressed in this article), nor has it paid any
attention to the problems arising from the possible inalterability of directly applicable decisions, due to their overriding character. The question arises whether the superior legal framework within which Chapter
VII authorized (co-) administrations function would prevent their decisions from subsequently being amended by the domestic governments
in the post-administration phase without the consent of the Security
Council.
Sections III. and IV. explore the legal basis for territorial administrations by the United Nations or Member States acting on its behalf. This
includes a distinction between the implied and customary powers of the
United Nations, as well as the potential role of automatic succession to
treaties and the law of occupation as a basis for direct (co-) administration.18 Subsequently Section V. examines some of the implications of
16
17
18
As concretized, inter alia, by the extensive modernization of the banking
system and the licensing of commercial telecommunications services and
equipment. See CPA/ORD/7 June 2003/12; CPA/ORD/19 September
2003/40, including Annex A; CPA/ORD/8 June 2003/11.
Zimmermann/ Stahn, see note 4, 441.
The article does not deal with the question whether the Security Council
could adopt coercive measures against non-Member States. This question
nonetheless may arise, given the fact that East Timor was not a member of
the United Nations at the time S/RES/1272 was adopted, whilst the status
of the Federal Republic of Yugoslavia (FRY) at the time of the adoption of
S/RES/1244 remains disputed until this day. For an explanation why the
Security Council had the competence to adopt Chapter VII measures in the
specific instances of East Timor and the former FRY, see E. De Wet, The
Chapter VII Powers of the United Nations Security Council, 2004, 236 et
seq. and 318 et seq. For a detailed analysis on the issue of state succession
296
Max Planck UNYB 8 (2004)
the direct (co-) administrations of territories for the domestic legal order. It explores, in particular, if and to what extent the Security Council-authorized administrations may directly penetrate the domestic order, as well as whether the directly applicable decisions resulting from
such penetration would be of an “inalterable” nature.
II. United Nations-Authorized Administrations in the
Post Cold War Era
At the outset of this section, mention should be made of the United
Nations Transition Assistance Group (UNTAG) of 1988.19 Although
UNTAG did not amount to a system of direct (co-) administration, it
did pave the way for such administrations. In this instance, the mandate
did not yet include direct execution of governmental functions, as it
was directed at supervision and guidance of the South African administration in Namibia.20 In the area of legislation, UNTAG’s role was
limited to advising and monitoring the South African AdministratorGeneral on the removal of discriminatory legislation that could influence the holding of free and fair elections.21 It further oversaw the repatriation of refugees and the release of political prisoners and detainees,
in order to facilitate their participation in the electoral process.22 The
Executive branch remained under the direct control of the South African authority, since UNTAG’s role was restricted to the monitoring of
the police. UNTAG had no mandate in relation to the judiciary which
remained under the complete control of the South African authority. 23
On the one hand, UNTAG’s mandate still followed the traditional
19
20
21
22
23
and its consequences for the former Yugoslav republics, see A.
Zimmermann, Staatennachfolge in völkerrechtliche Verträge, 2000, 599 et
seq.
Although the Security Council already authorized its creation in
S/RES/435 (1978) of 29 September 1978, its actual establishment was prevented by the lack of cooperation by South Africa until 1988.
Hufnagel, see note 1, 65.
Hufnagel, see note 1, 67. This advisory power ultimately lead to the removal of 56 discriminatory laws.
Hufnagel, see note 1, 69; C. Stahn, “International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges
ahead”, ZaöRV 61 (2001), 108 et seq. (125 et seq.).
Hufnagel, see note 1, 65.
De Wet, The Direct Administration of Territories by the United Nations
297
model according to which the manner of implementation of international obligations were left to the domestic authorities. On the other
hand, it triggered a process of involvement of the United Nations in the
day-to-day administrations of territories which were to result in direct
(co-) administration in the years to come.
The first instance of direct United Nations administration in the
post Cold War era was that of the UNTAC in Cambodia.24 As it existed alongside a domestic government possessing autonomous decision-making power in certain areas, the United Nations involvement in
Cambodia could be described as a co-administration. The same applies
to UNOSOM II25 and the institution of the High-Representative for
Bosnia-Herzegovina.26. UNTAES in Eastern Slavonia, UNMIK in
Kosovo and UNTAET in East Timor can be categorized as fullyfledged direct administrations, due to the almost all-encompassing role
of the United Nations in these territories, especially during the first
year of their presence. The civil administration of Iraq by the United
States and the United Kingdom (the CPA), whilst also of a fullyfledged and direct nature, was unique to the extent that it thus far constitutes the only instance where the Security Council delegated the direct administration of a territory to two Member States, as opposed to
placing such administration under the authority of the United Nations
itself. In addition, it simultaneously followed an occupation of the territory affected, which was not the case with the other instances of United
Nations-authorized administration discussed here.
1. The Direct Co-Administration of Territories by the United
Nations
During UNTAC’s involvement in Cambodia, a Cambodian administration that was headed by a Supreme National Council (SNC) and representing all the main parties to the Cambodian civil conflict, continued
to exist. The SNC formed a sui generis body which was, in particular,
responsible, for exercising legislative power.27 At the same time, the
24
25
26
27
See note 1.
See note 2.
See note 3.
See the Agreement on a Comprehensive Political Settlement of the Cambodian Conflict of 30 October 1990 (Doc. S/23177 of 30 October 1991).
This document is hereinafter referred to as the Paris Agreement.
298
Max Planck UNYB 8 (2004)
SNC transferred powers of civil administration to the United Nations
in order to enable the latter to create a neutral political environment in
which elections could be held.28
These powers of civil administration, inter alia, included the ability
to take direct governmental action in certain areas.29 The Special Representative of the Secretary-General, who was responsible for the day to
day management of UNTAC, had the power to adopt binding executive directives in the areas of foreign relations, defence, financial policy,
internal security and information.30 UNTAC also had extensive legislative powers with respect to the regulation of the elections.31 Although
this right was exercised in consultation with the SNC, UNTAC had a
true legislative power in this respect, as it could revoke existing legislation which could undermine the purpose of the peace agreement. This
effectively facilitated the revoking of legislation in virtually all areas of
the civil administration.32 The direct exercise of governmental power
also extended to the judicial branch. UNTAC had the power to initiate
investigations into human rights violations on its own initiative, as well
as investigate complaints of human rights violations submitted by third
parties. At the end of the investigation it could give a binding decision.33 A comparable investigative power existed with respect to the
civil administration in general. On the basis of this investigative power,
UNTAC also initiated criminal prosecution in relation to serious violations of human rights.34
28
29
30
31
32
33
34
Paris Agreement, see above, Annex 1, Section A, para. 1.
See Paris Agreement, see note 27, Annex 1, Section B, paras 2 et seq., which
regulated the extent to which the Special Representative exercised indirect
governance in the form of supervision and control over the remaining sections of the Cambodian administration, including the police force.
Paris Agreement, see note 27, Annex 1, Section B, paras 1 and 5 (b). Hufnagel, see note 1, 117; Zimmermann/ Stahn, see note 4, 433; Stahn, see note
22, 126.
Paris Agreement, see note 27, Annex 1, Section D, para. 3 (a).
Paris Agreement, ibid., Annex 1, Section D, para. 3 (b); Hufnagel, see note
1, 132; Stahn, see note 22, 126.
Hufnagel, see note 1, 129.
Paris Agreement, see note 27, Annex 1, Section B, para. 6. To the extent
that differences of opinion (“issues”) arose between the Special Representative and the SNC in relation to the implementation of the Paris Agreement,
it prescribed a mechanism for their resolution. In essence, the Special Representative had to respect unanimous recommendations of the SNC or –
where no unanimity was possible – those made by its Chairperson. Direct
De Wet, The Direct Administration of Territories by the United Nations
299
With the establishment of UNOSOM II, the Security Councilauthorized an ambitious program of assistance for the people of Somalia, which included elements of direct (co-) administration. UNOSOM
II was authorized to promote and advance broad participation by all
sectors of Somali society, and the re-establishment of national and regional institutions and civil administration in the entire country. It also
had to create conditions under which the Somali civil society could
have a role at every level, in the process of reconciliation and in the
formulation and realization of rehabilitation and reconstruction programs.35 Although a so-called Transitional National Council (TNC)
was formally vested with the administrative and legislative authority in
Somalia,36 UNOSOM II assumed these functions until the creation of
the TNC, over one year after the conclusion of the agreement.37 In this
context, it directly adopted administrative measures to create an independent judiciary and a functioning prison system.38 The Special Representative of the Secretary-General further promulgated the former Somali Penal Code of 1962 as the criminal law in force in Somalia, while
adding special habeas corpus guarantees derived from international human rights instruments.39 UNOSOM II also directly executed judicial
powers by establishing a human rights office for investigating serious
35
36
37
38
39
action by the Special Representative was limited to instances where the
SNC was unable to act, despite the intervention of the Chairperson. In addition, the Special Representative could overrule any decisions that were
not in accordance with the purposes of the Paris Agreement, i.e. where
they threatened the impartiality of the elections. However, the Special Representative was not at liberty to replace a decision overruled by him on his
own. This was only possible if and to the extent that the SNC was unable
to take a decision itself. See also Paris Agreement, see note 27, Annex 1,
Section A, paras 2 (a) to 2 (e); S.R. Ratner, “The Cambodia Settlement
Agreements”, AJIL 87 (1993), 1 et seq. (10, 13 et seq.); Hufnagel, see note
1, 109, 130.
S/RES/814 (1993) of 26 March 1993, paras 4 (c) and (g).
Doc. S/1994/12, para. 14.
Stahn, see note 22, 127.
Doc. S/26317 (1993) Annex 1, paras 29 et seq.
Doc. S/26317 (1993) Annex 1, paras 25-29, 31, 36; C. Stahn, “The United
Nations Transitional Administrations in Kosovo and East Timor: A First
Analysis”, Max Planck UNYB 5 (2001), 105 et seq. (131); Hufnagel, see
note 1, 184.
300
Max Planck UNYB 8 (2004)
violations of the law of armed conflict and by initiating criminal prosecutions of such violations.40
The final example of United Nations (co-) administration is that of
Bosnia-Herzegovina, where the Security Council authorized the High
Representative of the Secretary-General to function alongside the federal government for the purpose of monitoring the implementation of
the Dayton Peace Agreement.41 The High Representative exercises direct governmental power to the extent that he can remove from office
those public officials who violate legal commitments contained in the
Dayton Peace Agreement. He may further impose interim legislation in
situations where Bosnia-Herzegovina’s national institutions failed to do
so.42 It is also worth mentioning that the Constitution of BosniaHerzegovina, which constituted Annex 4 to the Dayton Peace Agreement, was enacted in the national law by the Security Council itself,
through its endorsement of Resolution 1031 (1995).43
40
41
42
43
See S/RES/814 (1993) of 26 March 1993, paras 4 and 13. Despite its modest
successes in reconstructing the Somali judicial and penal systems, UNOSOM II did not achieve the major goals of disarmament and repatriation of
refugees. Neither was the recreation of the Somali state accomplished. After a series of Somali attacks on UNOSOM II forces all international forces
departed from the country in 1995, leaving no recognized authority in
place. See Hufnagel, see note 1, 181 et seq.; Stahn, see note 39, 128.
See S/RES/1031 (1995) of 15 December 1995, para. 27; the General Framework Agreement for Peace in Bosnia and Herzegovina, see note 3, Annex
10, article 5.
Conclusions of the Peace Implementation Conference in Bonn of 10 December 1997, para. XI 2 (a) to XI 2 (c), available at <www.ohr.int>. See also
S/RES/1144 (1997) of 19 December 1997, para. 2; Stahn, see 22, 112.
See also Stahn, see note 22, 136; T.D. Grant, “Internationally Guaranteed
Constitute Order: Cyprus and Bosnia as Predicates for a new NonTraditional Actor in the Society of States”, Transnat’l L.& Contemp. Probs
(1998), 1 et seq. (20-21, 37-38). The Constitution itself requires further incorporation of international law into the structure and laws of that federal
state. Among other provisions, it calls for respect for human rights and
fundamental freedoms, and in particular for enforcement of the provisions
of a series of regional and international human rights instruments.
De Wet, The Direct Administration of Territories by the United Nations
301
2. The Direct Administration of Territories by the United
Nations
The first instance of a fully-fledged United Nations administration in
the post Cold War Era concerned UNTAES.44 The region was the last
remaining part of the Serb controlled Republika Srpska Krajina (RSK),
which during the war in Croatia used to control one third of Croatia’s
territory. After the war, the RSK ceased to exist and UNTAES was created in order to provide for a peaceful reintegration of the territory into
Croatia. The mandate of UNTAES effectively granted it complete governmental control over the territory.45 However, the mandate was explicitly limited to two years, after which Croatia resumed full control
over the area.46
This model of full-scale United Nations governmental control was
followed in Kosovo and East Timor, respectively. Although
S/RES/1244 (1999) of 10 June 1999 explicitly determined that Kosovo
remained a part of the territory of the Federal Republic of Yugoslavia
(FRY),47 the resolution left the FRY with very little effective authority
over the area. The Yugoslav military, police and paramilitary forces
were required to withdraw from the territory,48 as they were replaced
44
45
46
47
48
For an overview of situations in which the United Nations has administered territories on a different legal basis (i.e. outside of Chapter VII
of the Charter), see Stahn, see note 22, 107 et seq.; R. Wilde, “From Danzig
to East Timor and Beyond: The Role of International Territorial Administration”, AJIL 95 (2001), 583 et seq.
See Basic Agreement, see note 4, 23, paras 3-4. The military component
consisted of the supervision and facilitation of the demilitarisation as
agreed to by the parties; the monitoring of the voluntary and safe return of
refugees and displaced persons to their home of origin; and contribution to
the maintenance of peace and security in the region. The civilian component included the establishment and training of a temporary police force;
the undertaking of tasks relating to civil administration and public services;
the facilitating of the return of refugees and the organising and conducting
of elections. See also S/RES/1037 (1996) of 15 January 1996, paras 10-11.
Basic Agreement, see note 4, para. 1; see also Zimmermann/ Stahn, see note
4, 433.
The preamble of S/RES/1244 of 10 June 1999, explicitly affirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. See
also S/RES/1160 of 31 March 1998, para. 13, and S/RES/1199 of 23 September 1998, para. 7.
S/RES/1244 (1999) of 10 June 1999, Annex 2, para. 2.
302
Max Planck UNYB 8 (2004)
by an international security presence under NATO command.49 In addition, the civil administration has been transferred to an international
civil presence (UNMIK), that functions under the control of a Special
Representative of the Secretary-General.50 Both the civil and military
mandates were authorized for an unlimited period of time.51
Since this included the transfer of the legislative and executive authority,
as well as the administration of the judiciary, it effectively placed the
complete system of governance in Kosovo under the auspices of the
United Nations.52 For example, the Special Representative can change,
repeal or suspend existing laws which are incompatible with the mandate, aims or purposes of UNMIK.53 He is also entitled to issue new
legislative acts in the form of regulations, which remain in force until
repealed by UNMIK or superseded by rules subsequently issued by the
future political institutions of Kosovo.54 In addition, he can appoint any
persons to perform functions in the civil administration of Kosovo, including the judiciary, and may remove them from office.55
At this point it should be mentioned that Resolution 1244 anticipated the diminishing of this extensive role of the Special Representative and UNMIK over time, as it foresaw the progressive transfer of
administrative responsibilities to local (democratically elected) institutions for self-government.56 In practice, the most significant development in this regard concerned the promulgation of the Constitutional
Framework for Provisional Self-Government in Kosovo on 15 May
2001 (hereinafter the Constitutional Framework).57 It provided for the
transfer of legislative powers to the Kosovo Assembly (Parliament) in
areas such as economic and financial policy, fiscal and budgetary issues,
education, culture, health, environmental protection, transport and agriculture.58 At the same time, the Special Representative retains author49
50
51
52
53
54
55
56
57
58
S/RES/1244, see above, para. 7 and Annex 2, para. 4.
S/RES/1244, see note 48, para. 6.
S/RES/1244, see note 48, para. 19.
S/RES/1244, see note 48, paras 10-11. See also Zimmermann/ Stahn, see
note 4, 442-443; Stahn, see note 22, 134 et seq.
Doc. S/1999/779, 39.
UNMIK/REG/1/1999 of 25 July 1999, Sec. 4.
Ibid., at s 1(2); Stahn, see note 22, 112.
S/RES/1244, see note 48, paras 11(d) and 11 (f). See also De Wet, see note
18, 331-332.
UNMIK/REG/2001/9 of 15 May 2001.
Constitutional Framework, see note 57, Ch. 5.1.
De Wet, The Direct Administration of Territories by the United Nations
303
ity over key areas such as the maintenance of law and order, the supervision of local municipal administration and the supreme authority in
judicial affairs.59 In addition, he retains the power to overrule laws
adopted by the Kosovo Assembly.60 However, despite this comprehensive power for direct intervention in the administration of Kosovo, it is
fair to conclude that with the progressive transfer of governmental
power to the local institutions, the United Nations administration of
Kosovo would increasingly resemble a direct (co-) administration,
rather than a fully-fledged direct administration.
A similar situation prevailed in East Timor where UNTAET was established,61 in the aftermath of the territory’s referendum on independence. UNTAET, which was headed by a Special Representative of the
Secretary-General,62 included a military and civil component and was
endowed with overall responsibility for the administration of East
Timor. This included the power to exercise all legislative and executive
authority, as well as the administration of justice.63 Subsequently, the
Special Representative adopted a variety of far-reaching laws regulating,
inter alia, the establishment of a national consultative council,64 a judicial service commission,65 a central fiscal authority66 and a national defence force.67
When East Timor gained independence on 20 May 2002, UNTAET was
replaced by the so-called United Nations Mission of Support in East
59
60
61
62
63
64
65
66
67
Constitutional Framework, see note 57, Chs 6 and 8.1.
Constitutional Framework, see note 57, Ch. 9.1.44; De Wet, see note 18,
332.
See note 6.
Ibid., para. 6.
Ibid., paras 1 and 6, which explicitly stated that the Special Representative
will have the power to enact new laws and regulations and to amend, suspend or repeal existing ones. East Timor formally remained on the list of
non-self-governing territories, but with UNTAET as the administering
power. See <www.un.org/Depts/dpi/decolonization>; Stahn, see note 39,
115; see also M. Ruffert, “The Administration of Kosovo and East-Timor
by the International Community”, ICLQ 50 (2001), 613 et seq. (623).
UNTAET/REG/1999/2 of 2 December 1999, ss 1 et seq. This and other
regulations adopted by the Special Representative are available at
<www.un.org/peace/etimor/untaetR/UntaetR.htm>.
UNAET/REG/1999/3 of 3 December 1999, ss 1 et seq.
UNTAET/REG/2000/1 of 14 January 2000, ss 1 et seq.
UNTAET/REG/2001/1 of 31 January 2001, ss 2 et seq.
304
Max Planck UNYB 8 (2004)
Timor (UNMISET).68 In essence, this new mandate transformed the
United Nations presence from a full-scale governmental authority into
a (co-) administration. Although UNMISET functions alongside a
Timorese government, it still wields considerable power over those areas of the civil administration that are critical to the viability and political stability of East Timor.69 This includes direct decision-making
power with regard to the financial and central services; the internal systems in the Council of Ministers, the Chief Minister’s office and various
ministries; essential services such as water and sanitation and the judicial system.70 UNMISET also remains responsible for interim law enforcement and public security; assistance in developing the East Timor
Police Service (ETPS); and contributing to the maintenance of the new
country’s external and internal security.71
3. The Direct Administration of Territories by United
Nations Member States
Following the invasion of Iraq in March 2003 and the ousting of the
Ba’ath regime, the Security Council-authorized the United States and
the United Kingdom (the CPA) to promote the welfare of the Iraqi
people through the “effective administration of the territory.”72 In addition, it authorized the Special Representative of the Secretary-General
to work intensively with the CPA in a variety of areas related to civil
administration. These included activities for the restoration and establishment of national and local institutions for representative governance; the reconstruction of key infrastructure; the rebuilding of the civilian police and legal and judicial reform.73
68
69
70
71
72
73
S/RES/1410 (2002) of 17 May 2002, para. 1.
S/RES/1410, see above, para. 2 (a).
Doc. S/2002/432, para. 70.
Doc. S/2002/432, paras 79 et seq, and para. 2 (b) and 2 (c)
See S/RES/1483 (2003) of 22 May 2003, para. 4. For a more reticent opinion see T. Marauhn, “Konfliktfolgenbewältigung statt Legalisierung”, Vereinte Nationen 51 (2003), 113 et seq. (117), who regards the language of
S/RES/1483 as too inexplicit to authorize the extensive rebuilding and democratisation of Iraq by the CPA. See also T. Bruha, “Iraq-Krieg und Vereinte Nationen”, AVR 41 (2003), 295 et seq. (311).
S/RES/1483, see above, para. 8.
De Wet, The Direct Administration of Territories by the United Nations
305
Despite the role foreseen for the Special Representative in relation to
the civil administration of Iraq, the role of the United Nations did not
amount to a full-scale direct administration (or even a direct (co-) administration) comparable to that in Kosovo or East Timor. Instead, the
direct full-scale civil administration was carried out by (two) Member
States, on behalf of the United Nations.74 The Security Council thus effectively delegated the power of civil administration to two Member
States,75 whilst merely reserving a coordinating role for the United Nations through the Special Representative. In practice the direct administration was carried out by the CPA Administrator who issued directly
applicable Regulations and Orders affecting all aspects of civil administration.76 In delegating the civil administration of Iraq in this manner,
the Security Council attributed a dual role to the CPA, namely that of
an administrator and occupier. This follows from the fact that the preamble of S/RES/1483 explicitly refers to the United Kingdom and the
United States as occupying powers. The implications of this dual role
for the administrative powers of the CPA are further explored below.
A progressive transfer of governmental power to local institutions
was foreseen in Resolution 1483.77 This resulted in the formation of an
interim administration in the form of a Governing Council that represented a variety of religious and ethnic groups. The Governing Council,
which came together for the first time on 13 July 2003, had the power
to appoint and dismiss ministers, adopt a budget, as well as initiate the
process of the drafting of a constitution.78 At the same time all issues of
national security remained with the CPA, which also had a veto power
against all decisions of the Governing Council.79 However, as there
were indications of progressive transfer of administrative functions to
local institutions, it seemed that the CPA administration in Iraq increasingly took on the character of a direct (co-) administration.80
74
75
76
77
78
79
80
See also F.L. Kirgis, “Security Council Resolution 1483 on the Rebuilding
of Iraq”, ASIL Insights (2003), available at <www.asil.org/insights.htm>.
As was also suggested by Pakistan in Doc. S/PV.4761 of 22 May 2003, 11.
A full list of Regulations and Orders are available at <www.cpa-iraq.org>.
S/RES/1483, see note 72, paras 1 et seq. See also S/RES/1511 (2003) of 16
October 2003, paras 1 et seq.
See De Wet, see note 18, 335-336.
De Wet, ibid.
See, for example, the transfer of the Iraqi Civil Defence Corps to the Iraqi
Ministry of Defence by CPA/ORD/22 April 2004/73.
306
Max Planck UNYB 8 (2004)
This process continued until 30 June 2004, when the CPA transferred full sovereignty to the Iraqi Interim Government in accordance
with S/RES/1546 of 8 June 2004.81 The transfer of sovereignty simultaneously resulted in the end of the occupation and the termination of the
CPA.82 Although this Chapter VII resolution further determined that
the United Nations Assistance Mission for Iraq (UNAMI) together
with the United Nations Special Representative were to play a “leading
role” in the political reconstruction of Iraq, this role is of an indirect
nature. Instead of adopting any directly applicable decisions itself, these
bodies “assist” and “advise” the Iraqi Interim Government on issues
ranging from the holding of elections to reconstruction and development and the protection of human rights. It thus seems that the role of
UNAMI would resemble the model of supervision and monitoring
which was characteristic of the United Nations Transition Assistance
Group (UNTAG), rather than that of a direct (co-) administration.83
III. Legal Basis for Direct (Co-) Administrations
1. The Nature of the Implied and Customary Powers of the
United Nations
At the outset, it is important to point out that the trusteeship system
provided for in Chapter XII of the Charter could not have served as a
legal basis for the Security Council action in any of the above mentioned territories, even though the type of administration provided for
by UNMIK, UNTAET and UNMISET in particular may closely resemble the trusteeship system, as will be illustrated below.84 Chapter
XII limits the applicability of the trusteeship system to three different
categories of territories, namely those formerly held as mandates under
the mandates system of the League of Nations, territories detached
from enemy states as a result of World War II, and territories voluntarily placed under the trusteeship system by states responsible for their
81
82
83
84
S/RES/1546 (2004) of 8 June 2004, para. 1.
S/RES/1546, see above, para. 4. In paras 9 and 10 the security mandate of
the multi-national force established under S/RES/1511 was nonetheless extended until 31 December 2005. See also France in Doc. S/PV.4987, 7.
S/RES/1546, see note 81, para. 7.
See also Zimmermann/ Stahn, see note 4, 436-437.
De Wet, The Direct Administration of Territories by the United Nations
307
administration.85 As none of these categories apply to UNMIK, any attempt of the Security Council to place it within the mandate system
would most likely directly contravene an express Charter provision. 86
Similarly, the Security Council could also not bestow the status of a
trust territory in terms of Chapter XII on East-Timor. Even though
East-Timor was listed as a non-self governing territory under Portuguese control in 1960, no agreement was ever concluded by means of
which it was to be placed within the trusteeship system.87
At the same time, however, this does not have to mean that the
Charter does not provide any other legal basis for placing territories
under United Nations (co-) administration, or (as in the case of Iraq)
under the temporary administration of (a) Member State(s). The inclusion of Chapter XII in the Charter does not imply that this constitutes
a conclusive set of rules precluding the exercise of administrative authority in any other form.88 The Charter articles relating to the trusteeship system were drafted in a very particular context, namely that of decolonization. Therefore one should be careful to draw conclusions from
these articles for any other form of civil administration outside the colonial context. It was not the purpose of this section of the Charter to
regulate United Nations civil administration in an exhaustive fashion,
but merely to regulate the process of de-colonization.89
Since no other Charter article explicitly refers to the civil administration of territories by the United Nations or its Member States, the
85
86
87
88
89
See Article 77 (1) of the Charter.
In addition, Article 78 explicitly determines that the trusteeship system
shall not apply to territories which have become members of the United
Nations, as this would not be consistent with the principle of sovereign
equality. As the FRY has been a member of the United Nations (at least)
since 1 November 2000, its territory could not be subjected to the trusteeship system. See also Zimmermann/ Stahn, see note 4, 436; Stahn, see note
22, 119.
The agreement between Indonesia and Portugal of 5 May 1999 (Doc.
S/1999/513), which provided for the voluntary transfer of authority in East
Timor to the United Nations during the transitional period towards independence, did provide a legal basis for subsequent Security Council action
in the territory. It did not, however, amount to a trusteeship agreement in
terms of Article 77 (1)(c) of the Charter. See also Ruffert, see note 63, 621;
R.E. Gordon, “Some Legal Problems with Trusteeship”, Cornell Int’l L. J.
28 (1995), 301 et seq. (311-312).
Stahn, see note 22, 130.
Hufnagel, see note 1, 304.
308
Max Planck UNYB 8 (2004)
most likely alternative basis for authorizing such administration is to be
found in the so-called implied or customary powers of the (organs of
the) United Nations. The implied powers of the United Nations were
already recognized in the Reparations for Injuries Advisory Opinion of
194990 which recognizes that international organizations would not be
able to fulfil their functions efficiently in a rapidly changing world, if
their powers were limited to those explicitly attributed to them at the
time of their creation.91 In accordance with this doctrine, which is also
referred to as the doctrine of inherent or incidental powers,92 the organization must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties.93
Apart from explicit and implied powers, an organization also possesses customary powers. During the life of the organization, Member
States may consent to new powers by accepting these powers in practice. A well-known example is the power of the Security Council to
take decisions on non-procedural matters notwithstanding abstentions
by one or more of its permanent members.94 Although this interpretation does not strictly correspond to the wording of Article 27 (3) of the
Charter95, the ICJ declared that it has consistently been followed by the
Security Council and has been accepted by Member States in practice.96
90
91
92
93
94
95
96
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174 et seq.
The essence of implied powers as applied today in international organizations can be found in McCulloch v. Maryland 17 US (4 Wheat) 316 (1819).
Both for federal states and for international organisations the principle applies that it was impossible for the framers of the constitutions to specify
prospectively all the means by which a certain power had to be exercised.
See also N. Blokker, “Beyond ‘Dili’: On the Powers and Practice of International Organizations”, in: Kreijen, see note 11, 304.
See, inter alia, Prosecutor v. Dusco Tadić, Decision on the Defence Motion
for Interlocutory Appeal and Jurisdiction, Case No IT-94-1-T, 2 October
1995, Appeals Chamber, paras 18 to 21, available at <www.icty.org>.
Reparations for Injuries, see note 90, 182.
Blokker, see note 91, 307.
Article 27 (3) of the Charter reads as follows: “Decisions of the Security
Council on all other matters shall be made by an affirmative vote of nine
members including the concurring votes of the permanent members ...”.
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
De Wet, The Direct Administration of Territories by the United Nations
309
The essential difference between implied and customary powers is that
the latter is acknowledged as a new power that post-dates the organization’s constitution. Implied powers, on the other hand, concern the
translation of an already existing, explicit constitutional power into present day circumstances.97 A term is being read into the organization’s
statute not in order to add to what was agreed to in the constitutive
document, but in order to give effect to what was explicitly agreed to in
the constitutive treaty under changed circumstances. Customary powers, which are more directly linked to practice, do not need such an inter-temporal translation, nor do they have to be linked to an explicit
constitutional (treaty) provision.98
In practice the difference between implied and customary powers
can sometimes be difficult to detect, as both categories rely on the practice of the organization in question as proof of their existence. For example, in the Nuclear Weapons (WHO) Advisory Opinion, the ICJ had
to determine whether the WHO was competent to address the issue of
the legality of the use of nuclear weapons. Having concluded that this
competence was not explicitly provided for in the WHO’s constitution,
the Court further concluded that the power was not implied either. It
determined that such competence could not be deemed a necessary implication of the constitution of the WHO in the light of the purposes
assigned to it by its Member States.99 In reaching this conclusion, the
ICJ considered the WHO practice as an element of treaty interpretation
in accordance with article 31 (3)(b) of the 1969 Vienna Convention on
the Law of Treaties,100 for the purpose of examining whether there were
explicit or implied powers in this field.101 However, the ICJ could
97
98
99
100
101
276 (1970), Advisory Opinion, ICJ Reports 1971, 16 et seq. Hereinafter referred to as Namibia opinion. See also Blokker, see note 91, 318.
Blokker, see note 91, 307.
Blokker, see note 91, 307-308.
WHO Opinion, para. 19; Blokker, see note 91, 309.
UNTS Vol. No. 1155 No. 18232; article 31 (3)(b) determines that there
shall be taken into account, together with the context: “Any subsequent
practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation.”
Blokker, see note 91, 309, criticized the fact that the ICJ’s approach, as the
concept of subsequent practice as a canon of interpretation laid down in the
Vienna Convention, refers to the views of the states party to a particular
treaty, and not to the views of the organisation. In this sense, article 31
(3)(b) of the Vienna Convention seems to be incorrect as a foundation on
which practice of the organisation may rest. This criticism is not convinc-
310
Max Planck UNYB 8 (2004)
equally have argued that the WHO does not possess customary powers
in the field of nuclear activity, given the absence of long-standing WHO
practice in this field.
The need for a general acceptance of the practice of the organization
by its broader membership – whether regarded as a manifestation of a
customary power, or implied power – is important in an organization
such as the United Nations, which lacks a centralized system of judicial
review and where each organ is primarily responsible for interpreting
its own functions as outlined in the Charter.102 At first glance the requirement of “general acceptance” seems a difficult barrier to overcome
for a non-representative organ such as the Security Council.103 However, in practice the threshold determining that consensus has been
reached is not so high. For example, when accepting the Security Council’s interpretation of Article 27 (3) of the Charter, the ICJ inter alia referred to the fact that South Africa had never before objected to the
voting procedure exercised by the Council. It would therefore be estopped from questioning its validity at the time it raised this issue.104
102
103
104
ing. Since the organisation is based on a treaty, it seems logical that the subsequent view of the membership at large regarding the practice of the organisation should be decisive in determining whether a particular power
was implied or not. The only other option would be to consider as decisive
the views of the particular organ that is claiming the implied power, which
would lead to a circular argument. See also M.J. Herdegen, Die Befugnisse
des UN-Sicherheitsrates: aufgeklärter Absolutismus im Völkerrecht? 1998,
112; J.A. Frowein, “The Internal and External Effects of Resolutions by International Organizations”, ZaöRV 49 (1989), 778 et seq. (790).
J. Herbst, Rechtsbindung des UN-Sicherheitsrates, 1999, 314; Pollux, “The
Interpretation of the Charter”, BYIL 23 (1946), 54 et seq. (57). See also
M.C. Wood, “The interpretation of Security Council Resolutions”, Max
Planck UNYB 2 (1998), 73 et seq. (82).
Compare Herdegen, see note 101, 113. He stated that the more the interpretation of the Security Council deviates from the wording of the Charter
or a generally accepted interpretation by Member States, the more important the acceptance of the Security Council’s practice by the other principal
organs of the United Nations and Members States will become. See also G.
Nolte, “The Limits of the Security Council’s Powers and its Functions in
the International Legal System: Some Reflections”, in: M. Byers (ed.), The
Role of Law in International Politics, 2000, 325. Compare also A. Stein,
Der Sicherheitsrat der Vereinten Nationen und die Rule of Law, 1999, 70 et
seq.
Namibia Opinion, see note 96, 22-23; see also Herbst, see note 102, 314.
De Wet, The Direct Administration of Territories by the United Nations
311
In essence, the ICJ effectively concluded that the consent of Member States to specific Security Council resolutions is presumed on the
basis of their general consent to give effect to the decisions of the Security Council, as formulated in Article 25 of the Charter. As a result, the
onus would rest on Member States to voice their objection to a particular practice at an early stage in order not to be prevented from doing so
by the principle of estoppel or acquiescence.105 This approach would be
a logical consequence of the presumption of legality that is attached to
Security Council and General Assembly resolutions106, for the purpose
of ensuring the efficient functioning of the organization in the interest
of international peace and security.
An instance in which an objection to a particular practice was indeed raised, concerned the development of peace-keeping measures,
which later became known as Chapter VI½ measures, during the early
years of the organization. Several Member States of the United Nations,
lead by France and the Soviet Union, persistently questioned the competence of the General Assembly to authorize peace-keeping missions
in instances where the Security Council was prevented from doing so
by the veto.107 At that point in time it was therefore difficult to argue
that such a customary or implied power indeed existed. Even after the
ICJ determined that the implied powers of the General Assembly to au105
106
107
Herbst, see note 102, 313. But see B. Lorinser, Bindende Resolutionen des
Sicherheitsrats, 1996, 44, who claimed that there was disagreement as to the
extent to which the Security Council interpretation had to be accepted by
the Members, since it was not clear what “generally acceptable” meant. See
also Stein, see note 103, 108-110 for a more cautious approach.
See Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, 151 et seq. (168); Frowein, see note 101, 781. See also Lorinser,
see note 105, 142; B. Martenczuk, Rechtsbindung und Rechtskontrolle des
Weltsicherheitsrats. Die Überprüfung nichtmilitärischer Zwangsmassnahmen durch den internationalen Gerichtshof, 1996, 539.
See A/RES/377 (V) of 3 November 1950. Its essential feature is an assertion
of a right on the part of the General Assembly to act to maintain international peace and security when the Security Council, because of the veto, is
unable to do so. The General Assembly can then recommend to the Members to take collective action. It may meet in an emergency special session
within twenty-four hours of a request by the Security Council, on the vote
of any nine members thereof, or of a request from a majority of the Members of the United Nations. See A. Chayes et al. (eds), International Legal
Process, 1968, 36; F. Seyersted, United Nations Forces in the Law of Peace
and War, 1966, 42; B. Sloan, United Nations General Assembly Resolutions
in Our Changing World , 1991, 25.
312
Max Planck UNYB 8 (2004)
thorize peace-keeping missions followed from its explicit competence
in Article 14 of the Charter to make recommendations in the area of international peace and security,108 the matter remained controversial. In
fact, it is likely that this controversy would remain to this day, given the
fact that the General Assembly has never again attempted to authorize
Chapter VI½ peace-keeping missions. The position is different, however, with respect to such measures authorized by the Security Council.
Chapter VI½ peace-keeping operations have, over the years, become a
well-settled Security Council practice and by now it would be clear that
even if such a power were not implied by the Charter, it had developed
as a matter of custom through the well-accepted practice of the organisation.109
2. Implied and Customary Powers as a Basis for the (Co-)
Administration of Territories?
If one now turns to the civil (co-) administrations of territories, it seems
fair to conclude that the international community has accepted civil
(co-) administrations as a legitimate measure for conflict resolution.110
This is reflected by the fact that the Security Council resolutions authorizing these administrations were – with the exception of the CPA in
Iraq – all endorsed by General Assembly resolutions. The General Assembly resolutions either expressed such support expressly, or more indirectly by recognizing the expenses of these administrations as “expenses of the organisation”.111 This applies to instances where the (co-)
administration was authorized in the absence of a Chapter VII authorization (Namibia and Cambodia), as well as those which were adopted
in accordance with Chapter VII of the Charter (Somalia, Eastern Slavonia, Bosnia-Herzegovina, Kosovo and East-Timor).
108
109
110
111
Certain Expenses Opinion, see note 106, 163 et seq. The ICJ indicated that
this implied power found its limitation in the explicit Charter determinations which reserved coercive (non-consensual) action to the Security
Council. The General Assembly could only adopt peace-keeping measures
to the extent that the countries affected consented thereto, the measures
were neutral (not directed against a state) and force could only be used in
self-defence.
Hufnagel, see note 1, 292.
Hufnagel, see note 1, 212.
See note 126 below.
De Wet, The Direct Administration of Territories by the United Nations
313
Although there is strong support for the fact that the context in
which S/RES/435 (1978) of 29 September 1978 on Namibia was
adopted, constituted a threat to the peace,112 UNTAG was not established in terms of Chapter VII. This is reflected by the absence of any
reference to Chapter VII in Resolution 435, as well as its preambular
reference to the correspondence in which South Africa113 and the
South-West African Peoples’ Organization (SWAPO)114 in principle
consented to the plan which the Contact Group presented for Namibian independence. At that point in time, however, there was no real intention to cooperate on the part of the South African government,
which persistently refused to implement Resolution 435. 115 Although
the Security Council threatened South Africa with Chapter VII action
in reaction to its obstructive behaviour,116 no Chapter VII measures
were adopted and UNTAG was only established when the South African authorities consented to cooperate with the United Nations in
1988.117 The eventual establishment of UNTAG was supported by the
broad membership of the United Nations, as is reflected by the Security
Council and General Assembly resolutions.118
Similarly, the history of S/RES/745 (1992) of 28 February 1992 reflects that the establishment of the Transitional Authority in Cambodia
(UNTAC) was aimed at restoring international peace and security in
the Indo-Chinese region.119 However, the resolution did not contain
any reference to Chapter VII. Instead, it emphasized the consent of the
conflicting parties to the creation of UNTAC. For example, it refers to
112
113
114
115
116
117
118
119
After the termination of South Africa’s mandate over Namibia, S/RES/385
(1976) of 30 January 1976 described its continued presence in the territory
as an illegal occupation, whilst A/RES/43/26 of 17 November 1988 referred to it as a threat to international peace and security. Hufnagel, see
note 1, 52.
Doc. S/12836 (1978); Doc. S/12853 (1978); Doc. S/12854 (1978).
Doc. S/ 12853.
Hufnagel, see note 1, 51.
S/RES/439 (1978) of 13 November 1978, para. 6.
See also Hufnagel, see note 1, 52.
See e.g. S/RES/623 (1988) of 23 November 1988, paras 1-2. A/RES/43/232
of 1 March 1989.
This is underscored by the position taken by the different country representatives in the debate that followed the unanimous adoption of the
above-mentioned resolution. See France in Doc. S/PV.3057 (1992), 12; Russia, ibid., 23; Austria, ibid., 27; Hungary, ibid., 30; India, ibid., 33. See also
Hufnagel, see note 1, 102; Ratner, see note 34, 9.
314
Max Planck UNYB 8 (2004)
the Paris Agreement120 in which the main parties involved in the conflict explicitly consented to the UNTAC mission in paragraph 2.121
Also in this instance the United Nations mandate met with broad support within the organization as a whole.122
In essence therefore, the United Nations co-administrations in Namibia and Cambodia followed the same model as in the case of classic
peace-keeping, namely that of consensus-based mandates. Since this action has been widely accepted by the membership of the United Nations, it is justified to describe the power of the Security Council to establish a (co-) administration with the consent of the affected territory
as a customary (Chapter VI½) power. The traditional notion of peacekeeping was expanded through practice to include also the exercise of
governmental powers as a means for conflict resolution. Some authors
submit that the consensual (co-) administration of a territory can be
based on the implied powers of the Security Council in Article 39 of the
Charter, in conjunction with the power to create a subsidiary organ for
that purpose (Article 29), or to entrust certain functions to the Secretary-General (Article 98).123 However, given the consensual nature of
the measures, it would not seem conceptually accurate to regard an article placed in Chapter VII (i.e. Article 39) as the basis for the Security
Council’s powers. It seems more sound to regard consensual (co-) administration as a customary power (i.e. Chapter VI½ power) that developed in practice.
The remaining United Nations-authorized mandates for (co-) administration were all of a coercive nature. In the case of Somalia,
S/RES/814 (1993) of 26 March 1993 created UNOSOM II under Chap-
120
121
122
123
See note 27.
The importance of this consent was also reflected in the Security Council
debates. For example, the Ecuadorian representative stressed that the
United Nations presence in Cambodia derives essentially from the express
consent of the Cambodian people and all its political components. If this
condition had not been met, there could not have been an UNTAC. See
Doc. S/PV.3057 (1992), 39. See also France, ibid., 13; Venezuela, ibid., 29.
See also Ratner, see note 34, 9. Hufnagel, see note 1, 98.
See e.g. S/RES/745 (1992) of 28 February 1992; A/RES/46/18 of 20 November 1991.
Stahn, see note 39, 140. Compare also M. Bothe/ T. Marauhn, “UN Administration of Kosovo and East Timor: Concept, Legality and Limitations
of Security Council Mandated Trusteeship Administration”, in: C. Tomuschat (ed.), Kosovo and the International Community, 2001, 217 et seq.
De Wet, The Direct Administration of Territories by the United Nations
315
ter VII, as a measure for maintaining international peace and security.124
Similarly, the Chapter VII mandate authorizing the mandate of the
High Representative for Bosnia-Herzegovina was authorized in
S/RES/1031 whilst the Chapter VII civil administrations for Eastern
Slavonia, Kosovo and East Timor were authorized in S/RES/1037, 1244
and 1272, respectively. The fact that the Security Council was able to
muster support for all of these mandates within the brief time-span of
six years, that the (former) mandates for Somalia, Bosnia-Herzegovina
and East-Timor have been extended on several occasions,125 as well as
the fact that these missions have all been endorsed by General Assembly resolutions are clear indications that the international community
supports this type of civil administration as a legitimate measure for the
maintenance or restoration of international peace and security.126
As far as the civil administration of Iraq is concerned, the matter is
more ambiguous. On the one hand, the persistent calls for stronger
United Nations supervision and administration in the wake of the
adoption of S/RES/1483 suggests that this Chapter VII delegation of a
civil administration was not accepted by the international community at
124
125
126
That the situation in Somalia constituted a threat to the international peace
was already constituted in S/RES/733 (1992) of 23 January 1992 and
S/RES/ 794 (1992) of 3 December 1992.
For Somalia see: S/RES/878 (1993) of 29 October 1993, para. 1; S/RES/886
(1993) of 18 November 1993, para. 3; S/RES/923 (1994) of 31 May 1994,
para. 2; S/RES/946 (1994) 30 September 1994, para. 1; S/RES/953 (1994) of
31 October 1994, para. 1. For Bosnia-Herzegovina see: S/RES/1088 (1996)
of 12 December 1996, para. 18; S/RES/1174 (1998) of 15 June 1998, para.
10; S/RES/1247 (1999) of 18 June 1999, para. 10; S/RES/1305 (2000) of 21
June 2000, para. 10; S/RES/ 1357 (2001) of 21 June 2001, para. 10;
S/RES/1423 (2002) of 12 July 2002, para. 10; S/RES/ 1491 (2003) of 11 July
2003, para. 10. For East-Timor see: S/RES/1338 (2001) of 21 January 2001,
para. 2; S/RES/1392 (2002) of 31 January 2002, para. 2; S/RES/1410 (2002)
of 17 May 2002, para. 1; S/RES/1480 (2003) of 19 May 2003, para. 1. Given
the open-ended nature of the mandate for civil administration in Kosovo in
S/RES/1244 (1999) of 10 June 1999, para. 19. No similar resolutions were
adopted in that instance.
For Eastern Slavonia, Baranja and Western Sirmium: A/RES/51/153 of 13
June 1997; Kosovo: A/RES/53/241 of 28 July 1999 and A/RES/54/245 of
23 December 1999; East Timor: A/RES/54/246 of 23 December 1999; Somalia: A/RES/47/41 B of 15 April 1993; Bosnia-Herzegovina:
A/RES/51/203 of 17 December 1996;. See also Bothe/ Marauhn, see note
123, 230. See Stahn, see note 22, 130; Zimmermann/ Stahn, see note 4, 438;
see also Ruffert, see note 63, 620-621.
316
Max Planck UNYB 8 (2004)
large.127 This is also reflected by the fact that the General Assembly
never explicitly expressed support for the CPA and that this form of
civil administration was short-lived, since it ceased with the transfer of
sovereignty to the Iraqi Interim Government on 30 June 2004.128 At the
same time, however, the unanimous adoption of S/RES/1511 (2003) of
16 October 2003 – which, inter alia, reaffirmed the position of the current administration of Iraq by the CPA129 – and the lack of any outright
rejection of the CPA by Member States can be an indication of the acquiescence by the international community in this form of civil administration. Certainly, as time passes, it will become increasingly difficult
for Member States to raise arguments about the illegality of the CPA as
authorized by resolutions 1483 and 1511, as they could be estopped
from doing so for failure of having raised any objections earlier.
In those instances in which the international community has accepted Chapter VII-based civil (co-) administrations as a mechanism for
maintaining and restoring international peace and security, the competence of the Security Council to authorize these measures would also
stem from its customary powers, like in the case of Chapter VI½ (co-)
administrations. There is some authority for a conclusion that such administrations could further be based on the implied powers of the Security Council, flowing from its explicit power to adopt binding (coercive) non-military measures in Article 41 of the Charter.130 The existence of such an implied power of a binding nature was affirmed by the
Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in the Tadić case. It regarded the power of the Security Council to create an ad hoc criminal tribunal under Chapter VII of
the Charter as an implied power flowing from its explicit powers to
adopt coercive non-military measures for the restoration of international peace and security in Article 41 of the Charter.131 If one were
willing to accept the creation of an ad hoc criminal tribunal as an Article
127
128
129
130
131
See e.g. Germany and France in Doc. S/PV./488, 4. See also Bruha, see note
72, 311.
S/RES/1546 (2004) of 8 June 2004, 2.
See S/RES/1511 (2003) of 16 October 2003, para. 1
Bothe/ Marauhn, see note 123, 230.
Tadić Decision, see note 92, paras 27 et seq. The same issue also arose with
respect to the ICTR in The Prosecutor v. Kanyabashi, Decision on the Defence Motion on Jurisdiction, Case No. ICTR-96-15-T of 18 June 1997,
Trial Chamber, at paras 17, available at <www.ictr.org>. See also F.L. Kirgis, “The Security Council’s First Fifty Years”, AJIL 89 (1995), 506 et seq.
(522); Nolte, see note 103, 315-326.
De Wet, The Direct Administration of Territories by the United Nations
317
41 related implied power, it would seem consistent to draw the same
conclusion for a (co-) administration created under Chapter VII of the
Charter.132 The acceptance of such a (co-) administration by the international community in practice could thus either be regarded as support for a customary power to authorize binding (co-) administrations,
or as support for the fact that the Security Council has an implied
power to do so under Article 41 of the Charter. Since one is dealing
with binding Security Council measures, one would not be confronted
with the same conceptual difficulties as in the case of consensual measures when resorting to articles placed in Chapter VII as a basis for Security Council powers.
The different legal bases provided by Chapter VI½ and Chapter VII,
respectively, illustrate that one has to distinguish between the acceptance of the individual states (or territories) affected by the (co-) administration and that of the membership in general, when considering
whether the United Nations is acting in accordance with an implied or
customary power. Since the creation of the very first peace-keeping
missions it is well-established that the consent of the affected states is
one of the corner-stones of Chapter VI½ peace-keeping.133 At the same
time, this consent did not provide conclusive evidence of an implied or
customary power of the United Nations to authorize the peace-keeping
measures in question. It is only where the measures are also accepted by
the broader membership of the organization that such acceptance
would constitute evidence of an implied or customary power. In the
case of a Chapter VII measure, the potential lack of consent of the states
affected by the measures does not pose a legal barrier to Security Coun-
132
133
It is unlikely that Article 40 of the Charter could serve as a basis of the implied powers in this instance. The provisional measures foreseen by this article are intended as “cooling-off” measures such as cease-fires, without
prejudice to the rights, claims or positions of the parties concerned. Given
the highly complex and frequently protracted nature of direct administrations, as well as the fact that they have extensive consequences for the
rights and claims of the parties concerned, it seems unlikely that they
would fit the mould of the measures foreseen by Article 40. See also Tadić
Decision, see note 92, para. 34. Cf. A. Orakhelashvili, “The Legal Basis of
the United Nations Peace-Keeping Operations”, Va. J. Int’l. L. 43 (2003),
485 et seq. (495 et seq.).
Certain Expenses Opinion, see note 106, 184.
318
Max Planck UNYB 8 (2004)
cil action.134 However, where the Security Council – as in the case of
the direct administration of territories – authorized measures which
were at the time perceived to be a (still) unidentified implied power or
even a new customary power, the acceptance of these measures by the
broader membership of the organization would be necessary to affirm
that the Security Council is not acting ultra vires.
In essence therefore, the consent of the state(s) affected by the
measures in question is a threshold requirement for all those measures
aimed at conflict resolution which are undertaken outside Chapter VII.
At the same time, the broader consent of the organization remains necessary for all such measures – including those undertaken under Chapter VII – in order for them to qualify as implied or customary powers
of the Security Council, whatever the case may be.
IV. Additional Legal Bases for the Direct
Administrations of Territories
1. Automatic Succession of Human Rights Treaties?
At this point it is necessary to mention that some authors have also explored additional legal bases for the direct administration of territories,
including the phenomena of functional succession to human rights treaties. Some argue that human rights obligations, in particular, contain a
general duty for all entities that take over public authority in a territory
bound by human rights provisions, to maintain the level of human
rights protection for the inhabitants previously provided.135 Therefore
United Nations (co-) administrations would be bound as a de facto successor to human rights treaties, to the extent that they effectively exercise control over civil affairs. A similar argument would also apply to a
United Nations-authorized administration such as the one in Iraq,
where the United States and the United Kingdom have de facto (if only
temporarily) succeeded as the territorial sovereign.
134
135
Although consent on the part of the affected state may frequently be present in practice, it is not a legal requirement. See Tomuschat, see note 11,
339.
T.H. Irmscher, “Legal Framework for the Activities of UNMIK”, GYIL 44
(2001), 353 et seq. (371); Human Rights Committee, General Comment
No. 26; Doc. A/53/40, Annex VII, para. 4, available at <www.unhchr.ch>.
De Wet, The Direct Administration of Territories by the United Nations
319
The essence of this argument seems to be that no formal succession
is needed to trigger the automatic succession to human rights treaties.
Instead, the de facto control over the territory, combined with the nature of human rights obligations, would imply automatic succession of
the human rights treaty obligations in question.136 This, in turn, would
oblige the acting administration to adopt all necessary legislation and
other measures in the domestic legal order for ensuring that the human
rights in question are respected, protected and fulfilled.137 This argument would thus imply that the obligations flowing from the human
rights treaties simultaneously provide the acting administration with
the legal competence to engage in acts of governance in as far as this is
required to give effect to the human rights obligations in question.
This argument is not convincing. First, there is the technical question of whether the United Nations could be the successor to any treaty
to which the United Nations and Member States are bound as subjects
of public international law. Second, there is virtually no practice supporting automatic succession of human rights treaties by states – let
alone by international organizations.138 Any automatic human rights
obligations attached to a United Nations-authorized administration
would rather seem to flow from customary international law, to which
the United Nations is bound as a subject of public international law.139
However, since the United Nations-authorized administrations have
adopted domestically applicable measures that extend far beyond what
136
137
138
139
Since individuals and not states are the beneficiaries of these rights, they
would be entitled to maintain them, regardless of whether control over the
territory passes into the hands of another state or entity. See J. Cerone,
“Minding the Gap: Outlining KFOR Accountability in Post-Conflict
Kosovo”, EJIL 12 (2003), 469 et seq. (474); Stahn, see note 22, 139.
Irmscher, see note 135, 371, who refers to Vallaj v. Special Adjudicator,
High Court, Queens Bench Division, 21 December 2000, unreported
(Westlaw: 2000 WL 1881268), para. 29. The English Court held that since
UNMIK/KFOR have lawful authority in and over Kosovo, and have had
all the powers and functions of the state transferred to them, they are in a
position to provide protection to the inhabitants. However, this conclusion
does not depend on whether there was functional succession of human
rights treaties. It would equally follow from the trusteeship like character
of the United Nations administration in Kosovo which, in turn, has its legal basis in Chapter VII of the Charter.
See extensively A. Rasulov, “Revisiting State Succession to Humanitarian
Treaties: Is there a Case of Automaticity?”, EJIL 14 (2003), 141 et seq.
Stahn, see note 22, 139.
Max Planck UNYB 8 (2004)
320
is required by customary human rights law, this body of law does not
suffice in providing a legal basis for the whole spectrum of measures
adopted by these administrations. Customary human rights law would,
at most, provide an additional basis for domestic measures that are
aimed at ensuring respect, protection and fulfilment of customary human rights.140
2. The Law of Occupation?
a. The (In) Applicability of the Law of Occupation to United
Nations-Authorized Forces
Similar objections can be raised against the law of occupation, as laid
down in the Regulations annexed to the Convention (IV) respecting the
Laws and Customs of War on Land of 1907 (the Hague Regulations)
and the substantive provisions of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949, as basis for a comprehensive direct administration of territories by the
United Nations or those acting under its authorization.141 In accordance with these instruments, the law of occupation applies from the
outset of any armed conflict or occupation and, in the case of an occupied territory,142 continues to apply beyond the general close of military
operations.
The period after which the law of occupation ceases to apply, depends upon the nature of the occupation. Where the occupation is carried out under the terms of the instrument which brought hostilities to
a close, such as an a armistice or capitulation, the law of occupation
ceases after one year.143 However, in a situation where the occupation
has taken place without a declaration of war and without hostilities, the
140
141
142
143
For the argument that Article 1 (3) and Article 2 (2) of the Charter indeed
obliges United Nations (authorized) administrations to give effect to the
core content of the human rights standards contained in the International
Bill of Rights, see De Wet, see note 18, 319 et seq.
As is suggested by Cerone, see note 136, 484.
See article 6 of the Fourth Geneva Convention, Convention (IV) Relative
to the Protection of Civilian Persons in Time of War, Geneva, 12 August
1949, available at <www.icrc.org>.
Fourth Geneva Convention, see above, article 6; Cerone, see note 136, 484;
Stahn, see note 22, 140.
De Wet, The Direct Administration of Territories by the United Nations
321
law of occupation continues to apply fully for the duration of the occupation.144
The question now becomes whether the presence of United Nations-authorized forces in a territory could constitute an occupation –
in particular if one keeps in mind that the mere penetration of a patrol
into enemy territory without any intention of staying there, is sufficient
to trigger the law of occupation.145 As far as Chapter VI½ (co-) administrations are concerned, it seems clear that the law of occupation would
be out of place. It would not be in accordance with the consensual nature of the administration, and practice indicates that United Nations
peace-keeping forces are not subject to the law of occupation. Instead,
they derive their authority from the status of forces’ agreements with
the receiving state.146 In relation to Chapter VII authorized forces,
some authors support the view that these forces are subject to the law
of occupation, at least to the extent that it constitutes customary law.
The measures undertaken by these forces are inherently coercive and in
those instances where consent is granted by the affected territory, it frequently is procured under the threat to use force.147 According to this
144
145
146
147
There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. J.J. Paust,
“The US as Occupying Power over Portions of Iraq and Relevant Responsibilities under the Laws of War”, ASIL Insights (2003), available at
<www.asil.org/insights>; Cerone, see note 136, 484.
Cerone, ibid.
See Irmscher, see note 135, 380, 382-383. The situation might be different,
however, where a territory consents to the military presence of (an) individual state(s). In those instances, the law of occupation could still apply.
Article 2 of the Fourth Geneva Convention, see note 142, would be broad
enough to cover agreed occupations. There also is state practice supporting
this position. E.g., the French Supreme Commander of the Allied troops at
the end of World War I explicitly ordered that the regulations annexed to
the Convention (IV) respecting the Laws and Customs of War on Land
(the Hague Regulations) of 1907 would regulate the armistice of 11 November 1918, which provided for the occupation of the Rhineland. This
decision was supported by the German Reichsgericht in its early jurisprudence. See Decision of 23 February 1920, Entscheidungen des Reichsgerichtes in Strafsachen (RGSt), Vol. 54, 139. See also the Ruocco v. Fiore,
Corte Constituzionale, Annual Digest 14 (1947), 248; Genel and Bussi v.
Steiner, ILR 19 (1952), 613-614.
This was notably the case in Kosovo, where the consent of the FRY was
not of a voluntary nature. In East-Timor the situation was more complicated. While the consent of the de facto Indonesian government was pro-
322
Max Planck UNYB 8 (2004)
line of argument, the question would thus not be whether the law of
occupation was triggered, but what type of occupation would be at
stake.
For example, if KFOR were seen as a mere continuation of the
NATO force that launched the bombing campaign in March 1999, then
it would be engaged in an occupation by hostile forces during or subsequent to hostilities. The customary law of occupation would then continue to apply for one year following the close of military operations.148
If KFOR were viewed as a new, independent entity deployed in Kosovo following the passage of S/RES/1244 (1999) of 10 June 1999, then it
might constitute an occupation meeting with no armed resistance, as a
result of which the customary law of occupation would apply for the
duration of the KFOR presence on the territory.149 Similar questions
would arise in the case of East-Timor, where the military component of
UNTAET was, to some extent, an extension of the Australian led forces
which were authorized to intervene in the territory by S/RES/1264
(1999) of 15 September 1999.150 Also in the case of UNOSOM II, there
was some overlap in the military composition of this force with that of
UNITAF.151 In the case of Iraq, where S/RES/1483 explicitly referred
to the military presence as “occupying powers” in the preamble of the
resolution, it would seem clear that the continued occupation following
the adoption of this resolution was a mere extension of the occupation
resulting from the preceding hostilities.152
148
149
150
151
152
cured under the threat of force, the consent of the de jure administor (Portugal) to UNTAET was of a voluntary nature. See Cerone, see note 136,
484; Irmscher, see note 135, 380 et seq.
Cerone, see note 136, 485.
Cerone, ibid.
S/RES/1264 (1999) of 15 September 1999, para. 3; S/RES/1272 (1999) of 25
October 1999, para. 9 determined, inter alia, that the multi-national force
deployed pursuant to S/RES/1264 (1999) of 15 September 1999 had to be
replaced by the military component of UNTAET as soon as possible.
S/RES/814 (1993) of 26 March 1993, para. 14 provided for a phased transition of UNITAF to UNOSOM II. Note that in this particular instance, the
Australian troops participating in UNITAF and UNOSOM II considered
themselves bound by the law of occupation, whilst the United States took
the opposite view. See Irmscher, see note 135, 383.
The preamble calls upon the occupying powers to comply fully with the
obligations on occupying forces under “applicable international law”,
which includes the Fourth Geneva Convention, see note 142, and the
Hague Regulations, see note 146. See Kirgis, see note 74. Note that
De Wet, The Direct Administration of Territories by the United Nations
323
However, such equation of a United Nations-authorized presence in
a territory with an occupation meets with several practical and conceptual problems. First, one has to consider the fact that the United Nations itself does not regard itself as bound by any of the 1949 Geneva
Conventions.153 It has supported this position with the argument that
some of the obligations contained therein can only be discharged by the
exercise of judicial and administrative powers which the organisation
does not possess. This includes, in particular, the authority to exercise
criminal jurisdiction over members of the forces who act in violation of
international humanitarian law.154 This factor, combined with the settled practice of troop – contributing states to take primary and direct
responsibility for international humanitarian law violations committed
by their contingents,155 have been used to substantiate the position that
the international humanitarian law obligations of contributing states
would relieve the United Nations from any obligations in this regard.156
Elsewhere this author has argued that the United Nations’ own position cannot be understood as meaning that it is not bound by the
norms of the 1949 Geneva Convention at all and that a United Nationsauthorized military presence would remain bound by the core content
of these Conventions in all circumstances, as concretised in particular
by common article 3.157 However, at the same time one has to acknowledge that the United Nations cannot be bound to international humanitarian law in the same manner as states and that the Security Council
may authorise some deviation from these norms if the circumstances so
require. This follows not only from the nature of some of the obliga-
153
154
155
156
157
S/RES/1511 (2003) of 16 October 2003 reaffirmed S/RES/1483 (2003) of 22
May 2003, in the preamble.
Legal Opinion of the Secretariat of the United Nations, “Question of the
Possible Accession of Intergovernmental Organisations to the Geneva
Conventions for the Protection of War Victims”, United Nations Juridical
Yearbook (1972), 153. Hereinafter referred to as Legal Opinion; M.
Zwanenburg, “The Secretary-General’s Bulletin on Observance by United
Nations Forces of International Humanitarian Law: Some Preliminary Observations”, International Peacekeeping 5 (1999), 133 et seq. (134).
Legal Opinion, see above.
See e.g. UNMIK/REG/2000/47 of 18 Augustus 2000, Sec. 2.4. This regulation subjected the KFOR personnel to the exclusive criminal jurisdiction of
their respective sending states. Cerone, see note 136, 486.
R.D. Glick, “Lip Service to the Law of War: Humanitarian Law and
United Nations Armed Forces”, Mich. J. Int’l L. 17 (1995), 53 et seq.
See De Wet, see note 18, 204 et seq.
324
Max Planck UNYB 8 (2004)
tions at stake (e.g. those concerning the exercise of criminal jurisdiction), but also from the special role of the United Nations – and the Security Council in particular – in maintaining and restoring international
peace and security.
For example, it has been suggested that a Security Councilauthorized operation, including a military offensive in terms of Chapter
VII of the Charter, would constitute an act of law enforcement on behalf of the entire international community and would therefore not
possess the character of war. Consequently, the United Nations could
not be regarded as a belligerent for the purposes of international humanitarian law.158 This argument is closely linked to the notion that the
need for impartiality during a United Nations-authorized operation
would prevent it from becoming a party to an armed conflict.159 These
factors may explain why neither the United Nations, nor the states involved in the NATO operations in Bosnia-Herzegovina, regarded
themselves as parties to an armed conflict, despite the NATO air attacks
during 1994 and 1995 and UNPROFOR’s increasingly severe bouts of
fighting with the Bosnian Serbs.160
Moreover, in the context of international armed conflicts the matter
is complicated by the Convention on the Safety of United Nations and
Associated Personnel of 9 December 1994,161 which treats the terms of
this convention and those of the law of international armed conflict as
mutually exclusive regimes. The Safety Convention, which criminalizes
attacks on United Nations and associated personnel, applies to all operations established by the Security Council and conducted under
United Nations authority and control.162 The only exception concerns a
United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter, in which any of the
personnel of a United Nations force are engaged as combatants against
organized armed forces and for which the law of international armed
158
159
160
161
162
C. Greenwood, “International Humanitarian Law and United Nations
Military Operations”, Yearbook of Humanitarian Law 1 (1998), 3 et seq.
(14).
Zwanenburg, see note 153, 134; see also Glick, see note 156, 70.
Greenwood, see note 158, 24; E.T. Bloom, “Protection of Peacekeepers:
The Convention on the Safety of United Nations and Associated Personnel”, AJIL 89 (1995), 625.
Doc. A/49/742 (1994). Hereinafter referred to as the Safety Convention. It
has entered into force on 15 January 1999.
Safety Convention, see above, article 1 (c)(i); Bloom, see note 160, 622-623.
De Wet, The Direct Administration of Territories by the United Nations
325
conflict applies.163 This means that the threshold for the application of
the law of international armed conflict becomes the ceiling for the application of the Safety Convention.164
The Safety Convention has been regarded as an important and necessary step in increasing the protection afforded to peacekeepers.
Therefore it is to be expected that the United Nations and those states
which contribute large numbers of personnel to United Nationsauthorized operations will be extremely reluctant to accept that United
Nations forces have become parties to an international armed conflict
and thereby forfeited the protection granted by the Safety Convention.165 It is most likely that only those Chapter VII operations under
unified command and control which relate to conflicts with a clear international character, such as Korea and the first Gulf War would be excluded from the scope of the Safety Convention. Chapter VII operations under national command and control conducted in a context of an
internal armed conflict, such as those undertaken in Somalia, Rwanda,
Haiti and possibly even the NATO operations in Bosnia-Herzegovina
and Kosovo, would still fall under the protective regime of the Safety
Convention.166 This conclusion is supported by the fact that article 1 of
the Safety Convention covers operations under United Nations “authority and control”,167 which is broad enough to include the latter
type of operations.168
As a result, it would seem conceptually unconvincing to regard the
United Nations-authorized military presence in the territories discussed in this article as an occupying force. The only exception in this
163
164
165
166
167
168
Safety Convention, see note 161, article 2 (2); Greenwood, see note 158, 25.
Greenwood, see note 158, 25; see also id. “Protection of Peacekeepers: The
Legal Regime”, Duke J. Comp.& Int’l L. 7 (1996), 185 et seq. (199 et seq.);
Bloom, see note 160, 625 et seq.
Greenwood, see note 158, 25; see also Bloom, see note 160, 624.
D. Shraga, “The United Nations as an Actor Bound by International Humanitarian Law”, 317 et seq., in: L. Condorelli, Les Nations Unies et le
Droit International Humanitaire, 1986.
As opposed to “command and control”.
See Shraga, see note 166, 76; Greenwood, see note 158, 25. In Somalia, for
example, the United Nations and the United States characterized their involvement in the conflict against rebel groups and dissident factions as internal. Although the Safety Convention was not yet in force at the time, the
example illustrates that the submission that any third-party intervention in
an internal conflict would internationalise the conflict, would not be consistent with United Nations practice.
326
Max Planck UNYB 8 (2004)
regard concerns the CPA in Iraq, which was explicitly described as an
occupying power in the preambles of S/RES/1483 and 1511.169 One
should keep in mind, however, that with the adoption of Resolution
1483 the Security Council for the first time authorized a situation in
which both the civil administration and the military command in Iraq
remained concentrated in the hands of the very same countries that –
according to the vast majority of international authors170 – had illegally
invaded and occupied Iraq only months before. Seen from this perspective, the continued civil and military control of the CPA in Iraq still retained some character of an occupation in the post 1483 Resolution
phase.
b. The Unsuitability of the Law of Occupation as a Legal Basis for
Direct (Co-) Administrations
However, despite this fact, it would be inaccurate to regard the law of
occupation as the legal basis of the subsequent direct administration in
Iraq. Similarly, it would be inaccurate to regard the law of occupation as
the legal basis for any of the other (co-) administrations discussed
above. For even if one were prepared to regard all the above-mentioned
situations as fully-fledged occupations to which the customary law of
occupation applied,171 the direct administrations that resulted from
them were accompanied by Chapter VII Security Council resolutions
169
170
171
See note 152.
For an extensive discussion of the illegality of the invasion see De Wet, see
note 18, 284 et seq.
The norms which have acquired customary status and therefore bind an international organization such as the United Nations, include the substantive norms of the four 1949 Geneva Conventions, the Hague Regulations,
as well as certain parts of the two Additional Protocols to the 1949 Geneva
Conventions. See Doc. S/25704 (1993), para. 35; Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 66 et seq.
(257 et seq.); Greenwood, see note 158, 16-17. See also the conclusions of
the Institut de Droit International, Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which the United Nations
Forces may be Engaged, Annuaire de l’Institut de Droit International 54 II
(1971), 465 et seq.; P. Benvenuti, “Le Respect du Droit International Humanitaire par les Forces des Nations Unies: La Circulaire du Secrétaire Général”, RGDIP 105 (2001), 355 et seq. (360); L. Conforti, “La Compatibilité des Sanctions du Conseil de Sécurité avec le Droit International Humanitaire – Commentaire”, in: V. Gowlland-Debbas (ed.), United Nations
Sanctions and International Law, 2001, 236-237.
De Wet, The Direct Administration of Territories by the United Nations
327
which explicitly authorized the effective administration of the territory
in question. Thus, the presence of military forces and their functional
inter-twining with the civil administrations172 were not only the result
of a mere factual event – a military invasion – but was also based on the
Charter framework.173 In accordance with the overriding character of
this framework, the Security Council can deviate from the law of occupation.174 In the context of direct (co-) administrations of territories,
this, inter alia, implies that the Security Council can invest the de facto
administration in question with extensive governmental powers, as a
measure for the restoration of international peace and security.
Powers granted in this fashion would be more extensive than those
provided for under the law of occupation, which is primarily aimed at
limiting the de facto powers of the occupying power.175 This results
from the fact that the laws of occupation seek to regulate the conflict
between the military interests of the occupying power, the humanitarian needs of the population and the prohibition to take measures which
would pre-empt the final disposition of the territory at the end of the
conflict.176 Although the occupying power is obliged to act for the
benefit of the population, it has to administrate the territory in accordance with the existing law, unless absolutely prevented from doing
so.177 The legislative competencies of the occupying power are therefore
limited. It’s power is generally not entitled to suspend or repeal existing
laws or to introduce permanent changes in the constitutional and institutional framework of the occupied territory. The only exception is
where such change is required for the “legitimate needs” of the occupation such as the security of the armed forces or the functioning of the
administration.178
On the one hand, the concept of “legitimate needs” may open the
door to a broad interpretation of the powers of the occupying power.
However, if one wants to remain true to the letter and spirit of the rule
172
173
174
175
176
177
178
In all of these instances the safety and efficient functioning of the civil administrations were dependent on their protection by the military forces. In
addition, the military forces themselves frequently engaged in civilian tasks,
such as ordinary policing.
Irmscher, see note 135, 379.
Irmscher, see note 135, 383.
Irmscher, see note 135, 377; Marauhn, see note 72, 115.
Stahn, see note 22, 141.
The Hague Regulations, see note 146, article 43; Stahn, see note 22, 141.
Stahn, see note 22, 141.
328
Max Planck UNYB 8 (2004)
that the occupying power has to respect the laws in force unless absolutely prevented, such a broad interpretation would seem out of
place.179 This does not deny that the obligations to restore and maintain
public order and civil life and to meet the basic needs of the population
would imply a duty to provide a capable administration.180 This includes, inter alia, the establishment of new laws and structures needed
for the effective administration of justice.181 It is questionable, however,
whether capable administration would include the privatisation of formerly state-owned companies, as envisaged in a report of the SecretaryGeneral in relation to Kosovo.182 Similarly, it is unlikely that the “legitimate needs” clause would facilitate an overall reform and modernization of all areas of law.183 For example, UNMIK Regulation 2000/68
effectively introduced the substantial provisions of the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods into domestic law. Even though the creation of
the best conditions for a viable market-based economy may be commendable, this in itself would not suffice to explain why UNMIK was
absolutely prevented from applying the existing civil code.184 Similar
questions arise in the case of Iraq and East Timor, respectively. For example, it is unlikely that UNTAET’s extensive regulation of the banking and telecommunication sectors in East Timor,185 or the CPA’s
179
180
181
182
183
184
185
See Irmscher, see note 135, 389. The guarantee of continuity in the laws is
the most salient sign of the continuing sovereignty of the regular government, in that it freezes the status quo ante bellum.
Article 43 of the Hague Regulations, note 146. See also Christian Society
for the Holy Places v. Minister of Defence and Others, ILR 52 (1979) 514515.
Fourth Geneva Convention, note 142, article 203; Irmscher, see note 135,
388. If the court system has collapsed because of closure and lack of personnel, an occupant can set up new courts and swear in new judges. See
Marauhn, see note 72, 115.
Doc. S/2000/1196, paras 82-83. According to article 55 of the Hague Regulations, see note 146, public immovable property shall only be administered
and used in accordance with the rules of “usufructuary” use, but the capital
or substance must be safeguarded. See also Irmscher, see note 135, 389.
Irmscher, see note 135, 391.
Irmscher, see note 135, 393.
See e.g. UNTAET/REG/2000/8 of 25 February 2000; UNTAET/REG/
2001/15 of 21 July 2001; UNTAET/REG/2001/30 of 30 November 2001.
De Wet, The Direct Administration of Territories by the United Nations
329
commitment to the development of a free market economy in Iraq,186
could be justifiable as absolutely necessary under the law of occupation.
In essence therefore, it is unlikely that the customary law of occupation suffices in providing a legal basis for the whole spectrum of measures adopted by these administrations. As in the case of customary human rights law, it would merely provide an additional basis for domestically applicable measures that provide for minimum humanitarian
standards that have to be respected at all times.187 The explicit reference
to the members of the CPA in Iraq as occupying powers in the relevant
Security Council resolutions would thus reaffirm the CPA’s core humanitarian obligations towards the civilian population. But the true legal basis for the extensive regulatory actions of the CPA and other
United Nations-authorized administrations is to be found in the implied and customary powers of the Security Council to authorize civil
administrations under the Charter framework.188
V. The Implications of the (Co-) Administrations for the
Domestic Legal Order
1. The Dual Character of Directly Applicable Decisions
In relation to both Chapter VI½ and Chapter VII (co-) administrations,
the nature of the administrations closely resembles that of trusteeships,
despite the fact that they have a different legal basis than the classic
trusteeship systems under Chapter XII of the Charter. Like in the case
of a trusteeship, the United Nations-authorized civil administrations
were directed at territories which lack the capacity to function independently.189 The territories in question lacked in particular the core
elements of a stable administration and were unable and/or unwilling to
prevent ongoing wide spread and systematic human rights violations.190
186
187
188
189
190
As concretised, inter alia, by the extensive modernization of the banking
system and the licensing of commercial telecommunication services and
equipment. See CPA/ORD/7 June 2003/12; CPA/ORD/19 September
2003/40, including Annex A; CPA/ORD/8 June 2003/11.
Irmscher, see note 135, 395; Stahn, see note 22, 140-141.
Irmscher, see note 135, 394.
This remains so, despite the fact that they were formally independent
states, as opposed to colonized territories.
Hufnagel, see note 1, 214.
330
Max Planck UNYB 8 (2004)
By assisting these territories in protecting individuals and minority
rights and in the development of democratic, representative and accountable government structures, the civil administrations serve the
rights of the inhabitants of the administered territories, as well as the
collective security interests of the international community.191
Furthermore, civil (co-) administrations and trusteeships alike are of
a limited (albeit in practice sometimes protracted) duration, as they are
intended to enable the affected territory to become self-governing.192 In
the case of Chapter VII authorized (co-) administrations, this is partly
reflected by the time-limit attached to some of the (former) mandates,193 and partly by the explicit commitment to this effect in the respective Security Council resolutions – including those resolutions
which authorized the open-ended civil administrations in Kosovo and
initially also in Iraq.194 In the case of Chapter VI½ (co-) administrations, the limited nature is inherent in the fact that the existence and duration of the mandate is dependent on the consent of the recognized
governing authority of the territory affected.
A further implication of the dual purpose of trusteeship-like administrations is that the representatives of the international administrations act in a dual capacity. On the one hand, they act on the authority
of the United Nations, which constitutes an international authority. At
the same time, they also complement or even replace the national institutions, as they adopt decisions with direct effect in the national legal
191
192
193
194
Bothe/ Marauhn, see note 123, 220. The institution of a trust implies the
holding of rights and powers by a person (the trustee) for or on behalf of
another person (the trustor) in order to accomplish the specific purposes
which are the heart of the mission of the trustee and the establishment of
the trust. While there may be cases in which it is difficult to identify the
trustor and while there may even be cases involving several trustors, this
does not affect the underlying concept as such. Stahn, see note 39, 141;
Hufnagel, see note 1, 213.
Hufnagel, see note 1, 215.
See note 125.
See e.g. Kosovo: S/RES/1244 (1995) of 10 June 1995, paras 11 (d) and 11 (f);
Iraq: S/RES/1483 (2003) of 22 May 2003, paras 8 (c) and 9 and S/RES/ 1511
(2003) of 16 October 2003, paras 1 and 15; East Timor: S/RES/1272 (1999)
of 25 October 1999, para. 8 and S/RES/1410 (2002) of 17 May 2002, para.
8. In the case of Bosnia-Herzegovina this limited duration is reflected by
the Mission Implementation Plan of the Office of the High Representative
of 30 January 2003, available at <www.ohr.int>.
De Wet, The Direct Administration of Territories by the United Nations
331
order.195 The Special Representatives of the Secretary-General (and the
CPA-Administrator in the case of Iraq) may therefore be described as a
provisional substitute of the domestic governmental institutions, to the
extent that the latter are incapable of executing governmental functions.196 The legal acts adopted or executed in this fashion would also
possess a dual character. In the instance where the civil (co-) administration is exercised directly by the United Nations, they belong to the legal order of the United Nations as they are enacted by subsidiary organs of the Security Council within the meaning of Article 29 of the
Charter. In the case of Iraq, they would have a more sui generis international character, for, although authorized by the United Nations, the
CPA-Administrator was neither a subsidiary organ of the Security
Council, nor was he subjected to the direct authority of the United Nations in any other fashion.
In addition, the legal acts in all the above instances automatically
form part of the domestic legal order of the territory affected.197 This
means that the customary or implied powers of the Security Council
following from Article 41 of the Charter (in the case of a Chapter VII
administration), or the customary powers of the organization combined
with the consent of the state affected (in the case of a Chapter VI½
mandate), effectively opened the legal order of the administered territory to the direct application of decisions by United Nations representatives.198 One could also describe this process as the provisional transfer of sovereignty of the territory to the United Nations or other entities such as the CPA-Administrator on the basis of the Security Council’s implied or customary powers.199
Surprisingly, this revolutionary development provoked little if any
reaction from Member States. One might have suspected that such a
clear deviation from the public international law principle that leaves
the implementation of international obligations to domestic authorities
would have provoked some resistance from Member States. Most pertinently the question arises whether the implied and/or customary pow195
196
197
198
199
This dual character was also acknowledged by the Constitutional Court of
Bosnia-Herzegovina. See Request for Evaluation of Constitutionality of the
Law on State Border Service, Decision, No. U 9/00, 3 November 2000,
available at <www.ustavnisud.ba>.
Stahn, see note 39, 148.
Bothe/ Marauhn, see note 123, 230; Stahn, see note 39, 146.
Bothe/ Marauhn, see note 123, 155; Stahn, ibid.
Bothe/ Marauhn, see note 123, 155.
332
Max Planck UNYB 8 (2004)
ers of the Security Council would indeed include the competence to
penetrate the domestic legal order in the fashion described above and, if
so, under what circumstances. On the one hand, the lack of protest by
Member States suggests their silent acceptance of the Security Council’s
competence to invest the Special Representatives and CPAAdministrator with the power to directly penetrate the domestic legal
order. Therefore, even if the power to do so was not implied initially, it
would by now exist as a matter of custom. On the other hand, it remains to be seen whether Member States would be willing to accept the
expansion of such a competence outside the very special context of a direct (co-) administration which has to act in a trusteeship-like fashion in
a territory lacking (stable) governmental structures.
For example, in the field of economic sanctions, the Security Council has on several occasions adopted measures that were very specifically
targeted at particular groups or individuals whose actions were regarded as a threat to international peace and security.200 However, even
in those instances where the Security Council Sanctions Committee itself identified the individuals who were to be targeted by very specific
measures, such as the freezing of assets of persons suspected to be involved in international terrorism,201 the Security Council did not invest
this subsidiary organ with the power to implement these measures.
More specifically, it did not invest the Sanctions Committee with the
authority to directly implement these measures in territories which
were regarded as unwilling or unable to give effect to these measures.
This self-restraint on the part of the Security Council may be an indication that it lacks the competence to directly penetrate the domestic orders of Member States outside the context of direct (co)administrations.
2. The Potential Inalterability of Directly Applicable Decisions
A further important implication of direct (co)-administrations for the
respective domestic legal orders is that the latter are opened in a fashion
that gives automatic precedence to the United Nations-authorized
regulations if and to the extent that they deviate from the previously
200
201
See De Wet, see note 18, 252 et seq.
S/RES/1267 (1999) of 1267 of 15 October 1999, para. 4 (b) et seq.;
S/RES/1333 (2000) of 19 December 2000, para. 8 (c); S/RES/1390 (2002) of
28 January 2002, para. 2 (a), 5 (a).
De Wet, The Direct Administration of Territories by the United Nations
333
applicable domestic law. The more comprehensive the scope of the
United Nations-authorized administration, the more extensive the impact of such supremacy will be. For example, in the case of Kosovo and
East Timor, the pre-existing laws in force in the territories before the
establishment of UNMIK and UNTAET, respectively, were declared
applicable only in as far as they did not conflict with the United Nations regulations and internationally recognized human rights standards
defined by the transitional administrations.202 Similarly, in the case of
Iraq, the Regulations and Orders issued by the CPA were binding
measures that took precedence over all other laws and publications to
the extent that such laws and publications were inconsistent with the
Regulations or Orders.203
With Chapter VII authorized administrations, this precedence can
become problematic in relation to the future amendment of decisions
taken by a United Nations-authorized (co-) administration. The superior legal framework within which these administrations function,
raises the question whether regulations adopted by them could subsequently be amended or abrogated by the national government in the
post-administration phase without the consent of the Security Council.
A pertinent example is the Constitution of Bosnia-Herzegovina, which
was directly enacted by the Security Council through the adoption of
S/RES/1031. Since the Constitution contains an amendment clause, it
gives the impression that the Security Council had also authorized the
amendment of this document in the post co-administration phase of
Bosnia-Herzegovina. In accordance with this clause, the Constitution
may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of
Representatives.204
202
203
204
See UNMIK/REG/1999/ of 25 July 1999, sec. 2; UNMIK/REG/1999/24
of 15 November 1999, secs 1.2 and 1.3; UNMIK/REG/2000/59 of 27 October 2000; UNTAET/REG/1999/1 of 27 November 1999, sec. 3.1; Stahn,
see 39, 145. Compare M. Bothe/ T. Marauhn, “The United Nations in Kosovo and East Timor – Problems of a Trusteeship Administration, International Peace-Keeping 6 (2000), 152 et seq. (155). They seem to argue that
there is a presumption of continuity of the pre-existing law in case of trusteeship-like administrations. However, if this were the case, it would only
hold true if and to the extent that the pre-existing law is compatible with
the United Nations regulations.
CPA/REG/16 May 2003/01, at s 3(1), available at <www.cpa-iraq.org>.
Grant, see note 43, 41.
334
Max Planck UNYB 8 (2004)
However, a closer scrutiny of the Constitution places a question
mark over the scope of Security Council’s consent to the subsequent
amendment of the Constitution. Although the Constitution does not
specify inalterable articles, it does provide that no amendment may
eliminate any of the human rights and freedoms referred to in article
II.205 This seems to be a clear indication that any future amendment of
article II would require explicit Security Council authorization. Moreover, one could argue that such authorization would also be required
for any constitutional amendment that would indirectly limit or prevent the exercise of the rights contained in article II. For example, it
could be argued that any amendment to the constitutional autonomy
granted to the different entities within Bosnia-Herzegovina would prevent the members of the three constituent peoples to be free from discrimination.206 This, in turn, would imply that the rights and freedoms
guaranteed in article II of the Constitution could not be separated from
the structure of the Constitution itself, as a result of which effectively
no Constitutional amendment could be undertaken without Security
Council consent.
It is highly doubtful, however, if such a drastic measure was contemplated by the Security Council. It is hard to see how such openended control could be reconcilable with the principle of limited duration that underpins the United Nations trusteeship – like (co-) administrations.207 This conclusion is also supported by the fact that in the
case of Kosovo, East Timor and during Iraq no such open-ended control was foreseen. In these instances the respective international administrations have provided for the future amendment of regulations issued
by them in the post administration era. They determined that the respective regulations shall remain in force until repealed by the international transitional administrations themselves, or superseded by such
rules as are issued by the institutions established under a political settlement for Kosovo, or upon the transfer of UNTAET and the Authority’s administrative and public service functions to the democratic institutions of East Timor and Iraq, respectively.208
205
206
207
208
Article X of Annex 4, General Framework Agreement, see note 3.
Grant, see note 43, 42-43.
It is also questionable whether such open-ended control would be reconcilable with the right to self-determination, which poses a limitation to Security Council powers. See extensively De Wet, see note 18, 326 et seq.
UNMIK/REG/1999/1 of 25 July 1999, Sec. 4; UNTAET/REG 1999/1 of
27 November 1999, Sec. 4; CPA/REG/ of 16 May 2003/01, s. 3 (1). In the
De Wet, The Direct Administration of Territories by the United Nations
335
In the case of a Chapter VI½ (co-) administration, the problem of
“inalterability” of (directly applicable) regulations adopted by the international administration is unlikely to arise, given its consensual nature and the fact that these regulations do not have the superior quality
inherent to those measure taken in terms of Chapter VII of the Charter.
At the same time, however, other problems may arise in relation to conclusion and the subsequent amendment of agreements pertaining to
Chapter VI½ (co-) administrations. The first problem arises where the
(co-) administration is intended for a territory where there is no effective government and where different parties of the conflict claim to be
the representative of state authority. Apart from the difficulty in determining the true representative of the people,209 there is also the question
whether such groups could enter into an international agreement.
Whilst recognized liberation movements possess partial international
legal personality for this purpose, the situation is less clear in the case of
other armed groups.210 The case of Cambodia provides authority for
the fact that the international community seems to recognize the partial
international legal personality of such groups. For example, article 3 of
the Paris Agreement, which determined that the SNC was the unique,
legitimate body and source of authority in which the sovereignty, independence and unity of Cambodia was enshrined throughout the transitional period, was subsequently endorsed in S/RES/669 (1990) of 24
September 1990.211
209
210
211
case of Iraq, it is unlikely that any amendment would already be introduced by the Interim Government. In accordance with the Law for the
Administration of Iraq in the Transitional Period (TAL), the Interim Government’s tasks are essentially limited to leading the country to free elections, the drafting of a permanent constitution and the formation of an
Iraqi government pursuant to the permanent constitution. The TAL and
CPA documents are available at available at <www.cpa-iraq.org>.
See Gordon, see note 87, 318 who claims that only the direct consent of the
population, e.g. by means of a referendum, would constitute the consent
needed for a trusteeship-like administration. Anything less would contravene their right to self-determination.
Hufnagel, see note 1, 99-100, 294-95; Ratner, see note 34, 10.
See also A/RES/46/18 of 20 November 1991; Hufnagel, see note 1, 100;
Ratner, see note 34, 10. But see the Prosecutor v. Morris Kallon & Brimma
Bazzy Kamara, Special Court for Sierra Leone, Appeals Chamber, Case
No. SCSL-2004-15-AR72(E) and Case No. SCSL-2004-16-AR72(E) of 13
March 2004, para. 39. The Court was not willing to accept the international
character of the Peace Agreement between the Government of Sierra Leone
and the Revolutionary United Front of Sierra Leone of 7 July 1999, despite
Max Planck UNYB 8 (2004)
336
However, once this recognition has been given, the legality of the
decision-making powers of the (co-) administration would become
highly questionable when the “authoritative body” as a whole withdraws its consent to the administration. Similar problems could arise
where internal disputes within the “authoritative body” lead to the
withdrawal of one or more of the constituting parties from this body.
The question then arises to what extent the change in the composition
of the “authoritative body” would affect its position as sovereign authority, and whether it would (still) have the competence to enforce or
amend the original agreement regulating the “domestic powers” of the
different parties participating in the (co-) administration. Given the fact
that most agreements of this kind tend to be of a rather fragile nature,
the chances of the disintegration of the consent of some of the parties
and the (co-) administration in general would be quite significant. For
this reason it would, from the point of legal certainty, be preferable to
adopt systems of (co-) administration under Chapter VII of the Charter, as the consent of the parties to the conflict does not pose a legal requirement for the creation of the (co-) administration. For the reasons
outlined above, it would nonetheless be important that the Chapter VII
authorized administration provides clarity as to the future domestic
amendment of regulations and other legislation enacted within this superior legal framework.
VI. Conclusion
The dynamic character of the implied and customary powers of the
United Nations combined with the presumption of legality attached to
Security Council and General Assembly resolutions have lead to a significant expansion of the powers of the United Nations in relation to
the civil administration of territories. Whereas it was hardly contemplated half a century ago that the United Nations would increasingly be
engaging in the direct governance of territories beyond the legal
boundaries of the trusteeship system, its power to do so is now widely
accepted by its membership. This acceptance would include the power
of the Security Council to open up the national legal orders of the affected territories in a manner that facilitates the application of binding
the fact that it was co-signed by the United Nations. It regarded the Lomé
Agreement as a municipal agreement, with the role of the United Nations
as that of a moral guarantor that was not a party to the treaty itself.
De Wet, The Direct Administration of Territories by the United Nations
337
measures adopted by the United Nations authority in a direct and overriding manner. As illustrated above, the most convincing bases for these
powers of civil administration would be the customary powers in the
case of Chapter VI½ (co-) administrations and customary or implied
powers in the case of Chapter VII (co-) administrations. Moreover, the
case of Iraq illustrates that the international community might even accept the delegation of such direct governance of a territory by the
United Nations to certain Member States, although explicit acceptance
of this form of governance by the international community is still lacking.
Although the maintenance of international peace and security may
necessitate the involvement of the United Nations in the direct administration of territories, the above analysis also reveals several problems
which may arise as a result of such administration. The first concerns
the almost immediacy with which the legality of the measures for civil
(co-) administrations is recognized, due to the presumption of legality
attached to decisions by (subsidiary) organs of the United Nations and
the absence of a system of centralized judicial review within the organisation. In the absence of protest by a significant number of Member
States at a very early stage after the adoption of the measures for civil
(co-) administration, the legality of these measures becomes very difficult to dispute. This applies both to the initial Security Council decision
to authorize the direct civil administration, and the subsequent measures (e.g. Regulations and Orders) adopted in the context of a specific
civil administration. This may have the unfortunate result that the international community finds itself confronted by and ill prepared to
deal with a form of international governance that not only suffers from
a lack of political legitimacy, but may also be of questionable legality –
especially if one considers that the potential implications of the measures for civil administration are rarely thoroughly contemplated at the
time of their adoption.
This risk would be particularly acute in instances where a civil administration authorized on the basis of Chapter VII of the United Nations does not sufficiently provide for a procedure regulating the
amendment of its own legislation in the post-administration phase. As
indicated, the amendment clause in the Constitution of BosniaHerzegovina – which was directly introduced within the domestic legal
system by the Security Council itself – is open to an interpretation
which would require the consent of the Security Council with respect
to every future constitutional amendment. Given the fact that such consent could be prevented by a single veto of a permanent Security Coun-
338
Max Planck UNYB 8 (2004)
cil member, the people of Bosnia-Herzegovina may be prevented from
any constitutional reform for years to come – a situation which is
highly unlikely to be reconcilable with principles of democratic governance envisaged by S/RES/1031 itself. Moreover, in situations where a
legislative amendment procedure in the post-administration phase has
been provided for, such a procedure risks remaining a dead-letter if the
civil administration in question is of an open-ended nature. In situations such as Kosovo the absence of a time-limit to the respective civil
administration may result in its indeterminate protraction against the
will of the local population and the international community at large, if
a Security Council resolution aimed at its termination is blocked by the
veto of one of its permanent members.
At first sight one might think that these problems resulting from
Chapter VII authorized civil administrations could be resolved by resorting to Chapter VI½ as a basis for civil administration. As the creation and continuation of such an administration, as well as the continued applicability of the legislation introduced by it, depend on the consent of the domestic government of the territory in question, the abovementioned problems arising from the excessive protraction of the civil
administration or the inalterability of its legislation would not arise.
However, experience has shown that civil administrations which exclusively rely on the consent of the domestic government are bound to fail
where the stability of the domestic government is under threat, such as
in war-torn areas where the composition of the domestic government is
determined by highly fragile peace-agreements. As this is almost certainly to be the case in those territories in which the United Nations
engages in civil administrations, the chances of a Chapter VI½-type of
civil administration engaging in any effective administration at all, remains questionable.
The situation is further complicated in situations where there is no
clearly identifiable domestic government and where different parties to
the conflict claim to be the representative of the state authority. Apart
from the difficulty in determining the true representative of the people,
one still needs to clarify if and to what extent armed groups that are a
party to a conflict would possess the necessary legal personality to engage in an international agreement with the United Nations concerning
the civil administration of the particular territory. It is exactly because
of these difficulties with consensus-based forms of international governance that civil administrations based on Chapter VII of the Charter
prove to be necessary at times. Since under this Chapter the consensus
of (those claiming to represent) the domestic government is neither a
De Wet, The Direct Administration of Territories by the United Nations
339
legal requirement for authorizing the civil administration itself, nor for
the adoption of specific items of legislation, the United Nations would
not be confronted with similar legal problems when engaging in the direct administration of the territory. From a legal standpoint, a Chapter
VII (authorized) civil administration would thus be in a position to
overcome legal impasses between the local parties through binding decision-making where this is required for the general welfare of the
population.
In essence therefore, there is no blueprint formula for guaranteeing a
successful civil administration of a territory by the United Nations or
Member States on its behalf. On the one hand, the ability of the civil
administration to take binding measures on the basis of Chapter VII of
the Charter within a respective territory may be necessitated by the political realities of the situation. At the same time, the actual support of
the local authorities and civil population for these measures will ultimately determine their political success. The exact nature and scope of
the civil administration will be determined by the particular circumstances of the case. However, if the United Nations is indeed to honour
the trusteeship-type nature of these administrations, i.e. the furthering
of the welfare of the civil population in the administered territory in a
fashion that enables sustainable self-government, it needs to reflect
more clearly on the long-term implications of the extensive powers exercised in the course of such an administration.
In order to achieve this aim, it would be advisable to consider the
creation of a standing committee responsible for the overseeing of
United Nations-authorized civil administrations. This body, which
could be created as a subsidiary organ of the Security Council, could
coordinate and examine existing information on the legal and practical
problems that have thus far arisen in the various United Nationsauthorized civil administrations around the globe.212 By systematizing
and analyzing past experience in this regard, the standing committee
may succeed in developing some general guidelines for future civil administrations, whether of a Chapter VI½ or Chapter VII nature. After
all, given the large number of states facing severe political instability or
even bordering on the brink of total collapse, it is fair to assume that the
United Nations will continue to engage in the civil administration of
territories in years to come. By providing a more systematic and coher212
See the letter of the Dutch Ministers of Foreign Affairs and Development
Cooperation to the Dutch Parliament of 1 June 2004 (Tweede Kamer, vergaderjaar 2003-2004, 24 832, nr. 5, 5).
340
Max Planck UNYB 8 (2004)
ent framework in which United Nations-authorized administrations
have to operate, the standing committee would also provide a modest
measure of control in an area where the increased involvement of the
United Nations carries with it the risk of the unbridled expansion of
the organisation’s implied and customary powers into all aspects of civilian life.
Of Contracts and Treaties in the Global Market
Francisco Orrego Vicuña
I.
II.
III.
IV.
V.
The Paradoxes of Global Change in the Law
The Internationalization of Private Contracts
The Internationalization of State Contracts
The Globalization of Foreign Investment Law
“Umbrella Clauses” as a Mechanism of Further Integration between
Contracts and Treaties
VI. The Increasing Interaction of Public Law and Private Rights in the Light
of Legitimate Expectation
VII. Global Protection under International Law
I. The Paradoxes of Global Change in the Law
Not long ago teachers of international law used to explain that treaties
are like contracts, only between states. Today it is necessary to explain
that contracts are like treaties, only between individuals and the state.
Paradoxical as it may seem, these different explanations respond to the
changing reality underlying the process of globalization of the law.
What used to be a useful comparison between international law and a
separate domestic legal framework – treaties and contracts – has now
become a part of a single legal structure which encompasses both contracts and treaties as well as a host of other instruments.
This phenomenon is of course noticeable in respect of activities that
have become to a greater extent globalized, such as trade and investments, but it also relates both actually and potentially to a number of
other matters that are following the same path. Examples can be found
in Government commitments to the individual creating a legitimate expectation, a question that used to be confined to the realm of domestic
law, but that today has gained increasing international recognition and
342
Max Planck UNYB 8 (2004)
effect. Environmental covenants and other instruments that have substituted private commitment for governmental regulation are also a matter
whose effects are felt far beyond the confines of national borders.
This article seeks to explain the process leading to this profound
transformation of the law, with particular reference to the internationalization of contracts and the way how they have begun to interact with
treaties. Both private and public international law developments are intertwined in this process to a degree that they become difficult to distinguish. In addition, the influence of lex mercatoria provides for a further enlargement of the governing legal framework. All of this leads in
turn to a most meaningful role of international arbitration in consolidating the legal trends emerging from this state of flux.
II. The Internationalization of Private Contracts
Internationalization of contracts is not a new phenomenon. In fact, ever
since trade crossed over national borders the process of internationalization was present to a greater or lesser extent. It has been appropriately written that “a contract is an international contract when it brings
into play the interests of international trade”.1 True enough, international trade and the international sale of goods was the salient feature of
this process at a first stage, which was soon followed by the more complex operation of international investments, whether associated to trade
or not, and resulting in the global reach of economics and finance that
we know today.2 The overarching effect of the international public
regulation of international trade in the framework of the GATT, the
WTO and Free Trade Agreements, and the similar effect of the 1965
Convention establishing the International Centre for Settlement of Investment Disputes (ICSID) and the related network of bilateral and
multilateral investment treaties that will be discussed below, are not
alien to this process of transformation.
The law, however, has been slower to react to the new needs of a
globalized economy. There is still an ongoing legal debate about the
definition of an international contract as opposed to a domestic contract and the role of the sources of law in establishing a line of separa1
2
C. Witz, “L’internationalité et le contrat”, Revue Lamy Droit des Affaires
46 (2002), as reprinted in: Lamy, “Le Contrat International”, (2002), 3-6.
P. Kahn, “L’internationalité du point de vue de l’ordre transnational”, Revue Lamy Droit des Affaires 46 (2002), as reprinted in: Lamy, see above.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
343
tion. But, as Lagarde has commented, this is a false debate in that the
international legal order is the one increasingly governing internal situations by means of a variety of conventions.3
The nature of international markets determines that every passing
day fewer and fewer transactions can be exclusively considered to be of
a purely internal or domestic nature. The very role of the principle of
subsidiarity has changed in this context. At the time when transactions
were largely domestic international rules were applied as subsidiary,
while today, where transactions are mostly international, it is the national rules that are applied as subsidiary. This has no small effect in the
scope and nature of the law.
Conventions laying down rules of substantive law soon began to interact with the traditional approaches to private international law,
mostly concerned with the identification of jurisdictions and applicable
law among competing sovereignties. Conventions on substantive law
had of course the advantage of looking at the broader spectrum of international markets and their legal transactions. This is the basis on
which these conventions gradually began to prevail over domestic approaches.4 The larger the degree of internationalization of contractual
transactions, the greater the choice the parties had to opt for both the
competent jurisdiction and the applicable law, particularly when such
developments were coupled with the resort to international arbitration.
Although conventions on substantive or material law appeared
somewhat late, they soon gained momentum and there were noticeable
changes from one to the other, each leading to a larger degree of internationalization. The so called Hague Conventions of 1964,5 for example, not only required that buyer and seller be established in different
countries but also that there should be some additional element of international significance, such as transportation or delivery of the goods
beyond the state where offer and acceptance had materialized in a con-
3
4
5
P. Lagarde, “L’internationalité du point de vue de l’ordre international”,
Revue Lamy Droit des Affaires 46 (2002), as reprinted in: Lamy, see note 1,
1-3.
Lagarde, see note 3, 1-6.
Convention on the Uniform Law on the International Sale of Goods (1964)
(Ulis, UNIDROIT), <www.lexmercatoria.org>; Convention relating to a
Uniform Law on the Formation of Contracts for the International Sale of
Goods (1964) (Ulf, UNIDROIT), <www.lexmercatoria.org>.
344
Max Planck UNYB 8 (2004)
tract. The 1980 Vienna Convention6 did not retain such additional elements and required only that buyer and seller be established in two different countries.7 A number of other conventions followed this simpler
approach, thereby evidencing that internationalization was rapidly
gaining ground.8
Other developments leading in the same direction have been noted
in connection with the UNIDROIT Principles on international commercial contracts,9 the Principles on an European law of contracts10 and
the studies on an European Civil Code.11
The most significant contribution to the internationalization of contracts has been that of international arbitral tribunals, which, as rightly
noted, need to settle specific disputes between operators of international trade and are, for the most part, independent from national jurisdictions and state sovereignty.12 Arbitration under the International
Chamber of Commerce has built a powerful body of legal approaches
to contemporary trade and financial transactions, most of which has in
sight the needs of the effective operation of international markets rather
than isolated requirements of national legislation.
Both from the point of view of jurisdiction and the substantive law
governing international transactions, legal realities are today very different from those existing up to the 1980’s. The new public order governing transactions in international markets is no longer a domestic one
6
7
8
9
10
11
12
United Nations Convention on Contracts for the International Sale of
Goods, 1980, <www.lexmercatoria.org>.
Witz, see note 1, 3-6.
See, for example, the United Nations Convention on the Limitation
Period in the International Sale of Goods 1980 (New York, 1974/ Vienna,
1980); the Convention on Agency in the International Sale of Goods (Geneva, 1983); and the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995),
<www.lexmercatoria.org>, and discussion by Witz, see note 1, 3-6, note 21.
UNIDROIT Principles of International Commercial Law, 2004, and reference to the 1994 edition by Kahn, see note 2, 2-5, note 8.
O. Lando/ H. Beale, Principles of European Contract Law, 2000, and discussion by Witz, see note 1, 3-7.
C. von Bar, Le groupe d’études sur un code civil européen, Revue Internationale de Droit Comparé 53 (2001), and discussion by Witz, see note 1,
3-7,8.
Kahn, see note 2, 2-5.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
345
but genuinely a globalized legal framework.13 When these developments are put in perspective the conclusion of an author does not seem
farfetched:
“La prochaine étape, dans le cadre de l’uniformisation du droit applicable aux contrats, entreprise a une échelle mondiale, sera peutêtre celle de l’abandon de la distinction entre contrats internes et
contrats internationaux”.14
III. The Internationalization of State Contracts
A parallel line of legal development is found in the case of contracts between the state and individuals involving some form of international relationship. This category of issues is not new as it started most prominently with the concession contracts of the past and evolved into the
modern forms of contractual commitments known today, most notably
in the field of development contracts, foreign investments and financial
transactions. It is in the context of these developments that contracts
came yet into closer contact with international law and, eventually, treaties.
Being the state party to such international contracts, the question
soon arose whether the breach of the rights of the other party could
amount to a breach of international obligations of the state as a subject
of international law and hence engage its international responsibility.15
The view of authors has been sharply divided on how to answer this
question. There are those who believe that such contracts are always
within the administrative realm of state sovereignty, and at most their
breach by the state could give rise to compensation, and those who argue that such contracts are no longer simply national contracts but are
now subject to international law. There are also those who have devised
intermediate approaches, like a special legal regime giving rise to trans-
13
14
15
P. Lalive, “Ordre Public Transnational (ou réellement international) et arbitrage international”, Revue de l’Arbitrage 1986/87, 329 et seq., and discussion by Kahn, see note 2, 2-7.
Witz, see note 1, 3-9.
P. Weil, “Problèmes relatifs aux contrats passés entre un Etat et un
particulier”, RdC 128 (1969), 95 et seq. (101).
346
Max Planck UNYB 8 (2004)
national law. These differing views suggest that every possible legal alternative has been explored.16
Irrespective of the position taken by each author or tribunal, the fact
that stands out is that this category of contracts is, by definition, one
where internationalization is still more prominent than that resulting
from purely private contracts. Not infrequently this feature is enhanced
by the commitment of the state not to alter the contract and to abide by
various kinds of stabilization clauses and other legal assurances. In addition, the general safeguards of international law in connection with
private rights are always available, particularly in so far as unlawful expropriation, denial of justice and other forms of interference by the
state will positively engage its international responsibility and the duty
to compensate, among other possible remedies.
The end result of this legal development is that even in the case of a
contract which cannot be considered to be governed or subject to international law, and which therefore allows for a greater role of the domestic legal system and national sovereignty, some key aspects of such
contract will, nevertheless be subject to the operation of international
law either because there are specific clauses to this effect or because the
general safeguards of international law will be always at hand. The latter will of course operate independently from the contract to the extent
that there is an international wrong.
The question that remains is whether this means that state contracts
are treaties, at least from the point of view of their legal effects. The
question becomes still more pressing when the state has undertaken a
commitment to other states, normally by treaty, making the enforcement of the contract an international legal obligation. The so called
“umbrella clauses” or “traités de couverture”,17 because of the higher
degree of submission of the contract to international law, have been, on
occasions, considered to safeguard the sanctity of the contract and to
transform any interference with its enforcement into a treaty violation.18 The specific implications of this type of clause in recent arbitral
decisions concerning foreign investments will be discussed below.
16
17
18
See generally J.F. Lalive, “Contrats entre Etats et personnes privées”, RdC
182 (1983), 9 et seq., and discussion by H. Grigera Naón, “El Estado y el
Arbitraje Internacional con Particulares”, Revista Jurídica de Buenos Aires
II-III (1989), 127 et seq. (130-138).
Weil, see note 15, 124, 130.
F.V. García-Amador, The Changing Law of International Claims, 1984,
387-395.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
347
But it is one thing to strengthen the observance of state contracts by
building upon the role of international law, directly or indirectly, and
quite another to assimilate contracts to treaties.19 As concluded by Professor Weil in his forward looking course of the Hague Academy of International Law in 1969:
“l’internationalisation ne signifie ni que le contrat devienne
l’equivalent d’un traité international ni que les règles du droit international interétatique soient transposables purement et simplement
au domaine des contrats. Le contrat international n’est pas assimilable a un traité, il est simplement un acte international d’un type
nouveau. Le droit international qui lui est applicable ne sera pas
exactement le même que celui qui régit les rapports entre Etats, et
notamment les traités internationaux ...”.20
Similarly to international contracts, the decisions of arbitral tribunals and other courts, both domestic and international, have been instrumental in clarifying and developing the law applicable to state contracts, including the question of the choice of the appropriate forum to
decide on disputes arising from such contracts.
For domestic courts the question has been somewhat more difficult
in that many state contracts are made in the form of administrative contracts. Administrative contracts are often considered to be the expression of the powers of administration of the state, thus being closely attached to state sovereignty. This has not been the view of arbitral tribunals and other courts operating under international law, where the distinction between the state operating in its sovereign capacity – jure imperii – and the state operating as a commercial or business entity – jure
gestionis – has been for long admitted.21 While immunity and other
state prerogatives are observed in connection with the first capacity
none of it is available if the nature of the activity concerned is purely
commercial or business-related.
This very distinction has also gradually permeated the view of a
number of domestic courts which have admitted that the state defaulting on its contractual obligations in respect of an individual, national or
foreign, engages its responsibility and has, at the very least, the obligation to compensate the resulting damage.22 Administrative contracts
19
20
21
22
Weil, see note 15, 158.
Weil, see note 15, 188.
I. Brownlie, Principles of Public International Law, 1990, 326-336.
Grigera-Naón, see note 16, 140-155.
348
Max Planck UNYB 8 (2004)
have thus lost, to this extent, their connection to sovereignty and have
become more contractual in nature.
Because of this evolving framework in connection with state contracts, disputes between an individual and the state have been more often submitted to private international arbitration. The role of the International Court of Arbitration of the International Chamber of Commerce has again been prominent in this respect, in part because of its
growing jurisprudence but also in part because states are not treated
just like individual private contractors and a special degree of deference
is offered to them throughout the proceedings.23
IV. The Globalization of Foreign Investment Law
The third major line of development emerged in connection with the
protection of foreign investments. Following the conflicting relationship between those who favoured submission of all disputes to domestic courts under some form or other of the “Calvo Clause” and those
who would insist on the role of diplomatic protection, and hence of
state intervention to protect their investments and other rights, arbitration gradually emerged as the common ground where the interests of all
could be satisfied. This was the key turning point of the 1965 Convention establishing the ICSID.24 No further diplomatic protection, except
in unusual situations, no further submission to domestic courts and recourse instead to international arbitration, largely institutionalized under ICSID or UNCITRAL rules, are the core elements of the new balance struck between state sovereignty and international developments.25
Although restricted to the field of investments, however largely this
may be defined by treaty, national legislation or contract, this particular
development covers the most important international transactions of
the modern world, which take the form of investments. Developments
in the WTO, albeit different, tend to address the other major source of
contemporary economic activity which is that concerned with international trade and related matters.
23
24
25
E. Silva Romero, “ICC Arbitration and state Contracts”, Bulletin, International Court of Arbitration 13 (2002), 34 et seq.
See generally C. Schreuer, The ICSID Convention. A Commentary, 2001.
P. Weil, “The state, the Foreign Investor, and International Law: the no
longer stormy Relationship of a Ménage à Trois”, ICSID Review, Foreign
Investment Law Journal 15 (2000), 401 et seq.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
349
Over 2000 bilateral investment treaties assuring the protection of
foreign investments are today in existence, together with a host of multilateral conventions and a number of free trade agreements.26 They all
share the common feature that in spite of being inter-state agreements,
individual private investors can avail themselves of the provisions of
such instruments both in terms of the standards of treatment and the
choice of forum for the settlement of disputes, including most prominently international arbitration.27
Most investments, however, are done by means of contracts with the
state and it is here where the new connection between contracts and
treaties has emerged. Not infrequently, contracts provide for the application of domestic law and for the submission of disputes to domestic
courts. How can this be reconciled with the parallel existence of a treaty
providing some times for a different governing law, ensuring a substantive treatment under international law which is usually different from
that under domestic law, and allowing for the submission of disputes to
international arbitration if the investor so chooses?
As in the past, two major approaches have emerged as an answer.
For the host state, it is quite naturally the contract and the domestic legal framework that have to prevail. For the investor, it is quite naturally
the treaty and the international law governance that have to prevail.
And quite naturally too, it has been for the arbitral tribunal where the
dispute is taken to settle the issue.28 Because this is normally a jurisdictional issue its discussion in arbitration tribunals has been inseparable
from the determination of the appropriate forum, thereby increasing
the link between the conceptual aspects of the matter and the role of international arbitration to a much greater extent than was the case in the
past.
The first case that explicitly addressed the matter was Lanco International Inc. v. The Argentine Republic.29 In this case the investor chose
26
27
28
29
E. Obadia, “ICSID, Investment Treaties and Arbitration: Current and
Emerging Issues”, in: G. Kaufmann-Kohler/ B. Stucki, Investment Treaties
and Arbitration, 2002, 67 et seq.
J. Paulsson, “Arbitration without Privity”, ICSID Review, Foreign Investment Law Journal 10 (1995), 232 et seq.
I.F.I. Shihata/ A.R. Parra, “The Experience of the International Centre for
Settlement of Investment Disputes”, ICSID Review, Foreign Investment
Law Journal 14 (1999), 299 et seq.
Lanco International Inc. v. The Argentine Republic, Preliminary Decision
on Jurisdiction of 8 December 1988, ILM 40 (2001), 457 et seq.
350
Max Planck UNYB 8 (2004)
to take the dispute to the ICSID under a bilateral investment treaty
even though the concession contract executed with Argentina provided
for the submission of disputes to local courts. The Tribunal held that
consent to arbitration under the treaty prevailed over any other provision to the contrary and that such consent could not be diminished by
the submission of a dispute to local courts under the concession contract.30 In this case, like in Salini, it has been held that since parties cannot opt for the jurisdiction of a domestic administrative court because it
entails a kind of mandatory jurisdiction, there can be no triggering of
the “fork in the road” mechanism in respect of ICSID arbitration.31
A distinction between different types of claims in connection with
the test of triple identity has also been made. To the extent that a dispute might involve the same parties, object and cause of action it might
be considered as the same dispute and if it has been submitted by the
investor to domestic courts the “fork in the road” mechanism, by
which the investor’s choice becomes final, would preclude its submission to international arbitration.32
A purely contractual claim would thus normally find difficulty in
passing the jurisdictional test of treaty-based tribunals, which will of
course require allegation of a specific violation of treaty rights as the
foundation of their jurisdiction. As the ad hoc Committee held in
Vivendi, “A treaty cause of action is not the same as a contractual cause
of action; it requires a clear showing of conduct which is in the circumstances contrary to the relevant treaty standard”.33
The question, however, is not easy to resolve in practice as has been
evidenced by the discussions of various tribunals. The Vivendi ad hoc
Committee explained that “In a case where the essential basis of a claim
brought before an international tribunal is a breach of contract, the tribunal will give effect to any valid choice of forum clause in the contract”.34 However, to the extent that the fundamental legal basis of a
30
31
32
33
34
Lanco, ibid., para. 40.
Salini v. Morocco, Decision on Jurisdiction of 16 July 2001, ILM 42 (2003),
606, and see Decision paras 25-27.
Lauder v. Czech Republic, Final UNCITRAL Award of September 2001,
paras 161, 163, as published in <www.mfcr.cz/static/Arbitraz/en/Final
Award.pdf>.
Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine
Republic (Case No. ARB/97/3), Decision on Application for Annulment of
3 July 2002, ILM 41 (2002), 1135 et seq. (Vivendi Annulment), para. 113.
Vivendi Annulment, ibid., para. 98.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
351
claim is a treaty, the existence of an exclusive jurisdiction clause in a
contract between the claimant and the respondent state “cannot operate
as a bar to the application of the treaty standard”.35 A similar reasoning
applies to the operation of the “fork in the road” mechanism, since the
choice of one or other forum will depend on the nature of the dispute
submitted and these are not necessarily always incompatible.
This situation was explained by the Annulment Committee in Wena
in respect of the interplay of leases and treaty claims, the first being
contractual and the second arising under a treaty:
“The leases deal with questions that are by definition of a commercial nature. The IPPA [treaty] deals with questions that are essentially of a governmental nature, namely the standards of treatment
accorded by the state to foreign investors … It is therefore apparent
that Wena and EHC [Egyptian Hotel Corporation] agreed to a particular contract, the applicable law and the dispute settlement arrangement in respect of one kind of subject, that relating to commercial problems under the leases. It is also apparent that Wena as a
national of a Contracting state could invoke the IPPA for the purpose of a different kind of dispute, that concerning the treatment of
foreign investors by Egypt. This other mechanism has a separate
dispute settlement arrangement and might include a different choice
of law provision or make no choice at all … The private and public
functions of these various instruments are thus kept separate and
distinct”.36
The difference between contract-based claims and treaty-based
claims has also been discussed by several other international arbitral
tribunals, as evidenced by the decisions in Lauder,37 Genin,38 Aguas del
35
36
37
38
Vivendi Annulment, see note 33, para. 101.
Wena Hotels Ltd. v. Arab Republic of Egypt (ICSID Case No. ARB/98/4),
Decision on Application for Annulment rendered on 5 February 2002,
ILM 41 (2002), paras 31, 35, Decision of the Ad-Hoc Committee on Annulment.
Lauder, see note 32.
Alex Genin and others v. Republic of Estonia (ICSID Case No. ARB/99/2),
Award of the Tribunal of 25 June 2001; Decision on Claimants’ Request for
Supplementary Decisions and Rectification of 4 April 2002, available at:
<http://www.worldbank.org/icsid/cases/conclude.htm>.
352
Max Planck UNYB 8 (2004)
Aconquija,39 CMS40 and Azurix41 and of the ad hoc Committee in
Vivendi explained above.42 The Tribunal held in CMS, referring to this
line of decisions, that “as contractual claims are different from treaty
claims, even if there had been or there currently was a recourse to the
local courts for breach of contract, this would not have prevented submission of the treaty claim to arbitration”.43
V. “Umbrella Clauses” as a Mechanism of Further
Integration between Contracts and Treaties
In the recent case of SGS v. Pakistan, the Tribunal came to the conclusion that it did not have jurisdiction over contract claims “which do not
also constitute or amount to breaches of the substantive standards of
the BIT”.44 In SGS v. The Philippines, where contractual claims were
more easily distinguishable from treaty claims, the Tribunal referred
certain aspects of contractual claims to local jurisdiction while retaining
treaty-based jurisdiction.45
A further difficulty found by the tribunals in these last two cases
was that both treaties contained an “umbrella clause”. As noted further
above, “umbrella clauses” or “traités de couverture” might potentially
transform a contractual obligation of the state into a treaty obligation,
thus erasing the distinction between one and the other. To this extent
39
40
41
42
43
44
45
Compañia de Aguas del Aconquija S.A. v. The Republic of Argentina
(ICSID Case No. ARB/97/3), Award of 21 November 2000, 16 ICSID
Rev.—FILJ 641 (2001).
CMS Gas Transmission Company v. Republic of Argentina (ICSID Case
No. ARB/01/8), Decision on Jurisdiction of 17 July 2003, ILM 42 (2003),
788 et seq.
Azurix Corp. v. Argentine Republic (ICSID Case No. ARB/01/12), Decision on Jurisdiction of 8 December 2003, para. 145, International Law in
Brief available at <http://www.asil.org/ilib/azurix.pdf>.
Vivendi Annulment, see note 33.
CMS, see note 40, para. 80; Azurix, see note 41, para. 89.
SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan
(ICSID Case No. ARB/01/13), Decision on Objections to Jurisdiction of 6
August 2003; 18 ICSID Rev.—FILJ 301 (2003), para. 162.
SGS v. Philippines, (ICSID Case No. ARB/02/6), Decision on Objections
to Jurisdiction of 29 January 2004, para. 163.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
353
contracts might be considered as treaties from the point of view of their
legal effects.
However, it must also be noted that the tribunal in SGS v. Pakistan
was not convinced that umbrella clauses could always have such a
broad effect as there would be no further difference between contractbased claims and treaty-based claims; it therefore undertook the task of
examining both the legal purport of the clause and the intention of the
parties in building this clause into the treaty. The Tribunal recognized
that states can agree if they so wish that “all breaches of each state’s
contracts with investors of the other state are forthwith converted into
and to be treated as breaches of the BIT”, but that in that particular case
there was “no clear and persuasive evidence that such was in fact the intention …”.46
In SGS v. The Philippines the Tribunal took the rather unusual step
of criticizing the decision of the Tribunal in SGS v. Pakistan, concluding
that in the treaty concerning the Philippines the umbrella clause “makes
it a breach of the BIT for the host state to fail to observe binding commitments, including contractual commitments, which it has assumed
with regard to specific investments. But it does not convert the issue of
the extent or content of such obligations into an “issue of international
law”.47 A claim concerning this issue was one which the Tribunal held
should be submitted to local courts while, itself, retaining jurisdiction
for the treaty-based aspect of the dispute. Although the reasoning of
the Tribunal cannot be easily followed, the fact is that the umbrella
clause was assigned a broad effect in the context of that particular
treaty.
VI. The Increasing Interaction of Public Law and Private
Rights in the Light of Legitimate Expectation
As mentioned above, even though contracts have been increasingly
considered as subject to international law and detached from domestic
legal constraints this does not mean that they have been transformed
into treaties. Similarly, many of the attributes of treaties can be extended to contracts, including pacta sunt servanda and observance in
46
47
SGS v. Pakistan, see note 44, para. 173.
SGS v. Philippines, see note 45, para. 128.
354
Max Planck UNYB 8 (2004)
good faith, but this does not mean that treaties are contracts as they
govern a different relationship in the international community.
What is interesting to realize is that the closer the interactions between treaties and contracts the greater the nexus between one and the
other that will develop. This is noticeable, for example, when states undertake by means of a fully-fledged and unequivocal “umbrella clause”
to treat breaches of contract as a breach of a treaty protecting the rights
of investors. This is also the case of the extraordinary development embodied in the ICSID Convention to the extent that states enter into
treaties that provide for the consent of host states to international arbitration in respect of unnamed investors who at any point in time may
exercise the option of resorting to such arbitral jurisdiction. Investment
contracts are thus linked automatically by the treaty to international
arbitration and the standards of treatment laid down by the treaty and
international law.
While this interaction is today typical of investments and increasingly so in respect of trade and financial transactions in the international market, the question that remains is whether other fields of activity will follow the same path. International contracts, even if purely
private, are already pointing in this direction. Will many other contracts
be subject to global standards concerning both jurisdiction and substantive rules of applicable law?
It must first be noted that indeed the interactions are increasing.
One element has been the interplay of the most favored nation clause in
connection with bilateral investment treaties, both in procedural and
substantive terms.48 Another element has been the recognition of the
nature of global financial markets and its effect on the law.49
The answer in the end is connected to the examination of a broader
issue, namely the need to establish limits to the overarching powers and
functions of states in respect of the individual. A number of these limits
have been established by means of legal safeguards, including the question of controlling the abuse of rights and discretionary powers of the
administration, and by the role of domestic courts in ensuring their implementation. However, at least in connection with international legal
48
49
Maffezini v. Spain, ICSID Award of 13 November 2000. This case came to
settle the discussion initiated by both the ICJ and the Commission of Arbitration in the Ambatielos Claim, RIAA 12 (1963), 87 et seq. (107).
Fedax v. Venezuela, Decision of the ICSID Tribunal on Objections to Jurisdiction of 11 July 1997.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
355
transactions, this is a task that has also to be undertaken by international law.
It is a well-established principle that states may not act in a manner
contrary to treaties and contracts, at least those contracts that are under
some form of protection of international law itself.50 Although the
identification of the standard of observance of and compliance with
contracts by states has not been easy in a historical perspective, increasingly there is a noticeable influence in domestic and international courts
of the standard of legitimate expectation. Whether this has been a development undertaken in express, or, frequently, implied terms, the fact
is that what finally counts is the protection of the rights of the individual, not exclusively those of the state, as in the past.
At first this standard was concerned mainly with procedural questions or with the need to take into account a previous policy.51 In Preston, however, the House of Lords ruled that unfairness amounting to
an abuse of power could arise from conduct equivalent to the breach of
contract or representation.52 In the recent case R. v. North and East
Devon Health Authority, ex p. Coughlan53 the Court of Appeal in England sought to redress the inequality of power between the citizen and
the state.54 In this case it was held that:
“Where the Court considers that a lawful promise or practice has
induced a legitimate expectation of a benefit which is substantive,
not simply procedural, authority now establishes that here too the
court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount
to an abuse of power. Here, once the legitimacy of the expectation is
established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the
change of policy”.55
The Court, having examined prior cases, then added:
50
51
52
53
54
55
R. Higgins, “The Taking of Property by the State: Recent Developments in
International Law”, RdC 177 (1982), 259 et seq. (263).
Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1947) 2 All
ER 680, (1948) 1 KB 223.
Preston v. IRC (1985) 2 All ER 327, (1985) AC 835.
R. v. North and East Devon Health Authority, ex parte Coughlan (2000) 3
All ER 850.
M. Elliott, “Case and Comment, House of Lords Decisions”, CLJ 59
(2000), 421 et seq.
R. v. North and East Devon Health Authority, see note 53, para. 57.
356
Max Planck UNYB 8 (2004)
“The court’s task in all these cases is not to impede executive activity
but to reconcile its continuing need to initiate or respond to change
with the legitimate interests or expectations of citizens or strangers
who have relied, and have been justified in relying, on a current policy or extant promise”.56
The reasoning of the court is not only relevant in terms of domestic
legal constraints but extends equally to those policies and contracts that
have been internationalized. Governments may undertake changes of
policy in their continuing need to search for the best choices in the discharge of their functions. However, to the extent that policies earlier in
force might have created legitimate expectations both of a procedural
and substantive nature for citizens, investors, traders or other persons,
these may not be abandoned if the result would be so unfair as to
amount to an abuse of power. Discretionary powers of the state, unchecked in the past, are today subject to a legal scrutiny so as to prevent
frustration of individual rights.
This approach is also permeating the work of international tribunals.
The World Bank Administrative Tribunal, for example, has applied the
standard of legitimate expectation in several recent decisions so as to
examine the administrative powers of the institution in the light of the
rights of the affected individual.57
VII. Global Protection under International Law
The implications of this view for international law have not passed unnoticed. Professor Ian Brownlie58 and Lady Fox59 have recently raised
the question whether matters giving raise to legitimate expectation on
the part of an individual should be included among the exceptions to
the law of state immunity. Just as the commercial activity of states has
been recognized as a fundamental exception to immunity, so too there
might be a need to accommodate the increased supervision of government functions. The underlying rationale for such exception is that ad56
57
58
59
R. v. North and East Devon Health Authority, see note 53, para. 65.
World Bank Administrative Tribunal, Bigman Reports, 1999, Decision No.
209; Prescott Reports, 2001, Decision No. 253, para. 25.
Institut de Droit International, Resolution on Contemporary Aspects concerning Jurisdictional Immunities of States, article 2 (d), Annuaire, (1991)
II, 64, 266.
H. Fox, The Law of State Immunity, 2002, 298-300.
Orrego Vicuña, Of Contracts and Treaties in the Global Market
357
ministrative functions of the state, earlier considered as the essence of
jure imperii and sovereignty, if affecting the rights of individuals can be
considered today to engage contractual commitments that the state is
bound to observe and which largely fall within the ambit of jure gestionis.
To the extent that individuals are not to be left unprotected from arbitrary or abusive state powers in their global activity, international law
will need to develop further the concepts and mechanisms for international protection of such rights. Paradoxically as it may seem, it is for
the state itself to observe its obligations in such a manner as to make
those developments unnecessary or exempt itself from international
scrutiny. Whether more and more kinds of contracts are subject to the
protection of treaties and international law will, in fact, depend upon
such an equation.
In this light, it can be concluded that treaties and contracts, albeit
different, pursue the same objective of ensuring the rule of law and the
observance of legal commitments in the international community and
are thus called to increasing interaction. To this end, treaties are becoming privatized by allowing a greater role for individuals in their operation, just as contracts are becoming public to the extent that states and
international law extend their guarantees to their observance. All of it
points towards the need for global protection in a global society, where
perhaps the distinction between public and private law will become less
meaningful.
Organizing for Influence: Developing Countries,
Non-Traditional Intellectual Property Rights
and the World Intellectual Property
Organization
Andrew J. Grotto1
I.
Introduction
II. International Trade, Institutional Convergence and Poverty Reduction
III. Working Typology of Successful Developing Country Negotiating
Strategies
IV. WIPO, Developing Countries and Intellectual Property
V.
WIPO and Non-Traditional Intellectual Property Rights
VI. Conclusion
I. Introduction
On 13-18 June 2004, political leaders from over 100 developing countries met in São Paulo, Brazil, for the quadrennial United Nations Conference on Trade and Development (UNCTAD). The goal of the conference was to serve as an organizing forum for developing countries to
1
An earlier version of this paper was prepared for the seminar “One Way or
Many” taught by Dani Rodrik and Roberto Unger at Harvard Law School
in the Spring of 2003. The author thanks Sonal Shah for comments and
criticisms. The views expressed herein are the author’s only, as are any mistakes, errors or omissions.
360
Max Planck UNYB 8 (2004)
search for ways to ensure that trade integration and economic development are complementary.2
In addition to the usual calls for preferential market access, special
and differential treatment, and an end to agricultural subsidies in developed countries, two additional developments stand out. First, one of
the animating premises of the conference was that “trade liberalization
has been unsuccessful in many developing countries.”3 The conclusion
drawn from this premise was that developing countries should push for
trade policies and international trade rules that permit them to “integrate at their own pace, in accordance with their particular needs and
circumstances.”4 While this is far from a categorical denunciation of international trade, it sends a clear signal that developing countries are increasingly skeptical of one-size-fits-all trade and development policies.
Second, conferees identified the need for developing countries to do a
better job of consolidating their negotiating strategies in the WTO as a
means for achieving these goals.
As Part II. of this paper shall describe, the first of these developments coincides with a growing skepticism among economic development specialists about the relationship between what Harvard economist Dani Rodrik calls “first-order economic principles”—the fundamental principles that all successful economies more or less have in
place, including property rights, fiscal responsibility, sound currency,
and market-based incentives—and their specific institutional form. The
role of free trade in economic development has come under particular
fire, with domestic institutions looking more and more like the primary
driver of economic development. One of the key lessons of this literature is that domestic institutions tend to be most successful at causing
growth when they are homegrown and dynamic, but nonetheless fulfill
basic first-order economic principles.
What seems to be emerging is a consensus among the political leadership of developing countries and among economic development specialists that successful economic development strategies tend to be inter
alia context-dependent; countries at different stages of economic development and with different underlying political and economic cultures
require different development strategies. An important corollary is that
2
3
4
UNCTAD XI, available at: <http://www.unctadxi.org/templates/
Startpage____103.aspx>.
UNCTAD XI, The Conference: Development Strategies. Available at:
<http://www.unctadxi.org/templates/Page____108.aspx>.
Ibid.
Grotto, Organizing for Influence
361
developing countries generally require some measure of room to experiment with their domestic institutions. But with the trend in trade
negotiations moving more and more in the direction of relocating regulatory policy-making at a transnational level, their ability to experiment
with their institutions is increasingly limited.
There are few indications that developed countries share in the
growing skepticism over the “single-undertaking” mindset. As a result,
developing countries will likely have some difficult negotiating ahead of
them. Unfortunately, however, developing countries individually and
collectively have small markets, which severely limits their negotiating
leverage and makes them vulnerable to developed country coercion.5 Is
the way to manage this fundamental obstacle more and better organization among developing countries, as the June 2004 UNCTAD conference seems to suggest? Part III. argues for a qualified “yes” and summarizes some steps that could help developing countries adopt a more
proactive (as opposed to reactive) role in international trade negotiations.
Parts (IV.) and (V.) document and assess a recent, ongoing effort
among developing countries under the auspices of the World Intellectual Property Organization (WIPO) to cooperatively orient the global
intellectual property rights regime in a direction that better favors their
interests. This effort involves TRIPS implementation issues (Part IV.)
and the subject matters of traditional knowledge and genetic resources
(collectively, “non-traditional intellectual property”) (Part V.), and is interesting for several reasons. First, it concerns intellectual property,
which is among the more controversial developed-developing country
international trade issues. It is also one of the most comprehensive acts
of substantive harmonization of regulatory rules in the WTO framework. In addition, WIPO’s work with developing countries on TRIPS
implementation issues tends to confirm many of the characteristics
catalogued in Part III. On the other hand, this typology suggests that
5
It’s sometimes quipped that there’s no such thing as a bad trade agreement,
since all countries should in theory leave the negotiation better off than
when they came. See, e.g., A.L. McDonald, “Organisation and Management of a Complex, International, Economic Negotiation,” World Economy 23 (2000), 199 et seq. But after the Uruguay Round, there is some reason to suspect that it isn’t this simple, as the inclusion of the TRIPS
Agreement probably resulted in a net loss for certain developing countries.
See K. Maskus, Intellectual Property Rights in the Global Economy, 2000.
Developed countries threatened to punish developing countries if they
didn’t sign the deal.
362
Max Planck UNYB 8 (2004)
the prospects for a successful, collective push by developing countries
for including protections for non-traditional intellectual property are
dim, and would be an unwise use of their precious negotiating capital.
Before proceeding, some caveats are in order. WIPO’s work on
TRIPS implementation and non-traditional intellectual property are
still mid-stride, so the story presented in Parts IV. and V. must be regarded as incomplete and preliminary in nature. In addition, this article
makes no strong causal claims between WIPO’s work and specific outcomes at Doha (such as the limited concessions on access to medicines
achieved there). Putting together a stronger causal story of WIPO’s role
in the complicated, contentious politics of intellectual property protection since the close of the Uruguay Round is beyond the scope of this
article.6 Instead, this article has the more modest aim of showing how
institutions, in this case WIPO, can serve as the hub in a network of developing countries that helps them learn more about their options,
build stronger coalitions, and produce specific policy recommendations
that collectively strengthen their ability to resist new trade rules that are
not in their development interests, in light of ongoing research by development economists that challenges the causal relationship of free
trade and institutional harmonization to economic development.
II. International Trade, Institutional Convergence and
Poverty Reduction
In the late 1980s, a sort of development orthodoxy popularly (if
loosely) known as the “Washington Consensus” gained widespread acceptance among mainstream economists.7 It was the culmination of several decades’ worth of critique on what was previously the prevailing
view among development economists, namely that a carefully managed
trade policy had been critical to the impressive economic development
of countries like Japan, South Korea and Taiwan. The policy recom-
6
7
For an attempt to overlay a theoretical structure over this environment, see
L. R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics
of International Intellectual Property Lawmaking”, Yale J. Int’l L. 29
(2004), 1 et seq.
John Williamson is coined for crediting the phrase. See “What Washington
Means by Policy Reform”, in: J. Williamson (ed.), Latin American Adjustment: How Much Has Happened?, 1990.
Grotto, Organizing for Influence
363
mendation associated with the older view was that countries seeking to
develop should likewise adopt trade policies.
Anne Krueger, one of the most influential economists associated
with the “Washington Consensus”, sums its critique of the old view as:
1.) misapplying sound theory; 2.) inferring positive policy proposals
from negative results; and 3.) basing good theory on a series of “stylized
facts and premises.”8 That is, while there has always been basic agreement over the fundamental economic principles that all successful
economies must display, the two camps diverged over which specific
policies developing counties should adopt to promote growth.
A new set of policy recommendations became associated with the
“Washington Consensus”. These recommendations were highly specific
and typically advocated that developing countries adopt more or less
facsimile versions of the policies and institutions of leading capitalist
economies, especially those of the United States (e.g., liberal labor and
capital markets, openness to trade, etc.).9 One set of arguments associated with the “Washington Consensus” is that trade liberalization has
played a strong historical role in the economic development of developed countries such as the United States, that trade liberalization will
cause developing countries to grow faster, and that the particular form
that trade liberalization should take is basically that of the United
States.
Just as the “Washington Consensus” acquired mainstream acceptance in the academy and among economic development professionals,
so did trade liberalization become increasingly politically viable for developing countries in the 1980s, as the political leadership in the developing world interpreted “the export-oriented policy stance taken by the
dynamic economies of South-East Asia, and the collapse of central
planning” as evidence that liberalization, not dirigisme, held the greatest
growth potential.10 In essence, mainstream economics thinking and political will converged to create a powerful force towards trade liberalization and the substantive harmonization of regulatory institutions.
8
9
10
A. Krueger, “Trade Policy and Development: How We Learn”, American
Economic Review 87 (1997), 1 et seq.
For a list, see D. Rodrik, “Growth Strategies” (October 2003), Table 1.
Available at <http://ksghome.harvard.edu/~.drodrik.academic.ksg/growth
strat10.pdf>.
B.M. Hoekman/ M.M. Kostecki, The Political Economy of the World Trading System, 2001, 391.
364
Max Planck UNYB 8 (2004)
The empirical evidence supporting the causal role of trade liberalization in economic development, however, is beginning to thin. The historical record on the relationship between openness to international
trade and the economic development of countries like the United States
strongly suggests that they developed despite a farrago of trade barriers
that would make any strident neoliberal blush.11 And recent econometric estimations of the effects of trade liberalization on economic development are showing an insignificant role for that variable, at best.12
These same studies suggest that the quality of domestic institutions, not
trade (or geography), is a key driver of economic development.13
There are two additional—and important—levels of analysis that
must be carried out if this finding is to aid in the formulation of development strategies. First, the institutional characteristics that are most
relevant to economic development have to be distilled from the incredibly diverse range of institutions out there. Rodrik presents the outline
11
12
13
P. Bairoch, Economics and World History: Myths and Paradoxes, 1995, Part
I.
See, e.g., D. Acemoglu/ S. Johnson/ J. Robinson, “Institutions as the Fundamental Cause of Long-Run Growth,” National Bureau of Economic Research Working Paper No. W10481 (2004); D. Rodrik/ A. Subramanian/ F.
Trebbi, “Institutions Rule: The Primacy of Institutions Over Geography
and Integration in Economic Development,” Journal of Economic Growth
9 (2004), 131 et seq.; R.B. Freeman, “Trade Wars: The Exaggerated Impact
of Trade in Economic Debate,” World Economy 27 (2004), 1 et seq. This
point should not be mistaken as a claim that trade liberalization cannot fuel
growth. See, e.g., A. Subramanian/ Shang-Jin Wei, “The WTO Promotes
Trade, Strongly but Unevenly,” National Bureau of Economic Research
Working Paper No. W10024 (2003). The problem for developing countries
is that in order for trade to fuel growth, their domestic economies and institutions must first meet a host of ideal conditions. Since conditions in
most developing countries are typically far from ideal, trade liberalization
is not the panacea it is sometimes presented as. Cf. Rodrik, see note 9.
R. Hall/ C.I. Jones, “Why do some Countries produce so much more Output per Worker than others?”, Quarterly Journal of Economics (1999), 83 et
seq. (114); Rodrik/ Subramanian/ Trebbi, see note 12; W. Easterly/ R. Levine, “Tropics, Germs, and Crops: How Endowments Influence Economic
Development,” Journal of Monetary Economics 50 (2003), 3 et seq. Citing
these sources, Rodrik is more categorical: “There is now widespread
agreement among economists studying economic growth that institutional
quality holds the key to prevailing patterns of prosperity around the
world;” D. Rodrik, “Getting Institutions Right”, (2004), 1. Available at:
<http://ksghome.harvard.edu/~.drodrik.academic.ksg/ifo-institutions article _April 2004_.pdf>.
Grotto, Organizing for Influence
365
of such a typology.14 Focusing primarily on the impressive economic
development that has taken place in East Asia since World War II, he
suggests that quality institutions operationalize a set of principles that
any effective development strategy must have: fiscal responsibility,
sound monetary policy, prudential regulation, and market-influenced
incentives, including property rights. Second, these findings must then
be transposed into a development strategy for a particular country.
While there is still a considerable amount of research that needs to
be done on this level of analysis,15 there are nonetheless some important, general lessons about how to do this. Two of them are relevant for
purposes of the present discussion. One is that the development strategy must be politically sustainable. This seems obvious, but it is sometimes easy to forget that economic development often entails significant
redistributive consequences, which may threaten the interests of politically important groups. If a strategy is unsustainable or unrealistic, it is
of little practical use. The other lesson is that successful growth strategies tend to operationalize these characteristics in a way that leverages
local opportunities while managing or circumventing local constraints.
As Rodrik puts it, these principles “do [...] not determine the form that
institutional arrangements should or do take … [they] all come institution-free.”16 Quality institutions typically reflect a politically sustainable (though not necessarily fair or just) compromise between the efficiency of an economic policy and its distributive consequences. As
such, successful institutions tend to be homegrown and hence unique to
a particular social context.17 There is no ideal, Platonic institution that
corresponds to any of the basic principles of economic development.
This typology implies a significant critique of the more orthodox
view associated with the “Washington Consensus”: just as the causal
role of trade liberalization relative to other variables in fueling growth
and reducing poverty has come under fire, so has the notion that neoclassical economic principles generate a finite list of template institutions that countries must implement in order to jumpstart growth and
reduce poverty.18 Whereas the orthodox view tends to recommend that
14
15
16
17
18
Rodrik, see note 9.
Rodrik, “Getting Institutions Right,” see note 13.
Rodrik, see note 9.
This isn’t to say that these or any institutions necessarily evolved or were
purposefully created in light of these goals. Rodrik, see note 9.
A broader, and highly accessible critique of the Washington Consensus is J.
Stiglitz, “More Instruments and Broader Goals: Moving Toward the Post-
366
Max Planck UNYB 8 (2004)
developing countries more or less adopt facsimiles of Western institutions, the critique says that countries tend to grow fastest when their institutions are competent, dynamic, and home-grown. If quality institutions tend to be homegrown, and Western-style institutions tend not to
travel well to other contexts, then rules that constrain the freedom of
developing countries to experiment with their institutions may obstruct
developing countries from achieving their growth potential.
Thus, one of the overarching lessons of this critique is that developing countries need space to experiment with their institutions. But the
focus of the multilateral trade negotiations is increasingly oriented towards forging transnational regulatory procedures and substantive rules
that bind freedom to experiment, and not just the lowering of tariff and
non-tariff barriers to trade. The goal of this is to induce a convergence
of regulatory and other economic institutions among participating
countries. The implicit assumption here, however, is that the institutions we are converging towards are in fact the kinds of institutions that
are especially effective at promoting economic growth, or at least better
than the diverse institutions they replace. This assumption, however, is
looking increasingly dubious from an economic development standpoint, and the June 2004 UNCTAD conference strongly suggests that
the political leadership of developing countries have also retaken this
view.
Developing countries need flexibility to experiment with their institutions, but it is that flexibility that positive integration curtails. Meanwhile, the strong causal arguments made on behalf of the growth effects
of international trade are looking more and more doubtful.
This should sound a note of caution for developing countries about
accepting international trade rules that require them to import foreign
institutions. Positive integration may not always be conducive to economic development. Indeed, if it unduly stifles the capacity of developing countries to experiment with their institutions, it might even be
counterproductive. How can developing countries more effectively assert their development interests in international trade negotiations?
Washington Consensus,” 1998 WIDER Annual Lecture, Helsinki, Finland.
Available at: <http://www.globalpolicy.org/socecon/bwi-wto/stig.htm>.
Grotto, Organizing for Influence
367
III. Working Typology of Successful Developing
Country Negotiating Strategies
This Part of the article presents a critical summary of work on the political economy of trade negotiations between the developed and developing world, focusing in particular on how developing countries can
collectively maximize their limited bargaining power.19
Putting aside all pretenses about the Doha Round being primarily
about economic development,20 an important question is whether developing countries can as a practical matter withstand efforts by the
United States, the European Union, Canada and Japan (known as “the
Quad”) to require them to adopt facsimiles of Western institutions. The
TRIPS Agreement, which is arguably the most blatantly unfair feature
of the international trading regime enshrined by the WTO,21 is perhaps
19
20
21
This Part draws heavily on P. Drahos, “When the Weak Bargain with the
Strong: Negotiations in the World Trade Organization”, International
Negotiation 8 (2003), 79 et seq.
I do not mean to imply that trade ministers from wealthy countries are being duplicitous. I mean only to suggest that their primary job is to promote
the interests of domestic producers in their constituencies, and that any
concessions they make to economic development will have been made only
to the extent necessary to secure the agreement of developing countries.
The arguments that were advanced in favor of it are generally weak or simplistic. For example, the argument that IP protection is in the long-term interests of developing countries, almost all of whom are net importers of IP,
is simplistic because many countries are a long way from being able to attract or sustain the types of industries where IP rights are especially important (such as in high-technology fields). Moreover, any benefits a country
might receive from establishing OECD-levels of IP protection must first be
weighed against the tremendous costs associated with implementing and
enforcing a new IP regime, and second against the fact that IP protection
often entails higher prices for inputs, many consumer products, and pharmaceuticals. Hoekman/ Kostecki, see note 10, 290 et seq. The development
benefits of IP vary widely by country, see K. Maskus, “Intellectual Property Rights and Economic Development”, Case W. Res. J. Int’l L. 32
(2000), 471 et seq., and the only allowance that TRIPS makes for this is a
three-tiered implementation phase, where developed, developing, and least
developed countries have different implementation time-tables. The argument that TRIPS must be appraised in light of the overall package of benefits that fell to the developing countries as a result of the Uruguay Round is
also weak. For many developing countries, the rent transfer associated with
TRIPS resulted in a substantial net transfer of rents out of the country,
368
Max Planck UNYB 8 (2004)
the most poignant example of developing countries’ difficulties in resisting determined efforts by “the Quad” to impose Western-style institutions on the developing world. “The Quad”, led by the United States,
strong-armed developing countries into accepting TRIPS by threatening to sanction recalcitrant countries and/or eliminate their Generalized
System of Preferences (GSP) status.22 This was an effective bargaining
strategy for the United States and its economic allies, since during the
1980s developing countries had become increasingly dependant on access to developed countries’ markets.23 In addition, developed countries
made concessions of their own that were intended to sweeten the Uruguay Round deal for developing countries.24 “The Quad” has generally
been slow to implement this component of the bargain, and developing
countries have a difficult time enforcing compliance. In addition, developing countries don’t have the funds and the expertise to play a sustained role in debates over the substance of TRIPS.25
Sell aptly describes the situation facing developing countries:
“With the exception of initial developing country resistance, opposition to TRIPS emerged rather late—after its adoption. This implies
that while TRIPS cannot be “undone” in any direct sense, the fight
over loopholes, alternative interpretations of vague language, and
perhaps, most importantly, effective resistance to further expansion
of global intellectual property rights lie ahead. This suggests some
22
23
24
25
wiping out a considerable degree of the benefits reaped elsewhere in the
Round. Ibid., at 292-293. In addition, developed countries have not fully
implemented their end of the quid pro quo for TRIPS, namely liberalization of their textile and clothing markets.
S. Sell, “Intellectual Property Protection and Antitrust in the Developing
World: Crisis, Coercion, and Choice”, International Organization 49
(1995), 315 et seq.
Sell, see note 22, 324-325.
For an overview, see P. Drahos, “Global Property Rights in Information:
the Story of TRIPS at the GATT”, Prometheus 13 (1995), 6-19. See also
Hoekman/ Kostecki, see note 10, 297-299.
But with the help of NGOs and other civil society actors, they were able to
successfully achieve greater freedom to grant compulsory licenses on
pharmaceutical patents and parallel import generic drugs from other countries. See S. Sell, “TRIPS and the Access to Medicines Campaign”, Wisconsin International Law Journal 20 (2002), 481 et seq. (522); R. Mayne, “The
Global NGO Campaign on Patents and Access to Medicines: An Oxfam
Perspective”, in: P. Drahos/ R. Mayne (eds), Global Intellectual Property
Rights: Knowledge, Access and Development, 2002, 244.
Grotto, Organizing for Influence
369
limits to the type of governance that TRIPS’ architects had in mind,
but it also opens up possibilities for more balanced democratic governance of intellectual property. The deck is still stacked in favor of
a commercial, as opposed to social, agenda …”26
If it is hard for developing countries to push back against proposals
and interpretations by “the Quad” that are not entirely growth-friendly
or effectively enforce WTO rules in their favor,27 then it is doubly hard
for them to adopt a proactive role in actively shaping the international
trade agenda in a more development friendly way.
Drahos identifies four sources of bargaining power in trade negotiations: market power, commercial intelligence networks, coalitionbuilding skills, and the capacity of a negotiator to make binding commitments.28 He suggests that the first two—market power and commercial intelligence networks—are the most important.29 The last one is
irrelevant for present purposes. The importance of market power is obvious: the more dependent an exporting country is on another country’s
market, the greater its interest in guaranteeing access to it, and hence the
greater the negotiating leverage of the importing country. Commercial
intelligence networks are also important because they enable a country
to formulate an accurate assessment of the costs and benefits of a bundle of concessions. Developing countries are weak on both counts: they
have very little market power, and the density of their commercial intelligence networks compared to the United States and other members of
“the Quad” is paltry, since they have nothing like the corporate and
governmental resource base of developed countries. Indeed, many
countries have few or no diplomats at the WTO in Geneva.30
Coalition building skills are an intuitive source of potential bargaining power for developing countries: as the old saying goes, “there is
strength in numbers.” Developing countries make up over two-thirds
of the WTO’s membership, so they certainly have raw numerical
strength on their side. It is also well-documented that developing coun26
27
28
29
30
Sell, see above, 498.
On the other hand, the developing countries have so far managed to fend
off attempts by “the Quad” to introduce labor and environment standards
into the WTO framework.
Drahos, see note 19, 82 et seq.
Drahos, see note 19, 83 et seq.
For an analysis of the problems facing African countries in particular, see
R. Blackhurst/ B. Lyakurwa/ A. Oyejide, “Options for Improving Africa’s
Participation in the WTO,” World Economy 23 (2000), 491 et seq.
370
Max Planck UNYB 8 (2004)
tries tend to fare much better in multilateral WTO negotiations than
they do when they negotiate with developed countries on a bilateral basis. Unfortunately, however, the ability of sheer numbers to compel
fairer trade agreements is limited. “The Quad” economies are so big and
developing countries’ economies are generally so small in comparison
that even a reasonably strong coalition of developing countries would
still have little bargaining leverage.31 In addition, the negotiating norms
and conventions that typically inform multilateral trade negotiations do
not work in developing countries’ favor: the practice of building consensus in GATT and WTO negotiations typically begins by securing
the consensus of the most powerful countries, and then proceeds to
bring ever more countries on board. By the time this effort reaches developing countries, the costs of withholding consent are strong, so developing countries typically just “let the consensus juggernaut roll
on.”32 Finally, developing countries sometimes have different interests
and goals on particular issue areas, which can make it difficult for them
to collectively develop the sort of detailed, specific negotiating strategy
that modern trade negotiations demand or to sustain a common front
when the consensus juggernaut appeals directly to individual countries’
self-interest.
Nevertheless, coalitions among developing countries (and other actors, such as NGOs, international institutions, or more powerful
states), do hold some promise to improve the ability of developing
countries to assert and defend their economic interests. While there is
no substitute for market power, the right kind of coalition can maximally leverage what market share its members do have, enhance its
members’ ability to acquire more and better information about the
costs and benefits of alternative negotiating strategies, and boost the legitimacy of the group’s negotiating positions by demonstrating a broad
consensus over any inherent validity they might enjoy (for instance, a
proposal that accords with conventional economic or moral thinking
will enjoy some inherent validity). At the same time, the coalition
should produce practical, specific proposals and find ways to sustain
cohesion in light of the fact that developing countries are not monolithic—a coalition that tries to be all things for all its members will often
have to sacrifice specificity for consensus.
31
32
For example, the 48 least-developed countries make up only 5 per cent of
world trade. Hoekman/ Kostecki, see note 10, 9.
Drahos, see note 19, 86.
Grotto, Organizing for Influence
371
In their examinations of the Cairns Group of Fair Trading Nations,
an influential coalition of free-trade oriented, highly-competitive agricultural exporters comprised largely of developing countries, Drahos,
Higgot and Cooper, identify several features of relevance to the ability
of developing countries to leverage their numbers and forge a more effective coalition.33 First, there must be a coincidence of self-interest
among the coalition members that is sufficiently robust to generate specific goals and negotiating postures. This requires effective leadership to
keep the coalition fixed on reaching agreement over specific goals while
avoiding a breakdown of the coalition in the process. In the Cairns
Group, Australia and Canada—wealth countries with strong repute in
the international community—were able to bring their considerable
analytic resources to bear on group tasks and use their good offices to
sustain the cohesion of the coalition, help promote strong communications among group members, and facilitate the exchange of information.
The substantive research the coalition produced on the costs and benefits of agricultural protectionism in developed countries also jibed with
current fashions about the benefits of trade liberalization while simultaneously shaming developed countries’ protectionism by documenting
the harm this does to developing countries. Their proposals made good
economic sense, and could be used to generate a strong moral critique
of protectionism by showing how much it hurt people in developing
countries. On the other hand, since the Cairns Group focused exclusively on agriculture, rifts among participating countries over other potentially divisive topics didn’t directly threaten the viability of the
group.34 The access to medicines campaign started in 1996 by NGOs
and developing countries had similar features: effective leadership by
the highly-respected Quaker United Nations Office, an NGO, solid research that rebutted key claims made by opponents of the campaign
and made the costs of inaction difficult to contest, specific policy proposals, and a strong public relations campaign that shamed opponents.35
Finally, the Cairns Group comprises a significant share of the global ag-
33
34
35
Drahos, see note 19, 79; R.A. Higgott/ A.F. Cooper, “Middle Power Leadership and Coalition Building: Australia, the Cairns Group, and the Uruguay Round of Trade Negotiations,” International Organization 44 (1990),
589 et seq.
Drahos, see note 19, 79.
Drahos, see note 19, 94-95.
372
Max Planck UNYB 8 (2004)
ricultural market, leading Higgot and Cooper to call it “a third force in
the context of the GATT negotiations.”36
There is no reason to think that operationalizing these features
would necessarily guarantee developing countries a stronger, more proactive voice in international trade negotiations. They did, however, facilitate the ability of the Cairns Group and the access to medicines
campaign to more effectively assert their interests. As we look ahead to
the Doha Round and beyond, and behind to see how ineffective developing countries have been in asserting their interests, it should be clear
that developing countries face an uphill battle. The more we learn about
what sort of arrangements, including institutional ones, best facilitate
their capacity to effectively negotiate, the better the chances that the
Doha Round produces development-friendly agreements.
The next two sections document and assess WIPO’s role in helping
developing countries more effectively assert their interests along two
dimensions. The first dimension pertains to the considerable implementation challenges that TRIPS posed to many developing countries.37
WIPO was tasked with helping developing countries implement their
TRIPS obligations, and has served as a forum for them to develop a
stronger, more cohesive voice over implementation challenges. The
characteristics of this effort confirm the many features of the typology
described above. The second dimension, considered in Part V., is serving as a forum, organizing partner and source of technical assistance for
developing countries striving to develop domestic legal frameworks for
establishing and protecting non-traditional intellectual property rights.
IV. WIPO, Developing Countries and Intellectual
Property
WIPO’s role in the international trade regime is unique. It is a specialized United Nations agency with a mission to afford the development
of intellectual property rights. It is not part of the formal WTO institutional framework, though it is the host institution for most pre-TRIPS
36
37
As Drahos points out, however, in the Uruguay Round “domestic market
power was not the fundamental source of the Cairns Group’s success”;
Drahos, see note 19, 92.
For an overview of these challenges, see Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development
Policy: Report of the Commission on Intellectual Property Rights, 2002, 137.
Grotto, Organizing for Influence
373
intellectual property treaties. In 1995 WIPO and the WTO signed the
“WTO-WIPO Agreement,” whereby WIPO accepted the bulk of the
responsibility for providing technical expertise and assistance to developing countries seeking to make their laws TRIPS-compliant.38 Though
WIPO does not directly and formally advocate on behalf of developing
countries, this arrangement effectively made WIPO the institutional
hub and sounding board for developing countries’ concerns about the
TRIPS Agreement. It also situated WIPO as an interlocutor between
developing countries and developed countries.
In this capacity, WIPO has organized a lengthy series of regional
symposiums for developing countries on the implementation of the
TRIPS Agreement beginning in 1996, shortly after the WTO-WIPO
Agreement entered into force.39 WIPO held them in locations that are
easier for developing countries’ representatives to attend than Geneva.
WIPO also paid many participants’ travel costs. These events were an
important vehicle by which developing countries compared and shared
their experiences over the implementation of TRIPS. Signs of disappointment among developing countries over the perceived fairness of
TRIPS and the daunting implementation challenges that lie before them
emerged early on in these symposia. WIPO also commissioned several
studies on the implications of the TRIPS Agreement for developing
countries. These and other studies poignantly identified the costs developing countries faced in building the institutional capacity needed to
ensure that their intellectual property rights regimes satisfied the
OECD-level standards set forth in the TRIPS Agreement.40
38
39
40
See WTO-WIPO Agreement, article 4, entered into force 1 January 1996,
available at: <www.wipo.org>. In October of 1995, the WIPO General Assembly made it clear that WIPO would be responsible for “respond[ing] to
requests from developing countries to WIPO for legal and technical assistance relating to the TRIPS Agreement.” The two organizations strengthened WIPO’s role as an intermediary between developing countries and the
TRIPS Agreement in 1998 with additional technical cooperation. See
PRESS/108 of 21 July 1998, “WTO and WIPO join forces to help developing countries meet year-2000 commitments on intellectual property,” available at: <http://www.wto.org/english/news_e/pres98_e/pr108_e.htm>.
Governing Bodies of WIPO and the Unions Administered by WIPO,
Thirty-First Series of Meetings Geneva, 22 September to 1 October 1997;
Overview of Activities and Developments in the Year 1996 and the First
Half of the Year 1997, Doc. AB/XXXI/6 of 31 July 1997.
Cf., e.g., Maskus, see note 5.
374
Max Planck UNYB 8 (2004)
While significant implementation challenges lie ahead—especially
for least-developed countries—WIPO’s work should be regarded as a
preliminary success, as it helped these countries learn more about the
implementation obstacles they faced, how to overcome them, and the
costs associated with implementing a TRIPS-compliant regime. 41
WIPO helped developing countries better understand just how costly
the TRIPS Agreement is, at least in the short-run, and appears to be the
first sustained effort to study and address the relationship between international trade and economic development in an organized, collective
forum comprised of a broad cross-section of developing countries.
These efforts owe their success to several factors. These factors confirm
the importance of many of the criteria identified in Part III. as relevant
to active developing country participation in the international trade regime.
First and probably foremost, the fact that developing countries generally faced high implementation costs furnished a common ground for
them to begin to think more systematically about the relationship between intellectual property as it relates to international trade and economic development. WIPO, for its part, had experience with IP issues
of concern to developing countries, so it made sense to make it a key interface between developing countries and the WTO on matters pertaining to intellectual property. Since its inception in the mid-1970s, WIPO
has helped developing countries to develop indigenous intellectual
property regimes. Intellectual Property did not become an international
trade issue in the context of GATT/WTO until the TRIPS Agreement,
and so WIPO’s developing country initiatives prior to then were focused entirely on economic development and not on the institutional
convergence required by TRIPS.42
41
42
It would be inappropriate to attribute any failure on the part of certain developing countries to implement their TRIPS obligations to a failure on
WIPO’s part; WIPO can’t make countries implement their obligations, nor
is it in a position to provide substantial funding for countries’ implementation efforts.
During this time, for example, WIPO and UNESCO jointly produced
“Model Provisions for National Laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions,” which
emphasize the cultural rights and human rights elements of folklore, and
not the Anglo-American utilitarian justification for intellectual property
protection that dominates mainstream international intellectual property
discourse. See in this respect UNESCO/WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Grotto, Organizing for Influence
375
This initiative was aimed at helping developing countries to develop
a capacity for safeguarding their folklore against exploitation by Intellectual Property producers in developed countries, which had defended
their appropriation of folklore by claiming that this material did not
qualify for copyright or other protection on the basis of it not being either new or creative, i.e. failing the utility test that underpins most Intellectual Property regimes.43 To cite another example, when the Convention on Biological Diversity called for the creation of a benefitsharing and sustainable development scheme to manage international
trade in genetic resources, WIPO took the lead and developed model
material transfer agreements, and situated itself as the leading forum for
hosting consultations on this topic.44 WIPO also accepted a commission from UNEP to undertake a study, entitled “Biological Diversity
and Biotechnology,” which examined the “links between intellectual
property aspects of biotechnology and the conservation, use, and benefit-sharing of biological resources” in light of the Convention on Biological Diversity.45
Moreover, WIPO effectively organized an intelligence network for
developing countries on the distributive consequences of the TRIPS
Agreement and the relationship between TRIPS and economic development more broadly, with itself as a hub in that network. The empirical record that WIPO helped to create on the probable distributive consequences and the implementation costs of TRIPS furnished developing
countries with an ethical platform from which to critique developed
countries’ foot-dragging on implementing their commitments on such
things as agriculture and textiles. WIPO did not engage in advocacy on
behalf of its constituents in the same way that the Cairns Group or participants in the access to medicines campaign did. Instead, it facilitated
the beginnings of an effective coalition among developing countries on
intellectual property—an important step towards the more proactive
role that they must take in the future if they are to ensure that trade
rules are in their development interests. Such an effort was certainly ab-
43
44
45
Exploitation and Other Prejudicial Actions (1982), available at:
<http://users.ox.ac.uk/~wgtrr/modprovs.htm>.
Under the dominant United States paradigm of intellectual property, IP
rights are granted to ensure a socially optimal level of IP production.
Other specialized UN agencies, such as the UNDP also took a leading role,
in consultation with WIPO.
Main Program 11, “Global Intellectual Property Issues,” Doc.
A/32/2WO/BC/18/2, <http://www.wipo.int/eng/document/govbody/wo_
gb_ab/pdf/prg11.pdf>
Max Planck UNYB 8 (2004)
376
sent during the Uruguay Round, where developing countries failed to
organize a robust coalition against including intellectual property in the
WTO framework. Some have suggested that if developing countries had
better understood the distributive consequences of TRIPS and the costs
of implementing it, they would have collectively resisted the Agreement
far more strenuously, and possibly extracted more concessions from
proponents of TRIPS. While we can only speculate whether developing
countries would have been able to successfully prevent intellectual
property from being made subject to WTO discipline even if they had
fully grasped what they were getting into, WIPO’s work has undoubtedly helped them better understand the distributive consequences and
implementation costs of TRIPS ex ante, while enabling them to develop
a clearer, more cohesive sense of common purpose and interest. As the
next Part describes, WIPO also helped enable developing countries to
more effectively raise the issue of non-traditional intellectual property
rights as a trade issue, an area developed countries have no interest in
subjecting to WTO discipline.
V. WIPO and Non-Traditional Intellectual Property
Rights
There is no generally accepted definition for which forms of knowledge
or resources would or should enjoy protection under a non-traditional
intellectual property rights regime. Here, traditional knowledge shall
refer to genetic resources, folklore and folk wisdom. Rights granted and
duties imposed might include inter alia disclosure requirements on the
geographic origin of genetic resources, or the right to collect fees for using the knowledge and block the exploitation or misappropriation of
the knowledge. The Doha Ministerial Declaration in 2001 directed the
TRIPS Council to “examine” the relationship between TRIPS and nontraditional intellectual property rights.46 While this is far from a guarantee that non-traditional intellectual property rights will be added to a
future WTO bargain, it nonetheless merits attention because attempts
by developing countries acquired no traction in the Uruguay Round
negotiations. Now, however, non-traditional intellectual property rights
are being formally explored and discussed in the WTO with some
eye—at least among many developing countries—towards a possible
role in the WTO system.
46
Para. 19 of the Doha Ministerial Declaration.
Grotto, Organizing for Influence
377
As we shall see below, WIPO has helped developing countries insert
TRIPS into the more mainstream (at least from OECD country’s viewpoint) debates over trade and Intellectual Property for two reasons.
First, as in its work on TRIPS implementation issues, WIPO facilitated
the emergence of a more effective coalition of developing countries
seeking to introduce non-traditional intellectual property rights into
debates over trade and intellectual property. Second, it helped developing countries collapse the distinction between trade/non-trade, developed/developing country intellectual property issues. Successfully raising an interest, however, is a long way from seeing that interest implemented. The remainder of the section shall then explore the prospects
for success in this endeavor.
As WIPO fulfilled its mandate to assist developing countries in the
implementation of the TRIPS Agreement, it also continued to pursue
various programs and initiatives designed to advance the development
of intellectual property rights outside the immediate context of TRIPS
and international trade. These programs focused on a variety of issues,
which tend to separate out into issue areas dominated by developed
countries on the one hand (e.g., internet domain names, biotechnology
and patents, database protection), and topics of concern for developing
countries on the other hand (e.g., the work of the Permanent Committee on Cooperation for Development Related to Intellectual Property).
Until the Uruguay Round, this was a familiar pattern in WIPO programming because developing countries typically had little interest in
mimicking the Intellectual Property regimes of the developed world. As
a result, WIPO programs were generally segregated along developed/developing country lines.
WIPO’s programming on institutional and legal frameworks for
protecting traditional knowledge, which as we saw earlier dates back to
the early days of the agency, fit this description. This work greatly expanded in the late 1990s, however, as domestic and international efforts
to develop legal regimes for protecting traditional knowledge intensified. The genesis of this expansion is interesting because elements of it
seem to have emerged out of a series of consultative committees that
pertained primarily to topics of concern for developed countries. In
1998, WIPO members created several Standing Committees comprised
of governmental representatives from mostly OECD countries to discuss emerging Intellectual Property issues.47 The overwhelming bulk of
47
For a description of the activities of the Standing Committee for the Law
of Patent, the Standing Committee for the Law of Trademark, Industrial
378
Max Planck UNYB 8 (2004)
these Committees’ agendas involve emerging Intellectual Property issues that are of special interest to developed countries. Nevertheless, it
was during the meetings of these Committees that the movement towards a specialized discourse on non-traditional intellectual property
rights under the auspices of WIPO acquired real momentum. The relationship of biotechnology, patent and non-traditional intellectual property rights first arose at the Third Session (6-14 September 1999) of the
Standing Committee on the Law of Patents (SCP). In response to organized pressure from developing countries, the SCP recommended
that the Working Group on Biotechnology pursue a more ambitious
multilateral discussion program that would include the relationship of
non-traditional intellectual property rights to biotechnology patent
protection.48
The Working Group accepted the SCP’s suggestion, and included in
its general survey of Member States’ practices regarding the protection
of biotechnology inventions a series of queries about biotechnology
and traditional knowledge relating to the use of genetic resources.49 The
SCP further recommended that WIPO organizes a specialized “Meeting
on Intellectual Property and Genetic Resources,”50 which ultimately
took place on 17-18 April 2000.51 The Chairman’s Report from that
meeting concluded that WIPO should create a specialized forum for
discussing these issues.52 The subject of genetic resources also emerged
at the 11 May to 2 June 2000 Diplomatic Conference for the Adoption
of the Patent Law Treaty, with the consensus policy statement produced at the end of the Conference calling for continued discussions of
48
49
50
51
52
Designs and Geographical Indications, and the Advisory Committee on the
Enforcement of Industrial Property Rights, see <http://www.wipo.org/
activities/en/index.html?wipo_content_frame=/activities/en/development_
iplaw.html>. See <http://www.wipo.org/copyright/en/index.html> for information relating to the Standing Committee on Copyright and Related
Rights.
See Doc. SCP/3/11, para. 208.
WIPO General Assembly, “Matters Concerning Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore,” Doc.
WO/GA/26/6, page 2. See also “WIPO Member States Discuss Intellectual
Property and Genetic Resource Issues” (19 April 2000). Available at:
<http://www.wipo.int/pressroom/en/updates/2000/upd96.htm>.
See note 47.
Doc. WO/GA/26/6, para. 7.
Doc. WO/GA/26/6, para. 7.
Grotto, Organizing for Influence
379
genetic resources at WIPO.53 Developing countries used a forum principally of, by and for developed countries as a launch-pad for creating a
forum more closely attuned to their interests. WIPO provided developing countries with a structure that lowered the costs of organizing.
At the same time as discussions on genetic resources were taking
place, WIPO initiated consultations on other non-traditional intellectual property rights. In 1998, WIPO sponsored, in collaboration with
the United Nations High Commissioner for Human Rights, a “Panel
discussion on Intellectual Property and Human Rights.”54 WIPO also
hosted in 1998 a “Roundtable on Intellectual Property and Indigenous
Peoples”.55 In 1999 WIPO sponsored a series of Regional Consultations for developing countries on the protection of folklore in collaboration with UNESCO. Like the Regional Symposia, these consultations
also involved WIPO going to the developing countries, as opposed to
the developing countries traveling to WIPO, to share national experiences about protecting traditional knowledge, develop a common body
of expertise on the topic,56 and otherwise help developing countries
build a legal and institutional capacity for protecting traditional knowledge.
Here, as in its work on TRIPS implementation issues, WIPO served
as a forum and facilitator for developing countries to consolidate a
more cohesive position. This enabled developing countries to collectively assert their interests more effectively. By facilitating the exchange
of information among participating countries and hosting consultative
and education workshops, WIPO also helped them acquire technical
expertise about traditional knowledge and ways to protect it that would
otherwise have been very expensive to obtain. In essence, WIPO lowered the costs of organizing and information gathering. Moreover, the
fact that WIPO’s programs on non-traditional intellectual property
rights—and implementation of TRIPS, for that matter—are limited to
53
54
55
56
Doc. WO/GA/26/6, para 9.
Available at: <http://www.wipo.int/globalissues/activities/1998/human
rights/index.html> for an index to the documents produced for and by this
event.
For an index to the documents produced by this event, see <http://www.
wipo.int/eng/meetings/1998/indip/index.htm>.
See, for example, WIPO, “Intellectual Property Needs and Expectations
of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions 1998-1999,” see under <http://www.wipo.int/tk/en/tk/ffm/report/
index.html>.
380
Max Planck UNYB 8 (2004)
intellectual property matters means that other issues do not distract or
undermine developing countries’ cooperation and consultations.
Developing countries have succeeded in raising the issue of nontraditional intellectual property rights in the WTO, but what are the
prospects for putting the protection of traditional knowledge on the
negotiating table as the Doha Round moves forward? To the extent developing countries want non-traditional intellectual property rights enshrined as a WTO discipline, they are highly unlikely to succeed. Consider again the general typology elaborated in Part II. above for leveraging developing countries’ strength in numbers into greater influence:
significant market share, a commercial intelligence network, strong
leadership, mechanisms for building coalitions, and coherence with
generally accepted principles of economics or morality. Significant market share, as was suggested, is most important because it is most directly
relevant to the concrete stakes of the negotiations—namely market access—but also the one where developing countries are typically weakest. Non-traditional intellectual property rights imply a fairly straightforward rent transfer from developed countries, which currently pay
nothing for traditional knowledge, to developing countries, which are
typically the source of this knowledge and would presumably now have
enforceable ownership rights in it. In addition, it would require developed countries to institute sui generis protection for traditional knowledge. Implementation costs for “the Quad”—who presently have no serious efforts underway to create rights in traditional knowledge—could
be high. The rent transfer associated with non-traditional intellectual
property rights would be intensely transparent, and some of the most
powerful conceptual arguments behind granting rights in traditional
knowledge involve environmental and cultural preservation and dignity
issues that do not fit neatly into the more utilitarian, Anglo-American
framework that dominates conventional thinking about IP. Thus, the
granting of strong, sui generis, rights in traditional knowledge would
entail a fairly radical departure from conventional thinking in OECD
countries—especially the United States—about the role and purpose of
intellectual property. In sum, the price for getting “the Quad” to agree
to international rules on traditional knowledge would be very high and
require developing countries to make costly concessions on other topics.57
57
In light of how costly the protection of traditional knowledge would be to
developed countries, the price may be so high that developing countries
simply couldn’t afford them even if they were willing to pay whatever it
Grotto, Organizing for Influence
381
In closing, it is important to note that the pursuit of an international
regime for non-traditional intellectual property rights may not be in all
developing countries interests. As we saw in Part II., we cannot assume
that uniform, international rules are necessarily in any particular developing country’s best development interests. For example, not all developing countries have significant traditional knowledge resource bases,
and enforceable rights in some forms of traditional knowledge—such as
genetic resources—could raise the costs of many important goods, such
as pharmaceuticals. In addition, international rules would impose implementation costs on those countries that do not have non-traditional
intellectual property rights regimes that are up to whatever international standards are set. Traditional knowledge-rich countries can always build domestic non-traditional intellectual property rights regimes, and use that regimes to uphold the dignity of cultural traditions
and protect against their exploitation, or to exact rents from would-be
users of the countries traditional knowledge resources. With the help of
WIPO, they might well succeed.
Finally, there are also reasons to think that WIPO’s ability to serve
as an honest broker between developed and developing countries on IP
issues is limited. WIPO’s raison d’etre is to promote intellectual property rights, and most of the interesting and lucrative issues relating to
intellectual property pertain to topics of principal interest to developed
countries. In addition, WIPO receives 85 per cent of its revenues from
the Patent Cooperation Treaty, a treaty heavily relied upon by pharmaceutical companies, biotech firms, and other important constituencies
for developed countries, and is firmly behind the Substantive Patent
Law Treaty deliberations.58 These moral hazards could hamper WIPO’s
ability to be an effective source of assistance to developing countries
and an honest broker between developing and developed countries.
VI. Conclusion
Looking ahead at the issues that are currently on the table at Doha,
many of the most intensely felt interests of developed countries involve
58
takes. For more on the question of which subjects should be included in
the WTO framework, see H. Hestermeyer, “The Language of Trade Linkage: Lessons for the Singapore Issues Learned From Trips”, unpublished
manuscript on file with author.
Sell, see note 25, 519.
382
Max Planck UNYB 8 (2004)
positive integration and greater institutional convergence: labor and environment standards, competition policy, investment, procurement and
trade facilitation. Without passing judgment on any of these in particular, what is clear is that recent economics research on the relationship
between trade and economic development on the one hand, and the role
and successful characteristics of domestic institutions on the other
hand, counsels that a greater burden of proof be put on those who advocate institutional convergence under the guise of promoting economic development. The question explored here has been how developing countries can resist this pressure, or at least ensure that it not run
counter to their economic growth strategies, given their inherently
weak bargaining position as a result of having small markets.
Scholars have identified several important characteristics of the type
of cooperation that seems most likely to result in greater negotiating
leverage for developing countries. WIPO’s work with developing countries on TRIPS implementation tends to confirm many of these characteristics. Compared to ten years ago, developing countries appear to be
far better organized and better versed on intellectual property issues.
WIPO facilitated the ability of developing countries to organize into a
more formidable coalition of TRIPS-skeptics by facilitating the exchange of national experiences with Intellectual Property and helping
developing countries develop a clearer picture about the scope of their
obligations. On the other hand, the future of non-traditional intellectual property rights as an international trade issue is dim.
Old Laws, New Wars: Jus ad Bellum in an Age of
Terrorism
William K. Lietzau*
I.
Introduction
II. The Basics: The U.N. Charter and Jus ad Bellum prior to 9/11
III. Operation Enduring Freedom
1. Anticipatory Self-Defense
2. Reprisal
3. State Responsibility and Vicarious Liability
4. Toward a New Concept for Self-Defense—Additional Factors
IV. Operation Iraqi Freedom
1. Legal Authority for Operation Iraqi Freedom—the Technical
Argument
2. Operation Iraqi Freedom and Self-Defense
V.
The U.S. 2002 National Security Strategy and the Preemption Doctrine
VI. Humanitarian Interventions
VII. Moving Forward
VIII. Conclusion
*
The remarks contained herein are personal reflections and do not necessarily represent the position of the U.S. Marine Corps, the Department of Defense, or the U.S. Government. I am grateful for the advice and assistance
of Professor Harvey Rishikof, National War College.
Max Planck UNYB 8 (2004)
384
I. Introduction
At 8:46 on the morning of 11 September 2001, a handful of terrorists
propelled the globe into an era of profound change. The immediate and
palpable consequence of Al Qaeda’s attack—the deaths of thousands of
innocent civilians and the immutable gash in the skyline of the United
States’ most populous city1—is relatively transient compared to the
consequences of the response to 9/11. Whether or not recognized, acknowledged, or asserted, 9/11 and the response thereto brought forth a
nascent legal regime that will alter the way nation states apply the rule
of law in combating terrorism. While Usama bin Laden affected countless lives in the most primitive and horrific fashion, the United States
and its allies, in responding, is effecting a metamorphosis of the legal
landscape that structures our society and the relationships between
states. Although Al Qaeda’s attacks have affected profoundly the
world’s physical landscapes, the armed response is affecting the international legal regime to a degree evoking the eras of post-Westphalian
1
See, e.g., “Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit
Pentagon; Hundreds Dead”, Washington Post, 12 September 2001, A1; E.
Lipton, “Struggle to Tally All 9/11 Dead by Anniversary”, N.Y. Times, 11
September 2002, 1 (The final World Trade center death toll will drop no
lower than about 2.750, not including the 10 hijackers. Counting the 233
killed in Washington and Pennsylvania, it will remain the second-bloodiest
day in United States history, behind the battle of Antietam in the Civil
War). The dead include citizens of more than 90 countries. A City of New
York Office of the Comptroller estimated the overall economic loss to
New York City resulting from the 9/11 attacks as totaling between US$
82.8 and US$ 94.8 billion dollars. See <http://www.comptroller.nyc.gov/
bureaus/bud/reports/impact-9-11-year-later.pdf>.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
385
peace2 and the new world order emerging from the chaos of World War
II.3
Over the past several years, the United States Government has faced
the challenge of attempting to apply the existing laws of war to a global
war on terrorism. In so doing, it perhaps has come better to appreciate
the truth in Hersch Lauterpacht’s remark that “ ... if international law
is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international
law.”4 Given our recent experience, one could add to Lauterpacht’s assessment the observation that if the law of war is at the vanishing point
of international law, then the war with Al Qaeda, and more broadly, the
2
3
4
Treaty of Westphalia, Peace Treaty between the Holy Roman Emperor and
the King of France and their Respective Allies, 24 October 1648, available
at: <http://www.yale.edu/lawweb/avalon/westphal.htm>. Ending the
Eighty Years’ War between Spain and the Dutch, and the German phase of
the Thirty Years’ War, the Peace of Westphalia recognized the full territorial sovereignty of the Member States of the Holy Roman Empire, rendering the princes of the empire absolute sovereigns in their own dominions.
See Encyclopaedia Britannica, 2002, DVD.
In 1945, World War II having drawn to an end, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United
States at Dumbarton Oaks, United States in August-October 1944. The
Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, later signed the
Charter and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter
had been ratified by China, France, the Soviet Union, the United Kingdom,
the United States and a majority of other signatories. The creation of the
United Nations is widely recognized as one of the most important events
of the post-World War II period. That the delegates were influenced substantially by the war is reflected in the preamble to the U.N. Charter,
which provides: “We the peoples of the United Nations determined to save
succeeding generations from the scourge of war, which twice in our lifetime
has brought untold sorrow to mankind ... ”. The fundamental purpose of
the Charter is the maintenance of international peace and security (Article
1 (1) U.N. Charter). See R.B. Russell, A history of the United Nations
Charter – the Role of the United States 1940 – 1945, 1958, 964, providing
an in-depth description of the formation of the Charter.
See H. Lauterpacht, “The Problem of the Revision of the Law of War”,
BYIL 29 (1952), 360 et seq. (382).
386
Max Planck UNYB 8 (2004)
global war on terrorism, raise issues that are at the vanishing point of
the law of war. This is a new war not envisioned by the soldiers and
statesmen comprising the authors of the present-day law of war.
On 10 February 2003, Professor Rüdiger Wolfrum,5 in his remarks
opening the Max Planck Institute conference on differing American and
European perceptions of international law, stated that international law
was in “transition.” Correctly recognizing a profoundly changed global
situation, he referred to a “reformulation” of self-defense concepts in
order to meet concerns regarding the “legitimacy” of the use of force.6
Indeed, law and policy associated with the employment of the military
instrument arguably already have shifted dramatically in the post-9/11
era—ushering in new, enhanced acceptance of the use of military force
to counter terrorism. The ramifications extend far beyond those immediately recognized by most legal observers. The impact can be seen in
both jus in bello and the more controversial realm of jus ad bellum. This
article addresses the latter.
Pressured by circumstances that seem to have evolved more substantially than, and well in advance of, the attendant legal norms, we find
ourselves today in a situation where military force has been used in
controversial ways that highlight, in magnitude unprecedented, the legal
and policy differences that separate the international community.7 To a
large extent, these differences can be explained and perhaps even minimized by identifying legal themes that animate various concepts of jus
ad bellum and analyzing recent state practice to assess its impact on
those themes.
5
6
7
Professor R. Wolfrum serves as Director of the Max Planck Institute for
Comparative Public Law and International Law, Heidelberg, Germany.
R. Wolfrum, Introductory Remarks at the Max Planck Institute for Comparative Public Law and International Law—Conference on the American/European Dialogue: Different Perceptions of International Law?,
ZaöRV 64 (2004), 255 et seq.
See, e.g., J. Chirac, “Iraq War Illegal”, United Press International, 21 March
2003: “French President Jacques Chirac on Friday said the U.S.-led war
against Iraq was illegal. Speaking at a EU Summit in Brussels, Chirac
threatened to veto a resolution handing control of the post-war reconstruction of the country to the United Nations”; D.A. Spritzer, “CSSD Declares
Iraq War is Illegal”, Prague Post, 2 April 2003: “Fist pounding, whistling,
and hot tempers characterized the March 30 Social democratic (CSSD) debate over Iraq, which yielded a resolution that condemns the U.S.-led
war”; J.L. Tan, “Iraq War Was Illegal, Blix Says”, Press Assn., 5 March 2004.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
387
To this end, this article reviews three significant United States
actions responding or related to the terrorist attack of 9/11: Operation
Enduring Freedom, Operation Iraqi Freedom, and the publication of
the 2002 National Security Strategy. With respect to the underlying law,
the focus will be on three major concepts: anticipatory self-defense, belligerent reprisal, and state responsibility. The article concludes by proffering a factor-based model to measure degrees of legitimacy in post9/11 uses of military force.
II. The Basics: The U.N. Charter and Jus ad Bellum prior
to 9/11
The significance of recent developments can be appreciated best only
after a brief review of the state of the law that carried us to those penultimate moments of 9/11. Already, the law governing the use of force
had long been a controversial topic—that controversy being a consequence of the pairing of the most recent black-letter articulation of jus
ad bellum, found in the U.N. Charter, and the circumstances arising in
the years immediately following the Charter’s adoption that challenged
directly those concepts to which the nations of the world had so readily
acceded.
The norms applicable to a decision to make war were perhaps the
earliest to be known as international law. First labeled jus gentium,
Dominican Francisco de Vitoria made his mark on the law of war with
the 1532 work, The Law of War Made by the Spaniards on the Barbarians,8 and the Italian, Albericus Gentilis, followed in 1598 with Three
Books on the Law of War.9 The approach common to both unified in
one body of law those doctrines that later would be divided into jus in
bello and jus ad bellum by the generally accepted “father of international law,” Hugo Grotius.10 Grotius’ De Jure Belli ac Pacis, first published in 1625 is the classic rendition of “just war” theory—the doctrine
8
9
10
G. von Glahn, Law Among Nations: An Introduction to Public International Law, 3rd edition, 1976, 38.
Ibid.
H. Lauterpacht, Oppenheim’s International Law: A Treatise, Vol. 1, Peace,
8th edition, 1955, 91-94; A. Nussbaum, A Concise History of the Law of
Nations, 1954, 102-114.
388
Max Planck UNYB 8 (2004)
that accords some wars legal (and moral) justification, while condemning others.11
The “just war” doctrine, now reemerging, was muted in the 20th
century as those aspects originating in Hobbesian natural law concepts
(jus naturale) gave way to the more easily cognizable positivist mechanism of treaties.12 The Kellogg-Briand Pact of 1928 specifically renounced the conduct of hostilities as a means of resolving international
disputes.13 This aspiration, though obviously short-lived in practice and
ineffective in application, was essentially recaptured in the Charter of
the United Nations. The U.N. Charter expresses, in directive terms
binding on its members—an extremely wide constituency14—what
many believe to be the lone authoritative codification of the law on the
use of force. Pursuant to Article 2 (4) of the Charter, “[a]ll Members
shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the
United Nations.”15
Clearly, the preeminent goal of the San Francisco Convention that
produced the U.N. Charter was to develop and deliver a regime for
preventing and responding to international violence and to bind Member States to that regime. Consistent with the Charter’s jus ad bellum
concepts, member nations must settle their international disputes by
peaceful means so as not to endanger international peace and security16
and refrain from the threat or use of force against other states.17
Under the U.N. Charter paradigm, there are only two instances
when force may be used lawfully: when authorized by the Security
Council under Chapter VII of the Charter,18 and in self-defense.19 Arti-
11
12
13
14
15
16
17
18
See generally M. Walter, Just and Unjust Wars, 1977.
Ibid.
See article 1 of the Kellogg-Briand Pact of 27 August 1928, LNTS Vol. 94
No. 2137.
191 nations are Members of the United Nations.
Article 2 (4) U.N. Charter.
Article 2 (3) U.N. Charter.
Article 2 (4) U.N. Charter.
Article 42 U.N. Charter providing: “Should the Security Council consider
that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces
as may be necessary to maintain or restore international peace and security.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
389
cle 39 of the Charter provides that “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act
of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security.”20 If all measures not involving
the use of armed force are inadequate, the Security Council may take
military actions as may be necessary.21
Though its drafters may have envisaged a more active role for the
Security Council and undoubtedly favored United Nations sanctioned
collective action over independent acts in self-defense, it is Article 51
and its recognition of an “inherent right of ... self-defense” that, since
the Charter’s adoption in 1945, has been invoked most frequently in
justifying international uses of force.22
Despite the recognition of this inherent right of self-defense, force
was to be used only as a necessary last resort. The collective security as-
19
20
21
22
Such action may include demonstrations, blockade, and other operations
by air, sea, or land forces of Members of the United Nations.”
In its entirety, Article 51 U.N. Charter reads: “Nothing in the present
Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of
this right of self-defense shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international
peace and security.”
Article 39 U.N. Charter.
Article 42 U.N. Charter.
For example, the United States invoked Article 51 U.N. Charter to justify
the US invasion of Panama, see “Excerpts from Statement by Baker on U.S.
Policy”, N.Y. Times, 21 December 1989, A9, and to justify air strikes
against Libya in 1986, see M.N. Leich, “Contemporary Practice of the
United States Relating to International Law”, AJIL 80 (1986), 612 et seq.
(632). The United Kingdom invoked Article 51 U.N. Charter to justify
military action against Argentina in the Falklands dispute, see D.E.
Acevedo, “The U.S. Measures Against Argentina Resulting from the
Malvinas Conflict”, AJIL 78 (1984), 323 et seq. (324). Israel claimed selfdefense to justify attacks against terrorist organizations based in Jordan and
Lebanon, and the Soviet Union did so to justify intervention in Afghanistan in 1979, see O. Schachter, “Self-Defense and the Rule of Law”, AJIL
83 (1989), 259 et seq. (263 note 23).
390
Max Planck UNYB 8 (2004)
pects of Security Council authority were designed to be sufficient to
meet most needs for self-defense; national use of force consistent with
Article 51 was permitted to meet a nation’s extreme need in the shortterm—only until the Security Council could act.23 History has mocked
this theory, however; the five-decade Cold War effectively eviscerated
perceptions of the Security Council as a credible deterrent.24 The unrealistic aspirations pinned on the Security Council by the Charter, coupled with the unanticipated complexities of international relations following World War II, necessitated rejecting a strict interpretation of the
parameters of Article 51. Although the principle that there exists an
“inherent right of ... self-defense” has not changed, modern expressions
and applications of that right. Article 51 has been relied on to justify
most appropriate uses of force post-1945,—as well as to rationalize
those not so inappropriate.25
Fair analysis and thorough historical review demand a recognition
that, as is the case with aspects of any number of international agreements, the negotiation of the U.N. Charter was marked by a lack of
consensus on important concepts associated with self-defense.26 At one
end of the spectrum, certain states wanted no recognition of selfdefense as an exception to the general prohibition on the use of force.
At the other extreme, some states were unwilling to forfeit their customary sovereign right to self-defense on the basis of an intangible and
untried hope that the proposed collective security arrangement would
obviate the need for such.27 The “internationalists” of the mid-20th
23
24
25
26
27
Article 51 U.N. Charter.
B. Simma (ed.), The Charter of the United Nations: A Commentary, 1994,
13-18.
Ibid., 663: “As the system of collective security has been of little practical
significance, (...) international legal practice since 1945, contrary to the intentions of the authors of the Charter, has continued to be determined by
unilateral use of force by states. (...) The right of self defense laid down in
Art. 51 of the U.N. Charter, being the only exception to the prohibition of
force of practical significance, has therefore become the pivotal point upon
which disputes concerning the lawfulness of the use of force in inter-state
relations usually concentrate.”
See T. Kearly, “Regulation of Preventive and Preemptive Force in the
United Nations Charter: A Search for Original Intent”, Wyoming Law Review 3 (2003), 663 et seq.
Simma, see note 24, 678: “Though the founding members of the UN had at
first waived the broad concept of self-defense by adopting Art. 51, subse-
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
391
century decried the U.S. insistence on a broad recognition of selfdefense.28 In hindsight, of course, we find prescience in those who represented the United States in San Francisco.
As is to be expected in complex international negotiations in which
consensus is the desired outcome, in 1945, nations walked away from
the negotiating table with differing concepts of Article 51.29 While state
practice has by no means sided with the most conservative interpretations of Article 51, that practice also has failed to yield a conceptual
framework unattended by controversy. Schema grounded in the flexibility of Article 51’s language have diverged along several routes, all of
which rely as a textual matter on the “inherent” nature of the right to
self-defense30 but differ in defining the precursor event triggering that
right or the means by and extent to which it may be invoked.
Literal construction of the Charter would not appear to permit use
of force in the absence of an “armed attack.”31 Given the armed attacks
with which many signatories of the U.N. Charter were so unfortunately familiar, it is unsurprising that “plain language” interpretations
of the “armed attack” in response to which one has the right to use
force in self-defense contemplate a methodical and sustained aggression,
preceded by the massing of armies and their movement across bounda-
28
29
30
31
quent state practice did not confirm that position in such a way as to
amount to a uniform pattern of behavior.”
Ibid.
Ibid.
I. Brownlie, International Law and the Use of Force by States, 1963, 272 –
275: “The prevailing view refers, above all, to the purpose of the U.N.
Charter, i.e., to restrict as far as possible the use of force by the individual
state, and considers Art. 51 to exclude any self-defense other than in response to an armed attack. (...) The prevailing doctrine is opposed by an
approach that regards the customary right of self-defense as not being affected by Article 51, but rather having only received a particular emphasis
(...) this approach is intended to serve as a justification for traditional forms
of self-defense, even of self-help in particular cases. (...) The content and
scope of the customary right of self-defense are unclear and extend far into
the sphere of self-help in such a way that its continuing existence would, to
a considerable extent, reintroduce the unilateral use of force by states, the
substantial abolition of which is intended by the U.N. Charter.”
Article 51 U.N. Charter: “Nothing in the present Charter shall impair the
inherent right of ... self defence if an armed attack occurs against a Member
of the United Nations (...).” (emphasis added).
392
Max Planck UNYB 8 (2004)
ries, and in which the acquisition of territory is the immediate objective.32 Modern “attacks,” however, frequently do not fit this paradigm.
Early in the process of identifying the self-defense rights subsumed
in the term “inherent,” the concept that such rights could be implicated
only within one’s national borders was discarded. In the Corfu Channel
Case,33 the International Court of Justice (ICJ) confirmed that military
forces operating outside a state’s boundaries could be lawfully defended
in accordance with Article 51; a broad consensus has developed to support the notion that attacks against a nation’s civilian citizens abroad
are included within the scope of an “armed attack” justifying the use of
force in self-defense.34
It is in this expansive view that past U.S. responses to the use of
force (the military operation to retake the Mayaguez,35 for example)
were grounded. While this particular self-defense concept is not among
the most controversial,36 its importance with respect to terrorism is
manifest. Prior to 9/11, the United States suffered its most recent ter-
32
33
34
35
36
Simma, see note 24, 669: “An armed attack only exists when force is used
on a relatively large scale and with substantial effect.”
Corfu Channel Case, ICJ Reports, 1949, 4 et seq. The case concerned Albanian claims that its territorial sovereignty was violated by British warships passing through the Corfu Channel part of which involved Albanian
territorial waters. In the context of a determination of whether the British
passage was “innocent,” the ICJ quoted a British telegram concerning the
action that stated that British passage “was made with ships at action stations in order that they might be able to retaliate quickly if fired upon
again.” The ICJ stated that, “[I]n view of the firing from the Albanian battery ... [earlier], this measure of precaution cannot, in itself, be regarded as
unreasonable.”
See A.C. Arend/ R.J. Beck, International Law and the Use of Force beyond
the U.N. Charter Paradigm, 1993, Chap. 7; J. Winthrop, “International
Law Notes, Attack on the Iraqi Intelligence Service Headquarters”, Army
Law (August 1993), 46; Simma, see note 24, 124.
Letter from Ambassador J. Scali, US Representative to the United Nations
to the Secretary-General, 14 May 1975, quoted in: E.C. McDowell, “US
Department of State”, Digest of United States Practice 777, 1978, stating
that “my Government reserves the right to take such measures as may be
necessary to protect the lives of American citizens and property, including
appropriate measures of self-defense under Article 51 of the United Nations Charter.”
See L. Henkin, “Use of Force: Law and U.S. Policy”, in: id. (ed.), Right v.
Might: International Law and The Use of Force, 1989, 37.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
393
rorist attacks in Nairobi, Tanzania, and off the coast of Yemen.37 In an
age of terrorism, in which civil aircraft loaded with tons of highly explosive jet fuel double as weaponry, modern “armed attacks” rarely
align with the cross-border or geographic objective attack paradigm.
Perhaps even more significantly, the rise of international terrorism
highlights a need to implement defensive measures that are not dependent on the ongoing nature of the attack. Terrorists, perhaps relying on
the historical reluctance of the United Nations Security Council to resort to force, are likely to mount offensives of short duration—a campaign of relative quiet punctuated by bursts of extreme violence and destruction, followed by immediate withdrawal to safe haven. This dynamic not only exemplifies the need for recognition that defense of extraterritorial interests provides an appropriate basis on which to invoke
Article 51, but it also points to the need to permit defensive measures,
even when not tied to a precipitating attack.
Many in the international community long ago recognized this truth
in more conventional contexts and expanded the exercise of the inherent right of self-defense under Article 51 to include the doctrine of “anticipatory” self-defense.38 This preemptive use of force doctrine does
not require a potential victim state to await an armed attack in order to
respond with force. Rather, the state may exercise its inherent right to
employ force to defend itself in anticipation of an attack. Although con-
37
38
See “Deadly Attacks Bombs Rip Two African Capitals”, Akron Beacon
Journal, 8 August 1998, A1; D. Johnston /S.L. Myers, “Investigation of Attack on U.S. Destroyer Moving Slowly”, N.Y. Times, 30 October 2000,
A10.
Arend/ Beck, see note 34, 72, citing Y. Dinstein, War, Aggression and SelfDefense, 1988, 172: “While some commentators believe that customary
international law permits self-defense only after an armed attack occurs,
the more common view is that the customary right of self-defense is also
accorded to States as a preventive measure (taken in “anticipation” of an
armed attack, and not merely in response to an attack that has actually occurred).” H.B. Robertson states that the terms anticipatory self-defense,
preemptive self-defense, and preventive war are terms used to describe a
more aggressive use of force in self-defense. See generally, H.B. Robertson,
“Contemporary International Law: Relevant to Today’s World?”, in: J.N.
Moore/ R.F. Turner (eds), Readings on International Law From the Naval
War College Review 1978-1994, 1994, 3. For purposes of this paper, the
most commonly used terms: anticipatory self-defense and preemptive selfdefense, are used interchangeably to describe a use of force to prevent a
specific anticipated attack by denying an adversary the means of attack.
394
Max Planck UNYB 8 (2004)
troversial, Israel justified its 1967 attack on its Arab neighbors as “anticipatory” self-defense.39
Interpreting jus ad bellum to permit a state to preempt an apparent
but as yet unrealized hostile intent was not seriously contemplated in
the course of U.N. Charter negotiations. Given that the potential for
unwittingly starting a war is certainly greater when a preemptive attack
is triggered by what turns out to be mere mistaken paranoia, the underlying assumption was that individual nations were viscerally inclined to
react too quickly based on too little information. A deliberative body
such as the Security Counsel was deemed to be more capable of objectively assessing circumstances and defusing an otherwise volatile situation.40 Nevertheless, the pattern of state practice in the last 20 years has
clearly evinced an increasing acceptance of anticipatory self-defense
such that many now view it as an established part of customary jus ad
bellum. Recognizing the obvious potential for abuse, even proponents
of anticipatory self-defense have identified limiting criteria to preclude
the most egregious abuses. The most important criterion, discussed below, qualifies the right by requiring that the anticipated attack be “imminent.”41
A cursory reading of Article 51, particularly in the context of the
Charter’s purpose to proscribe not only war but any use or threatened
use of force as well, creates the preliminary impression that reliance on
it is restricted to rare circumstances.42 The drafters showed remarkable
foresight, however, in choosing language that underscores the requisite
gravity of the threat giving rise to the self-defense right, while permitting responses necessary to exercise that right in the face of unusual circumstances and threats. In stating that nothing shall “impair the inher39
40
41
42
The attack followed the eviction of United Nations peace-keeping forces
from the area by the Egyptian president, the blocking of Israel’s southern
port of Eilat, and the conclusion of a military pact between Jordan and
Egypt. M.N. Shaw, International Law, 1991, 694. See generally J.N. Moore
(ed.), The Arab-Israeli Conflict, 1974.
Simma, see note 24, 676: “Since the (alleged) imminence of an attack cannot
usually be assessed by means of objective criteria, any decision on this
point would necessarily have to be left to the discretion of the state concerned. The manifest risk of abuse of that discretion which thus emerges
would de facto undermine the restriction to one particular case of the right
of self-defense.”
See O. Schachter, “The Right of States to Use Armed Force”, Mich. L. Rev.
82 (1984), 1620 et seq. (1634-1635).
Simma, see note 24, 663.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
395
ent right of individual or collective self-defense if an armed attack occurs ... ,” (emphasis added)43 the Charter leaves room for broader expressions of self-defense than that of a geographically confined reaction
to an ongoing armed attack.44 In recognizing the right of individual
states to undertake common sense solutions to self-defense issues in the
absence of effective Security Council action,45 the flexibility of Article
51’s language can be said to have saved the Charter itself from desuetude. So too today, we should rely on the inherent flexibility of this language both to justify necessary and appropriate preemptive measures,46
and to ensure the continuing vitality of the essential components of the
Charter’s regime.
Another important jus ad bellum concept—rarely conceived as an
evolving area of the law—is that of peacetime reprisal. The U.N. Charter creates a regime consistent with the expressed intent of its drafters—
that being to minimize, or preclude entirely, the need for a member nation ever to use force unilaterally. Since the Charter’s inception, the
concept of peacetime reprisal (the “peacetime” modifier being used to
distinguish the concept from “belligerent reprisal,” a jus in bello concept associated with particular military actions in an extant armed conflict)47 has been considered inconsistent with the Charter’s articulation
of jus ad bellum.48 On 24 October 1970, the United Nations General
43
44
45
46
47
48
Article 51 U.N. Charter.
Dinstein, see note 38, 169-170; but Simma, see note 24, 666 note 25, contending that “the appropriate debate is whether Article 51’s “inherent” language recognizes that the right exists with respect to non-UN members as
well; it is not intended to evince “a right of self-defense existing independently from the Charter under natural Law.”
See G.B. Roberts, “Self Help in Combating State-Sponsored Terrorism:
Self-Defense and Peacetime Reprisals”, Case W. Res. J. Int’l L. 19 (1978),
243 seq. (273-274).
Schachter, see note 22.
As a threshold matter, peacetime reprisals must be distinguished from belligerent reprisals during armed conflict. According to Oppenheim, the
former are “resorted to for the purpose of settling a conflict without going
to war, the latter [belligerent reprisals] are retaliations in order to compel an
enemy guilty of a certain illegal act of warfare to comply with the laws of
war.” L. Oppenheim, International Law, Vol. 2, 7th edition, 1948, 143.
See D.W. Bowett, “Reprisals Involving Recourse to Armed Force”, AJIL
66 (1972), 1 et seq. (1), explaining that “few propositions about international law have enjoyed more support than the proposition that, under the
396
Max Planck UNYB 8 (2004)
Assembly passed Resolution 2625 (XXV), containing the unequivocal
statement that states have a duty to refrain from acts of reprisal involving the use of force.49 The United States representative, Herbert Reis,
commenting on this statement when it was first agreed upon in the
Drafting Committee, opined that it represented a “valuable step forward.”50 One commentator succinctly summarized the global collective
view of this tenet, stating, “Few propositions about international law
have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.”51 While few have pushed for an adjustment of this norm in the recent past, an analysis of the United States’ response to 9/11 and the international support it garnered may evince an emergent acceptance of
peacetime reprisal as appropriate under certain circumstances.
Yet another evolving segment of the law of conflict management is
the imposition of vicarious liability for an armed attack—better known
as the concept of state responsibility. In the Nicaragua Case,52 the ICJ
decision gave definition to the principle that although provision of arms
or other forms of aid by one government to guerillas could be considered a use of force, it would not necessarily constitute an “armed attack” upon the other. In the words of Professor Lobel, “[t]his would
suggest that a government could not launch counterattacks against terrorist bases in another state unless the terrorists were agents of the state
or were controlled by its government.”53 This principle was reaffirmed
49
50
51
52
53
Charter of the United Nations, the use of force by way of reprisals is illegal.”
A/RES/2625 (XXV) of 24 October 1970. As a threshold matter, peacetime
reprisals must be distinguished from belligerent reprisals during armed
conflict. See also A. Roberts/ R. Guelff (eds), Documents on the Law of
War, 1982, 15: “A reprisal is an otherwise illegal act of retaliation carried
out in response to illegal acts of warfare and intended to cause the enemy to
comply with the law.”
Bowett, see note 48, 1.
Ibid.
Military and Paramilitary Activities (Nicaragua v. US), ICJ Reports 1986,
14 et seq., (101-103), holding that a state is responsible for “sending by or
on [its] behalf armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another State of such gravity as to amount
to an actual armed attack conducted by regular forces, or its substantial involvement therein.”
J. Lobel, “The Use of Force to Respond to Terrorist Attacks: The Bombing
of Sudan and Afghanistan”, Yale J. Int’l L. 24 (1999), 537 et seq. (541).
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
397
in the Iranian Hostages Case.54 Since Hostages, however, the norm has
been severely circumscribed by customary state practice.55 Moreover,
recent developments in positive international law regarding application
of the aut dedere aut punire principle to terrorism offenses confirms the
international community’s unwillingness to permit passive toleration of
terrorists within one’s jurisdiction.56 Ramifications for future uses of
defensive force against states unable or unwilling to curtail terrorist activity within their borders are profound.
54
55
56
United States Diplomatic and Consular Staff in Tehran, (U.S. v. Iran), ICJ
Reports 1980, 3 et seq. (42). (hereinafter Iranian Hostages Case).
See, e.g., R. Erickson, Legitimate Use of Force Against State Sponsored Terrorism, 1989, 100-103; W. Solf, “International Terrorism in Armed Conflict”, in: H.H. Han, Terrorism and Political Violence, 1993, 317-331; M.
Lohr, “Legal Analysis of U.S. Military Responses to State-Sponsored International Terrorism”, Naval Law Review 34 (1985), 1 et seq. (7-9).
Cf. article 8 of the International Convention for the Suppression of Terrorist Bombing, 15 December 1997. See also article 10 International Convention for the Suppression of the Financing of Terrorism, 9 December 1999.
In addition, the Security Council has enacted S/RES/1373, imposing e.g.
binding obligations upon states to prevent and suppress the financing of
terrorist acts, to refrain from providing any support to terrorists, to deny
safe haven to terrorists, to develop effective border controls, and to bring
to justice those who commit terrorist acts, and to eliminate the supply of
weapons to terrorists, S/RES/1373 (2001) of 28 September 2001, paras 1-2.
See also A.D. Sofaer, “Sixth Annual Waldemar A. Solf Lecture in International Terrorism, the Law, and National Defense”, Mil. L. Rev. 126 (1989),
89 et seq. (108). If not a crime of universal jurisdiction, terrorism is at the
very least a crime of expanded jurisdiction. The entry into force of several
counter-terrorism conventions that promulgate an aut dedere aut punire
regime lends credence to the fact that even prior to 9/11, there was a growing consensus view that passive toleration of terrorist presence is no longer
acceptable. Restatement (Third) of the Foreign Relations Law of the
United States 404 (1987)—(The courts may have jurisdiction for “certain
offenses recognized by the community of nations as of universal concern,
such as piracy, slave trade, attacks or hijacking of aircraft, genocide, war
crimes, and perhaps certain acts of terrorism, even absent any specific connection between the state and the offense. When proceeding on that jurisdictional premise, neither the nationality or the accused or the victim, nor
the location of the crime is significant. The underlying assumption is that
the crimes are offenses against the law of nations or against humanity and
that the prosecuting nation is acting for all nations”). See also Demjanjuk v.
Petrovsky, 776 F. 2d 571, 582-83 (6th Cir. 1985).
398
Max Planck UNYB 8 (2004)
These developments in the interpretation of Article 51 and relevant
self-defense concepts arguably demonstrate the necessity of and general
international tolerance for departing from an overly restrictive, literal
attachment to the language of the Charter; terrorist acts enhance geometrically, the credence and prudence of the argument for such a departure. Prior to 9/11, for example, many respected commentators were
unwilling to acknowledge the availability, much less the lawfulness, of
the doctrine of anticipatory self-defense as a basis for the use of force.57
That the United States and others were routinely pilloried for their invocations of anticipatory self-defense to justify a use of force,58 portended significant controversy on this issue with respect to a response
to the 9/11 attacks. Such was not the case, however; in the glare of the
harsh and unrelenting floodlight illuminating at once both the broken
New York cityscape and the global reality of post-9/11 vulnerabilities,
the metamorphosis of customary law as reflected in world perceptions
and reactions already had begun.
The very nature of terrorism, characterized by brief, discrete, surprise attacks, precludes the execution of a traditional contemporaneous
defense; the strictest reading of Article 51 is thus inappropriate.59 The
questions that remain then are whether it has now been supplanted by
an expanded concept of anticipatory self-defense (Afghanistan did not
represent an “imminent” threat), a new concept of peacetime reprisal
(Operation Enduring Freedom was clearly a response to 9/11), or some
combination of the two; and to what extent these principles may be invoked against states that have demonstrated an inability or unwillingness to curtail terrorist activities within their borders.
57
58
59
Simma, see note 24, 676: “Self-defense is thus permissible only after the
armed attack has been launched. (...) Therefore Art. 51 has to be interpreted
narrowly as containing a prohibition of anticipatory self-defense”; accord
M. Akehurst, A Modern Introduction to International Law, 1984, 223.
See, e.g., R. Sadurska, “Threats of Force”, AJIL 82 (1988), 239 et seq. (256260).
But see M. Bothe, “Terrorism and the Legality of Preemptive Force”, EJIL
(2003), 227 et seq., arguing that the preemptive strike doctrine of National
Security Strategy 2002, adapts the perceived threats concept so as to unacceptably expand the right of anticipatory self-defense.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
399
III. Operation Enduring Freedom
In response to the 9/11 terrorist attacks, the United States launched a
military strike against Al Qaeda and Taliban forces in Afghanistan on 8
October 2001. Operation Enduring Freedom sheds light on evolving
norms regarding several controversial and significant areas of selfdefense theory: 1.) anticipatory self-defense; 2.) reprisal; and 3.) state responsibility. A relative absence of international dissent has resulted in a
paucity of legal analyses associated with this use of force, but careful
observation reveals that the Afghanistan intervention may evidence a
greater international acceptance of particular self-defense norms or an
emerging norm of syncretic approval grounded in myriad factors.
Since 1945, the language of the Charter has remained intact, but the
above history demonstrates that the breadth of actions asserted as being
subsumed by the language of Article 51 has evolved to accommodate
the legitimate security needs of Member States. The bane of terrorism
has further discredited the most literal conservative readings of selfdefense law. Recent global responses to terrorism appear to have further
advanced more utile constructs and significantly improved clarity as to
the limits of applicable norms. Operation Enduring Freedom is one
such action.
9/11 is the first time since the U.N. Charter entered into force that
the United States has been compelled to respond to an unequivocal
cross-border “armed attack.” To many, the absence of such an armed
attack has been the gravamen of their condemnation of past U.S. military interventions.60 Those detractors did not assess the post-9/11 intervention as suffering the same legal weaknesses of previous interventions, and accepted it as consistent with even stricter readings of Article
51 of the U.N. Charter.61 But closer analysis of the circumstances asso60
61
See, e.g., Brownlie, see note 30, 275-280; L. Henkin, How Nations Behave:
Law and Foreign Policy, 2nd edition, 1979, 141; but see M.S. McDougal,
“The Soviet-Cuban Quarantine and Self-Defense”, AJIL 57 (1963), 597 et
seq. (599), arguing that the Charter’s drafters, by inserting Article 51, did
not intend to impose new limitations on the self-defense right; Schachter,
see note 41, 1634-1635; A.D. Sofaer, “International Law and Kosovo”,
Stanford J. Int’l L. 36 (2000), 1 et seq. (16); T.M. Franck, Recourse to Force:
State Action Against Threats and Armed Attacks, 2002, 97-99.
See generally S.D. Murphy, “Terrorism and the Concept of “Armed Attack” in Article 51 of the U.N. Charter”, Harv. Int’l L. J. 43 (2002), 41 et
seq.; C. Stahn, “International Law Under Fire: Terrorist Acts as ‘Armed
Attack’: The Right to Self-Defense, Article 51 (1/2) of the U.N. Charter,
Max Planck UNYB 8 (2004)
400
ciated with military intervention in Afghanistan—and terrorism generally—reveals that the same underlying concerns informing past rejections of anticipatory self-defense theories in fact apply in this case as
well.62
A restrictive interpretation of Article 51 would not simply require
that an “armed attack” (presumably within the state’s territory) occur
before self-defense could be lawfully employed; it would mandate, with
even greater force, the additional requirement that actions in selfdefense serve as only a temporary measure to mitigate the damage visited by an on-going attack. Recall that the pertinent language preserves
the self-defense right “until the Security Council has taken measures
necessary to maintain international peace and security.”63 If the intent
of Article 51 is to permit an exigent response only until the Security
Council can act, then the armed intervention into Afghanistan would
clearly be illegal—more than a month elapsed between the 9/11 attacks
and the United States’ response, affording ample opportunity for U.N.
Security Council action in the interim.
1. Anticipatory Self-Defense
In 1986, President Reagan launched an attack, Operation El Dorado
Canyon, in response to the terrorist bombing of a Berlin discothèque.
The attack was initially described by many as a reprisal; later, upon advice of counsel, the President clarified that the attack was an exercise of
anticipatory self-defense consistent with Article 51 of the United Nations Charter.64 Immediately after 9/11, it appeared that the environ-
62
63
64
and International Terrorism”, Fletcher Forum of World Affairs 27 (2003), 35
et seq.
But see Y. Dinstein, War, Aggression and Self-Defense, 2001, 165-169.
Criticizing anticipatory self-defense and stressing the need for a precipitating armed attack. Dinstein would apparently not impose a temporal requirement on self-defense action as discussed below.
Article 51 U.N. Charter.
See E. Clift/ J. Nelson, “Official Tells of Decision-Making; Reagan OKd
Plans for Earlier Attacks”, L.A. Times, 16 April 1986, 1.1. On 5 April 1986,
a bomb exploded in a discotheque in Berlin frequented by United States
service personnel. Of the 200 injured, 63 were American soldiers; one soldier and one civilian were killed. On the late evening of 15 April and early
morning of 16 April 1986, under the code name El Dorado Canyon, the
United States launched a series of military air strikes against ground targets
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
401
ment mandating such parsing of words had all but evaporated. From an
international law and policy perspective, the most noteworthy characteristic of U.S. intervention in Afghanistan was the relative absence of
criticism from the international community. The 9/11 terrorist attack
was clearly seen as an act of war; the United States intervention in Afghanistan arguably required no explanation or justification.65 There
seems to have been universal acceptance of the proposition that this
particular use of force was both lawful and appropriate. It is not immediately clear, however, what legal analysis justified such an intervention
and how that justification could be articulated to provide some predictability for future operations.
Close analysis of Operation Enduring Freedom reveals that the
circumstances surrounding the attacks of 9/11 provide little “hook” on
65
inside Libya. The timing of the attack was such that while some of the
strike aircraft were still in the air, President Reagan was able to address the
US public and much of the world. He emphasized that this action was a
matter of US self-defense against Libya’s state-sponsored terrorism. In
part, he stated: “Self-defense is not only our right, it is our duty. It is the
purpose behind the mission (...) a mission fully consistent with Article 51
of the U.N. Charter.” The President claimed “irrefutable proof” that Libya
had directed the terrorist bombing of the disco, citing American intelligence interception of a message from Gaddafi ordering an attack on Americans “to cause maximum and indiscriminate casualties.”
See M. J. Glennon, “Preempting Terrorism; The Case for Anticipatory SelfDefense”, Wkly. Standard, 28 January 2002, 17, 24; D. Polman, “‘War’ is
Now More than a Metaphor; Deadly Terror Attacks – and the Promised
U.S. Response – Make a Long Overused Word Mean Just What It Says”,
Phila. Inquirer, 13 September 2001, A5. One could argue that the concept
of anticipatory self-defense was not called into question during the initial
intervention in Afghanistan. This is because the primary criticism of the
doctrine for some had always been the absence of an actual “armed attack”.
The events of 9/11 amounted to an armed attack on the United States, and
the close association between the Taliban and the perpetrators of the attack
justified an imputation of responsibility to Afghanistan. In fact, however,
the cross-border attack did little to alter the anticipatory nature of the
United States response. The nature of a terrorist attack is such that it is
temporally confined – there is no continuing attack that requires immediate
defensive measures. Thus, the armed response in this instance was really
designed to prevent additional future terrorist attacks. Regardless of the
terminology used, however, the United States’ responsive intervention into
Afghanistan does not fit neatly into the language of Article 51 of the U.N.
Charter. It has, nevertheless, been widely accepted as a lawful act of selfdefense.
402
Max Planck UNYB 8 (2004)
which the strict constructionist could “hang his hat” in explaining departure from a pattern of criticizing U.S. interventions undertaken in
the name of anticipatory self-defense. Even given the cross-border incursion, it is clear that Article 51 intends to sanction the use of force in
self-defense against an ongoing incursion only until the U.N. Security
Council can act to restore peace and security. Most certainly, there was
time between 9/11 and the initiation of U.S-lead hostilities in Afghanistan for United Nations Security Council action on this matter.66 And,
given that the Security Council had acted in Resolution 1368 to condemn the attacks and to recognize the applicability of a self-defense
right,67 but not specifically to authorize the use of force, comity with
past practice would have prompted the strict constructionist to assert
that the United Nations’ Resolution was not intended to justify military intervention.
When the circumstances leading up to Operation Enduring Freedom
are broken down into identifiable constituents, we find that, at its essence, the intervention was perhaps the purest example of anticipatory
self-defense in recent years. Some might argue that the 9/11 attack obviated the need to justify a response under anticipatory self-defense theory; the distinguishing feature of this intervention being not the clarity
66
67
The US did not initiate intervention in Afghanistan until 8 October 2001,
27 days after the attacks of 11 September; see also Article 51 U.N. Charter.
See S/RES/1368 (2001) of 12 September 2001:
The Security Council,
Reaffirming the principles and purposes of the Charter of the United Nations,
Determined to combat by all means threats to international peace and security caused by terrorist acts,
Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,
1. Unequivocally condemns in the strongest terms the horrifying terrorist
attacks which took place on 11 September 2001 in New York, Washington,
D.C. and Pennsylvania and regards such acts, like any act of international
terrorism, as a threat to international peace and security; (...)
3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that
those responsible for aiding, supporting or harbouring the perpetrators,
organizers and sponsors of these acts will be held accountable; (...)
5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in
accordance with its responsibilities under the Charter of the United Nations; (...).
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
403
of evidence adumbrating hostile intent so much as the fact of a previous
attack. But given the general aversion with which reprisal has been
viewed—no one ever has claimed that a retaliatory/reprisal strike is appropriate under the Charter—unsanctioned interventions have consistently been justified as acts of “self-defense,” not as a response to prior
attack.68 Previous criticisms of anticipatory self-defense actions due to
the absence of across-border attack are simply not answered by the fact
that Operation Enduring Freedom was preceded by a single attack
nearly a month prior.
Whether international acquiescence to, if not approval of, the
United States’ use of military force against Afghanistan evinces a conscious acceptance of an anticipatory self-defense doctrine may be debated, but the broad-based respect for U.N. Security Council Resolution 1368 clearly undermines any literalist argument that in failing to
reference anticipatory self-defense expressly, the Charter renders the
theory moot. In pained but clear language, the French Ambassador to
the United Nations, who began drafting the resolution only hours after
the 9/11 attacks, wrought significant developments in international law.
The question as to precisely what those developments are, however, will
long provide fodder for debate.
As much as any past intervention, that into Afghanistan calls into
question the definition of the term, “defense.” Our military operations
in Afghanistan were arguably not “defensive” in nature; we effected the
68 As used in this paper, the term “unsanctioned” refers to uses of force not
expressly authorized by the United Nations. A classic case study of unsanctioned self-defense against the weapons of mass destruction threat is
the 1981 Israeli air strike against the Osirik nuclear reactor outside Baghdad. Although one justification for the attack was the existence of an armed
conflict between Israel and Iraq, Israel also claimed that “in removing this
terrible nuclear threat to its existence, Israel was only exercising its legitimate right of self-defense within the meaning of this term in international
law and as preserved also under the United Nations Charter.” In assessing
the merits of this argument, it is important to note that Israel had fought
Iraq three times (1948, 1967, 1973) and Iraq denied the right of Israel to exist as a state. Israel concluded that it was a future target of Iraqi nuclear capability, which it estimated would be operational by 1985. See A. D’Amato,
“Israel’s Air Strike Upon the Iraqi Nuclear Reactor”, AJIL 77 (1983), 584
et seq. Despite the proportional nature of the attack, Israel’s actions were
widely condemned. See also R.F. Teplitz, “Taking Assassination Attempts
Seriously: Did the United States Violate International Law in Forcefully
Responding to the Iraqi Plot to Kill George Bush?”, Cornell Int’l L. J. 28
(1995), 569 et seq. (576-583).
404
Max Planck UNYB 8 (2004)
overthrow of a regime.69 But one can claim that our actions were “preemptively” or “preventatively” defensive in that they were designed to
preclude another attack. In this regard, the military endeavor represents
a classic example of anticipatory self-defense. The most conservative
renditions of anticipatory self-defense theory are clearly inadequate in
this day and age. Requiring a particularized, anticipated attack essentially authorizes terrorists to operate with impunity, so long as their
specific conspiracies and capabilities are not disclosed. Such a constraint
could limit terrorism response options to only those cases where the intelligence regarding future attacks is extremely well-developed. This
would be inadequate from both protective and deterrent viewpoints.
Looking at the changed circumstances of the post-9/11 world, it
would seem that the argument for anticipatory self-defense today proceeds a fortiori when compared to the justifications used historically.
Disallowing anticipatory self-defense would effectively give license to
terrorists, or even mandate victimization. Considering the extreme lethality of weaponry readily available today, the costs of that victimization could quickly rise to unacceptable levels. To reject anticipatory
self-defense in cases of terrorism, the world would be telling potential
aggressors and state sponsors of terrorist acts that their preparatory actions were essentially immune from recourse.
Classic in one regard, however, the exercise of anticipatory selfdefense in Operation Enduring Freedom was welcomed internationally
in a way that past “classic” examples were not. Moreover, it involved
unique characteristics that set it apart from other previous examples.
One of those characteristics, discussed below in more detail, was its retributive quality. If it was “anticipatory,” it was so because it anticipated
another future terrorist attack for its legal justification. It was also retributive, however, because it was effected in retaliation for 9/11.
Many have long deemed unlawful under the U.N. Charter both of
these self-defense related justifications for the use of force: past criticisms of anticipatory self-defense have been most vituperative and sustained due to the absence of a precursor “armed attack” against which
to “defend;” peacetime reprisal is impugned for not being defensive at
all—rather it responds to a completed act.70 Analogizing jus ad bellum
69
70
See R. Roeper, “Even Towering Figures are Often Unknowns”, Chicago
Sun Times, 14 April 2003, 11; “Saddam and His Statue Take a Fall”, Tulsa
World, 10 April 2003, A18.
See Bowett, see note 48, 1, explaining that “few propositions about international law have enjoyed more support than the proposition that, under the
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
405
to childhood fisticuffs, classic self-defense doctrine is the authority to
block punches while an appeal for protective action is made to the U.N.
Security Council adult authority. Reprisal is a subsequent retaliatory attack and anticipatory self-defense is a preemptive punch. Operation
Enduring Freedom fits neither analogy neatly; it is the return punch.
Conceived in this way, the playground fight analogy proves quite
apt. While the normative construct involves non-aggression principles
and schoolyard authorities to secure that environment, in the absence of
effective enforcement, the most acceptable responses (in descending order) would be: 1.) the blocking of a punch (literal, strict-constructionist
Article 51—almost certainly acceptable, but perhaps impossible with
regard to terrorism); 2.) the return punch (to preempt subsequent
blows—likely acceptable unless disciplinary authorities are deemed so
effective as to obviate the need); 3.) the preemptive strike (pure anticipatory self-defense—likely resulting in detention unless disciplining authorities acknowledge the certainty of such self-defensive need, and
even then they would likely only turn a blind eye, avoiding public approval); and 4.) the subsequent retaliatory attack in revenge (unlikely to
curry schoolmarm favor, even when explained by the most effective
playground lawyer).
Operation Enduring Freedom fits well in category 2.) The use of
force is not in its most essential nature defensive, and it is ultimately a
preemptive measure in anticipation of future attacks. Unlike pure anticipatory self-defense (category 3) however, Operation Enduring Freedom, which enjoys far greater international acceptance than past uses of
force in the anticipatory self-defense category, is characterized by an
additional retaliatory component (category 4). Thus, to fully understand the evolving post-9/11 jus ad bellum norms, it is useful to review
the doctrine of peacetime reprisal.
2. Reprisal
Though retribution has traditionally been deemed prohibited under the
U.N. Charter and the concept of peacetime reprisal maligned as antithetical to the Charter’s security structure, the dearth of criticism attending Operation Enduring Freedom may derive partly from the fact
that the counter-attack was not mere anticipatory self-defense; it also
Charter of the United Nations, the use of force by way of reprisals is illegal.”
406
Max Planck UNYB 8 (2004)
responded to an unambiguous use of force. In other words, a defenserelated reprisal, one that responds to a past attack with a view to preventing a future attack, may be lawful. While the concept of peacetime
reprisal may no longer reflect customary international law, it appears
that the legitimacy of such interventions may be bolstered if they respond to a prior attack.
The last time the United States used the military instrument to respond to a terrorist event was the Tomahawk missile attack ordered by
President Bill Clinton in response to the 1998 African embassy bombings.71 The facts permit several theories as to why that response was not
well received internationally. Some may have viewed as insufficient evidence that Al Qaeda had committed the attack; others may have objected to one target of the attack—a Sudanese pharmaceutical plant.72
Some, however, would have criticized the attack as amounting to a
peacetime reprisal.73 These same criticisms were not verbalized in response to U.S. action in Operation Enduring Freedom.
The most visible goal of the U.N. Charter is to prevent an accelerating chain of wrongs that can lead to war. Thus, Article 33 requires parties to seek peaceful means to settle disputes.74 The vengeful motiva-
71
72
73
74
See Lobel, see note 53, 539; B. Woodward, “CIA Paid Afghans to Track
Bin Laden: Team of 15 Recruits Operated Since 1998”, Wash. Post, 23 December 2001, A1.
See B. Gellman, “U.S. Supects Al Qaeda Got Nerve Agent from Iraqis;
Analysts: Chemical May Be VX, And Was Smuggled Via Turkey”, Wash.
Post, 12 December 2002, A1. In 1998, the Clinton administration asserted
that Iraq provided technical assistance in the construction of a VX production facility in Sudan, undertaken jointly with Al Qaeda. In retaliation for
Al Qaeda’s August 1998 truck bombing of US embassies in Kenya and
Tanzania, President Bill Clinton ordered the launch of Tomahawk missiles
to destroy the facility, alleged to operate under cover of the al Shifa pharmaceutical plant in Khartoum, Sudan’s capital. See also Lobel, see note 53,
556: Noting that most nations, including U.S. NATO allies such as France,
Italy, Britain, and Germany, appear to believe that the United States attacked the wrong factory in Sudan.
See, e.g., W.M. Reisman/ J.E. Baker, Regulating Covert Action, 1992, 93,
101-102.
Article 33 U.N. Charter: “(1) The parties to any dispute, the continuance of
which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice. (2) The Secu-
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
407
tions of peacetime reprisal are contrary to this norm, as is the tit-for-tat
mentality evoked by the terminology. A reprisal is more likely to initiate or continue a chain of wrongs than to effect a break in that chain.
A strong argument can be made, however, that the deterrent aspect
of peacetime reprisals is not contrary to the goal of international peace.
Rather, it is the escalatory and vengeful nature of reprisals that is so
contemptuous. Thus, retaliatory action for the purpose of deterring an
armed attack might be acceptable if that deterrence is necessary for a nation to meet its self-defense needs and can reasonably be found to be
constituent in the “inherent right of self-defense.” That there may be a
small area of common ground between a reasonable deterrent action
and a punitive reprisal should not undermine the legitimacy of the former.
In carefully comparing elements of peacetime reprisals with those
imbuing more traditional self-defense concepts, one is struck by an apparent close relationship between the two. The traditional elements of
self-defense are necessity and proportionality.75 The necessity prong
traditionally is comprised of two sub-elements: 1.) an immediate threat;
and 2.) an attempt at redress.76 Because proportionality of response can
be applied to reprisals as easily as to any traditional self-defense action,
it only is the first element, an immediate threat that distinguishes selfdefense (based on a future threat) from reprisal (based on a prior violation of international law). Professor Bowett describes it in the following
terms: “Self-defense is future- oriented since its goal is state security
against threats to its territory or sovereignty. Reprisals, on the other
hand, are oriented to the past, they seek to punish previous illegal acts
and prevent their recurrence.”77 The primary distinction between the
two doctrines thus lies in their respective purposes. Actions in selfdefense seek to protect and deter; reprisals seek to punish and deter. As
Professor Bowett later explains, however, this distinction is much more
difficult to make in practice than in theory for two reasons. First, determining a nation’s purpose is “notoriously difficult to elucidate.” And
second, “the dividing line between protection and retribution becomes
more and more obscure as one moves away from the particular incident
75
76
77
rity Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.”
Restatement of the Law, Third, Foreign Relations Law of the United States,
1987, § 905, comment g.
See Roberts, see note 45, 277.
See Bowett, see note 48, 3.
408
Max Planck UNYB 8 (2004)
and examines the whole context in which the two or more acts of violence have occurred.”78
As the object of the first of several U.N. Security Council Resolutions condemning reprisal, the British discovered how difficult it can be
to distinguish the legitimate act of self-defense from the unlawful reprisal.79 In 1964, Yemen repeatedly raided the British Protectorate of
Aden. The British responded by counter-attacking targets on Yemeni
territory. Following a British air attack on the Yemeni Fort of Harib,
the Yemeni Government requested Security Council review of the
situation, asserting that the British air raid was an unlawful use of
force—a reprisal. The United Kingdom Representative to the U.N.
claimed the attack was “a defensive response” to protect Aden’s territorial integrity.80 Citing the repeated Yemeni attacks in Aden, the representative justified the attack against the Fort, alleged to have served as
the staging area for several of the raids, as an action that “has no parallel
with acts of retaliation or reprisals, which have as an essential element
the purpose of vengeance or retribution. It is the latter use of force
which is condemned by the Charter, and not the use of force for defensive purposes such as warding off future attacks.”81
The United States, together with the United Kingdom, abstained
from the Security Council vote on the resolution condemning the
Harib action.82 Ultimately, the final resolution condemned “reprisals as
incompatible with the purposes and principles of the United Nations.”83 Ambassador Adlai Stevenson condemned the reprisal as well,
but explained the concern underlying his abstention as grounded in the
78
79
80
81
82
83
Ibid.
Bowett, see note 48, 8, quoting S/RES/188 (1964) of 9 April 1964.
See also Bowett, see note 48, quoting Doc. S/PV.1109 (1964) “It will also be
abundantly plain that, contrary to what a number of speakers have said or
implied, this action was not a retaliation or reprisal. There is, in existing
law, a clear distinction drawn between two forms of self-help. One, which
is of a retributive or punitive nature, is termed ‘retaliation’ or ‘reprisal’; the
other, which is expressly contemplated and authorized by the Charter, is
self-defence against armed attack. (...) it is clear that the use of armed force
to repel or prevent an attack - i.e., legitimate action of a defensive nature may sometimes have to take the form of a counter-attack.”
Ibid.
S/RES/188 (1964) of 9 April 1964, denouncing the reprisals and “deploring” the British action.
M. Whiteman, Digest of International Law, Vol. 12 (1971) 173-4.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
409
failure of the resolution to assign adequate blame to the Yemeni attacks
triggering the use of force against Fort Harib.84
In applying a self-defense rationale to justify their action in Yemen,
the British used a legal argument akin to the Israeli “accumulation of
events” theory on the use of self-defensive force.85 Beginning in 1953,
the Israelis explained any number of their armed actions on the broad
context of defending against repeated attacks on their people.86 In analyzing some seventeen Israeli military operations, Professor Bowett
concluded that the Security Council rejected this theory and condemned the actions on six occasions.87 While Israel directed the majority of the seventeen operations at Jordanian, Syrian, and Egyptian nationals, four raids, all of which were condemned, targeted terrorist sites,
both military and civilian.88 Nonetheless, in reviewing these instances in
which the Security Council has rejected actions purportedly taken in
self-defense, it must be borne in mind that the Security Council was
concerned with containing potentially explosive situations—situations
in which reprisals or reprisal-like actions would likely yield results inconsistent with the Charter.
Until the early 20th century, retaliation via a discrete reprisal represented the customary practice of civilized nations.89 One could reasonably contend that, were it not for the devastating effects of World
War I and II, the doctrine of peacetime reprisal, at least as narrowly articulated in the 1928 Naulilaa Case,90 would have retained some validity.
84
85
86
87
88
89
90
Ibid.
See Bowett, see note 48, 5-6.
Ibid.
Bowett, see note 48, 33-36.
Ibid.
See M.J. Kelly, “Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law”, Journal of Transnational Law & Policy 13 (2003), 1 et seq.; Whiteman, see note 83, 149.
See Responsibility of Germany for Damage Caused in the Portuguese
Colonies in the South of Africa (hereinafter Naulilaa), 8 Trib. Arb. Mixtes
409 (Port.- Ger. 1928), translated and discussed in W.W. Bishop Jr., International Law: Cases and Materials, 3rd edition, 1971, 903-904. The case
grew out of Portugal’s neutrality in World War I. In October of 1921,
German officials entered Portuguese Angola to secure the purchase of supplies. Misunderstandings ensued, a Portuguese man fired a weapon, and
three Germans were killed. German troops, in alleged reprisals, destroyed
410
Max Planck UNYB 8 (2004)
A return to the traditional doctrine of reprisal is probably neither
desirable nor politically feasible. If reprisals became commonplace, we
likely would observe a prominent “revenge” element as in Naulilaa. In
constructing a coherent theory of self-defense under Article 51, however, there may be some room for a multitude of factors, including the
elevated deterrent impact associated with retaliatory action conducted
with an anticipatory purpose. In Naulilaa, the Germans lost their case
against the Portuguese because their overwhelming response served ignoble revenge aims as opposed to the more noble deterrent purposes
viewed with greater favor by the arbitral panel.91
While reprisals and more traditional acts of self-defense share common elements, the reprisal is associated more closely and easily with revenge, retribution and punishment than with deterrence. This vengeance aspect of the reprisal motivation was and is most obvious, because
it is also the most closely associated in time with the triggering event,
and it quenches the visceral instincts that frequently attend hostility.
Since 1945, self-defense concepts have neglected the deterrence component of reprisal and stressed stopping the aggression or disabling the
aggressor.92
While the deterrent aspects of reprisal should have been unnecessary
under the Charter regime, the relative impotence of the Security Council undermined this planned structural protection. The demise of repri-
91
92
forts and posts in Angola. The 1928 decision of the Arbitral Tribunal found
the reprisals illegal because the Portuguese Act was a misunderstanding
that was not violative of international law, the German government did not
make any demand on the Portuguese government prior to the reprisals, the
reprisals actually consisted of six separate acts, and they were not proportionate to the offending act. The Arbitral decision in Naulilaa set forth an
overview of pre-World War I reprisal doctrine and supported and rearticulated the following rules for reprisal, with the exception of rule 3, which it
rejected:
(1) the occasion for the reprisal must be a previous act contrary to international law;
(2) the reprisal must be preceded by an unsatisfied demand;
(3) if the initial demand for redress is satisfied, no further demands may be
made;
(4) the reprisal must be proportionate to the offense.
Further, the decision added a 5th criteria that only a state can attempt a reprisal.
Ibid.
E. Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application, 1992, 130; see also Kelly, see note 89, 12-21.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
411
sal, however, should not be attended by the deprecation of deterrence as
an appropriate self-defense motivation. We should be careful not to
throw out the deterrence baby with the bath water of reprisal.
Returning to the simple schoolyard analogy, we see that the intent
or motivation underlying a reprisal may be a critical distinguishing feature. If the retaliation is simply a retributive assault, it is properly maligned. If it is better viewed as a counterpunch, however, the retributive
aspects actually bolster the legitimacy of the anticipatory strike. Neither
reprisal, nor anticipatory attacks enjoy particularly favorable status under either international law or schoolyard law, but each has potentially
positive aspects, and the combination may emerge as a well-accepted
exercise of the inherent right of self-defense.
BLOCK/
DEFLECT
DISABLE
REPRISAL
STOP
DETER
DETER
PUNISH
SEEK REVENGE
SELF-DEFENSE
USE OF FORCE MOTIVATION
The chart below depicts the overlap between concepts of self-defense and the specific act of reprisal.
412
Max Planck UNYB 8 (2004)
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
413
3. State Responsibility and Vicarious Liability
Another substantial movement in jus ad bellum is associated with
President Bush’s now-famous statement, appearing to afford no accommodation for nations seeking to remain neutral, “[e]very nation, in
every region, now has a decision to make. Either you are with us, or
you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United
States as a hostile regime.”93 With this remark, Bush not only unveiled a
stunning strategic decision regarding the future conduct of foreign relations, he interpreted and furthered an emerging norm in international
law regarding vicarious liability and state responsibility.
In a post-Westphalian world inhabited by non-state entities intent
on engaging in international terrorism, some level of proactive combating of the terrorists by relevant states may be a necessary prerequisite to
continued viability of the system. Cooperation in the war on terrorism
is a reasonable prerequisite to recognition of sovereign rights and immunities.
As mentioned above, the twin declarants of old law: the Nicaragua
and Iran Hostages Cases, embodied the principle that a state was only
responsible for the illegal actions of those present within its territory, if
the bad actors were agents of the state or were controlled by its government.94 The post 9/11 world simply cannot accommodate such a
norm. Even prior to President Bush’s speech, the Nicaragua and Hostages concept already had begun to erode, due, in major part, to the
emergence of a variety of multilateral counter-terrorism treaties articulating a state responsibility to prosecute or extradite terrorists.95 The international response to the President’s speech merely solidified the legitimacy of the approach.96
93
94
95
96
President George W. Bush, Address to a Joint Session of Congress and the
American People, Washington DC, 20 September 2001, available at:
<http://www.usembassy.org.uk/bush83.html>.
Nicaragua v. US, see note 52, 121; Iranian Hostages Case, see note 54.
See below.
“Bush Address Doesn’t Play So Well in Russia”, The Current Digest of The
Post-Soviet Press, Vol. 54 No. 5, 27 February 2002: “The U.S. president said
(this is also part of his doctrine) that if the national governments of various
countries prove unable to stop terrorists on their territory, America will do
it for them. The Philippine justice minister, Hernando Perez, replied, ‘This
isn’t the tone in which the president of a friendly country should speak to
414
Max Planck UNYB 8 (2004)
Most marked regarding the Bush announcement is the relative absence of any public critique. The United Nations was silent regarding
Bush’s apportionment of the world into two broad categories – those
“for” and those “against” U.S. efforts in the war on terror—stances of
neutrality or assertions of incapability appear to have been disallowed.
The world’s silence speaks volumes as to the current state of customary
international law; Bush’s speech was, perhaps unwittingly, a declaration
of at least one development in that law. Post 9-11, the international
community has apparently rejected the ICJ notion that active state support or control of terrorist actors is necessary to trigger military intervention in self-defense against a state that fails to curtail terrorist attacks
commencing from within its borders. The meaning of the term “state
sponsor” of terrorism has been expanded in sweeping fashion to encompass states that fail to take appropriate remedial action against terrorists—particularly when they have been warned to do so.97
Some have argued that this emerging norm is a sliding scale; the severity of the intervention authorized should be directly commensurate
with the degree of a state’s active assistance to terrorist entities.98 While
there may be a visceral appeal or even logic to such an articulation of
the norm, it is not clear how one would quantify the standard, and it
certainly is not clear that the global community has adopted such a
97
98
another friendly country.’” Among the NATO allies in Europe, Britain
alone supported Bush. The others expressed the concern that America was
once again acting on its own.
The United States demanded that those controlling relevant territory in
Afghanistan (the Taliban) turn over the leaders of Al Qaeda to the United
States, close all terrorist training camps in Afghanistan, and provide the
United States with full access to the camps to confirm their closure. The
Taliban declined to do so. Because the United States did not recognize the
Taliban regime as the government of Afghanistan and therefore had no diplomatic relations with them, the US demands and the Taliban’s rejection of
those demands were communicated through the government of Pakistan.
See R. Chandrasekaran, “Taliban Refuses to Surrender bin Laden: U.S. Develops Options for Military Action”, Wash. Post, 19 September 2001, A1.
Further, President Bush issued the demands in a widely reported speech to
a joint session of the US Congress, see G.W. Bush, see note 93; see also J.F.
Harris/ M. Allen, “President Details Global War On Terrorists and Supporters”, Wash. Post, 21 September 2001, A1.
See G. Travalio/ J. Altenburg, “State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility, and the Use
of Military Force”, Chicago Journal of International Law 4 (2003), 97 et
seq.
Lietzau, Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism
415
model. Borrowing a concept from criminal law, one is either guilty or
not with respect to aiding and abetting. Punishments meted out may
vary, but only within the range permitted by law based on the facts of a
particular case. Similarly, the principle of proportionality must always
be considered when applying force,99 but the right to act in self-defense
is either present or it is not.
4. Toward a New Concept for Self-Defense—Additional
Factors
Operation Enduring Freedom illuminates several relevant considerations regarding self-defense law, but a complete and articulable standard
for military intervention is not easily discerned. Legal justifications for
Operation Enduring Freedom and other counter-terrorist interventions
vary significantly. Some focus on the propriety of anticipatory selfdefe