Max Planck Yearbook
of
United Nations Law
Volume 13
2009
Max Planck Yearbook
of
United Nations Law
Founding Editors
Jochen A. Frowein
Rüdiger Wolfrum
Max Planck Yearbook
of
United Nations Law
Volume 13
2009
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
This book should be cited as follows: Max Planck UNYB
Printed on acid-free paper.
ISSN: 1389-4633
ISBN: 978 90 04 18103 8
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Contents
List of Contributors ............................................................................... VII
Abbreviations .......................................................................................... IX
Klabbers, Jan,
Global Governance before the ICJ: Re-reading the
WHA Opinion ....................................................................................... 1
Schabas, William A.,
Anti-Complementarity: Referral to National Jurisdictions by
the UN International Criminal Tribunal for Rwanda ...................... 29
Schill, Stephan/ Briese, Robyn,
“If the State Considers”: Self-Judging Clauses in International
Dispute Settlement .............................................................................. 61
Hilpold, Peter,
EU Law and UN Law in Conflict: The Kadi Case ........................ 141
Scovazzi, Tullio,
The Mediterranean Guidelines for the Determination of
Environmental Liability and Compensation: The Negotiations
for the Instrument and the Question of Damage that Can Be
Compensated ..................................................................................... 183
Binder, Christina,
Two Decades of International Electoral Support:
Challenges and Added Value ............................................................ 213
Max Planck UNYB 13 (2009)
VI
Kuhn, Maike,
The System of EU Crisis Management – From Bringing Peace
to Establishing Democracy? ............................................................. 247
Juma, Dan,
Lost (or Found) in Transition? The Anatomy of the New
African Court of Justice and Human Rights .................................. 267
Kovač, Matija,
Legal Issues Arising from the Possible Inclusion of Private
Military Companies in UN Peacekeeping ...................................... 307
Moschtaghi, Ramin,
The Relation between International Law, Islamic Law and
Constitutional Law of the Islamic Republic of Iran –
A Multilayer System of Conflict? .................................................... 375
LL.M. Thesis:
Hoelck Thjoernelund, Marie Christine,
State of Necessity as an Exemption from State Responsibility
for Investments .................................................................................. 423
Book Reviews ......................................................................................... 481
List of Contributors
Binder, Christina
Dr. iur., E.MA, Assistant Professor at the Department for European,
International and Comparative Law at the Vienna University. Recipient
of an APART-fellowship by the Austrian Academy of Sciences
Briese, Robyn
BSc/LLB (Hons/University Medal) (Australian National University,
2002), Senior Lawyer, Office of General Counsel, Australian Government Solicitor (AGS); formerly Law Clerk to Vice-President Awn
Shawkat Al-Kahsawneh and Judge Shi Jiuyong, International Court of
Justice, The Hague
Hilpold, Peter
Professor of International and European Law, Innsbruck, Austria
Juma, Dan
Advocate, High Court of Kenya and Deputy Executive Director,
Kenya Human Rights Commission
Klabbers, Jan
Professor of International Organizations Law, University of Helsinki;
Director, Academy of Finland Centre of Excellence in Global Governance Research
VIII
Max Planck UNYB 13 (2009)
Kova , Matija
MSc International Law, Faculty of Law Maribor; MA International Affairs, Graduate Institute of International and Development Studies, Geneva; BSc Political Science, Faculty of Social Sciences Ljubljana
Kuhn, Maike
Senior Research Fellow at the Max Planck Institute for Comparative
Public Law and International Law, Ph.D. candidate at the Faculty of
Law, University of Frankfurt a.M.
Moschtaghi, Ramin
Dr. iur., Former Senior Research Fellow at the Max Planck Institute for
Comparative Public Law and International Law
Schabas, William A.
OC MRIA, Professor of Human Rights Law, National University of
Ireland, Galway and Director, Irish Centre for Human Rights; Global
Legal Scholar, University of Warwick School of Law
Schill, Stephan
Dr. iur., LL.M. International Legal Studies (New York University),
LL.M. in European and International Economic Law (Universität
Augsburg), Rechtsanwalt, Attorney-at-Law (New York), Senior Research Fellow at the Max Planck Institute for Comparative Public Law
and International Law, Recipient of the Otto Hahn Medal 2008
Scovazzi, Tullio
Professor of International Law, University of Milano-Bicocca, Milan,
Italy
LL.M. Thesis:
Hoelck Thjoernelund, Marie Christine
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. Int’l L. Rev.
American University International Law
Review
Am. U. J. Int’l L. & Pol’y
American University Journal of International Law and Policy
Anu. Der. Internac.
Anuario de Derecho Internacional
Arch. de Philos. du Droit
Archives de Philosophie du Droit
ASIL
American Society of International Law
Aus Pol. & Zeitgesch.
Aus Politik und Zeitgeschichte
Austr. Yb. Int’l L.
Australian Yearbook of International
Law
Austrian J. Publ. Int’l Law
Austrian Journal of Public 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
Entscheidungen des Bundesverfassungsgerichtes (Decisions of the German Federal Constitutional Court)
Max Planck UNYB 13 (2009)
X
BYIL
British Yearbook of International Law
Cal. L. Rev.
California Law Review
Cal. W. Int’l L. J.
California Western International Law
Journal
Cal. W. L. Rev.
California Western Law Review
Case W. Res. J. Int’l L.
Case Western Reserve Journal of International Law
Chi. J. Int’l L.
Chicago 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
CTS
Consolidated Treaty Series
CYIL
Canadian Yearbook of International
Law
Den. J. Int’l L. & Pol’y
Denver Journal of International Law
and Policy
DGVR
Deutsche Gesellschaft für Völkerrecht
(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
Abbreviations
XI
eds
editors
e.g.
exempli gratia
EJIL
European Journal of International Law
ELJ
European Law Journal
Env. Policy & Law
Environmental Policy and Law
Envtl L. Rep.
Environmental Law Reports
EPIL
Encyclopedia of Public International
Law
et al.
et alii
et seq.
et sequentes
etc.
et cetera
EuGRZ
Europäische Grundrechte-Zeitschrift
FAO
Food and Agriculture Organization
Fla. J. Int’l L.
Florida Journal of International Law
Fordham Int’l L. J.
Fordham International Law Journal
Fordham L. Rev.
Fordham Law Review
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.
Rev.
Hastings International and Comparative Law Review
HRLJ
Human Rights Law Journal
HRQ
Human Rights Quarterly
XII
Max Planck UNYB 13 (2009)
HuV-I
Humanitäres Völkerrecht – Informationsschriften
IAEA
International Atomic Energy Agency
ibid.
ibidem; in the same place
IBRD
International Bank for Reconstruction
and Development
ICAO
International Civil Aviation Organization
ICJ
International Court of Justice
ICLQ
International and Comparative Law
Quarterly
ICSID
International Centre for 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
ICC
International Criminal Court
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. Int’l & Comp. L. Rev.
Indiana International and Comparative Law Review
Ind. J. Global Legal Stud.
Indiana Journal of Global Legal Studies
Int’l Aff.
International Affairs
Abbreviations
XIII
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. History Int’l L.
Journal of the History of International
Law
J. Int’l Aff.
Journal of International Affairs
JA
Juristische Arbeitsblätter
JIEL
Journal of International Economic Law
JIR
Jahrbuch für internationales Recht
JPR
Journal of Peace Research
JWT
Journal of World Trade
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
McGill L. J.
McGill Law Journal
Miami U. Int’l & Comp. L.
Rev.
University of Miami International and
Comparative Law Review
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
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
NAFTA
North American Free Trade Agreement
NATO
North Atlantic Treaty Organization
NILR
Netherlands International Law Review
NJCL
National Journal of Constitutional Law
NJW
Neue Juristische Wochenschrift
XIV
Max Planck UNYB 13 (2009)
Nord. J. Int’l L.
Nordic Journal of International Law
NQHR
Netherlands Quarterly of Human
Rights
NYIL
Netherlands Yearbook of International
Law
Ocean & Coastal L. J.
Ocean and Coastal Law Journal
ODILA
Ocean Development and International
Law
OJEC
Official Journal of the European Communities
Pace Int’l Law Rev.
Pace International Law Review
PCIJ
Permanent Court of International Justice
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
International Review of the Red Cross
RGDIP
Revue Générale de Droit International
Public
RIAA
Reports of International Arbitral
Awards
Riv. Dir. Int.
Rivista di Diritto Internazionale
RTDE
Revue Trimestrielle de Droit Européen
RUDH
Revue Universelle des Droits de
L’homme
Abbreviations
XV
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
Stanford L. Rev.
Stanford Law Review
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.
Probs
Transnational Law and Contemporary
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
Max Planck UNYB 13 (2009)
XVI
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
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
VVDStRL
Veröffentlichungen der Vereinigung der
Deutschen Staatsrechtslehrer
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
Abbreviations
XVII
Yale J. Int’l L.
Yale Journal of International Law
ZaöRV/ HJIL
Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht/ Heidelberg
Journal of International Law
ZEuS
Zeitschrift für europarechtliche Studien
ZRP
Zeitschrift für Rechtspolitik
Global Governance before the ICJ: Re-reading
the WHA Opinion1
Jan Klabbers
I.
Introduction
II. The Case
III. The Court, Powers, and the Principle of Speciality
1. A Brief Genealogy of the Principle of Speciality
2. Difficulties
3. Significance
IV. By Way of Conclusion
I. Introduction
It is hardly novel to suggest that conceptually and historically, public
international law developed mainly as a private law system regulating
relations between public actors, i.e. states. The “public” in public international law then referred, traditionally, not to the character of the system, but to the character of its subjects: these were public entities, hence
the name “public” international law seemed fully justified.2
Still, in recent years, there has increasingly been a belief that somehow public international law should do some justice to the term “pub1
2
An early version of this paper was presented at a meeting in Oslo in June
2008. The author is indebted to his co-panelists on that occasion, Catherine
Brölmann and Kirsten Schmalenbach, as well as the audience, for their
comments and questions, and to Geir Ulfstein for inviting him to begin
with.
See, classically, T.E. Holland, The Elements of Jurisprudence, 1924, 13th
edition, 393-394: the analogies of international law “are rather to the private than to the public branch of municipal law … Just as the parties in private law are two individuals, so in International law are they two States.”
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p.1-28.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
2
Max Planck UNYB 13 (2009)
lic” in its name. Sometimes this is reflected in the names of chairs at institutions of higher learning, with probably the best-known example
being that Philip Allott is emeritus professor of international public law
at Cambridge, rather than emeritus professor of public international
law. Trying to infuse public law elements raises one obvious question
though: how does one actually infuse public law thinking, public law
mechanisms, public law techniques, and public law disciplines, into a
system that is essentially based on private law concepts? If public law is
about constituting, maintaining and regulating governance, as some
contend, then how does this play out on the international level? How
can international law (public international law, that is) come to constitute, maintain, and regulate global governance?3
Some renowned international lawyers have been sceptical of the
very enterprise of doing so. One can think of Sir Gerald Fitzmaurice,
e.g., whose (joint) opinion in the 1962 South West Africa cases is often
seen as a rejection of anything “public” in the international legal order,4
and for whom, tellingly, treaties were at best sources of obligations, not
sources of law.5 The very statement alone suggests the absence of a public element. One might also think of Prosper Weil, whose rejection of
relative normativity in international law6 was founded upon the premise
that international law was at heart a horizontal system between sovereign equals – and in such a system there can hardly be anything “public”.
And yet, much current writing either advocates or commemorates
the coming of a public element in public international law. This applies
to those who espouse global constitutionalism in one form or another;
this applies to the many who applaud the existence of jus cogens norms
and erga omnes obligations; this applies to those who deplore the Wer3
4
5
6
This descriptive definition is adapted from M. Loughlin, The Idea of Public
Law, 2003, 1. Tomkins, in a similar vein, ascribes three tasks to constitutions: to create public institutions; to regulate relations between those institutions; and to regulate relations between those institutions and citizens.
See A. Tomkins, Public Law, 2003, 3.
See South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, ICJ Reports 1962, 319 et seq., Judges Fitzmaurice and Spender, Joint Dissenting Opinion, 465 et seq.
See Sir Gerald Fitzmaurice, “Some Problems Regarding the Formal Sources
of International Law”, in: F.M. van Asbeck et al. (eds), Symbolae Verzijl,
1958, 153 et seq. (157).
See P. Weil, “Towards Relative Normativity in International Law?”, AJIL
77 (1983), 413 et seq.
Klabbers, Global Governance before the ICJ: The WHA Opinion
3
degang of the concept of international crimes of states; this applies to
those who speak of global administrative law in its various guises. All of
this somehow presupposes that international law has been infused with
a public element.7
The ICJ and some of its individual judges can legitimately be said to
have paved part of the way, without, however, applying the finishing
touch. Lord McNair’s opinion on mandate territories as objective trusts
can be seen as an early forerunner,8 and most famously, in Barcelona
Traction the ICJ launched the notion of erga omnes obligations,9 only
to realize a year later in its Namibia opinion that the concept would be
difficult to apply in a coherent fashion – i.e. without violating the pacta
tertiis rule.10 Thereafter, it disappeared for more than a quarter of a century, until it was revived in the Israeli Wall opinion – albeit in not exactly the same manner.11
Perhaps the most obvious place to expect some attempts at conceptualizing the idea of “public” in public international law is the case law
of the ICJ and its predecessor on international organizations. After all,
these can intuitively be seen – and are often seen – as forms of some
embryonic world government.
The first few cases reaching the PCIJ were something of a disappointment though for those looking for a systematic and theoretically
plausible approach to global governance. Confronted with various
questions concerning the powers of the ILO, the Court, in line with the
general attitude prevailing at the time, chose to conceptualize the ILO
as a treaty entity, and instructed its audience that the proper interpreta-
7
8
9
10
11
For a more general exploration, see J. Klabbers/ A. Peters/ G. Ulfstein, The
Constitutionalization of International Law, 2009.
See International Status of South-West Africa, Advisory Opinion, ICJ Reports 1950, 128 et seq., Judge McNair, Separate Opinion, 146 et seq.
See Case concerning the Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain), Second Phase, ICJ Reports 1970, 3 et seq. (8384, paras 33-34).
See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 et seq. For
discussion, see J. Klabbers, “The Scope of International Law: Erga Omnes
Obligations and the Turn to Morality”, in: M. Tupamäki (ed.), Liber Amicorum Bengt Broms, 1999, 149 et seq.
See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 et seq.
4
Max Planck UNYB 13 (2009)
tion of the ILO constitution would no doubt reveal the proper scope of
the ILO’s powers.12 These cases, then, do not provide much food for
ideas concerning awareness on the Court’s part of there being anything
special about international organizations – much less about these institutions being capable of somehow transmogrifying into a form of
world government.
The Court did, however, rapidly start to take international organizations more seriously as actors in their own right. In 1927 it developed
the doctrine of attributed powers (or “functions” as it still chose to call
them), in the opinion on the case concerning the Jurisdiction of the
European Commission of the Danube. A little later, and well-nigh inevitably, it applied the federalist doctrine of implied powers to international organizations in the case concerning the Exchange of Greek and
Turkish Populations.
It expanded on this notion some two decades later in Reparation for
Injuries, and arguably went a step further still in Certain Expenses in
fleshing out some independent role for international organizations. But
at no point did the Court come up with any thoughts – however rudimentary or embryonic – on world government.13
This should not come as a surprise, of course: as long as international affairs could still meaningfully be classified as interactions, including cooperation, between sovereign entities, there was no need to
go any further, and it was quite possible that any attempts to dig deeper
would have been received with hostility at any rate. In the days when
the leading paradigm in international relations scholarship14 was a
steadfast realism conceptualizing states as ever so many billiard balls,
and the leading international law paradigm emphasized co-existence between those billiard balls, surely any attempt by the World Court to
posit an alternative vision would have met with resistance, and would
12
13
14
See generally J. Klabbers, “The Life and Times of the Law of International
Organizations”, Nord. J. Int’l L. 70 (2001), 287 et seq.
For a useful discussion on the attributed and implied powers doctrines, see
V. Engström, Understanding Powers of International Organizations, Doctoral Dissertation, Åbo Akademi University, 2009.
This somewhat overstates the case, as it is possible to argue that an independent academic discipline for the study of international relations did not
yet, as such, exist. Still, some of its pioneering authors began to develop realist doctrines around the same time. One of the classics is E.H. Carr, The
Twenty Years’ Crisis 1919-1939: An Introduction to the Study of International Relations, 1983 (1st edition 1939).
Klabbers, Global Governance before the ICJ: The WHA Opinion
5
have risked undermining whatever legitimacy the Court may have had
to begin with.
Still, post-war reconstruction, the mushrooming of international organizations, the identification of a law of co-operation (as opposed to a
law of mere co-existence15), and the slowly emerging phenomenon of
globalization meant that the time would come when the Court would
have to re-conceptualize the underpinnings of the global legal order. At
some point it would no longer be plausible to picture international law
as the law of billiard balls. The ideal occasion arose in 1996, when the
Court was confronted with two parallel requests, both stemming from
within the United Nations system, to speak out on the legality of the
threat or use of nuclear weapons.
To the (fairly limited) extent that international lawyers have started
to explore how a public element has been or may be infused into international law and global governance, they have by and large concentrated on the establishment of a framework of analysis.16
This paper will follow a different track, and investigate what lessons
may be learned from the ICJ’s boldest attempt to devise global governance law: its opinion in the WHA case. This opinion has remained curiously under-illuminated, probably for the reason that many may feel
that a decision to reject a request for an Advisory Opinion is bound to
be less interesting than a lengthy opinion on the substance of the matter. This maybe so, of course, as far as the legality of nuclear weapons is
concerned, but does an injustice to the Court’s fascinating attempt to
conjure up a world government in its WHA opinion.
15
16
The locus classicus is W. Friedmann, The Changing Structure of International Law, 1964.
Promising recent work includes N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, 2007; A. von Bogdandy/ P. Dann/ M. Goldmann, “Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities”, German Law Journal 9 (2008), 1375 et seq. as well as A. von Bogdandy/ R. Wolfrum/ J. von Bernstorff/ P. Dann/ M. Goldmann (eds), The
Exercise of Public Authority by International Institutions, Beiträge zum
ausländischen öffentlichen Recht und Völkerrecht Vol. 210, 2009; and B.
Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”, EJIL
20 (2009), 23 et seq.
Max Planck UNYB 13 (2009)
6
II. The Case
In May 1993, the plenary body of the WHO (i.e., the World Health Assembly – WHA) adopted a resolution asking the ICJ for an Advisory
Opinion on whether the use of nuclear weapons by a state would be in
contravention of international law, including the WHO Constitution. A
number of states submitted written observations, some in support of
the request, others claiming that it was misconceived. The Court recalled that a request coming from the WHO could fall, in principle,
within the scope of its jurisdiction, provided it met with the two conditions spelled out in Article 96, para. 2, of the UN Charter. First, the request must contain a legal question, and second, the request must fall
within the “scope of ... activities” of the organization asking for it. The
Court answered the first question in the affirmative, but famously answered the second one in the negative.
The Court’s methodology and reasoning are of great interest. Normally speaking (if there is such a thing as “normally speaking” to begin
with in international law) one could have expected the Court to present
an interpretation of the WHO Constitution and, most likely, a discussion of the WHO’s practice as well. After all, these are supposed to
shed light on the intentions of the drafters and Member States, and
those intentions are often held to be decisive.17 And indeed, to some extent this is what the Court did.
In doing so, one could have expected – again, normally speaking – a
discussion of the various ways in which powers or competences can be
attributed to international organizations: the doctrine of conferred (or
attributed) powers, the doctrine of implied powers, perhaps even, pace
Seyersted, the doctrine of inherent powers.18 And again, to some extent,
this is what the Court did. But what makes the reasoning of great interest is that the Court took matters a step further, and it is worth following in some detail what exactly it is that the Court did.
17
18
As much can be said to be reflected in article 31 of the Vienna Convention
on the Law of Treaties, outlining a general rule on interpretation plus contextual factors deemed to be of relevance, including later practice.
For a general discussion, see J. Klabbers, An Introduction to International
Institutional Law, 2009, 2nd edition, Chapter 4. Seyersted’s views have recently been comprehensively (if posthumously) presented as F. Seyersted,
Common Law of International Organizations, 2008.
Klabbers, Global Governance before the ICJ: The WHA Opinion
7
The Court started its analysis by pointing to the dual nature of constitutions of international organizations.19 These are not mere treaties;
they are, instead, treaties of a particular type, creating “new subjects of
law endowed with a certain autonomy (and) to which the parties entrust the task of realizing common goals.” This mixture of convention
and institutional document then may warrant a somewhat different emphasis when such treaties come to be interpreted.20
This is still familiar territory: the Court seems to be setting the stage
for a traditional analysis in terms of attributed and implied powers. The
next paragraphs21 still strike the same note: the Court engages in a discussion of the various functions of the WHO as listed in article 2 of the
WHO Constitution, and reaches the conclusion that the WHO is undoubtedly competent to occupy itself with the effects of activities (including the use of nuclear weapons) on human health. Still, as the Court
itself emphasizes, the competence to discuss health effects does not depend on the legality of those same human activities. Indeed, the Court
drives the same point home when it observes that “[w]hether nuclear
weapons are used legally or illegally, their effects on health would be
the same.”22 And this conclusion is not affected, so the Court noted in a
brief and rather terse paragraph, by the circumstance that the WHO itself may have thought that the matter did fall within its competence, as
evidenced by the very resolution by which the Court was approached
as well as other documents that have met with the approval of the
WHO’s membership.23
This latter observation comes as a surprise, for usually (“normally
speaking”, again) the powers of an international organization may well
be said to be based at least in part on the organization’s practice:24 if the
19
20
21
22
23
24
See Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
Advisory Opinion, ICJ Reports 1996, 66 et seq., (74-75, para. 19). I shall
hereafter refer to this opinion as the WHA opinion.
The distinction was classically noted by McNair as early as 1930. See Lord
McNair, The Law of Treaties, 1961, 2nd edition, 743 et seq. (reproducing a
short article first published in 1930).
See WHA opinion, see note 19, 75-76, paras 20-21.
Ibid., 76-77, para. 22.
Ibid., 78, para. 24.
Ibid., Dissenting Opinion Judge Weeramantry, 153, who invokes past practice and the absence of protest thereto as an argument for the finding that
the WHO was indeed competent to address legal and political issues related to health.
8
Max Planck UNYB 13 (2009)
organization engages in a certain practice or adopts a certain position
with some degree of consistency, and its Member States approve or acquiesce, then for all practical – and legal – purposes the organization
must be deemed competent to engage in these acts. To the extent that
organizations are created by states, those states continue to be regarded
as masters of their treaty; if they jointly feel the need to have the organization engaged in activity X, then typically the organization shall
indeed be competent to engage in activity X, even if there is no explicit
treaty provision to the effect that the organization can engage in activity
X.
It is precisely in this manner that NATO has managed, since the end
of the Cold War, to expand its mandate on the basis of agreement
among its Member States.25 And if a reminder be needed, it was partly
on this basis that the ICJ itself reached the conclusion that the United
Nations’ international legal personality had to be presumed in Reparation for Injuries: part of the evidence adduced was the circumstance that
the practice of the United Nations, subsequent to the entry into force
of the Charter, suggested the conclusion of treaties and engaging in international acts more generally which could not be explained other than
on the basis of a certain measure of international legal personality.26
Hence, on the basis of time-honored thinking in international institutional law, there would have been a strong case for arguing that by its
actions, and with the general consent or acquiescence of its Member
States, the WHO had acquired the competence to address not merely
the health effects of the use of nuclear weapons, but also their legality.
III. The Court, Powers, and the Principle of Speciality
As noted, the WHO had a fairly strong case, based on traditional international institutional doctrine, that its request ought to be honored. As
a result, in order to deny the WHO’s claim, the Court needed to rewrite this traditional international institutional doctrine to some extent,
25
26
The German Constitutional Court accepted as much in Case 2 B v E 6/99,
22 November 2001, available at <www.bundesverfassungsgericht.de>. A
useful discussion is S. Bölingen, Die Transformation der NATO im Spiegel
der Vertragsentwicklung: Zwischen sicherheitspolitischen Herausforderungen und völkerrechtlicher Legitimität, 2007.
See Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, ICJ Reports 1949, 174 et seq. (179).
Klabbers, Global Governance before the ICJ: The WHA Opinion
9
and it did so by introducing a highly ambivalent (and hitherto unknown) “principle of speciality”. At its first mention, the Court defines
this principle as meaning that international organizations “are invested
by the States which create them with powers, the limits of which are a
function of the common interests whose promotion those States entrust
to them.”27 Leaving the convoluted nature of the sentence aside, this
boils down to a re-statement of the doctrine of attribution, and indeed,
it is no coincidence that the Court cites the locus classicus on attributed
powers (the PCIJ’s opinion on the Jurisdiction of the European Commission of the Danube) in support. The Court subsequently also refers
to the doctrine of implied powers, citing Reparation for Injuries and Effect of Awards in support. Hence, somehow the principle of speciality is
posited here as the combination of the doctrines of attributed and implied powers.28 It is this principle on which the powers of institutions
depend, as the Court makes perfectly clear in the final sentence of the
same paragraph,
“to ascribe to the WHO the competence to address the legality of
the use of nuclear weapons … would be tantamount to disregarding
the principle of speciality; for such competence could not be deemed
a necessary implication of the Constitution of the Organization in
the light of the purposes assigned to it by its member States.”29
So far, so good. At this point, one might legitimately conclude that
the interpretation of the WHO Constitution, in conjunction with its
subsequent practice, is rather strict, but also that this is, in effect, a matter of interpretation – nothing more. The principle of speciality as posited in para. 25 of the opinion remains firmly in control of the Member
States, for it is the Member States who decide on the functions, tasks
and competences of the organization. This was traditionally held to be
the case with respect to both attributed powers and (arguably with less
plausibility) implied powers; so as long as speciality is conceptualized as
merely the aggregate of these two, there is nothing new here. But, as
noted, this particular interpretation of the WHO Constitution would
always remain vulnerable to the critique that it is too narrow: if the subsequent practice reveals that the WHO has actually addressed issues of
27
28
29
See WHA opinion, see note 19, 78-79, para. 25.
This is consistent, as will be discussed below, with the Court’s general conceptualization of both conferred and implied powers as arising by necessary intendment, therewith originating in the consent of Member States.
See WHA opinion, see note 19, 78-79, para. 25.
Max Planck UNYB 13 (2009)
10
legality of nuclear weapons, and if such exercise has gone unopposed,
then how is it possible for the Court to reach a different conclusion?
So, the opinion takes a turn here and introduces a rather novel element: the Court observes that the WHO is not an ordinary organization, but is embedded in a larger framework. It is one of the specialized
agencies of the United Nations, for whose activities the Charter envisaged an elaborate coordination mechanism. As the Court put it, the
Charter created something of a system of international cooperation,
“by bringing the United Nations, invested with powers of general
scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers.”30
This now is where things get really interesting. The Court proceeds
by stating that it follows that the interpretation of the WHO Constitution should take place not only by taking the principle of speciality into
account, but also by looking at the general system created by the Charter. Whatever responsibilities the WHO has been given, these “cannot
encroach on the responsibilities of other parts of the United Nations
system.”31 As a consequence, since matters of peace and security belong
squarely to the United Nations itself, they must lie outside the competence of the specialized agencies. Indeed, the very notion of specialized
agency only makes sense, so the Court suggests, against the background
of a division of labor. The Court’s sense of phrasing is interesting
enough to be cited,
“it is difficult to imagine what other meaning that notion [i.e., specialized agency – JK] could have if such an organization need only
show that the use of certain weapons could affect its objectives in
order to be empowered to concern itself with the legality of such
use.”32
In other words, the unexpected move made by the Court boils
down to the proposition that the powers of an international organization (or, at a minimum, those of the specialized agencies) do not depend
solely on the wishes, desires and intentions of their Member States, but
also on their place within the framework of global governance. The
powers of the WHO, in this case, depend to some extent on the role the
WHO is supposed to play within the larger United Nations family; and
30
31
32
Ibid., 79-81, para. 26.
Ibid.
Ibid.
Klabbers, Global Governance before the ICJ: The WHA Opinion
11
almost by definition, this means that the matter is taken out of the
hands of the WHO’s own Member States.
Surprisingly perhaps in light of the Court’s rather novel approach,
the Declarations and Separate and Dissenting Opinions issued by some
of the individual judges show the same spirit.33 Thus, in a Declaration,
Judge Ferrari Bravo seems to suggest that the WHO cannot have the
power to address the legality of nuclear weapons on the theory that
such an issue has been entrusted only to the United Nations – which
implies that the scope of powers of the WHO is to be decided not (or
not only) by looking at the WHO Constitution, but also (or in particular) by looking at the UN Charter. Indeed, Judge Ferrari Bravo’s sense
of phrasing carries strong overtones that his vote was predominantly inspired by an interpretation of the UN Charter rather than one of the
WHO Constitution, and is worth citing in full,
“The Court is the principal judicial organ of the United Nations,
but it is not the judicial organ of other international bodies whose
right to seise the Court needs to be carefully restricted if the intention is to maintain a correct division of competences – and hence of
effectiveness – among the international organizations, in a bid to
prevent those political functions that the logic of the system has entrusted only to the United Nations from being usurped by other organizations which, to say the least, have neither the competence nor
the structure to assume them.”34
Clearly, for Judge Ferrari Bravo, the overriding concern is the effectiveness of the entire system, not what the Constitution of the WHO
says.
In a Separate Opinion, Judge Oda too highlights the division of
competences between the United Nations and the WHO, and does so
not so much by pointing to the WHO Constitution, but by tersely remarking that some WHO members have only been interested in nuclear
weapons since the early 1990s, despite those weapons having been in
existence for half a century.35 Moreover, there was some disagreement
within the WHO itself as to whether it could address the legality of nu33
34
35
The main exception here is the Dissenting Opinion of Judge Shahabuddeen, who concentrates almost exclusively on the distinction between merits and preliminary issues, holding that the Court is in fact answering the
question which it claims it cannot answer.
See WHA opinion, see note 19, Declaration of Judge Ferrari Bravo, 87 (emphasis deleted – JK).
Ibid., Separate Opinion Judge Oda, 90, para. 6.
12
Max Planck UNYB 13 (2009)
clear weapons, and more generally “the limited function of the WHO,
as one of the specialized agencies, was obviously well known to the Organization.”36 Then again, as Judge Oda also notes, while there may
have been disagreement as to whether the legality of nuclear weapons
fell within the scope of the WHO’s powers, a US-sponsored motion to
determine that the scope of powers excluded the issue was defeated by a
healthy majority of 62 against 38, with 3 abstentions.37 Hence, a majority of the WHO’s Member States seemed to think the legality question
was within the scope of the WHO’s powers. Hence, Judge Oda changes
tactics and ends up placing much faith in the opinion of the Legal
Counsel of the WHO. The Legal Counsel had asserted the WHO’s lack
of competence and, so Judge Oda seemed to claim, would know better
than the Member States what exactly the WHO’s powers would be.38
And to add insult to injury, Judge Oda suggested that the WHA had, in
effect, been hijacked by civil society politics: the resolution containing
the request to the Court, so he noted with some disdain, “was initiated
by a few NGOs which had apparently failed in an earlier attempt to get
the United Nations General Assembly to request an advisory opinion
on the subject.”39
Judge Weeramantry, while keen to find the WHO competent to request an opinion on the legality of nuclear weapons, nonetheless had
worked on the same premise as the Court. To him, the WHO was part
of the UN system, and “the agent par excellence for co-ordination with
other specialized agencies and professional bodies in relation to the
medical hazards of nuclear weapons.”40 It was precisely to exercise its
tasks properly that it was competent to approach the Court; it would
not be able to function properly “if it has to act behind a veil of ignorance regarding the legality or otherwise of the greatest of man-made
threats to human health.”41
In other words, while accepting the division of labor so cherished by
the majority, he nonetheless held that the WHO had the power to seize
the Court. Indeed, he turned the argument on its head: limiting the
scope of activities the WHO can engage in will have a “restricting effect
also upon the other United Nations agencies who may be guided by
36
37
38
39
40
41
Ibid., 90, para. 5.
Ibid., 93, para. 10.
Ibid., 96, para. 16.
Ibid., 96, para. 16.
Ibid., Dissenting Opinion Judge Weeramantry, 130.
Ibid.
Klabbers, Global Governance before the ICJ: The WHA Opinion
13
this narrow view of the area of their legitimate concerns.”42 Precisely
the existence of a coherent system demands a broad interpretation of
powers: one would not wish to see issues fall through the cracks between different agencies with limited mandates,43 and would not wish
to see the mandates of the specialized agencies unduly limited,
therewith undermining the effectiveness of global governance. Hence,
even though Judge Weeramantry differed in his opinion on the proper
interpretation of the scope of powers of the WHO, he did accept the
Court’s point of departure: that there exists a more or less coherent
blueprint for global governance involving a division of labor between
the United Nations and its various specialized agencies.
Something similar applies to Judge Koroma’s dissent: to Judge
Koroma, the division of labor between the United Nations and the
WHO (or the other specialized agencies, for that matter) was above all
a division in terms of general and specific competence.44 Like Judge
Weeramantry, he dismisses the idea that the division of competences
could have been intended to be exclusive, with the United Nations itself
exclusively competent to address matters of peace and security, and the
WHO exclusively competent to deal with health. After all, as he reminds us, the UN Charter refers to health on a few occasions (Articles
13 and 62 when it comes to the activities of the General Assembly and
the Economic and Social Council, respectively, and Article 55 concerning the United Nations’ aspirations), whereas the WHO would be
competent “to deal with every conceivable element in the field of
health.”45
What is remarkable in the end is that both the majority and the
judges in the minority seemed to have fully accepted a basic division of
competences as their point of departure. The disagreement between the
majority on the one hand, and Judges Koroma and Weeramantry in
particular on the other hand, related not to the division of competences
per se, but to the question whether the competences were exclusive in
nature. The majority held that these competences constituted “compartmentalized categories of exclusive activity”, in Judge Weeramantry’s
42
43
44
45
Ibid., 134.
See also how he embraces the idea of overlap: the agencies deal with human
activities “and it is of their very nature that they should have overlapping
areas of concern”, ibid., 151.
Ibid., Dissenting Opinion Judge Koroma, 194-196.
Ibid., 196.
14
Max Planck UNYB 13 (2009)
somewhat disdainful phrase;46 Judges Koroma and Weeramantry held
that instead, competences were best seen as fluid and overlapping.
1. A Brief Genealogy of the Principle of Speciality
One of the more surprising elements of the case, as highlighted above, is
that the Court discussed the division of powers in terms of a principle
of “speciality”. This is surprising, in that the term “speciality” has never
been the usual way to discuss competences of international organizations.47 The ICJ itself (and before it the PCIJ) never used the term, and
it is not the standard term in the literature either.
The PCIJ’s first encounters with international organizations (to wit,
the ILO) did not yet give rise to much systematic thought about powers or competences. The closest the Court came in its first few cases was
a brief, somewhat inconclusive, discussion of the question whether
powers should be regarded as delegated or not. Instead of theoretical
classifications, so the Court seemed to suggest, what matters was what
the Member States had actually agreed on: “the province of the Court is
to ascertain what it was the Contracting Parties agreed to.”48
The Court first started to engage in systematic thinking about the
powers of international organizations in its opinion on the Jurisdiction
of the European Commission of the Danube. Prompted by Romania’s
insistence that the Commission had been invested with technical powers but not juridical powers (i.e., decision-making powers), the Court
discussed this distinction at length, only to find that it was not plausible
in the case at hand – and perhaps, we may surmise, not plausible in any
46
47
48
Ibid., Dissenting Opinion Judge Weeramantry, 170.
So also as undisputed an authority as Amerasinghe, noting that by referring
to speciality “the Court referred to a principle which has apparently not
been discussed before.” See C.F. Amerasinghe, “The Advisory Opinion of
the International Court of Justice in the WHO Nuclear Weapons Case: A
Critique”, LJIL 10 (1997), 525 et seq. (535).
See Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion, 1926,
PCIJ, Series B, No. 13, 1 et seq. (23). Note also that the Court does not yet
speak of Member States but rather of contracting parties, a term more appropriate when discussing non-institutional treaties.
Klabbers, Global Governance before the ICJ: The WHA Opinion
15
case, as the exercise of a technical power need necessarily involve some
decision-making power.49
More to the point though, the Court also laid down the idea that
powers are somehow conferred or attributed to international organizations without, however, using these terms. Instead, it spoke of “functions” being “bestowed” on an organization: since the European Commission of the Danube “is not a State, but an international institution
with a special purpose, it only has the functions bestowed upon it by
the Definitive Statute with a view to the fulfillment of that purpose, but
it has power to exercise these functions to their full extent, in so far as
the Statute does not impose restrictions upon it.”50
Less than a year later, in August 1928, the Court launched the implied powers doctrine in its opinion on the competences of the Mixed
Commission for the Exchange of Greek and Turkish Populations set up
to monitor the implementation of a series of treaties on the exchange of
Greek and Turkish populations. By now, the Court’s thinking on the
competences of international bodies had taken on systematic features,
and one of those was the consistent use of the verb “to confer”. Powers,
so the Court stated time and again, are “conferred” on international organizations.51
This then was to become the standard theory about the powers of
international organizations, and other entities as well – such as territories placed under some form of international authority. Thus, the Governor of the Memel Territory had been “given” certain rights or powers,52 with “to give” being used as a synonym of “to confer”.53 The theory would culminate in the classic Reparation for Injuries opinion:
powers of international bodies, whether explicitly contained in their
49
50
51
52
53
See Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion, 1927, PCIJ, Series B, No. 14, 6 et seq.
(46).
Ibid., 64. The Definitive Statute was the Commission’s constituent document. A useful discussion of the connection between functions and powers
is Engström, see note 13.
See Interpretation of the Greco-Turkish Agreement of December 1st, 1926
(Final Protocol, Article IV), Advisory Opinion, 1928, PCIJ, Series B, No.
16, 5 et seq. (18, 19).
See Interpretation of the Statute of the Memel Territory (UK, France, Italy
and Japan v. Lithuania), 1932, PCIJ, Series A/B, No. 49, 294 et seq. (312
and 319).
Ibid., 317.
16
Max Planck UNYB 13 (2009)
constituent documents or implied, have been given to the body in question. In casu, the United Nations was said to have been “charged” with
certain tasks; the UN Member States have “entrusted” certain functions
to the United Nations; they have “clothed” the United Nations with
competences,54 and have “endowed” it with the capacity to bring certain claims.55
What is more, the capacity to bring certain claims arose “by necessary intendment out of the Charter”,56 despite not being explicitly mentioned in the Charter. Reparation for Injuries therewith completes the
reasoning first pioneered by the PCIJ in the mid-1920s. Organizations
(and other international bodies or entities) derive their powers from
their Member States. Powers are given, conferred, or endowed; whichever verb is used, the conclusion must be that competences flow from
Member States to organizations. This makes perfect dogmatic sense: in
a world made up of sovereign states, it could hardly be otherwise. Sovereign states create entities to which they entrust certain tasks and confer certain powers. Any other construction would have been incoherent
in light of the general conception of the nature of international law as
state-based. While there was some controversy concerning the precise
scope of the United Nations’ implied powers,57 the underlying construction has dominated the discipline ever since.58
The Court would confirm its theory in subsequent opinions, most
notably perhaps Effect of Awards and, arguably, Certain Expenses. In
Effect of Awards, the Court reiterated the view that implied powers, although unwritten, nevertheless could be traced back to the intentions of
the organization’s Member States: citing Reparation for Injuries, such
powers arise “by necessary intendment out of the Charter.”59 And in
Certain Expenses, the Court went so far as to say that actions must
typically be presumed to be within the competence of an international
54
55
56
57
58
59
See Reparation for Injuries, see note 26, all verbs at 179.
Ibid., 180. At 182, the verb “to confer” is used.
Ibid., 184.
See ibid., Dissenting Opinion Judge Hackworth, 198.
Also explicitly by Judge Hackworth: “There can be no gainsaying the fact
that the Organization is one of delegated and enumerated powers.” Ibid.,
198.
See Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1954, 47 et seq. (57).
Note also that the Court consistently speaks of powers having been “conferred.”
Klabbers, Global Governance before the ICJ: The WHA Opinion
17
organization, a statement which sometimes has given rise to the idea
that the Court actually applied a doctrine of inherent powers.60 Be that
as it may, the underlying theory of powers stemming from Member
States remained unaffected: even in Certain Expenses, the Court consistently spoke of powers having been “conferred” on the United Nations.61
Hence, the introduction of a principle of speciality in the WHA
opinion had no firm basis in precedent, neither under that very name
nor conceptually. As far as the name goes, the Court, prior to the WHA
opinion, consistently spoke of “to confer” or, on occasion, used synonyms, sometimes quite a few at once. But in all cases the underlying notion remained that of a conferral of powers: Member States giving powers to their organizations.62
The term “speciality”, however, carries a rather different connotation. If normally the discussion about powers of organizations is conducted in terms of the relationship – however precarious – between the
organization and its Member States, the term “speciality” places another consideration in the picture: that of the relationship between the
regular and the exceptional. As the Oxford English Dictionary explains,
one of the uses of “speciality” is to distinguish something separate from
something usual and common, with an example being a gallery of speciality counters within a larger supermarket.63 And this is indeed, it may
be presumed, the association the Court tried to evoke: “speciality” does
not, ordinarily, refer to how an organization relates to its members, but
refers to relations between organizations inter se or, in this case, between the United Nations and the specialized agencies.
In light of the circumstance that the Court never seems to have used
the term before, its use in the WHA opinion appears artificial, and on
one level it is used, however strained, as synonymous to “conferred
powers”. When the Court formally defines the principle of speciality, it
is to say that the principle entails that organizations “are invested by the
States which create them with powers, the limits of which are a function
of the common interests whose promotion those States entrust to
60
61
62
63
See in particular Seyersted, see note 18.
See Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, ICJ Reports 1962, 151 et seq. (168).
A useful conceptual study of the different forms such conferrals can take,
see D. Sarooshi, International Organizations and their Exercise of Sovereign Powers, 2005.
See <http://dictionary.oed.com>.
18
Max Planck UNYB 13 (2009)
them.”64 As if to bolster the point, the Court immediately refers to the
PCIJ’s opinion on the Jurisdiction of the European Commission of the
Danube, which does attribute a “special purpose” to this Commission.65
The Court then continues by applying this principle of speciality to
the case at hand – or so it seems at first. It reminds the reader that certain powers can be implied; it quotes Reparation for Injuries to this effect, and then, without any argument, states that the WHO lacks the
implied power to ask for an opinion on the legality of nuclear weapons.
The entire discussion of the existence of such an implied power takes up
a single sentence, six lines in the published version,
“In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in
view of their health and environmental effects – would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it
by its member States.”66
The Court could have stopped here: it concludes that an implied
power to address the legality of the use of nuclear weapons is lacking,
and even though there is a distinct lack of argument substantiating the
conclusion, the conclusion itself could well be justifiable.67
But instead of stopping, the Court continues by discussing the position of the WHO as a specialized agency, affiliated with the United Na-
64
65
66
67
See WHA opinion, see note 19, 78-79, para. 25.
It will remain speculation, but perhaps the reference to “special purpose”
prompted the Court to think of the term “speciality”. Lauterpacht suggests
that the term derives from French legal thought, noting that the authoritative language of the opinion is French. See E. Lauterpacht, “Judicial Review
of the Acts of International Organisations”, in: L. Boisson de Chazournes/
P. Sands (eds), International Law, the International Court of Justice and
Nuclear Weapons, 1999, 92 et seq. (98-99). Be that as it may, it would seem
that also in French, the term has never been used before by the World
Court.
See WHA opinion, see note 19, 78-79, para. 25.
Klein, e.g., finds that the conclusions the Court reaches concerning the
scope of the WHO’s powers “ne sont pas déraisonnables”. See P. Klein,
“Quelques réflexions sur le principe de spécialité et la ‘politisation’ des institutions spécialisées”, in: Boisson de Chazournes/ Sands, see note 65, 79 et
seq. (83).
Klabbers, Global Governance before the ICJ: The WHA Opinion
19
tions – and it is this circumstance which renders the Court’s formal
definition of speciality as synonymous to conferral rather implausible.
The Court posits the thesis “that the WHO Constitution can only be
interpreted, as far as the powers conferred upon that organization are
concerned, by taking due account not only of the general principle of
speciality, but also of the logic of the overall system contemplated by
the Charter.” Nominally, this would still equate speciality with attribution or conferral. Practically, however, the Court here introduces an association to the far more natural meaning of the term “speciality”: that
of the division of labor between the United Nations and its specialized
agencies.68 It is no coincidence, surely, that the term taps into sentiments associated with those specialized agencies to begin with, and it
would have been decidedly odd – and unconvincing – to refer to speciality without discussing specialized agencies.69 Difficult as it may be to
prove a counterfactual, it might be a useful intellectual exercise to imagine the Court’s discussion of implied powers in terms of a principle of
speciality without any reference to the position of the WHO as a specialized agency: what if the Court had never referred to the relationship
between the WHO and the United Nations? In that case, use of the
term “speciality” to describe the doctrine of conferred powers would
have seemed a serious misnomer.
2. Difficulties
As demonstrated above, both the Court’s majority and the judges in the
minority seemed to have accepted as their fundamental point of departure the idea that somehow the powers of the WHO must be seen not
just in light of the WHO’s Constitution, but also in light of the place of
the WHO within the UN family. Still, attractive as that idea may be, it
encounters at least two problems. One of these is historical; the other is
related to deep-rooted conceptions about the effects of treaties generally.
Historically, it is difficult to suggest that the scope of competences
of the WHO can depend on any concerns related to the United Na68
69
This is also how the term is understood by Klein: as referring both to conferral and to a division of labor among the members of the UN family. See
Klein, see note 67.
And by the same token, words like “special” are usually juxtaposed against
“general”; think only of lex generalis and lex specialis.
20
Max Planck UNYB 13 (2009)
tions. The WHO was created in 1946, and while this would seem to
suggest that it was established after the creation of the United Nations
(which would make it easier to see a global governance blueprint), the
WHO is to some extent to be regarded as the successor to the earlier
Office International d’Hygiène Public (OIHP).70 This OIHP itself was
established in 1907, and thus preceded not only the United Nations by
some four decades, but also preceded the League of Nations, sometimes
regarded as the United Nations’ predecessor.
The continued relationship between the two organizations would
seem to be undisputed.71 Thus, the WHO continued paying pensions to
former staff members of the OIHP and even increased them in accordance with rising costs of living;72 it accepted OIHP responsibilities
with respect to its assets,73 and partially collected the arrears owed by
Member States to the OIHP.74 Moreover, the establishment of the
WHO carried extra difficulties, as highlighted earlier by the Court in its
1980 Advisory Opinion concerning the WHO’s regional offices.75
These, to some extent, preceded the WHO as well, and the WHO Constitution specifically provided for these pre-existing regional offices to
be integrated “through common action based on mutual consent.”76
Whether that implies that the integration of pre-existing offices must be
regarded as instances of succession properly speaking is unclear, but at
least it suggests that the WHO did not come out of the blue.77
70
71
72
73
74
75
76
77
See, e.g., H.J. Hahn, “Continuity in the Law of International Organization”, Österreichische Zeitschrift für öffentliches Recht 13 (1964), 167 et seq.
(178-179).
Sands and Klein, e.g., write that the WHO was established in 1946 “assuming the functions of the International Office of Public Health.” See P.
Sands/ P. Klein, Bowett’s Law of International Institutions, 5th edition
2001, 97.
See H.G. Schermers/ N.M. Blokker, International Institutional Law, 2003,
4th edition, § 1667.
Ibid., § 1674.
Ibid., § 1675.
See Interpretation of the Agreement of 25 March 1951 between the WHO
and Egypt, Advisory Opinion, ICJ Reports 1980, 73 et seq. (76-77, paras
11-12).
WHO Constitution, article 54.
See also Burci’s comment to the effect that the creation of the WHO
marked “the centralization into a single universal agency of the functions
previously exercised by a number of international bureaux.” See G.L.
Klabbers, Global Governance before the ICJ: The WHA Opinion
21
Yet, none of this is reflected in the WHA opinion. All there is concerning the WHO’s history is a terse, one-sentence statement,
“The WHO Constitution was adopted and opened for signature on
22 July 1946; it entered into force on 7 April 1948 and was amended in
1960, 1975, 1977, 1984 and 1994.”78
In other words, the Court does create the impression that the WHO
was created out of nothing or, more accurately perhaps, as part of a
blueprint for global governance involving the United Nations and the
other specialized agencies. Historically, however, it would seem that a
rival thesis may be at least equally plausible: the United Nations, upon
its creation, found itself surrounded by a number of existing entities,
and tried to provide the patchwork of agencies and institutions with
some cohesion. In this scenario, it is not a matter of working according
to an abstract blueprint but rather a matter of coping with the existing
set-up in the hope of providing the patchwork with at least the semblance of a pattern. And one ramification of such coping might well be
to try and coordinate the activities of various organizations with partly
overlapping mandates and powers – precisely as provided for in para. 2
of Article 63 of the UN Charter.79
The second problem attached to the Court’s proposition that the
WHO Constitution be read in conjunction with the system of governance set up under United Nations auspices is the traditional third party
problem.80 Several founding members of the WHO were not among the
founding members of the United Nations: these include Finland, Italy,
and Portugal. Conversely, Saudi Arabia is among the founding members of the United Nations, but not of the WHO. Adopting the Court’s
proposition would imply that Saudi Arabia, as a United Nations Member State from the start, would have been able to help create a legal regime applicable to states such as Finland, Italy or Portugal, without the
latter’s consent. Surely, in a legal order where the notion of sovereign
equality reigns supreme (as confirmed in the UN Charter itself), such a
construction runs into problems: in such an order, the scope of powers
of the WHO cannot depend on the intentions of states that were not
78
79
80
Burci, “Health and Infectious Disease”, in: T.G. Weiss/ S. Daws (eds), The
Oxford Handbook on the United Nations, 2007, 582 et seq. (583).
See WHA opinion, see note 19, para. 20.
Indeed, hypothetically there would perhaps not be all that much to coordinate if the system had been designed following a well-crafted blueprint.
The seminal study remains C. Chinkin, Third Parties in International Law,
1993.
Max Planck UNYB 13 (2009)
22
involved in the drafting of the WHO Constitution (such as Saudi Arabia), while bypassing those states that actually were involved in the
drafting (such as Finland, Italy and Portugal).
And even if membership had been completely overlapping in 1946
when the WHO was created, even then there would be room for the argument that the powers of the WHO cannot be made to depend on external factors. If every single treaty is to be considered as a thing between the parties (res inter alios acta), as is often suggested, then it
would seem to follow that this also applies to the UN Charter and the
WHO Constitution.81 While admittedly the conclusion of agreements
between the two organizations will help to mitigate some of the worst
effects of their “splendid isolation”, it will still be difficult to maintain
that the one organization was set up so as to give effect to the desires of
the other, at least not in the absence of a specific clause to this effect.
3. Significance
Why now did the Court launch the proposition that the scope of powers of the WHO is partly dependent on the position of the WHO
within the system of organizations functioning under auspices of the
United Nations, and ended up rejecting the WHO’s request? Several
possible answers present themselves. First, it may have wanted to further develop the law of international organizations precisely in light of
the circumstance, that usually, there are few limits to what the members
can make the organization do. The combined outcome of the doctrines
of attributed and implied powers, at least on the generous interpretation
prevailing since Reparation for Injuries, is that the organization can engage in any activity it pleases as long as the Member States see the point
of the activity. In this light, the ultra vires doctrine (holding that organizations cannot act beyond their competences) has always remained
weak.82 It is not impossible that the Court spotted a possibility, in the
WHA opinion, to further develop the law on control of organizational
81
82
In Reparation for Injuries, Judge Badawi Pasha made essentially the same
point: while the specialized agencies may show a certain resemblance to
each other “each of these persons depends, as regards its objects, principles,
organization, competence, rights and obligations, on the terms of its constitution, and is deemed to exist only for the benefit of States which have
signed and ratified, or which have acceded to that instrument.” See Reparation for Injuries, see note 26, Dissenting Opinion Judge Badawi Pasha, 205.
See further Klabbers, see note 18, 218-219.
Klabbers, Global Governance before the ICJ: The WHA Opinion
23
expansion. And it is by no means eccentric to suggest that the time was
ripe to do so, in the aftermath of the International Tin Council litigation, the Westland Helicopters affair, and while leading academics,
united in the Institut de Droit International, were addressing the responsibility of organizations and their Member States under international law.83
The second possibility is more tantalizing still: confronted with a
similar request emanating from the UN General Assembly, the Court
may have seen a golden opportunity to posit something along the lines
of a structure for global governance. After all, having two similar requests before it meant that the Court could pragmatically decide to answer only one of them,84 but that would work only on the basis of a
theory as to why that particular one should be addressed but not the
other one. Why answer the General Assembly, but not the WHO? The
obvious answer could well reside in a division of labor between the
two.85 But in order to get there the Court first had to find a way to
dismiss the WHO’s request, and that dismissal would demand a rethinking of the basis of the powers of international organizations.
If the above is even marginally plausible, the question presents itself
as to what the WHA opinion signifies. At the very least, it would seem
to mark the Court’s general dissatisfaction about its existing theory
concerning the powers of international organizations. This has traditionally proven to be a difficult topic for the Court, not surprisingly
perhaps in light of the difficult fit of organizations in an essentially
horizontal legal order.86
Those problems were clearly visible in the first cases involving the
ILO, and even in the celebrated Reparation for Injuries case. In the latter, the Court curiously discussed a convention benefitting the United
83
84
85
86
See J. Klabbers, “The Changing Image of International Organizations”, in:
J.M. Coicaud/ V. Heiskanen (eds), The Legitimacy of International Organizations, 2001, 221 et seq.
It might also have been possible for the Court to join the two requests had
it wished to do so.
Hints to this effect were contained in the pleadings and written comments
made before the Court. Thus, the US Written Comments referred to “other
fora which have an express mandate” to discuss nuclear weapons (page 2).
Available at the Court’s website: <www.icj-cij.org>.
For an intelligent exploration of this theme, see C. Brölmann, The Institutional Veil in Public International Law: International Organisations & the
Law of Treaties, 2007.
24
Max Planck UNYB 13 (2009)
Nations (the 1946 Convention on the Privileges and Immunities of the
United Nations) as an example of the practice of the UN itself,87 and
arguably read a lot more in one of the PCIJ’s opinions on the ILO than
was warranted – as Judge Badawi Pasha, dissenting, was keen to point
out.88
But more generally, the various doctrines concerning the powers of
international organizations have proved troublesome. There is, for instance, the awkward circumstance that both conferred and implied
powers must be deemed to have arisen by necessary intendment; if so,
then they are well-nigh indistinguishable from each other, the only difference being that some are written down and some are not. More importantly perhaps, the broad construction favored in Reparation for Injuries (and criticized by Judge Hackworth) has had the result that
nearly everything can possibly be justified in terms of implied powers.
One need only be able to connect an activity to the purposes of the organization in order to find a power to be implied, and given the broad
nature, typically, of the purposes of international organizations, there is
eventually not much that organizations would clearly not be competent
to do. In this light, it is no surprise that some have suggested that “inherent powers” might be a more appropriate term,89 and it is no surprise that in the WHA opinion, the Court’s finding that the WHA has
no implied powers to address the legality of the use of nuclear weapons
is devoid of argument: the possibility of serious argument has been ren-
87
88
89
The Court noted, referring to this convention and arguing in favor of the
international legal personality of the United Nations, that it was “difficult
to see how such a convention could operate except upon the international
plane and as between parties possessing international personality.” See
Reparation for Injuries, see note 26, 179.
“I do not think that Opinion No. 13 of the PCIJ concerning the competence of the International Labour Organization lays down the principle [of
implied powers – JK] so categorically and absolutely as a principle of international law, as the Court states. … This opinion … laid down no general
principle. It only interprets the intention of the Parties as to Part XIII of
the Treaty of Versailles in the light of the terms generally used therein.” See
Reparation for Injuries, see note 26, Dissenting Opinion Judge Badawi Pasha, 214.
See Seyersted, see note 18. For a discussion of his work and the role of the
inherent powers doctrine, see J. Klabbers, “On Seyersted and his Common
Law of International Organizations”, International Organizations Law
Review 5 (2008), 381 et seq.
Klabbers, Global Governance before the ICJ: The WHA Opinion
25
dered illusory precisely by the broad approach adopted in Reparation
for Injuries and nurtured ever since.
It is perhaps not too far-fetched to posit that the Court saw in the
WHA request the perfect opportunity to kill two birds with one and
the same stone. The fact that there was a parallel request from the General Assembly of the United Nations meant that the Court could with
impunity deny the WHA its day in court, and that might have been an
attractive way to tone down the scope of the implied powers a bit. The
WHA opinion can, after all, be read as an attempt to limit the unbridled
scope of the implied powers doctrine: it was only the second time the
Court denied a request for an Advisory Opinion,90 and the first time
the Court reached the conclusion that an organization before it lacks
the power to do what it proposes to do.91
But perhaps the most relevant consideration may have been to adapt
international law to changing circumstances, and to do so in two distinct ways. First, by holding that the powers of the WHO are dependent, at least in part, on the WHO’s place within the greater UN family,
the Court severs the traditional link between sovereign statehood and
international law. In the Court’s opinion, after all, it turned out that the
powers of the WHO did not depend solely on its constitution; yet its
constitution is the only instrument directly traceable to the intentions
of its sovereign Member States. Short and good: the WHA opinion is an
attempt to somehow lay the foundations for a more “developed”, perhaps more “progressive”, conceptual framework for international law.
It is often thought that the protection of community interests, perhaps
even the very survival of mankind, requires that traditional notions of
consent be overcome; state sovereignty, as Louis Henkin so famously
put it, is seen by many as a “bad word”.92 The WHA opinion marks an
attempt to escape from the clutches of sovereign statehood by unraveling the close connection between sovereignty and the making of international law.
Second, the Court also tried to suggest an alternative vision on
global law, one revolving around the only international organization of
90
91
92
The first was the Eastern Carelia case, request for an Advisory Opinion,
1923, PCIJ Series B, No. 5, 6 et seq.
For a more general discussion that the political climate may have been ripe
for such a toning down of the implied powers doctrine, see Klabbers, see
note 83.
See L. Henkin, “International Law: Politics, Values and Functions”, RdC
216 (1989/IV), 9 et seq. (24).
26
Max Planck UNYB 13 (2009)
general jurisdiction and practically universal membership (the United
Nations) and a number of more functionally oriented specialized agencies. The vision the Court endorses is straightforward, and eminently
recognizable as modeled upon domestic forms of political organization:
a ministry of general affairs (or a president’s or prime minister’s office)
seconded by functional ministries with more limited, specialized tasks.
If it was the Court’s intention to spark discussion, the WHA opinion
may well be regarded as a failure: it has provoked very few comments in
the literature, and those that have come out tended to focus on such issues as the proper limits of the Court’s advisory jurisdiction93 or
whether the Court’s handling of the implied powers doctrine was not
overly restrictive.94
And if it was the Court’s intention to infuse a public law element
into public international law, the opinion was not very successful either.
Then again, the Court was by no means helped by the circumstance
that fragmentation “broke out” around the same time: since the mid or
late 1990s there has been a widespread recognition that international
law has become fragmented, which has the effect of locking existing international institutions ever more into their own positions, at the expense of a coherent overall approach.95 Far from realizing a blueprint
for global governance, the fragmented international legal order is often
regarded as possibly messier than ever.
The Court, of course, cannot be blamed for all this, but in retrospect
it could be suggested that its attempt in the WHA opinion backfired in
at least one important respect: by limiting the possibilities for international organizations to ask for Advisory Opinions, it also made it more
difficult for itself to function as a harmonizing entity. 96 It is no coincidence perhaps that for many, an increased advisory jurisdiction of the
ICJ is one of the possible ways to mitigate the worst effects of fragmen-
93
94
95
96
See, e.g., M. Matheson, “The Opinions of the International Court of Justice
on the Threat or Use of Nuclear Weapons”, AJIL 91 (1997), 417 et seq.
See, e.g., D. Akande, “The Competence of International Organizations and
the Advisory Jurisdiction of the International Court of Justice”, EJIL 9
(1998), 437 et seq.
See generally M. Koskenniemi/ P. Leino, “Fragmentation of International
Law? Postmodern Anxieties”, LJIL 15 (2002), 553 et seq.
For a general discussion, see P.M. Dupuy, “The Danger of Fragmentation
or Unification of the International Legal System and the International
Court of Justice”, N. Y. U. J. Int’l L. & Pol. 31 (1999), 791 et seq.
Klabbers, Global Governance before the ICJ: The WHA Opinion
27
tation; it is not without irony that the Court itself has placed obstacles
on this route.
And maybe, just maybe, the effort was doomed right from the start.
The effort to infuse a public law element (a vertical element) into the
horizontal legal order inevitably came to stumble over the circumstance
that vertical authorities too end up competing with one another, as
every student of bureaucracy realizes; and the same applies to functional regimes.97 Administrative agencies engage in turf battles regardless of divisions of labor and circumscribed competences, and it would
have been unrealistic to expect the international legal order to remain
immune from this. Indeed, in yet another irony, the very circumstance
of the WHA’s request already suggested that competition between entities could not be avoided: it was only possible for the ICJ to deny the
WHO’s request by virtue of the existence of a request by another, competing agency: the General Assembly of the United Nations. Had the
General Assembly not presented its own request, chances are that the
Court would have felt compelled to address the WHA’s request and
thus uphold the earlier broad doctrine of implied powers without any
hint of “speciality”.
IV. By Way of Conclusion
In the literature, the WHA opinion has been overshadowed by the more
famous opinion rendered by the Court following the request of the
General Assembly to say something about the legality of nuclear weapons. That is a pity, as the WHA opinion shows the Court creatively aiming to come to terms with the effect of a globalizing and fragmenting
world. Where the opinion concerning the General Assembly focuses,
unsatisfactorily, on substance, and is therewith eventually of little constitutional relevance, the WHA opinion self-consciously aims to help reconceptualize international law.
As noted above, the Court’s attempt was, in the end, not very successful, nor could it have been reasonably expected to be so. Yet, in an
important sense, it is the thought that counts. While international law
still may need to be infused with a public element, what has become
clear is that a transplantation of domestic governance models alone may
97
As is implicitly recognized in the need for communication between regimes. See A. Fischer-Lescano/ G. Teubner, Regime-Kollisionen: Zur
Fragmentierung des globalen Rechts, 2006.
28
Max Planck UNYB 13 (2009)
not work. And part of the problem is no doubt that any new structure
has to be framed in harmony with the old; one cannot just superimpose
a new structure on the existing old structure comprising sovereign
states and international organizations with consensually granted powers
without running into problems of fit.
With this in mind, the WHA opinion is best regarded as a valiant, if
ultimately unsuccessful, attempt by the Court to help international law
transform into a legal order better able to deal with an increasingly
complex and globalizing world. And constitutional design by definition
being a matter of trial and error, and possibly “reculer pour mieux sauter”, things could hardly have been otherwise.
Anti-Complementarity: Referral to National
Jurisdictions by the UN International Criminal
Tribunal for Rwanda
William A. Schabas
I.
II.
III.
IV.
V.
VI.
Introduction
The Completion Strategy
Transfer Applications by the Prosecutor
Rulings on the Transfer Applications
1. The Death Penalty and Life Imprisonment
2. Defence Witnesses
3. Independence and Impartiality of the Judiciary
4. Torture and Conditions of Detention
5. Rights of the Defence
The Aftermath
Conclusion
I. Introduction
Security Council Resolution 955 of 8 November 1994, which established the International Criminal Tribunal for Rwanda, “Stress[ed] also
the need for international cooperation to strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity for
those courts to deal with large numbers of suspects”.1 In this respect,
the context of establishment of the Tribunal was somewhat different
than that of its companion, the International Criminal Tribunal for the
former Yugoslavia, which had no equivalent clause in its preamble.
1
S/RES/955 (1994) of 8 November, preambular para. 9.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 29-60.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
30
Max Planck UNYB 13 (2009)
The Rwanda Tribunal was created at the request of the Government
of Rwanda.2 It was widely believed that its activities would be complementary to efforts of the national justice system, which was then in a
state of total collapse.
The word “complementary” had only entered the taxonomy of international criminal law a few months earlier, in the final report of the
International Law Commission on an International Criminal Court.3
According to the Commission, the proposed Court was,
“intended to operate in cases where there is no prospect of [persons
accused of crimes of significant international concern] being duly
tried in national courts. The emphasis is thus on the court as a body
which will complement existing national jurisdictions and existing
procedures for international judicial cooperation in criminal matters
and which is not intended to exclude the existing jurisdiction of national courts, or to affect the right of States to seek extradition and
other forms of international judicial assistance under existing arrangements.”4
From a phrase in the preamble of the Commission’s 1994 draft, the
concept of “complementarity” evolved into rather complex substantive
provisions of the Rome Statute of the International Criminal Court
whose scope is still being explored in the case law.5 The Rome Statute
requires that the state in question be “unwilling or unable genuinely to
carry out the investigation or prosecution”.6
One of the important distinctions between the ad hoc tribunals and
the International Criminal Court is that the former have primacy over
national justice systems whereas the latter is complementary to them.
But this may be oversimplifying the relationship. It is certainly true that
in the case of the International Criminal Court, the burden lies upon
2
3
4
5
6
Letter Dated 28 September 1994 from the Permanent Representative of
Rwanda to the United Nations Addressed to the President of the Security
Council, Doc. S/1994/1115.
See, e.g., Report of the International Law Commission on the work of its
forty-sixth session (2 May-22 July 1994), in: ILCYB 46 (1994), 1 et seq.,
Doc. A/CN.4/SER.A/1994/Add.l (Part 2), para. 81.
Ibid., para. 91, p. 27.
Katanga et al. (ICC-01/04-01/07), Motifs de la décision orale relative à
l’exception d’irrecevabilité de l’affaire (article 19 du Statut), 16 June 2009.
Rome Statute of the International Criminal Court, 2002, 2187 UNTS 90,
arts 17-20. See, e.g., M. El-Zeidy, The Principle of Complementarity in International Criminal Law, Origin, Development and Practice, 2008.
Schabas, Anti-Complementarity and the ICTR
31
the Prosecutor to establish that national justice systems are inadequate,
whereas at the ad hoc tribunals jurisdiction may be assumed without
any need to demonstrate that the relevant national courts are unwilling
or unable to proceed.7 Since 2005, as part of the so-called completion
strategy, the ad hoc tribunals for the former Yugoslavia and Rwanda
have been engaged in a process of transferring to national jurisdictions
cases over which they have already assumed jurisdiction. Judges of the
international tribunals must be satisfied that the national jurisdiction is
in a position to deliver justice in a fair and adequate manner. In a sense,
it is complementarity in reverse.
At the International Criminal Tribunal for the former Yugoslavia,
the first transfers took place in 2005. Many accused persons have since
been returned to the courts of the region for trial, most of them to Bosnia and Herzegovina where they have been or are being prosecuted before the War Crimes Chamber of Bosnia and Herzegovina. This new
division of the Bosnian justice system was in large part created to provide a viable mechanism for the transfer cases. It has been generously
supported by international donors. The institution’s personnel includes
many foreign judges, lawyers and experts.
Things have not gone so smoothly at the International Criminal Tribunal for Rwanda, where an international presence in the operation of
the national justice system is far less significant. Over the second half of
2008, five applications by the Prosecutor for transfer were rejected by
Trial Chambers of the Tribunal because of perceived inadequacies of the
Rwandan courts.8 Three of these decisions were at least partially affirmed on appeal submitted by the Prosecutor, although the grounds
7
8
Prosecutor v. Tadić (Case No. IT-94-1-D), Decision of the Trial Chamber
on the Application by the Prosecutor for a Formal Request for Deferral to
the Competence of the International Tribunal in the Matter of Duško Tadić, 8 November 1994.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008; Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis),
Decision on Prosecutor’s Request for Referral, Judgment, 6 June 2008;
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), Decision on
Prosecutor’s Request for the Referral of the Case of Ildephonse Hategekimana to Rwanda, 19 June 2008; Prosecutor v. Gatete (Case No. ICTR2000-61-R11bis), Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 17 November 2008; Prosecutor v. Kayishema (Case No.
ICTR-01-67-R11bis), Decision on the Prosecutor’s Request for Referral of
Case to the Republic of Rwanda, 16 December 2008.
Max Planck UNYB 13 (2009)
32
for refusal were narrowed considerably.9 In effect, the judges of the International Tribunal were saying that Rwanda’s justice system was “unable” to prosecute the cases properly.
Although there are some useful analogies, the principles identified
by the Appeals Chamber of the International Criminal Tribunal for
Rwanda are not directly applicable to admissibility determinations of
the International Criminal Court. Nevertheless, they constitute an element in an emerging body of law defining the relationship between national courts and international criminal tribunals. They contribute to
our understanding of the approach taken by international judges called
upon to evaluate the validity and effectiveness of national justice systems.
II. The Completion Strategy
When the ad hoc tribunals for the former Yugoslavia and Rwanda were
established by the United Nations Security Council, in 1993 and 1994,
probably very few people expected that they would still be fully operational some fifteen years later, each with an annual budget in the range
of US$100 million. Serious attention to the winding down of the institutions and the completion of their activity only began in the year
2000.10 Following the analysis of the operations of the Tribunal by a
five-member expert panel, the judges of the International Criminal Tribunal for the former Yugoslavia presented a report to the SecretaryGeneral in which they projected that if the status quo were maintained,
and there were no changes to penal policy and rules of procedure, “the
9
10
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8
October 2008; Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78R11bis), Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008; Prosecutor v. Hategekimana (Case
No. ICTR-00-55B-R11bis), Decision on the Prosecution’s Appeal Against
Decision on Referral Under Rule 11bis, 4 December 2008.
See: D.A. Mundis, “The Judicial Effects of the ‘Completion Strategies’ on
the Ad Hoc International Criminal Tribunals”, AJIL 99 (2005), 142 et seq.;
L.D. Johnson, “Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity”,
ibid., 158 et seq.; D. Raab, “Evaluating the ICTY and its Completion Strategy Efforts to Achieve Accountability for War Crimes and their Tribunals”, Journal of International Criminal Justice 3 (2005), 82 et seq.
Schabas, Anti-Complementarity and the ICTR
33
Tribunal will be unable to fulfil its mission before 2016”.11 The judges
said that if a number of modifications were made, including the designation of ad litem judges, trials could be completed by 2007.12 The Security Council reacted by authorising the appointment of ad litem
judges. It also urged the Tribunal to expedite its activities.13
The International Criminal Tribunal for Rwanda moved somewhat
more slowly. Only in August 2002 did the Security Council authorise
ad litem judges. The Council noted that the measure was intended to
enable the Tribunal to conclude its work at the earliest possible date.14
The following year, the Tribunal developed a completion strategy that
envisaged finishing the trials of detained persons in 2007, those not yet
apprehended by 2009, and those not yet indicted by 2011.15 Still later, it
stated that its mandate could be completed by 2007 or 2008.16 The first
draft of the Tribunal’s Completion Strategy was presented to United
Nations headquarters in July 2003.17
Pressure on the tribunals to finish their work came from Washington, and did not sit well with everyone.18 The President of the Parliamentary Assembly of the Council of Europe condemned the process in
an official statement: “Pressure from the United States administration
to close down the two International Criminal tribunals in The Hague
and in Arusha is unacceptable. It represents political interference in a
judicial process aimed at seeking justice for the hundreds of thousands
of victims of the crimes committed in the former Yugoslavia and
Rwanda.”19 Critics also complained that the measures being taken by
11
12
13
14
15
16
17
18
19
Seventh Annual Report of the International Criminal Tribunal for the former Yugoslavia, Doc. A/55/273-S/2000/777, Annex, para. 336.
Ibid., para. 342. See: D.A. Mundis, “Improving the Operation and Functioning of the International Criminal Tribunals”, AJIL 94 (2000), 759 et
seq.
S/RES/1329 (2000) of 5 December 2000, preamble.
S/RES/1431 (2002) of 14 August 2002.
Doc. A/58/269, para. 3.
Seventh Annual Report of the International Criminal Tribunal for
Rwanda, Doc. A/57/163-S/2002/733, Annex, paras 22, 23.
Eighth Annual Report of the International Criminal Tribunal for Rwanda,
Doc. A/58/140-S/2003/707, Annex, para. 2.
S.D. Murphy, “Contemporary Practice of the United States Relating to International Law”, AJIL 96 (2002), 461 et seq. (483).
Parliamentary Assembly: President’s Statement on International Criminal
Tribunals of 1 March 2002.
34
Max Planck UNYB 13 (2009)
the tribunals, such as referral of cases to national courts, and changes to
evidentiary rules, were not authorised by the statutes.20 Judge Hunt of
the Appeals Chamber of the International Criminal Tribunal for the
former Yugoslavia expressed concern that pressure to complete the
mandate had led to infringements on the rights of the accused, and he
warned, “[T]his Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the
Completion Strategy which the Security Council has endorsed, but by
the fairness of its trials”.21
In a Resolution adopted in August 2003, the Security Council called
upon the two ad hoc tribunals to complete investigations by the end of
2004, to complete all trial activities at first instance by the end of 2008,
and to complete all work in 2010.22 When a presentation by the two
Presidents of the tribunals hinted that there might be difficulties in fully
respecting the dates set out in the Completion Strategy, the Security
Council adopted another resolution reaffirming their importance. The
Security Council called upon the Prosecutors to determine cases that
should be transferred to competent national jurisdictions. The Resolution insisted that the tribunals “in reviewing and confirming any new
indictments” should “ensure that any such indictments concentrate on
the most senior leaders suspected of being most responsible for crimes
within the jurisdiction of the relevant Tribunal”. The Council mandated
the Presidents and Prosecutors to submit a twice-yearly report on progress in implementing the Completion Strategy, “including the transfer
of cases involving intermediate and lower rank accused to competent
national jurisdictions”.23
In implementing the Completion Strategy, the judges of the International Criminal Tribunal for Rwanda amended the Rules of Procedure
and Evidence in order to facilitate a reduction in case load by returning
cases to national tribunals. Earlier case law of the Tribunal had held that
20
21
22
23
G.P. Lombardi, “Legitimacy and the Expanding Power of the ICTY”, New
England Law Review 37 (2003), 887 et seq. (895-896).
Prosecutor v. Milošević (IT-02-54-AR73.4), Dissenting Opinion of Judge
Hunt, 30 September 2003, para. 22.
S/RES/1503 (2003) of 28 August 2003, para. 7. The Council subsequently
reaffirmed its view that trials at the International Criminal Tribunal for
Rwanda should be completed by 2008, S/RES/1512 (2003) of 27 October
2003, preamble.
S/RES/1534 (2004) of 26 March 2004, para. 6.
Schabas, Anti-Complementarity and the ICTR
35
it had no authority to refer a prisoner to a national jurisdiction.24 According to Rule 11bis, adopted by the Plenary of judges on 15 May
2004, if an indictment had already been confirmed, whether or not the
accused was in the Tribunal’s custody, a Trial Chamber acting on the
request of the Prosecutor or proprio motu could order the transfer of
the case to the authorities of a state where the crime was committed or
where the accused was arrested. It could also refer the case to any state
“having jurisdiction and being willing and adequately prepared to accept such a case”, in effect acknowledging the legitimacy of universal
jurisdiction. In making its determination, the Trial Chamber was to
“satisfy itself that the accused will receive a fair trial in the courts of the
State concerned and that the death penalty will not be imposed or carried out”. The Prosecutor was authorised to send observers to monitor
the trial. The Tribunal retained jurisdiction in that it could rescind its
order and in effect revoke the transfer at any time prior to final judgment by the national courts.25
When the legality of the equivalent Rule of the International Criminal Tribunal for the former Yugoslavia was challenged, the Appeals
Chamber held:
“It is true, as the Appellant points out, that the Statute of the Tribunal does not contain an explicit legal basis for Rule 11bis. But the
explicit language of the Statute is neither an exclusive nor an exhaustive index of the Tribunal’s powers. It is axiomatic under Article 9 of
the Statute that it was never the intention of those who drafted the
Statute that the Tribunal try all those accused of committing war
crimes or crimes against humanity in the Region. The Tribunal was
granted primary – but explicitly not exclusive – jurisdiction over
such crimes. In this regard, it is clear that alternative national jurisdictions have consistently been contemplated for the ‘transfer’ of accused.
15. And even if the explicit authority to conduct such transfers from
the Tribunal to national jurisdictions is not given to the Tribunal by
the Statute itself, the interpretation of Article 9 of the Statute noted
24
25
Prosecutor v. Ntuyahaga (Case No. ICTR-98-40-T), Decision on the
Prosecutor’s Motion to Withdraw the Indictment, 18 March 1999.
M. El Zeidy, “From Primacy to Complementarity and Backwards: (Re)Visiting Rule 11 bis of the ad hoc Tribunals”, ICLQ 57 (2008), 403 et seq.;
M.H. Bohlander, “Referring an Indictment from the ICTY and ICTR to
another Court – Rule 11bis and the Consequences for the Law of Extradition”, ICLQ 55 (2006), 219 et seq.
36
Max Planck UNYB 13 (2009)
previously giving implicit authority to do so has been backed by Security Council resolutions. The Appeals Chamber recalls that the
Tribunal is bound by the resolutions concerning the Tribunal that
the Council passes under its Chapter VII authority. Most significant
among those documents are Resolution 1503 and Resolution 1534.
Under Resolution 1503, the Security Council endorsed the Tribunal’s proposed strategy of concentrating on the ‘trial of the most
senior leaders suspected of being most responsible for crimes within
the ICTY’s jurisdiction and transferring cases involving those who
may not bear this level of responsibility to competent national jurisdictions …’ Furthermore, under Resolution 1534, the Security
Council requested the Tribunal to keep it informed of the ‘transfer
of cases involving intermediate and lower rank accused to competent
national jurisdictions.’
16. As these Resolutions make clear, the referral of cases is not just a
notion that seemed prudent and sensible enough to the Tribunal
judges to be worth incorporating into the Rules of Procedure and
Evidence. On the contrary, the Tribunal judges amended Rule 11bis
to allow for the transfer of lower or mid-level accused to national
jurisdictions pursuant to the Security Council’s recognition that the
Tribunal has implicit authority to do so under the Statute. The Security Council plainly contemplated the transfer of cases out of the
Tribunal’s jurisdiction and agreed with the Tribunal that referrals
would advance its judicial functions. It is true that the Council did
not amend the Statute accordingly, but that was not required. The
Council accepted that the Tribunal was authorized to do so and thus
confirmed the legal authority behind the Tribunal’s referral process,
but it left it up to the Tribunal to work out the logistics for doing so,
such as through amendment of its Rules.”26
But whereas the justice system in Bosnia and Herzegovina, with its
substantial international involvement, was quickly deemed acceptable
by judges of the International Criminal Tribunal for the former Yugoslavia, there was great resistance to transfer in Arusha.
26
Prosecutor v. Stanković (Case No.: IT-96-23/2-AR11bis.1), Decision on
Rule 11bis Referral, 1 September 2005.
Schabas, Anti-Complementarity and the ICTR
37
III. Transfer Applications by the Prosecutor
In 2005, the Prosecutor began to send files of unindicted suspects to the
Rwandan justice system, in effect a form of cooperation and transfer,
but one that did not require judicial authorisation.27 In February 2006,
the Prosecutor made his first application under Rule 11bis, requesting
the referral of the case of Michel Bagaragaza to Norway. Although supported by the defence, the transfer was refused by the Trial Chamber.28
It said Norway’s legal framework was inadequate, because the country’s
criminal legislation did not provide specifically for the crime of genocide. Norway proposed to try Bagaragaza for murder, which was subject to a maximum sentence of 21 years’ imprisonment. The Trial
Chamber’s determination that this was inadequate was upheld on appeal. The Appeals Chamber referred to article 8 of the Statute of the
Tribunal, which speaks of “serious violations of international humanitarian law”, holding that prosecution for the underlying crime of homicide was insufficient.29 A subsequent request to transfer Bagaragaza to
the Netherlands was withdrawn by the Prosecutor, for essentially the
same reasons.30 Bagaragaza negotiated a plea agreement with the Prosecutor,31 but this was later withdrawn. A trial date was set in 200932 and
then postponed, presumably because of further guilty plea negotiations.
At the time he presented his application in Bagaragaza, the Prosecutor felt compelled to explain that there could be no transfer to Rwanda
itself because two of the conditions in Rule 11bis, the absence of the
death penalty and the guarantee of a fair trial, could not be met at the
present time.33 At the end of 2006, the Prosecutor informed the Secu27
28
29
30
31
32
33
Doc. S/PV.5328, p. 15.
Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-R11bis), Decision on
the Prosecution Motion for Referral to the Kingdom of Norway, 19 May
2006.
Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-AR11bis), Decision on
Rule 11bis Appeal, 30 August 2006, para. 16.
Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-R11bis), Decision on
Prosecutor’s Extremely Urgent Motion for Revocation of the Referral Order Pursuant to Rule 11bis (F) & (G), 17 August 2007.
Hirondelle News Agency, “ICTR/Bagaragaza – Ex-Rwandan Tea Authority Boss Signs Guilty Plea Agreement with ICTR”, 25 June 2008.
Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-PT), Status Conference, 16 December 2008 and 9 March 2009.
Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-R11bis), see note 28,
para. 7.
38
Max Planck UNYB 13 (2009)
rity Council that he would be applying for transfer of several remaining
cases, once Rwanda had abolished the death penalty.34 In March 2007,
Rwanda enacted legislation governing the transfer cases. The Organic
Law, so-called because it is hierarchically superior to ordinary legislation although subordinate to the constitution, abolished capital punishment and made special provision for trials of transfer cases in order
to accommodate the concerns of the International Tribunal.35 The first
of the applications was submitted by the Prosecutor in June 2007.36
The applications provoked a negative response from some international human rights non-governmental organisations. Two of them,
Human Rights Watch and the International Criminal Defence Attorneys’ Association, applied for and obtained leave to intervene in the
proceedings as amici curiae. Supporting the applications were amici
briefs from the Rwandan Bar and the Government of Rwanda.
IV. Rulings on the Transfer Applications
In the course of several months in 2008, all of the permanent judges of
the International Criminal Tribunal for Rwanda ruled on one or another of the transfer applications. Unanimously, the requests were rejected, although the grounds varied from one Trial Chamber to another,
and there were some notable distinctions. In the result, the Appeals
Chamber upheld the refusal to transfer on only two grounds: the possibility that convicted persons could be sentenced to life imprisonment in
solitary confinement, and problems in securing testimony of defence
witnesses. Many other arguments that had been invoked by the defendants or by the human rights NGOs were rejected by the Trial Chambers or the Appeals Chamber. That the accused were intermediate and
lower rank suspects whose cases were not important enough to be tried
34
35
36
Doc. S/PV.5594, p. 14.
Organic Law concerning Transfer of Cases to the Republic of Rwanda from
the International Criminal Tribunal for Rwanda and from other States, Official Gazette of the Republic of Rwanda, Year 46, no. special of 19 March
2007.
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), Prosecutor’s Request
for the Referral of the Case of Fulgence Kayishema to Rwanda pursuant to
Rule 11bis of the Tribunal’s Rules of Procedure and Evidence, 11 June
2007.
Schabas, Anti-Complementarity and the ICTR
39
by the International Tribunal seems to have been well accepted, and the
matter was never even addressed in the various decisions.
1. The Death Penalty and Life Imprisonment
Rule 11bis requires that in the event of conviction, the death penalty
may not be imposed or carried out by the national authorities. There
was no doubt that Rwanda had complied with this condition in its legislation of March 2007.37 Moreover, Rwanda took the issue a step further later in 2007 by abolishing the death penalty altogether.38 This garnered the praise of such important personalities as Louise Arbour, then
the United Nations High Commissioner for Human Rights.39 In November 2007, in a debate in the United Nations General Assembly on a
European Union-sponsored resolution calling for a moratorium on the
death penalty, the Rwandan delegate joined in support of the resolution.40 In effect, a very desirable by-product of the transfer process has
been to promote the universal elimination of capital punishment in
Rwanda. The move has probably had repercussions in the region as
well; in 2009, neighbouring Burundi also abolished the death penalty.
The Organic Law of March 2007 effectively excluded the death penalty for all transfer and extradition cases (“Life imprisonment shall be
the heaviest penalty imposed upon a convicted person in a case transferred to Rwanda from ICTR”41). Some defendants argued in proceedings before the International Tribunal that in light of detention conditions in Rwanda, a lengthy term of imprisonment was equivalent to a
37
38
39
40
41
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 24; Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78R11bis), Decision on Request for Referral, 6 June 2008, para. 25.
Organic Law No. 31/2007 of 25/07/2007 relating to the Abolition of the
Death Penalty, Official Gazette of the Republic of Rwanda, Year 46, no.
special of 25 July 2007. See, J. Ddamulira Mujuzi, “Issues Surrounding Life
Imprisonment after the Abolition of the Death Penalty in Rwanda”, Human Rights Law Review 9 (2009), 329 et seq.
High Commissioner for Human Rights Hails Abolition of Capital Punishment in Rwanda, Press release of 27 July 2007.
Doc. A/C.3/62/ SR.46, para. 76.
Organic Law concerning Transfer of Cases to the Republic of Rwanda from
the International Criminal Tribunal for Rwanda and from other States, see
note 35, article 21.
40
Max Planck UNYB 13 (2009)
death sentence. This submission was explicitly rejected by one of the
Trial Chambers and did not attract any attention from the others.42
Ironically, had Rwanda not subsequently abolished the death penalty altogether, the March 2007 legislation would probably have been
deemed satisfactory by the various Trial Chambers and the Appeals
Chamber. It was the second Organic Law abolishing the death penalty
generally in Rwanda, and not the earlier legislation eliminating capital
punishment for cases transferred by the International Tribunal, that
posed an obstacle. The July 2007 Organic Law said that the death penalty would be replaced either by life imprisonment or by “life imprisonment with special provisions”, the latter to include detention of the
convict “in isolation”. The Prosecutor of the International Tribunal, as
well as the Government of Rwanda, which intervened in the proceedings as amicus curiae, took the position that the July 2007 Organic Law
on abolition of the death penalty, which is the source of the provision
concerning detention in “isolation”, did not apply to the referral cases,
which were governed by the earlier Organic Law.43 Human Rights
Watch, in its oral submissions, described the issue of which legislation
took precedence as “a matter for debate”.44 When Prosecutor General
Martin Ngoga was questioned in court on this point, he replied that the
applicable regime would be “[i]mprisonment under the conditions
agreed upon by the ICTR registry on the management of the prison”,45
as one of the Trial Chambers acknowledged.46
However, the judges at the International Criminal Tribunal were not
convinced. The hypothesis of life imprisonment in solitary confinement
was one of two reasons given by the Appeals Chamber in refusing to
authorise transfer. The possibility of cruel, inhuman or degrading
42
43
44
45
46
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 29.
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on
Request for Referral, 6 June 2008, para. 94. See also, Prosecutor v. Kayishema (Case No. ICTR 01-67-I), Republic of Rwanda’s Submissions in
Response to Amicus Curiae Brief filed by Human Rights Watch in Opposition to Rule 11bis Transfer of Fulgence Kayishema, 6 March 2008; Prosecutor v. Munyakazi (Case No. ICTR-97-36A-I), Transcript, 24 April 2008,
pp. 66-67, 76-77.
Prosecutor v. Munyakazi (Case No. ICTR-97-36A-I), see note 43, p. 63.
Ibid., p. 77.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 29, fn. 50.
Schabas, Anti-Complementarity and the ICTR
41
treatment does not figure expressly in Rule 11bis of the Rules of Procedure and Evidence, which was, after all, adopted by the judges themselves. The applicable Rule only speaks of the death penalty as a criterion for referral. The judges are, of course, free to amend the Rules of
Procedure and Evidence so as to impose further terms. Instead, the rulings themselves added as an additional condition that “the penalty
structure within a State to which an indictment may be referred must
provide an appropriate punishment for the offences with which the Accused is charged”.47
By December 2008, Rwanda had adopted a statute specifying that
the legislation abolishing the death penalty generally did not apply to
cases transferred from the International Criminal Tribunal.48 However,
when the Appeals Chamber rulings were issued these measures had not
yet entered into force. Moreover, after the issue of solitary confinement
had been raised in the first Trial Chamber decisions, a test case came before the Supreme Court of Rwanda on the legality of the maximum sentence proposed as a replacement for capital punishment. The Supreme
Court held that imposition of periods of solitary confinement was not
per se unlawful, but that it must be implemented in accordance with international standards and proper safeguards. The Supreme Court declined to declare the law invalid because legislation governing the implementation of the Organic Law provisions on life imprisonment and
solitary confinement had not yet been announced or adopted.49 In the
result, the Appeals Chamber of the International Tribunal said it was
“unable to conclude that the ambiguity as to the applicable punishment
under Rwandan law for transfer cases has been resolved”.50
47
48
49
50
Ibid., para. 21. Also, Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78R11bis), Decision on Request for Referral, 6 June 2008, paras 8, 22.
Organic Law No.66/2008 of 21 November 2008 Modifying and Complementing Organic Law No. 31/2007 of 25 July 2007 Relating to the Abolition of the Death Penalty, article 1. Note was taken of this legislation in a
Trial Chamber decision of the International Criminal Tribunal for Rwanda:
Prosecutor v. Kalimanzira (Case No. ICTR-05-88-T), Judgment, 22 June
2009, para. 744, fn. 773.
Tubarimo v. The Government, Case. No. RS/INCONST/Pén. 0002/08/CS,
29 August 2008, para. 36, cited in Prosecutor v. Hategekimana (Case No.
ICTR-00-55B-R11bis), see note 9, para. 38, fn. 138.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 9,
para. 38. Also, Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78R11bis), Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 16; Prosecutor v. Munyakazi
Max Planck UNYB 13 (2009)
42
2. Defence Witnesses
The second issue upon which the Tribunal based its refusal to authorise
transfer concerned the protection of witnesses. The legal foundation
was the right of the defendant, set out in article 20(3)e) of the Statute of
the International Criminal Tribunal for Rwanda, “to examine, or have
examined, the witnesses against him or her and to obtain the attendance
and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her”. Provisions of the Organic Law
on transfers deal with the availability and protection of witnesses,51 and
there was no real disagreement that the situation was satisfactory on
paper. According to the Organic Law on transfers, the High Court
“shall provide appropriate protection for witnesses and shall have the
power to order protective measures similar to those set forth in Rules
53, 69 and 75 of the ICTR Rules of Procedure and Evidence”. Rule 53
concerns non-disclosure of documents, and is rather more of interest to
the prosecution than to the defence. Rules 69 and 75 make general provision for protective measures for victims and witnesses to be ordered.
As a Trial Chamber of the International Tribunal observed, “the Republic of Rwanda has a legal framework for the protection of witnesses
and has adopted provisions similar to those in the Tribunal’s Rules”.52
Defendants and the amici argued that the picture painted by the legislation did not correspond to the reality. The Tribunal decisions distinguish between witnesses inside Rwanda and those outside Rwanda. Serious problems with respect to both categories were highlighted.
With respect to witnesses inside Rwanda, the Appeals Chamber upheld findings of the Trial Chambers of a danger of harassment of witnesses who were located in Rwanda. It also accepted that “witnesses
who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed”.53
51
52
53
(Case No. ICTR-97-36-R11bis), Decision on the Prosecution’s Appeal
Against Decision on Referral Under Rule 11bis, 8 October 2008, para. 20.
Organic Law concerning Transfer of Cases to the Republic of Rwanda from
the International Criminal Tribunal for Rwanda and from other States, see
note 35, article 14.
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on
Request for Referral, 6 June 2008, para. 65.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8
October 2008, para. 37. Also, Prosecutor v. Hategekimana (Case No.
ICTR-00-55B-R11bis), see note 9, para. 21.
Schabas, Anti-Complementarity and the ICTR
43
There were concerns that witnesses would be afraid to testify because
they might face prosecution for promoting “genocidal ideology”.54 Reference was also made to the witness protection service in Rwanda,
which was administered by the prosecution service. The Appeals
Chamber said that the fact that the witness protection service was administered by the Prosecutor General and that threats of harassment
were reported to the police did not render the system inadequate, but
held that the Trial Chamber “did not err in finding that that witnesses
would be afraid to avail themselves of its services for these reasons”.55
The Appeals Chamber did not deem it significant that the defendants
had not in fact identified witnesses within Rwanda whose testimony
would be relevant.56
There are some difficulties with the holdings of the Appeals Chamber respecting witnesses inside Rwanda. First, there is the rather extraordinary reliance upon NGO reports as evidence. The NGOs did
not present their evidence as expert witnesses, but simply made allegations that were filed as part of amicus curiae submissions. An expert
would have been subject to cross-examination, and would no doubt
have been closely scrutinised for impartiality. The human rights NGOs
delivered what amounted to expert testimony, but without the inconvenient aspects that accompany such status. NGOs are advocacy organisations, and while they conduct investigations, this activist mission
makes it difficult to regard them as impartial fact finders in a judicial
sense. The International Criminal Defence Attorneys’ Association, for
example, represents lawyers who earn their living before the international tribunals and who would be excluded from practising before the
courts of Rwanda. Although defined as a “friend of the Court”, it was
in reality at least in part acting in defence of the interests of its members
before the Tribunal.
Human Rights Watch has a complex critique of the Rwandan regime, including serious complaints about prosecutorial priorities, which
may distort its ability to properly assess the much narrower question of
the suitability of the Rwandan courts to provide an adequate forum for
the transfer cases. In their campaigns against transfer, both organisa54
55
56
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on
the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis,
30 October 2008, para. 26.
Ibid., para. 27.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 9,
para. 22.
Max Planck UNYB 13 (2009)
44
tions submitted a litany of objections to the transfers; in fact, most of
their arguments were either ignored or dismissed by the judges of the
International Tribunal. Of course their views were properly before the
Tribunal. But the judges might have been more scrupulous in relying
upon the NGO briefs as sources of evidence and not just opinion.
It must be borne in mind that the International Criminal Tribunal
for Rwanda has largely depended upon witnesses from inside Rwanda
since it began holding trials more than a decade ago. Approximately
half of the 2,500 witnesses who have testified before the Tribunal have
come from Rwanda, and returned there after their testimony. The minutes of the Security Council provide evidence not only of Rwandan cooperation and assistance in facilitating testimony of witnesses within
the country, but also of an absence of complaint about any difficulties
in this area. Thus, in June 2008, President Byron told the Security
Council that “Rwanda has continued to cooperate with the Tribunal by
facilitating the flow of witnesses and by providing documents to the
prosecution and the defence”.57 His predecessor, President Møse, had
regularly made statements to the same effect in his bi-annual reports to
the Security Council. For example, in June 2005, he spoke of the
“steady flow of witnesses from Kigali to Arusha”, adding that “[t]he
Tribunal continues to appreciate the cooperation of the Rwandan authorities”.58 In 2006, he said “Rwanda has continued to cooperate with
the Tribunal by facilitating a steady flow of witnesses from Kigali to
Arusha”.59 He said essentially the same thing a year later.60 Indeed, the
Security Council must have been given the impression from these keen
assessments by the Presidents of the Tribunal that there were no significant difficulties in obtaining testimony from witnesses within Rwanda.
The decisions of the Appeals Chamber were based upon examples of
harassment with respect to witnesses who had already appeared before
the Tribunal. Were the judges stating that the trials before the International Tribunal were therefore unfair and unacceptable? Obviously not.
But was it right for them to impose a higher standard on the Rwandan
justice system than they applied to themselves?
There was no specific evidence that relevant witnesses who might
testify in the cases being considered were located in Rwanda. Surely the
defence should have been required to provide an indication that diffi57
58
59
60
Doc. S/PV.5697, p. 10.
Doc. S/PV.5199, p. 11.
Doc. S/PV.5453, p. 9.
Ibid.
Schabas, Anti-Complementarity and the ICTR
45
culties with witnesses in Rwanda would concretely impact upon the
trial. It is widely admitted that the vast majority of defence witnesses
before the International Tribunal do not come from within Rwanda.61
The witnesses inside Rwanda are in a very large majority those of the
prosecution. It may very well be the case that there are no relevant witnesses inside Rwanda, and that the issue is therefore not only speculative but totally vacuous. One of the Trial Chambers seemed somewhat
alive to this issue, noting that the defence had not yet filed a witness list,
“which is not unusual at this stage of the proceedings before the Tribunal. Nonetheless, this makes the Defence assertions about its prospective witnesses difficult for the Chamber to assess.”62
The second witness related issue upon which the Appeals Chamber
based its refusal to authorise transfer concerned those located outside
Rwanda. In principle, such witnesses would be required to travel to
Rwanda to testify. There were concerns that they might face prosecution for genocide-related crimes. The Rwandan legislation offered the
possibility for witnesses to travel to Rwanda with a kind of safe conduct. They were to be guaranteed immunity from search, seizure, arrest
or detention during their stay in Rwanda.63 Alternatively, the possibility of testifying by video-link, a mechanism that has been employed
frequently by the International Tribunals, was also proposed.
The Appeals Chamber found that these arrangements were not adequate. First, it noted that Rwanda’s grant of immunity to witnesses who
travelled from abroad to testify would not resolve problems of fairness.
The Chamber agreed that some witnesses would still be afraid to go to
Rwanda, despite the guarantees, and also acknowledged concerns that
travel to Rwanda might jeopardise refugee status in third countries.64
As for the possibility of video-link depositions, the Appeals Chamber
61
62
63
64
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8
October 2008, para. 40; Prosecutor v. Hategekimana (Case No. ICTR-0055B-R11bis), see note 9, para. 24; Prosecutor v. Kanyarukiga (Case No.
ICTR-2002-78-R11bis), Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 31.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 63, fn. 66.
Organic Law concerning Transfer of Cases to the Republic of Rwanda from
the International Criminal Tribunal for Rwanda and from other States, see
note 35, article 14.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 9,
para. 24.
46
Max Planck UNYB 13 (2009)
said this was not “a completely satisfactory solution with respect to the
testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony, and that it would be a violation of
the principle of equality of arms if the majority of Defence witnesses
would testify by video-link while the majority of Prosecution witnesses
would testify in person”.65
Here, again, the judges were speculating. In the United Kingdom,
where video-link evidence is not uncommon, judges issue a specific direction to jurors that they should give it the same weight as live evidence. Moreover, many trial lawyers report that in some respects they
find video-link testimony to be preferable, in that their witnesses are
more relaxed and focussed. It is a matter of common practice to have
vulnerable witnesses, especially victims, testify outside of the courtroom by video – even if they are in the courtroom building – for their
own protection and in order to enhance the reliability of their testimony. Virtually all of the national case law concerning video-link testimony involves prosecution witnesses. Typically, the defence objects to
such testimony as unfair because it puts the witness in a privileged and
protected position, sheltered from some of the rigours of cross examination.66 In other words, video-link testimony may well put the prosecution, not the defence, at a disadvantage. The European Union Convention on Mutual Assistance in Criminal Matters, of 2000, provides for
testimony by video-link.67 Something similar is proposed as part of the
Commonwealth Mutual Legal Assistance scheme, currently in draft
form.
65
66
67
Ibid., para. 28. Also, Prosecutor v. Munyakazi (Case No. ICTR-97-36R11bis), Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8 October 2008, para. 42; Prosecutor v. Kanyarukiga
(Case No. ICTR-2002-78-R11bis), Decision on the Prosecution’s Appeal
Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 33.
Maryland v. Craig, 497 US 836 (1990); R. v. Levogiannis, [1993] 4 SCR 475
(Can.); SN v. Sweden (34209/96) Reports of Judgments and Decisions
2000-V; R (on application of D) v. Camberwell Green Youth Court, [2005]
UKHL 4.
Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 29 May 2000, Official Journal C 197, 12
July 2000, p. 3, article 10.
Schabas, Anti-Complementarity and the ICTR
47
3. Independence and Impartiality of the Judiciary
Critics of the Rwandan justice system charge that it still lacks a sufficient degree of independence and impartiality, and that its courts cannot
therefore be entrusted to deliver fair trials. Such complaints were an
important part of the defence arguments, and they were developed in
the amicus curiae briefs of Human Rights Watch and the International
Criminal Defence Attorneys’ Association. These arguments were, with
one exception, rejected by the Trial Chambers of the International
Criminal Tribunal for Rwanda. Only the Munyakazi Trial Chamber of
the International Tribunal ruled against Rwanda on the independence
and impartiality issue, and its finding was overturned by the Appeals
Chamber;
“based on the record before it, no reasonable Trial Chamber would
have concluded that there was sufficient risk of government interference with the Rwandan judiciary to warrant denying the Prosecution’s request to transfer Munyakazi to Rwanda”.68
Under the Organic Law, trials were to be held before a single judge
of the High Court of Rwanda. One of the Trial Chambers said it was
“concerned that the trial of the Accused for genocide and other serious
violations of international law in Rwanda by a single judge in the first
instance may violate his right to be tried before an independent tribunal”.69 Rwanda explained that it had adopted the one judge system following a study of procedure for trials elsewhere in Africa, where capital
cases are heard before a single judge. The Trial Chamber took the view
that “capital cases may be distinguished from cases involving serious
violations of international law, including genocide. Consequently,
equating the two is inappropriate.”70 The Trial Chamber associated the
single-judge issue with its concern that Rwandan political figures had
shown “a tendency to pressure the judiciary, a pressure against which a
judge sitting alone would be particularly susceptible”.71 It conceded
that in and of itself this did not necessarily reflect negatively upon the
68
69
70
71
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8
October 2008, para. 29.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 39.
Ibid., para. 38.
Ibid., para. 40.
48
Max Planck UNYB 13 (2009)
Rwandan judiciary, but said that three judges would be better able to
resist such pressure than one.72
The decision in Munyakazi was the first of the referral rulings, but
the other Trial Chambers did not adopt the same argumentation. The
Appeals Chamber rejected the approach taken by the Trial Chamber in
Munyakazi:
“While the Appeals Chamber shares the Trial Chamber’s concern
about the fact that politically sensitive cases, such as genocide cases,
will be tried by a single judge, it is nonetheless not persuaded that
the composition of the High Court by a single judge is as such incompatible with Munyakazi’s right to a fair trial. The Appeals
Chamber recalls that international legal instruments, including human rights conventions, do not require that a trial or appeal be
heard by a specific number of judges to be fair and independent.”73
The Trial Chamber had referred to the views of the Consultative
Council of European Judges to the effect that a single-judge bench
should be avoided in serious cases.74 The Appeals Chamber said this
was “recommendatory only”, adding that there was “no evidence on
the record in this case that single judge trials in Rwanda, which commenced with judicial reforms in 2004, have been more susceptible to
outside interference or pressure, particularly from the Rwandan Government, than previous trials involving panels of judges”.75
The Appeals Chamber noted that the Trial Chamber had relied
largely on Rwanda’s reaction to the famous Barayagwiza appeal,76 a
controversial ruling in November 1999 that provoked threats of noncooperation with the International Tribunal. The Appeals Chamber observed that the Barayagwiza decision had been issued nine years ago. It
said that “the Tribunal has since acquitted five persons, and that
72
73
74
75
76
Ibid., para. 46.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 8
October 2008, para. 26.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 47.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), see note 73, para.
26.
Prosecutor v. Barayagwiza (Case No. ICTR-97-19-AR72), Decision, 3 November 1999. See, e.g., C. del Ponte, La caccia. Io e i criminali di guerra,
2008, 195. Also F. Hartmann, Paix et châtiment, 2007.
Schabas, Anti-Complementarity and the ICTR
49
Rwanda has not suspended its cooperation with the Tribunal as a result
of these acquittals”. It also faulted the Trial Chamber for not taking into
account the continued cooperation of the Rwandan government with
the Tribunal.77
The Munyakazi Trial Chamber had also supported its conclusions
on independence and impartiality by referring to recent situations in
which Rwandan officials have reacted negatively to efforts by judicial
authorities in Spain and France to proceed with charges against its own
officials.78 It placed these under the heading “Rwandan Government’s
Condemnation of Foreign Judges”. The Trial Chamber said “the Rwandan Government has also condemned foreign judges for adverse decisions”.79 Rwanda indeed reacted angrily when French investigating
magistrate Jean-Louis Bruguière attributed responsibility to Rwandan
leaders, including President Kagame, for shooting down the airplane of
President Habyarimana on 6 April 1994. The Trial Chamber said that
the Rwandan government “appeared to equate Bruguière with the
French Government”.80 The other case concerned Spanish magistrate
Fernando Andreu, who has issued an indictment against forty highranking Rwandan military officers.81 The Appeals Chamber explained
that “the reaction of the Rwandan government to foreign indictments
does not necessarily indicate how Rwanda would react to rulings by its
own courts, and thus does not constitute a sufficient reason to find that
there is a significant risk of interference by the government in transfer
cases before the Rwandan High Court and Supreme Court”.82
One of the recurring themes in the critiques of the Rwandan justice
system is that it is ethnically imbalanced. This complaint did not find
any support in the Trial Chambers of the International Criminal Tribunal. It is well known the Hutu make up a large majority of the Rwandan population, but it is also widely accepted that the Tutsi have been
dominant within government institutions since the overthrow of the
previous regime in 1994. The amicus curiae brief of the International
77
78
79
80
81
82
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), see note 73, para.
28.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), see note 74,
paras 42-46.
Ibid., para. 42.
Ibid., para. 43.
Ibid., para. 44.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), see note 73, para.
28.
50
Max Planck UNYB 13 (2009)
Criminal Defence Attorneys’ Association said that in terms of assessing
Rwanda’s ability to deliver a fair trial, it is “critical” to note that 90 per
cent of judges and 90 per cent of prosecutors are Tutsi.83 Noting this
claim, one Trial Chamber said it could not verify the figure, “but even if
true does not consider that such a figure would, of itself, show a lack of
independence or impartiality”.84
It was also argued that the Rwandan justice system is not impartial
because it has not undertaken prosecution of the atrocities perpetrated
by the Rwandese Patriotic Forces who took power in July 1994. Amnesty International has said:
“This failure raises serious concerns about the ability of the national
justice system to address all crimes committed in the conflict justly,
fairly and impartially. The ICTR and other states should not transfer
persons to Rwanda for trial, until the national justice system has
demonstrated its impartiality by investigating and prosecuting
crimes committed by individuals associated with all parties, regardless of which group suspects are a member.”85
Similar submissions were made by the defence in the transfer proceedings.86 The argument was not taken up seriously in the judgments
of the Appeals Chamber or the Trial Chambers.
4. Torture and Conditions of Detention
Charges that there would be a risk of torture of prisoners took on some
importance in the submissions of the international NGOs and of the
83
84
85
86
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA),
Concerning the Request for Referral of the Accused to Rwanda Pursuant
to Rule 11bis of the Rules of Procedure and Evidence, 3 January 2007, para.
22.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 40, fn. 52. Also, Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78R11bis), Decision on Request for Referral, 6 June 2008, para. 38.
Amnesty International, Rwanda: Suspects must not be transferred to
Rwandan courts for trial until it is demonstrated that trials will comply with
international standards of justice, AI Index: AFR 47/013/2007, November
2007, p. 2.
Prosecutor v. Munyakazi (Case No. ICTR-97-36A-I), Transcript, 24 April
2008, p. 16.
Schabas, Anti-Complementarity and the ICTR
51
defence.87 For example, Amnesty International said it was “concerned
that torture takes place in Rwanda”.88 It referred to reports of secret detention centres, although noting this was denied by the Rwandan authorities and admitting that there was no real proof. Amnesty International also argued that there was a “lack of commitment” by Rwanda to
the eradication of torture, manifested by its failure to ratify the Convention Against Torture.89 The International Criminal Defence Attorneys’ Association, devoted considerable attention to the issue of torture
in its amicus curiae brief.90
The submissions cited a decision of the District Court for the District of Columbia in the Karake case,91 which excluded evidence because it had been obtained by Rwandan law enforcement authorities
through the use of torture.92 The decision was issued on 17 August
2006, and at first glance seems to indicate a very harsh contemporary
critique of Rwandan law enforcement at the present time. The proceedings involved the murder of United States nationals, and there was considerable involvement of American law enforcement authorities in this
extradition case. The accused persons were apprehended in Rwanda,
where their confessions were obtained during interrogation by both
Rwandan agents and FBI officers. Although the tale of abuse is appalling, and was accepted as accurate by a judge in Washington, the events
took place in 2002.
Prison conditions in Rwanda were lamentable, even before the 1994
genocide, and the situation became aggravated afterwards largely because of terrible overcrowding. Establishment of a special regime for
transferred prisoners, developed in cooperation with the Office of the
87
88
89
90
91
92
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), Brief of Human
Rights Watch as Amicus Curiae in Opposition to Rule 11bis Transfer, 3
January 2008, paras 93, 94.
Amnesty International, see note 85, p. 7.
Ibid. In January 2008, the Rwandan Parliament enacted legislation authorising ratification of the Convention: Law authorising the Ratification of the
Convention against Torture and other Cruel, Inhuman or Degrading
Treatments or Punishments, adopted in New York on 10 December 1984,
No. 002/2008 of 14/01/2008, Official Gazette of the Republic of Rwanda,
Year 47, no. 7 of 1 April 2008, pp. 12-14.
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), see note 83, paras
121-127.
United States v. Karake et al. (Criminal Action No. 02-0256(ESH)), 17 August 2006.
Amnesty International, see note 85, p. 7, fn. 8.
Max Planck UNYB 13 (2009)
52
Prosecutor, was an important dimension of Rwanda’s preparations for
the transfer applications. A special wing of the modern, new facility
built in Mpanga, with the support of the Dutch government, was set
aside for the transferred prisoners, if they were to be convicted. A new
wing of the Kigali Central Prison was constructed to hold them during
trial.
Opponents of the transfers said it was “unclear whether the detention conditions before, during and, in case of conviction, after trial will
comply with the [International Covenant on Civil and Political Rights]
and other internationally recognised standards”.93 Although Amnesty
International welcomed the construction of the new Mpanga prison, it
said this was an exception that did not form part of a broader comprehensive nationwide strategy to improve prison conditions. It said “it
would be undesirable for states and international organizations to condone the establishment of a two-tier system of detention in Rwanda by
transferring persons on the basis they will be housed in special facilities,
while the rest of the prison population suffers appalling conditions”.94
The Rules of Procedure and Evidence of the International Criminal
Tribunal for Rwanda do not expressly impose the requirement, but
Trial Chambers have held that for transfer to be authorised, “conditions
of detention [in the receiving State], a matter which touches upon the
fairness of a jurisdiction’s criminal justice system, must accord with internationally recognised standards”.95 Noting the construction of the
new Mpanga prison, as well as a special facility for remand prisoners in
Kigali, one of the Trial Chambers said it was “not persuaded by the
concerns regarding the physical conditions of the detention facilities”.96
5. Rights of the Defence
The availability of defence counsel funded by the Rwandan legal aid
system was also an important theme in all of the proceedings. At the
time of the 1994 genocide, Rwanda did not even have a defence bar.
93
94
95
96
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on
Request for Referral, 6 June 2008, para. 89.
Amnesty International, see note 85, p. 8.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 21.
Ibid., para. 92.
Schabas, Anti-Complementarity and the ICTR
53
There were only a handful of trained lawyers in the country, and most
of them said they would refuse to defend “génocidaires”. Nevertheless,
over the years, with the assistance of human rights NGOs like Avocats
sans frontières and the Danish Institute of Human Rights, defendants
have received competent representation in many of the serious trials relating to genocide. It is now estimated that more than 200 lawyers are
qualified to practice. The Kigali Bar Association intervened in the proceedings at the International Tribunal to insist that its members were
capable of assuring the defence of persons who might be transferred to
Rwanda for trial before the High Court.97 The Organic Law explicitly
provides for the right of accused persons to counsel of their choice as
well as the right to free legal assistance for indigent defendants.98 Foreign counsel are allowed to act on behalf of defendants charged under
the Organic Law. According to article 15 of the Organic Law, “Without prejudice to the provisions of other laws of Rwanda, Defence
Counsel and their support staff shall have the right to enter into
Rwanda and move freely within Rwanda to perform their duties”. They
benefit from various forms of immunities, and are entitled to security
and protection.
The International Criminal Defence Attorneys’ Association conceded that Rwandan law is adequate “on paper” in this respect, but that
“to the extent that the statutory legal assistance is itself not adequate (as
described above) the financial support for such assistance also cannot be
adequate”.99 But the Trial Chambers seemed satisfied, and were not prepared to reject transfer based on shortcomings in the legal aid system.100
Complaints about the ability of defence counsel to work without impediment were also raised. One Trial Chamber concluded that “though
troubling, the examples are discrete; they do not show widespread
abuses”.101 Another referred to difficulties in meeting detainees saying
“such incidents are not in themselves sufficient to prevent transfer”, but
97
98
99
100
101
Prosecutor v. Munyakazi (Case No. ICTR-1997-36-1), Amicus Curiae Brief
of the Kigali Bar Association in the Matter of an Application for the Referral of the above case to Rwanda pursuant to Rule 11bis, 27 December 2007.
Organic Law concerning transfer of cases to the Republic of Rwanda from
the International Criminal Tribunal for Rwanda and from other States, see
note 35, p. 22, article 13(6).
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), see note 83, para. 34.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 55; Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on Request for Referral, 6 June 2008, para. 58.
Ibid., para. 58.
54
Max Planck UNYB 13 (2009)
that taken with other factors they might “have a bearing on the fairness
of the trial”.102
Article 13 of the Organic Law enumerates “guarantees of rights of
an accused person”, including the presumption of innocence. The Human Rights Watch amicus brief placed considerable emphasis on the issue of the presumption of innocence, which it argued was violated by
Rwanda.103 Human Rights Watch raised a number of arguments in this
respect: prisoners on remand awaiting trial were not allowed to vote in
Rwanda;104 mixing of remand prisoners with convicts, where they were
subject to various forms of harsh treatment;105 examples of collective
punishments carried out by officials in some communities;106 public
discussion of the 1994 genocide that suggested all Hutu bore responsibility.107 Human Rights Watch said that “Rwandan officials often speak
and act in blatant disregard of the right of the accused to be presumed
innocent”.108 A Trial Chamber said “the present situation, which involves transfer of a former military adversary of some members of the
current Rwandan government, calls for awareness of the risk of victor’s
justice, and thus careful scrutiny”,109 but said it did not consider that
“the submissions and examples of the Defence and HRW show that Mr.
Hategekimana will not be presumed innocent”.110 Similarly, another
Trial Chamber noted that “the examples referred to by Human Rights
Watch do not include activities before Rwandan courts”.111 It said the
complaint about voting rights of persons in pre-trial detention might
indicate “a possible problem with electoral legislation”, but said it did
102
103
104
105
106
107
108
109
110
111
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), Decision on
Request for Referral, 6 June 2008, para. 62.
Prosecutor v. Kayishema (Case No. ICTR-2001-67-I), Brief of Human
Rights Watch as Amicus Curiae in Opposition to Rule 11bis Transfer, 3
January 2008, paras 41-48.
Ibid., para. 43.
Ibid., para. 44.
Ibid., para. 45.
Ibid., paras 46-48.
Ibid., para. 42.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 49.
Ibid., para. 52.
Prosecutor v. Kanyarukiga (Case No. ICTR-2002-78-R11bis), see note 102,
para. 44.
Schabas, Anti-Complementarity and the ICTR
55
not “demonstrate that judges in a trial will disregard the presumption of
innocence”.112
V. The Aftermath
Rejection of the transfer applications by the Prosecutor has the potential for rather dire consequences in terms of the completion strategy of
the Tribunal. Several additional trials may be required and the life-span
of the Tribunal extended for another year or more. The cost to the
United Nations is enormous. Following dismissal of his appeals, the
Prosecutor elected to proceed with one of the cases that he had hoped
to send to Rwanda. The Munyakazi trial began in April 2009. There is
general agreement that this is not the sort of case that needs to be tried
by the International Criminal Tribunal. But as long as the transfer to
Rwanda is forbidden and there are no other offers from third states
there can be no other alternative if the accused is to stand trial.
In May 2009, Rwanda enacted legislation that attempted to address
the concerns of the Appeals Chamber. With respect to the competent
tribunal, while maintaining the single-judge bench of the High Court as
a general rule, the new legislation added that “the President of the
Court may at his/her absolute discretion designate a quorum of three
(3) or more judges assisted by a Court Registrar depending on his/her
assessment of the complexity and importance of the case”.113 The provision dealing with the rights of the accused was supplemented with a
guarantee that no person could be criminally liable for anything said or
done in the course of a trial, subject to relevant laws on contempt of
court and perjury.114 This was a response to concerns that witnesses
(and even counsel) might be prosecuted for spreading “genocidal ideology”. Finally, the new enactment provided for testimony to be delivered outside of Rwanda by video-link or in person before a foreign
judge or a commissioner designated by the Rwandan courts.115 Rwanda
112
113
114
115
Ibid.
Organic Law modifying and complementing the Organic Law n° 11/2007
of 16/03/2007 concerning the Transfer of Cases to the Republic of Rwanda
from the International Criminal Tribunal for Rwanda and other States, Official Gazette of the Republic of Rwanda, Year 48, no. special of 26 May
2009, article 1.
Ibid., article 2.
Ibid., article 3.
56
Max Planck UNYB 13 (2009)
also undertook various reforms to its witness protection programme,
separating the mechanism from the prosecution authorities and beefing
up the available resources.
In June 2009 the Prosecutor informed the United Nations Security
Council that,
“the Government of Rwanda is in the process of enacting — indeed,
I am advised that it has enacted — additional legislation to meet the
remaining concerns of the Appeals Chamber in relation to the protection of witnesses and the recording of testimony of witnesses
who may be reluctant to travel to Rwanda to testify. Once the law
comes into force and the capacity is established for witness protection and video link facilities, my Office will again consider making
further applications before the Trial Chambers in the course of this
year for the referral of cases of ICTR indictees to Rwanda for trial.
As the concerns of the Trial and Appeals Chambers relate to legal as
well as capacity issues, I would urge the Council to call upon Member States to redouble their efforts in support of capacity-building
for the Rwandan legal system. Rwanda has had the onerous burden
of dealing with the cases transferred not only from the Tribunal but
also possibly from other national jurisdictions, as well as many
other domestic cases of genocide, war crimes and crimes against
humanity.”116
At conferences in The Hague in June 2009 and Geneva in July 2009
the Prosecutor indicated his intent to proceed with new applications by
the end of the year. The only remaining issue, he said, was the effectiveness of the new witness protection measures.
Judicial reforms within Rwanda associated with preparation for the
transfers by the International Tribunal had the very positive by-product
of encouraging other governments to contemplate extradition to
Rwanda. The decisions of the Tribunal had the very negative byproduct of discouraging the process. The result, in most cases has been
impunity, because many of the states concerned are themselves unwilling or unable to proceed. There is evidence of at least one extradition to
Rwanda, from India, in 1996,117 but none from countries in Europe or
North America where it appears that most of the genocide suspects
116
117
Doc. S/PV.6134, p. 12.
Froduauld Karamira was extradited from India to Rwanda in July 1996.
See, Ministère Public v. Karamira, 1 Receuil de jurisprudence contentieux
du génocide et des massacres au Rwanda (1st inst., Kigali, 14 February
1997), 75.
Schabas, Anti-Complementarity and the ICTR
57
fled. As long as they did not attract the attention of the International
Tribunal, they could be fairly certain they would escape justice.
In 2006, after four suspects were arrested in Britain, the government
decided to proceed with extradition on the basis of a memorandum of
understanding with Rwanda. The extradition was initially authorised
by a British judge following a lengthy hearing at which many of the
same issues that concerned the International Tribunal in the transfer
proceedings were aired.118 The rulings of the International Tribunal
were issued after the ruling had been appealed. They strongly influenced the British court, and the decision to allow extradition was overturned.119 Similarly, French courts authorised extradition, and then denied it in light of rulings of the International Tribunal.120 Other European governments that had been contemplating extradition to Rwanda
decided against this. In the case of Finland, extradition was substituted
with an effort at prosecution by national courts.121
Sweden has been the only European government to persist with extradition, ordering that Sylvère Ahorugeze be returned to Rwanda to
stand trial for genocide. Its courts and its minister of justice considered
the rulings of the International Criminal Tribunal for Rwanda as well as
those of the British courts, but decided these did not constitute an obstacle to extradition. Transfer of Ahorugeze to Rwanda has been suspended pending a challenge before the European Court of Human
Rights.122 In Soering v. United Kingdom and Germany, the European
Court said it could not “exclude that an issue might exceptionally be
raised under Article 6 by an extradition decision in circumstances where
the fugitive has suffered or risks suffering a flagrant denial of a fair trial
in the requesting country”.123 But it has yet to declare that an extradition would violate the European Convention on Human Rights for this
reason. The non-refoulement case law of the European Court has, to
118
119
120
121
122
123
Government of the Republic of Rwanda v. Bajinya et al., Judgment, 6 June
2008.
Brown et al. v. Government of Rwanda, [2009] EWHC 770 (Admin) (8
April 2009).
“French court overturns extradition of Rwandan genocide suspect”, AFP,
10 July 2008.
“Rwanda Working with Finland on Genocide Trial”, Voice of America, 2
September 2009.
“Sweden stops extradition of Rwanda genocide suspect”, AFP, 16 July
2009.
Soering v. United Kingdom and Germany, Series A, No. 161, para. 113.
Max Planck UNYB 13 (2009)
58
date, always concerned the threat of torture.124 Whether the Court
would conclude that the findings of the International Criminal Tribunal
on witness protection are enough to constitute a “flagrant denial of a
fair trial” would seem to lie at the heart of the case. Of course, the
unlikely scenario of the European Court of Human Rights disagreeing
with the Appeals Chamber of the International Criminal Tribunal for
Rwanda in its assessment of the fair trial issues cannot be excluded. This
could open a new chapter in the fragmentation of international law debate.
VI. Conclusion
The transfer proceedings demonstrate the potential for synergy that exists between international and national criminal justice systems. There
can be no doubt that in terms of justice within Rwanda, the whole
process has been extremely salutary. The death penalty has been abolished, and not only for transfer cases but for the country as a whole.
The applications for transfer have provided an important stimulus to
Rwanda to make improvements in a range of areas, including prison
conditions and training of judicial personnel. They have heightened the
awareness within the country of the importance of a truly independent
and impartial judiciary. This may have further benefits along the line,
because courageous and activist judges will stimulate other reforms, and
provide a foundation for greater democracy, as they have done in many
developed countries.
In this context, it is a pity that the efforts have thus far gone largely
unrewarded, and that the applications before the International Tribunal
were dismissed as a result of standards that may have been set too high.
One of the Trial Chambers, in the somewhat patronising concluding
paragraph of its decision denying the transfer application, said that it
“would like to emphasise that it has taken notice of the positive steps
taken by Rwanda to facilitate referral. The Chamber is of the view that
if Rwanda continues along this path, the Tribunal will hopefully be able
to refer future cases to Rwandan courts”.125 The decisions were humili124
125
Chahal v. United Kingdom, Reports 1996-V; Saadi v. Italy (Application no.
37201/06), 28 February 2008.
Prosecutor v. Munyakazi (Case No. ICTR-97-36-R11bis), Decision on the
Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28
May 2008, para. 67.
Schabas, Anti-Complementarity and the ICTR
59
ating for Rwanda, which has made great strides in order to modernise
its justice system, inspired by international standards. There may be lessons here of more general application to the field of transitional or postconflict justice. A tension obviously exists between national and international prosecutions. This is manifested in a variety of forms, including the debate about complementarity at the International Criminal
Court.
The decisions of the International Criminal Tribunal for Rwanda
have gone beyond what the Rules of Procedure and Evidence require.
Thus, in addition to verifying the non-imposition of the death penalty,
the judges have considered the terms of detention and the prison conditions. Within the context of examining the fairness of proceedings, they
have set the bar very high indeed, requiring of Rwanda mechanisms for
the protection of defence witnesses that do not exist in the justice systems of most developed countries. Although Rwanda did not have any
problems with the substantive law, because since 1994 it has adopted
adequate legislation dealing with the crime of genocide, the transfer decisions concerning Norway showed that a very precise implementation
of international criminal law is also required. One of the Trial Chambers refused transfer to Rwanda because it considered there was no legislation permitting prosecution on the basis of command responsibility.126 The Chamber was simply mistaken – it had not even taken the
trouble to verify the applicable law – and its finding on this point was
overturned on appeal.127 But Rwanda is very much the exception, and
most countries in the world would not have anything resembling command responsibility in their own national criminal codes.
The lesson here is that if judges at the International Criminal Court
are as demanding in assessing the issue of complementarity as the
judges at the International Criminal Tribunal for Rwanda have been in
examining the very similar issues that arise within the transfer process,
they will almost inexorably be drawn to the conclusion that the national justice system is either “unwilling or unable genuinely” to prosecute suspects. This will be especially true when developing countries are
concerned. Exercise of jurisdiction by the International Criminal Court
will be the rule, not the exception. States contemplating ratification of
126
127
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 8,
para. 19.
Prosecutor v. Hategekimana (Case No. ICTR-00-55B-R11bis), see note 9,
para. 13.
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the Rome Statute but concerned about the effectiveness of the complementarity regime will hardly be reassured.
The consequences in terms of the International Criminal Tribunal
for Rwanda are not disastrous, because to the extent the Chambers refuse transfer, they retain jurisdiction and will conduct the trials themselves. For some judges, this means many more months of hardship, living away from home and far from their families. For others, it provides
a welcome additional period of time as a senior United Nations official.
As for the international campaign to confront impunity, the results are
more dramatic and unacceptable. This is because the transfer decisions
had a direct impact upon the willingness of states to cooperate in extradition towards Rwanda. A significant number of genocide suspects remain at large, sheltered from prosecution, as an indirect and certainly
unintended consequence of the decisions by the International Criminal
Tribunal.
“If the State Considers”: Self-Judging Clauses in
International Dispute Settlement
Stephan Schill & Robyn Briese*
Abstract
I.
II.
Introduction
A General Framework for Analyzing Self-Judging Clauses
1. Defining Self-Judging Clauses
2. Determining the Existence of Self-Judging Clauses
3. Discretion versus Deference
4. A Taxonomy of Self-Judging Clauses
a. Clauses Concerning the Restriction of, or Derogations from, International Obligations
b. Exit-Clauses from International Regimes
c. Clauses Pertaining to the Jurisdiction of an International Court or
Tribunal
d. Clauses Concerning Reservations to International Treaties
5. Summary
III. Avoiding Abuse: Self-Judging Clauses in International Dispute Settlement
1. Non-Judicial Mechanisms to Hold States Accountable for Violations
of Self-Judging Clauses
2. Self-Judging Clauses and International Dispute Settlement
a. Self-Judging Clauses in the GATT/WTO-System
aa. Article XXI GATT: Barring Jurisdiction or Affecting the Standard of Review?
bb. Article XXI GATT: The Appropriate Standard of Review
b. Self-Judging Clauses in Investment Treaty Arbitration
c. Self-Judging Clauses before the International Court of Justice
3. Summary
*
The views expressed in this article by Robyn Briese are her personal ones
and do not necessarily reflect the views of the Australian Government Solicitor.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 61-140.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
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IV.
Towards a General Standard of Review for Self-Judging Clauses
1. Possible Concretizations of Good Faith Review
2. Exploring the Domestic Administrative Law Analogy
a. Commonwealth Common Law Countries
b. The United States
c. France
d. Germany
e. Summary
3. Applying the Domestic Administrative Law Analogy to Self-Judging
Clauses
Conclusion
V.
Abstract
In aiming at reconciling the interest of states in international cooperation with a state’s interest in safeguarding certain essentially national interests, self-judging clauses constitute a crucial hinge between state sovereignty and international cooperation. While such clauses have traditionally only occupied a minor place in the jurisprudence of international Courts and Tribunals, issues surrounding them appear increasingly often as international dispute settlement bodies proliferate and
broaden their jurisdiction. However, their function, scope and effect in
international dispute resolution are only tentatively theorized and not
fully settled. This article, therefore, considers the nature of self-judging
clauses in international law and provides a general framework to elucidate their function and effect. It focuses, in particular, on their function
in international dispute settlement and argues that self-judging clauses,
generally, do not oust the jurisdiction of international Courts or Tribunals, but affect the standard of review that Courts and Tribunals apply
in relation to the state invoking the operation of such a clause.
I. Introduction
International law today is in a state of rapid growth and transformation.
One of the elements of this development is the proliferation of international dispute settlement bodies that help to settle uncertainty about the
extent of international obligations and to ensure compliance with them,
as well as increasing recourse to established international dispute set-
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
63
tlement bodies such as the International Court of Justice (ICJ).1 This
development shifts international law from a simple tool to co-ordinate
inter-state relations, to an instrument that creates global orders for an
emerging international society.2 It coincides with a certain decline of
sovereignty as the focal point of traditional international law and the
move from unilateral and bilateral structures to multilateralism.3
At the same time, residues of state- and sovereignty-centered international law persist, or even challenge this development. One of these
residues is the inclusion of provisions in international instruments by
means of which states reserve a right to non-compliance with international legal obligations in certain circumstances, predominantly if the
state in question considers compliance to harm its sovereignty, security,
public policy – or more generally – its essential interests.4 These socalled “self-judging clauses” appear relatively frequently in various
types of international instruments, including treaties on mutual assistance, extradition, trade and investment, or private international law
1
2
3
4
A surge of literature has developed that focuses on the implications of this
development for the international legal system. See, for example, L. Helfer/
A. Slaughter, “Toward a Theory of Effective Supranational Adjudication”,
Yale L. J. 107 (1997), 273 et seq.; B. Kingsbury, “Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?”, N.Y.U.J.
Int’l L. & Pol. 31 (1999), 679 et seq.; J. Charney, “The Impact on the International Legal System of the Growth of International Courts and Tribunals”, N.Y.U.J. Int’l L. & Pol. 31 (1999), 697 et seq.; C. Romano, “The Proliferation of International Judicial Bodies: The Piece of the Puzzle”, N.Y.U.
J. Int’l L. & Pol. 31 (1999), 709 et seq.; R. Alford, “The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance”, ASIL 94 (2000), 160 et seq.; S. Spelliscy, “The Proliferation of International Tribunals: A Chink in the Armor”, Colum. J. Transnat’l L. 40
(2001), 143 et seq.; L. Reed, “Great Expectations: Where Does the Proliferation of International Dispute Resolution Tribunals Leave International
Law?”, ASIL 96 (2002), 219 et seq. See also the remaining contributions to
a symposium held at New York University School of Law in October 1998
on the proliferation of international Courts and Tribunals in N.Y.U.J. Int’l
L. & Pol. 31 (1999), 697 et seq.
Cf. A. Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, 2007, 686 et
seq.
See B. Simma, “From Bilateralism to Community Interest in International
Law”, RdC 250 (1994), 217 et seq.
See S. Rose-Ackerman/ B. Billa, “Treaties and National Security”, N.Y.U.J.
Int’l L. & Pol. 40 (2008), 437 et seq.
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Max Planck UNYB 13 (2009)
and arbitration.5 By means of these clauses states reserve to themselves
the right to unilaterally declare such obligations to be non-binding if
the state in question determines that its essential interests are at stake
and, according to its determination, should take precedence over international law.
To a certain extent, therefore, self-judging clauses allow states to
reconcile their interest in establishing cooperative links with other
states by entering into international obligations with the possibility of
upholding certain national interests that are considered to be paramount from the domestic perspective. However, self-judging clauses
also generate a tension between international cooperation, on the one
hand, and unilateralism, on the other, as their existence may invite the
state that is invoking such a clause ex post in a dispute with the other
Contracting Party to make use of its discretion in a manner that is beyond what the Contracting States had originally anticipated. Potentially, the clauses can thus have a destructive effect on international cooperation, even though they were originally conceived of to provide an
exit-valve from international cooperation only in the limited cases necessary to bring about a cooperative regime. In light of this tension, selfjudging clauses constitute the focal point of conflicting national interests and international cooperation and can be considered as “the Achilles’ heel of international law” that is left unshielded whenever international law and the protection of essential state interests collide.6
Despite their pervasiveness, self-judging clauses historically have not
played a major role in international dispute resolution, apart from passing reference in older jurisprudence of the ICJ and in Panel decisions
5
6
The term “self-judging clause” is used as a short-hand term for the types of
clauses under consideration in this article. This term is frequently used in
the literature but should not be taken as implying that such clauses are entirely self-judging as will become apparent through this article.
H. Schloemann/ S. Ohlhoff, “‘Constitutionalization’ and Dispute Settlement in the WTO: National Security as an Issue of Competence”, AJIL 93
(1999), 424 et seq. (426) (observing that “[n]ational security is the Achilles’
heel of international law. Wherever international law is created, the issue of
national security gives rise to some sort of loophole, often in the form of an
explicit national security exception. The right of any nation-state to protect
itself in times of serious crisis by employing otherwise unavailable means
has been a bedrock feature of the international legal system. As long as the
notion of sovereignty exerts power within this evolving system, national
security will be an element of, as an exception to, the applicable international law.”).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
65
under the General Agreement on Tariffs and Trade (GATT). More recently, however, the invocation of self-judging clauses, or what one of
the disputing parties has asserted to be a self-judging clause, has gained
prominence in arbitral proceedings under the Convention on the Settlement of Investment Disputes between States and Nationals of Other
States (ICSID Convention)7 in proceedings relating to the Argentine
economic crisis of 2001/20028 and in the judgment by the ICJ in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France).9 These proceedings have elucidated, but not settled, the many
difficult issues surrounding the application of self-judging clauses in international dispute resolution.
Furthermore, although the effect, scope and nature of self-judging
clauses have been discussed with respect to specific treaty regimes, there
is little writing and theory on self-judging clauses as a general phenomenon in international treaty practice. This is despite the fact that
such clauses appear to play an important function in reconciling the
sometimes competing mechanics of protecting the national interest
while furthering international cooperation, which, together with the increasing depth of international cooperation and progressing interactions
of states in areas that traditionally have been considered as part of the
inalienable domestic realm, means that the application of self-judging
clauses will potentially increase in the years and decades to come, including in international dispute settlement.
In order to understand the nature and effect of self-judging clauses
and to develop a doctrinal framework for their interpretation and application, this article begins, in Part II., by outlining a definition of selfjudging clauses and by categorizing them according to their function in
different international legal instruments. It is submitted that the specific
characteristic of a self-judging clause is that it affords a state discretion,
within the scope of application of the clause, to decide whether it gives
primacy to the content of an international obligation or pursues its national interest contrary to cooperating internationally. This Part will
7
8
9
UNTS Vol. 575 No. 159 (entered into force 14 October 1966).
See under Part III. 2. b.
See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), Judgment of 4 June 2008, available via <http://www.icj-cij.org>.
For a discussion of the case see notes 143 - 158 below and accompanying
text. See further R. Briese/ S. Schill, “Djibouti v. France – Self-Judging
Clauses Before the International Court of Justice”, Melbourne Journal of
International Law 10 (2009), 308 et seq.
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not only give various examples of self-judging clauses, but will equally
address how to distinguish them from non-self-judging clauses.
The article then considers, in Part III., how self-judging clauses can
be interpreted and applied in international dispute settlement fora in
order to reconcile the effort to further international cooperation with
the unilateral interest of states in reserving certain areas of specific concern to their self-determination. This is done through an analysis of
various treaty regimes in which self-judging clauses have been considered or applied in dispute settlement, in particular in the GATT/World
Trade Organization (WTO) system, in arbitrations under international
investment treaties, and by the ICJ. In this context, the analysis focuses
particularly on the question of whether self-judging clauses oust the jurisdiction of such bodies or whether the clauses’ effect is limited to affecting the standard or nature of review. The article argues that existing
state practice and international jurisprudence suggest that self-judging
clauses do not oust the jurisdiction of a dispute settlement body, but
rather affect the applicable standard of review. They do not provide the
state invoking the clause with an unlimited and non-reviewable carte
blanche. Rather the dispute settlement body retains the power to implement a “good faith review.”
Accepting that “good faith review” is the generally applicable standard in the context of self-judging clauses, Part IV. of this article considers how this test can be applied in practice. In this context, the paper
suggests that an analogy can be drawn between “good faith review” by
international dispute settlement bodies and the standard of review applied by Courts in domestic legal systems in relation to discretionary
decisions taken by administrative agencies. This analogy turns on the
manner in which domestic administrative dispute settlement systems
deal with and control the discretion granted to the executive branch of
government. The analogy, it is argued, is appropriate in view of the
presence of discretion as a central element both in the domestic administrative law context as well as at the international level as regards selfjudging clauses. It arguably affords the state invoking the clause sufficient leeway to give primacy to its national interest while allowing a
Court or Tribunal to curtail an abuse of discretion by implementing a
range of primarily procedural limitations without questioning the content of the state’s decision or weighing the domestic interest protected
versus the interest in international cooperation of other international
actors. Potentially, this analogy, which finds support in a significant
number of domestic legal systems, can be the basis for developing a
general standard of review for self-judging clauses that can be used in-
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
67
dependently of the subject matter of the specific self-judging clause
concerned.
II. A General Framework for Analyzing Self-Judging
Clauses
Self-judging clauses appear frequently in various contexts in international relations. They are in fact so pervasive that it is surprising that
such clauses have not yet been treated in a comprehensive manner. Indeed, theory regarding the function and scope of self-judging clauses is
currently limited to individual clauses in specific treaty regimes.10 In an
attempt to understand them as a general phenomenon of the law of international treaties and international cooperation this Part outlines the
characteristics of self-judging clauses, proposes a definition of selfjudging clauses and sets out a taxonomy of the types of self-judging
clauses that currently exist.
1. Defining Self-Judging Clauses
Although, there is currently no generally accepted definition of selfjudging clauses, existing state practice and jurisprudence by international Courts and Tribunals provide for a structural framework on the
basis of which a definition can be distilled. At the most general level,
self-judging clauses have the function of allowing a state to enter into
international cooperation on the basis of binding international obligations, while at the same time retaining the power to escape from such
obligations in certain circumstances, most frequently if the state determines that it would harm its sovereignty, security, public policy, or
more generally, its essential interests. It constitutes a safety valve for
reconciling international cooperation and for state’s occasional preference for unilateralism within cooperative regimes.
Two factors are characteristic of self-judging clauses. First, the
clauses grant a state discretion to unilaterally opt out (in a non-technical
and broad sense) from an international obligation, including through
exceptions to treaty obligations, justifications for breaches, circumstances precluding wrongfulness and full derogations from treaty regimes, as well as through control over the power that mechanisms of in10
See the areas and literature discussed below under Part III.
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Max Planck UNYB 13 (2009)
ternational governance have over a state, in particular the power of an
international dispute settlement body like the ICJ.11 As a consequence,
self-judging clauses allow for the playing out of “unilateral considerations” in an international regime that is generally based on cooperation
between states, be it bilateral or multilateral.
Second, the evaluation of whether the elements for such an opt-out
are given is not established fully objectively from an external point of
view, but primarily from the point of view of the state concerned (even
though a certain amount of review of this invocation may remain). In
other words, the determination of whether the self-judging elements of
a clause are fulfilled is not effectuated from the point of view of an independent third party, such as an international Court or Tribunal, another treaty-based supervisory body, or the other Contracting Party or
Parties. Rather, self-judging clauses allow for the subjective evaluation
of the state claiming the derogation and, thus, grant it discretion. A selfjudging clause is a means for the state invoking its operation to retain
the power of interpretation of the clause, in full or in part. It safeguards
certain sovereign interests, or framed more positively, the states’ selfdetermination with respect to certain crucial matters when engaging in
international cooperation.
Self-judging clauses can therefore be defined as provisions in international legal instruments by means of which states retain their right to
escape or derogate from an international obligation based on unilateral
considerations and based on their subjective appreciation of whether to
make use of and invoke the clause vis-à-vis other states or international
organizations.12
11
12
Forms of global governance that exercise normative constraints over states
are, however, not limited to classical forms of international cooperation,
but today include numerous international actors and forms, including international organizations, inter-governmental bodies, hybrid publicprivate, or purely private bodies, etc. See B. Kingsbury/ N. Krisch/ R.
Stewart, “The Emergence of Global Administrative Law”, Law & Contemp. Probs. 68 (2005), 15 et seq. In this context, self-judging clauses thus
have the effect of shielding a state from such mechanisms of global governance.
We note that the tension between unilateralism and international cooperation that is inherent in the operation of self-judging clauses has led to the
question whether such clauses are at all admissible. While such concerns
have some merit in the context of unilateral instruments (see below under
II. 4. c. and II. 4. d.), where self-judging clauses are included in treaties,
there is technically no conflict between unilateralism and bi- or multilater-
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
69
2. Determining the Existence of Self-Judging Clauses
Since undertaking international obligations presupposes that cooperation rather than the safeguarding of unilateralism is being provided for,
the existence of self-judging clauses or self-judging elements in an international treaty or other declaration cannot be presumed. Rather, as
the emphasis in article 31 (1) of the Vienna Convention on the Law of
Treaties13 on the wording of a treaty provision in its context and in view
of its object and purpose suggests, the terms of an international treaty
have to make clear in an objective manner that the states in question intended to retain discretion in derogating from international law obligations based on their subjective evaluation of the circumstances under a
self-judging clause.14 In principle, self-judging clauses thus have to be
included expressly, that is to say by using drafting techniques and language that clearly state that discretion for the unilateral consideration of
the scope and applicability of a provision is granted to the Contracting
Parties.15 The way the grant of this discretion is expressed in international treaties is usually by including language such as “if the state con-
13
14
15
alism, as states have consented to allow the influence of unilateral considerations to a certain extent.
Vienna Convention on the Law of Treaties, opened for signature 23 May
1969, UNTS Vol. 1155 No. 331 (entered into force 27 January 1980).
P. Reuter, Introduction to the Law of Treaties, 2nd edition 1995, 96 (“The
primacy of the text, especially in international law, is the cardinal rule of
any interpretation” even though “the purpose of interpretation is to ascertain the intention of the parties from a text”); I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd edition 1984, 115 (stating, inter alia,
that the interpretative methodology endorsed by arts 31 and 32 of the Vienna Convention on the Law of Treaties was “clearly based on the view
that the text of a treaty must be presumed to be the authentic expression of
the intentions of the parties”); J. Sorel, “Article 31 (Convention de Vienne
de 1969)”, in: O. Corten/ P. Klein (eds), Les Conventions de Vienne sur le
droit des traités – Commentaire article par article, Vol. II, 2006, para. 48
(stating that “[l]a Convention de Vienne donne priorité à l’interprétation
textuelle”); D.P. O’Connell, International Law, Vol. I, 2nd edition 1970,
255 (stating that article 31 (1) of the Vienna Convention on the Law of
Treaties “embodies the literal and teleological techniques of interpretation”).
For an analysis of the difference between discretion and deference see Part
II. 3. below.
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siders” or wording that has a similar effect, i.e., language such as “in the
state’s opinion”, “if the state determines”, etc.16
For example, a treaty for cooperation and mutual assistance in
criminal matters, the Convention on Mutual Assistance in Criminal
Matters between Djibouti and France,17 which was the focus of the
ICJ’s decision in Djibouti v. France,18 contained an article providing
that assistance in proceedings relating to criminal offences
“may be refused […] if the requested state considers that the execution of the request is likely to prejudice its sovereignty, its security,
its ordre public or other of its essential interests.”19 (emphasis added)
As made clear by the wording of this clause, the Contracting Parties
thereby established a subjective test of whether the exception is applicable in any given circumstances and assigned the power of definition
and interpretation to the state refusing cooperation.
Self-judging clauses can be contrasted with non self-judging clauses.
For instance, another exception to the duty to grant assistance in proceedings related to criminal matters in the same Mutual Assistance
Convention allows assistance to be refused
“if the request concerns an offence which is not punishable under
the law of both the requesting state and the requested state.”20
16
17
18
19
Clauses that are implicitly self-judging, i.e., clauses that confer discretion
upon a state to make use of a unilateral determination of obligations assumed under an international treaty will, by contrast, be rather exceptional,
because one cannot presume that states intended to allow unilateral considerations to trump their effort in cooperation. To interpret a treaty provision as implicitly self-judging will thus require that the state parties’ intention to confer self-judging discretion on a state is otherwise clear. For a discussion about implicitly self-judging clauses in the context of a nonprecluded-measures-clause in the U.S.-Argentine BIT see W. Burke-White/
A. von Staden, “Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties”, Va. J. Int’l L. 48 (2008), 307 et seq. (381-386); J.
Alvarez/ K. Khamsi, “The Argentine Crisis and Foreign Investors: A
Glimpse into the Heart of the Investment Regime”, Yearbook on International Investment Law & Policy 1 (2009), 379 et seq. (417-426).
Mutual Assistance Convention, signed 27 September 1986, UNTS Vol.
1695 No. 297 (entered into force 1 August 1992).
See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), see note 9.
Article 2 (c) of the Mutual Assistance Convention, see note 17.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
71
This provision does not include the words “if the requested State considers” or similar language. Rather, the provision posits an objective test
of whether the exception is applicable in any given circumstances. It
does not, unlike the provision discussed earlier, assign the power of
definition and interpretation to the state concerned and does not leave it
with any discretion.
The importance of the wording of treaty provisions in determining
whether clauses, or certain elements of them, are self-judging has also
found prominent expression in the jurisprudence of the ICJ. Referring
to the 1956 Treaty of Friendship, Commerce and Navigation between
the United States and Nicaragua,21 which contained a clause providing
that “the present Treaty shall not preclude the application of measures
… necessary to fulfil the obligations of a Party for the maintenance or
restoration of international peace and security, or necessary to protect
its essential security interests,” the ICJ held:
“Article XXI defines the instances in which the Treaty itself provides for exceptions to the generality of its other provisions, but it
by no means removes the interpretation and application of that article from the jurisdiction of the Court. That the Court has jurisdiction to determine whether measures taken by one of the Parties fall
within such an exception, is also clear a contrario from the fact that
the text of Article XXI of the Treaty does not employ the wording
which was already to be found in Article XXI of the General
Agreement on Tariffs and Trade. This provision of GATT, contemplating exceptions to the normal implementation of the General
Agreement, stipulates that the Agreement is not to be construed to
prevent any contracting party from taking any action ‘which it considers necessary for the protection of its essential security interests’,
in such fields as nuclear fission, arms, etc. The 1956 Treaty, on the
contrary, speaks simply of ‘necessary’ measures, not of those considered by a party to be such.”22
20
21
22
Article 2 (b) Mutual Assistance Convention, ibid.
Treaty of Friendship, Commerce and Navigation (with Protocol), signed 21
January 1956, Nicaragua - United States, UNTS Vol. 367 No. 3 (entered
into force 24 May 1958).
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986, 14 et seq. (116, para.
222). Ibid., 141, para. 282 (reiterating the importance of the wording of a
clause by observing that “whether a measure is necessary to protect the essential security interests of a party is not, as the Court has emphasized
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The ICJ, therefore, attributed significance to the wording of international treaty provisions and inferred from the lack of specific terms that
assigned the power of definition of what was “necessary … to protect
the state’s essential security interests” to the state invoking that clause
that no self-judging aspects, which could limit the Court’s power of review, were intended by the Contracting Parties to the treaty in question. At the same time, the Court clearly accepted that clauses in international treaties could be self-judging.
A similar approach has been adopted in recent decisions by Investment Tribunals deciding investor-state disputes under bilateral investment treaties (BITs). The decisions concerned the question of whether
Argentina was able to escape from its obligations under the BIT with
the United States when taking measures during its economic crisis in
2001/2002 that negatively affected investors covered by the treaty in
question. The decisions involved interpreting the specific emergency
clause in that treaty which provided:
“This Treaty shall not preclude the application by either Party of
measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own
essential security interests.”23
Argentina, in several investor-state proceedings, argued that this
clause was self-judging and accordingly allowed Argentina to determine
whether the measures it took during its economic crisis were necessary,
free of review by an arbitral tribunal, and without engaging its international responsibility.24 The Tribunals in the respective proceedings,
23
24
(paragraph 222 above), purely a question for the subjective judgment of the
party; the text does not refer to what the party ‘considers necessary’ for
that purpose.”).
Article XI of the Treaty between the United States and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investment, signed 11 November 1991, ILM 31 (1992), 124 et seq. (entered
into force 20 October 1994).
CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No.
ARB/01/8, Award of 12 May 2005, para. 349-352; LG&E Energy Corp.,
LG&E Capital Corp., LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability of 3 October 2006, para.
208-209; Sempra Energy International v. Argentine Republic, ICSID Case
No. ARB/02/16, Award of 28 September 2007, para. 366-368; Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No.
ARB/01/3, Award of 22 May 2007, para. 324-326; Continental Casualty
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
73
however, adopted the position that self-judging clauses had to be
framed explicitly in order to grant a state discretion in the determination of the clause’s scope of application. Similarly to the ICJ decision in
the Nicaragua case, they drew a distinction between “measures necessary for the protection of essential security interests” and “measures
that the state considers necessary for the protection of essential security
interests” and held that the former clauses were not of a self-judging nature.25 The Tribunal in CMS v. Argentina, for example, held that “when
states intend to create for themselves a right to determine unilaterally
the legitimacy of extraordinary measures importing non-compliance
with obligations assumed in a treaty, they do so expressly.”26 Similarly,
the Tribunal in Sempra v. Argentina was of the view that “[t]ruly exceptional and extraordinary clauses, such as a self-judging provision, must
be expressly drafted to reflect that intent, as otherwise there can well be
a presumption that they do not have such meaning in view of their exceptional nature.”27 These decisions reinforce that there is a presumption against interpreting clauses in international treaties as self-judging
unless such an intention finds a clear expression in the treaty text itself.
25
26
27
Company v. Argentine Republic, ICSID Case No. ARB/03/9, Award of 5
September 2008, para. 183 (all awards and decisions by arbitral tribunals
are available via the Investment Treaty Arbitration website at <ita.law.
uvic.ca> or the Investment claims website via <www.investmentclaims.
com>). Cf. also J. Kurtz, Adjudging the Exceptional at International Law:
Security, Public Order and Financial Crisis, available via <www.jeanmon
netprogram.org/papers/08/080601.pdf> Jean Monnet Working Paper 2008,
30-31. See further also the discussion in the literature cited above at note
16.
See CMS v. Argentine Republic, see note 24, para. 366-373; LG&E v. Argentine Republic, see note 24, para. 207-214; Sempra v. Argentine Republic,
see note 24, para. 366-388; Enron v. Argentine Republic, see note 24, para.
324-339; Continental Casualty v. Argentine Republic, see note 24, para.
182-188. These cases are discussed further below in Part II. 4. b.
CMS v. Argentine Republic, see note 24, para. 370.
Sempra v. Argentine Republic, see note 24, para. 379; see further ibid., para.
383 (stating that “that the language of a provision has to be very precise for
it to lead to a conclusion about its self-judging nature”); very similar language can be found in Enron v. Argentine Republic, see note 24, para. 335336.
Max Planck UNYB 13 (2009)
74
3. Discretion versus Deference
In order to understand the effect of self-judging clauses on international
dispute settlement bodies, it is also important to distinguish between
the discretion that such a clause grants to states from the deference that
international Courts and Tribunals grant in various contexts to a state in
reviewing how that state has chosen to execute or derogate from its international obligations. Although international Courts and Tribunals
sometimes use the term deference and discretion interchangeably, the
concepts differ. The difference is that discretion involves the entitlement
of the state to determine, within certain limits, the content of the selfjudging aspects of a treaty clause. The interference by a third-party dispute-resolver with that state’s entitlement, in this context, would be
unlawful and thus ultra vires. Deference also grants a certain margin of
appreciation to a state within which the dispute resolver does not scrutinize the state’s decision. This margin of appreciation is, however,
based on the self-restraint that the Court or Tribunal exercises vis-à-vis
the state and does not reflect an entitlement of the latter. In consequence, overstepping the margin within which Courts and Tribunals
pay deference is not unlawful and does not constitute an excess of
power.
Certainly, in practice both deference and the discretion granted under self-judging clauses are functionally similar in reconciling state sovereignty and court-monitored international cooperation. This can be illustrated, for example, with respect to treaty clauses pertaining to national security and emergencies that are not self-judging, but in the
scrutiny of which international dispute settlement bodies have exercised
restraint. Thus, under article 15 (1) of the European Convention on
Human Rights (ECHR),28 the European Court of Human Rights
(ECtHR) regularly pays deference to the decisions of states to derogate
from the Convention without being mandated to do so.29 Article 15 (1)
ECHR provides:
28
29
UNTS Vol. 213 No. 222, signed 4 November 1950 (entered into force 3
September 1953).
Another example is article 297 (ex-article 224) of the Treaty Establishing
the European Community (ECT), UNTS Vol. 298 No. 11, which provides:
“Member States shall consult each other with a view to taking together the
steps needed to prevent the functioning of the common market being affected by measures which a Member State may be called upon to take in the
event of serious internal disturbances affecting the maintenance of law and
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
75
“In time of war or other public emergency threatening the life of the
nation any High Contracting Party may take measures derogating
from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
Based on a textual approach to interpretation, this provision is not
self-judging, because, in order to apply, it must be objectively established that there is a war or other public emergency and that measures
taken in derogation from the Convention’s obligations are “strictly necessary.” It does not, therefore, establish a self-judging carve-out for
states. Notwithstanding this, the ECtHR regularly grants a wide margin of appreciation to Member States when determining whether a
state’s measures fall under the emergency exception. Thus, in Ireland v.
United Kingdom the Court stated:
“It falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is
threatened by a ‘public emergency’ and, if so, how far it is necessary
to go in attempting to overcome the emergency. By reason of their
direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position
than the international judge to decide both on the presence of such
an emergency and on the nature and scope of derogations necessary
to avert it.”30
30
order, in the event of war or serious international tension constituting a
threat of war, or in order to carry out obligations it has accepted for the
purposes of maintaining peace and international security.” Cf. also Advocate-General Jacobs’ Opinion in Commission v. Greece, Case C-120/94,
ECR 1996, 1513 et seq. (arguing that article 297 “raises the fundamental issue of the scope of the Court’s power to exercise judicial review in such
situations. Clearly it cannot be argued … that the matter is non-justiciable
… The scope and intensity of the review that can be exercised by the Court
is however severely limited on account of the nature of the issues raised.
There is a paucity of judicially applicable criteria that would permit this
Court, or any other court, to determine whether serious international tension exists and whether such tension constitutes a threat of war …”).
See Ireland v. United Kingdom, ECtHR, Ser. A, No. 25, Judgment of 1
January 1978, para. 207. See also Brannigan and McBride, ECtHR, Ser. A.
No. 258-B, Judgment of 26 May 1993, para. 43. See further C. Ashauer,
“Die Menschenrechte im Notstand”, AVR 45 (2007), 400 et seq. (418-421).
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Max Planck UNYB 13 (2009)
Although the state’s appreciation regarding the applicability of the exception is not expressly referred to in article 15 (1) ECHR, the Court
attributes to the state a considerable degree of deference. It considers
the state in question to be best-placed to determine the existence of an
emergency and the means to overcome it.
In effect, the differences between the practice of paying deference to
state decisions under review and the function of self-judging clauses are
subtle. Yet, the margin of appreciation the ECtHR grants under article
15 (1) ECHR is based on the institution’s self-restraint rather than on
the concept that the Court is legally required to limit its standard of
scrutiny. Similarly, the respective degree of deference accorded depends
on the circumstances at play and can range from a very deferential approach to a fairly robust review of the legitimacy of a state’s action.31
Finally, the decision about the scope and the extent of deference is made
by the dispute settlement body itself and can vary depending on the cir-
31
For example, in The Observer v. United Kingdom, European Human
Rights Reports 14 (1992), 15 et seq. (218), Judge Morneilla noted, in a partly
dissenting opinion, that “[i]t is true that the state’s margin of appreciation is
wider when it is a question of protecting national security than when it is a
question of maintaining the authority of the judiciary by safeguarding the
rights of the litigants.” By contrast, in cases alleging torture or inhuman or
degrading treatment or punishment, such as Chahal v. United Kingdom,
European Human Rights Reports 23 (1997), 413 et seq. (457), the ECtHR
has held that no margin of appreciation exists. See also R. Macdonald, “The
Margin of Appreciation”, in: R. Macdonald/ F. Matscher/ H. Petzold (eds),
The European System for the Protection of Human Rights, 1993, 83, 84. See
generally Y. Shany, “Towards a General Margin of Appreciation Doctrine
in International Law”, EJIL 16 (2005), 907 et seq. (927) (enumerating as
relevant factors for granting deference by an international Court or Tribunal the comparative advantage of local authorities, the indeterminacy of the
applicable standard and the nature of the contested interests). For a discussion of the spectrum of deference accorded when interpreting exceptions to
the EC Treaty see A. Arda, “Member States’ Right to Derogate from the
European Treaties: A Commentary on Article 297 TEC”, in: H. Smit/ P.
Herzog/ C. Campbell/ G. Zagel (eds), Smit & Herzog on the Law of the
European Union, 2nd edition 2006, Chapter 398, 1 et seq.; M. Trybus, “The
EC Treaty as an Instrument of European Defence Integration: Judicial
Scrutiny of Defence and Security Exceptions”, Common Market Law Review 39 (2002), 1347 et seq. (1368-1369).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
77
cumstances of the case before it,32 while the scope and extent of discretion is, in principle, determined by the Contracting Parties. Making
changes to that scope and extent is, therefore, not within the power of
the dispute settlement body.
There are a number of rationales for the exercise of self-restraint or
deference relating to the legitimacy and capacity of international Courts
and Tribunals.33 These rationales apply in situations of normative flexibility, that is in situations where “the international norms to be applied
are open-ended or unsettled,” or, in other words, “provide limited conduct-guidance and preserve a significant ‘zone of legality’ within which
states are free to operate.”34 Norms falling into this category are generally standard-type norms, such as “reasonable”, “proportional” or
“necessary”,35 or broad subject-based concepts such as “public emergency”, “security”, “essential interests” or “ordre public.”36 In international law, such broad concepts most frequently relate to areas consid32
33
34
35
36
See Shany, see note 31, 914 (observing that “[u]ltimately, it would be for international courts to determine whether deference to national authorities is
warranted, and to what extent”).
See Shany, see note 31, 908 for a discussion of the rationales for and against
the application of a margin of appreciation. See also Handyside v. United
Kingdom, ECtHR, Ser. A, No. 24, Judgment of 7 December 1976, para. 48
(stating that “[t]he view taken by their respective laws of the requirements
of morals varies from time to time and from place to place, especially in our
era which is characterised by rapid and far-reaching evolution of opinions
on the subject. By reason of their direct and continuous contact with the
vital forces of their countries, state authorities are in principle in a better
position than the international judge to give an opinion on the exact content of these requirements.”).
Shany, see note 31, 910.
Shany, see note 31, 914 et seq.
See e.g. United States – Measures Affecting the Cross-Border Supply of
Gambling and Betting Services (U.S.-Gambling), WTO Panel Report,
WT/DS285/R adopted 20 April 2005, para. 6.461: “the content of these
concepts [i.e. public morals and public order] for Members can vary in time
and space, depending upon a range of factors, including prevailing social,
cultural, ethical, and religious values …. Members should be given some
scope to define and apply for themselves the concepts of ‘public morals’
and ‘public order’ in their respective territories, according to their own systems and scales of values.” For a more detailed discussion of this case see
N. Diebold, “The Morals and Order Exceptions in WTO Law: Balancing
the Toothless Tiger and the Undermining Mole”, Journal of International
Economic Law 11 (2007), 43 et seq.
78
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ered fundamental to a state’s sovereignty and which states traditionally
have viewed as unsuitable for judicial assessment.37 Similar rationales
also are the drivers behind the inclusion of self-judging clauses in international instruments, as self-judging clauses are most often found in instruments with an effect on such areas.38 Yet, including self-judging
clauses in international treaties, instead of relying on the deferential
self-restraint of an international Court or Tribunal, seems to occur
more frequently in less institutionalized and less integrated systems of
international cooperation.
It is important to note, however, that not all international Courts
and Tribunals accord a margin of appreciation to states when interpreting standard-based norms or concepts such as “essential [security] interests,” “emergencies” or “ordre public.” Thus, in both the GabčíkovoNagymaros Project case,39 which concerned the customary international
law concept of necessity as a circumstance precluding the wrongfulness
of an act not in conformity with an obligation under international law,40
and the Oil Platforms case,41 which relevantly involved the invocation
of self-defense, the ICJ appeared not to grant to the states concerned
any margin of appreciation, although the concepts of necessity and self-
37
38
39
40
41
See e.g. R. Jennings, “Recent Cases on ‘Automatic’ Reservations to the Optional Clause”, ICLQ 7 (1958), 349 et seq. (362) (arguing that “national security is a matter of which the government is sole trustee. It is eminently a
matter on which an international court can have no useful opinion.”).
However, discretion granted under self-judging clauses is not necessarily
and intrinsically tied to such areas. See, for example, article 2 (a) of the Mutual Assistance Convention, see note 17, relating to the right to refuse assistance “if the request concerns an offence which the requested state considers a political offence, an offence connected with a political offence, or a
fiscal, customs or foreign exchange offence.”
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, 7 et
seq.
See article 25 of the ILC Articles on State Responsibility, which reflects
customary international law and provides: “1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not
in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a
grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the
international community as a whole.”
Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ
Reports 2003, 161 et seq.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
79
defense both include standard-type norms, and self-defense involves security concerns.
In the Gabčíkovo-Nagymaros Project case, Hungary argued that the
question of whether necessity and its elements applied, as specified in
article 25 of the ILC’s Articles on State Responsibility, was to be determined by the state invoking necessity. However, the ICJ held that these
aspects were for it to determine, on the basis of an objective appreciation of the facts. The Court thus made clear, that necessity, as an exception to an international legal obligation, did not allow for the unilateral
determination of the existence and scope of this exception by the state
invoking it. Instead, the Court observed that, because of its exceptional
nature, “the state of necessity can only be invoked under certain strictly
defined conditions which must be cumulatively satisfied; and the state
concerned is not the sole judge of whether those conditions have been
met.”42 Consequently, the Court “endeavour[ed] to ascertain whether
those conditions had been met at the time of the suspension and abandonment, by Hungary, of the works that it was to carry out in accordance with the 1977 Treaty” and determined objectively, i.e., without
paying deference to the state concerned, whether the substantive elements of necessity, namely the existence of a serious impairment of an
essential interest were met, and whether Hungary’s reaction was objectively necessary to protect these interests.43
Similarly, in the Oil Platforms case, the ICJ endorsed an objective
approach to questions of self-defense and national security without
granting the state concerned any deference in the form of a nonreviewable domain of decision-making. Instead, against the United
States’ argument that it should be accorded certain discretion in respect
of its application of measures to protect its essential security interests,
the Court stated that “the requirement of international law that measures taken avowedly in self-defence must have been necessary for that
purpose is strict and objective, leaving no room for any ‘measure of discretion’.”44 Despite the subject matter and the normative flexibility of
the elements under which self-defense is permissible, the Court chose
an objective and fairly rigid standard of review of the measures taken by
the United States.
42
43
44
See Gabčíkovo-Nagymaros Project (Hungary/Slovakia), see note 39, 40,
para. 51.
Ibid., 40, para. 52.
Oil Platforms (Islamic Republic of Iran v. United States of America), see
note 41, 196, para. 73.
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Certainly, the ICJ’s standard of review in the Gabčíkovo-Nagymaros
Project case could be explained by the context, object and purpose of
the necessity exception which applies only “under certain very limited
circumstances.”45 Similarly, in the Oil Platforms case, the ICJ’s strict
scrutiny could be explained by the jus cogens status of the prohibition
on the use of force and the strict interpretation of exceptions to such a
prohibition that follows from it.46 Nonetheless, when compared to the
jurisprudence of the ECtHR as regards article 15 (1) ECHR, these examples serve to illustrate that the extent of the margin of appreciation
granted is not solely dependent on the presence of standard-based
norms or the subject matter of the exception, but also on the context in
which the exception is found and on the nature of the action taken in
reliance on the exception.
While these examples show that the deference accorded in the presence of standard-based norms and in matters of essential (security) interests, varies from court to court and from clause to clause, they all
concerned situations in which no expressly self-judging clause was involved. The strict scrutiny applied by the ICJ in the context of necessity
and self-defense is strong evidence that the level of scrutiny applied by
international dispute settlement bodies is not necessarily linked to, or a
function of, the subject matter of an exception. Indeed these examples
emphasize the difference between discretion under self-judging clauses
and the deference occasionally paid by international dispute settlement
bodies. Thus, an objective framing of exceptions to international obligations allows international Courts and Tribunals to review whether the
elements of such exceptions are met without being required to pay def45
46
See the Articles on Responsibility of States for Internationally Wrongful
Acts, with Commentaries, in: Yearbook of the International Law Commission (2001) Vol. II, Part Two, 83. Similarly Gab íkovo-Nagymaros Project
(Hungary/Slovakia), see note 39, 40, para. 51 (stating that “the state of necessity … can only be accepted on an exceptional basis”).
See also Separate Opinion of Judge Kooijmans, see note 41, 260, para. 46:
“Confronted with this threat to its essential security interests the United
States decided (unlike other states) no longer to use diplomatic and other
political pressure, but to opt for a reaction which involved the use of force.
By doing so, it opted for the means the use of which must be subjected to
strict legal norms, since the prohibition of force is considered to have a peremptory character. The measure of discretion to which the United States is
entitled is therefore considerably more limited than if it had chosen, for instance, the use of economic measures.” See also Shany, see note 31, 931 et
seq.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
81
erence to the subjective assessment of the state invoking it. By contrast,
in the presence of a self-judging clause, the state’s subjective assessment
must be respected so long as it falls within the bounds of the discretion
conferred.
4. A Taxonomy of Self-Judging Clauses
Self-judging clauses appear in numerous international instruments, including in treaties on mutual assistance, extradition, and trade and investment, as well as in treaties relating to private international law and
arbitration, and many others. As mentioned above, they are most often
related to certain subject matters, such as the protection of national security or the safeguard of fundamental values and policy choices of a
state. Subject-matter related classification of such clauses would allow a
study of the areas in which self-judging clauses are primarily used and
enable an assessment of the kind of state interests that are most often
protected.
However, such a study would not only require a full or near-to-full
review of the existing international treaty practice; it would also add little to a functional understanding of the clauses in reconciling unilateralism and state interests with international cooperation. Nor would such
an analysis assist in analyzing their treatment in international dispute
settlement. Consequently, this paper considers that a functional taxonomy is preferable. Against this background, self-judging clauses can be
classified into four categories: (1) clauses concerning the restriction of,
or derogation from, international obligations, (2) clauses permitting exit
from an entire treaty regime, (3) clauses providing for limitations to the
consent of states to international dispute settlement, and (4) clauses
concerning reservations to international treaties.
a. Clauses Concerning the Restriction of, or Derogations from,
International Obligations
The majority of self-judging clauses allow for unilateral determinations
concerning restrictions of or exceptions to international obligations.
This category of clauses allows states a “partial exit” from an international obligation while the state generally remains under the scope of
applicability of the respective treaty regime. The Contracting Parties, in
other words, subject themselves fully to the legal regime established by
the treaty in question, while maintaining limited carve-outs to their in-
Max Planck UNYB 13 (2009)
82
ternational obligations in circumstances where they consider specific
aspects pertaining to their sovereignty or self-determination to be negatively affected and do not, therefore, want to restrict their scope of action in that respect. For example, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention)47 contains a broadly framed exception to the obligation to recognize and enforce foreign arbitral awards. Its article V (2)(b) provides:
“Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition
and enforcement is sought finds that:
(a)
[…]
(b) The recognition and enforcement of the award would be contrary to the public policy of that country.”
This clause is clearly self-judging as it permits the enforcement state
to derogate from one of the two central obligations under the Convention, namely the obligation to recognize and enforce foreign arbitral
awards, if the competent state agency, i.e., generally the courts of the
state concerned, finds that recognition and enforcement would be contrary to that state’s public policy. Article V (2)(b) of the New York
Convention, therefore, not only allows a state to derogate from its
treaty obligation based on the amorphous concept of public policy, but
also clearly assigns the authority to determine and interpret the scope of
this exception to the authorities of the state concerned.
Accordingly, the public policy exception under article V (2)(b) of
the New York Convention has been designated as “the greatest single
threat to the use of arbitration in international commercial disputes”48
or as a “loophole” undermining the binding nature of international arbitration49 “based on the ease with which a court might disregard a foreign arbitral award for virtually any reason, however persuasive, simply
by finding that enforcement of the award would conflict with the pub-
47
48
49
UNTS Vol. 330 No. 3, signed 10 June 1958 (entered into force 7 June 1959).
J. Junker, “The Public Policy Defence to Recognition and Enforcement of
Foreign Arbitral Awards”, Cal. W. Int’l L. J. 7 (1977), 228 et seq.
See e.g. Parsons & Wittemore Overseas Co. v. Société Générale de
l’Industrie du Papier [RAKTA], 508 F.2d 969, 974 (2d Cir. 1974); Z. Kitigawa, “Contractual Autonomy in International Commercial Arbitration”,
in: P. Sanders (ed.), International Arbitration, 1967, 132, 139; D. Straus,
“Arbitration of Disputes between Multinational Corporations”, The Arbitration Journal 24 (1968), 228 et seq. (233-234).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
83
lic policy of the forum.”50 Equally, the public policy defense has been
criticized as suffering “conceptually from being an expression of ultimate sovereign power in international commercial arbitration, which
paradoxically is disfavoured by the courts because of its inherently provincial and parochial nature.”51 Accordingly, it is recognized that the interpretation of the scope of “public policy” under article V (2)(b) of the
New York Convention is open to the unilateral determination of the
Contracting Party invoking it and therefore constitutes a self-judging
exception to the obligation to recognize and enforce foreign arbitral
awards.
In practice, however, the fear that the self-judging leeway granted to
states under article V (2)(b) of the New York Convention is destructive
to international cooperation has proved to be largely unfounded. The
refusal to recognize and enforce foreign arbitral awards on the basis of
the enforcement of a state’s public policy is not only rather rare;52
Courts in most states also interpret the concept of public policy restrictively, by recognizing the importance of the Convention’s aim of allowing for cross-border enforcement of arbitral awards and the contribution that effective dispute settlement through arbitration makes towards
furthering transborder commercial activities.53 Nevertheless, a state de50
51
52
53
Junker, see note 48, 228. See more generally on the public policy exception
under the New York Convention D. Donovan, “International Commercial
Arbitration and Public Policy”, N.Y.U.J. Int’l L. & Pol. 27 (1995), 645 et
seq.; D. DeValerio Andrews, “The Public Policy Exception to Arbitral Finality”, The Boston University Public Interest Law Journal 12 (2003), 461
et seq.; H. Holtzmann/ J. Neuhaus, A Guide to the UNCITRAL Model
Law on Commercial Arbitration: Legislative History and Commentary,
1989.
Junker, see note 48, 245 et seq.
N. Gumzej, Public Policy in Recognition and Enforcement of Foreign Arbitral Awards, unpublished LL.M. Thesis Central European University Budapest, p. 1 (2002) (on file, inter alia, with the Peace Palace Library in The
Hague); P. Sanders, “A Twenty Years’ Review of the Convention on the
Recognition and Enforcement of Arbitral Awards”, The International
Lawyer 13 (1979), 269 et seq. (270).
See for a broad comparative study Gumzej, see note 52, 34 (concluding that
“most countries involved in the analysis recognise the need to restrict the
scope of their domestic public policy in enforcement proceedings”). See
also the literature cited in Gumzej, see note 52, 3, footnote 10. On the
scope of the public policy exception in Sweden see L. Heuman/ G.
Maillqvist, “Swedish Supreme Court Refuses to Enforce an Arbitral Award
Pursuant to the Public Policy Provision of the New York Convention”,
Max Planck UNYB 13 (2009)
84
ciding to adopt a broad reading of the public policy exception under article V (2)(b) of the New York Convention would be entitled to do so
in view of the self-judging nature of that exception.
Article V (2)(b) of the New York Convention is an entirely selfjudging clause. However, not all self-judging clauses share this characteristic. Some treaty provisions combine self-judging and non-selfjudging elements. Exceptions in trade treaties are a good example. Article 2102 (1) of the North American Free Trade Agreement (NAFTA),54
for example, provides that:
“… nothing in this Agreement shall be construed: […]
(b) to prevent any Party from taking any actions that it considers
necessary for the protection of its essential security interests:
(i)
relating to the traffic in arms, ammunition and implements
of war and to such traffic and transactions in other goods,
materials, services and technology undertaken directly or
indirectly for the purpose of supplying a military or other
security establishment,
(ii)
taken in time of war or other emergency in international
relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of
54
Journal of International Arbitration 20 (2003), 493 et seq.; for the same in
the legal system of New Zealand see A. Kawharu, “The Public Policy
Ground for Setting Aside and Refusing Enforcement of Arbitral Awards –
Comments on the New Zealand Approach”, Journal of International Arbitration 24 (2007), 491 et seq. See also T. Harris, “The ‘Public Policy’ Exception to Enforcement of International Arbitration Awards under the New
York Convention”, Journal of International Arbitration 24 (2007), 9 et seq.;
A. Redfern/ M. Hunter, Law and Practice of International Commercial
Arbitration, 3rd edition 1999, 457. See further the contributions to the
“Special New York Convention Number” in Journal of International Arbitration 25 (2008), 647-912. Furthermore, there have been various attempts
to define the public policy exception in terms of a transnational public policy rather than national policy considerations. See Gumzej, see note 52, 141
et seq. Cf. also F. Mantilla-Serrano, “Towards a Transnational Procedural
Public Policy”, Arbitration International 20 (2004), 333 et seq.; R. Kreindler, “Approaches to the Application of Transnational Public Policy by
Arbitrators”, Journal of World Investment 4 (2003), 239 et seq.
North American Free Trade Agreement (NAFTA), signed 17 December
1992, entered into force 1 January 1994 ILM 32 (1993), 296 et seq. (296,
695).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
85
nuclear weapons or other nuclear explosive devices.” (emphasis added)
This clause grants discretion to the state to determine whether a certain measure is necessary to protect the state’s essential security interests. Discretion in this context definitely relates to the determination of
the necessity of a measure to protect a particular security interest, but
potentially also relates to the determination of the essential security interest itself.55 It does not, however, cover the further elements that limit
what the action taken by the state may relate to or in what circumstances action may be taken. It can thus be objectively determined by a
Court or Tribunal whether the action taken by the state relates to traffic
in arms, to policies concerning nuclear weapons or is taken in a time of
war or other emergency in international relations, as envisaged by subclauses (i) through (iii).56
b. Exit-Clauses from International Regimes
Self-judging clauses can also take the form of permanent exit-clauses
concerning an entire treaty regime. Unlike the first category, such exitclauses allow a state to exit the cooperative system entirely rather than
simply providing for temporal or subject-matter restrictions to an international obligation. They allow the state to put itself outside the law
established by the fabric of obligations of the specific treaty regime and
thus go beyond the effect of the first category of self-judging clauses.
This category of self-judging clauses, however, is rare. One example
is article X (1) of the Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty), which provides:
55
56
See discussion in relation to the interpretation of GATT article XXI below
under Part III. 2. a.
See also Continental Casualty v. Argentine Republic, see note 24, para. 170188 (distinguishing, as regards the invocation by Argentina that article XI
of the U.S.-Argentine BIT was self-judging, between the non-self-judging
element “essential security interests” and the aspect of discretion argued to
be self-judging regarding whether measures taken to protect the state’s essential security interests were “necessary”). See, in particular, ibid., para.
182 (stating that “[i]f Art. XI granted unfettered discretion to a party to invoke it, in good faith, in order to exempt a particular measure which the investor claims has breached its treaty rights from any scrutiny by a tribunal,
then that tribunal would be prevented from entering further into the merits, after having recognized that an economic crisis such as the one experienced by Argentina in 2001-2002 qualified under Art. XI”).
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“Each Party shall in exercising its national sovereignty have the right
to withdraw from the Treaty if it decides that extraordinary events,
related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal
to all other Parties to the Treaty and to the United Nations Security
Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its
supreme interests.”57 (emphasis added)
This provision allows a state to unilaterally terminate its obligations
under the treaty without any apparent restrictions as to which kind of
political considerations or national interests must be at stake. The only
restriction potentially applicable to the interpretation of the clause is
that the self-judging decision of the state relates only to the assessment
that extraordinary events have “jeopardized” its supreme interests
without encompassing a self-judging determination of what kind of
“supreme interest” must be at stake.58
Notwithstanding the breadth of this treaty provision, it is noteworthy that there are mechanisms in place that aim at keeping states within
the treaty’s framework to ensure non-proliferation. For instance, when
North Korea in 1993 signaled its intention to withdraw from the NonProliferation Treaty based on its article X (1),59 three states, the Russian
Federation, the United Kingdom and the United States, protested and
questioned whether the stated reasons of North Korea constituted “extraordinary events” related to the subject matter of the treaty.60 In addi57
58
59
60
Treaty on the Non-Proliferation of Nuclear Weapons, UNTS Vol. 729 No.
169, signed 1 July 1968 (entered into force 5 March 1970).
See further the discussion in Part III. 2. a.
See Democratic People’s Republic of Korea Withdraws from NonProliferation Treaty, ILM 32 (1993), 602 et seq. On the attempted withdrawal of North Korea from the Non-Proliferation Treaty and its background more generally see, for example, M. Newcomb, “NonProliferation, Self-Defense and the Korean Crisis”, Vand. J. Transnat’l L.
27 (1994), 603 et seq. (609-617); S. Carmody, “Balancing Collective Security and National Sovereignty: Does the United Nations Have the Right to
Inspect North Korea’s Nuclear Facilities?”, Fordham Int’l L. J. 18 (1994),
229 et seq.; K. Malone, “Preemptive Strikes and the Korean Nuclear Crisis:
Legal and Political Limitations on the Use of Force”, Pacific Rim Law &
Policy Journal 12 (2003), 807 et seq. (816-822).
NPT Co-Depositaries Statement, reprinted in letter dated 1 April 1993
from the Representatives of the Russian Federation, the United Kingdom
of Great Britain and Northern Ireland, and the United States of America
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
87
tion, the Security Council passed a resolution urging North Korea to
reconsider its announced withdrawal from the treaty,61 a recommendation North Korea ultimately followed after the United States had engaged in intensive bilateral negotiations.62
This episode shows that the restraints resting upon North Korea –
or any other Member State for that matter – in this context were primarily of a political rather than a legal nature. They consisted of the requirement to give reasons, scrutiny of those reasons, and the ability of
Member States to mobilize the Security Council in order to encourage a
state attempting to rely on a self-judging exit-clause to stay within the
system and to urge further international cooperation.63 It also illustrates
that the prevention of potential misuse of self-judging treaty provisions
can be achieved by a number of different mechanisms and instruments,
depending on the subject matter of the treaty in question and depending on the existence of alternative institutions that Contracting Parties
can rely on in order to prevent self-judging clauses from having too
broad an effect.
c. Clauses Pertaining to the Jurisdiction of an International Court
or Tribunal
Another area in which clauses granting self-judging discretion to states
can be found are instruments concerning a state’s submission to the jurisdiction of an international Court or Tribunal. Thus, under the socalled Optional Declarations under Article 36 (2) of the Statute of the
Court, states occasionally exclude from the ICJ’s jurisdiction “disputes
61
62
63
addressed to the President of the Security Council, SCOR 48th Sess., Annex 2, Doc. S/25515 of 2 April 1993.
S/RES/825 (1993) of 11 May 1993.
See A. Dosseva, “North Korea and the Non-Proliferation Treaty”, Yale J.
Int’l L. 31 (2006), 265 et seq. (266).
Cf. also A. Perez, “Survival of Rights under the Nuclear Non-Proliferation
Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards”, Va. J. Int’l L. 43 (1994), 774 et seq. (suggesting
that the self-judging nature of article X (1) of the Non-Proliferation Treaty
provides for an absolute right to withdraw which, however, needs to be exercised in good faith and, above all, is embedded in a political process on
the international level). But see G. Bunn/ J. Rhinelander, “The Right to
Withdraw from the NPT: Article X Is Not Unconditional”, Disarmament
Diplomacy 79 (2005), available at <http://www.acronym.org.uk/dd/dd79/7
9gbjr.htm>.
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with regard to matters which are essentially within the domestic jurisdiction of [state X] as determined by the Government of [state X].”
Such declarations currently can be found in the Optional Declarations
of Malawi (1966), Mexico (1947), Liberia (1952), the Philippines (1972)
and Sudan (1958).64 They were previously more widespread, having
been championed by the United States in 1946 in the so-called Connally Amendment.65 The Connally Amendment with its self-judging
exception to the ICJ’s jurisdiction was viewed by the United States as
“purport[ing] to confer upon the United States the unreviewable power
to decide, in a case in which it is an interested party, whether the World
Court legally has jurisdiction over the case”66 and, as such, intended to
constitute a “veto power over the Court’s jurisdiction”67 that was subject to no international review at all.
Self-judging reservations to Optional Declarations have been the
subject of both judicial consideration and significant academic commentary and important questions have been raised about their validity,
particularly in light of Article 36 (6) of the ICJ Statute, which provides
that the ICJ is to settle disputes relating to its jurisdiction.68 For example, Judge Lauterpacht in his Separate Opinion in the Norwegian Loans
64
65
66
67
68
See at <http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3>.
See on the Connally Amendment A. Larson, “The Facts, the Law, and the
Connally Amendment”, Duke Law Journal Volume 1961, 74 et seq.; L.
Gross, “Bulgaria Invokes the Connally Amendment”, AJIL 56 (1962), 357
et seq.; see also Jennings, see note 37, 349; C. Waldock, “The Plea of Domestic Jurisdiction Before International Legal Tribunals”, BYIL 31 (1954),
96 et seq.; H. Humphrey, “The United States, the World Court and the
Connally Amendment”, Va. J. Int’l L. 11 (1971), 310 et seq.
Larson, see note 65, 75.
Ibid., see note 65, 76.
See, for example, R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice, 1993, 52-55; J. Elkind, Non-appearance before the
International Court of Justice – Functional and Comparative Analysis,
1984, 124-168; B. Maus, Les Réserves dans les déclarations d’acceptation de
la juridiction obligatoire de la Cour Internationale de Justice, 1959, 149163, and the references cited in J. Crawford, “The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court”, BYIL 50
(1979), 63 et seq., footnote 3. Note also that the Connally Amendment was
severely criticized by the American Bar Association, American Bar Association Journal 32 (1946), 873 et seq., which subsequently urged the adoption
of a new declaration; see American Bar Association Journal 33 (1947), 249 et
seq. (430, 512).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
89
case considered that a self-judging exception to a Declaration under Article 36 (2) of the ICJ Statute was
“invalid as lacking in an essential condition of validity of a legal instrument. This is so for the reason that it leaves to the party making
the Declaration the right to determine the extent and the very existence of its obligation. The effect of the French reservation relating
to domestic jurisdiction is that the French Government has, in this
respect, undertaken an obligation to the extent to which it, and it
alone, considers that it has done so. This means that it has undertaken no obligation. An instrument in which a party is entitled to
determine the existence of its obligation is not a valid and enforceable legal instrument of which a court of law can take cognizance. It
is not a legal instrument. It is a declaration of a political principle
and purpose.”69
As unilateral reservations to jurisdiction, Optional Declarations are,
however, different in nature to self-judging exceptions to treaty obligations. For this reason, as well as reasons of scope, they will not be considered any further in this article, although some of the analysis below
is arguably equally relevant to such clauses, in particular as regards
questions relating to the scope of review of such clauses in international
dispute settlement. Indeed, provided that one considers such clauses as
in principle valid, the same framework of analysis should apply to selfjudging exceptions pertaining to jurisdiction as to clauses concerning
restrictions of substantive treaty provisions.
Similar clauses also exist with respect to the jurisdiction of other international dispute settlement fora, although such clauses are generally
found in treaties rather than unilateral instruments. Thus, numerous
treaties concerning the arbitration of inter-state disputes concluded up
until the early twentieth century contained clauses exempting disputes
about vital interests from arbitral jurisdiction.70 In more recent time, a
69
70
Certain Norwegian Loans (France v. Norway), Separate Opinion of Judge
Sir Hersch Lauterpacht, ICJ Reports 1957, 9 et seq. (48). See also D. Greig,
“Nicaragua and the United States, Confrontation over the Jurisdiction of
the International Court”, BYIL 62 (1991), 119 et seq. (181-213).
See M. Hahn, “Vital Interests and the Law of the GATT: An Analysis of
GATT’s Security Exception”, Mich. J. Int’l L. 12 (1991), 558 et seq. (563)
(observing that “[t]he ‘well known reservation in the 1903 Anglo-French
treaty concerning vital interests, independence, honor and third-party interest’ became a model for more than a hundred treaty clauses which excluded from arbitration sensitive issues and, as a practical effect, left it to
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similar reservation was included, for example, in the 2006 United
States-Peru Free Trade Agreement, which provides that the agreement
should not be construed so as “to preclude a Party from applying
measures that it considers necessary for the fulfillment of its obligations
with respect to the maintenance or restoration of international peace or
security, or the protection of its own essential security interests,”71 further clarifying that “if a Party invokes [this clause] in an arbitral proceeding … the tribunal or panel hearing the matter shall find that the
exception applies.”72 This approach appears to provide virtually complete discretion to a State Party in invoking the security exception and
also deprives an arbitral tribunal of the jurisdiction it would otherwise
enjoy for disputes arising under the treaty. Unlike with self-judging ex-
71
72
the state to determine unilaterally if a particular dispute was fit to be submitted to final and binding arbitration” – internal citations omitted); see
also K. Partsch, “Vital Interests”, EPIL 10 (1986), 526 et seq. (discussing
the development of vital interests clauses in arbitration treaties and related
reservations to the jurisdiction of the PCIJ and ICJ). See further Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Dissenting Opinion of Judge Oda, ICJ Reports 1986,
212, 224, para. 25 (discussing 29 bilateral treaties concluded from 1907 to
the 1920s containing such reservations).
See article 22 (2)(b) of the Peru-United States Free Trade Agreement,
<www.ustr.gov/Trade_Agreements/Bilateral/Peru_FTA/Final_Texts/Sectio
n_Index.html>, signed 12 April 2006 including such language, the Agreement follows article 18 (2) of the 2004 U.S. Model Bilateral Investment
Treaty, reprinted in C. McLachlan/ L. Shore/ M. Weiniger, International
Investment Arbitration, 2007, 393-416.
See footnote 2 to article 22 (2)(b) of the Peru-United States Free Trade
Agreement, see note 71. Similarly, article 6.12 (4) of the Comprehensive
Economic Cooperation Agreement between the Republic of India and the
Republic of Singapore provides that the invocation of the treaty’s security
exception in an investment-related dispute “shall be interpreted in accordance with the understanding of the Parties on non-justiciability of security exceptions as set out in their exchange of letters, which shall form an
integral part of this Agreement.” The accompanying exchange of letters
contemplates that “any decision of the disputing Party taken on security
considerations shall be non-justiciable in that it shall not be open to any
arbitral tribunal to review the merits of any such decision, even where the
arbitral proceedings concern an assessment of any claim for damages
and/or compensation, or an adjudication of any other issues referred to the
tribunal.” See A. Newcombe/ L. Paradell, Law and Practice of Investment
Treaties – Standards of Treatment, 2009, 495. Article 6.12 is fully reproduced ibid., 490-491, footnote 38.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
91
ceptions in unilateral Declarations under Article 36 (2) of the ICJ Statute, the validity of such agreed exceptions to the jurisdiction of arbitral
tribunals should not be questionable as the Contracting State Parties
have agreed to deprive the tribunal of jurisdiction in the circumstances
listed and did not introduce such an exception unilaterally.
d. Clauses Concerning Reservations to International Treaties
Unlike self-judging clauses concerning restrictions of international obligations, or clauses allowing for derogations from an entire treaty regime, self-judging clauses pertaining to reservations to international
treaties aim at avoiding ex ante a state from becoming bound by an international obligation. One example of a partly self-judging reservation
is the reservation that the United States attached to its ratification of the
Convention on the Prevention and Punishment of the Crime of Genocide73 in which it declared
“[t]hat nothing in the Convention requires or authorizes legislation
or other action by the United States of America prohibited by the
Constitution of the United States as interpreted by the United
States.”74 (emphasis added)
This reservation is self-judging in that it refers to the determination
of the scope of the United States Constitution by the United States.
Even though it arose out of concerns over the Convention’s internal
implementation in view of the federal structure of the United States, it
has to be regarded as a fully self-judging clause as constitutional provisions are often vague and open to a wide range of interpretations. Accordingly, Italy protested against the United States reservation to the
Genocide Convention arguing that it created uncertainty about the
scope of the obligations assumed by the United States.75
The validity of such self-judging reservations is indeed questionable
as they attempt to make the creation of an international obligation dependent upon the unilateral determination of a state, without however –
and this is the difference to treaty provisions discussed above – having
73
74
75
UNTS Vol. 78 No. 277, signed 9 December 1948 (entered into force 12
January 1951).
See ILM 28 (1988), 754 et seq. (774). See also ibid., 770 et seq. (776) (concerning the discussion in the U.S. Senate regarding the framing of this reservation).
Cf. Multilateral Treaties Deposited with the Secretary-General (status as of
31 December 1993), Doc. ST/LEG/SER.E/12, 95.
Max Planck UNYB 13 (2009)
92
allowed other states to explicitly agree to such self-judging exceptions.
Instead, self-judging reservations have the potential to eviscerate the
object and purpose of the treaty obligations and to deny their quality as
binding law.76 In view of the specific problems relating to their validity77 and given their rarity, this category of self-judging clauses will also
not be dealt with any further in this article. Yet, provided that one considers such clauses to be valid, a similar framework of analysis as the
one proposed in Part III. could apply.
5. Summary
In summary, self-judging clauses are provisions in international legal instruments by means of which states retain the right to escape or derogate from an international legal obligation based on unilateral considerations and based on their subjective appreciation of whether the circumstances required for the invocation of the clause exist. Such clauses
are generally found in, but not limited to, treaties where issues of national security or other essential public policy interests arise. They also
appear in unilateral Declarations, including reservations to international
treaties and Optional Declarations accepting the jurisdiction of the ICJ.
The self-judging nature of a clause is, in the vast majority of cases, apparent from the express words of the provision, i.e., words such as “if
the state considers,” “in the state’s opinion” or “if the state determines.”
Implicitly self-judging clauses, by contrast, are rare.
In general, self-judging clauses presuppose that the states concerned
intended to retain discretion in the invocation and operation of such
self-judging clauses. How such discretion has been dealt with, and
should properly be dealt with, in international dispute settlement will
76
77
See, for example, General Comment No. 24 on issues relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to Declarations under article 41 of the
Covenant, Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994, Human
Rights Law Journal 15 (1994), 464 et seq. See also T. Giegerich, “Vorbehalte
zu Menschenrechtsabkommen: Zulässigkeit, Gültigkeit und Prüfungskompetenzen von Vertragsgremien”, ZaöRV 55 (1995), 713 et seq.
The validity of such self-judging reservations will have to be determined
against the background of arts 19-23 of the Vienna Convention on the Law
of Treaties, see note 13. See generally on the validity of reservations Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide, ICJ Reports 1951, 15 et seq.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
93
be discussed in the following Part. It will focus in particular on the
question of how international Courts and Tribunals have balanced the
need to respect the discretion of a state relying on a self-judging exception, while also preventing an abuse of such provisions once a dispute
has arisen.
III. Avoiding Abuse: Self-Judging Clauses in International Dispute Settlement
As self-judging clauses grant discretion to states to determine unilaterally certain elements that allow them to exit from or even avoid the
coming into existence of an international obligation, there is obvious
potential for the misuse of such clauses and a consequent undermining
of international cooperation. State Parties to international treaties that
contain self-judging clauses are aware of this potential for abuse and, in
many cases, provide for varying mechanisms that either restrict the
scope of the clauses themselves or aim at preventing their abuse. Indeed,
many treaty regimes that contain self-judging clauses, also contain certain procedural and institutional safeguards in order to guard against
the risk of states availing themselves of such clauses in a way that is arbitrary, defeats the object and purpose of the treaty regime and, in more
general terms, is adverse to the efforts at international cooperation established by the respective treaty.
This Part will therefore discuss specific mechanisms that states have
put in place in order to avoid the misuse of self-judging clauses, such as
specific institutional frameworks that ensure that a state stays within
the boundaries of the discretion granted under self-judging clauses or
procedural safeguards, such as the duty to give reasons for invoking a
self-judging clause. Its main focus, however, will be on how international dispute settlement bodies deal with the invocation of self-judging
clauses in international treaties and thus perform the function, on the
one hand, of safeguarding a state’s right to exercise discretion under a
self-judging clause and, on the other hand, of preventing abuse of any
self-judging discretion. For this purpose, this Part will examine the jurisprudence of the GATT/WTO dispute settlement mechanism, of ICSID Tribunals, and of the ICJ, in order to determine to what extent
such clauses affect the jurisdiction of international dispute settlement
bodies or modify the standard of review of the state’s conduct in question.
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1. Non-Judicial Mechanisms to Hold States Accountable for
Violations of Self-Judging Clauses
One of the most common mechanisms used to avoid the abuse of selfjudging treaty provisions are duties to notify Contracting Parties of the
invocation of such a clause and duties to give reasons. Duties to give
reasons constitute a particularly important safeguard. For instance,
many mutual assistance treaties provide that a state that refuses assistance must give reasons for such a refusal.78 The function of this requirement is not only to inform other Contracting Parties of a refusal
to cooperate. It also enables the requesting state to ascertain whether
the requested state’s refusal remains within whatever limits there may
be to the self-judging determination in question. The duty to provide
reasons, thus, has been recognized by the ICJ in Djibouti v. France as
an important factor in assessing whether a state’s exercise of discretion
has stayed within the limits of the self-judging clause in question.79
Other treaty regimes embed the duty to give reasons in a more sophisticated procedural framework. The self-judging exception to a
state’s obligation to produce documents to the International Criminal
Court (ICC) in case of national security concerns is a good example.
Under article 72 of the ICC Statute document production requests can
be refused
“(1) … in any case where the disclosure of the information or documents of a state would, in the opinion of that state, prejudice
its national security interests.
(2) … when a person who has been requested to give information
or evidence has refused to do so or has referred the matter to
the state on the ground that disclosure would prejudice the national security interests of a state and the state concerned con78
79
See, for example, article 17 of the Mutual Assistance Convention, see note
17.
See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), see note 9, para. 149-156, and concerning the remedies for a violation, para. 203-204. At para. 152, the Court, in finding that France failed
to comply with its duty to give reasons, noted that the obligation in article
17 of the Mutual Assistance Convention “allows the requested state to substantiate its good faith in refusing the request. It may also enable the requesting state to see if its letter rogatory could be modified so as to avoid
the obstacles to implementation enumerated in Article 2.” See also ibid.,
Declaration of Judge Keith, para. 10.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
95
firms that it is of the opinion that disclosure would prejudice
its national security interests.” (emphases added)
While article 72 of the ICC Statute constitutes a self-judging exception, its application is subject to certain restrictions in order to encourage cooperation in providing the information required for the effective
and efficient prosecution of international crimes. Thus, article 72 (5) of
the ICC Statute provides ways to reconcile the national security concerns the requested state believes are at stake and the interest of the
ICC in being able to obtain necessary information. Accordingly, after
an initial refusal by the state, the requested state and the ICC will “seek
to resolve the matter by cooperative means.” If this attempt remains unsuccessful, the requested state is required under article 72 (6) of the ICC
Statute to give “specific reasons” for withholding information.
Apart from the procedure under article 72 of the ICC Statute there
are further mechanisms the ICC can use, such as a referral of the matter
to the Assembly of State Parties or the UN Security Council for resolution under arts 72 (7)(ii) and 87 (7) of the ICC Statute.80 Thus, the institutional infrastructure, as well as the procedure established pursuant to
article 72 of the ICC Statute, show that the discretion granted under
self-judging clauses is not wholly uncontrollable and unreviewable.
Rather, institutional safeguards are often put into place to limit the invocation of self-judging clauses.
80
See Rose-Ackerman/ Billa, see note 4, 476-478.
Article 72 (7)(ii) ICC Statute provides:
“If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested state is
not acting in accordance with its obligations under this Statute, the Court
may refer the matter in accordance with article 87, paragraph 7, specifying
the reasons for its conclusion.”
Article 93 (4) ICC Statute reiterates:
“In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of
any documents or disclosure of evidence which relates to its national security.”
Article 87 (7) ICC Statute provides:
“Where a State Party fails to comply with a request to cooperate by the
Court contrary to the provisions of this Statute, thereby preventing the
Court from exercising its functions and powers under this Statute, the
Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to
the Court, to the Security Council.”
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Similarly, the dynamics surrounding North Korea’s announced
withdrawal from the Non-Proliferation Treaty in 1993 illustrate how
the exercise of discretion granted under self-judging clauses can be
channeled and restricted by the institutional context in which states cooperate, namely the inclusion of self-judging clauses in a multilateral
regime that provides for the supervision by an international organization or facilitates inter-governmental negotiations.81
2. Self-Judging Clauses and International Dispute Settlement
Court monitoring can also function as a mechanism to reconcile state
sovereignty, and the need to protect a state’s discretion under a selfjudging treaty exception, with the need to hold states accountable for
potential abuses of this discretion. The question thus arises as to the
role of international Courts and Tribunals when faced with the contested invocation of a self-judging clause in order to deny the existence
of a breach of an international obligation. The question arising in this
context is primarily whether self-judging clauses oust the jurisdiction of
an international Court or Tribunal, and thus prevent the dispute settlement body from looking into whether a state is entitled to invoke a selfjudging exception, or whether such clauses merely limit the standard of
review that the dispute settlement body may apply. This question is of
central importance because states that invoke a self-judging exception
to an international treaty obligation regularly argue that their decision
is not reviewable by the international Court or Tribunal seized by the
other Contracting Party, while the other party to the dispute regularly
argues that the Court or Tribunal retains at least some power to review.82
Although international jurisprudence on the effect and function of
self-judging clauses is not vast, such clauses have occasionally occupied
international Courts and Tribunals and have generated some state practice in the context of independent third-party dispute settlement. This
81
82
See above Part II. 4. b., in particular the references cited in note 63.
See, for example, Djibouti v. France (Oral Proceedings of France – Translation) 25 January 2008, para. 12, available via <http://www.icj-cij.org.> See
also above note 24 on the position of Argentina in various ICSID arbitrations arguing that a treaty provision, which it claimed to be a self-judging
non-precluded-measures-clause, ousted the jurisdiction of the arbitral tribunal seized of the matter.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
97
section, therefore, analyzes the jurisprudence of the GATT/WTO dispute settlement mechanism, of ICSID Tribunals and of the ICJ and reviews state practice and academic commentary on the means of resolving conflicts about the invocation of self-judging clauses in international dispute settlement. This analysis suggests that self-judging treaty
provisions, unless they are clearly framed to this effect,83 do not oust
the jurisdiction of international Courts and Tribunals, but merely affect
the standard of review that may be applied. The applicable standard is
generally recognized to be whether the state invoking a self-judging
clause did so in good faith.
a. Self-Judging Clauses in the GATT/WTO-System
Unlike with other treaty regimes, the consideration given to selfjudging clauses under the GATT and the WTO is quite extensive, with
article XXI of the GATT having both generated dispute settlement
practice and received considerable academic attention.84 It is replicated
in article XIV bis of the General Agreement on Trade in Services and article 73 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights.
Article XXI of the GATT relevantly provides:
“Nothing in this Agreement shall be construed:
(a)
to require any contracting party to furnish any information the
disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which
it considers necessary for the protection of its essential security
interests:
83
84
Such a clear provision would be, for example, article 22 (2)(b) of the PeruUnited States Free Trade Agreement. See above notes 71 and 72 and accompanying text.
See e.g. Schloemann/ Ohlhoff, see note 6; M. Reiterer, “Article XXI GATT
– Does the National Security Exception Permit ‘Anything under the Sun’”,
Austrian Review of International and European Law 2 (1997), 191 et seq.;
P. Lindsay, “The Ambiguity of GATT Article XXI: Subtle Success or
Rampant Failure?”, Duke Law Journal 52 (2003), 1277 et seq.; D. Akande/
S. Williams, “International Adjudication on National Security Issues: What
Role for the WTO?”, Va. J. Int’l L. 43 (2003), 365 et seq.; cf. also A. Emmerson, “Conceptualizing Security Exceptions: Legal Doctrine or Political
Excuse?”, Journal of International Economic Law 11 (2008), 135 et seq.
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98
(i)
relating to fissionable materials or the materials from
which they are derived;
(ii) relating to the traffic in arms, ammunition and implements
of war and to such traffic in other goods and materials as
is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international
relations.”85 (emphases added)
aa. Article XXI GATT: Barring Jurisdiction or Affecting the Standard of
Review?
While not directly in question in the case, the ICJ made some obiter
dicta statements concerning the effect of article XXI GATT in the Military and Paramilitary Activities case.86 In that case, the ICJ was called
upon to interpret the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua, article XXI of which
provided that it did not preclude the application of measures “necessary
to protect [a state’s] essential security interests.”87 The ICJ held that it
had jurisdiction to determine whether measures taken by one of the
Parties fell within that exception. The Court’s reasoning, however, appears to indicate that it would have declined jurisdiction, had article
XXI GATT been the provision before it:
“That the Court has jurisdiction to determine whether measures
taken by one of the Parties fall within such an exception, is also clear
a contrario from the fact that the text of Article XXI of the Treaty
does not employ the wording which was already to be found in Article XXI of the General Agreement on Tariffs and Trade. This provision of GATT, contemplating exceptions to the normal implemen-
85
86
87
UNTS Vol. 1867 No. 187. Subsection (c) of article XXI provides that nothing in the GATT shall be construed “to prevent any contracting party from
taking any action in pursuance of its obligations under the United Nations
Charter for the maintenance of international peace and security.” The purpose of this clause it to ensure the primacy of UN measures under Chapter
VII. The clause is not self-judging and is therefore not discussed further
here.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), see note 22.
Treaty of Friendship, Commerce and Navigation (with Protocol), see note
21.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
99
tation of the General Agreement, stipulates that the Agreement is
not to be construed to prevent any contracting party from taking
any action which it ‘considers necessary for the protection of its essential security interests’, in such fields as nuclear fission, arms, etc.
The 1956 Treaty to the contrary speaks simply of ‘necessary’ measures, not of those considered by a party to be such.”88
This position, however, does not find unequivocal support when
dispute settlement practice under the GATT/WTO framework is considered. Although the WTO Dispute Settlement Body (DSB) has not
yet had occasion to interpret article XXI GATT,89 there is a significant
amount of state practice arising from disputes under GATT 1947 relating to article XXI. On the one hand, this practice suggests that a significant number of members – in particular the United States, Canada, Japan, New Zealand, Australia, and the European Community – interpreted the self-judging nature of article XXI GATT in a similar manner
to that hinted at by the ICJ in Military and Paramilitary Activities, that
is as either a bar to the jurisdiction of any third-party dispute resolution
mechanism, or as rendering reliance on article XXI GATT entirely nonjusticiable.90 On the other hand, this position was not universally held
as evidenced by the Council discussions on the effect of article XXI
(b)(iii) GATT every time a dispute arose involving measures for the
88
89
90
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), see note 22, 116, para. 222; see also ibid., 141,
para. 282. Similarly, see Oil Platforms (Islamic Republic of Iran v. United
States of America), see note 41, 183, para. 43.
But cf. notes 109 and 110 and associated text below.
The difference between an argument that a self-judging clause is a bar to jurisdiction and an argument that a self-judging clause is non-justiciable is
not discussed further in this article, because the authors take the view that
no treaty subject matter is categorically immune from judicial review in international law under concepts analogous to the political questions doctrine or other non-justiciability doctrines. Justiciability “is too vague and
inarticulate a concept … the only legitimate variables should be in delineating the grounds of review which might be appropriate for any particular
circumstance, and in calibrating the intensity of scrutiny,” see M. Aronson/
B. Dyer/ M. Groves, Judicial Review of Administrative Action, 3rd edition
2004, 145; see also C. Finn, “The Justiciability of Administrative Decisions:
A Redundant Concept?”, Federal Law Review 30 (2002), 239 et seq.
100
Max Planck UNYB 13 (2009)
protection of a state’s essential security interests in times of war or
other emergency.91
In 1949, a Czechoslovak complaint against U.S. national security
export controls was discussed at the third session of the GATT Contracting Parties. The British delegate stated that “every country must be
the judge in the last resort on questions relating to its own security,” although he advocated self-restraint in order to avoid undermining the
GATT.92 However, Czechoslovakia argued that article XXI GATT was
subject to interpretation within the usual dispute settlement procedure
and was not a carte blanche for a Contracting Party to escape its obligations.93 Ultimately, the Czechoslovak complaint was rejected without,
however, formally resolving this difference of opinion. Similarly, in
1961, on the accession of Portugal to the GATT, Ghana justified its
continued boycott of Portuguese goods by reference to the constant
threat to the peace of the African continent posed by Portugal’s presence in Angola. While stating that “under [Article XXI GATT] each
contracting party was the sole judge of what was necessary in its essential security interests,” Ghana nonetheless sought to bring its action
within the scope of article XXI GATT.94
Again during the 1982 Falkland crisis, the European Community
(EC), the EC Member States, Australia and Canada justified trade restrictions against Argentina on the basis of article XXI GATT. During
the Council discussion of these restrictions the EC representative stated
that “[t]he exercise of these [inherent] rights [of which Article XXI
GATT was a reflection] constituted a general exception which required
neither notification, justification or approval … this procedure showed
that every contracting party was – in the last resort – the judge of its exercise of these rights.”95 Similar statements were made by Canada, Australia and the United States, with the latter emphasizing that the GATT
Contracting Parties had no power to question the judgment of a party
as to what is necessary to protect its security interests.96 These states
91
92
93
94
95
96
On the practice of the GATT dispute settlement practice regarding article
XXI discussed in the following paragraphs see GATT, Analytical Index:
Guide to GATT Law and Practice, 6th edition 1995, Vol. I, 599-610.
GATT/CP.3/SR.22 (8 June 1949), page 7.
GATT/CP.3/SR.22 (8 June 1949), page 6.
SR.19/12, page 196.
See GATT, Analytical Index, see note 91, 600-601.
Ibid. This approach to self-judging clauses conforms with the position the
United States adopted with respect to the Connally Amendment, which
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
101
considered that the GATT was not the appropriate forum for the discussion of trade measures taken for the purpose of protecting essential
security interests. However, a number of countries also raised objections to the EC’s refusal to substantiate its claim that the trade restrictions against Argentina were covered by article XXI GATT. For example, the Brazilian delegate, while agreeing that each state retained the
prerogative to define its essential security interests, considered that the
EC should still be required to demonstrate that the requirements of article XXI GATT were fulfilled.97
The dispute about the trade restrictions against Argentina prompted
the GATT Contracting Parties to adopt, on 30 November 1982, a “Decision concerning Article XXI of the General Agreement.” It provided,
inter alia, that the Contracting Parties “should be informed to the fullest extent possible of trade measures taken under Article XXI” and also
affirmed that “[w]hen action is taken under Article XXI, all contracting
parties affected by such action retain their full rights under the General
Agreement.”98 While remaining somewhat opaque in this respect, the
resolution suggests that the dispute resolution procedure provided for
in article XXIII GATT would apply even if article XXI GATT is invoked.99
97
98
99
conditioned the country’s consent to the jurisdiction of the ICJ under its
Optional Declaration. See discussion above under Part II. 4. c. Cf. A. Sofaer, “The United States and The World Court”, ASIL 80 (1986), 204 et seq.
(207) (stating, when discussing the official position of the United States,
that “[e]ven though we had pledged never to invoke our Connally reservation in bad faith to cover a manifestly international dispute, we were compelled to acknowledge that its invocation in any case would be binding as a
matter of law.”); see also Greig, see note 69, pointing out, however, at 184185, that the United States deviated from the position that self-judging
clauses excluded any review by third-party dispute settlement bodies on
one occasion in the Aerial Incident case, when arguing that the Connally
Amendment “does not permit the United States or any other State to make
an arbitrary determination, in bad faith” and thus permitted judicial control to the extent such limits were surpassed (the United States later sought
to withdraw from this position). Unlike the United States, other states,
such as Norway, have consistently taken the position that self-judging aspects of Optional Declarations were subject to good faith review; see
Greig, see note 69, 184.
See Hahn, see note 70, 573-574.
L/5426, 29S/23, reprinted in GATT, Analytical Index, see note 91, 605-606.
It also reinforces the importance of providing reasons as a mechanism of
control; see Part III. 1.
102
Max Planck UNYB 13 (2009)
In 1985, a Panel was constituted by the GATT Council to consider
Nicaragua’s challenge to the GATT-consistency of the trade embargo
imposed against it by the United States. The United States argued that
the measures were justified under article XXI (b)(iii) GATT because
“the policies and actions of the Government of Nicaragua constitute an
unusual and extraordinary threat to the national security and foreign
policy of the United States.”100 The United States further argued that
the terms of article XXI GATT precluded a Panel from examining the
validity of the United States’ invocation of article XXI GATT.101
Nicaragua contested both aspects of this position arguing that article
XXI GATT could not be applied in an arbitrary fashion, that there had
to be some correspondence between the measures adopted and the
situation giving rise to such adoption and that the Contracting Parties
were competent to judge whether a situation of “war or other emergency in international relations” existed.102 Delegates from other countries also considered that it was not plausible that a small country with
limited resources could constitute an extraordinary threat to the national security of the United States.103 Furthermore, the representative
of India considered that a Contracting Party having recourse to article
XXI (b)(iii) GATT should have to be able to demonstrate a genuine
nexus between its security interest and the trade action taken.104
In light of the United States’ objections, the Panel that was to decide
the dispute at issue was established with a limited mandate, which prevented it from judging or examining the validity of, or motivation for,
the invocation of article XXI GATT by the United States.105 Nonetheless, the Panel noted:
“If it were accepted that the interpretation of Article XXI was reserved entirely to the Contracting Party invoking it, how could the
Contracting Parties ensure that this general exception to all obligations under the General Agreement is not invoked excessively or for
purposes other than those set out in this provision? If the Contract100
101
102
103
104
105
United States – Trade Measures Affecting Nicaragua, L/6053, GATT Panel
Report, 13 October 1986, para. 3.1.
United States – Trade Measures Affecting Nicaragua, L/5803, Communications from the United States, 29 May 1985.
GATT, Analytical Index, see note 91, 603.
GATT Council, Minutes of Meeting Held May 29, 1985, GATT Doc.
C/M/188 (28 June 1985), 7.
Ibid., 11.
See United States – Trade Measures Affecting Nicaragua, see note 100.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
103
ing Parties give a panel the task of examining a case involving an Article XXI invocation without authorising it to examine the justification of that provision, do they limit the adversely affected Contracting Party’s right to have its complaint investigated in accordance
with Article XXIII:2?”106
This suggests that the Panel was of the view, that, even though its
mandate was limited by the decision of the Contracting Parties establishing the Panel, such a limitation was not required by the self-judging
aspects of article XXI GATT themselves, but merely resulted from the
political processes at play in the Contracting Parties’ reaching the necessary consensus to establish a Panel.
The final pre-WTO invocation of article XXI GATT occurred in
1991. The EC invoked article XXI GATT to restrict trade with the
civil-war-torn states of the then Socialist Federal Republic of Yugoslavia in order to favor “those parties which contribute to progress toward
peace.”107 A GATT Panel was established, at Yugoslavia’s request, to
consider the dispute. While the Panel proceedings were ultimately suspended in June 1993 due to uncertainty about the member status of the
new Federal Republic of Yugoslavia, it is interesting to note that no objection was made by the EC to the establishment of the Panel on the
grounds that it had invoked article XXI GATT.108
Since the establishment of the WTO, requests have been made for
the establishment of two Panels, which, if constituted, would have had
to decide how article XXI GATT should be interpreted. However, both
disputes were ultimately resolved outside the WTO dispute settlement
system – through negotiations in the case of a dispute between the
European Union and the United States over the trade restrictive aspects
106
107
108
Ibid., para. 5.17. The Panel also noted at para. 5.18 that the “Decision concerning Article XXI of the General Agreement” of 30 November 1982 referred to the possibility of a formal interpretation of article XXI of the
GATT and recommended that the Contracting Parties take into account
the concerns raised by the Panel in any further consideration of the matter.
See GATT, Analytical Index, see note 91, 604-605. Economic sanctions or
withdrawal of preferential benefits from Yugoslavia were also taken by
Australia, Austria, Canada, Finland, Japan, New Zealand, Norway, Sweden, Switzerland, and the United States.
For a more detailed discussion of the dispute see Schloemann/ Ohlhoff, see
note 6, 432-434.
104
Max Planck UNYB 13 (2009)
of the Helms-Burton Act,109 and by an agreement to resolve the underlying maritime delimitation disputes before the ICJ in the case of a tariff
imposed by Nicaragua on all goods from Honduras and Colombia in
protest against a maritime delimitation treaty between the two countries, which Nicaragua considered to encroach upon its territorial
rights.110 It is interesting, however, to note that in the context of the
dispute over the Helms-Burton Act, statements made by U.S. officials
suggest that the United States continues to maintain the position that
article XXI GATT is a jurisdictional defense or, in other words, that the
invocation of the national security exception is entirely within the discretion of the state invoking it and that a WTO Panel does not have
competence to decide on the validity of its invocation.111
Thus, while a number of states have expressed, and continue to express, the view that the self-judging aspect of article XXI GATT has the
effect that the DSB is prevented from reviewing the invocation of article
XXI GATT, other states contest this view arguing that there must be
109
110
111
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996
§302(a), Pub.L No., 104-114, 110 Stat. 785 reprinted in ILM 35 (1996), 357
et seq. This Act was enacted following the downing of two U.S. light
planes off the Cuban coast by Cuban military aircrafts, which were apparently acting under a standing order of the Cuban government. Amongst
other things, it creates penalties for foreign companies “trafficking” in
property confiscated in Cuba from American citizens. The measures have
been described as having a similar effect to a secondary boycott, see J.
Walker, “The Legality of Secondary Boycotts Contained in the HelmsBurton Act under International Law”, DePaul Digest of International Law
3 (1997), 1 et seq. (2-4). On the dispute between the United States and the
EU regarding the implications of the Helms Burton Act under the GATT
see R. Browne, “Revisiting ‘National Security’ in an Interdependent World:
The GATT Article XXI Defense after Helms-Burton”, Georgetown Law
Journal 86 (1997), 405 et seq.; C. Piczak, “The Helms Burton Act: U.S.
Foreign Policy Toward Cuba, the National Security Exception to the
GATT and the Political Question Doctrine”, University of Pittsburg Law
Review 61 (1999), 287 et seq.
See Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ, Judgment of 13 December 2007, and Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)
ICJ, Judgment of 8 October 2007, both available via <http://www.icjcij.org>. See also Lindsay, see note 84, 1304-1310.
Schloemann/ Ohlhoff, see note 6, 430; see also W. Meng, “Extraterritoriale
Jurisdiktion in der US-amerikanischen Sanktionsgesetzgebung”, Europäische Zeitschrift für Wirtschaftsrecht 8 (1997), 423 et seq. (426).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
105
some external limits placed on the invocation of that provision. Further,
the 1982 “Decision concerning Article XXI of the General Agreement”
suggests that the normal dispute settlement provisions remain applicable to article XXI GATT.112 This latter position is also supported by the
travaux préparatoires to article XXI GATT, which show that, while it
was generally agreed that the national security exception needed to be
broad, it was also recognized that its application was to be subject to
the normal dispute settlement procedures.113
It should be noted, however, that the normal dispute settlement procedures at the time the GATT was negotiated were of a political rather
than of a judicial nature and based on consensus in the GATT Council.
It is only over the course of time that the Panel procedure developed
and evolved from a consensus-based procedure to the procedure of reversed consensus under the Dispute Settlement Understanding (DSU)
in GATT 1994.114 Nonetheless, when the DSU was agreed in 1994, no
specific exception was made to the henceforth comprehensive jurisdiction of the DSB in respect of article XXI GATT. The absence of such an
express exception to jurisdiction and the stated purpose of the DSU of
“strengthening the multilateral system” can be viewed as the Contracting Parties’ deliberate decision that article XXI GATT should be subject to the then newly strengthened dispute settlement system.115
The minimum conclusion to be drawn from the practice in dispute
settlement under the GATT is, thus, that state practice cannot be interpreted as conclusively establishing an agreement of the Contracting
Parties that the invocation of article XXI GATT is beyond any control
by the DSB. Further, state practice in the context of agreeing amendments to the GATT/WTO regime rather suggests, despite the view of
some Member States in the context of actual dispute settlement, that article XXI GATT, as a matter of law, does not constitute a bar to the jurisdiction of the DSB. Instead, the words “it considers” in that article
play a role in relation to the standard of review to be applied – a standard that must respect the discretion accorded by article XXI GATT to
each State Party to decide whether particular trade-restrictive measures
112
113
114
115
See above notes 98 and 99 and accompanying text.
See GATT, Analytical Index, Vol. II, page 705; Hahn, see note 70, 565-569.
The principle of reversed consensus is enshrined in arts 16 (4), 17 (14) of
the Understanding on Rules and Procedures Governing the Settlement of
Disputes.
Cf. M. Matsushita/ T. Schoenbaum/ P. Mavroidis, The World Trade Organization: Law, Practice and Policy, 2nd edition 2006, 594-598.
106
Max Planck UNYB 13 (2009)
are necessary for the protection of its essential security interests. This
position has also been given recent support in the arbitration decision
of Sempra v. Argentina. In that decision, the ICSID Tribunal stated:
“The Tribunal must also note that not even in the context of GATT
Article XXI is the issue considered to be settled in favor of a selfjudging interpretation, and the very fact that such article has not
been excluded from dispute settlement is indicative of its non-selfjudging nature.”116
bb. Article XXI GATT: The Appropriate Standard of Review
Likewise, academic commentators mostly agree that article XXI GATT
does not oust the jurisdiction of the DSB, but instead affects the standard of review.117 In theorizing about how the standard of review is affected, they generally agree that the words “it considers” in article XXI
(b) GATT relate at most to the phrase “necessary for the protection of
its essential security interests” and that the requirements listed in paragraphs (i) to (iii) are objective standards the satisfaction of which is fully
reviewable by the DSB.118 They also agree that reviewing whether a
measure “relates to fissionable materials” or “relates to traffic in arms”
in article XXI (b)(i) and (ii) GATT requires the application of more certain legal criteria than reviewing whether a measure is “taken in time of
war or other emergency in international relations” in article XXI (b)(iii)
GATT.119
116
117
118
119
See Sempra v. Argentine Republic, see note 24, para. 384. Note that when
referring to the self-judging nature of a clause in its decision, the Tribunal
in Sempra v. Argentine Republic was using that term as a synonym for a
clause that bars jurisdiction or is non-justiciable. This is different to the
manner in which the term self-judging is used in the remainder of this paper, which is a label for the type of clause under consideration.
See e.g. Hahn, see note 70, 584-588; Schloemann/ Ohlhoff, see note 6, 444446; Akande/ Williams, see note 84, 399-402; Reiterer, see note 84, 201-202;
differently R. Bhala, “National Security and International Trade Law:
What the GATT Says, and What the United States Does”, University of
Pennsylvania Journal of International Economic Law 19 (1998), 263 et seq.
(268-279); Piczak, see note 109, 318-326.
See Hahn, see note 70, 584-588; Schloemann/ Ohlhoff, see note 6, 444-446;
Akande/ Williams, see note 84, 399-402; Reiterer, see note 84, 201-202;
Emmerson, see note 84, 145-146.
In light of this difference, Schloemann, Ohlhoff, Akande, Williams and Reiterer all suggested that when reviewing whether a measure “is taken in
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
107
Differences of opinion, however, arise as regards the manner in
which the DSB should review a state’s determination that withholding
information under article XXI (a) GATT or taking another measure
under article XXI (b) GATT is “necessary for the protection of its essential security interests.” While agreement exists that the invocation of
the self-judging elements in article XXI GATT is subject to “good faith
review” by the DSB, different suggestions are made about what that
standard of review entails for the practice of dispute settlement in the
international trade regime.
Thus, on one approach the principle of good faith is said to “require[s] parties who are in a special legal relationship to refrain from
dishonesty, unfairness and conduct that takes undue advantage of another.”120 This approach acknowledges that a good faith test is loose
and not easy to apply or administer, but emphasizes that it is nonetheless a routinely applied test that is closely related to the customary international law principle of abus de droit, which provides that the exercise of a right for the sole purpose of evading an obligation or of causing injury is unlawful.121 In order to live up to the principle of good
faith, a state must, in addition to establishing the objective prerequisites
in article XXI (b) GATT, such as the existence of an essential security
interest, demonstrate, consistently with the object and purpose of the
GATT, that any measure it has taken in reliance on article XXI GATT
does not in fact serve protectionist purposes. This is apposite because
the protection of “vital industries” is not the purview of article XXI,
but can be secured through other means under the GATT,122 and because protectionist measures go against the primary object and purpose
of the GATT.123 Apart from this restriction, however, all that a state
would need to demonstrate is a bona fide belief that either disclosure of
120
121
122
123
times of emergency in international relations,” the DSB should accord
states deference and a margin of appreciation. By contrast, Hahn argues the
DSB should review the existence of such circumstances objectively and
without deference because such terms have a clear meaning in general international law; see Schloemann/ Ohlhoff, see note 6, 446; Akande/ Williams, see note 84, 400-402; Reiterer, see note 84, 211; Hahn, see note 70,
593-594. See also the discussion about discretion, deference and subject
matter above under Part II. 3.
Hahn, see note 70, 599.
Hahn, see note 70, 599-600.
For example through waivers granted under article XXV, see Hahn, see
note 70, 597; see also Schloemann/ Ohlhoff, see note 6, 444.
Hahn, see note 70, 596-597.
108
Max Planck UNYB 13 (2009)
certain information would be contrary to its essential security interests
(article XXI (a) GATT), or that an essential security interest was threatened and the measure taken was necessary for its protection (article
XXI (b) GATT).124 This approach, therefore, focuses primarily on the
subjective perception of the state invoking article XXI GATT, and
stresses the connection with the GATT’s object and purpose to prevent
protectionism.
An alternative approach to testing good faith, that also relies on the
object and purpose of the GATT, but in this case focuses on the equal
treatment required by the most-favored-nation principle, is a consideration of whether more than one nation is posing a substantially similar
threat to the essential security interests of another nation, and if so
whether or not similar sanctions have been imposed against all such nations. If similar sanctions have not been imposed, so as to lead to discrimination between states posing a similar threat, this fact would be an
indicator of the existence of bad faith.125
While commentators generally agree that the definition of essential
security interests, “as a function of the state’s understanding of its sovereignty and the legal position it entails, [is] essentially subjective,”126
such a subjective understanding of what constitutes an essential security
interest does not mean that the validity of the invocation of article XXI
is entirely subjective. Thus, some commentators, while acknowledging
that the words “it considers” allocate a substantial discretion to the
state in its choice of means and in defining what constitutes an “essential security interest,” argue that this right is still subject to the objective
limits of reasonableness in the form of a proportionality test:
“‘Security interests’ that are ‘essential’ must be defined in good faith
by the state invoking them. Whatever their exact reach, it seems
clear that not just any noneconomic political or military motive can
satisfy the condition of essentiality. A requirement of a minimum
degree of proportionality between the threatened individual security
interest and the impact of the measure taken on the common interest
in the functioning of the multilateral system can be deduced from
both the term ‘essential’ and, more generally, the function of Article
124
125
126
Hahn, see note 70, 599-601.
W. Cann, “Creating Standards and Accountability for the Use of the WTO
Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilateralism”, Yale
J. Int’l L. 26 (2001), 413 et seq. (452).
Schloemann/ Ohlhoff, see note 6, 443.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
109
XXI in the WTO system as a remedy for serious hardships emanating from outside the WTO’s immediate regulatory realm. The test
for proportionality, here as in other areas of the law, is the reasonableness of the measure in the context. While a state is relatively free
to define its security interests, their classification in part as ‘essential’
must meet some higher standard in relation to other, ‘normal’ security interests. Again, there is no inherent reason why a panel should
not review that determination, sorting out cases of clear unreasonableness, without otherwise interfering with the state’s definitional
prerogative.”127
On this basis, they conclude that the DSB could also find that a
state’s measures that were allegedly necessary to protect that state’s essential security interests were disproportionate to the interest in upholding the multilateral trade regime. Thus, a measure would not conform to the good faith test where “a risk to defined interest does not exist, or a measure will have no effect on protecting the interests it is
meant to protect.”128
Other commentators, by contrast, consider that such a test fails to
respect the self-judging aspect of article XXI. They consider that an appropriate standard of review for good faith review is limited to establishing (1) whether a Member State genuinely considers that the measure it takes is related to the protection of its essential security interests,
and (2) whether it considers the taking of the measure to be proportionate to the protection of those interests in that it considers that there are
serious and compelling reasons for taking the measures.129 Such commentators argue that such an approach would still allow the DSB to detect and prevent capricious invocations of article XXI.130
127
128
129
130
Schloemann/ Ohlhoff, see note 6, 444-445 (noting, however, that in the case
of article XXI (a) little room is left for third party interpretative efforts beyond good faith in light of the broadness of the provision). See also Emmerson, see note 84, 145-146 (stating that “[w]hile a member may have
scope to determine what constitutes its own essential security interests –
perhaps including human rights – the adequacy of the measure cannot be
removed from judicial review. WTO Panels are competent to determine
whether the trade measure, imposed in reliance on the exception, legitimately addresses the determined security threat. Panels must analyse
whether the measures used by a member are in fact ‘necessary’ and arguably, when applied, are ‘proportionate’ to the determined threat.”).
Schloemann/ Ohlhoff, see note 6, 443.
Akande/ Williams, see note 84, 392.
Akande/ Williams, see note 84, 392.
Max Planck UNYB 13 (2009)
110
Thus, while academic commentators on article XXI GATT generally
agree that the appropriate standard of review for this self-judging clause
is for lack of good faith, there is considerable variation on how this
standard should be operationalized. The possibility of integrating some
of these different approaches into a general standard of review for
“good faith” is considered briefly in Part IV. below.
b. Self-Judging Clauses in Investment Treaty Arbitration
Another area where self-judging clauses play a certain role is in the area
of investment treaties. In fact, various multilateral and bilateral investment treaties and free trade agreements contain self-judging clauses that
are similar to article XXI GATT. Article 2102 (1) NAFTA, for example,
provides that:
“… nothing in this Agreement shall be construed:
(a)
to require any Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its
essential security interests;
(b) to prevent any Party from taking any actions that it considers
necessary for the protection of its essential security interests:
(i)
relating to the traffic in arms, ammunition and implements
of war and to such traffic and transactions in other goods,
materials, services and technology undertaken directly or
indirectly for the purpose of supplying a military or other
security establishment,
(ii) taken in time of war or other emergency in international
relations, or
(iii) relating to the implementation of national policies or international agreements respecting the non-proliferation of
nuclear weapons or other nuclear explosive devices ...” 131
(emphases added)
131
North American Free Trade Agreement (NAFTA), see note 54. For similar
provisions, see also the Australia – Thailand Free Trade Agreement, Australian Treaty Ser. 2005, No. 2, signed 5 July 2004 (entered into force 1
January 2005), which incorporates article XXI of the GATT. See further
arts 196-198 of the Treaty Establishing the European Communities and the
discussion of these clauses by Trybus, see note 31, 1347.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
111
According to the Statement of Administrative Action in the United
States’ NAFTA Implementation Act of 1993, this exception is “selfjudging” in nature, but must be used in good faith:
“Article 2102 governs the extent to which a government may take
action that would otherwise be inconsistent with the NAFTA in order to protect its essential security interests. … The national security
exception is self-judging in nature, although each government would
expect the provisions to be applied by the other in good faith.”132
Still other multilateral and bilateral investment treaties and free trade
agreements contain self-judging essential security interest exceptions
that are even broader in scope than article 2102 (1) NAFTA and do not
limit the subject matters to which they apply. For example, article 22 (2)
of the Australia-United States Free Trade Agreement provides:
“Nothing in this Agreement shall be construed to preclude a Party
from applying measures that it considers necessary for the fulfilment
of its obligations with respect to the maintenance or restoration of
international peace or security, or the protection of its own essential
security interests.”133
None of these self-judging exceptions have been the subject of international dispute settlement. However, in a number of investor-state
disputes under bilateral investment treaties, several ICSID Tribunals
have expressed, albeit by way of obiter dictum, views on the effect that
a self-judging exception similar to the one in the Australia-United
States Free Trade Agreement would have on the Tribunals’ jurisdiction
and standard of review. As article XI of the U.S.-Argentine BIT was not
132
133
Reprinted in H.R. DOC. 103-159, 666. Under NAFTA article 1138 (1), a
state’s decision to invoke the national security exception to prohibit or restrict the acquisition of an investment in its territory by an investor of another Party is expressly excluded from NAFTA dispute settlement. This,
however, is stated to be without prejudice to the applicability or nonapplicability of the dispute settlement provisions to other actions taken by
a Party pursuant to article 2102. Both the Statement of Administrative Action and article 1138 (1) are seemingly calculated to maintain ambiguity
about the competence of the NAFTA dispute settlement body with respect
to article 2102. See further Lindsay, see note 84, 1300-1301.
Australian Treaty Series 2005, No. 1, signed 18 May 2004 (entered into
force 1 January 2005). For similar provisions see also above notes 71 and 72
and accompanying text.
112
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found to be self-judging,134 the Tribunals considered that they were not
limited to assessing whether Argentina had acted in good faith in passing emergency measures to protect its financial, economic and social
stability, but that they were to apply “substantive review that must examine whether the state of necessity or emergency meets the conditions
laid down by customary international law and the treaty provisions and
whether it thus is or is not able to preclude wrongfulness.”135
Notwithstanding this conclusion, some of the Tribunals suggested,
in obiter dicta, that had they been faced with a self-judging nonprecluded-measures-clause, they would have had the power to review
the state’s decision for good faith as Argentina had argued. The Tribunal in LG&E, for example, considered that “[w]ere [it] to conclude that
the provision is self-judging, Argentina’s determination would be subject to a good faith review anyway.”136 Similarly, the Tribunal in Continental Casualty v. Argentina, considered hypothetically that “[i]f Article XI [of the U.S.-Argentine BIT] granted unfettered discretion to a
party to invoke it,” this discretion would be subject to “good faith,”
while preventing a Tribunal “from entering further into the merits.”137
The jurisprudence of ICSID Tribunals therefore also underscores
the view that self-judging clauses do not constitute a bar to the jurisdic-
134
135
136
137
For the text of article XI of the U.S.-Argentine BIT and the discussion on
whether this provision was self-judging see above notes 23-27 and accompanying text.
CMS v. Argentine Republic, see note 24, para. 374. Similarly LG&E v. Argentine Republic, see note 24, para. 212-213; Sempra v. Argentine Republic,
see note 24, para. 388; Enron v. Argentine Republic, see note 24, para. 339;
Continental Casualty v. Argentine Republic, see note 24, para. 187.
LG&E v. Argentine Republic, see note 24, para. 214.
Continental Casualty v. Argentine Republic, see note 24, para. 182. See also
the discussion in CMS v. Argentine Republic, see note 24, para. 366-374,
Sempra v. Argentine Republic, see note 24, para. 366-388, and Enron v. Argentine Republic, see note 24, para. 324-339, which all suggest sympathy
for the position that, under a self-judging clause, a Tribunal is not deprived
of jurisdiction, but can review the state’s measure for good faith. Thus, the
Tribunal in Enron v. Argentine Republic, see note 24, para. 339, concluded
“that Article XI is not self-judging and that judicial review in its respect is
not limited to an examination of whether its invocation, or the measures
adopted, were taken in good faith,” thus evoking the position expressed in
an Expert Opinion of Anne-Marie Slaughter and William Burke-White and
taken up by Argentina; see ibid., para. 324. Similarly, Sempra v. Argentine
Republic, see note 24, para. 388.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
113
tion of international dispute settlement bodies. The Tribunals also
agreed that the appropriate standard of review to apply would be good
faith. However, apart from one decision, no Tribunal has considered in
any detail how the standard of good faith review should be operationalized. The one Tribunal that did consider this issue, in LG&E, suggested
that good faith review would “not significantly differ from the substantive analysis [the Tribunal] presented”138 in the context of the non-selfjudging clause in article XI of the U.S.-Argentine BIT.
In sum, the arbitral Tribunals that have commented to date on the
effect of self-judging clauses in investor-state dispute settlement agree
that the clauses, unless clearly framed otherwise, do not oust a Tribunal’s jurisdiction but merely lower the standard of review to good faith,
instead of a full-bodied substantive review of whether the state’s measure in question meets the requirements of a treaty exception that is otherwise required under non-self-judging exceptions. The good faith standard, in their view also has the function of avoiding the misuse of invoking self-judging clauses as “this would conflict in principle with the
agreement of the parties to have disputes under [a treaty] settled compulsory by arbitration.”139
c. Self-Judging Clauses before the International Court of Justice
Although a number of international judicial or arbitral decisions had
touched on questions relating to the interpretation of self-judging
treaty clauses, none of those cases had actually involved the application
of a self-judging clause until the recent ICJ decision in Djibouti v.
France.140 Prior to this decision, the Court had only considered the issue in obiter dictum in Military and Paramilitary Activities.141 In that
decision, the ICJ seemed to suggest that a self-judging treaty provision
would have pre-empted the Court’s jurisdiction.142
However, in Djibouti v. France the Court did not follow this path.
The case relevantly involved a complaint by Djibouti that France had
breached its obligations under article 3 of the Mutual Assistance Con138
139
140
141
142
LG&E v. Argentine Republic, see note 24, para. 214.
Continental Casualty v. Argentine Republic, see note 24, para. 187.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), see note 9.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), see note 22.
See above notes 86-88 and accompanying text.
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Max Planck UNYB 13 (2009)
vention by failing to transmit the record relating to the investigation
into the suspected murder of a French judge on Djiboutian territory,
which was requested by Djibouti in a letter rogatory transmitted to
France under the Convention.143 France denied any breach, arguing
that it could validly rely on the exception provided for in article 2 (c) of
the Mutual Assistance Convention. This exception allows for assistance
to be refused “if the requested state considers that the execution of the
request is likely to prejudice its sovereignty, its security, its ordre public
or other of its essential interests.”144
143
144
A brief background to this matter is as follows: the French Judge Bernard
Borrel died under suspicious circumstances in Djibouti in 1995 while seconded as a Technical Adviser to the Djiboutian Ministry of Justice. The
Djiboutian judicial investigation upheld a theory of suicide. An investigation into the Judge’s death was then opened in France and is ongoing. In
2004, subsequent to the French investigation, implicating a number of Djiboutian government officials, including Djibouti’s head of state, in the
murder of Judge Borrel, the government of Djibouti decided to reopen the
judicial investigation and sought transmission of the French file by way of
a letter rogatory. For a more detailed discussion of this case see Briese/
Schill, see note 9.
Clauses similar to this can be found in many bilateral and multilateral treaties on mutual assistance as well as in bilateral and multilateral treaties dealing with extradition. See, e.g., Convention on Cybercrime, opened for signature 23 November 2001, UNTS Vol. 2296 No. 167 (entered into force 1
July 2004); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 20 December 1988, UNTS Vol.
1582 No. 164 (entered into force 11 November 1990); United Nations
Convention against Transnational Organized Crime, opened for signature
15 November 2000, UNTS Vol. 2225 No. 209 (entered into force 29 September 2003); United Nations Convention against Corruption, opened for
signature 31 October 2003, UNTS Vol. 2349 No. 41 (entered into force 14
December 2005); International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, UNTS Vol.
2178 No. 197 (entered into force 10 April 2002); International Convention
for the Suppression of Terrorist Bombings, opened for signature 15 December 1997, UNTS Vol. 2149 No. 256 (entered into force 23 May 2001);
European Convention on Mutual Assistance in Criminal Matters, opened
for signature 20 April 1959, UNTS Vol. 472 No. 185 (entered into force 12
June 1962); Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union, opened for signature 29 May
2000, OJ C 197, 12 July 2009, p. 3 (entered into force 23 August 2005);
Convention on Laundering, Search, Seizure and Confiscation of the Pro-
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
115
The investigating French judge responsible for deciding whether or
not to execute the letter rogatory under the Mutual Assistance Convention refused to transmit the file, citing in particular article 2 (c) of the
Convention and stating that transmission of the file was considered to
be “contrary to the essential interests of France,” as the file contained
certain declassified “defence secret” documents. The French judge also
placed weight on the fact that no new element had come to light since
the closing in December 2003 of the first Djiboutian judicial investigation, and no reason had been given for the opening of the new judicial
investigation. In light of this, she formed the view that the new investigation appeared to be an abuse of process aimed solely at gathering information and witness statements in respect of another case in progress
in France, in which the Procureur de la République of Djibouti and its
head of security were accused of subornation of perjury.145
In the proceedings before the Court, France argued that in light of
the sensitive nature of penal affairs and their tight link to state sovereignty, article 2 (c) should be interpreted as providing for the state, and
the state alone, to decide in accordance with procedures under its internal law whether or not a particular instance of mutual assistance would
prejudice its essential interests.146 Djibouti contested this, arguing that
the Court must at least review the invocation of article 2 (c) for good
faith.147
The Court, in response, accepted that article 2 (c) conferred a wide
discretion on a state in deciding to refuse mutual assistance, but held
that the exercise of discretion under article 2 (c) remained subject to the
obligation of good faith codified in article 26 of the Vienna Convention
on the Law of Treaties.148 In doing so, the Court drew a parallel be-
145
146
147
148
ceeds from Crime, opened for signature 8 November 1990, UNTS Vol.
1862 No. 69 (entered into force 1 September 1993).
See soit-transmis of 8 February 2005 as described in Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), see note 9,
para. 28 and 147.
Djibouti v. France (Oral Proceedings of France-Translation) (25 January
2008), para. 12, available via <http://www.icj-cij.org>.
Djibouti v. France (Oral Proceedings of Djibouti – Translation) (28 January
2008), para. 15, available via <http://www.icj-cij.org>. See also Certain
Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
see note 9, para. 135.
See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), see note 9, para. 145 (citing Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), see note
116
Max Planck UNYB 13 (2009)
tween the concept of good faith and the concept of abuse of rights discussed in earlier decisions of the Permanent Court of International Justice (PCIJ). In order to satisfy the good faith test, the Court held that
France was required to show that the reasons for its refusal to execute
the letter rogatory fell within those allowed for in article 2.149 The
Court then outlined one of the reasons provided by the instructing
judge for refusing to execute the letter rogatory namely, that relating to
the presence of declassified “defence secret” documents, and held that it
fell within the scope of article 2 (c) of the Mutual Assistance Convention. On this basis, the Court found that France had relied on article 2
(c) in good faith.150 It can be seen from this reasoning, that the Court
interpreted good faith to permit only a very limited review. All that
France needed to establish was that one of the reasons, provided by the
instructing judge for refusing to transmit the file, fell within the ambit
of article 2 (c).151
The Court, therefore, did not find that the self-judging clause in
question ousted its jurisdiction. At the same time, it recognized that
self-judging clauses granted the state discretion that could be reviewed
by the Court in order to determine whether the state invoking the
clause had done so in good faith. What precisely this standard entailed,
remained, however, largely unresolved in Djibouti v. France. Notably,
the Court left open how to operationalize good faith review and what
the limits of it were.
In contrast, Judge Keith, in a separate Declaration, analyzed the
standard of review applicable to self-judging clauses in greater detail.
Like the majority, he considered that the decision not to grant mutual
assistance should be reviewed against the closely related principles of
149
150
151
22, 116, para. 222, and Oil Platforms (Islamic Republic of Iran v. United
States of America), see note 41, 183, para. 43 and 135).
See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti
v. France), see note 9, para. 145 (citing Certain German Interests in Polish
Upper Silesia, Merits, Judgment No. 7, 1926, PCIJ, Series A, p. 30, and Free
Zones of Upper Savoy and the District of Gex, Judgment, 1932, PCIJ, Series
A/B, No. 46, p. 167).
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), see note 9, para. 147-148, 202.
Note that this approach runs the risk that the selected reason may actually
not have been determinative in the state’s decision-making process. A
state’s decision to rely on a self-judging clause could thus be upheld on the
basis of a reason that, although legitimate by itself, was not in fact the primary motivator behind the state’s actions.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
117
good faith, abuse of rights and misuse of power. However, he went further than the majority in holding that those principles required the responsible state agency to exercise the power for the purpose for which
it was conferred, in a manner that did not frustrate the object and purpose of the treaty, and without regard to improper purposes or irrelevant factors.152 In this context, he cited the Court’s statement in the
Gabčíkovo-Nagymaros Project case that the good faith obligation in article 26 of the Vienna Convention “obliges the Parties [to a treaty] to
apply it in a reasonable way and in such a manner that its purpose can
be realized.”153
After identifying the object and purpose of the Mutual Assistance
Convention as being for the Parties to afford each other the widest
measure of judicial assistance in criminal matters, Judge Keith considered whether the reasons given by the instructing judge satisfied the requirements of good faith.154 In his view, however, they did not in two
respects. First, in taking her decision to refuse cooperation, the French
judge appeared to have had regard to factors that did not fall within the
scope of article 2 (c), namely that the letter rogatory was an abuse of
process because it failed to indicate the object of and the reason for the
request as required by article 13 (b) of the Convention and appeared to
be a means of obtaining copies of documents implicating the Procureur
de la République of Djibouti in the related proceedings for subornation
of perjury in which he had refused to appear.155
Second, in determining that the file could not be transferred in its
entirety due to the presence of certain declassified “defence secret”
documents, the French judge made no assessment of the likely prejudice that the release of these documents would present to France’s national security, nor did she provide reasons why it would not be sufficient to withhold only the declassified documents and thereby protect
the national security interest allegedly at stake. The lack of such a consideration was particularly striking as the French Ministry for Defense
had indicated, prior to the judge’s decision, that it was not opposed to a
partial transmission of the file.
152
153
154
155
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), Declaration of Judge Keith, see note 9, para. 6.
Ibid. See also Gab íkovo-Nagymaros Project (Hungary/Slovakia), see note
39, 78, para. 142.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), Declaration of Judge Keith, see note 9, para. 6.
Ibid., para. 7-9.
118
Max Planck UNYB 13 (2009)
Judge Keith considered that the judge’s failure to consider transferring part of the file, or requesting that Djibouti particularize its request,
amounted to a failure to have proper regard to the purpose of the Convention.156 Implicitly, it appears from Judge Keith’s Declaration that
this failure could not be cured by the post hoc reasons for this approach
put forward by France in her written and oral pleadings where it was
submitted that the “defence secret” documents had been used in such a
way by the investigating judge so as to permeate the whole file, and it
was therefore not possible to even transmit part of the file with the declassified documents removed.157 Indeed, Judge Keith concluded that
the French judge had not complied with the Mutual Assistance Convention in making her decision under article 2 (c) and was yet to make a decision, in accordance with law, in response to the letter rogatory.158
In summary, the Djibouti v. France case establishes that the ICJ,
similarly to the ICSID Tribunals in the investment treaty context and in
line with many commentators on article XXI GATT, considers that
self-judging clauses do not oust the jurisdiction of an international
Court or Tribunal. Instead, they modify the standard of review to be
applied in view of the discretion the clauses grant. This standard is generally accepted, as exemplified in the judgment in Djibouti v. France, to
be one of good faith. However, the precise criteria for ascertaining
whether the good faith standard is met, are largely left open in the majority judgment in Djibouti v. France, where the test applied resembles
a “touch and feel”-type test. In comparison, Judge Keith suggests a
number of concrete questions that may be asked in order to assess good
faith. These questions bear a close resemblance to the questions applied
in judicial review of administrative discretion for improper purpose at
the domestic level in many common and civil law countries.
156
157
158
Ibid., para. 8-9.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), see note 9, para. 137, 148.
At the same time, however, Judge Keith found that Djibouti’s delay in challenging this failure precluded any positive remedy and he, therefore, voted
with the majority in declining to uphold Djibouti’s final submissions in respect of article 2 (c) of the Mutual Assistance Convention.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
119
3. Summary
While some countries, above all the United States, almost consistently,
adopt the view that self-judging clauses in international treaties are
completely unreviewable and constitute a bar to the jurisdiction of international dispute settlement bodies,159 numerous other states, and virtually all dispute settlement bodies that have been called upon to decide
on the effect of self-judging treaty clauses in international dispute resolution, have rejected the view that such clauses remove their jurisdiction
and instead have taken the position that such clauses merely affect the
applicable standard of review. This latter position is justified, unless the
self-judging clause is clearly framed as a bar to jurisdiction,160 for a
number of reasons.161 Implying limitations to the jurisdiction of an international Court or Tribunal to review the invocation of a self-judging
clause unnecessarily broadens the potential for misuse of such clauses
and allows unilateral considerations to take precedence over the legitimate expectation of other Contracting Parties to an international treaty.
The principle of primacy of international law over national law therefore militates against implying a bar to the jurisdiction of an international Court or Tribunal where states did not clearly express such an intention.162
Furthermore, implying limitations to jurisdiction runs counter to
the functions Courts and Tribunals play in the peaceful settlement of
disputes, the principle that Courts, unless stated otherwise, have the
competence to determine their competence (Kompetenz-Kompetenz),163
and the general principle of law that no one may be a judge in his own
cause (nemo iudex in sua causa).164 Equally, upholding jurisdiction and
reviewing whether a state’s invocation of a self-judging clause remained
159
160
161
162
163
164
See also Greig, see note 69, 181-213.
This is the case, for example, in the 2006 Peru-United States Free Trade
Agreement or the India-Singapore Agreement, see notes 71 and 72.
See on this and the following Alvarez/ Khamsi, see note 16, 418-420, 424
footnote 269.
See also Greig, see note 69, 193.
See only Article 36 (6) ICJ Statute, article 41 (1) ICSID Convention. Cf.
also Certain Norwegian Loans (France v. Norway), see note 69, 43-44 (discussing the concept of Kompetenz-Kompetenz in the context of Connally
clause type Optional Declarations). Cf. also Greig, see note 69, 181-213.
See H. Lauterpacht, The Development of International Law by the International Court, 1958, 158-164; Bin Cheng, General Principles of Law as
Applied by the International Court and Tribunals, 1953, 279-289.
120
Max Planck UNYB 13 (2009)
within the limits on which states agreed in a treaty furthers the general
principle of pacta sunt servanda.165 Limitations on the jurisdiction of an
international Court or Tribunal, therefore, should not be implied, just
as in the domestic context, limitations on the review by an independent
and impartial Court or Tribunal are not read into a piece of legislation.166
IV. Towards a General Standard of Review for SelfJudging Clauses
While self-judging clauses, without more, do not oust the jurisdiction
of international dispute settlement bodies, it is clear that they affect the
standard of review that a Court or Tribunal has to apply. The standard
of review that is generally accepted by international dispute settlement
bodies, and championed by legal scholars, is review for good faith.167
This standard, above all, finds its justification in the general principle
that states are required to act, in their relations with other states, in
good faith, in particular when implementing international treaties.168
The question remains, however, what is meant by good faith review
and how can it be implemented in practice without conceding too much
power to international Courts and Tribunals vis-à-vis the state invoking
a self-judging clause or bringing about the danger of arbitrary decisions
by the dispute settlement bodies themselves. This Part, therefore, considers how good faith can be concretized and suggests, as a useful approach, the drawing of an analogy between the standard of review an
international Court or Tribunal should apply when faced with the invocation of a self-judging treaty exception and the standard of review ap-
165
166
167
168
See article 26 Vienna Convention on the Law of Treaties, see note 13.
See e.g. Aronson/ Dyer/ Groves, see note 90, 91-94, 832-833.
See the discussion above under Part III. 2. On the standard of review in the
WTO context see Hahn, see note 70, 599-601; Schloemann/ Ohlhoff, see
note 6, 444; Akande/ Williams, see note 84, 389-392; on the standard of review in the ICSID context see Burke-White/ von Staden, see note 16, 376381 (concerning self-judging clauses in investment treaties); cf. also concerning self-judging reservations in Optional Declarations under the ICJ
Statute Greig, see note 69, 181-213.
See article 26 Vienna Convention on the Law of Treaties. See also R. Kolb,
“Principles as Sources of International Law (with Special Reference to
Good Faith)”, NILR 53 (2006), 1 et seq. (18).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
121
plied by domestic Courts when faced with discretionary decisionmaking by administrative bodies. This analogy, it is argued, could provide a solution to developing a general standard of review for selfjudging clauses that reconciles both the state’s right to rely on such a
clause and the interest of the other Contracting State in international
cooperation, thus ensuring respect for the rule of law, as well as finding
an appropriate balance in the relationship between states and dispute
settlement bodies.
1. Possible Concretizations of Good Faith Review
Good faith as a standard of review is perhaps one of the broadest and
least concretized principles. Kolb, for example, describes good faith as a
general principle of international law that has as its aim “to blunt the
excessively sharp consequences sovereignty and its surrogates (e.g., the
principle of consent, no obligation without consent) may have on the
international society, in ever-increasing need of cooperation.”169 In the
context of treaties, the principle of good faith, inter alia, protects the
object and purpose of the treaty against acts intending or having the effect of depriving it of its use.170 Good faith is closely connected to the
customary law principle of pacta sunt servanda171 and is mentioned not
only in article 26 of the Vienna Convention on the Law of Treaties, but
equally in article 31 (1) of that Convention as a principle guiding the interpretation of treaties.172 Moreover, in the Nuclear Tests cases, the ICJ
recognized that good faith is “[o]ne of the basic principles governing
the creation and performance of legal obligations, whatever their
source.”173 In Border and Transborder Armed Action, however, the
169
170
171
172
173
Kolb, see note 168.
Ibid., 19-20.
See Nuclear Tests (Australia v. France), ICJ Reports 1974, 253 et seq. (268,
para. 46); Nuclear Tests (New Zealand v. France), ICJ Reports 1974, 457 et
seq. (473, para. 49).
The good faith principle finds further reflection in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the United Nations,
A/RES/2625 (XXV) of 24 October 1970.
See note 171.
122
Max Planck UNYB 13 (2009)
Court clarified that good faith “is not in itself a source of obligation
where none would otherwise exist.”174
In light of its background, it is clear that good faith is a very general
legal concept. For this reason it is necessary to “concretize” the principle of good faith in order to apply it to specific situations, including the
standard of review to be applied under a self-judging clause.175 While
some dispute settlement bodies and commentators appear to prefer not
to over-theorize the principle of good faith,176 such an approach may
carry the risk of judicial overreaching into the legitimate realm of a
state’s discretion under such clauses. In consequence, some dispute settlement bodies, as well as commentators, have suggested more concrete
approaches to the content of good faith review in their application to
limiting the invocation of self-judging clauses.
One such approach has been to suggest reversing the burden of
proof in the context of self-judging clauses as compared to that applied
in the context of non-self-judging clauses.177 Generally speaking, if a
state alleges a breach of a treaty obligation and the other Contracting
State relies on an exception or justification precluding wrongfulness, it
is for the state alleging the breach to establish the breach and the state
invoking the exception to establish the exception.178 However, in public
174
175
176
177
178
Border and Transborder Armed Action (Nicaragua v. Honduras), ICJ Reports 1988, 69 et seq. (105, para. 94). Cf. also J. Klabbers, The Concept of
Treaty in International Law, 1996, 94.
Kolb, see note 168, 19-20 (stating that “the key to the life of great principles is the concept of ‘concretization’, which has not yet received the attention it deserves”).
See, for example, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), see note 9, para. 147-148, 202 (in which the ICJ
adopted a “touch and feel”- type test discussed above under Part III. 2. c.);
Akande/ Williams, see note 84, 365 (limiting good faith review to establishing the genuineness of the reasons a state stated for the measures taken.
Note that while such tests may have advantages due to their flexibility in
application, there is arguably a risk that they will not be robust enough to
give states sufficient confidence that self-judging clauses will not be abused.
Such tests, without further concretization, also entail the risk that decisions
of international Courts or Tribunals supervising whether a state has invoked a self-judging clause in good faith are unpredictable and confer too
wide a discretion on the Courts and Tribunals themselves.
See Trybus, see note 31, 1361-1362.
On the burden of proof see Bin Cheng, see note 164, 326-335; see generally
M. Kazazi, Burden of Proof and Related Issues, 1996.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
123
international law states are generally presumed to act in good faith.179
In light of this presumption, it is arguable that if an international dispute settlement body is only entitled to review the invocation of a selfjudging clause for good faith, the state alleging the breach must also
bear the burden of establishing a lack of good faith on the part of the
invoking state, rather than the state invoking the exception having to establish the existence of good faith.
Such a reversal of the burden of proof in relation to the invocation
of a self-judging exception would confer significant flexibility on the
state invoking it.180 Such an approach, however, has not been applied by
any international dispute settlement body. Indeed, particularly in situations where the measure taken is justified to prevent prejudice to essential security interests – the subject of a majority of self-judging clauses –
reversing the burden of proof would practically remove all accountability vis-à-vis an international Court or Tribunal and the other Contracting State Party, because it will regularly be difficult, if not impossible,
for the state seeking redress for the breach of an international obligation
to obtain the information necessary to show a violation of good faith in
such a sensitive area.181
Alternatively, good faith review can be concretized by requiring the
application of a proportionality test, possibly in connection with grant179
180
181
See e.g. R. Yakemtchouk, La Bonne Foi dans la conduite internationale des
Etats, 2002, 67 et seq.; G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, 615.
See Trybus, see note 31, 1361-1362 (stating in discussing this approach in
the context of the EC Treaty that “[p]lacing the burden of proof for having
acted within that margin of discretion on the Member States compromises
their flexibility to an extent that might be considered as contradicting the
very attribution of this flexibility. It could be argued that there is no reason
why the Member State should have to prove the legality of its measures and
there is no authority for this requirement in the Treaty. The burden of
proof for bad faith or arbitrariness could be placed on the Commission or
other Member State challenging the legality of the measure. In order to
safeguard the necessary flexibility there might be an argument for an evidentiary presumption in favour of the respective government including the
benefit of any reasonable doubt.”).
Similarly, Schloemann/ Ohlhoff, see note 6, 448 (stating that “[t]he general
obligation to exercise good faith also has a procedural dimension. It demands that a member relying on Article XXI not only participates in Panel
proceedings, but also provides the information necessary for the Panel to
make the findings within its competence.”); Cann, see note 125, 478-479;
Hahn, see note 70, 616.
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ing the state invoking a self-judging clause a margin of appreciation.182
Indeed, the statement by the Tribunal in LG&E,183 suggesting that
good faith review would not differ significantly from a substantive review undertaken by the Tribunal in the context of a non-self-judging
clause, may reflect the Tribunal’s view that, in light of the subject matter
of the clause, it would grant Argentina a certain amount of deference or
margin of appreciation. The presence of a self-judging clause and the
scope of discretion it ensures, on this view, would merely make explicit
and compulsory the granting of a margin of appreciation that would
otherwise only be a question of judicial self-restraint and deference.184
Equating good faith review concerning self-judging clauses with the
principle of deference, however, could mitigate differences between
self-judging clauses and non-self-judging clauses, as international
Courts and Tribunals regularly grant a margin of appreciation or pay
deference to states in the context of matters that pertain to particularly
sensitive areas, even when they are not protected by the inclusion of a
self-judging clause.185 Furthermore, it does not adequately address the
characteristics of the discretion Contracting States intended to retain
for themselves under a self-judging clause.
A third approach to concretizing good faith review concerning selfjudging clauses is the one suggested by Judge Keith in his Declaration
in Djibouti v. France, which suggests asking a number of concrete questions in order to identify a failure on behalf of a state invoking a selfjudging clause to meet the requirement to act in good faith, or to not
engage in an abuse of rights or a misuse of power.186 These questions
182
183
184
185
186
Cf. Burke-White/ von Staden, see note 16, 368-386; Schloemann/ Ohlhoff,
see note 6, 446.
LG&E v. Argentine Republic, see note 24, para. 214.
See J. Elkind, Non-appearance before the International Court of Justice –
Functional and Comparative Analysis, 1984, 122 (for a slightly different
analysis based on the concept of implicit and explicit self-judging clauses.
Elkind defines explicit self-judging clauses as clauses which state in so
many words that they are subject to the discretion of the state and implicit
self-judging clauses as those clauses that deal with an area of law in which a
state’s assessment of its own requirements is generally held to be a major, if
not the sole, criterion for assessing its content, such as essential [security]
interests).
See above Part II. 3. See also Shany, see note 31, 916 (arguing that states
should be granted a wider margin of appreciation in relation to self-judging
clauses than with respect to comparably phrased non-self-judging clauses).
See above notes 152-158 and accompanying text.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
125
bear a close resemblance to the grounds of review relating to the improper exercise of a discretionary power by administrative agencies as
applied by Courts in many domestic administrative law systems.187
Such an approach to concretizing the content of good faith review has
the advantage that it focuses on an element that is common to both selfjudging clauses and discretionary powers conferred upon administrative
agencies, namely the element of discretion. Such an approach, therefore,
addresses the characteristic element of self-judging clauses much better
than other concretizations suggested for good faith review in this context.
2. Exploring the Domestic Administrative Law Analogy
In fact, there seems no principled reason why grounds of judicial review
as regards the exercise of a discretionary power at the international level
should be fundamentally different from the grounds of judicial review
applied in this context in the domestic realm. This is particularly so, as
state action on the international level, in many contexts, increasingly resembles administrative action in the domestic context, or, at least, can
be usefully analogized with the function of administrative agencies on
the domestic level.188 Certainly, the respective contexts and relevant circumstances may differ, but the rationale for the existence of such discretion in both systems is quite comparable. In both cases, discretion is
granted in order to avoid the over-inclusive and under-inclusive effect
of absolute rules189 that could hamper the effective implementation of
187
188
189
Also described as grounds of judicial review available for abuse of discretionary power and/or irrationality, see, e.g., P. Joseph, Constitutional and
Administrative Law in New Zealand, 3rd edition 2007, 870, 885, 931. Note
that Judge Keith’s focus on this approach to reviewing a discretionary decision probably owes much to his background, and in particular to the time
he spent as a Judge of the New Zealand Court of Appeal from 1996-2003
and then of the newly established Supreme Court of New Zealand from
2004-2005, as well as his membership of the Public and Administrative Law
Reform Committee from 1972-1986, and later of the New Zealand Law
Commission from 1986-1996 (including five years as President from 19911996).
In respect of the value of such an approach see generally Kingsbury/
Krisch/ Stewart, see note 11.
For the international perspective see M. Koskenniemi, From Apology to
Utopia: The Structure of International Legal Argument, revised edition
126
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regulatory policies. In fact, one of the reasons why discretion is granted
to administrative agencies on the domestic level is the functional necessity for such discretion in modern administrations in order to effectively implement public policies.
Thus, administrative agencies are granted, in many areas of law, a
“genuine domain” within which they can exercise regulatory or casespecific discretion.190 This “genuine domain” has developed from an attempt to balance the need for a certain normative flexibility when administering complex programs, and the competing principle of restricting administrative action through the concept of the rule of law and the
principle of legality. This principle aims to ensure both democratic control, and to increase the predictability of administrative decisionmaking so that individuals can plan and adapt their behavior prospectively to agency conduct. Similarly, self-judging clauses in international
law aim at reserving a “genuine domain” to states in order to safeguard
specific domestic interests against the interests of other states and to facilitate the implementation of complex cooperative arrangements at the
international level.
Furthermore, the rationale for reviewing the exercise of discretion
by domestic public authorities has parallels to the good faith review ap-
190
2005, 591-592 (“[I]ndeterminacy is an absolutely central aspect of international law’s acceptability. It does not emerge out of carelessness or bad faith
of legal actors (states, diplomats, lawyers) but from their deliberate and justified wish to ensure that legal rules will fulfil the purposes for which they
were adopted. Because those purposes, however, are both conflicting as between different legal actors and unstable in time even in regard to single actors, there is always the risk that rules – above all ‘absolute rules’ – will
turn out to be over-inclusive and under-inclusive. The rules will include future cases we would not like to include and exclude cases that we would
have wanted to include had we known of them when the rules were
drafted. This fundamentally – and not just marginally – undermines their
force. It compels the move to ‘discretion’ which it was the very purpose to
avoid by adopting the rule-format in the first place.”). For a domestic perspective, see D. Galligan, Discretionary Powers: A Legal Study of Official
Discretion, 1990, 69-78 (stating that rules restrict the consideration of wider
factors, and may prevent the making of decisions in a manner which provides the best accommodation of values and purposes, and which achieves
the best result in the particular case).
See on this and the following S. Oeter, “Die Kontrolldichte hinsichtlich
unbestimmter Begriffe und des Ermessens”, in: J. Frowein (ed.), Die Kontrolldichte bei der gerichtlichen Überprüfung von Handlungen der Verwaltung, 1993, 266-267.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
127
plicable to self-judging clauses at the international level. In both cases,
states in international law, as well as administrations on the domestic
level, exercise power for a public purpose and on trust.191 Thus, treaties
are entered into in order to further the interests of two or more sovereign states, acting, at least nominally, for the benefit of their respective
publics. When states enter into international treaties, they limit, on the
basis of mutual trust, the exercise of a state’s sovereign powers by
promising certain conduct to the other Contracting Party. Conversely,
where such limits are subject to discretionary exceptions, states can expect that such discretion will be exercised reasonably and in good faith
in accordance with the treaty’s overall purpose to further international
cooperation in a specific field.192
However, even if it is accepted that domestic administrative law
analogies may usefully concretize the standard of review to be applied
by international Courts and Tribunals to discretionary decisions at international law, it remains necessary to consider whether domestic administrative law principles adequately balance the need to prevent abuse
of self-judging clauses against the need to respect the discretion such
clauses confer on the state relying on them. For this purpose, the remainder of this section sets out a brief analysis of judicial review of discretionary decisions of administrative agencies in a range of common
and civil law countries. The aim is to distil from this analysis a range of
possible approaches to judicial review, that may allow the development
of a common denominator, from which international dispute settlement
bodies can draw when reviewing a state’s invocation of a self-judging
clause.
191
192
See H. Wade/ C. Forsyth, Administrative Law, 9th edition 2004, 354-356.
We note that analogies to alternative areas of domestic law, including for
example contract law, may also assist in concretizing the concept of good
faith. Indeed, the abuse of rights doctrine and prohibitions on arbitrary behavior are just two examples of contract law principles that could assist in
this regard. However, the focus of this article is to review “concretizations”
that have previously been considered either by dispute settlement bodies
themselves or by academic commentators in the context of self-judging
clauses. Exploring the potential of analogies based on other areas of domestic law is thus beyond the scope of this article. Further, we consider that the
administrative law analogy is a particularly worthwhile analogy to develop
for a number of reasons, notably that it is an area of law where much judicial and academic thought has been given to the management of discretion
and to the standard of review that Courts should apply in reviewing such
discretionary decisions.
128
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a. Commonwealth Common Law Countries
Common law countries, such as the United Kingdom, Australia, New
Zealand and Canada, have traditionally restricted judicial review, beyond scrutinizing whether the agency’s action was ultra vires and procedurally proper, to an unreasonableness or irrationality test.193 Thus,
Courts under the so-called Wednesbury test only ask whether a discretionary decision made by an administrative agency was plausible or
whether it reached “a conclusion so unreasonable that no reasonable
authority could ever come to it.”194 Such unreasonableness could arise
if the agency was guided in the exercise of discretion by irrelevant considerations or did not take into account factually and legally relevant
considerations. This test is complemented by review for legality and for
procedural propriety, involving above all the right to be heard and the
absence of bias in the decision-maker.195 While the Wednesbury test involves considerable judicial deference in relation to administrative decision-making, it nevertheless ensures that discretion is exercised in light
of the purpose of the discretionary competence conferred and based on
a proper investigation of the facts.196
A good example of the codification of grounds of judicial review
developed from the Wednesbury test can be found in Australia in the
Administrative Decisions (Judicial Review) Act 1977.197 In fact, there
are close parallels between the requirements cited by Judge Keith in
Djibouti v. France,198 and a number of grounds of judicial review set
out in Section 5 (2) of that Act, such as taking an irrelevant consideration into account in the exercise of a power, failing to take a relevant
consideration into account in the exercise of a power, and an exercise of
a power for a purpose other than a purpose for which the power is conferred. Many of the other grounds of review listed in Section 5 (2) of
193
194
195
196
197
198
See M. Herdegen, “Landesbericht Grossbritannien”, in: Frowein, see note
190, 38 et seq. (44-48).
Court of Appeal, Associated Provincial Picture House Ltd. v. Wednesbury
Corporation, [1948] 1 K.B. 233 at 229-230 (per Lord Greene M. R.).
Herdegen, see note 193, 44-45, 47-48.
Notably, even decisions pertaining to foreign policy are reviewable under
that standard in the United Kingdom. See Herdegen, see note 193, 55.
The Act governs the review of administrative decision-making of federal
agencies. In addition, each state has its own rules governing administrative
decision-making and its review by Courts.
See above Part III. 2. c.
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129
the Act199 would also neatly fall within the concept of good faith decision-making in the context of reviewing a discretionary self-judging
clause in an international treaty.
The unreasonableness test is, however, increasingly being replaced
or influenced in the United Kingdom, New Zealand and Canada by the
civil law proportionality test,200 in particular in relation to decisions affecting human rights.201 However, the difference between the unreasonableness test and the proportionality test is overshadowed by a concurrent move to applying different intensities of review to both tests depending on the subject matter under consideration. In other words,
whether applying a reasonableness test or a proportionality test, Courts
will apply a wider or narrower margin of appreciation depending on the
subject matter of the discretionary decision. Thus, they will overturn a
decision only for manifest unreasonableness or manifest disproportionality in cases where the decision-maker has specialized knowledge or
the decision involves complex policy considerations. However, more
anxious scrutiny will be applied, for example, to decisions where human rights are involved.202
199
200
201
202
Such as an exercise of a discretionary power in bad faith, an exercise of a
discretionary power in accordance with a rule or policy without regard to
the merits of the particular case, an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power, and any
other exercise of a power in a way that constitutes an abuse of the power.
Proportionality has been defined by the Council of Europe Committee of
Ministers (on 11 March 1980) as requiring an administrative authority
when exercising a discretionary power to “maintain a proper balance between any adverse effects which its decision may have on the rights, liberties, or interests of persons and the purposes which it pursues” (cited in: H.
Woolf/ J. Jowell/ A. Le Sueur, De Smith’s Judicial Review, 6th edition
2007, 585).
See Woolf/ Jowell/ Le Sueur, see note 200, 545-606. Note that the authors
emphasize the significant overlap between unreasonableness and proportionality, see ibid., 546. See also the discussions of unreasonableness and
proportionality in Aronson/ Dyer/ Groves, see note 90, 367-383; Joseph,
see note 187, 931-946. The application of a proportionality test is particularly notable in cases involving the United Kingdom’s Human Rights Act,
the Canadian Charter and the New Zealand Bill of Right, see Woolf/ Jowell/ Le Sueur, see note 200, 588-589, 600 and 602.
Woolf/ Jowell/ Le Sueur, see note 200, 591-598 in respect of the United
Kingdom, 600-603 in respect of Canada and 602-604 in relation to sliding
scale intensity of review in New Zealand.
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130
b. The United States
In the United States, judicial review of discretionary decision-making of
federal administrative agencies follows a similar pattern.203 While U.S.
Courts apply different types of tests depending on the subject matter
and administrative procedure involved, the standard of review most
commonly applied is review under Section 706 (2)(A) of the Administrative Procedure Act pursuant to which a discretionary decision must
be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”204 According to the Supreme
Court:
“[n]ormally, an agency rule would be arbitrary and capricious if the
agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.”205
While this standard is narrow and does not allow the Courts to substitute their judgment for the one of the agency,206 U.S. Courts scrutinize the reasoning the administrative agency has provided in order to
determine whether it has relied on a proper and complete factual basis
in its decision-making and if its policy judgment remains within accept-
203
204
205
206
As the United States, similar to Australia and Canada, is a federal system,
every state also has its rules for administrative procedure and judicial review of discretionary decisions. State rules, however, will not be discussed
in the context of this comparative review.
Administrative Procedure Act, 5 U.S.C. § 706.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 44
(1983).
Citizens to Preserve Overton Park, Inc., 401 U.S. 402, 416 (1971); Pension
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990); Marsh v. Oregon
Natural Res. Council, 490 U.S. 360 (1989); Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins., 463 U.S. 29 (1983); FCC v. WNCN Listeners
Guild, 450 U.S. 582 (1981). Instead, the validity of the agency’s action is
presumed, and substantial deference is afforded in view of the agency’s expertise in interpreting the underlying facts. Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins., 463 U.S. 29 (1983); Beth Israel Hosp. v. NLRB,
437 U.S. 483, 501 (1978).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
131
able bounds.207 While the reviewing Court is required to give the
agency’s action “a thorough, probing, in-depth review,”208 it will uphold that decision as long as a rational connection exists between the
facts found and the agency’s decision. U.S. law therefore subscribes to
implementing a primarily procedural mechanism for limiting discretionary decision-making by administrative agencies without the Courts
overreaching by replacing their own views for that of an agency.
c. France
French Courts equally endorse a primarily formal approach to reviewing discretionary agency decisions.209 In particular, they review such
decisions for illegality with respect to the reasons (illégalité relative aux
motifs) and abuse of power or process (détournement de pouvoir ou de
procédure). While the latter category is difficult to prove and is rarely
established in practice, French Courts primarily scrutinize the reasoning of discretionary decisions for errors of fact or law (erreur de
fait/erreur de droit), manifest error of appreciation (erreur manifeste
d’appréciation), mistakes in the legal characterization of facts (qualification juridique des faits) and proportionality (proportionnalité). The
207
208
209
G. Nolte, “Landesbericht Vereinigte Staaten von Amerika”, in: Frowein,
see note 190, 172, 187 (citing the Restatement of 8 February 1986 of the
American Bar Association’s Section for Administrative Law). See also
American Hosp. Ass’n v. NLRB, 499 U.S. 606 (1991) (concerning taking
into account relevant factors); Sea Robin Pipeline v. FERC, 127 F.3d 365,
369 (5th Cir. 1997); Hells Canyon Alliance v. United States Forest Serv., 227
F.3d 1170, 1177 n. 8 (9th Cir. 2000); Florida Cellular Mobil Commc’ns.
Corp. v. FCC, 28 F.3d 191, 199-200 (D.C. Cir. 1994); Wheatland Tube Co.
v. United States, 161 F.3d 1365, 1369-70 (Fed. Cir. 1998); Pacific Gas
Transmission Co. v. FERC, 998 F.2d 1303 (5th Cir. 1993) (concerning the
lack of adequate reasons); Natural Res. Defense Council v. EPA, 279 F.3d
1180, 1186 (9th Cir. 2002) (concerning the misuse of procedure); South Valley Health Care Ctr. v. Health Care Fin. Admin., 223 F.3d 1221, 1225 (10th
Cir. 2000) (concerning the abuse of discretion if the purpose of discretion is
not followed); Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561
(11th Cir. 1985); Platte River Whooping Crane Critical Habitat Maint.
Trust v. FERC, 876 F.2d 109 (D.C. Cir. 1989) (concerning the lack of necessary fact-finding as an abuse of discretion).
District of Columbia v. Pace, 320 U.S. 698, 701-703 (1944).
See C. Lerche, “Landesbericht Frankreich”, in: Frowein, see note 190, 1 et
seq. (7-15). See also R. Chapus, Droit administratif général, 15th edition
2001, Vol. I, para. 1055-1085.
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132
scope of review, in turn, depends on the subject matter concerned.
Thus, review under all four categories (so-called contrôle maximum)
generally occurs only in cases where the impact on individual rights is
particularly extensive, such as cases of expropriation and the exercise of
police powers, whereas, at the other end of the spectrum, minimal review, which is limited to review for errors of fact or law and manifest
error of appreciation (so-called contrôle minimum), is applied in cases
involving either specific technical knowledge or cases involving considerations that are “too diverse and too finely balanced to be judicially reviewed.”210 Standard review (so-called contrôle normal), excludes the
more intensive proportionality review, but includes review of the legal
characterization of the facts involved.
Despite the attempt to define and distinguish different modes and
levels of scrutiny, Courts in France generally scrutinize whether the
reasons given by the administration for its decision demonstrate that
the decision is based on properly and fully investigated facts, involves a
proper application of the legal framework and, as regards discretion, is
not manifestly unreasonable, for example in exceeding the scope of discretion or in exercising it in a way contrary to the discretion’s purpose.
This is, in principle, consistent with the conceptualization of the relationship between Courts and administrative agencies that prevails in the
common law jurisdictions discussed.
d. Germany
In Germany, Court scrutiny of discretionary decisions is considered to
be comparably strict relative to the other domestic legal orders discussed. Yet, German Courts, like the Courts in other countries, respect
the discretion granted to administrative agencies and do not replace an
agency’s exercise of discretion with their own judgment. They merely
determine whether an administrative agency has committed mistakes in
exercising discretion.211 Based on Section 114 (1) of the Administrative
210
211
See Conseil d’Etat, Decision of 5 December 1956 – Thibault, D. 1957.21
(“considerations trop diverses et trop ténues pour être saisies par [les juges]”).
See F. Hufen, Verwaltungsprozeßrecht, 7th edition 2008, 422-430; M. Singh,
German Administrative Law in Common Law Perspective, 1985, 85-96; J.
Oster, “The Scope of Judicial Review in the German and U.S. Administrative Legal System”, German Law Journal 9 (2008), 1267 et seq. (1269). Like
in the other federal legal systems discussed, the Länder have their own
rules on administrative discretion. These, however, follow the federal law
discussed here.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
133
Court Procedures Code (Verwaltungsgerichtsordnung), Administrative
Courts in Germany can find an exercise of discretion to be “unlawful
because the agency exceeds the legal limits of the discretionary power
or because the agency did not use its discretion in accordance with the
purpose of the empowerment.”212 Notably, Courts set aside discretionary decisions in case of partial or full non-use of discretion (Ermessensnichtgebrauch and Ermessensunterschreitung), of abuse of discretion
(Ermessensfehlgebrauch) and if an agency exceeds the scope of discretion (Ermessensüberschreitung).213
Judicial review for these errors in the exercise of discretionary powers touches upon whether the administrative agency complied with the
rules of procedure, whether it correctly investigated the facts, whether
it complied with general standards of evaluation and whether it based
its decision on relevant factors without being influenced by irrelevant
ones. Furthermore, consistency in the administration’s decision-making
and equal treatment of like cases play a significant role in judicial review
of discretionary powers.214
In addition to this primarily formal review, the review applied to
administrative decision-making in Germany is heavily influenced by the
importance of fundamental rights protection through Court review.
This may lead Courts to scrutinize the exercise of discretion also with
respect to the substantive choices made by agencies, and thus goes beyond the standard of review of discretionary decision that is customary
212
213
214
Exercise of Discretion is governed by Section 40 of the German Administrative Procedure Act (Verwaltungsverfahrensgesetz) which states: “Where
an authority is empowered to act at its discretion, it shall do so in accordance with the purpose of such empowerment and shall respect the legal
limits to such discretionary powers.”
See Hufen, see note 211, 425; Oster, see note 211, 1269. A similar test has
been developed for reviewing discretionary planning decisions of administrative agencies in the jurisprudence of the Highest Administrative Court
(Bundesverwaltungsgericht). This standard of review is limited to determining whether the agency has balanced competing rights and interests in a
proper way; BVerwGE 34, 301, 309; 45, 309, 316; 56, 110, 119. Review, in
these situations, is limited to four balancing mistakes that result in formal
rather than substantive review, namely non-balancing (Abwägungsausfall),
balancing deficit (Abwägungsdefizit), false evaluation of relevant considerations (Abwägungsfehleinschätzung), or balancing disproportionally (Abwägungsdisproportionalität). See Hufen, see note 211, 429-430; Oster, see
note 211, 1271.
Oster, see note 211, 1271.
Max Planck UNYB 13 (2009)
134
in other countries. Apart from this specific emphasis on ensuring respect for fundamental rights, however, the approach in Germany is
similar in its emphasis to the formal control of discretionary decisionmaking in other domestic legal orders.
e. Summary
Both civil and common law countries stress similar considerations as
relevant for the judicial review of discretionary decision-making by
administrations. They all recognize the existence of a “genuine domain”
of discretionary administrative decision-making, based on the consideration that administrative agencies dispose of specific expertise and
competence and are more immediately accountable than judges to the
relevant constituencies.215 Despite necessarily existing nuances and variances between the administrative laws of different countries, judicial review of discretionary decision-making is functionally rather similar and
primarily of a formal nature.216 Thus, Courts, against this background,
refrain from judging the substance of the decision itself. In particular,
Courts regularly stress that it is not their function and mandate to second-guess or to substitute their judgment for the agency whose discretionary decision is challenged.217
Although domestic legal systems endorse different levels of review,
ranging from review for arbitrariness, via irrationality to closer scrutiny
based on proportionality review in certain circumstances, the domestic
legal systems examined above encompass and emphasize formal and
procedural control mechanisms that focus on the process and basis of
the administration’s discretionary decision-making rather than on the
substance of the decision itself.218 Thus, in order to avoid the potential
misuse of discretionary powers, Courts regularly review whether the
factual basis of the administration’s decision was adequate and properly
investigated, whether the appreciation of the legal framework was correct, whether the agency abided by the proper procedure and whether it
was guided in the exercise of discretion by relevant and pertinent considerations.
In addition, Courts stress the importance of adhering to certain procedural safeguards that are unrelated to the content of the administra215
216
217
218
See Oeter, see note 190, 266-268.
Oeter, ibid., 272-276; Nolte, see note 207, 278-287.
Oeter, ibid., 272.
Oeter, ibid., 272-273; Nolte, ibid., 278-287.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
135
tion’s decision-making, such as the right to be heard, lack of bias, the
requirement that the decision is sufficiently reasoned and that those reasons be communicated. Likewise, the question of whether discretionary
decision-making is consistent and does not differentiate unreasonably
between different subjects and situations, finds an important position in
judicial review of discretionary decision-making.219 At the same time,
proportionality review is gaining momentum in many domestic and international dispute settlement systems, involving tighter Court control
and greater Court interference with executive decision-making.220 This
form of analysis, however, is not a specific limit to discretionary powers, but a standard that is applied more generally in order to balance
competing rights and interests.221 Consequently, it may not adequately
address the specific nature of review of discretionary decision-making,
even though disproportionality may be a factor suggesting a lack of
good faith.222
Given the similarity among the factors applied in court monitoring
of discretionary decision-making by administrative agencies, it appears
possible to speak of a broad consensus as regards the conceptual
framework in this respect, even if differences exist between different
domestic legal orders. Overall, such formal control mechanisms have
the advantage of enabling judicial review while upholding the discre219
220
221
222
Oeter, ibid., 274.
See A. Stone Sweet/ J. Mathews, “Proportionality Balancing and Global
Constitutionalism”, Colum. J. Transnat’l L. 47 (2008), 72 et seq.
It is, however, regularly also combined with according deference or a margin of appreciation to the conduct of governments. On the connections between proportionality analysis and the margin of appreciation doctrine in
the context of the European Convention on Human Rights see, for example, Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, 2002.
Proportionality analysis may particularly have a place as regards objective
criteria contained in international treaty provisions requiring that certain
measures are necessary to protect a certain interest. In any case, if such an
element is subject to a state’s self-judging appreciation a full-bodied objective proportionality will not be suitable as it ignores differences between
self-judging and non-self-judging clauses. Notwithstanding, clearly unsuitable measures or measures that strike a manifestly unreasonable balance between the rights or interests protected by a self-judging clause and the
rights or interests of another Contracting Party may indicate a lack of good
faith. Such a finding, however, could be reached on the basis of the exercise
of discretion for an improper purpose rather than as necessarily tied to proportionality review. Cf. Schloemann/ Ohlhoff, see note 6, 444-445.
136
Max Planck UNYB 13 (2009)
tionary decision-making of administrations without judicial overreaching.223
3. Applying the Domestic Administrative Law Analogy to
Self-Judging Clauses
Setting aside the highest intensity of review undertaken in situations
where respect for human rights is at stake, which would infrequently
arise in the context of the self-judging clauses reviewed in this article,
the comparative law approach on the scope and grounds of judicial review of discretionary decision-making clarifies that that review is primarily targeted not at the substantive assessment made by the decisionmaking executive organ, but rather at the process by which the decision
is arrived at in light of the purpose of the law under which the power is
exercised. This respects the discretion granted to the decision-maker,
but equally ensures that there are outer limits which the decision-maker
cannot transgress, thus achieving an appropriate balance between freedom of decision-making and restraint under the rule of law. This conceptual approach also appears appropriate for concretizing the standard
of good faith as regards self-judging clauses in international treaties, as
it respects the discretion accorded to a state, while providing concrete
questions that an international dispute settlement body may ask in order to protect the interest of the other Contracting Parties in international cooperation.
In applying the domestic administrative law analogy, international
Courts and Tribunals should first isolate the elements of a treaty provision that is self-judging. As regards article XXI (b) GATT, for example,
the question of whether an essential security interest is at stake, is not
necessarily subject to a state’s self-judging determination, as one could
understand the self-judging element to be limited to the determination
of whether a certain measure is “necessary” to protect an essential security interest. Similar to the decision of the ICJ in the GabčíkovoNagymaros Project case,224 an international Court or Tribunal is therefore not compelled to exercise deference, even though it may choose to
do so, as regards a state’s determination in regard of the non-selfjudging elements of the treaty provision in question.
223
224
Nolte, see note 207, 291.
See above notes 39-43 and accompanying text.
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
137
As regards the self-judging element of a treaty clause, by contrast, an
international Court or Tribunal should, similar to the review of discretionary decision-making in domestic administrative law, primarily apply procedural grounds of review as regards the invocation of a selfjudging clause. While the Court or Tribunal is thus not authorized to
“step into the shoes” of the state invoking a self-judging clause and replace the state’s own determination of the self-judging elements in question, it can review whether the state in question misused its discretionary powers, i.e., whether the factual basis of its decision was adequate
and properly investigated, whether the appreciation of the governing
legal framework was correct, whether the state abided by the proper
procedure and whether it was guided in the exercise of discretion by
relevant and pertinent considerations in view of the purpose of the
treaty in question. For the purpose of such review, it will also be important that the state invoking a self-judging clause provides the reasons
for doing so to the other Contracting Parties.
In this context, the purpose of a self-judging clause, as well as the
purpose of the international treaty, which the state seeks to exempt itself from, assume particular importance. An identification of the object
and purpose of the treaty allows an assessment of what circumstances
are relevant and irrelevant to the exercise of a power and what is and is
not a proper purpose for its exercise. Under article XXI GATT, for example, the Dispute Settlement Body should be guided in reviewing a
state’s reliance on that provision by scrutinizing whether a measure
serves non-economic security interests of a state and cannot manifestly
be achieved by clearly less restrictive and equally effective measures, or
whether it instead serves economic and therefore protectionist purposes, which is inconsistent with the object and purpose of the
GATT.225 Similarly, in other treaty contexts and other dispute settlement mechanisms, international Courts and Tribunals can determine,
based on the object and purpose of the treaty as well as the object and
purpose of the specific self-judging clause, whether a state has invoked a
self-judging clause for a proper or improper purpose and whether it has
based its decision on pertinent as compared to irrelevant considerations.
In this sense, the domestic administrative law analogy could serve as a
225
See Hahn, see note 70, 596-597 (protection of a “vital industry”) and
Schloemann/ Ohlhoff, see note 6, 444 (security interests that are entirely a
function of the economic capacities, activities and effects that are the very
substance of WTO law are not covered).
Max Planck UNYB 13 (2009)
138
general standard of review that concretizes the good faith invocation of
a self-judging treaty exception.
V. Conclusion
Self-judging clauses are often perceived as a threat to international cooperation, because they allow states to invoke domestic interests in order to escape an international obligation and accord primacy to its domestic interests over international ones. The question has even been
raised whether obligations subject to self-judging exceptions are legal
obligations at all, and whether they should be admissible in a world
where the interests of the international community are increasingly developing by binding states into a growing network of obligations. Yet,
as long as states agree to include self-judging clauses in international
treaties, whether bilateral or multilateral, such clauses cannot be viewed
as invalid as the fundamental basis for the binding nature of international law is consent.226 Thus, if states agree to allow for unilateral considerations to trump international cooperation, no contradiction or incompatibility arises between unilateralism and international cooperation.
Indeed, it is conceivable that self-judging clauses actually further international cooperation more than they impede it, because they provide
exit-valves in areas where important national interests are at stake, interests of such importance that states might prefer not to cooperate at
all rather than to concede permanent restrictions on their sovereignty in
such domains.227 Against this background, self-judging clauses may
even have positive effects on international cooperation, as long as such
226
227
By contrast, self-judging clauses in the context of reservations to treaties
and declarations concerning the submission of states to dispute settlement
mechanisms may have to be regarded differently. Unlike in the treaty context, there is no agreement between states allowing for discretion to determine when domestic interests may trump the interest in cooperating internationally.
See Emmerson, see note 84, 137 (arguing that “[self-judging]security exceptions are the necessary legal linchpins to the WTO Agreements, mediating
political exigencies, while simultaneously orchestrating international economic integration”). See also Cann, see note 125, 417; B. Rosendorff/ H.
Milner, “The Optimal Design of International Trade Institutions: Uncertainty and Escape”, International Organization 55 (2001), 829 et seq. (850851).
Schill/Briese, Self-Judging Clauses in International Dispute Settlement
139
clauses are applied as intended within the international framework in
question.
However, self-judging clauses carry an obvious potential for abuse
unless there are mechanisms in place that ensure that states only make
use of them for the reasons and motives initially indicated and agreed.
Such mechanisms include, for example, the duty to give reasons, an instrument that not only requires the state invoking the self-judging
clause to justify its decision, but also allows the other Contracting Party
to verify whether the limits of a self-judging exception are respected. In
addition, dispute settlement mechanisms and review by an international
Court or Tribunal can have an important monitoring and supervisory
function in ensuring that self-judging exceptions are not misused.
In this context, the article has addressed one of the central questions
arising in international dispute resolution involving self-judging clauses,
namely whether the invocation of a self-judging clause ousts the dispute
settlement body’s jurisdiction or merely affects the applicable standard
of review. It concludes that international practice, in particular the jurisprudence of the ICJ in the recent case in Djibouti v. France, supports
the conclusion that self-judging treaty exceptions, unless they are
clearly framed otherwise, do not constitute a bar to jurisdiction but
merely modify the standard of review an international Court or Tribunal should apply. This standard, as widely agreed, is whether the state in
question has relied on a self-judging clause in good faith.
In light of the important role that self-judging clauses play in mediating the relationship between international cooperation and unilateralism, as well as the growing role of formal dispute settlement in the international order, it is crucial that international dispute settlement bodies develop, from the rather malleable standard of good faith, a test that
provides an appropriate and acceptable balance between the recognized
need for self-determination, on the one hand, and international cooperation, on the other, that will allow both to flourish. Furthermore, the
standard has to ensure that international Courts and Tribunals do not
intrude into the domain of a state’s decision-making that it intended to
keep immune from external supervision. While a number of concretizations of the standard of review under good faith have been put forward,
many are either not sufficiently precise and do not describe a clearly tailored methodology that Courts and Tribunals can use in determining
whether a state has stayed within the outer limits established by the
good faith requirement, or ignore differences between self-judging and
non-self-judging clauses.
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Against this background, the present paper has suggested that international Courts and Tribunals should adopt, similar to the position
taken by Judge Keith in his Declaration in Djibouti v. France, an approach that focuses on the characteristic element of self-judging clauses,
namely the discretion accorded to states to favor domestic over international interests, by drawing on the grounds of judicial review for misuse
of discretion under domestic administrative law systems. Such an approach to reviewing the invocation by a state of a self-judging clause
would not lead an international Court or Tribunal to judge the substance of the decision made by the state. It would, however, allow review of whether the factual basis of the state’s decision was adequate
and properly investigated, whether the appreciation of the legal framework was correct and whether the prerequisites for the invocation of a
self-judging clause were met, for example, whether the protection of an
essential security interest was at stake. Furthermore, it would allow review of whether the state abided by the proper procedure and whether
it was guided in the exercise of discretion by relevant and pertinent considerations in accordance with the object and purpose of the selfjudging clause and its associated treaty.
Drawing such an analogy, it is argued, is an appropriate way of resolving the tension between a state’s discretion under a self-judging
clause with the other Contracting Parties’ interests in international cooperation. Indeed, analogies to domestic administrative law seem particularly apposite because at the heart of such domestic approaches to
reviewing discretionary decisions of administrations is, parallel to the
situation at the international level, the desire to ensure, under a system
that is faithful to the concept of the rule of law, an appropriate balance
between the effectiveness of the state’s decision-making and the protection of those affected by discretionary decision-making through judicial
review. Similarly, focusing on procedural grounds of review would prevent an international Court or Tribunal from overreaching into the domain states intended to guard against external review.
EU Law and UN Law in Conflict: The Kadi
Case1
Peter Hilpold
I.
II.
III.
IV.
V.
Introduction
The Origins of the Problem
The Kadi Case in Brief
EC Competence to Adopt Targeted Sanctions
The Clash between UN Sanctions and EU Fundamental Rights
1. General Introduction
2. The Binding Effect of Security Council Resolutions
3. The Different Approaches to Solve the Problems Portrayed
a. The ECJ
b. The Advocate General
c. The CFI
4. Conclusions
I. Introduction
Of all the cases treated by the European Court system in recent years,
the Kadi case is surely one of the most contentious. We have here the
very particular situation that both the judgment of the CFI (Court of
First Instance) and that of the ECJ (European Court of Justice) provoke
strong criticism while at the same time they deserve a certain degree of
approval. There is no straightforward way to state that one position or
the other is unconditionally correct. Only by taking recourse to rather
subjective and ideologically loaded concepts can this be achieved. This
loses sight of the real dimension of the problems involved and results in
an attempt to give general approval to a largely individual standpoint.
1
This contribution was mostly prepared during my stay as a Fernand
Braudel Senior Fellow at the European University Institute in Florence.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 141-182.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
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There are several reasons why the Kadi case has all the ingredients to
become a leading case in the EU judicial system without furnishing – in
itself – definite hints for the solution of the underlying problems. This
case concerns the interplay between UN law and EU law,2 a field
widely unexplored as yet. As the UN is beginning to take notice of the
individual not only as a bearer of human rights, but also as a subject to
be held directly responsible for his acts, at least in specific areas such as
counter-terrorism, the possibility of conflicts with EU law, for which
the steadily growing empowerment of the individual is a main trait, is
rising simultaneously.
This case puts to test the notion of supremacy, both of International
law and of European Community law.3 The fact that Kadi has been
hailed as a natural sequel to Van Gend en Loos4 is telling: the relationship between the international order and EU law is compared with that
of EU law and the law of Member States and in both cases EU law
should be supreme. But there is a difference: supremacy of EU law over
the law of Member States is a constitutive element for its autonomy and
effectiveness, at the same time leaving intact the integrity of the law of
the Member States. Supremacy of EU law over International law is potentially disruptive for the latter order.
The next issue that arises regards the question whether it is possible
at all to transpose the concept of supremacy, developed in a comparatively uniform if not monolithic system such as that of the EC to the
global scene which is characterised by fragmentation, ideological dissent and cultural clashes. If this should happen at all, should it be in a
balanced way (the approach taken by the CFI) or in a radical manner
2
3
4
In the following the term “EU law” is used as an overarching concept
comprising also EC law.
See on this subject A. Nollkaemper, Rethinking the Supremacy of International Law, Amsterdam Centre for International Law, Working Papers
2009, available at: <http://ssrn.com/abstracts=1336946>.
Case 26/62, 1963 ECR 1. See G. Harpaz, “Judicial Review by the European
Court of Justice of ‘Smart Sanctions’ against Terror in the Kadi Dispute”,
European Foreign Affairs Review 14 (2009), 65 et seq. See on the notion of
supremacy of EC law created by the ECJ in the cases Van Gend en Loos
and, more specifically, Costa/ENEL, U. Haltern, Europarecht – Dogmatik
im Kontext, 2005, 265 et seq. and B. De Witte, “Retour à ‘Costa’ – La primauté du droit communautaire à la lumière du droit international”, Revue
trimestrielle de Droit Européen 20 (1984), 425 et seq.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
143
(the road chosen by the ECJ)? This whole controversy also sheds new
light on the issue of international subjectivity of the individual.5
While this whole process is usually seen positively when the perspective of the individual as an actor on the international scene for the
defence of his human rights is taken, the attitude changes dramatically if
subjectivity accrues to the individual in view of the responsibility he has
loaded on himself. As is known, international criminal justice came to
life, rather recently, only after an extensive system of procedural guarantees had been created.6
If now the UN is creating a second layer of norms of individual international responsibility, albeit in a very limited area, the same problems arise. Can the suspect of terrorist activities be exempted from the
broad judicial guarantees created for the domestic area (be they of national or international provenance) as well as for the international one
(i.e. before international criminal tribunals)? What would be the legal
basis for such an exemption? Is there need, justification and legal leeway for compromise in this field?7
Clearly, the conflicts coming to the fore here are conflicts of jurisdiction. Prima facie, in a coordinated international system conflicts of
this kind should not arise. The picture changes if questions of hierarchy
and supremacy come in. In the Kadi case, hierarchy enters from many
angles. There is, at least according to some, hierarchy between different
legal systems: between the UN system and the EU order at the one
hand and between general legal orders (such as the UN and the EU)
and pure human rights systems such as that of the European Convention on Human Rights on the other. There is, further, hierarchy between various human rights provisions. Some rights are derogable, others are not, and if the concept of jus cogens is brought in, a concept
which is in itself an expression of norm hierarchy, the picture becomes
further complicated.
5
6
7
See M. Shaw, International Law, 2008, 45 et seq.
See M.C. Bassiouni, “The Proscribing Function of International Criminal
Law”, Yale Journal of World Public Order 9 (1983), 163 et seq.; P. Carter,
“International Criminal Law and Human Rights”, in: F. Butler (ed.), Human Rights Protection: Methods and Effectiveness, 2002, 135 et seq.; L.
Caflisch, “The Rome Statute and the European Convention on Human
Rights”, HRLJ 23 (2002), 1 et seq.
For an extensive examination of the issue of access to justice in international law see F. Francioni (ed.), Access to Justice as a Human Right, 2007.
Max Planck UNYB 13 (2009)
144
Hierarchy is also prominent in this case from a different perspective.
In fact, intra-institutional hierarchy between the CFI and the ECJ has
brought about a final decision in a dispute which is more political in nature than technical-legal. However, the different viewpoints remain in
place, as the underlying political question, in which many actors are involved, cannot be decided in a definite way by the EU alone. It is interesting to note that the CFI was prepared to show deference towards Security Council resolutions while the ECJ rejected any hierarchy between the UN system and the EU order, although it did not put the latter first. The first instance judgment was largely annulled by the ECJ,
not due to defects in the legal reasoning, but rather on the basis of a
completely different view of eminently political questions, which are
also of relevance from a European constitutional stance. Hierarchy has,
therefore, amplified the perspective on political aspects while allowing
at the same time the EC order to preserve consistency.
Finally, this case deserves particular attention because it evidences
the Scylla and Charybdis of modern human rights law and policy: on
the one side there is a strong pressure for ever more refinement of human rights protection. On the other, the question arises whether we
will reach the limits of human rights protection and whether new challenges, such as international terrorism acting through the means and
channels of a globalised world, could require, in some areas, a partial
reversal of this process.
II. The Origins of the Problem
At the root of the problem, publicised on a world-wide scale by the
Kadi case, stands the attempt by the Security Council to fight the challenge of terrorism more effectively and, paradoxically as it may sound,
more in line with generally recognised rules of human rights.8 Both aspirations led to the adoption of so-called targeted sanctions. With regard to the first aim, effectiveness, targeting is nothing else than the
adaption of the response to the changing nature of the challenge. In a
globalised world where terrorists act as if they were international sub-
8
See M. Craven, “Humanitarism and the quest for smarter sanctions”, EJIL
13 (2002), 43 et seq.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
145
jects it often9 no longer makes sense to look for a responsible home
country. The ever-growing accessibility of weapons on an international
scale, in a seemingly sovereignty-free dimension, and their potentially
enormous destructive power add further weight to the effectiveness argument.10 Effectiveness was, therefore, not considered as a trade-off
with regard to human rights protection when recourse to targeted sanctions was taken. Rather the contrary was the case. Targeting should reduce the human costs and render sanctions at the same time more effective. In fact, the undifferentiated application of sanctions against a
whole country raises, beyond the effectiveness problems mentioned before, serious human rights concerns.11 In particular if terrorists enjoy at
least some protection by their host state, sanctions often comprise their
interests less than those of the rest of the population. Situations can
arise where a country is virtually held hostage by a small group of terrorists and the whole country is suffering simply because the government is not willing or able to seize the terrorists. This may be a general
problem with sanctions in international law and perhaps it is even more
9
10
11
The situation is different where terrorists manage to find a conniving government or outrightly to penetrate the government as it was the case with
Al Kaida in Taliban governed Afghanistan.
In a certain sense this argument calls to mind the so-called Bush doctrine
arguing for the existence of a right to pre-emptive self-defence. See P. Hilpold, “Gewaltverbot und Selbstverteidigung – Zwei Eckpfeiler des Völkerrechts auf dem Prüfstand”, JA 38 (2006), 234 et seq. In both cases it is argued that the evolution of the modern weapons technology redefines
automatically the nature of the appropriate (and admissible) defence. The
obstacles these two situations meet are, however, quite different. Preemptive self-defence finds its natural border in Article 2 para. 4 of the UN
Charter and precisely there, where the limited exemption introduced by
Article 51 of the Charter no longer applies. Targeted sanctions find their
limit, as will be shown extensively in this contribution, in human rights. As
far as these human rights are considered to form a cornerstone of a specific
constitutional order again conflicts of jurisdiction and sovereignty between
UN law and the order of the respective entity can arise.
See A. Shehabaldin, “Economic sanctions against Iraq: human and economic costs”, International Journal of Human Rights 3 (1999), 1 et seq.; L.
Forlati, Les sanctions économique en droit international, 2004; A. Borghi,
“La législation de l’Union européenne en matière de sanctions internationales et sa compatibilité avec les droits fondamentaux”, Revue trimestrielle
des Droits de l’Homme 19 (2008), 1095 et seq.
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pronounced where a corrupt and criminal elite is stubbornly clinging to
power.12
It comes therefore as no surprise that the concept of targeting was
developed in exactly this type of situation, namely against the military
junta in Haiti.13 When officials of the Angolan rebel group UNITA
were targeted in 199714 the respective measures were directed against
members of a group which did not form part of the government but
which controlled nonetheless considerable parts of the Angolan territory. With regard to terrorists, however, targeting assumes a new aspect.
Terrorists may be hard to hit if they are not located in a specific territory and if they act detached from national borders. At the same time,
however, these circumstances render them also extremely vulnerable to
specific countermeasures. When Afghanistan became the breeding
ground for a new, particularly pernicious form of terrorism towards the
end of last century, the Security Council first began targeting terrorists.
The catastrophe of September 11, 2001 revealed the previously unknown dimension of the terrorist threat. Therefore, targeting became
generalised in the sense that it was no longer restricted to high level officials of the Taliban regime but it applied to all kinds of terrorists, both
inside and outside Afghanistan.15
Under the institutional perspective the so-called Sanctions Committee, also known as the “Al-Qaida and Taliban Sanctions Committee”,
established by para. 6 of SC Resolution 1267 (1999), gained particular
relevance.16 The respective Resolution was designed to hit the Al-Qaida
network at its very heart by the imposition, against designated indi12
13
14
15
16
This was the dilemma with the invasion of Iraq where – beyond the false
accusation that Saddam Hussein would support international terrorism or
plan the production of weapons of mass destruction – it cannot be denied
that the ruling elite perpetrated abhorrent crimes and remained totally unimpressed and untouched by international sanctions. In present days a
similar problem is arising with Zimbabwe under Robert Mugabe.
See S/RES/917 (1994) of 6 May 1994.
See S/RES/1127 (1997) of 28 August 1997.
See J. Almquist, “A Human Rights Critique of European Judicial Review:
Counter-Terrorism Sanctions”, ICLQ 57 (2008), 303 et seq. (306).
Committees of such a kind have been instituted before. In fact, the farreaching sanctions imposed against Iraq after the invasion of Kuwait made
it appear necessary to create a body to oversee the implementation of these
measures. To this end, by S/RES/661 (1990) of 6 August 1990, a Sanctions
Committee, composed of all Security Council Members, was created. See
M.N. Shaw, International Law, 6th edition, 2008, 1243.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
147
viduals or entities belonging to this network, of a freezing of their assets
as well as the imposition of a travel ban and an arms embargo. Of all the
individual sanctions regimes established,17 the one based on SC Resolution 1267 is the most far-reaching and innovative. As has been spelled
out in literature,18 it has the widest scope as it covers nearly half of all
the individuals and entities targeted by the Security Council, it is
mainly preventive in nature and it is one of the most prominent antiterrorist instruments set in force by the UN.
This sanctions regime has been modified several times over the recent years in order to make it, on the one hand, more effective and on
the other to take into account some basic human rights (of substantial
and procedural nature) of the targeted subjects. This sanctions regime
has been widely criticised as it was considered to be too harsh and
therefore unacceptable on several grounds. The Sanctions Committee
was not totally insensitive to this criticism but nonetheless the concessions made were not considered to be sufficient by many people. Thus,
Advocate General Poiares Maduro, in his Opinion in the Kadi case before the ECJ,19 qualified the consequences of the asset freeze as “potentially devastating.”20 The asset freezing has been compared to an act of
confiscation, the listing procedure as being in violation of the presumption of innocence and of some basic procedural rights such as the right
to a fair hearing and judicial review.21
17
18
19
20
21
The Sanction Committees with listings procedures which are currently operative can be found on the homepage of the UN Security Council. These
are the Committees for Sierra Leone (S/RES/1132 (1997) of 8 October
1997), Al Qaida and the Taliban (S/RES/1267 (1999) of 15 October 1999),
Iraq (S/RES/1518 (2003) of 24 November 2003), Liberia (S/RES/1521
(2003) of 22 December 2003), Democratic Republic of the Congo
(S/RES/1533 (2004) of 12 March 2004), Cote d’Ivoire (S/RES/1572 (2004)
of 15 November 2004), Sudan (S/RES/1591 (2005) of 29 March 2005),
Lebanon/Syria (S/RES/1636 (2005) of 31 October 2005) and North Korea
(S/RES/1718 (2006) of 14 October 2006).
See for more details, I. Johnstone, “Legislation and Adjudication in the UN
Security Council: Bringing Down the Deliberative Deficit”, AJIL 102
(2008), 275 et seq. (295).
See Opinion of 16 January 2008 in the Case C-402/05 P.
Ibid., para. 47.
See, for example, Nikolaos Lavranos in several contributions such as UN
Sanctions and Judicial Review, Nord. J. Int’l L. 76 (2007), 1 et seq. (17); E.
Cannizzaro, Machiavelli, the UN Security Council and the Rule of Law,
Global Law Working Paper 11/20905 and Almquist, see note 15, 309.
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The very reason for this criticism lies in the fact that the Sanctions
Committee, formally an executive organ with preventive functions, operates in many ways like a Criminal Court without however, providing
for similar guarantee. A look at the “Guidelines of the Committee for
the Conduct of its Work”22 reveals the main pitfalls of the sanctioning
procedure from a human rights perspective. These deficiencies regard
the way the Committee operates and decides: “The Committee will
meet in closed sessions, unless it decides otherwise.”23 Thereby, no
transparency as to the way the facts are assessed and legally qualified is
given. The deliberative process through which persons and entities are
listed and delisted, takes place behind closed doors.
“The Committee shall make decisions by consensus of its Members.”24
As is known, the consensus procedure finds broad application for
decision making in international organisations due to its sovereigntyfriendly nature. As each participating state can impede that a specific
decision is taken the interests of all parties involved find maximum protection.25 As soon as the main interests concerned are no longer those
of the participating states but of individuals it becomes questionable
whether the consensus procedure is the appropriate one. The consensus
procedure finds its best field of operation in the political area. The picture changes when technical questions such as the legal and the factual
assessment of a terrorist threat by individuals or entities are to be addressed. Both the listing as well as the delisting procedures reveal the
shortcomings of a deliberative process based on consensus. There may
be little interest by members of the Sanctions Committee to oppose the
proposal for listing of a person or an entity coming from another UN
Member State or even a member of the Security Council. On the other
hand, delisting based on consensus will meet formidable obstacles. It
suffices that one member of the Sanctions Committee adopts a more
22
23
24
25
Adopted on 7 November 2002, as amended on 10 April 2003, 21 December
2005, 29 November 2006, 12 February 2007, and 9 December 2008. These
Guidelines now reflect the improvements introduced by S/RES/1822
(2008) of 30 June 2008.
Para. 2 lit. (b).
Para. 3 lit. (a).
As is known, at present, with regard to WTO law, an intense discussion
takes place on the role of consensus for decision-making. See only C.D.
Ehlermann/ L. Ehring, “Decision-Making in the World Trade Organization”, JIEL 8 (2005), 51 et seq.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
149
rigorous approach in the fight against terrorism declaring himself satisfied with less substantiated allegations that delisting attempts will be
hard to succeed.
On the other hand, it is to be said that the relevant rules were not
applied in a static form over time. They were rather subject of continuous improvements. They represent now an ambiguous mixture of provisions which try hard to make some important concessions to the human rights community but at the same time they also make evident that
the whole original approach chosen by Resolution 1267 sets clear limits
to such concessions, so as to exclude that full compatibility with some
highly evolved human rights regimes, especially the European one, can
be achieved. Full compatibility would probably require a radical
amendment of Resolution 1267 or even its total abandonment. A good
example are the provisions on the “Consolidated List”. By this term it
is made reference to the fact that the list is a dynamic one. It has to be
adapted continuously by the listing of new subjects and entities and the
delisting of others. In the meantime, several precautions for the listing
procedure have been introduced, as results of the “Guidelines” of 9 December 2008.
The Consolidated List will be updated regularly and this List will be
made promptly available on the website of the Committee. Proposals
for new additions are made by Member States which are encouraged
“to approach the Stat(e) of residence and/or nationality of the individual or entity concerned to seek additional information.”26
“Member States should provide a detailed statement of case in support of the proposed listing that forms the basis of justification for
the listing in accordance with the relevant resolutions. The statement
of case should provide as much detail as possible on the basis(es) for
listing indicated above, including: (1) specific findings demonstrating the association or activities alleged; (2) the nature of the supporting evidence (e.g. intelligence, law enforcement, judicial, media, admissions by subject, etc.) and (3) supporting evidence or documents
that can be supplied. States should include details of any connection
with a currently listed individual or entity. States shall identify those
parts of the statement of case that may be publicly released [...] and
those parts that may be released upon request to interested States.”27
26
27
See para. 6 (c).
See para. 6 (d).
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As can be seen from these excerpts from the “Guidelines” several
guarantee mechanisms have been inserted in order to protect the interests of the persons and entities whose listing is under discussion. These
guarantees operate at the national level, when a thorough assessment is
required, at the interstate level, when the states involved are invited to
bilateral consultations and at the UN level when care is taken that detailed information on the case is available. Nonetheless, these guarantees do not match those foreseen before Criminal Courts (both national
and international). The qualification of these measures by the Sanctions
Committee as “preventive” is of little consolation as it is their objective
nature that has to be taken into consideration. As is known also, in national law preventive measures must be accompanied by far-reaching
guarantees if they involve personal rights. In any case, in view of the
fact that the effects of these measures are potentially very long lasting,
we are faced here with preventive measures of a sui generis character.
Initially, a listed subject had no individual means at hand to oppose
these measures. The respective individual or entity was totally dependent on the home state’s willingness to exercise diplomatic protection. In
the meantime, some accommodations have been introduced in this area.
A “Focal Point” has been instituted to which petitioners can directly
address requests for delisting.28 These requests are forwarded to the
governments of citizenship and residence which are encouraged to consult with the designating government(s). Afterwards they can decide
whether to recommend delisting. Alternatively, the petitioner can direct
his demand immediately to his state of residence or citizenship.29
In the end, the attitude taken by the state of residence or citizenship
is of decisive importance. The decision to forward a petition for delisting to the Sanctions Committee is, to a large extent, a political one and
may depend, to a considerable measure, on the political relations between the proponent state and the state of residence or citizenship. On
the whole, either directly or indirectly, we are faced here with a particular type of diplomatic protection. The specificity results from the fact
that the state which is asked to exercise diplomatic protection is under
considerable political pressure to make its decision dependant upon a
reasoning resembling a judicial process since the rights and interests at
issue require that at least some appearance of a criminal proceeding is
created. At the same time, on the political side, the question whether or
28
29
See para. 7 on “de-listing”. On the Committee’s website a standard-form
for de-listing can be found.
Ibid.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
151
not to grant diplomatic protection depends not only on considerations
of internal politics but, to a much larger extent, on international legal
and political commitments to fight terrorism more effectively. Therefore, at this stage, highly problematic trade-offs appear. Further, very
difficult balancing requirements arise, throughout the whole process of
sanction implementation as we will see later on.
As already mentioned, the main improvements have been brought
about by SC Resolution 1822 of 30 June 2008. It is apparent that the Security Council tried thereby to react to the strong criticism levelled
against this regime and to make it more palatable to the human rights
community. By 30 June 2010 a one-time review of all names that were
inscribed on the Consolidated List as of 30 June 2008 will have been
carried out.30 Afterwards it will be ensured that all names on the list are
reviewed at least on a three-year basis.31
The philosophy standing behind these and the other modifications
brought about by Resolution 1822 is given best expression by para. 28
of that document, where the Sanctions Committee is encouraged “to
continue to ensure that fair and clear procedures exist for placing individuals and entities on the Consolidated List and for removing them as
well as for granting humanitarian exemptions”. Furthermore this resolution “directs the Committee to keep its guidelines under active review
in support of these objectives.” However, neither the ECJ nor the human rights community were impressed by these concessions. On the
other hand, it could be argued that these modifications also showed,
that the Sanctions Committee itself was not absolutely sure of its case.
III. The Kadi Case in Brief
The Kadi case is currently surely one of the most discussed in international (and European) law literature in general and the factual elements
of this case do not therefore need to be rehearsed here in any detail.32 It
may be worth recalling some elements, however, for a the better under30
31
32
See para. 9 (a).
See para. 9 (b).
It is to be remembered that before the CFI a further analogous case was
considered, the Yusuf case and the findings of the CFI were in both cases
practically identical. As the Yusuf case was discontinued the ECJ ruled
only on Kadi and therefore the underlying legal problem is now prominently identified by this latter name.
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standing of the following. From 19 October 2001 Mr. Kadi, a wealthy
Saudi Arabian citizen with substantial economic interests in the European Union, found himself on the list of the Sanctions Committee. On
27 May 2002 this measure was transposed into the Community Order
by the usual two-tier approach: first the Council, acting within the 2nd
Pillar, adopted Common Position 2002/402/CFSP. By Commission
Regulation 881/2002 of the same day and acting on the basis of articles
60, 301 and 308 ECT, the EU sanctions regime, mirroring the relevant
Security Council provisions, was extended to Mr. Kadi.33 What this
meant for Mr. Kadi becomes clear from a look at article 2 of Regulation
No. 467/2001, to which the list with the terror suspects is added as an
annex:
“All funds and other financial resources belonging to any natural or
legal person, entity or body designated by the [...] Sanctions Committee and listed in Annex I shall be frozen.
No funds or other financial resources shall be made available, directly or indirectly, to or for the benefit of, persons, entities or bodies designated by the Taliban Sanctions Committee and listed in Annex I. Paragraphs 1 and 2 shall not apply to funds and financial resources for which the Taliban Sanctions Committee has granted an
exemption. Such exemptions shall be obtained through the competent authorities of the Member States listed in Annex II.”
Again in response to respective modifications of the sanctions regime at the UN level,34 the European Union eased its sanctions by
Regulation 561/200335 in the sense that the competent authorities of the
Member States were enabled to exempt, upon request, those funds or
economic resources from the sanctions regime that are deemed to be
necessary to cover basic expenses (for example for foodstuff, mortgage
and medicines), professional fees and extraordinary expenses.
By application lodged on 18 December 2001, Mr. Kadi brought an
action for annulment against Regulation 2062/2001 and 467/2001, in as
far as they related to him, before the CFI. The grounds for annulment,
on which the claim was based, referred essentially to the alleged viola33
34
35
See Commission Regulation (EC) No. 2062/2001 of 19 October 2001
amending Regulation No. 467/2001 (OJ 2001 L 277, 25). According to article 10(1) of Regulation 467/2001 the Commission can amend or supplement Annex I on the basis of determinations made by either the Security
Council or the Sanctions Committee.
See S/RES/1455 (2003) of 17 January 2003.
See also Common Position 2003/140/CFSP.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
153
tion of fundamental rights. Subsequently, the applicant also claimed
lack of competence to adopt Regulation Nos 467/2001 and 2062/2001
on the basis of articles 60 and 301 ECT. When Regulation 467/2001 was
repealed and replaced by Council Regulation No. 881/2002 (extending
the sanction again on Mr. Kadi) reference was made, as legal basis, also
to article 308 ECT. As a consequence, Mr. Kadi withdrew the new
ground for annulment but the Court nevertheless decided to consider
this question on its own motion.36 On 10 December 2001 a similar
claim was brought forward by Ahmed Ali Yusuf and the Al Barakaat
International Foundation, both also mentioned on the Consolidated
List.37 They also contested the lack of an adequate legal basis for the
adoption of Regulation No. 467/2001. The CFI dismissed all pleas in
law or argument.
Mr. Kadi, Mr. Yusuf and Al Barakaat appealed the respective sentences. Mr. Yusuf, however, having been struck from the list, abandoned
the appeal and following this, the two remaining cases were joined. The
appeal procedure considered, therefore, the Joined Cases C-402/05 P
(Kadi) and C-415/05 P (Al Barakaat). For reasons of simplicity, reference shall here mostly be made to the name of Mr. Kadi.
As already mentioned, the judgment by the CFI met with harsh
criticism, especially from the human rights quarter. The Opinion by
Advocate General Poiares Maduro proposed in these cases a radical revirement to the Court. In the end, the ECJ followed the Advocate General in most points.
On the whole, the judgments by the CFI and the ECJ as well as the
opinion by the Advocate General represent highly interesting (and for
many parts also highly complex) documents on pivotal legal and political issues at the intersection between international law and EU law. At
the same time they try to define the reciprocal relationship between
these two orders and – in the final analysis – the very foundations of
these orders themselves. At a time when much soul-searching is undertaken both among international and European lawyers about status and
perspectives of their field, the documents mentioned try to sum up the
discussion and to adopt clear positions. No present or future discussion
in this area can ignore these standpoints. Particular attention should be
paid to the human rights aspect which forms the material substance of
36
37
See the CFI judgment of 21 September 2005 in Kadi, Case T-315/01, 2005,
ECR II-3649, para. 60 et seq.
Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council
and Commission, 2005, ECR II-3533.
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the conflict between the orders involved. As will be shown, no easy solution can be found for this controversy and radical standpoints in this
context are, most probably, counterproductive even though they may
sound attractive from a political point of view. Most interestingly, the
picture changes somewhat, if a dynamic perspective is taken.
The Kadi case contains numerous elements for further discussion. If
one adopts a systematic approach, two main areas can be distinguished.
There is the issue of competence of the EC to adopt the contested regulation and there is the broad area of controversy regarding the status to
be attributed to UN Security Council Resolutions in the EU, in particular if questions of conflict with the acquis communautaire in the
field of human rights arise. Both areas are of enormous doctrinal relevance. For sake of space, only the second one can be examined in detail
here. A few words shall be dedicated, however, also to the first subject.
IV. EC Competence to Adopt Targeted Sanctions
Regulation No. 881/2002 imposing the contested sanctions against Mr.
Kadi was based on articles 60, 301 and 308 ECT. As is known, for a
long time the imposition of sanctions by the EC has raised the competence question. Originally, in an instrumental perspective, article 133 (at
that time article 113) ECT had been generally used as a competence basis.38 This approach led to much criticism.39 In fact, it goes without saying that political sanctions, pre-determined between the Member States
within the Common Political Cooperation (and therefore on the International Law level) have no immediate economic goal and therefore it
was considered to be doubtful whether the EC was competent in this
respect. To remedy this competence problem, with the Maastricht
treaty, which brought political cooperation under the roof of the European Union, a passerelle was created between the political determina38
39
See E.U. Petersmann, “Internationale Wirtschaftssanktionen als Problem
des Völkerrechts und des Europarechts”, Zeitschrift für Vergleichende
Rechtswissenschaft 80 (1981), 1 et seq. and C.D. Ehlermann, “Communautés européenes et sanctions internationales – une réponse à J. Verhoeven”,
RBDI 18 (1984), 96 et seq. (109).
See only T. Bruha, “Handelsembargo gegen Argentinien durch EWGVerordnung?”, Deutsche Verwaltungsrechtliche Blätter 1982, 674 et seq.
(677). On this controversy see also J.H.J. Bourgeois, “Commentary to Art.
113 ECT”, in: H. Groeben/J. Thiesing/C.D. Ehlermann (eds), Kommentar
zum EU-/EG-Vertrag, 3rd edition 1999, 802 et seq.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
155
tions on the Union level and the EC where the sanctions had to be materially adopted with apposite measures. Now, a clear competence for
the adoption of politically motivated sanctions by the EC, following a
corresponding Common Foreign and Security Policy Resolution, had
been created. On the basis of article 60 ECT urgent measures on the
movement of capital and on payments as regards third countries can be
taken. Article 301 ECT reflects political instrumental necessities of the
early 90s. In fact, sanctions are directed “to interrupt or to reduce, in
part or completely, economic relations with one or more third countries.” At that time, targeted or individual sanctions were not yet an issue and terrorist threats were not globalised. States were the only perpetrators of international wrongs and each individual act was attributed,
in its final consequence, to governments. Now that the nature of the
threat had radically changed, could the EC react nonetheless with the
traditional instruments on the basis of competence provisions created
by the Maastricht treaty?
Both the CFI and the ECJ answered in the affirmative to this question although their reasoning was cautious and formalistic, not to say
unconvincing and somewhat contorted. Reading the respective passages
one gets the impression that neither the CFI nor the ECJ were truly
convinced that a genuine EC competence was given in this case but
nonetheless they were prepared to go to great lengths to affirm such a
competence as this was the precondition to treat the issue of conflict between Security Council Resolutions and EU fundamental rights.
Both the CFI and the ECJ were of the opinion that for the adoption
of targeted sanctions by the EC it was necessary to have recourse not
only to articles 60 and 301 ECT but also to article 308. The path to
reach this conclusion was different, however. The CFI referred to the
consistency argument as set out in article 3 TEU. If the articles 60 and
301 ECT provide for the adoption of sanctions but prove to be insufficient to attain the objectives of the Common Foreign and Security Policy recourse to the additional legal basis of article 308 ECT is justified.40
This argument did not satisfy the ECJ for which the bridge created by
articles 60 and 301 did not extend to article 308 ECT which concerns
the realisation of objectives of the EC treaty and not of the EU treaty.41
This would run counter to the wording of article 308, violating the con-
40
41
Ibid., para. 127 and 128.
See the ECJ judgment in Joined Cases C-402/05 P and C-415/05 P, Kadi
and Al Barakaat of 3 September 2008, para. 197 et seq.
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stitutional architecture of the pillars structure and be in contrast with
the principle of conferred powers.
Nonetheless, the ECJ found the reference to article 308 to be justified, as “Articles 60 EC and 301 EC are the expression of an implicit
underlying objective, namely, that of making it possible to adopt
[CFSP] measures through the efficient use of a Community instrument.”42 On this basis, the limited ambit ratione materiae of those provisions could be extended by having recourse to article 308 ECT.43 CFI
and ECJ diverged, consequently, in their opinion on the effects of article 308 ECT. For the CFI this provision was able to cross the bridge between TEU and ECT created with articles 301 and 60 ECT. The ECJ,
on the other hand, denied that article 308 could operate on the interpillar level. The “implicit underlying objective” was already part of EC
law. Recourse to article 308 was only taken to enlarge the instrumental
tool. In a strict formalistic reading on the competence question, the ECJ
judgment seems to be more convincing than the CFI judgment. In fact,
it is doubtful whether the consistency argument can justify recourse to
article 308 ECT in order to import EU goals in the EC law system.
Only if it is assumed that the respective objectives are already part of
the EC law order can article 308 be used to adopt measures not foreseen
in EC law but necessary to attain these objectives.44
On the whole, this discussion appears to be over-formalistic and
risks losing sight of reality. The ECJ admits, at least indirectly, the
weakness of the whole approach when it adds, in para. 235 of the judgment, a final consideration on the importance of referring to article 308
from the viewpoint of democratic policy as thereby the European Parliament was enabled to take part in the decision-making process. Such
considerations can hardly be attributed legal relevance.
42
43
44
Ibid., para. 226.
Ibid., para. 216.
As is known, for article 308 ECT to apply, a further condition must be
given, namely that the respective measure relates to the operation of the
common market. Do targeted sanctions taken by the Member States possibly affect the common market in a negative way? This is hard to anticipate
but the answer in the affirmative by the ECJ in para. 230 of the judgment
seems to be, on a whole, correct, when it states that the multiplication of
national measures could have a particular effect on trade between Member
States, especially with regard to the movement of capital and payments.
Different national measures could furthermore create distortions of competition. The respective danger described by the ECJ seems to be not only
hypothetical but real.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
157
A more pragmatic and by far more convincing approach was taken
in this field by Advocate General Poiares Maduro. Even though the
ECJ has pursued a different approach, his reasoning merits some consideration for its soundness. According to him, there is no need to base
the contested regulation on article 308 ECT as article 301 represents a
sufficient basis for the adoption of targeted sanctions:
“By affecting economic relations with entities within a given country, the sanctions necessarily affect the overall state of economic relations between the Community and that country. Economic relations
with individuals and groups from within a third country are part of
economic relations with that country: targeting the former necessarily
affects the latter. To exclude economic relations with individuals or
groups from the ambit of ‘economic relations with ... third countries’
would be to ignore a basic reality of international economic life: that
the governments of most countries do not function as gatekeepers for
the economic relations and activities of each specific entity within their
borders.”45
This is probably the most appropriate viewpoint. To say that reference to “third countries” in article 301 excludes individual sanctions
from the purview of this norm is hardly justified. In fact, it is obvious
that this sanctions regime is closely related to that of the United Nations on the basis of Chapter VII. If this latter regime develops further
on the instrumental level there is no reason to interpret the former in a
static way. This holds true in particular if one considers that the reference to “third countries” points out that these measures take place on
the external, international level as opposed to the internal, Communitarian one – nothing more and nothing less.
As soon as the Treaty of Lisbon enters into force, this question will
definitely be solved in the sense proposed by Advocate General
Maduro: according to article 215 para. 2 of the Treaty on the Functioning of the European Union the Council will be enabled to adopt restrictive measures also against individuals. On the other hand, the new article 352 (which replaces article 308 TEC) excludes that this provision
can serve as a basis for attaining objectives pertaining to the CFSP. In
the field of targeted sanctions there will be no more need to do so.
45
See the Opinion by Advocate General Poiares Maduro, C-402/05 P, 16
January 2008, para. 13.
Max Planck UNYB 13 (2009)
158
V. The Clash between UN Sanctions and
EU Fundamental Rights
1. General Introduction
The fight against terrorism has put human rights protection under
strain in many countries. While in the immediate aftermath of 9/11
nearly any reaction to this threat seemed to be justified, in the meantime national and international institutions responsible for upholding
the rule of law have, to a considerable extent, regained control of the
situation.46 Nonetheless, the particularity of the terrorist threat and its
immediate impact on public security and fundamental rights cannot be
denied. Each legal order which has to provide, at the same time, for security and for the respect of human rights, has to undertake some balancing based on a complex reasoning. The need to protect national security may justify some limitations of fundamental rights. At the same
time, however, these limitations may not go beyond what is strictly
necessary to achieve this goal and it must also be assured that nonderogable rights are not jeopardised.47 There can be no doubt that the
need for such a balancing is, as such, universal while the specific way
the balancing has to take place has to be determined by each legal order
autonomously. But what if various legal orders collide and the compromises found in the different systems diverge? Here the aspect of hierarchy comes in although without being able to provide a solution. In
fact, as will be shown, the formal superiority of UN law is contrasted in
this case by a claim of substantial and moral superiority of EU fundamental rights. Conflict can be solved in this area only if the opposing
rights are structured vertically but the way this shall happen depends on
value judgments that can hardly be second-guessed by objective criteria.
Most astonishing at all, in a dynamic perspective, it is not even clear
whether the security-preference or the human rights-preference really
46
47
See “The Supreme Court and the War on Terrorism”, ASIL 101 (2007), 339
et seq.; “Counter-Terrorism Strategies, Human Rights and International
Law: Meeting the Challenges”, NILR 54 (2007), 571 et seq.; Lady Justice
Arden, “Human Rights and Terrorism”, in: S. Breitenmoser et al. (eds),
Human Rights, Democracy and the Rule of Law, Liber amicorum Luzius
Wildhaber, 2007, 21 et seq.; O. Fiss, “The War Against Terrorism and the
Rule of Law”, in: ibid., 1239 et seq. In the US, as is known, a watershed decision was Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
See Justice Arden, see note 46, 38.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
159
are best suited to attain the purported goal, as both goals are strongly
interrelated. In the end, doubts arise whether it is really the conflict between the two mentioned goals that has given rise to this controversy
between the two international institutions or rather a power struggle
between them.
2. The Binding Effect of Security Council Resolutions
One of the most fundamental issues of this whole controversy was the
question of the ultimate basis and the very extent of the Community
Courts’ jurisdiction on the sanctions provisions. The main elements of
this problem are the following. There can be no doubt that the contested sanctions provisions find their ultimate source in Security Council resolutions, at least at the factual level. From a legal point of view
this raised the question what were the effects of these resolutions on the
EU/EC legal order as neither the EU nor the EC are members of the
United Nations. On the other hand, all EU members are UN members
and they are surely bound by Security Council resolutions. According
to Article 25 of the UN Charter, “[t]he Members of the United Nations
agree to accept and carry out the decisions of the Security Council in
accordance with the present Charter.” While it is uncontested that not
all pronouncements of the Security Council are binding on Members
States,48 the wording of the respective Security Council Resolution
leaves no doubt as to the fact that such effects are here intended and
48
See J. Delbrück, “Commentary to Art. 25 of the UN Charter”, in: B.
Simma (ed.), The Charter of United Nations, Vol. I, 2002, 452 et seq., para.
4 and E. Suy/ N. Angelet, “Commentary to Art. 25 of the UN Charter”,
in: J.P. Cot/ A. Pellet, La Charte des Nations Unies, 2005, 909 et seq. (912
et seq.). See also the following passage in the ICJ’s 1971 Namibia Advisory
Opinion: “The language of a resolution of the Security Council should be
carefully analysed before a conclusion can be made as to its binding effect.
In view of the nature of the powers under Article 25, the question whether
they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading
to it, the Charter provisions invoked and, in general, all circumstances that
might assist in determining the legal consequences of the resolution of the
Security Council”, (ICJ Reports 1971, 16 et seq. (53)). See on the interpretation of Security Council Resolutions in general M.C. Wood, “The Interpretation of Security Council Resolutions”, Max Planck UNYB 2 (1998),
73 et seq.
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given.49 As already mentioned, the EU (or, respectively, the EC) are not
members of the United Nations. Why then, should this entity be bound
by Security Council Resolutions?
The CFI gave a dogmatically convincing explanation as to why this
should be the case. The Court re-discovered the old theory of substitution successfully employed in International Fruit50 to explain why the
Community should be bound by the GATT, even though it had never
become a member. In fact, by concluding the EEC treaty Member
States could not transfer to this institution more power than they possessed or withdraw from their obligations to third countries under that
Charter.51 As the Member States have passed competences they have
held formerly themselves to the Community, the corresponding obligations should equally be assumed by the Community.52 This was an interesting attempt to attribute broader significance to a theory that up to
that moment was used to apply only in the very specific GATT framework. Seen abstractly, the concept of substitution could be extremely
useful to solve the ever more common problems where the Community
enters, at least de facto, into contractual positions (or even positions of
membership) with their members. Shortly after the CFI judgment,
however, the ECJ has pointed out in the Intertanko case that for the
concept of substitution to apply very strict conditions have to be fulfilled.53 In particular, it is required that the Community has assumed all
the competences previously exercised by the Member States.54
In the following, neither the Advocate General nor the ECJ referred
to this concept. Seemingly, there was no need to do so as they chose a
strictly dualistic approach. In reality, however, this question remained
unresolved. If the Member States no longer exercise their competences
fully in this field, the Community has to accept the respective responsi-
49
50
51
52
53
54
See only S/RES/1822 (2008) of 30 June 2008, where it is stated that the Security Council, “[a]cting under Chapter VII of the Charter of the United
Nations, [...] [d]ecides that all States shall take the measures as previously
imposed by paragraph 4(b) of resolution 1267 (1999), paragraph 8(c) of
resolution 1333 (2000), and paragraphs 1 and 2 of resolution 1390 (2002)
[...]”.
Joined Cases 21/72 to 24/72, ECR 1972, 1219, para. 11.
Judgement of the CFI in Case T-315/01, Kadi, 21 September 2005, 195.
See, in this regard, P. Hilpold, Die EU im GATT/WTO-System, 3rd edition
2009, 112 et seq.
See C-308/06, Intertanko, Judgment of 3 June 2008, para. 48.
Ibid., para. 49.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
161
bility and also to ensure, on the basis of article 10 ECT, that the Member States do not incur responsibility.
Article 25 of the Charter is, in this case, closely connected with Article 103, according to which, “[i]n the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.”
While the English text of this provision may give rise to some
doubts as to the extent UN law prevails, from the French text (“obligations [...] en vertu de la présente Charte”) it results very clearly that not
only the Charter itself falls under Article 103 but all (binding) UN law,
and therefore also Security Council resolutions.55
In any case, and leaving aside also the question of substitution, EU
Member States remain directly obliged by SC resolutions on the basis
of Article 25 and this obligation assumes prevalence over any other obligation. From the Community perspective, account is taken of this hierarchical relationship between UN law and EU law by article 307
ECT, according to which “[t]he rights and obligations arising from
agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on
the one hand, and one or more third countries on the other, shall not be
affected by the provisions of this Treaty.”
The CFI interpreted Article 103 of the Charter in combination with
article 307 ECT in the traditional, very far-reaching sense, according to
which the European Union is an open, international institution which
attempts not only to closely adhere to international law in general and
UN law in particular but also to promote respect for this law on a
world-wide scale. Accordingly, it came to the conclusion that “reference to infringements either of fundamental rights as protected by the
Community legal order or of the principles of that legal order cannot
affect the validity of a Security Council measure or its effect in the territory of the Community.”56
In only one case, according to the CFI, this prevalence does not take
place: Security Council resolutions “must observe the fundamental per-
55
56
This is also the prevailing view in literature. See R. Bernhardt, “Commentary to Art. 103 of the UN Charter”, in: Simma, see note 48, 1292 et seq.
(para. 9) and J.M. Thouvenin, “Commentary to Art. 103 of the UN Charter”, in: Cot/ Pellet, see note 48, 2133 et seq. (2135).
See Case T-315/01, Kadi, Judgment of 21 September 2005, para. 224.
162
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emptory provisions of jus cogens.”57 This statement has been widely
criticised but a look at previous literature reveals that this position is in
line with prevailing doctrinal pronouncements. In fact, it is generally
argued that the powers by the Security Council are not unlimited, even
though in practice it will neither be easy to define these limits nor to
make sure that they are effectively obeyed.58
Advocate General Maduro, however, did not accept the general untouchability of obligations assumed before the entry into the Community. He introduces instead a new limitation to the effects of this provision, not explicitly foreseen in the Treaty. In fact, according to him, obligations for Member States, carried into EU-membership on the basis
of article 307 ECT, cannot prevail over obligations resulting from article
6(1) EU.59 It appears that Maduro wanted this rule to apply unconditionally. There seemed to be no need and no possibility to differentiate
between core human rights and derogable rights. He adds the following
statement: “Certainly, extraordinary circumstances may justify restrictions on individual freedom that would be unacceptable under normal
conditions.”60 In the Opinion however, no concrete consequences of
this statement can be discerned.61
The ECJ formulates these limitations to article 307 ECT in an even
more restrictive way:
“Article 307 EC may in no circumstances permit any challenge to
the principles that form part of the very foundations of the Com57
58
59
60
61
Ibid., para. 230.
See Bernhardt, see note 55, who refers to the erga omnes-concept (which is,
as is known, close to, though not identical with jus cogens): “The present
author [Rudolf Bernhard] holds the opinion that in case of manifest ultra
vires decisions of any organ, such decisions are not binding and cannot
prevail in case of conflict with obligations under other agreements”, ibid.,
para. 23. He continues, however, with the following admission: “But the
borderline is difficult to draw”, ibid.
See the Opinion by Advocate General Maduro in Case C-402/05 P, Kadi,
of 16 January 2008, para. 31.
Ibid., para. 35.
Both in the Opinion by the Advocate General as in the judgment by the
ECJ we find several acknowledgments of the importance of international
law. This does not, however, amount to much more than to lip-service. See
A. Gattini, “Joined cases C-402/05 P & 415/05 P, Yassin Abdullah Kadi, Al
Barakaat International Foundation v. Council and Commission, judgment
of the Grand Chamber of 3 September 2008”, CML Rev. 46 (2009), 213 et
seq. (226).
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
163
munity legal order, one of which is the protection of fundamental
rights, including the review by the Community judicature of the
lawfulness of Community measures as regards their consistency
with those fundamental rights.”62
On this basis pre-accession obligations are trumped not only by
fundamental rights obligations but by the whole corpus of the “very
foundations of the Community legal order”, a potentially very broad
set of norms and in any case a concept far from being clearly defined.63
3. The Different Approaches to Solve the Problems Portrayed
a. The ECJ
In the exposition so far it has already been mentioned that the factual
conflict of norms can be solved, in the present case, through different
approaches.
Before treating these views in detail it should be made clear that
conflict arises primarily if the relationship between the EC law order
and international law is explained, at least in principle, in monistic
terms. In the past, this has been in fact the prevailing perspective when
this relationship was examined.
If a dualistic perspective is adopted, conflict may arise only if the respective legal orders are reciprocally connected whereby the norms of
one system enter into the other causing legal incompatibilities. Such a
situation may be provoked through article 307 ECT even if the relationship between EU law and international law is interpreted as dualistic. In fact, international law obligations previously assumed by the
Member States can cause, as shown above, conflict with EC provisions.
This was the approach taken by the ECJ and this seems remarkable for
62
63
See the Judgment in Joined Cases C-402/05 P and C-415/05 P, Kadi and Al
Barakaat, 3 September 2008, para. 303.
This new attitude strongly reduces the status of pre-accession agreements
in comparison to the previous jurisprudence. In particular, in Centro-Com,
the ECJ had admitted that provisions of such agreements can even trump
primary law if the respective agreement requires such a derogation from
the respective Member State. For N. Lavranos the “very foundations of the
Community legal order” constitute, therefore, “supra-constitutional law”.
See N. Lavranos, The impact of the Kadi-judgment on the international obligations of the EC Member States and the EC, 5 (on file with the author).
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two reasons. First of all, the adoption of a dualistic view represents, per
se, an important change with respect to the attitude taken by the ECJ in
the past.64 It is clear that the ECJ could not officially adhere to a position of radical dualism and therefore it had to admit, at least in principle, that former international law obligations by the Member States
could prevail over actual community obligations.65 The ECJ managed,
however, to find a justification for a derogation taking reference, on the
one hand, to a formalistic approach. For the ECJ the UN treaty is nothing else than a typical international agreement. This Court does not explain why this agreement should be applicable to the EU (or the EC),
for example through the theory of substitution, but in any case this law
could operate, according to article 307 ECT, only between primary law
and secondary law.66 Prevalence of UN law over primary EU law is,
therefore, in any case excluded.
Furthermore, the ECJ based its reasoning on the concept of the
“very foundations of the Community legal order.”67 The extent of this
derogation constitutes the second most remarkable aspect. In fact, on
closer inspection, it becomes clear that the ECJ did not want to find
derogations of an exceptional character to the effects of UN law within
the EU but rather to take recourse to a hegemonistic position whereby
the relevant EU standards should not only become underogable but
rather extend beyond the closer border of its legal realm. The ECJ did
not squarely and exclusively refer to fundamental rights protection
when it attempted to justify the EU “Sonderweg”. There would have
been the following risk with this approach. As is known, fundamental
rights are now defined more and more internationally. No state can
claim to be the prevailing source for the development of these rights,
and even less, claim any sort of leadership with regard to the implementation of these rights. It would not have been easy to explain why fundamental rights protection in the EU is so different to other parts of the
world and why the UN, itself having as one of its main objectives the
promotion of human rights, should become a primary threat to human
rights protection within the European Union. Reference, on the other
hand, to the “principles that form part of the very foundations of the
64
65
66
67
Which was, as mentioned above, characterised by a will to follow a “moderate monism”.
See the Judgment in the Joined Cases C-402/05 P and C-415/05 P, Kadi and
Al Barakaat, 3 September 2008, para. 301.
Ibid., para. 307.
Ibid., para. 304.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
165
Community legal order” (“one of which is the protection of fundamental rights”) evidences that the EU legal order is as such of a sui generis
character that commands international respect. Fundamental rights protection is only an element, albeit surely an important one, of this corpus
of norms that the state community must accept or, even more preferably, emulate.
Seemingly dualistic, if thought through to the end, this approach
would lead to an awkward result. Although, of course, the ECJ does
not become specific about this, the underlying philosophy can be interpreted as a return to monism, albeit a very particular one. It is again a
form of a moderate monism, but this time the leading norm is not the
international but the European one, at least insofar as fundamental
rights are concerned. In this field (and in some others which would still
have to be specified), the EU seems to have the ambition to show the
way to the international community.68
The ECJ has missed the opportunity to reach the same result by an
internationalist argumentation. In fact, the human rights principles the
ECJ claims to fight for, are not exclusive to the EU but are well
founded in the “International Bill of Rights”. The ECJ would have had
a good point if it had stated that also the Security Council is bound by
these provisions in the exercise of its powers.69
It could be the case, however, that the ECJ deliberately avoided this
approach for the following reasons:
Arguing this way the ECJ would have adopted a universalist perspective, syndicating thereby directly upon the behaviour of UN
organs. It might have seemed safer to the ECJ not to enter into the
area of international law with all its dogmatic uncertainties but to
rely simply on the self declared autonomy and specifity of the EU
legal order.
The ECJ might have wanted to assert and further develop the new
concept of the “very foundations of the Community legal order”.
68
69
Christian Tomuschat has pointedly reformulated the old German dictum
“Am Deutschen Wesen soll die Welt genesen” (which stands for the old
imperialistic attitude of the German empire) to “Am Europäischen Wesen
soll die Welt genesen”. See C. Tomuschat, “Challenging EU CounterTerrorism Measures through the Courts”, handout at the workshop organised by Marise Cremona, Francesco Francioni and Sara Poli on 19 December 2008 at the European University Institute (manuscript on file with the
author).
See Nollkaemper, see note 3, 25.
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166
This would be, however, tantamount to a deliberate challenge to the
international legal order. Should this have been the real motivation
behind the ECJ’s attitude, this Court would be ill-advised to further
pursue this road in view of the disruptive consequences for the international order it entails.70
b. The Advocate General
Although it is generally held that the ECJ followed the Advocate General’s Opinion in this main part, on closer examination it becomes clear
that the dogmatic attitude is somewhat different. In fact, the Advocate
General follows an approach of radical dualism. The EU legal order and
the international legal order are two totally different systems operating
at completely diverse levels. Each legal order is self-contained. Any legal question has to be answered exclusively and conclusively on the basis of the respective order. As a consequence, however, the question
arises whether the final consequence of this attitude amounts to an outright denial of international law. The possibility of Member States incurring international responsibility for not giving effect to Security
Council resolutions is admitted, at least indirectly, but the consequences
of such a situation are significantly downplayed. The term “international responsibility” is first avoided. Instead the Advocate General
speaks of “certain repercussions” and of “inconvenience”: “Of course,
if the Court were to find that the contested resolution cannot be applied
in the Community legal order, this is likely to have certain repercussions on the international stage.”71 The consequences which the Advocate General draws from this situation appear, however, somewhat surprising: “It should be noted, however, that these repercussions need not
necessarily be negative. They are the immediate consequence of the fact
70
71
Marjorie Beauley has forcefully written about a danger of an “application
particulière des normes internationales” and of a “morcellement du droit
international”. See M. Beauley, “Les Arrêts Kadi et Al Barakaat International Foundation, Réaffirmation par la Cour de Justice de l’Autonomie de
l’Ordre Juridique Communautaire vis-à-vis du Droit International”, Revue
du Marché commun et de l’Union européenne 524 (2009), 32 et seq. (39).
For a different view according to which it is the UN which has “lost sight
of human rights”, see K. Schmalenbach, “Bedingt kooperationsbereit: der
Kontrollanspruch des EuGH bei gezielten Sanktionen der Vereinten Nationen”, Juristenzeitung 64 (2009), 35 et seq. (41).
See the Opinion by Advocate General Maduro in Case C-402/05 P, Kadi,
of 16 January 2008, para. 38.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
167
that, as the system governing the functioning of the United Nations
now stands, the only option available to individuals who wish to have
access to an independent tribunal in order to obtain adequate protection
of their fundamental rights is to challenge domestic implementing
measures before a domestic court.” It seems that here the Advocate
General has the long term consequence of the EU’s attitude in mind.
He is confident that this position will ultimately bring about a change
on the international level. In comparison to these higher goals, the immediate consequences for the EU and its Member States can be neglected. These consequences consist anyway in mere “inconvenience”.
The fact that disregard for Security Council resolutions will lead to international responsibility of the Community and its Member States is
finally acknowledged but this is portrayed as having no immediate relevance for the European Union:
“While it is true that the restrictions which the general principles of
Community law impose on the actions of the institutions may inconvenience the Community and its Member States in their dealings
on the international stage, the application of these principles by the
Court of Justice is without prejudice to the application of international rules on responsibility or to the rule enunciated in Article 103
of the UN Charter.”72
The Advocate General is quite consistent in his opinion that the ECJ
should assess cases before it only on the basis of EU law whereby the
protection of fundamental rights assumes paramount importance. Respect for international law is desirable but from this no legal implications arise. For this reason the Advocate General does not accept the
distinction made by the CFI between sanctions adopted as a measure
undertaken in order to implement a Security Council resolution and
sanctions adopted autonomously.73 For the CFI the latter were subject
to full review, while for the former, the mandatory character of the implementation excluded such a review. The Advocate General, on the
contrary, did not bother about international responsibility. If the con-
72
73
Ibid., para. 39.
In the OMPI case (Case T-228/02, Organisation des Modjahedines du peuple d’Iran, 2006, ECR II-4665) the CFI, with the judgment of 12 December
2006, annulled a Council decision implementing Regulation (EC)
2580/2001 on specific restrictive measures adopted autonomously and directed against certain persons and entities with a view to combating terrorism. Absent any “circumscription of powers” by UN measures the right to
a fair hearing came to a full bearing.
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sequence is the violation of international law this happens in a different
world and the impression is created that this is a question of politics
and not of law. Such an attitude undermines, however, the prevailing
perception of international law as a legal order which may differ from
the national legal order under many considerations but not with respect
to its qualification as law.74
Eventually, such a form of radical dualism may render international
law invisible. The national order (or the EU order) does not have to
care about international law which is relegated to a minor role, to “soft
law” more of a political than a legal character. Ultimately, this position
resembles the one taken by Hegel who qualified international law as
“external State law”.75
In EU terminology, the states (and, at least indirectly, the EU) reassert their role as “masters of the (international) law”. In this the EU neglects the way the rules, which this institution now purports to defend,
have come about. Only an extensive limitation of national sovereignty
and deference towards international rule creating processes (whether institutionalised or not) have permitted the creation of a broad international human rights system.76 Has the time now come to delink the
separate national fundamental rights formation process from its international sources? True, it may be observed that a general process intended
to re-nationalise the human rights discussion which is under way. National fundamental rights institutions and protection mechanisms have
become so strong that international rules often lose visibility.77
Nonetheless, they still assume not only the role of a “second constitutional entrenchment”78 for the effective long-term protection of fun-
74
75
76
77
78
See P. Malanczuk, Akehurst’s Modern Introduction to International Law,
1997, 5 et seq.
See G.W.F. Hegel, Grundlinien der Philosophie des Rechts, 1821, 330 et seq.
See R.A. Falk, “A Half Century of Human Rights – Geopolitics and Values”, in: R. Falk et al. (eds), Human Rights, Vol. I, 2008, 51 et seq.
In this context the growing number of so-called “National Human Rights
Institutions”, in: Europe has to be mentioned. See G. de Beco, “National
Human Rights Institutions in Europe”, Human Rights Law Review 7
(2007), 331 et seq.
As is known, this term was coined by Frieder Roessler when he tried to
characterise the function of GATT law with respect to the protection of
economic rights guaranteed by national constitutions. For an extensive
elaboration on this concept see also E.U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law: Interna-
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
169
damental rights but it is also said that the main driving force for the further development of international human rights is situated on the international law level. It seems to be rather dangerous, at least at this stage
of development of fundamental rights protection, to cut through the
umbilical cord between the national and the international law development in this field.
c. The CFI
In comparison to the positions taken by the Advocate General and the
ECJ the judgment by the CFI seems far more sophisticated in its attempt to moderate between the parties involved and to pay tribute to
their respective interests to the greatest possible extent. As will be
shown in the following, the CFI was not insensitive to the needs of the
individuals but at the same time this Court tried to stay within the
open, international law-friendly tradition which has been characteristic
of EU integration since its inception. For the CFI, this meant that the
EU had to accept the supremacy of UN law, the binding force of Security Council resolutions and the need to make trade-offs in the field of
fundamental rights for the sake of security reasons while at the same
time staunchly defending the core of fundamental rights in the EU.
To attain all these goals the CFI had recourse to the concept of jus
cogens. This was really a courageous undertaking since this concept, attractive and promising as it may be, is far from a consensual definition.
While in the past the need for this concept was mainly grounded on
natural law considerations79 the prevailingly positivist perspective on
international law has not rendered this concept superfluous, quite the
contrary. In an international order whose ultimate basis is found in consensus the acceptance of jus cogens allows the structuring of international obligations according to their intrinsic value to the state community. While a mere consensualist approach could play in the hands of its
most potent members or induce the members of this community to sacrifice the long-term good for the immediate gain, recourse to the jus cogens principle gives structure akin to a constitutional system to the
79
tional and Domestic Foreign Trade and Foreign Trade Policy in the United
States, the European Community and Switzerland, 1991.
See i.a. A. Verdross, “Forbidden Treaties in International Law”, AJIL 31
(1937), 571 et seq. (572) who looked for the moral foundations of this order: “[...] never can the immoral contents of a treaty really become law no
matter how often it may borrow the external form of the law”, ibid., 577.
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whole order and it is, in particular, suited to empower the individual
towards the state.80 As is known from programmatic principles in national constitutions jus cogens is a much too unwieldy and imprecise
concept to be easily implemented through the judicial process.81 This is
not necessarily a drawback as the jus cogens principle must necessarily
remain, to a certain extent, flexible, open and vague in order to accommodate new developments, to avoid being contrasted due to specific
technical incompatibilities with national provisions and to remain close
to politics as it is there where legislative improvements are decided. By
its mere existence this concept can provide an important argumentative
tool for the furtherance of basic human rights, for the strengthening of
the international peace order and in general for the consolidation of
community values that seem to be essential for the establishment of an
international rule of law.82
In principle, jus cogens should also furnish a formidable tool for
both extending the powers of the Security Council as far as it seems
necessary to comply with the ever-growing demand for security and
protection83 and to de-limit, at the same time, these powers in order to
make sure that no abuse or ultra vires action takes place. The guaranteed, power-delimiting force of jus cogens in front of Security Council
80
81
82
83
The literature on jus cogens is very extensive. See, i.a., L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, 1988; G. Gaja, “Jus cogens beyond the Vienna Convention”, RdC 172 (1981), 271 et seq. (283); S.
Kadelbach, Zwingendes Völkerrecht, 1992 and P. Picone, “La distinzione
tra norme internazionali di jus cogens e norme che producono obblighi
erga omnes”, Riv. Dir. Int. XCI (2008), 5 et seq.
The practical implementation of this principle encounters A. Paulus, “Jus
Cogens in a Time of Hegemony and Fragmentation – An Attempt at a Reappraisal”, Nord. J. Int’l L. 74 (2005), 297 et seq. who refers also to a muchquoted phrase by Ian Brownlie according to which “the vehicle does not
often leave the garage”, ibid., 330.
See for these community interests B. Simma, “From Bilateralism to Community Interest in International Law”, RdC 250 (1994), 217 et seq.
See, in this context, the attempts to give life to the new concept of a “responsibility to protect”. See, i.a., P. Hilpold, “The Duty to Protect and the
Reform of the United Nations – A New Step in the Development of International Law,” Max Planck UNYB 10 (2006), 35 et seq.; E.C. Luck, “Der
verantwortliche Souverän und die Schutzverantwortung”, Vereinte Nationen 56 (2008), 51 et seq. and C. Focarelli, “La dottrina della ‘responsibilità di proteggere’ e l’intervento umanitario”, Riv. Dir. Int. 91 (2008), 317
et seq.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
171
resolutions was clearly highlighted by Judge ad hoc Elihu Lauterpacht
in the Genocide case/Provisional measures before the ICJ in 1993:
“The concept of jus cogens operates as a concept superior to both
customary international law and treaty. The relief which Article 103
of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot
– as a matter of simple hierarchy of norms – extend to conflict between a Security Council resolution and jus cogens. Indeed, one
only has to state the opposite proposition thus – that a Security
Council resolution may even require participation in genocide – for
its unacceptability to be apparent.”84
The respective case does not, however, bode well for the fate of attempts to delimit the Security Council’s power in specific situations. In
fact, as is known, Bosnia-Herzegovina did not succeed in its attempt to
obtain a lifting of the arms embargo imposed by the Security Council,
even though this embargo curtailed to a considerable extent the ability
of this entity to protect its people against ongoing acts of genocide.85 It
can hardly be argued that the Security Council was totally insensitive
towards the need to protect these people but it came to the conclusion
that the limitation of the availability of arms for all sides involved
would be the most effective and realistic reaction by the State Community. This attitude can be strongly criticised from a political perspective.
It is highly probable – though not absolutely certain – that a different,
more interventionist approach by the Security Council (or the ICJ)
could have saved many lives and have impeded the deterioration of a
situation whose appalling details have been made official by various
proceedings before the ICTY and in the Genocide proceeding started
by Bosnia against Serbia.86
Nonetheless, even if the Security Council (and, to a certain extent,
also the ICJ) deserves criticism or even outright condemnation for its
attitude it will be difficult to assert that it violated a jus cogens rule. In
84
85
86
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, 8 April 1993, ICJ, Provisional Measures, Sep. Op. Lauterpacht, ICJ Reports 1993, 440, para. 100.
See on this subject also A.M. Weisburd, “The Emptiness of the Concept of
Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina”, Mich. J.
Int’l L. 17 (1995), 1 et seq.
See Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro,
Judgment of 26 February 2007.
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fact, conflicting values had to be taken into consideration and even if
one were to rank human rights first the dispute as to how to best attain
the protection of these rights will continue with the security aspects always playing a dominant role.
Exactly this problem re-surfaced in the Kadi case. The CFI did its
best to find its way through the surrounding intricacies and to do justice to all the interests involved. In this perspective, this judgment is far
more integrative and balanced than the judgment by the ECJ. Building
on the internationalist tradition of the ECJ, the CFI tried to find a compromise between goals and aspirations coming from both inside and
outside the EU which are not only evidently conflicting on the legal
level but also emotionally loaded in a very pronounced way.
According to the CFI the EU acted under “circumscribed powers”.
It was not empowered to second-guess Security Council resolutions
and, accordingly, the relating implementation measures. Only where the
Security Council had itself violated peremptory norms could the Community institutions disregard the respective obligations. This attitude
had far-reaching consequences. It implied, first of all that a solution had
been found to the long lasting controversy as to the effects of jus cogens
violations in the sense that an act affected by such a flaw should be considered as non-existent. For a European Court such as the CFI to come
to such a definitive conclusion was a bold step.
It implied, furthermore, and this was the even more problematic aspect, that the CFI actually knew how to define peremptory norms in
detail. This was the first time that an international Court had attempted
to implement jus cogens in such a way, i.e. to implement provisions of
such a kind in a technical sense. Peremptory norms were treated in the
same way as traditional positive norms. Such an endeavour was necessarily bound to fail. In fact, the CFI might have been able to identify
the main areas where jus cogens violations could arguably have been an
issue. This Court did not know, however, where to stop the investigation. The consequence could only be that the CFI undertook a fullyfledged investigation as to the compatibility of the UN sanctions with
the existing fundamental rights standards in the EU. It is obvious that
the conclusions reached were the result of a balancing act between security aspects (allowing certain fundamental rights restrictions) and EU
fundamental rights protection (requiring the application of protective
standards that are comparatively high on an international scale). Recourse to the jus cogens principle has become – at least indirectly – a vehicle to perform this balancing act without having to sacrifice one of the
fundamental interests involved. This is not, however, the proper func-
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
173
tion of the jus cogens concept. It is not for this aim that this concept has
been called into life and it is rather improbable that other courts outside
the EU would have been able to make any use of such an interpretation.
Several governments of EU Member States which generally have problems with this concept were most probably extremely relieved when the
ECJ totally abandoned this approach and no longer relied on the jus cogens principle.87
4. Conclusions
In conclusion we must ask ourselves how it could be possible that such
wise men exercising different jurisprudential functions in the EU and
whose unconditional commitment to human rights protection cannot
be contested in the slightest way could come to such different conclusions as to the required standard of protection. As we have seen, the
technical concepts used to justify the results reached are not convincing.
Neither did the recourse to the jus cogens idea provide an acceptable
explanation for the stance taken by the CFI, nor did it seem to be coherent with the previous jurisprudence when the ECJ simply refused to
take into consideration the impact of international law obligations on
the EU legal order.88 This narrowed perspective by the ECJ is all the
more remarkable as the respective obligations are, as has been shown, of
a particular stringency on the basis of Articles 25 and 103 of the Charter
of the United Nations.
87
88
These states were France, the Netherlands, the United Kingdom which
strongly opposed recourse to the principle of jus cogens during the proceeding before the ECJ. See the ECJ judgment in Kadi und Al Barakaat,
paras 262-268.
As is known, the ECJ stated in Racke peremptorily that the “European
Community must respect international law in the exercise of its powers.”
See Case C-162/96, Racke, judgment of 16 June 1998, ECR I-3655, para. 45
(referring to Case C-286/90 Poulsen and Diva Navigation, 1992, ECR-I6019, para. 9). As a consequence, the rules of customary international law
concerning the termination and the suspension of treaty relations by reason
of a fundamental change of circumstances were found being binding upon
the Community institutions and as forming part of the Community legal
order, ibid., para. 46. See on this issue P. Palchetti, “Può il giudice comunitario sindacare la validità internazionale di una risoluzione del Consiglio di
sicurezza?”, Riv. Dir. Int. XCI (2008), 1085 et seq.
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It seems that the fundamentally different conclusions reached by the
CFI, on the one hand, and the ECJ on the other, were the result of a
profoundly different way in which the open conflict between the main
interests at issue was approached. While the CFI tried to take a square
look at all conflicting interests and to pay tribute also to the security interests formulated at the international level, the ECJ showed itself to be
very sensitive towards the strong criticism provoked by the CFI judgment. In order to be able to come to a different conclusion it widely ignored the international level.
This raises the question why such different attitudes were taken. At
first sight it appears that the reasons were dogmatic. In reality, recourse
to specific dogmatic concepts is only instrumental to achieve different
goals. They stand for different views as to the question of which competing interests should be given preference and in which procedural sequence they should be achieved. For a Community Court to adopt a
strictly dualist perspective means to deny immediate relevance to the issue of international security as there is no proper competence basis
given to consider this aspect. On the other hand, recourse to moderate
monism, such as that taken by the CFI, opens the borders of the EU for
a balancing of security considerations and human rights protection ambitions that after 9/11 have become common on a world-wide scale but
which the EU has, to a certain extent, resisted so far. These are highly
political questions to which there is no easy answer.89
89
See also on this issue the recent contribution by G. de Búrca, “The European Court of Justice and the International Legal Order after Kadi”, available at: <http://www.ssm.com/abstract=1321313>. De Búrca compares the
ECJ’s approach in Kadi with that of the Supreme Court in Medellín and
argues as follows: “Even as Europe’s political institutions assert the EU’s
distinctive role as a global actor committed to multilateralism under international law, and even as a future amendment to the EU Treaties would enshrine the ‘strict’ commitment to international law in its foundational texts,
the European Court has chosen to use the much-anticipated Kadi ruling as
the occasion to proclaim the internal and external autonomy and separateness of the EC’s legal order from the international domain, and the primacy
of its internal constitutional values over the norms of international law.”
Ibid., 52. For some, this conflict between EU law and UN law reflects also
a deeper conflict between the United States and the EU as the new UN
sanctions policy can be seen as a “manifestation of the Bush administration’s firm approach towards international terrorism”, Harpaz, see note 4,
83.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
175
Similar explanations can be found for the highly diverging positions
taken by academic writers on this issue. Even the minority of writers
who defended the CFI’s judgment, at least in its ultimate substance,
show no less commitment to the human rights issue than the respective
critics but they had a different view on how human rights should be
implemented and as to the relevance that should be attributed to the security issue in this context.90
The whole controversy is, therefore, less about abstract theoretical
concepts than about different ideas on how to define and to achieve the
common good whereby the protection of fundamental rights should
play, in any case, a pivotal role. The documents discussed above reveal
that the broad consensus over the final goals to be achieved in this field
are overshadowed by a deep dissent on the specific instruments to be
adopted to achieve this end. Should the EU set an example on the international stage and defend steadfastly the human rights idea without any
larger concession to demands, coming mainly from outside the EU, to
consider competing security interests? The ECJ judgment may be interpreted in this sense. Advocate General Poiares Maduro has even become very explicit about the need to limit the extent of such a balancing.91
Or should the EU be, as the CFI opined, more responsive to the
idea that terrorism also constitutes a severe threat for human rights protection? A more effective fight against terrorism should, in this perspec-
90
91
See, in particular, C. Tomuschat, “Case law - Court of Justice Case T306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v.
Council and Commission”, CML Rev. 43 (2006), 537 et seq. who examined
in detail whether the targeted sanctions violated fundamental rights in the
European Union. Although also critical towards several parts of the CFI
pronouncement he finally shared, in substance, the CFI’s view.
See, in particular, para. 35 of his opinion, where he writes, i.a. the following: “[...] when the risks to public security are believed to be extraordinarily high, the pressure is particularly strong to take measures that disregard
individual rights, especially in respect of individuals who have little or no
access to the political process. Therefore, in those instances, the courts
should fulfil their duty to uphold the rule of law with increased vigilance.
Thus, the same circumstances that may justify exceptional restrictions on
fundamental rights also require the courts to ascertain carefully whether
those restrictions go beyond what is necessary”.
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tive, also be a necessary pre-condition for achieving progress in the human rights area.92
From a technical standpoint, no definite answer can be given to
these questions. In fact, the underlying issues are of an eminent political
character and this hints at the necessity to attribute them, first of all, to
political organs and not to jurisdictional ones. This was exactly what
the CFI aspired at even though this Court did not expressly develop
this issue. Prof. Mengozzi, himself a judge in the Kadi case before the
CFI, has openly admitted, in a later academic writing,93 that the Court’s
attitude was mainly motivated by an attempt to pay deference to the
political institutions.94
The Advocate General and the ECJ were strongly against this position, presenting the conflict as incurring between the aspiration for international law conformity and the necessity to respect the high fundamental rights standards of the EU. According to Advocate General
Poiares Maduro the “political question” doctrine cannot “silence the
92
93
94
It is interesting to note that Secretary-General Kofi Annan in his report In
Larger Freedom (Doc. A/59/2005 of 21 March 2005) denied the existence
of a conflict between these two goals: “It would be a mistake to treat human rights as though there were a trade-off to be made between human
rights and such goals as security or development. We only weaken our
hand in fighting the horrors of extreme poverty or terrorism if, in our efforts to do so, we deny the very human rights that these scourges take
away from citizens”. (ibid., para. 140).
See P. Mengozzi, “The European Union balance of powers and the case law
related to EC external relations”, in: M. Monti et al. (eds), Economic Law
and Justice in Times of Globalization, FS Carl Baudenbacher, 2007, 207 et
seq. (216 et seq.).
This appears to be an interesting admission and it becomes even more interesting when it is associated with Community jurisprudence denying, in
principle, direct effect to GATT/WTO law for the same motive. As is
known, in their judgments the Community Courts take a different position. They take recourse to the reciprocity argument and the diplomatic
character of the GATT/WTO system based on the principle of negotiations
for the mutual benefit. In a certain sense, Prof. Mengozzi is vindicating
writers like Ernst-Ulrich Petersmann who has been arguing since the beginning of this controversy that denial of direct effect to GATT/WTO law
is politically motivated and does not constitute a dogmatic necessity. This
writer, however, is firmly convinced that there is no need to refer to a political doctrine in order to deny direct effect of GATT/WTO law as the
structure of this law stands in the way of such a proposition. See extensively P. Hilpold, Die EU im GATT/WTO-System, 2009.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
177
general principles of Community law and deprive individuals of their
fundamental rights.”95
Should the “world be saved by the European Union?”96 Of course,
nobody would make such a strong statement except in irony (or to require exactly the contrary). There are authors, however, who substantially point in this direction,97 when they state that “[f]or once, European ‘value imperialism’ may serve a good cause, which is to push up
the overall level of fundamental rights protection in the world.”98 At
the extreme opposite we can find the opinion, that it could be difficult
to “differentiate between challenges based on fundamental human
rights, as perceived and construed in Western-Europe, and challenges
based on, say, the Sharia.”99
If we look for a viable solution, for an approach that can expect to
meet with a broader international consensus, it can probably be found
somewhere in between these two positions. There is little leeway for
European value imperialism. Any action by the EU that is suspected as
being expression of such an attitude will most probably provoke strong
objections.100 On the other hand, international human rights cannot be
compared with the law of Sharia. Differently from the latter provisions,
at least the core principles of human rights law can claim international
recognition. This is exactly the line the CFI wanted to pursue. Even
though the arguments brought forward by this Court were not always
convincing, the strong criticism levelled against this judgment was
surely excessive and unfair.
On closer examination, however, this conflict is not only one between a broader internationalist and a more restrictive Community position but also, and perhaps even largely, an inter-institutional controversy where the ECJ tried to reaffirm its jurisdiction also upon strictly
95
96
97
98
99
100
See para. 34 of the Opinion.
This is to paraphrase the dictum by Christian Tomuschat cited in note 68.
See Lavranos, see note 63.
Ibid., 9 et seq.
See Nollkaemper, see note 3, 4.
This can be noticed, for example, in the context of the European development policy where the attempt to impose a policy of conditionality (for example by advocating the principle of good governance) meets with considerable international resistance. See, for example, P. Hilpold, “EU Development Cooperation at a Crossroads: The Cotonou Agreement of 23 June
2000 and the Principle of Good Governance”, European Foreign Affairs
Review 7 (2002), 53 et seq.
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Max Planck UNYB 13 (2009)
political decisions by the Council. The “circumscribed competence” the
CFI spoke about with regard to the need for the Council to implement
in great detail Security Council resolutions was seen to be, in reality, a
circumscription of the community courts and the ECJ was not prepared
to accept a limitation of its prerogatives so painstakingly acquired over
the last decades.101
Does this mean that the international perspective has got totally lost
and that the European Union is irremediably bound to enter into collision with the international order?
This is not necessarily the case. In fact, both orders are continuing to
interact very intensively and it is not impossible that finally the EU position will also prevail on the international level. As is known, the 1267
sanctions regime is under strong pressure.102 While it is generally recognised that this regime plays an important role in the international
fight against terrorism and while it is also known that in many evolved
national orders it will never be feasible to grant full due process in this
context, according to a very broad conviction in the international community there are some elements, like the protection against arbitrary
decisions and the introduction of a review process for allegations that
are non-derogable.103 As already demonstrated above, the 1267 regime
has undergone, since its inception, considerable reform and it is obvious
that critics of this regime have played an important role in engineering
these reforms. The clear stance taken by the EU against any deviation
from core fundamental rights standards represents a formidable challenge for this sanctions regime in terms of reputation and legitimacy.
Against this background, the real motivations of the ECJ to take the
position described lose importance.
101
102
103
As Marjorie Beulay writes, “la Cour cherche à nouveau à défendre jalousement son monopole juridictionnel, face à un tribunal de première instance trop enclin à soumettre sa compétence au droit international”. See M.
Beulay, “Les arrêts Kadi et Al Barakaat International Foundation – Réaffirmation par la Cour de Justice de l’Autonomie de l’Ordre Juridique
Communautaire vis-à-vis du Droit International”, Revue du Marché commun et de l’Union européenne 524 (2009), 32 et seq.
See I. Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit”, AJIL 102 (2008), 275 et seq.
(297).
Ibid., referring also to the strong criticism voiced by the European Council
in 2006 against the 1267 mechanism.
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
179
While a first reading of the ECJ’s judgment (and the Advocate General’s Opinion) may give the impression that a pronounced “isolationist” attitude has been taken, it cannot be ignored that the international
system is not only characterised by the existence of a “global community of courts”104 but also by a strong multi-level interaction of political, judicial and administrative organs and institutions, so that an act
which seems first to be unilateral may show afterwards that its main
function was to prompt a reaction by the other players in order to start
an effective discourse. In this sense, the Kadi judgment is also in line
with the “Solange-principle”, developed by the German Constitutional
Court with regard to the attempts to further develop fundamental
rights protection in the EU. In the Kadi case the ECJ was simply of the
opinion that the Security Council had gone too far, but this should not
mean that this Court could not step back once the procedure before the
Sanctions Committee was endowed with sufficient guarantees.105
Undoubtedly, if the main purpose of the “Solange-principle” is to
preserve, in an interactive system of mutually interdependent entities
the respect of both a minimum standard of fundamental rights protection and, at the same time, the judicial autonomy of these entities, this
principle has to operate in both directions. In other words: once an effective judicial control system was established at the UN level, the ECJ
would no longer exercise its control on implementation measures for
UN acts.106
104
105
106
See A.M. Slaughter, “A Global Community of Courts”, Harv. Int’l L. J. 44
(2003), 191 et seq.
This, at least, transpires from the Advocate General’s opinion when he
writes at para. 54: “Had there been a genuine and effective mechanism of
judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to
provide for judicial control of implementing measures that apply within the
Community legal order”.
It was argued that too much leniency by the ECJ in the Kadi case could
have prompted the ECHR, on the basis of the Bosphorus judgment, to reassert its jurisdiction on areas for which the competence has been transferred to the EU. On the other hand, in the Behrami and Saramati cases,
the ECHR declined jurisdiction over acts attributable to the UN (via
UNMIK and KFOR) even if the respective persons were agents of Member
States of the Convention. It is therefore open as to how the ECHR had decided in the Kadi case. See T. Giegerich, “The Is and the Ought of International Constitutionalism: How far Have We Come on Habermas’s Road to
a Well-Considered Constituzionalization of International Law”?, German
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The immediate reactions to this judgment seemed to reveal, however, entrenched positions. The Security Council, in a meeting of 9 December 2008, was divided on how to react to this new situation.107
Some state representatives, in particular that of South Africa, were very
outspoken on the need to take into consideration the results of the ECJ
judgment in the Kadi case.108 For other countries the recent reforms
undertaken by Security Council Resolution 1822 of 30 June 2008 were
already sufficient.109
The EU Commission formally pretended to comply with the ECJ
judgment and communicated the narrative summaries of reasons by the
Sanctions Committee to Mr. Kadi and to Al Barakaat International
Foundation and gave them the opportunity to comment on these
grounds in order to make their point of view known. After examining
the comments received the Commission, however, decided that the listing of Mr. Kadi and the Al Barakaat Foundation was justified and
therefore the freezing of their assets was maintained.110
In the long term, however, both the EU and the UN will have no
other choice than to compromise. It can hardly be denied that the aspirations of both sides are, to a certain extent, justified. Now it is up to
the political institutions to find a workable solution.111 The Kadi case
107
108
109
110
111
Law Journal 10 (2009), 31 et seq. (55 et seq.). The ECHR will, however,
have the occasion to express itself in a similar case, the Nada case. Youssef
Nada Ebada, an Italian businessman of Egyptian origin and working
mainly in Switzerland has found himself on the UN sanctions list which
was implemented by Switzerland. National investigations in Italy and in
Switzerland could not corroborate the allegations of financing of terrorist
activities. As Swiss authorities saw no legal possibility to withdraw the
sanctions against him since they were imposed by the UN, Mr. Nada has
now filed a claim before the ECHR.
See Doc. S/PV.6034, 9 December 2008.
Ibid., p. 15: “These challenges should put the Security Council on notice
that it cannot proceed as if it were business as usual”.
Ibid. See also J.M. Thouvenin, “Le Choc du Droit Communautaire et du
Droit International, encore l’Arrêt Kadi”, Revue du marché commun et de
L’Union européenne 524 (2009), 30 et seq.
See Commission Regulation (EC) No. 1190/2008, OJ L 322/25 of 2 December 2008.
Perhaps the final compromise will not be very distant from the one found
by the CFI which took recourse, as demonstrated, to the political question
doctrine, using as a limitation the jus cogens principle. The formal concepts
Hilpold, EU Law and UN Law in Conflict: The Kadi Case
181
will perhaps be remembered as a starting point for the search of a new
equilibrium between the need to fight terrorism more effectively and
the parallel need to uphold fundamental rights in this struggle. The
Kadi case will, however, also be remembered for the many colourful
concepts it has given rise to. As the real conflict was, however, of an
eminently political nature, these concepts were of little help for the solution of the underlying dispute. Questions such as the practical relevance of jus cogens and the effect of Security Council resolutions on national orders (or, respectively, the EU order) are now even more unclear
as they were before.112
112
to be used for the qualification of this compromise will, however, have to
be different ones.
The uncertainties surrounding the concept of jus cogens have been made
evident, i.e., by the allegation by Beulay, see note 101, 38 that the CFI had
disregarded the statement made by the ICJ in the Armed Activities case
(Democratic Republic of the Kongo v. Rwanda, ICJ 2006, para. 64 et seq.)
according to which the jus cogens principle was not constitutive of the ICJ’s
jurisdiction which remained based on consent of the parties. The circumstances in Kadi were, however, clearly different since here the CFI had to
decide whether this Court regained full jurisdiction on EU implementation
measures if the underlying SC resolutions were to be considered as vitiated
due to a contrast with peremptory norms.
The Mediterranean Guidelines for the
Determination of Environmental Liability and
Compensation: The Negotiations for the
Instrument and the Question of Damage that
Can Be Compensated
Tullio Scovazzi *
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
*
“Dead Letters in the Sea”?
How Much Time is “as Soon as Possible”?
The 1997 Brijuni Meeting
The Resumption of the Preparatory Works (2003-2007)
The Nature and Scope of the Guidelines
Damage that Can Be Compensated
The Future Steps
Concluding Remark
The author took part in the 1997 Brijuni meeting, as the representative of
Italy and chairman of the meeting, as well as in the 2003 Athens meeting,
the 2005 Athens meeting, the 2006 Loutraki meeting and the 2007 Athens
meeting, as legal expert of the UNEP-MAP Secretariat. The opinions expressed in this article are only the author’s personal ones. This article is
written within the framework of a research project on the technical aspects
of the international law of the sea, carried out at the University of MilanoBicocca.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 183-212.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
Max Planck UNYB 13 (2009)
184
I. “Dead Letters in the Sea”?
On 18 January 2008, the 15th ordinary meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment
and the Coastal Region of the Mediterranean (Barcelona, 1976;
amended in 1995),1 held in Almeria, Spain, adopted the Guidelines for
the Determination of Liability and Compensation for Damage resulting
from Pollution of the Marine Environment in the Mediterranean Sea
Area.2
In fact, the drafting of rules on liability and compensation for damage resulting from the pollution of the environment has proved to be a
difficult task in the case of Conventions relating to regional seas.3 Several Conventions contain a pactum de contrahendo provision, according
to which the Parties undertake to cooperate to develop a liability regime. Besides the case of the Mediterranean, such a provision is, for instance, included in the Kuwait Regional Convention for Cooperation on
the Protection of the Marine Environment from Pollution (Kuwait,
1
2
3
Hereinafter the Barcelona Convention. The Convention entered into force
on 12 February 1978. The 1995 amendments have entered into force on 9
July 2004.
Hereinafter the Guidelines. For the text, see the Report of the meeting,
Doc. UNEP(DEPI)/MED. IG.17/10 of 18 January 2008, page 133.
On the subject see, besides the general works on international environmental law, P.M. Dupuy, La responsabilité internationale des Etats pour les
dommages d’origine technologique et industrielle, 1976; F. Francioni/ T.
Scovazzi (eds), International Responsibility for Environmental Harm, 1991;
J. Barboza, “International Liability for the Injurious Consequences of Acts
not Prohibited by International Law and Protection of the Environment”,
RdC 247 (1994), 291 et seq.; S. Murase, “Perspectives from International
Economic Law on Transnational Environmental Issues”, RdC 253 (1995),
283 et seq.; R. Wolfrum, “Means of Ensuring Compliance with and Enforcement of International Environmental Law”, RdC 272 (1998), 9 et seq.;
R. Churchill, “Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, Prospects”,
Yearbook of International Environmental Law 12 (2001), 3 et seq.; T. Scovazzi, “State Responsibility for Environmental Harm”, ibid., 43 et seq.; L.
de La Fayette, “The Concept of Environmental Damage in International
Liability Regimes”, in: M. Bowman/ A. Boyle (eds), Environmental Damage in International and Comparative Law - Problems of Definition and
Valuation, 2002, 181 et seq.; M. Fitzmaurice, “International Responsibility
and Liability”, in: D. Bodansky/ J. Brunnée/ E. Hey (eds), The Oxford
Handbook of International Environmental Law, 2007, 1010 et seq.
Scovazzi, Mediterranean Guidelines and Environmental Liability
185
1978; article XIII), the Convention for Cooperation in the Protection
and Development of the Marine and Coastal Environment of the West
and Central African Region (Abidjan, 1981; article 15), the Convention
for the Protection of the Marine Environment and Coastal Area of the
South-East Pacific (Lima, 1981; article 11), the Regional Convention for
the Conservation of the Red Sea and the Gulf of Aden Environment
(Jeddah, 1982; article XIII), the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region
(Cartagena, 1983; article 14), the Convention for the Protection, Management and Development of the Marine and Coastal Environment of
the Eastern African Region (Nairobi, 1985; article 15), the Convention
for the Protection of the Natural Resources and Environment of the
South Pacific Region (Noumea, 1986; article 20), the Convention on the
Protection of the Marine Environment of the Baltic Sea Area (Helsinki,
1992; article 25),4 and the Convention on the Protection of the Black Sea
against Pollution (Bucharest, 1992; article XVI).
However, very few of the liability provisions have been implemented as yet. Because of this rather poor record, some writers have
considered the liability provisions in regional seas Conventions as
“Greek calends provisions”5 or “dead letters in the sea”.6 The truth may
be that problems involved in the matter of liability and compensation
for environmental damage are both very sophisticated to handle and
very hard to solve. National legislation and judicial practice vary greatly
from country to country. Not only the criteria to assess compensation,
but the concept itself of environmental damage, are far from being defined in a uniform way.
II. How Much Time is “as Soon as Possible”?
Some rules on liability and compensation can also be found within the
regional system for the protection of the Mediterranean Sea against pol4
5
6
An analogous provision (article 17) was included in the previous convention (Helsinki, 1974).
T. Scovazzi, “The Recent Developments in the ‘Barcelona System’ for the
Protection of the Mediterranean against Pollution”, International Journal
of Marine and Coastal Law 11 (1996), 95 et seq. (97).
R. Lefeber, “The Liability Provisions of Regional Sea Conventions: Dead
Letters in the Sea?”, in: D. Vidas/ W. Oestreng (eds), Order for the Oceans
at the Turn of the Century, 1999, 507.
186
Max Planck UNYB 13 (2009)
lution. Article 12 of the original version of the Barcelona Convention
(1976)7 stated as follows:
“The Contracting Parties undertake to co-operate as soon as possible
in the formulation and adoption of appropriate procedures for the
determination of liability and compensation for damage resulting
from the pollution of the marine environment deriving from violations of the provisions of this Convention and applicable protocols.” (Emphasis added)
In 1995, the Barcelona Convention and some of its protocols were
amended in order to adapt the Mediterranean legal system to the evolution of international environmental law in the field of the protection of
the environment, as embodied in the instruments adopted by the
United Nations Conference on Environment and Development
(UNCED, Rio de Janeiro, 1992).8 Substantive changes and additions
were made in many of the provisions of the Barcelona Convention. The
new text of the article on liability and compensation is the following:
“The Contracting Parties undertake to cooperate in the formulation
and adoption of appropriate rules and procedures for the determination of liability and compensation for damage resulting from pollution of the marine environment in the Mediterranean Sea Area” (article 16).
As can be seen, one of the changes with respect to the wording of
1976 is that in the amended provision the words “as soon as possible”
have been deleted. The deletion was suggested by one delegate who remarked that the lapse of almost twenty years had not been sufficient to
7
8
Before the 1995 amendments, the name of the Barcelona Convention was
Convention for the Protection of the Mediterranean Sea against Pollution.
See J. Juste Ruiz, “Le plan d’action pour la Méditerranée vingt ans après: la
révision des instruments de Barcelone”, in: Collection Espaces et Ressources
Maritimes, 1995, 249; E. Raftopoulos, Studies on the Implementation of the
Barcelona Convention: The Development of an International Trust Regime, 1999; T. Scovazzi (ed.), Marine Specially Protected Areas - The General Aspects and the Mediterranean Regional System, 1999, Chapter 7; J.
Juste Ruiz, “Regional Approaches to the Protection of the Marine Environment”, in: Thesaurus Acroasium, 2002, 402; E. Raftopoulos/ M.L.
McConnell (eds), Contributions to International Environmental Negotiation in the Mediterranean Context, 2004; T. Scovazzi, “The Developments
within the ‘Barcelona System’ for the Protection of the Mediterranean Sea
against Pollution”, in: Annuaire de Droit Maritime et Océanique, 2008, 201
et seq.
Scovazzi, Mediterranean Guidelines and Environmental Liability
187
finalise what the parties in 1976 had undertaken to do “as soon as possible”.
Another provision on liability and compensation is included in the
Protocol for the Protection of the Mediterranean Sea against Pollution
Resulting from Exploration and Exploitation of the Continental Shelf
and the Seabed and its Subsoil (Offshore Protocol, Madrid, 1994):
“1. The Parties undertake to cooperate as soon as possible in formulating and adopting appropriate rules and procedures for the determination of liability and compensation for damage resulting from
the activities dealt with in this Protocol, in conformity with Article
12 of the Convention.
2. Pending development of such procedures, each Party:
(a) Shall take all measures necessary to ensure that liability for damage caused by activities is imposed on operators, and they shall be
required to pay prompt and adequate compensation;
(b) Shall take all measures necessary to ensure that operators shall
have and maintain insurance cover or other financial security of such
type and under such terms as the Contracting Parties shall specify in
order to ensure compensation for damages caused by the activities
covered by this Protocol” (article 27).
The words “as soon as possible” figure in para. 1 of article 27. The
subsequent paragraph sets forth the obligation of the Parties to adopt
provisional measures while waiting for the development of what should
be done “as soon as possible.” These measures include the obligation of
the operators to have insurance or another financial security and the
provision of their liability to pay prompt and adequate compensation in
cases of pollution. However, at the moment of the adoption of the Protocol, the European Community and France expressed a reservation,
“pending consideration”, with specific regard to the paragraph in question.
Also in the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and
their Disposal (Hazardous Wastes Protocol, Izmir, 1996) a provision on
liability and compensation may be found:
“The Parties shall cooperate with a view to setting out, as soon as
possible, appropriate guidelines for the evaluation of the damage, as
well as rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and
disposal of hazardous wastes” (article 14).
Max Planck UNYB 13 (2009)
188
Here the expression “as soon as possible” again comes to the fore.
But – the question may be asked – how much time is “as soon as possible”? Today we know that the first step on the way to a Mediterranean
liability and compensation regime has been made almost thirty-two
years after the adoption of the Barcelona Convention. Perhaps such a
delay does not correspond to the proper meaning of “as soon as possible”, even at the slow pace of international relations. But “better late,
than never”, especially if the first step may be considered a good starting point, as happens with the Guidelines.
III. The 1997 Brijuni Meeting
As early as 1978 the United Nations Environment Programme - Mediterranean Action Plan (UNEP-MAP) commissioned a study on liability
and compensation.9 But it was only in 1996 that the Contracting Parties
to the Barcelona Convention, during their 9th meeting, invited the
UNEP-MAP Secretariat to convene a meeting of governmentdesignated legal and technical experts in order to discuss an appropriate
procedure for the determination of liability and compensation for damage resulting from the pollution of the Mediterranean marine environment.
The meeting was held in Brijuni, Croatia, on 23-25 September
1997.10 The basis for discussion was a draft text prepared by the
9
10
Study concerning the Mediterranean Inter-State Guarantee Fund and Liability and Compensation for Damage resulting from the Pollution of the
Marine Environment, Doc. UNEP/IG.23/INF.3 of 3 November 1980. The
study was prepared by Mr. Lahlou and Mr. Loukili.
The Report of the meeting (hereinafter: the 1997 Report) is reproduced in
Doc. UNEP(OCA)/MED WG.117/4 of 7 October 1997. See V. Bou Franch, “Towards a Liability Protocol for Environmental Harm in the Mediterranean Sea Area”, in: G. Kokasoy (ed.), The Kriton Curi International
Symposium on Environmental Management in the Mediterranean Region Proceedings, I, Istanbul, 1998, 207; L. Schiano di Pepe, “Introducing an International Civil Liability Regime for Damage to the Marine Environment
in the Mediterranean Sea Area”, in: Environmental Liability, 1999, 8; T.
Scovazzi, “As perspectivas de um instrumento legal para os danos ao ambiente marinho do Mediterrâneo”, in: Estudos Leme Machado 2005, 314.
Scovazzi, Mediterranean Guidelines and Environmental Liability
189
UNEP-MAP Secretariat11 which had a very far-reaching purpose. It
provided, inter alia, for a three-tier regime of liability, based on namely:
strict liability of the operator, that is the person who exercises effective control over a dangerous or potentially dangerous activity,12
combined with a narrowly defined number of exemptions;13
establishment of a Mediterranean Inter-State Compensation Fund
(MISC Fund), which would play a supplementary role if the operator were not able to meet the entire cost of the required compensation14 or there were a need of preventive measures in emergency
situations;
residual liability of the state which had jurisdiction and control over
the activity, if the civil liability regime and the MISC Fund were inadequate.15
Other aspects of the 1997 Draft, which confirmed its ambitious objectives, were the following:
11
12
13
14
15
Doc. UNEP(OCA)/MED WG.117/3 of 1 July 1997, hereinafter quoted as
the 1997 Draft.
“Unlike the fault-based liability, strict liability requires no proof of fault
(which may be very difficult or even impossible to obtain) that the conduct
of the operator was intentionally or negligently in violation of the law.
Strict liability only requires that the damage was caused as a result of the
conduct of the operator and that the damage is not permissible under the
Barcelona Convention or the liability regime. At the same time, strict liability is more flexible than absolute liability because it allows a narrowly
defined range of exemptions” (1997 Draft, page 8).
Namely, acts of war or terrorism, natural phenomena of irresistible character, acts by a third party with the intent to cause damage, pollution of tolerable level in the light of local circumstances, compliance with compulsory
measures of a public authority, dangerous activities taken lawfully in the
interests of the person suffering a damage (1997 Draft, page 12).
This occurs if compensation under the civil liability regime is inadequate to
cover the whole damage or in case of unknown polluters (1997 Draft, page
15).
Under the 1997 Draft, “the possibility of establishing a narrowly conceived
basis of the residual State liability, that is liability for damage only to the
extent that such damage is related to the State’s failure to comply with its
duties under the Barcelona Convention system, would clearly seem to be
inadequate. Such a fault-based, instead of a strict, State liability would not
effectively work in view of the vulnerability of the Mediterranean marine
and coastal environment and the nature of the protection system it requires” (page 14).
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Max Planck UNYB 13 (2009)
no financial limitation for any of the three-tier levels of liability was
proposed;16
the Parties were required to ensure under their internal law that operators had a financial security scheme or a financial guarantee to
cover liability for damage;
the dangerous activities included “all professional operations dealing with dangerous substances and materials, wastes, nonindigenous or genetically modified species, or having a harmful effect on the biological diversity or the specially protected areas in
the Mediterranean”;17
the term “incident” was defined in a broad way, that covered not
only a sudden occurrence (e.g. fires, leaks) or a series of occurrences
with the same origin (e.g. explosions affecting successively different
installations; so-called domino effect), but also gradual and continuous occurrences (e.g. releases of dangerous substances into the
sea from land-based sources);
in urgent situations non-governmental organisations were granted
the right to submit requests to courts to prohibit dangerous or potentially dangerous activities and to order the operator to take preventive measures or to reinstate the environment.
The concept of damage was defined as meaning:
damage to persons (including the state or its constituent subdivisions) and property;
the cost of reasonable preventive measures and further loss of damage caused by them;
16
17
“In fact, a limitation for compensation payable would actually undermine
the proposed liability regime. On the other hand, unlimited liability would
have an invaluable learning impact upon all those who are involved: it will
send a message to the operators that in view of the unlimited liability their
conduct should be carefully designed and carried out; it will constitute a
great incentive for the public authorities of the Contracting Parties to scrutinise operators activities applying effectively and efficiently all those safeguards ensuring prevention, control and compliance with the Barcelona
Convention system; and, finally, it will not have any impact upon the conduct of the insurance companies because their financial limit of liability is
set independently from the acceptance of a limited or unlimited compensation under the liability regime” (1997 Draft, page 18).
1997 Draft, page 5.
Scovazzi, Mediterranean Guidelines and Environmental Liability
191
damage caused by the impairment of the marine and coastal environment of the Mediterranean.
Damage caused by the impairment of the marine and coastal environment was to be compensated only in the form of measures of reinstatement aiming at environmental restoration and re-establishment or,
if reinstatement was impossible, in the form of re-introduction of
equivalent components into the environment.
In the light of the exchanges of views made at the 1997 Brijuni meeting, it clearly appeared that the proposals submitted in the 1997 Draft,
while being a good basis for discussion, were too far-reaching to be
fully acceptable by the majority of Mediterranean countries. The fact
that the 1997 Draft was, in several aspects, based on the Convention on
Civil Liability for Damage Resulting from Activities Dangerous to the
Environment (Lugano, 1993), which has not yet entered into force, may
also explain some rather lukewarm attitudes.
On some matters the discussion held at Brijuni showed that there
was a general understanding among the majority, if not the totality, of
the governmental experts. The relevant instances are the following:
- A.) The experts agreed to base the discussion on article 16 of the
amended Barcelona Convention rather than on article 12 of the 1976
text. Specific rules and procedures should be drafted “for the determination of liability and compensation for damage resulting from pollution of the marine environment in the Mediterranean Sea Area” (article
16 of the 1995 Convention) and not “for damage resulting from the
pollution of the marine environment deriving from violations of the
provisions of this Convention and applicable protocols” (article 12 of
the 1976 Convention). Emphasis was consequently put on uniform private law provisions which can ensure adequate compensation to the victims of pollution, be they either public entities or private persons,
rather than on questions of state responsibility for wrongful acts under
public international law.
- B.) As to the form which a future Mediterranean liability regime
might take, “the general view among the experts was that a binding legal instrument was to be preferred to a soft law instrument. It was also
the general view that a Protocol to the Convention was to be preferred
to an Annex to the Convention. In this respect it was pointed out that
in some instances a liability and compensation regime would require
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Max Planck UNYB 13 (2009)
amendments to domestic legislation, which could only be done if a ratification process involving national parliaments was followed.”18
- C.) The need to avoid duplicating provisions contained in other instruments was strongly emphasised. “It was the general view of the
Meeting that the Mediterranean liability regime should not overlap or
enter into competition with specific liability regimes established by
treaties in force or expected to enter into force in the near future (for
example, in the field of maritime transport), if, after more detailed examination, these regimes proved to be adequately adapted to the objectives of the Barcelona Convention and its Protocols in relation to liability and compensation for damage.”19
- D.) It was the general view “that the Mediterranean liability regime
should also cover the high seas and that the drafting of this regime
should solve all the technical legal problems arising from its application
to the high seas.”20 To manage the high seas, an area where no state sovereignty or jurisdiction is established and where any flag state can use
(and perhaps abuse) the right of freedom of the sea, is always a difficult
task from the legal point of view. However, in the special case of the
Mediterranean, if all the coastal states established their own exclusive
economic zones, the high seas would disappear, as in this semi-enclosed
sea no point is located at a distance of more than 200 nautical miles
from the nearest land or island.21
- E.) There was a majority view “that the Mediterranean liability regime should be limited to dangerous activities that should be specifically listed.”22
- F.) As regards the concept of damage, the experts noted that there
was a trend to compensate not only damage to persons and property,
but also damage consisting of the impairment of the marine and coastal
environment, covering measures of reinstatement undertaken or to be
18
19
20
21
22
1997 Report, page 4.
Ibid., page 3.
Ibid., page 4.
For the present complex situation of coastal zones in the Mediterranean,
where some states have proclaimed exclusive economic zones, others ecological protection zones, others fishing zones and others do not go beyond
the limit of their territorial seas (3, 6 or 12 n.m., depending on the cases),
see T. Scovazzi, “La zone de protection écologique italienne dans le
contexte confus des zones côtières méditerranéennes”, Annuaire du Droit
de la Mer 10 (2005), 209 et seq.
1997 Report, page 5.
Scovazzi, Mediterranean Guidelines and Environmental Liability
193
undertaken, as well as reinstatement by equivalent, if re-establishment
of the status quo ante was not possible. An important remark was made
as regards the role of the state, which was seen “as a trustee of the general interest for the protection of the Mediterranean marine environment.”23
- G.) There was a general view that the liability regime of the operator should be based on strict liability.24 However, on a number of other
matters the positions taken by the governmental experts diverged.
aa.) The question of liability arising from gradual pollution of the
marine environment, which typically occurs in the case of land-based
pollution, raised different reactions. In relation to the concept of incidents, “several experts considered that it would be more logical not to
include continuous occurrence (from land-based sources and activities),
while others pointed out that such an interpretation was fully in line
with the Barcelona Convention.”25 The assessment and apportionment
of liability among a great number of gradual polluters is a very difficult
problem to address in legal terms.
bb.) The idea of unlimited liability raised the concern of several experts who believed that strict liability should always be accompanied by
a predetermined ceiling on compensation to be paid by the operator. In
the mind of many experts, ceilings on financial security were also to be
added to limits on the liability of the operator. The condition of the insurance market, where not all dangerous activities carried out by operators can be insured, was also discussed.
cc.) There were various opinions on the proposed MISC Fund (see
above), some experts speaking in favour of its creation and others expressing serious reservations. If it is established, the question of the financing of the fund needs to be addressed. Should it be made up of contributions from states or from private operators or from both and under
what criteria should the contributions be assessed?
dd.) Another issue which required further reflection was the residual
liability of states. It was pointed out that “it would represent a departure from the ordinary liability system according to which the liability
of private operators could not be replaced by State liability. In addition,
23
24
25
Ibid., page 4 “It was added that in certain cases the State might in fact be
both the perpetrator and the victim of the environmental damage. Even in
this case, it was the State’s duty to reinstate the environment as its trustee.”
Ibid., page 5.
Ibid., page 5.
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Max Planck UNYB 13 (2009)
the primary obligation of a State was to control and prevent pollution
and its liability could only arise if control and prevention measures
failed. In this connection, it was emphasized that a State was ultimately
responsible for events resulting from activities under its own jurisdiction and that residual State liability would enhance the effectiveness and
credibility of the Barcelona Convention system. One expert pointed
out, however, that residual State liability could have a negative effect on
activities by operators, who might be incited to behave less cautiously
in the knowledge that States too could be held liable in addition to operators.”26
ee.) Reservations were also expressed by some experts on the idea to
grant to non-governmental organisations the right to take legal action
in certain specified cases.
In conclusion of their work, the participants to the 1997 Brijuni
meeting, “having examined the principal issues raised by the establishment of a liability and compensation regime in the Mediterranean, invited the Secretariat to report to the Contracting Parties on the results
of this first Meeting so that they could decide upon the principle of
preparing a draft protocol that would take into account the conclusions
of this Meeting to be submitted to a second Meeting of experts.”27
IV. The Resumption of the Preparatory Works
(2003-2007)
Only on 21 April 2003 a meeting of non-governmental experts was
convened in Athens to discuss the grounds and the feasibility of a new
legal instrument related to liability for damage to the Mediterranean
marine environment.28
The 2003 meeting considered the instruments which had been or
were being elaborated in other fora, in particular the proposal for a Directive of the European Community on environmental liability29 (that
26
27
28
29
Ibid., page 6.
Ibid., page 7.
For the Report of the meeting (hereinafter quoted as the 2003 Report) see
Doc. UNEP(DEC)/MED WG.230/2 of 6 May 2003.
Proposal for a Directive of the European Parliament and of the Council on
Environmental Liability with regard to the prevention and remedying of
environmental damage (Official Journal of the European Communities No.
C 151 of 25 June 2002).
Scovazzi, Mediterranean Guidelines and Environmental Liability
195
subsequently became Directive 2004/35/EC of the European Parliament and the Council of 21 April 2004 on environmental liability with
regard to the prevention and remedying of environmental damage).30
The European Community, which is a party to the Barcelona Convention and some of its protocols, is an important actor within the UNEPMAP policy.
The participants of the 2003 meeting expressed a preference for a
step by step approach, based on different sets of rules addressing different kinds of potentially polluting activities for which no liability regimes had been envisaged under other legal frameworks (such as the
operation of offshore installations, dumping, land-based discharges).31
They suggested that the future instrument should have the form of a
protocol to the Barcelona Convention and that it could be divided into
two parts: a first part dedicated to general liability and compensation
rules, and a second part containing annexes addressing specific activities
not regulated at the international level as regards their liability and
compensation implications, such as offshore installations or dumping.32
At their 13th ordinary meeting (11-14 November 2003), the Contracting Parties to the Barcelona Convention requested the Secretariat
to prepare a feasibility study, “covering the legal, economic, financial
and social aspects of a liability and compensation regime based on the
organization of a participatory process with the Contracting Parties and
socio-economic actors and with a view to avoiding overlapping with
any other liability and compensation regime.” Following consideration
of a draft version by a meeting of non-governmental experts held in
Athens on 17 June 2005,33 the feasibility study was finalised.34 After
having discussed the main aspects of the subject, such as the definition,
nature and assessment of compensable damage, the incidents to be covered, the liable party, the standard of liability and the relevant exemptions, the channelling and limitations of liability, the mechanism of fi-
30
31
32
33
34
Official Journal of the European Union No. L 143 of 30 April 2004.
2003 Report, para. 29.
Ibid., para. 33.
For the Report of the 2005 Meeting see Doc. UNEP(DEC)/MED
WG.280/3 of 30 August 2005.
Feasibility Study covering the Legal, Economic, Financial and Social Aspects
of a Liability and Compensation Regime in the Mediterranean Sea and its
Coastal Area, Doc. UNEP(DEC)/MED WG.270/Inf.4 of 25 July 2005.
The study was prepared by Mr. Fakhry.
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nancial security, the setting up of an interstate compensation fund, the
right to bring claims, the feasibility study recommended, inter alia:
“that, building on previous activities, action and reflection continue
within the MAP framework towards the formulation and adoption
of appropriate rules and procedures for the determination of liability and compensation for damage resulting from pollution of the
marine environment in the Mediterranean Sea Area;
that the prospective regime should be compatible with existing international, regional and, where applicable, European Community
regimes of liability and compensation relating to specified types of
environmental degradation, notably IMO conventions dealing with
ship-source pollution damage, taking into consideration current
trends and developments;
that work proceeds step-by-step and that no preconceived format
for the above-mentioned rules and procedures be singled out at this
stage, but that all options with respect to the nature of the ultimate
instrument, including but not limited to a protocol or an annex to
the Barcelona Convention, a model law, a code of conduct, uniform
principles, guidelines and/or recommendations, be kept open.”35
The 14th ordinary meeting of the Contracting Parties (8-11 November 2005), to which the feasibility study had been submitted, recommended the establishment of an Open-Ended Working Group of
Legal and Technical Experts to propose Appropriate Rules and Procedures for the Determination of Liability and Compensation for Damage resulting from Pollution of the Marine Environment in the Mediterranean Sea Area.
The Working Group held two meetings. In the first (Loutraki,
Greece, 7-8 March 2006), the governmental experts, after having made
presentations of the rules on liability and compensation being applied
in their domestic systems, discussed the substantive aspects of the prospective Mediterranean rules and agreed on a number of conclusions. 36
On the basis of the discussion, the experts asked the UNEP-MAP Secretariat to prepare a set of draft guidelines, to be circulated and examined at the second meeting of the Working Group.37 This meeting, held
35
36
37
Ibid., page 211.
See the Report of the first meeting of experts (hereinafter: 2006 Report),
Doc. UNEP(DEPI)/MED WG.285/4 of 16 May 2006, Annex III.
See Doc. UNEP(DEPI)/MED WG 319/Inf.4 of 25 June 2007, Explanatory
Text to Draft Guidelines on Liability and Compensation for Damage Re-
Scovazzi, Mediterranean Guidelines and Environmental Liability
197
in Athens on 28-29 June 2007, adopted the draft guidelines and decided
to send them to the forthcoming ordinary meeting of the Contracting
Parties (2008), where, as already said,38 they were formally adopted by
Decision IG 17/4.39
The Guidelines are numbered from A to N (purpose of the Guidelines; relationship with other regimes; geographical scope; damage; preventive and remedial measures; channelling of liability; standard of liability; exemptions of liability; limitation of liability; time limits; financial and security scheme; Mediterranean compensation fund; access to
information; action for compensation) and distributed altogether in 32
paragraphs.
While quite different from what was envisaged in the 1997 Draft, the
outcome of the lengthy works for the elaboration of the Guidelines
presents several areas of interest. As it would be impossible to discuss
all the aspects of the Guidelines and even more to set them against the
ongoing theoretical elaboration of principles and rules on liability and
compensation for environmental damage, the analysis made hereunder
will focus only on some selected issues.
V. The Nature and Scope of the Guidelines
As regards the legal nature of the Guidelines, article 16 of the Barcelona
Convention does not mandate either a specific or a binding form for the
“appropriate rules and procedures” to be formulated and adopted. The
Guidelines, as this denomination itself clearly implies, do not have a
mandatory character for the Parties:40
“While not having a legally binding character per se, these Guidelines are intended to strengthen cooperation among the Contracting
Parties for the development of a regime of liability and compensation for damage resulting from pollution of the marine environment
in the Mediterranean Sea Area and to facilitate the adoption by the
Contracting Parties of relevant legislation.” (Guideline A, para. 3)
38
39
40
sulting from Pollution of the Marine Environment in the Mediterranean
Sea Area (hereinafter: 2007 Explanatory Text).
See note 2, para. 1.
See the Report of the second meeting of experts (hereinafter: 2007 Report),
Doc. UNEP(DEPI)/MED WG.319/4 of 17 September 2007.
Here and hereunder the term “Parties” is referred to the Parties to the Barcelona Convention.
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Max Planck UNYB 13 (2009)
Rather than drafting a protocol (and waiting for the number of ratifications needed for its entry into force), the Parties preferred to follow
a step-by-step approach:
“The Secretariat pointed out that the process of formulating a Protocol on liability and compensation would be long and complex and
recalled that such a Protocol would have to be submitted to national
Parliaments for ratification. Another possible option was the development of a soft law instrument, such as a model law, guidelines or
recommendations, as an intermediary step before proceeding to the
formulation of a Protocol. Such a soft law instrument could go into
greater depth than a Protocol and its development might facilitate
the subsequent elaboration of a Protocol.”41
During the discussion on this subject, the Parties remarked that several treaties relating to environmental liability and compensation had
not yet come into force and there were doubts as to when they would
actually do so. They preferred a step-by-step approach:
“Many of the speakers therefore advocated a slower and more flexible step-by-step approach, which would allow time for the development of the relevant rules and procedures over a longer period,
taking fully into account all the relevant experience acquired in relation to liability and compensation schemes under other international
and regional Conventions and in the context of the European Union.”42
“It was accordingly agreed that a prudent approach would be recommended consisting of a limited number of steps. The first of these
would consist of the development of guidelines on liability and
compensation for environmental damage in the Mediterranean,
which should be elaborated and proposed for adoption by the next
meeting of the Contracting Parties. An assessment would then be
undertaken of the implementation of the guidelines and a decision
would be taken by a future meeting of the Contracting Parties as to
whether it was appropriate to develop a binding instrument. On the
basis of this decision, a binding instrument could then be negotiated.”43
41
42
43
2006 Report, para. 40.
Ibid., para. 41.
Ibid., para. 42. In response to a question, one of the UNEP-MAP legal experts “indicated that in his opinion there was no fundamental contradiction
between the aim of developing a Protocol and the adoption of a step-by-
Scovazzi, Mediterranean Guidelines and Environmental Liability
199
It also appears from the wording of Guideline D, para. 8 (“The legislation of Contracting Parties should include provisions to …”) or
Guideline E, para. 16 (“The legislation of the Contracting Parties
should require that …”), the Guidelines aim at giving an indication of
what provisions should be included in the national legislation of the
Parties. While article 12 of the 1976 text of the Barcelona Convention
seemed to imply that rules on liability and compensation were to be
limited to state responsibility under international law,44 article 16 of the
amended Convention has a broader formulation which encompasses
also liability by private subjects under domestic legislation.45 As a first
step, the Parties decided to strengthen their cooperation in the field of
liability and compensation through the adoption in their national legislation of a set of provisions which are as uniform as possible, being
based on the model of the Guidelines:
“If it were possible to develop an instrument that was applied in a
uniform fashion by all countries in the region, it would be an important achievement. If not, it would have little added value.”46
To this aim, the Parties by Decision IG 17/4 of 2008 already asked
the UNEP-MAP Secretariat to “provide assistance to Mediterranean
countries upon request to facilitate the implementation of the Guidelines, with particular reference to the development of domestic legislation and capacity building.”
As regards their substantive scope, the Guidelines in principle apply
to all the subject matters covered by the so-called Barcelona system,
44
45
46
step approach, which might include the formulation, as a first stage, of a
model law or guidelines, to be followed at a later stage by a Protocol. The
adoption of a gradual approach would permit current developments to be
taken into account more fully and would allow more time to address the
difficult matters involved” (ibid., para. 24). The representative of nongovernmental organisations attending the 2006 meeting “expressed regret at
the lack of support for the elaboration of a Protocol on liability and compensation” (ibid., para. 42).
Article 12 envisaged rules on liability and compensation “for damage resulting from the pollution of the marine environment deriving from violations of the provisions of this Convention and applicable protocols.” In
fact, the provisions of international treaties can be violated only by states
and other international law subjects that are Parties to them.
“These Guidelines are without prejudice to the rules of international law
on State responsibility for internationally wrongful acts” (Guideline B,
para. 6).
2006 Report, para. 46.
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Max Planck UNYB 13 (2009)
that is “to the activities to which the Barcelona Convention and any of
its Protocols apply” (Guideline A, para. 4). While the Barcelona Convention is a framework instrument, the seven protocols that have so far
been concluded cover a broad range of matters. They relate, respectively, to the prevention and elimination of pollution of the Mediterranean Sea by dumping from ships and aircraft or incineration at sea
(Barcelona, 1976; amended in 1995);47 to cooperation in preventing pollution from ships and, in cases of emergency, combating pollution (Valletta, 2002);48 to protection against pollution from land-based sources
and activities (Athens, 1980, amended in 1996);49 to specially protected
areas and biological diversity (Barcelona, 1995);50 to pollution resulting
from exploration and exploitation of the continental shelf, the seabed
and its subsoil (Madrid, 1994);51 to prevention of pollution by transboundary movements of hazardous wastes and their disposal (Izmir,
1996)52 and to integrated coastal zone management (Madrid, 2008).53
The main activities which are not directly covered by any instruments
of the Barcelona system seem to be the exploitation of living marine resources (fishing and aquaculture), leisure activities at sea, as well as
some activities that could take place in the future, such as carbon sequestration in the seabed.
But the precise determination of the substantive scope of application
of the Guidelines could become a question open to discussion.54 For
example, it is not clear whether the expression “activities to which the
Barcelona Convention and any of its Protocols apply” covers only the
47
48
49
50
51
52
53
54
In force since 12 February 1978 (the original name is Protocol for the Prevention of the Pollution of the Mediterranean Sea by Dumping from Ships
and Aircraft). The 1995 amendments have not yet entered into force.
In force since 17 March 2004. It replaces the previous Protocol concerning
co-operation in combating Pollution of the Mediterranean Sea by Oil and
Other Harmful Substances in Cases of Emergency (Barcelona, 1976, in
force since 12 February 1978).
In force since 17 June 1983 (the original name was Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources).
The amendments entered into force on 11 May 2008.
In force since 12 December 1999. It replaces the previous Protocol concerning Mediterranean Specially Protected Areas (Geneva, 1982, in force
since 23 March 1986).
Not yet in force.
In force since 18 December 2007.
Not yet in force.
See 2007 Explanatory Text, page 13.
Scovazzi, Mediterranean Guidelines and Environmental Liability
201
protocols in force or may also be extended to the protocols already
concluded, but not yet in force.55 Nor is it clear whether some activities
that are not specifically covered by any protocol could fall under the
scope of the Guidelines if they take place in an area specifically covered
by a protocol, such as a marine protected area or the coastal zone.56
In the determination of the substantive scope of the Guidelines account should also be taken of the fact that they have a complementary
character and do not intend to prejudice any environmental liability
and compensation regime which exists or may exist in the future:
“These Guidelines are without prejudice to existing global and regional environmental liability and compensation regimes, which are
either in force or may enter into force, as indicatively listed in the
Appendix to these Guidelines, bearing in mind the need to ensure
their effective implementation in the Mediterranean Sea Area as defined in paragraph 7.” (Guideline B, para. 5)
The Appendix lists fifteen treaties, either in force or not yet in force,
as well as the already mentioned European Community Directive
2004/35/EC.57 The treaties in question relate to liability and compensation in the fields of exploitation of nuclear energy, shipping (transport
of oil, including bunker oil, of hazardous and noxious substances, of
dangerous goods and of hazardous wastes) and industrial incidents. The
main activities to which the Barcelona system applies that do not fall
under the listed treaties seem to be the mineral exploitation of the seabed and the several activities that can produce land-based pollution of
the sea.58 But here again some difficult legal questions may arise:
“(…) tackling existing regimes is not an easy task. For instance,
some regimes may be in force in certain parts of the Mediterranean,
but not in others. It may moreover be difficult to predict whether
certain regimes will gather the required number of ratifications or
accessions for them to enter into force. ‘European regimes’, including regimes adopted by the European Community and those
adopted under the auspices of the Council of Europe and UNECE
55
56
57
58
The second solution seems preferable.
The second solution seems preferable.
For the instruments included in, as well as those excluded from, the list, see
2007 Explanatory Text, page 21.
However, the Guidelines “also apply to damage caused by pollution of a
diffuse character provided that it is possible to establish a causal link between the damage and the activities of individual operators” (Guideline D,
para. 15).
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Max Planck UNYB 13 (2009)
[= United Nations Economic Commission for Europe], pose yet
another type of difficulty given their geographical asymmetry with
the MAP region as a whole.”59
As regards the geographical scope of application, the Guidelines:
“apply to the Mediterranean Sea Area as defined in Article 1, paragraph 1, of the Barcelona Convention, including such other areas as
the seabed, the coastal area and the hydrological basin as are covered
by the relevant Protocols to the Convention, in accordance with Article 1, paragraph 3, of the Convention.” (Guideline C, para. 7)
The Barcelona Convention, as amended, applies without distinction
to all the “maritime waters” of the Mediterranean Sea (article 1, para. 1),
including the high seas waters. The geographical scope of application of
the protocols may be extended (article 1, para. 3), depending on their
subject matter. This occurred in the case of the protocols dealing with
mineral exploration and exploitation, applying also to the seabed, with
land-based pollution, applying also to the hydrological basin, and with
the coastal zone, applying landward up to the limit of the competent
coastal units as defined by the Parties. The Guidelines simply reflect the
flexible notion of geographical coverage which is typical for the Barcelona
system.
VI. Damage that Can Be Compensated
From the theoretical point of view, the most interesting aspect of the
Guidelines is the distinction they make between two kinds of damage
resulting from the pollution of the marine environment, called respectively “traditional damage” and “environmental damage”,60 and the
59
60
2007 Explanatory Text, page 23. It must be considered that European
Community Directive 2004/35/EC has its own scope of application, relating to damage caused by a number of listed occupational activities and to
damage to protected species and natural habitats (see article 3 and Annex
III). “The representative of Morocco believed that the reference to Directive 2004/35/EC was out of place, as it only directly concerned certain
countries in the region. Reference should only be made to international or
regional instruments that could cover all the countries in the region” (2007
Report, para. 20).
The expressions “pure environmental damage” or “ecological damage”
could have been used, also to avoid the risk of confusion between “envi-
Scovazzi, Mediterranean Guidelines and Environmental Liability
203
classification they provide of the entries falling under either kind of
them. Both kinds of damage determine an obligation to compensate:
“The legislation of Contracting parties should include provisions to
compensate both environmental damage and traditional damage resulting from pollution of the marine environment in the Mediterranean Sea Area.” (Guideline D, para. 8)
On the inclusion of both kinds of damage in the Guidelines, the
governmental experts:
“generally agreed that is was important to refer to both traditional
damage and environmental damage and that the definitions provided
were clear and concise. Although so-called ‘traditional’ damage was
generally already covered by national legislation, the link was not
always made in national legislation between the two types of damage, nor was there necessarily a clear distinction between them. It
would therefore be beneficial for the guidelines to make the distinction between the two types of damage. (…) Moreover, greater attention should be paid in the text to environmental damage which was a
much newer concept and therefore required closer definition, particularly since the value of environmental damage was likely to vary
widely from one area to another and was, at least in part, governed
by the reliance of economic and social actors on the marine environment.”61
The first kind of damage, that is traditional damage, is composed of
four entries:
“For the purpose of these Guidelines, ‘traditional damage’ means:
(a) loss of life or personal injury;
(b) loss of or damage to property other than property held by the
person liable;
(c) loss of income directly deriving from an impairment of a legally
protected interest in any use of the marine environment for economic purposes, incurred as a result of impairment of the environment, taking into account savings and costs;
(d) any loss or damage caused by preventive measures taken to avoid
damage referred to under sub-paragraphs (a), (b) and (c).” (Guideline D, para. 14)
61
ronmental damage” in a strict sense and the more general category of
“damage resulting from the pollution of the marine environment”.
2007 Report, para. 25.
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Max Planck UNYB 13 (2009)
In the light of the Guidelines, traditional damage is intended as the
damage suffered by persons, either natural or juridical, such as individuals and private or public entities, including the state. The damage
can consist in bodily injuries or loss of life, in loss or deterioration of
property and in loss or reduction of earnings. The adjective “traditional” simply means that there is no discussion that this kind of damage can be compensated under well established general principles of
law, which have existed for hundreds, if not thousands, of years in the
national legislation of most countries.
The second kind of damage is typical of cases of pollution of natural
components, including marine waters. It is suffered by the environment
as such (per se), determining a negative change in the quality of a natural
component:
“For the purpose of these Guidelines, ‘environmental damage’
means a measurable adverse change in a natural or biological resource or measurable impairment of a natural or biological resource
service which may occur directly or indirectly.” (Guideline D, para.
9)62
The entries composing the “environmental damage” are the following:
“Compensation for environmental damage should include, as the
case may be:
(a) costs of activities and studies to assess the damage;
(b) costs of preventive measures including measures to prevent a
threat of damage or an aggravation of damage;
(c) costs of measures undertaken or to be undertaken to clean up, restore and reinstate the impaired environment, including the cost of
monitoring or control of the effectiveness of such measures;
62
The source of inspiration for the Guideline is article 2, para. 2 of European
Community Directive 2004/35/EC: “‘Damage’ means a measurable adverse
change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly”. The utilitarian and
anthropocentric wording of the Guideline, which treats natural components
as “resources” (for whom? for man, it seems to be implied) and their characteristics as “services” (for whom? for man, it seems to be implied), cannot
change very much the conclusion that the damage is suffered directly by the
environment. “A proposal introducing the alternative concept of ‘significant damage’ (instead of ‘measurable damage’) so as to thwart claims for
negligible damage did not gather sufficient support and was turned down”
(2007 Report, para. 27).
Scovazzi, Mediterranean Guidelines and Environmental Liability
205
(d) diminution in value of natural or biological resources pending
restoration;
(e) compensation by equivalent if the impaired environment cannot
return to its previous condition.” (Guideline D, para. 10)
The first three entries of environmental damage relate to costs that
are borne by a person, in many cases the state or another public entity,
especially where there is a need to take urgent measures or where the liable operator cannot be identified.63 These costs can be calculated in
precise monetary terms, corresponding to the sum of the “bills” for the
measures taken.
Several treaties establishing uniform regimes of liability and compensation are based on the assumption that compensation for environmental damage must be restricted to damage that can be determined in
precise monetary terms.64 For example, under the International Convention on Civil Liability for Oil Pollution Damage (London, 1992),
“pollution damage” means:
63
64
“The legislation of the Contracting Parties should require that the measures
referred to in paragraph 10 (b) and (c) are taken by the operator. If the operator fails to take such measures or cannot be identified or is not liable
under the legislation implementing these Guidelines, the Contracting Parties should take these measures themselves and recover the costs from the
operator where appropriate” (Guideline E, para. 16).
However, the Panel of the United Nations Compensation Commission, established by S/RES/687 (1991) of 3 April 1991, did not consider that “the
fact that the effects of the loss of or damage to natural resources might be
for a temporary duration should have any relevance to the issue of the
compensability of the damage or loss, although it might affect the nature
and quantum of compensation that might be appropriate. In the view of the
Panel, it is not reasonable to suggest that a loss that is documented to have
occurred, and is shown to have resulted from the invasion and occupation
of Kuwait, should nevertheless be denied compensation solely on the
grounds that the effects of the loss were not permanent” (Report and Recommendations, Doc. S/AC.26/2005/10 of 30 June 2005, para. 56). Moreover, the Panel did not consider “that this finding is inconsistent with any
principle or rule of general international law. In the view of the Panel, there
is no justification for the contention that general international law precludes compensation for pure environmental damage. In particular, the
panel does not consider that the exclusion of compensation for pure environmental damage in some international conventions on civil liability and
compensation is a valid basis for asserting that international law, in general,
prohibits compensation for such damage in all cases, even where the damage results from an internationally wrongful act” (ibid., para. 58).
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Max Planck UNYB 13 (2009)
“(a) loss or damage caused outside the ship by contamination, resulting from the escape or discharge of oil from the ship, wherever
such escape or discharge may occur, provided that compensation for
impairment of the environment other than loss of profit from such
impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;
(b) the costs of preventive measures and further loss or damage
caused by preventive measures.” (article 1, para. 6)
However, the Guidelines, as the last two entries of “environmental
damage” show, follow a broader and more advanced approach, based
on the model of some legislative texts, such as European Community
Directive 2004/35/EC. This instrument makes a distinction between
“primary remediation”, that is “any remedial measure which returns
the damaged natural resources and/or impaired services to, or towards,
baseline condition”, “complementary remediation”, that is “any remedial measure taken in relation to natural resources and/or services to
compensate for the fact that primary remediation does not result in
fully restoring the damaged natural resources and/or services” and
“compensatory remediation”, that is “any action taken to compensate
for interim losses of natural resources and/or services that occur from
the date of damage occurring until primary remediation has achieved its
full effect.” (Annex II, para. 1, subparas a, b and c)65
According to this logic, also accepted by the Guidelines, compensation for environmental damage includes the cost of the re-establishment
of the condition that existed before the pollution (primary remediation,
covered by Guideline D, para. 10, entries from a. to c.), the cost of
compensation by equivalent action to be taken elsewhere if the polluted
environment cannot fully return to its previous condition (complementary remediation, covered by entry e. of the Guideline), as well as the
value of the diminution of the quality of natural components during the
time when restoration is pending (compensatory remediation or interim
compensation, covered by entry d. of the Guideline). Neither complementary nor compensatory remediation can be assessed in precise
monetary terms. Both correspond to a damage suffered by the envi65
Interim losses are defined in the Directive as “losses which result from the
fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have
taken effect. It does not consist of financial compensation to members of
the public” (Annex II, para. 1, subpara. d).
Scovazzi, Mediterranean Guidelines and Environmental Liability
207
ronment itself and are paid by the liable operator to the state or another
public entity, as a trustee of the public interest in the preservation of the
quality of the environment.
On the complex issue of the assessment of damage that cannot be
determined in precise monetary terms, the Guidelines avoid any reference to specific criteria, such as the habitat equivalency analysis66 or
others that are also sometimes proposed. They provide in general that:
“in assessing the extent of environmental damage, use should be
made of all available sources of information on the previous condition of the environment (…).” (Guideline D, para. 11)
An important condition is put on what is perceived as complementary and compensatory compensation. It must be earmarked for environmental purposes:
“When compensation is granted for damage referred to in paragraph
10 (d) and (e), it should be earmarked for intervention in the environmental field in the Mediterranean Sea Area.” (Guideline D, para.
13)
VII. The Future Steps
At the moment of the adoption of the Guidelines, the Parties also envisaged the possible subsequent steps. Decision IG 17/4 of 2008 estab66
The already mentioned Panel of the United Nations Compensation Commission (see note 64) recognised that “there are inherent difficulties in attempting to place a monetary value on damaged natural resources, particularly resources that are not traded on the market. With specific regard to
HEA [= Habitat Equivalency Analysis], the Panel recognises that it is relatively a novel methodology, and that it has had limited application at the
national and international levels. The Panel is also aware that there are uncertainties in HEA calculations, especially for establishing a metric that appropriately accounts for different types of service losses and for determining the nature and scale of compensatory restoration measures that are appropriate for damage to particular resources. For these reasons, the Panel
considers that claims presented on the basis of HEA or similar methodologies of resource valuation should be accepted only after the Panel has satisfied itself that the extent of damage and the quantification of compensation
claimed are appropriate and reasonable in the circumstances of each claim.
However, the Panel does not consider that these potential difficulties are a
sufficient reason for a wholesale rejection of these methodologies, or for
concluding that their use is contrary to international law principles”.
208
Max Planck UNYB 13 (2009)
lished a Working Group of Legal and Technical Experts “to facilitate
and assess the implementation of the Guidelines and make proposals
regarding the advisability of additional action.”67 In particular, such action could, inter alia, relate to three subjects, namely:
“compulsory insurance, a supplementary compensation fund and
the development of a legally binding instrument for the consideration of the meeting of the Contracting Parties in 2013.”68
The Guidelines channel liability69 on the operator (Guideline F,
para. 17),70 who can avail himself of limitations of liability on the basis
of international treaties or relevant domestic legislation (Guideline I,
para. 25). However, the question of compulsory insurance for the operators, which could be seen as linked to the benefit of limitation of liability, was the subject of lengthy discussions, due also to the lack of a
sufficiently developed market for insuring environmental damage:
“With regard to financial security, it was re-emphasized that the
question of the insurance of environmental risks raised very great
problems and that the expertise in the field of insurance would be
needed in developing the liability and compensation regime. Although it was hoped that the EC Directive would play a role in developing an insurance market for these risks, there was no guarantee
that this would occur in practice. Moreover, the experience of the
United States in this field in the 1970s was not very encouraging
since, although certain companies had started to offer insurance for
environmental damage, many of them had since withdrawn from the
market. It was also recalled that the EC Directive called upon the
Commission to report back on the issue in 2010. Representatives of
the insurance market consulted in the formulation of the Feasibility
Study had expressed caution in this respect.”71
In consideration of the doubts expressed, the Guidelines postpone
the question of a financial and security scheme:
67
68
69
70
71
The Working Group held a meeting in Athens on 22-23 January 2009. See
the Report in Doc. UNEP(DEPI)/MED WG 329/4 of 6 February 2009.
2007 Report, para. 57.
The basic standard of liability is strict liability (see Guideline G, para. 19).
The operator is defined as “any natural or juridical person, whether private
or public, who exercises the de jure or de facto control over an activity covered by these Guidelines, as provided for in paragraph 4” (Guideline F,
para. 18).
2006 Report, para. 67.
Scovazzi, Mediterranean Guidelines and Environmental Liability
209
“The Contracting Parties, after a period of five years from the adoption of these Guidelines, may, on the basis of an assessment of the
products available on the insurance market, envisage the establishment of a compulsory insurance regime.” (Guideline K, para. 28)
While the basic rule is that the operator should pay for the damage,
there may be cases where the operator is unknown or unable to pay or
the amount of compensation goes beyond the limit of his liability.
However, the question of the establishment of a Mediterranean Compensation Fund (MCF) was also the subject of discussions that could
not, for the time being, reach a generally agreed solution:
“(…) it was pointed out that (…) it would not be in accordance with
the step-by-step approach to attempt to set up such a fund at the
present time. The appropriate time to examine the matter more
closely would be during a second stage, when the implementation of
the guidelines was being reviewed. (…) However, it was also emphasized that the MCF was a key component in the successful implementation of a liability and compensation regime. The establishment
of an MCF would demonstrate the commitment of the Mediterranean community to address the various forms of damage that might
occur to the environment in the region.”72
If a fund were to be established, the complex question should be addressed of whether it would be financed by the states, by the operators
concerned or by both and a system would have to be developed to assess the respective contributions.73 These are political questions rather
than legal ones. Here again the Parties were prudent in reserving further
action for the future:
“The Contracting Parties should explore the possibility of establishing a Mediterranean Compensation Fund to ensure compensation
where the damage exceeds the operator’s liability, where the operator is unknown, where the operator is incapable of meeting the cost
of damage and is not covered by financial security or where the State
takes preventive measures in emergency situations and is not reimbursed for the cost thereof.” (Guideline L, para. 29)
What is sure is that the Guidelines do not envisage a three-tier regime which would include a residual state liability. The Parties are not
inclined to support such a concept:74
72
73
74
2007 Report, para. 47.
2006 Report, para. 69.
2006 Report, paras 70 and 71.
Max Planck UNYB 13 (2009)
210
“(…) These Guidelines do not provide for any State subsidiary liability.” (Guideline A, para. 2)
VIII. Concluding Remark
The web of responsibility for environmental harm seems today less inextricable than it did before. Contributions to the clarification of the
theoretical questions involved in the subject can be found in a number
of documents approved at various levels, such as the resolution on responsibility and liability under international law for environmental
damage, adopted by the Institute of International Law on 4 September
1997,75 the draft articles on prevention of transboundary harm from
hazardous activities, adopted in 2001 by the ILC, the draft principles on
the allocation of loss in the case of transboundary harm arising out of
hazardous activities, adopted in 2006 by the same body, the draft guidelines for the development of national legislation on liability, response
action and compensation for damage caused by activities dangerous to
the environment, submitted in 2008 to the UNEP Governing Council,76 and other documents.77
The Guidelines produced within the framework of the Barcelona
regional system for the Mediterranean move in the same direction, that
is towards the establishment of general principles of law in the field of
liability and compensation for damage to the environment. Instances of
these general principles could be the provision of compensation for
both traditional and environmental damage, including compensatory
and complementary remediation, or the earmarking of compensation
for environmental purposes. These principles are well represented in
the Guidelines and are strengthened by them. Perhaps in the near future
they will constitute the core of a special regime of liability and compen-
75
76
77
Annuaire de l’Institut de Droit International, Vol. 67, II, 1998, 486. See F.
Orrego Vicuña, Final Report on Responsibility and Liability under International Law for Environmental Damage, ibid., 1998, 312 et seq.
Doc. UNEP/GC/25/INF/15/Add.3 of 26 November 2008.
See, for instance, the report on Liability and Redress in the Context of
Paragraph 2 of Article 14 of the Convention on Biological Diversity, Doc.
UNEP/CBD/COP/9/20/Add. 1 of 20 March 2008.
Scovazzi, Mediterranean Guidelines and Environmental Liability
211
sation for environmental damage, extending to both international law78
and domestic legal systems.
78
The draft articles on Responsibility of States for Internationally Wrongful
Acts, adopted in 2001 by the ILC allow for the establishment of special regimes of international responsibility: “These articles do not apply where
and to the extent that the conditions for the existence of an internationally
wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law” (article
55).
Two Decades of International Electoral Support:
Challenges and Added Value
Christina Binder*
I.
II.
III.
IV.
V.
*
Introduction
Applicable Standards
1. International Human Rights Law
a. Universal Instruments
b. Regional Instruments
2. Political Commitments Adopted in the Ambit of International Organizations
International Electoral Support Activities
1. Overview
2. Methodology and Organization of an Election Observation Mission
(EOM)
3. Electoral Assistance
4. Résumé
Impact of International Electoral Support
1. Added Value of International Electoral Support
a. Precise Standards
b. Presence of Observers
c. Technical and/or Financial Assistance and Support
d. (De-)Legitimating Process and Results
e. Recommendations
2. Limitations/Challenges to International Electoral Support
a. General Considerations of National Sovereignty
b. Political and Human Rights Situation in the Country
c. Intra-Organizational Problems
d. Inter-Organizational Problems
e. General Limits of International Electoral Support
Conclusion
Christina Binder participated as short term observer in EOMs to Azerbaijan, Georgia, Kazakhstan, Moldova (with the OSCE) and to Venezuela and
Nepal (with the EU). She also worked as legal analyst for the EU EOMs to
Ecuador (2007, 2009) and Rwanda (2008).
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 213-246.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
Max Planck UNYB 13 (2009)
214
I. Introduction
Electoral support activities by international actors have skyrocketed
since the beginning of the 1990s. Today, a number of international organizations engage in election related activities, among them the United
Nations (UN), the Organization of American States (OAS), the Organization for Security and Cooperation in Europe (OSCE), the European Union (EU) and, recently, the African Union (AU). A considerable range of support activities is possible. While election observation
is, broadly speaking, the impartial assessment of the character and the
quality of the electoral process by external actors; electoral assistance is
of an advisory character, and may include, inter alia, legal and logistical
advice, poll worker training and civic education. Another means of international electoral involvement is “election organization”, where the
international community itself runs the election.1
The figures on democracy and electoral support account for the extensive international engagement in the field. Between 1987 and 2002,
observers were present for 86 per cent of the national elections in 95
newly democratic or semi-authoritarian regimes.2 As for electoral assistance, between 1989 and 2005, 363 official requests for assistance in
electoral matters were referred to the UN. Of these, 275 requests were
accepted, with assistance being provided to 96 different countries.3
Most recently, in January 2009, the UN Security Council called upon
the international community to support the electoral process in Côte
d’Ivoire inter alia by providing electoral observation and related electoral assistance.4
1
2
3
4
“Democracy support” more broadly speaking does not focus on the election process itself but rather on the wider issue of democracy building and
consolidation.
E. Bjornlund, Beyond Free and Fair. Monitoring Elections and Building
Democracy, 2004, 43.
C. Binder/ C. Pippan, “Election Monitoring, International”, in: R.
Wolfrum (ed.), Encyclopedia of Public International Law, Online Edition,
2008, para. 11. As of August 2007, the United Nations had already received
406 requests. Strengthening the Role of the United Nations in Enhancing
the Effectiveness of the Principle of Periodic and Genuine Elections and the
Promotion of Democratization, Report of the Secretary-General, 23 August
2007, Doc. A/62/293, 2.
S/RES/1865 (2009) of 27 January 2009, para. 5.
Binder, Two Decades of International Electoral Support
215
The remarkable increase of election related activities goes hand in
hand with a renewed understanding of national sovereignty in international law which no longer is insensible to the way a regime is formed.
Some talk about an “emerging right to democracy.”5 An individual
right to participate in elections is found in international human rights
instruments (e.g. the International Covenant on Civil and Political
Rights, CCPR, article 25) which provide for a right to political participation, including electoral guarantees. These treaties are widely ratified.6 At the 1993 World Conference on Human Rights, the representatives of 171 states underlined the responsibility of the international
community to “support the strengthening and promotion of democracy, development and respect for human rights and fundamental freedoms in the entire world.”7 Thereby, the commitment to democracy
and the recognition of the right to political participation can be viewed
as almost universally shared and accepted.
Despite this widespread recognition, the worldwide realisation of
democracy seems far from perfect. Freedom House, in its survey measuring political and civil liberties, indeed found “freedom in retreat” in
2008, for the 3rd year in a row.8 Leaving aside obviously undemocratic
states and dictatorships,9 even in those states which periodically hold
elections, serious flaws undermine electoral processes and impede the
free expression of the will of the people as basis for the authority and
legitimacy of their respective governments. Large scale incidents of
fraud, such as during Azerbaijan’s parliamentary elections in 2005, taint
5
6
7
8
9
T. Franck, “The Emerging Right to Democratic Governance”, AJIL 86
(1992), 46 et seq.; T. Franck, “The Emerging Right to Democratic Governance”, in: R. Falk (ed.), Human Rights: Critical Concepts in Political Space,
2008, Vol. 11, 171.
As of June 2009, the CCPR was ratified by 164 states; CERD by 173 states,
CEDAW by 186 states.
Vienna Declaration and Programme of Action, 25 June 1993, para. I/8.
See A. Puddington, “Freedom in the World 2009. Setbacks and Resilience”,
<http://www.freedomhouse.org/uploads/fiw09/FIW09_OverviewEssay_Fi
nal.pdf, 2>.
According to estimates of 2003, in 10-15 states worldwide elections had
never been held at the national level; M. Suksi, “The Electoral Cycle: On
the Right to Participate in the Electoral Process”, in: M. Suksi/ J. Lindblad
(eds), Election Elements: On the International Standards of Electoral Participation, 2003, 1 et seq. (44).
216
Max Planck UNYB 13 (2009)
electoral results.10 Restrictions on media and civil society, as was the
case in Russia,11 undermine the essential preconditions for pluralist
elections and indicate a worrying shift towards “directed democracies”
where elections become only a façade. Finally, a lack of transparency
may undermine confidence in the results, as evidenced in the 2007 Kenyan presidential elections as well as in Iran’s Presidential elections of
June 2009 with outbursts of violence in the aftermath of the elections.12
These examples confirm that the peoples’ ability to genuinely choose
their government or head of state is not always achieved, even in those
states which regularly hold elections.13
Against this background and after roughly two decades of international electoral support, it is thus necessary to ask: what role can such
support play to further the quality of electoral processes? Can it live up
to the expectations put forward in the Declaration of Principles for International Election Observation,14 which affirms the potential of international election observation to enhance the integrity of electoral
processes?15
In order to adequately set in context the role of international electoral support, Part II. of this article will discuss the applicable stan-
10
11
12
13
14
15
See in this sense, International Election Observation Mission, Statement of
Preliminary Findings and Conclusions, Republic of Azerbaijan, Parliamentary Elections, 6 November 2005, <http://www.osce.org/documents/odihr
/2005/11/16889_en.pdf>.
See for instance BBC News, “Russia closer to controlling NGOs” of 27
December 2005, <http://news.bbc.co.uk/1/hi/world/europe/4562278.stm>.
More generally A. Aslund, “Democracy in Retreat in Russia”,
<http://www.carnegieendowment.org/publications/index.cfm?fa=view&id
=16550>.
<http://www.eueomkenya.org/Main/English/PDF/Final_Report_Kenya_2
007.pdf>, 3, EU EOM, Kenya General Elections, 27 December 2007; BBC
News, Iran Crisis, 6 July 2009, <http://news.bbc.co.uk>.
On the basis of criteria such as a competitive multi party system, universal
adult suffrage and regular elections, Freedom House considered only 119
out of 193 countries as “electoral democracies”, Puddington, see note 8, 3.
Countries such as Russia and Azerbaijan were qualified as “not free”,
Kenya as partly free, Freedom House, Map of Freedom 2009,
<http://www.free domhouse.org/template.cfm?page=445>.
Declaration of Principles for International Election Observation, New
York, 27 October 2005, <http://www.cartercenter.org/documents/2231.
pdf, 2>.
Ibid., 1.
Binder, Two Decades of International Electoral Support
217
dards: election related elements of the right to political participation, as
stipulated in core human rights documents and central political commitments adopted in the ambit of international organizations. Part III.
will deal with election observation and assistance by international organizations as major electoral support activities. It will outline the organization and methodology of election observation missions (EOMs)
and explain the tasks of electoral assistance. The fourth Part will analyse
to what extent international electoral support may be considered an
adequate tool to improve the quality of elections and to promote democracy. The added value as well as the limitations and challenges of
relevant electoral support activities will be discussed in detail accordingly. A final fifth Part will summarise the main findings and evaluate
the impact of international electoral support in light of current developments.
II. Applicable Standards16
The election related aspects of the right to political participation are set
out in two major bodies of international law: human rights instruments
and the election observation practice of international organizations. The
latter is conducted on the basis of political commitments of Member
States which are informed by international human rights standards. For
instance, according to OSCE methodology, in areas where they are
conducted, EOMs assess whether the electoral process is in line with
OSCE commitments, universal standards for democratic elections and
other international obligations of the respective state.17
16
17
For further reference see C. Binder, “International Election Observation by
the OSCE and the Human Right to Political Participation”, European Public Law 13 (2007), 133 et seq.
See OSCE/ODIHR, Election Observation Handbook, 5th edition, 2005,
15. The Handbook cites article 21 UDHR, article 25 CCPR, article 5
CERD and article 7 CEDAW as “universal principles”, ibid., 15-16.
Max Planck UNYB 13 (2009)
218
1. International Human Rights Law
a. Universal Instruments
A number of major universal human rights instruments stipulate elections as central to realise the right to political participation. These include the Universal Declaration of Human Rights (UDHR), the CCPR
but also – with a particular view to empower marginalised groups or
women – the International Convention on the Elimination of all Forms
of Racial Discrimination (CERD), the Convention on the Elimination
of all Forms of Discrimination against Women (CEDAW) and the
Convention on the Rights of Persons with Disabilities. The necessary
features of elections are further detailed by the Human Rights Committee (HRC) in General Comment No. 25 from 199618 as well as by the
CEDAW Committee in General Recommendation No. 23.19 Although
neither the General Comment nor the General Recommendation is legally binding on the states that have ratified the CCPR or CEDAW,
they serve as powerful guidelines for the realisation of the right to political participation.
The 1948 UDHR refers in article 21 (3) to essential election elements
such as universal and equal suffrage and the necessary secrecy of the
vote. It also states that elections must be periodic and genuine.20 The
first legally binding stipulation of a right to political participation in an
international treaty21 and a further elaboration of election elements is
contained in article 25 of the 1966 CCPR.
According to article 25:
“Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions: a) To take part in the conduct of public affairs, directly
18
19
20
21
HRC, General Comment No. 25 of 12 July 1996, Doc.
CCPR/C/21/Rev.1/Add.7, “The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art. 25).”
CEDAW Committee, General Recommendation No. 23, 16th Sess., 1997,
<www.un.org/womenwatch/daw/cedaw/recommendations/index.html>.
Article 21 (3) UDHR: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be held
by secret vote or by equivalent free voting procedures.”
The UDHR is as General Assembly resolution in principle not legally
binding.
Binder, Two Decades of International Electoral Support
219
or through freely chosen representatives; b) To vote and to be
elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors; […].”
The HRC’s General Comment clarifies that the CCPR does not give
preference to a specific electoral system, which is left to the discretion
of national states as long as the equality of votes (equal weight of votes)
is respected (para. 21). The Comment outlines, however, that periodic
elections must be held at intervals which are not unduly long (para. 9)
and establishes that the election process must be supervised by an independent electoral authority (para. 20). Regarding a person’s right to
vote and to stand for elections, it states that it may be subject only to
reasonable and non discriminatory restrictions such as a minimum age
limit (paras 10, 15). Furthermore, the General Comment refers to the
election campaign, the election itself and also stresses the necessary due
implementation of its results (para. 19). It states the importance of other
rights (freedom of expression, assembly and association) as essential
preconditions for the effective exercise of the right to vote (para. 12),
stresses that voters must be able to exercise their right free from intimidation or fear (paras 19, 20) and underlines the importance of the secrecy of the vote (para. 20). The HRC outlines, furthermore, that the
realisation of the right to political participation not only requires noninterference on the part of the state but also that effective measures (e.g.
the establishment of voter registers) are enacted to enable persons to exercise their voting rights (paras 1, 11).
Treaties such as CERD (article 5c), the Convention on the Political
Rights of Women of 195222 (articles I-III), CEDAW (article 7), and the
Convention on the Rights of Persons with Disabilities (article 29) guarantee a non discriminatory participation in the electoral process which
may benefit particular vulnerable groups such as disabled persons, minorities or women. In addition, an encouragement and even an obligation of states to adopt special measures in order to achieve not only a de
iure but also a de facto equality of disadvantaged groups in regard to
participation in the political process and representation may be deduced
from these instruments.23
22
23
Convention on the Political Rights of Women, A/RES/640 (VII) of 20 December 1952.
See article 2 (2) CERD, article 3 CEDAW and article 5 of the Convention
on the Rights of Persons with Disabilities. See also General Recommendation No. 23, where the CEDAW Committee encourages states to take tem-
Max Planck UNYB 13 (2009)
220
Further, human rights standards which set the very preconditions
for elections are established with the right to freedom of expression, assembly and association.24 These rights are of relevance for the entire
electoral process: during the pre-election period (e.g. as regards the
election campaign or the establishment of political parties); on election
day; and in the post-election phase (e.g. in case of public demonstrations or manifestations; or public criticism of the results). Fair trial
standards as contained in article 14 CCPR are crucial for the assessment
of specific aspects of the electoral process, such as for election dispute
resolution mechanisms.
b. Regional Instruments
In the regional context of the Americas, article 23 American Convention on Human Rights enshrines a right to political participation which
is largely similar to article 25 CCPR. In Europe, the first Protocol to
the European Convention on Human Rights (ECHR) contains a
slightly weaker provision: article 3, 1st Protocol to the ECHR.25 One
weakness with article 3 is that, instead of stipulating individual rights, it
only states the obligation of States Parties to hold free elections at reasonable intervals by secret ballot. This weak formulation, however, has
been strengthened by the dynamic interpretation of the Strasbourg organs which made it justiciable as individual right.26 In the African context, article 13 of the Banjul Charter does not directly mention elections, but merely states that “Every citizen has the right to participate
freely in the government of his country, either directly or through
freely chosen representatives in accordance with the provisions of the
law.” In the interpretation of the African Commission on Human and
24
25
26
porary special measures to ensure the equal representation of women in all
fields covered by arts 7 and 8, CEDAW General Recommendation, see
note 19, para. 15.
See e.g. arts 19, 21, 22 CCPR.
Article 3, 1st Protocol to the ECHR: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of the people in the choice of their legislature.”
Council of Europe, Digest of Strasbourg Case Law relating to the European Convention on Human Rights, Vol. 5, 1985, 829 et seq. See also A.
Rosas, “Article 21”, in G. Alfredsson/ A. Eide (eds), The Universal Declaration of Human Rights, 1999, 431 et seq. (443-444).
Binder, Two Decades of International Electoral Support
221
Peoples’ Rights, this power involves nonetheless legitimising a sovereign power through elections.27
2. Political Commitments Adopted in the Ambit of
International Organizations
The binding standards in human rights instruments are further developed and concretised by political commitments and best practices
adopted and developed in the context of international organizations.
Although formally, these commitments and best practice models are not
legally binding, they serve as common standards of reference and are
supposed to foster implementation in a similar way as obligatory standards.28
Due to the plurality of actors involved, the regulatory framework so
developed is not based on one single text or instrument. Relevant
documents include, inter alia, the biannual General Assembly Resolutions “Enhancing the effectiveness of the principle of periodic genuine
elections” (“Enhancing Resolutions”), the 1990 CSCE Copenhagen
Document29 (paras 6-8), the Inter-American Democratic Charter (arts
23-25)30 and the 2002 OAU/AU Declaration on the Principles Govern-
27
28
29
30
African Commission on Human and Peoples’ Rights, Constitutional Rights
Project and Civil Liberties Organization v. Nigeria, 31 October 2008, Doc.
ACHPR/102/93 paras 49-50. Cited after N. Petersen, “The Principle of
Democratic Teleology in International Law”, Brook. J. Int’l L. 34 (2008),
35 et seq. (67).
See in this sense the statements made at the OSCE Supplementary Human
Dimension Meeting “Electoral Standards and Commitments”, 15-16 July
2004, Final Report, <http://www.osce.org/documents/odihr/2004/10/3765
_en.pdf>, 8. See also Fox: “While CSCE States did not intend for the Helsinki process to produce legally binding treaties, provisions in these subsequent agreements read as obligatory rather than merely hortatory standards”, G.H. Fox, “The Right to Political Participation in International
Law”, in: G.H. Fox/ B.R. Roth (eds), Democratic Governance and International Law, 2000, 48 et seq. (68).
Conference on Security and Co-operation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the
CSCE, 29 June 1990, ILM 29 (1990), 1305 et seq. The CSCE was renamed
OSCE in 1994.
Inter-American Democratic Charter, 12 September 2001, ILM 40 (2001),
1289 et seq.
222
Max Planck UNYB 13 (2009)
ing Democratic Elections in Africa (paras II-IV),31 as well as the 2007
African Charter on Democracy, Elections and Governance (article
17).32 At expert/technical level, the Venice Commission of the Council
of Europe assembled principles of European heritage concerning elections in the 2002 Code of Good Practice in Electoral Matters.33
Notably, the General Assembly “Enhancing Resolutions” are rather
vague on relevant standards and also stress the necessary autonomy of
states by affirming that the primary obligation to organise elections is
with the respective governments.34 The level of concretisation of the
relevant electoral commitments in the regional documents differs.
Whereas the Inter-American Democratic Charter contains rather broad
references to the necessary promotion of democracy, the CSCE Copenhagen Document35 and the instruments adopted in the African context (OAU/AU Declaration on the Principles Governing Democratic
Elections in Africa and the 2007 African Charter on Democracy, Elec-
31
32
33
34
35
Organization of African Unity, OAU/AU Declaration on the Principles
Governing Democratic Elections in Africa, 8 July 2002, Doc. AHG/Decl. 1
(XXXVIII).
African Charter on Democracy, Elections and Governance of 30 January
2007, not yet in force.
European Commission for Democracy through Law (Venice Commission),
Code of Good Practice in Electoral Matters, 5-6 July and 18-19 October
2002, CDL-AD(2002)023.
See e.g. A/RES/60/162 of 16 December 2005 titled “Strengthening the Role
of the United Nations in Enhancing the Effectiveness of the Principle of
Periodic and Genuine Elections and the Promotion of Democratization”.
The General Assembly resolutions which emphasise the necessary respect
for national sovereignty (“Respect Resolutions”) and may somehow be
considered as reply to the “Enhancing Resolutions”, will be discussed in
more detail in Part IV. 2. a.
For example, in addition to detailing the single commitments of universal
and equal suffrage (7.3), secrecy of the vote (7.4), the necessity of free elections at reasonable intervals (7.1) where the seats of at least one chamber of
the national legislature are contested by popular vote (7.2), para. 7 of the
CSCE Copenhagen Document goes further and explicitly refers to the
need for freely established political parties (7.6), the need to ensure that
campaigning is conducted in a free and fair atmosphere (7.7) and the essential unimpeded access to the media for all political groupings (7.8) in the
election related context. Finally, para. 7.9 affirms that the elected candidates
have to be duly installed in office.
Binder, Two Decades of International Electoral Support
223
tions and Governance)36 outline the election related commitments of
Member States in considerable detail.
Further concretised and developed in the election observation practice of international organizations, the following standards may be deduced and guide the relevant electoral support activities (election observation and assistance):37 universal and non-discriminatory voter registration; effective guarantee of equal voting rights; creation of a level
playing field for parties and candidates, including adequate access to the
media and to public funds; existence of a transparent legal framework
and a neutral and impartial election administration, usually implying
the establishment of an independent electoral commission; the freedom
of voters to form and express their opinion without intimidation; the
secrecy of the vote; correct counting of votes and publication of the results; guarantee of an effective complaints and appeals procedure; and
due installation in office of those validly elected. At the same time,
however, these standards are always to be viewed against the background of diverging country situations and the countries’ varying stages
in the process of democratic transition. This contextualisation allows
for a certain flexibility and opens a possibility to accommodate different country situations.38
In short, the electoral support activities by international organizations take place against the background of a detailed set of international
standards and best practices which governs and guides these activities.
In the following, the potential of electoral support to enhance the quality of electoral processes and to promote democratic consolidation will
be examined with a view to the realisation of these international standards.
36
37
38
The 2002 OAU/AU Declaration on the Principles Governing Democratic
Elections in Africa and the 2007 African Charter on Democracy, Elections
and Governance inter alia emphasise the necessary establishment of independent and impartial national electoral bodies; timely election disputes
resolution mechanisms; media access to candidates; and a code of conduct
for the relevant stakeholders, in which all parties and candidates commit
themselves, among others, to accept the results.
See also Binder/ Pippan, see note 3, para. 21.
A country is thus assessed not only against the scale of absolute values but
also as to its proper progress made.
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III. International Electoral Support Activities
1. Overview
Electoral support activities are conducted by the UN as well as by an
ever increasing number of (sub-)regional organizations. Among the
most active are the OAS, the OSCE, the EU, the Commonwealth and
recently, the (AU) African Union and the Commonwealth of Independent States (CIS).39 The OAS, the OSCE, the AU, the CIS and the
Commonwealth thereby limit their engagement to Member States,
whereas the EU is the only organization that observes elections and
conducts electoral assistance projects exclusively in non-member countries. Unlike Eurasia, the Americas and Africa, Asia lacks a regional organization engaging in electoral support.
The analysis here will be limited to the activities conducted by these
governmental organizations. Election support by international non
governmental organizations (NGOs) will not be discussed as this
would go beyond the scope of this Chapter. Note, however, that numerous NGOs such as the Carter Center, the National Democratic Institute, the European Network of Election Monitoring Organizations
(ENEMO), or the International Foundation for Electoral Systems
(IFES) are frequently engaged in EOMs and relevant electoral assistance projects.
Furthermore, and in line with what was said in the introduction, this
section will refer only to the electoral support activities which are most
widespread, namely election observation and assistance. Election observation is generally defined as the “purposeful gathering of information
regarding an electoral process, and the making of informed judgements
on the conduct of such a process on the basis of the information collected, by persons who are not inherently authorized to intervene in the
process [...].”40 Put differently, in an EOM, independent observers are
39
40
In Africa, also sub-regional organizations, such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), are increasingly becoming involved in election related activities.
International IDEA, Glossary of Electoral and Related Terms,
<http://wwwold.idea.int/publications/ace/electoral_glossary.htm#e>. See
also the similar but more detailed definition of “international election observation” of the Declaration of Principles for International Election Observation, see note 14, 2.
Binder, Two Decades of International Electoral Support
225
deployed who assess whether an election was conducted in accordance
with international standards. Electoral assistance, on the contrary, may
comprise a broad range of activities with technical advice and support
provided to the national election authorities being the most common.
The difference between electoral observation and assistance is thus
based in the role they play for/in the electoral process. While election
observation is based on the principle of non interference and – in the
end – takes a position and issues a statement on whether the electoral
process was conducted in line with international standards, electoral assistance directly supports national electoral authorities but does not
publically comment on the quality of the electoral process.
The importance of international electoral support is generally recognised. In the ambit of the above-mentioned regional organizations
(OSCE, OAS, AU), states usually commit themselves to receive observers, stressing the importance of election observation for the quality
of the electoral process.41 The relevance of electoral assistance is emphasised especially by the UN, and more particularly in the “Enhancing
Resolutions” of the General Assembly.42 Furthermore, most of the
above-mentioned organizations have established proper institutions to
promote democracy and conduct electoral support activities.43
41
42
43
The OSCE participating states recognise election observation as a tool to
promote and support democratic elections. Accordingly, the Copenhagen
Document affirms: “The participating States consider that the presence of
observers, both foreign and domestic, can enhance the electoral process for
states in which elections are taking place. They therefore invite observers
from any other CSCE participating States […] to observe the course of
their national election proceedings […],” Copenhagen Document, see note
29, para. 8. Likewise, in the ambit of the OAS and the AU the importance
of receiving election observers is recognised. Arts 24, 25 of the 2001 InterAmerican Democratic Charter; article V of the 2002 OAU/AU Declaration
on the Principles Governing Democratic Elections in Africa.
See e.g. A/RES/62/150 which stresses the usefulness of electoral assistance,
A/RES/62/150 of 18 December 2007, para. 5.
The principal institution mandated to conduct electoral support in the
framework of the OSCE is the ODIHR, in the ambit of the OAS it is the
Department for the Promotion of Democracy, and in Africa, it is the Democracy and Electoral Assistance Unit. Within the United Nations, the
UN Electoral Assistance Division is responsible for assisting the UnderSecretary-General for Political Affairs, who serves as the focal point for
UN electoral assistance activities. Likewise, the UNDP Bureau for Development Policy at HQ and the UNDP offices are important actors in the
electoral assistance field.
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In the following, an overview of the relevant electoral support activities will be given: the methodology and conduct of EOMs will be
discussed and the most important electoral assistance activities outlined.
The focus will concentrate on the OSCE and EU as regards EOMs and
on the UN with respect to electoral assistance.
2. Methodology and Organization of an Election Observation
Mission (EOM)44
EOMs for a particular election are deployed at the invitation of the
country concerned.45 While organizations usually focus on new democracies and countries in transition; as a response to criticisms, some organizations also started to deploy (targeted) missions46 to long standing
democracies.47 Primarily, direct elections for state institutions at the national level are observed. At times, an organization may also decide not
to observe an election or to deploy only a limited mission either because the legal framework or the overall conditions for genuine democratic elections are not in place or because security factors do not permit
the necessary minimum conditions for effective election observation.
For instance, in the region of the OSCE, the Office for Democratic Institutions and Human Rights (ODIHR) has never sent an EOM to
Turkmenistan48 and only limited missions were deployed to Uzbekistan49 because preconditions essential to free and fair elections were
lacking. Likewise, only a limited mission was sent to observe the 2003
44
45
46
47
48
49
See also Binder, see note 16, 145.
For instance, all OSCE participating states have been requested to inform
the ODIHR of their upcoming elections and to issue an official invitation
to the ODIHR in a timely manner, Election Observation Handbook, see
note 17, 13.
These assessment missions usually comprise a team of experts who visit a
country shortly before an election and on election-day. They focus on specific issues and the implementation of best practices, ibid., 14.
See for instance the OSCE/ODIHR mission to the United States presidential elections in 2008, and the assessment missions to the United Kingdom
in 2003 and 2005, to France in 2002 and 2007 and to Italy in 2006 and 2008;
reports available at <http://www.osce.org/odihr-elections/14207.html>.
An election support team was sent to the 2007 Turkmenistan presidential
elections.
Uzbekistan parliamentary elections 1999 and 2004, reports available at:
<http://www.osce.org/odihr-elections/14681.html>.
Binder, Two Decades of International Electoral Support
227
referendum in Chechnya.50 The EU withdrew missions from the 2002
Zimbabwe presidential elections and Côte d’Ivoire because the national
situations impeded effective observation.51
EOMs generally consist of two components: long term and short
term observation.52 The Core Team (8-12 persons) and a limited number of Long Term Observers (LTOs usually around 14-20) are deployed
ideally five to six weeks (six to eight weeks for the Core Team) before
election-day.53 The Core Team (presided over by a Head of Mission) is
composed of experts in different areas, such as a legal and a political expert, a media analyst and in some cases also a gender or a minority expert. The Core Team will assess the overall framework for and the conduct of the elections from the respective capital city, which may be
viewed as the host site of the mission’s “headquarters”. The LTOs are
deployed in the different regions to observe the various phases of the
election (pre-election phase, election-day, the immediate post-election
phase and the extended post-election phase) throughout the country.54
They are mandated to monitor the registration of voters and candidates,
the effectiveness and preparedness of the national election commissions,
the election campaign, the conduct of the media and the election disputes resolution through administrative and/or judiciary processes
(monitoring possible court trials).
A large number of Short Term Observers (STOs between 40 and
1300,55 depending on the organization56 and on the country situation) is
deployed immediately before the election. On election-day, they visit
various polling stations (usually around 10) and talk to election officials
50
51
52
53
54
55
56
OSCE/ODIHR, Council of Europe, Joint Assessment Mission, Preliminary
Statement, Russian Federation Chechen Republic, Referendum of 23 March
2003, <http://www.osce.org/odihr-elections/14525.html>.
Email correspondence with Patrick Dupont, EU Commission, of 4 April
2007. See also, M. Asser, “Zimbabwe Rewrites Observer Rules”, BBC
News, 26 February 2002.
For details see Election Observation Handbook, see note 17, 25 et seq.
A needs assessment mission will assess extent, needs and context of the intended EOM two to three months prior to the effective deployment of the
mission, ibid., 23-24.
For further details, ibid., 29 et seq.
1300 STOs observed the Repeated Second Round of the Ukraine Presidential Elections on 26 December 2004, International EOM, Preliminary
Statement, <http://www.osce.org/documents/odihr/2004/12/4007_en.pdf,
14>.
For instance, the OSCE tends to deploy more STOs than the EU.
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as well as to other observers and voters57 in order to assess how voting
and counting is conducted. Questionnaires (report forms) guide their
observations and provide for a mainly statistical/quantitative assessment of the election.58
To publicise the observations made by the observers, immediately
after election-day, a statement of preliminary findings and conclusions59
is presented at a press conference. A comprehensive final report is prepared approximately six weeks after the election.60 It contains the overall assessment whether an election process was conducted in accordance
with international standards and also includes country-specific recommendations to improve future elections.
In conclusion, EOMs are organised in such a way as to permit a
comprehensive picture of an election. The widespread and lasting presence of observers stationed throughout the country documents the entire election process in a manner not possible with traditional human
rights monitoring mechanisms.61 Furthermore, the publication of the
mission’s findings immediately after election-day considerably enhances
the impact and the attention it receives from the public.
57
58
59
60
61
For more details, see Election Observation Handbook, see note 17, 51 et
seq. and 65-66.
The questions asked refer to the polling station committee (composition,
preparedness), the setting of the polling station (presence of campaign material etc.), the presence of local observers, party representatives and unauthorised persons such as the police or the military. Further questions concern the accuracy of the voter lists and the conduct of the polling.
For more details, see Election Observation Handbook, see note 17, 66-67.
See in this sense, ibid., 77.
For instance, by means of in-depth media monitoring, observers will note
irregularities such as a clear bias in favour of the incumbent party. Likewise, observers may be able to detect cases where a deviating local or national practice violates international standards despite appropriate national
laws. For Example, the de facto lack of independence of the election commissions was deplored during the 2005 parliamentary elections in Tajikistan. OSCE/ODIHR, Statement of Preliminary Findings and Conclusions,
Republic of Tajikistan, <http://www.osce.org/documents/odihr/2005/02/
4333_en.pdf, 4>. Parliamentary Elections - First Round, 27 February 2005.
Binder, Two Decades of International Electoral Support
229
3. Electoral Assistance
Electoral/technical assistance missions tend to be smaller than EOMs.
Being targeted, expert missions, especially missions with a long-term
component remain in the country a considerable time. In 2007, UNDP
provided electoral assistance to an annual average of 40 to 50 countries
as diverse as Armenia, Bhutan, Cambodia, Democratic Republic of the
Congo (DRC), Mexico, East Timor, Togo, Yemen and Zambia.62 Of
this assistance, approximately half was focused on an election event and
half on longer-term support.
Generally, eight phases of the electoral cycle63 may be distinguished.
During these, different kinds of electoral assistance activities are of
varying relevance.64
The assistance provided during phase 1, the adjustment of the legal
and constitutional framework to the needs of a given society, will address issues such as the design of the electoral system, composition and
competences of the election administration as well as boundary delimitation. A strengthening of the organisational and planning capacities of
the electoral management bodies will be at stake especially during phase
2, which comprises all preparatory activities for the forthcoming elections.65 A frequent field of electoral assistance is also phase 3, the capacity building/training of electoral staff; voter information and civic education campaigns;66 as well as the training of domestic observers. Sup-
62
63
64
65
66
UNDP, 2007, <http://www.undp.org/governance/docs/UNDP-ElectoralAssistance-Implementation-Guide.pdf, 5>, Electoral Assistance Implementation Guide.
For further reference on the electoral cycle and relevant electoral assistance
activities <www.ec.europa.eu/europeaid/multimedia/publications/publicat
ions/thematic/evaluation-methodology-external-assistance_en.htm>,
European Commission, Methodological Guide on Electoral Assistance, October 2006, 45, see also UNDP-Implementation-Guide, see note 62, 5.
Ibid.
These activities include budgeting, recruitment of electoral staff, procurement of the electoral material and security etc.
A differentiation between civil education and voter information may be
made in so far as civil education focuses on broader issues of civil engagement, thus laying the basis for an informed participation; whereas voter information provides information on the electoral process (e.g. on how to
vote).
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port for the registration of voters, political parties and candidates 67
(phase 4) is especially important, as inclusiveness and transparency in
the establishment of the voter and candidate lists are essential for the legitimacy of an election.
A particular challenge to electoral assistance activities may then be
posed during phase 5, the electoral campaign, which is usually a period
of high tension and strong political messages. Issues to be addressed
during this phase include campaign coordination; media access;
party/campaign financing; enforcement of campaign regulations; and
dispute resolution. Electoral assistance provided during phase 6 (polling
procedures on election-day (e-day)) may include support to address the
operational needs on e-day. Assistance during the results verification
phase (phase 7) is of especial relevance as poorly managed results – even
without fraud/political interference or bias – can impact negatively the
entire electoral process. The post elections phase (phase 8) – or “in between election period”– is the ideal period to address all issues which
appeared problematic or were not tackled previously. Being also the
start of a new electoral cycle, it likewise offers the possibility to appreciate elections not as a short-term event but as cycle or as a development process and to channel assistance accordingly.
Generally, electoral assistance will not only have to focus on electoral authorities but also address other electoral stakeholders, such as
political parties, civil society, domestic observers and the media. Political parties will need to be informed about relevant campaign regulations
or available complaints mechanisms; civil society may be addressed via
voter information and civic education campaigns; domestic observers
should be trained and media monitoring projects given technical assistance. Types of assistance range from technical advice, as regards the
most appropriate IT technology for the establishment of voters and
candidates lists68 to expert support in the drafting of the regulatory
67
68
There are basically three different kinds of voter register: a periodic list
which is established on the basis of an active registration process for a specific election (usually used in post conflict elections); a permanent/continuous list of voters which is maintained and regularly updated
by the election administration; and voter lists which are passively drawn
from the civil registry (mostly used in western democracies and Latin
America).
Choices to be made will concern the level of technology used: low tech implies paper lists in voter registration centres at local/provincial level; medium tech: voter data which are scanned or entered with easy software with
Binder, Two Decades of International Electoral Support
231
framework governing the elections, logistical and operational support
during all phases of the electoral cycle, the capacity building of the relevant electoral stakeholders or also the provision of direct funding.
Electoral assistance may thus be provided during all phases of the
electoral circle. It addresses a wide range of electoral stakeholders and
includes a broad array of activities. Direct technical and financial assistance are thus particularly crucial forms of support for governments
which are politically willing to improve the quality of their electoral
processes.
4. Résumé
This appraisal evidences the complementary function of international
election observation and assistance activities. Problem areas which are
indicated in the reports of EOMs may, for instance, subsequently be
taken up and addressed by means of electoral assistance. In so doing,
electoral assistance activities can use the recommendations of the EOMs
as starting point and for further guidance during the project. Subsequent EOMs, in their findings and reports, can then assess the impact
of the relevant electoral assistance activity.
IV. Impact of International Electoral Support
1. Added Value of International Electoral Support
International electoral support may enhance the quality of electoral
processes in particular by means of 1.) precise standards; 2.) the presence of observers; 3.) technical and/or financial assistance and support;
4.) a (de-)legitimation of results by observers who assess the elections;
and 5.) detailed recommendations. These will be examined in the following.
a. Precise Standards
Electoral support (election observation and electoral assistance) has
produced an extensive set of standards and best practices which influvoter lists normally maintained at central level; high tech: electronic forms
with immediate data entry, digital picturing etc.
Max Planck UNYB 13 (2009)
232
ence and further detail human rights standards. For instance, human
rights law does not establish which electoral system (majority, semiproportional or proportional representation system) should be adopted
or what the regulatory electoral framework should look like. Best practices nonetheless maintain that it might be most appropriate for developing democracies to choose a system which stimulates the development of political parties and thus prefer a proportional representation
system to a strict majority system.69 Likewise, excessively high thresholds for parties to enter parliament were not considered appropriate in
proportional representation systems set up in young democracies.70
This detailed set of standards permits to draw a clear picture of a country’s electoral performance and facilitates exact recommendations for
further improvement as well as targeted support by means of electoral
assistance. Precise standards and best practice models also make it easier
for national governments to improve their electoral performance.
b. Presence of Observers
Furthermore, the very presence of EOMs should improve the quality of
the election process. During all relevant electoral phases (pre-election
period, election-day, post-election phase), international observers monitor the situation throughout the country. Opposition candidates or national observers may report alleged irregularities of the election process
to them. The mere presence of international observers strengthens the
position and improves the security of local actors.71 On e-day, the pres-
69
70
71
See for instance <http://www.osce.org/documents/odihr/2006/07/20020_
en.pdf.>, OSCE/ODIHR, Assessment of the Law on Election of the President, Republic of Tajikistan, 26 July 2006.
For instance, a six per cent threshold to enter parliament was considered
high in Moldova, OSCE/ODIHR, Final Report, Republic of Moldova, Parliamentary Elections, 25 February 2001, <http://www.osce.org/docu
ments/odihr/2001/04/1280_en.pdf, 3>.
See for instance Balian who maintains: “At times, opposition candidates
would not have taken part in an election without the minimum margin of
safety provided by the presence of international observers. Likewise, domestic observers would not have been able to function as effectively or at
all without the presence of international observers”, H. Balian, “Ten Years
of International Election Assistance and Observation”, Helsinki Monitor 3
(2001), 197 et seq. (199-200).
Binder, Two Decades of International Electoral Support
233
ence of international observers in a considerable number of polling stations deters overt acts of electoral fraud.72
Furthermore, the immediate publication of the EOM’s preliminary
findings usually attracts considerable attention from national as well as
from international media. The instant publicity drawn to the election is
therefore a strong instrument to pressure national authorities to conduct elections that are in conformity with international standards. Accordingly, in most cases, the electoral process as such is improved by
the presence of an impartial and objective third party which observes
how the elections are conducted.
c. Technical and/or Financial Assistance and Support
The provision of technical and/or financial support through means of
electoral assistance facilitates the implementation of the respective international standards in a more direct way. 73 The broad knowledge of
the electoral assistance teams, whose advice is guided by comparative
experience and detailed best practice models, may thus be an invaluable
help for a country to bring its electoral process in line with international standards.74 For example, UNDP has organised a wide range of
activities to support the independence of media and journalists in countries such as Liberia, Sierra Leone, East Timor, Cambodia and Kenya.
The playing field for contestants during the election campaign should
be levelled accordingly, when objective reporting on the election campaign is improved.75 Financial assistance, on the other hand, delivers
funds, which evolving democracies, in particular, might need. For instance, the international community provided 1.6 million Euro mainly
through the OSCE Election Assistance Programme to finance the Central Election Commission and electoral bodies during the parliamentary
elections in Georgia 2004.76 For the Rwandan elections 2008, UNDP
72
73
74
75
76
Ibid.
Various reports directly refer to the possibility of electoral assistance. See
for instance the OSCE/ODIHR, Final Report, Russian Federation, Presidential Election, 14 March 2004, <http://www.osce.org/documents/odihr/
2004/06/3033_en.pdf, 2>.
For further information on election assistance see e.g. OSCE/ODIHR’s
website, <http://www.osce.org/odihr-elections/13411.html>.
UNDP-Implementation-Guide, see note 62, 48.
See in this sense OSCE/ODIHR, Final Report, Georgia, Extraordinary
Presidential Election, 4 January 2004, <http://www.osce.org/documents/
odihr/2004/02/2183_en.pdf, 7 and 10>.
Max Planck UNYB 13 (2009)
234
went one step further and attributed the administration of funds directly to the Rwandan electoral commission. This considerably increased the electoral commission’s competence to decide autonomously
upon the allocation of funds. In Azerbaijan and Armenia the legislative
framework was considerably improved through assistance projects
conducted by the OSCE Office for Democratic Institutions and Human Rights.77
A long-term approach in respect of electoral assistance will go beyond a specific electoral event and may be linked to broader government/democracy support. In this way, especially long-term electoral assistance promotes an election process in the sense of Suksi’s ideal view:
“Each turn of the electoral cycle should bring the process to a higher
level of perfection so that the election elements are ever better implemented and realised.”78
d. (De-)Legitimating Process and Results
International election observers should furthermore contribute to the
electoral process by means of their independent judgements. The mission’s findings enjoy considerable credibility due to the multinational
character of EOMs.79 Accordingly, depending on whether the findings
signal compliance with international standards or state the contrary,
they either legitimate or de-legitimate the electoral process.80
Hence, if an election is considered to have been conducted in accordance with international standards, legitimacy will be added to the re77
78
79
80
A complete list of countries where the ODIHR conducted analyses of election legislation is available at <http://www.osce.org/odihr-elections/13438.
html>.
Suksi, see note 9, 34.
Normally OSCE Member States second their observers. Since not all states
have sufficient funds at their disposal, a voluntary fund for EOMs was established in 2001 in order to diversify EOMs. The fund proved particularly
useful to include observers from Central and Eastern Europe as well as
from the CIS, Election Observation Handbook, see note 17, 25. In EU
missions, the European Commission pays the observers. The aim is that as
many observers from the 27 Member States as possible participate.
As to this objective of election observation, see A. Tostensen, “Election
Observation as an Informal Means of Enforcing Political Rights”, Nordic
Journal of Human Rights 22 (2004), 330 et seq. (335 et seq.). See also International IDEA, Glossary of Electoral and Related Terms, <http://www.
idea.int/esd/glossary.cfm>.
Binder, Two Decades of International Electoral Support
235
sults, public confidence raised and the political actors are encouraged to
accept the outcome of an election. The “installation in office” of the
newly elected contestants should thereby be facilitated. On the contrary, if an election is criticised for having violated international standards, the mission’s findings will give voice and weight to allegations of
national actors who claim that electoral fraud has occurred. For instance, in Georgia (2003), Ukraine (2004) and also Kyrgyzstan (2005)
ODIHR found that the elections had fallen short of international standards.81 Thereby, they strengthened the position of the national opposition and finally contributed to new elections which resulted in a peaceful change of power.82 Likewise, after the contested parliamentary elections in Azerbaijan (2000), the results were partially annulled in some
constituencies due to large-scale incidents of fraud. This measure was
welcomed by ODIHR.83 In Nigeria (2007), EU EOM reports were
used and relied upon as evidence in court cases. In Ecuador (2009), opposition candidates brought their fraud allegations to the attention of
the EU EOM as an independent external actor.
Accordingly, international election observation has value to add particularly in the aftermath of an election. A mission’s findings may either
facilitate a peaceful installation in office of fairly elected candidates or
81
82
83
See the OSCE/ODIHR, EOMs’ Final Reports: Georgia, Parliamentary
Elections, 2 November 2003, 1; Ukraine, Presidential Election, 31 October,
21 November, 26 December 2004, 1 et seq.; The Kyrgyz Republic, Parliamentary Elections, 27 February and 13 March 2005, 4; reports available at
<http://www.osce.org/odihr-elections/14207.html>.
After contested parliamentary elections 2003 in Georgia, incumbent President Shevardnadze stepped down in November 2003 and opposition candidate Sakashvili was confirmed in office in January 2004 by a wide majority of voters (“rose revolution”). Likewise, the second round of the
Ukraine presidential election of October/November 2004 was annulled because of massive allegations of corruption, voter intimidation and fraud. A
second run off election was held in December 2004 which confirmed opposition candidate Yushchenko (“orange revolution”) by a large majority of
votes. In Kyrgyzstan, contested parliamentary elections of March 2005 resulted in the stepping down of President Akayev (“tulip revolution”).
See OSCE/ODIHR, Press Release, International Election Observers in
Azerbaijan welcome CEC Decision to investigate Allegations of Fraud,
Baku, 7 November 2000, <http://www.osce.org/odihr-elections/item_1_55
05.html>.
Max Planck UNYB 13 (2009)
236
support the contesting of results in cases of fraud.84 Democratic consolidation is therefore supported.
At the international level, the assessments of EOMs serve as yardstick to evaluate a country in terms of democratic performance. Possible follow up options (“carrots and sticks”) might be considered by the
international community accordingly. For instance, a positive assessment of the 2008 Rwandan elections by the EU EOM was crucial for
the decision on the allocation of development funds which were conditional upon, inter alia, the respect for human rights and democracy.85
On the other hand, when the March 2006 presidential elections in Belarus had been found fundamentally flawed by the OSCE/ODIHR, the
EU Council adopted restrictive measures, including a visa ban and the
freezing of assets, against the Belarusian leadership and the persons
“who are responsible for the violations of international electoral standards.”86 While still not adopted on a systematic basis,87 such external
“incentives” or follow up measures tend to considerably reinforce a
mission’s findings.
e. Recommendations
EOMs, furthermore, support national authorities by improving the
conduct of an election through their recommendations. The statements
and recommendations contained in the final reports indicate deficiencies and serve as a valuable basis to bring election processes in line with
international standards.88 This is well evidenced by the Ecuadorian electoral cycle with elections (including one referendum) in 2007, 2008 and
84
85
86
87
88
As stated by Balian, “… international election observation missions have
been an important element for stability in some sensitive and highly contested elections”, Balian, see note 71, 200.
See <http://www.ec.europa.eu/development/policies/consensus_en.cfm>,
the European Consensus on Development. For the period 2008-2013, the
10th European Development Fund (EDF) foresaw a total of 290 million
Euro for Rwanda; see EU Relations with Rwanda, <http://www.ec.europa.
eu/development/geographical/regionscountries/countries/country_profile.
cfm?cid=rw&t ype=short&lng=en>.
Council Common Position 2006/276/CFSP of 10 April 2006, Concerning
Restrictive Measures Against Certain Officials of Belarus, 2006 OJ L101/5.
See below, Part IV. 2. c. for further details.
The objectives of the ODIHR election observation activities are posted at
the OSCE/ODIHR’s website, <http://www.osce.org/odihr-elections/1374
8.html>.
Binder, Two Decades of International Electoral Support
237
2009. Problem areas concerning the formula for the assignation of seats
(“factor ponderador”), the disenfranchisement of prisoners without
conviction as well as of security forces, and the disproportionate powers of the election administration were criticised in the 2007 final report. Following this, these issues were addressed by the national authorities. As a result, the EU EOM which observed the 2009 general
elections was able to ascertain the implementation of their previous recommendations.89
International electoral support has thus considerable value to add,
especially when a country is willing to bring its electoral process in line
with international standards. However, a number of obstacles may hinder effective support or reduce its impact.
2. Limitations/Challenges to International Electoral Support
The limitations encountered by electoral support activities may be divided into four main areas: 1.) general considerations of national sovereignty; 2.) obstacles which are related to the political situation in the
country; 3.) intra-organizational problems in the respective organization and 4.) inter-organizational problems between different international organizations which are active in the field of election observation.
a. General Considerations of National Sovereignty
Assertions of national sovereignty and a rejection of interference by international/external actors which may affect electoral support activities
exist at two levels. First, electoral support may – as a matter of principle
– be rejected as “undue interference” with the national sovereignty of a
country. Second, specific recommendations made or advice provided
may be criticised as inappropriate interference or implementation/manifestation of a “hidden agenda” of international organizations
in a given situation.
A general rejection of electoral support might be read into some
resolutions of the General Assembly, which evidence the concern raised
89
See EU EOM Ecuador, Presidential and Parliamentary Elections, 26 April
2009, Statement of Preliminary Findings and Conclusions, Quito, 28 April
2009, 1. The new Ecuadorian electoral code which will be applicable to future elections implements the recommendations of the EU EOMs even
more broadly.
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by certain UN Member States (particularly developing countries) regarding a potential interference in their internal affairs. At the initiative
of some of these countries, the UN General Assembly has repeatedly
adopted resolutions entitled “Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their
electoral process” (“Respect Resolutions”), which affirm, inter alia, “the
right of peoples to determine methods and to establish institutions regarding electoral processes and, consequently, that there is no single
model of democracy or of democratic institutions.”90 Were they shared
by too many countries, such statements could challenge the very basis
of electoral support. As electoral support is provided only with the
consent of the countries concerned91 – and therewith upholds the principle of national sovereignty – an unwillingness of countries to receive
support would impede it. However, as a matter of fact, there are more
requests and invitations for electoral support than the respective organizations are able to accept.92 Moreover, the broad acceptance of international electoral support increasingly makes domestic electoral
processes, as well as, more generally, the transition to and consolidation
of democracy within sovereign states, a legitimate concern of the international community. It thus contributes to the revision of traditional
conceptions of national sovereignty and counters perceptions as evidenced in the General Assembly’s “Respect Resolutions”.
A government’s firm rejection of specific electoral support as undue
interference or for alleged partiality is a more widespread problem. For
instance, the final report of the EU EOM on the 2003 Rwandan elections was strongly criticised by Rwandan authorities as unduly biased;
as was the EU EOM assessment of the Ethiopian elections in 2005 by
Ethiopian stakeholders. Likewise, the Nigerian electoral commission
rejected the EU EOM’s assessment of the Nigerian 2007 elections and
accused EU observers of being “electoral tourists.”93 Such rejections, if
90
91
92
93
A/RES/60/164 of 16 December 2005, para. 3.
The United Nations only provide electoral assistance on the basis of a written request and EOMs are sent only to countries which invited them and
after the signing of a Memorandum of Understanding with the respective
government.
As stated before, out of the 363 official requests for assistance in electoral
matters received by the United Nations between 1989 and 2005, only 275
requests were accepted.
<http://www.monstersandcritics.com/news/africa/news/article_1347017.p
hp/Nigerian_electoral_commission_rejects_EU_observers_report__Round
Binder, Two Decades of International Electoral Support
239
not carefully handled, may seriously affect the (positive) impact of a report/an EOM, which in the perception of the population and the relevant electoral stakeholders, will lose its credibility. Even worse, the
reputation of the international organization itself may be at stake, as –
notwithstanding the fact that formally EOMs are independent – they
are mostly conceived as representing the respective organization. While
an EOM can never prevent allegations of bias or “hidden agendas”,
carefully drafted assessments with due reference to international standards and best practices are a certain safeguard against criticism.
b. Political and Human Rights Situation in the Country
The lack of political will of the incumbent party/government to improve the electoral process is much more difficult to overcome than
technical insufficiencies or the lack of experience of national authorities.
In extreme cases, EOMs have not been deployed at all because the
minimum conditions for democratic elections were not in place and a
deployment of observers would have given false and unintended legitimacy to the process. As stated, as of May 2009, OSCE/ODIHR had
never deployed an EOM to Turkmenistan. Furthermore, EU observer
missions were withdrawn from Côte d’Ivoire and Zimbabwe.94
The risk that complying with a government’s request to send international observers may be interpreted as giving undeserved legitimacy
to a flawed electoral process must, nonetheless, be balanced against the
potential benefits of engaging the country in question in an ongoing
dialogue and of keeping the process under international scrutiny. As a
middle course, international organizations have at times opted for a reduced mission, comprised of only a small number of long term observers, such as OSCE/ODIHR in case of the parliamentary elections in
Uzbekistan in 1999 and 2004. In worse cases, where the international
organization does not want to comment on the electoral process at all,
there is always the possibility to offer a minimum component of electoral assistance (such as media advice or poll worker training).
Therewith, the organization avoids issuing a statement on the elections
(and therefore giving false legitimacy to a flawed process) without cut-
94
up>, A.Hakeem, Nigerian Electoral Commission Rejects Observers’ Report,
23 August 2007.
See above Part III. 2.
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ting all communication channels with the country concerned.95 In fact,
while no EOM has ever been deployed to Turkmenistan, an electoral
support team was sent to the 2007 Turkmenistan presidential elections.
Other fundamental limitations encountered in numerous states
which hamper the impact of electoral support activities include a general erosion of human rights.96 If basic human rights such as the right to
freedom of expression, assembly and association, as well as the right to
freedom of movement are not guaranteed, the electoral process will be
seriously tainted and the presence of observers or the provision of technical advice of only limited added value. For example, the training of
political parties and candidates will be of no use where the right to freedom of assembly is lacking; and support concerning operational needs
on e-day will be worthless, if voters are not free when casting their vote
for reasons of intimidation. In fact, serious violations of human rights
were reported prior to the 2004 Belarus parliamentary elections where,
in the pre-election period, the police conducted raids on campaign offices of opposition candidates and even detained a candidate.97
Unequal campaign conditions were criticised during the 2003 presidential elections in Azerbaijan when opposition candidates were denied
permission to hold election rallies and public buildings deployed posters of ruling party candidates only.98 And the 2007 elections in Nigeria
95
96
97
98
As stated by Ludwig in a slightly different context: “The most difficult
cases for international donors are those in which an incumbent government
is systematically dismantling the institutions and mechanisms of democratic governance while requesting international assistance with elections.
Arguments are sometimes made that without a UN presence, the opposition will become violent, unrest will spread and the country (and potentially the region) will be destabilised. A possible solution may be the granting of minimal assistance for a technical component of the electoral process
(such as media advice or poll worker training). Election observation however will not be offered […]”, R. Ludwig, “The UN’s electoral assistance:
Challenges, accomplishments, prospects”, in: E. Newman/ R. Rich (eds),
The UN Role in Promoting Democracy. Between Ideals and Reality, 2004,
169 et seq. (182).
See in this sense Balian, see note 71, 203.
OSCE/ODIHR, Final Report, Republic of Belarus, Parliamentary Elections, 17 October 2004, <http://www.osce.org/documents/odihr/2004/12/
3961_en.pdf, 2>.
OSCE/ODIHR, Final Report, Republic of Azerbaijan, Presidential Elections, 15 October 2003, <http://www.osce.org/documents/odihr/2003/11/
1151_en.pdf, 11>.
Binder, Two Decades of International Electoral Support
241
were criticised for their “very poor organisation, lack of essential transparency, widespread procedural irregularities, substantial evidence of
fraud, widespread voter disenfranchisement at different stages of the
process, lack of equal conditions for political parties and candidates and
numerous incidents of violence” as “falling far short of international
standards.”99 In all these cases, the presence of independent observers
neither impeded electoral fraud nor prevented human rights violations.
Accordingly, the “success” of electoral support activities depends to
a large extent on the national situation and, also, on the receptiveness
and willingness of the national authorities to hold elections in accordance with international standards. In cases where the political will and
the basic pre-conditions for free and fair elections in a country are missing, electoral support activities have little chance of helping to improve
the quality of the elections and, therefore, to further democratic governance.
c. Intra-Organizational Problems
Also, intra-organizational problems reduce the impact of electoral support activities. First, international standards – though increasingly established – still fail to tackle the totality of ongoing processes as well as
emerging challenges. These include the participation of women in the
election process, the inclusion of national minorities, the accommodation of internally displaced persons, full access for disabled persons and
the question of party and campaign financing. Furthermore, additional
standards are necessary to cope with the challenges arising from new
technologies such as e-voting. In fact, e-voting might have considerable
impact on the transparency of the vote and may therefore reduce voter
confidence in the process. For instance, in the 2004 parliamentary elections in Kazakhstan and the 2005 parliamentary elections in Venezuela,
e-voting/IT technology was partly (Kazakhstan) and widely (Venezuela) used. When casting their vote, many voters did not understand
the procedure and seemed unsure whether their vote was going to be
kept secret. This may easily induce voters to support the ruling/most
powerful party, due to the subtle psychological pressure they are exposed to. International electoral support activities have only started to
99
EU EOM, Nigeria, Final Report, Gubernatorial, State Houses and Assembly Elections, 14 April 2007 and Presidential and National Assembly Elections, 21 April 2007, 1.
242
Max Planck UNYB 13 (2009)
tackle these problems and to deal with their consequences for the election process.
Further questions are related to the follow-up which is given to the
reports and recommendations issued by EOMs. While it is obviously
the primary task of an EOM to issue an impartial and independent
statement on an election, unwilling governments may considerably reduce or even prevent the potential of EOMs to foster democracy. Accordingly, a certain follow-up may prove useful to pressure governments to implement the findings of the missions and to continue their
way towards democratic consolidation. The follow-up – if there is any
– depends on the organization (and its legal capacities) as well as on the
international community. In the framework of organizations such as the
OSCE or the OAS, the findings of EOMs are reported to the respective
Permanent Council which is composed of all Member States. Being one
of the organizations’ major decision making organs, in theory, the Permanent Council should discuss and follow up on the reports of the missions. However, in practice, this mechanism has proved insufficient and
adequate follow-up is not provided. The EU enters into a political dialogue with the country concerned which – although rather successful
with respect to the ACP states – is conducted in a fairly informal manner. Only exceptionally, targeted measures are taken, such as the visa
ban and the freezing of assets which were adopted by the EU Council
in response to the flawed 2006 presidential elections in Belarus.100 Apart
from such ad hoc responses, no systematic follow-up to fraudulent elections can so far be detected.
Finally, the choice of countries EOMs are deployed to, was criticised.101 Such selectivity may be detrimental to an organization’s reputation and discredit the observation process. The (positive) impact of
EOMs on the process of democratic consolidation would be reduced
accordingly. Clearly, international organizations lack capacities and
funds to send observers everywhere and understandable emphasis is
given to developing democracies.102 However, in particular the fraud allegations which were raised during the 2000 US Presidential elections
indicated the necessity to observe compliance with electoral standards
also in so-called “established democracies”. Some diversification of
100
101
102
See above Part IV. 1. d. for details.
EOMs are generally more “apprehended” by the countries concerned than
electoral assistance activities for their public assessment of the electoral
process.
See also Part III. 2. above.
Binder, Two Decades of International Electoral Support
243
EOMs has been conducted in response to this criticism: the
OSCE/ODIHR sent an EOM to the US Presidential elections in 2008
as well as (more limited) assessment missions to countries such as Italy
(2006, 2008), Canada (2006), Iceland (2009) or France (2002, 2007).103 In
order to enhance the EOMs’ impact and credibility and to avoid the reproach of applying “double standards”, international organizations
might consider further diversifying the range of countries EOMs are
sent to.
d. Inter-Organizational Problems
The variety of organizations which engage in election support activities
call for a good cooperation and division of tasks in order to avoid duplications and contradictions, among international actors as well as between international and domestic organizations. Recently, cooperation
between the different international actors has improved. Arrangements
include a division of tasks already in the forefront of the election (e.g.
the referral of requests to competent regional organizations by the UN
which concentrates on the provision of electoral assistance); forms of
cooperation for particular observation missions, either in form of information sharing arrangements (e.g. on deployment plans) or in an institutionalised form, with a secretariat/office established by one organization to coordinate the observers; or, as the closest form of cooperation, joint observation missions where the organizations speak with one
voice and issue joint statements.
While these arrangements have proved beneficial, diverging methodology, capacities and expectations, a fight for visibility as well as different political agendas of monitoring organizations still lead to cooperation failures, with, as most crucial, diverging assessments of the election process. These diverging assessments enable the relevant actors
(governments) to practise “forum shopping” and to rely on those statements which are the most convenient for them. This reduces the impact
of EOMs and prevents the beneficial effect these missions may have for
the process of democratic consolidation. Typical examples include the
diverging statements of CIS and OSCE/ODIHR observers regarding
the parliamentary elections in Uzbekistan (2004)104 and in Tajikistan
103
104
For further information see OSCE/ODIHR Website, <http://www.osce.
org/odihr-elections/14207.html>.
Ministry of Foreign Affairs of the Russian Federation, Information and
Press Department, Interview with Yakovenko, Spokesman of Russia’s Min-
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Max Planck UNYB 13 (2009)
(2005).105 Likewise, European and African observers arrived at different
conclusions as to whether the 2002 presidential elections in Zimbabwe
had been conducted in line with international standards.106 As regards
coordination between electoral assistance and observation, tensions
may arise when an EOM comments negatively on an electoral process
which was implemented according to the advice and with the aid of
electoral assistance.
e. General Limits of International Electoral Support
There are, finally, also some general limits of international electoral
support. Electoral processes in line with international standards, to be
sure, greatly enhance the chance of a peaceful hand over of power and
further the progress of countries on their road to democratic consolidation. However, elections as inherently political phenomena make the
impact of electoral support activities, in the end, uncertain. Post electoral violence in countries such as Kenya (2007/2008) and authoritarian
overthrows of democratically elected regimes in Fiji (2007) and Mauritania (2008) raised doubts about the possible sustainability of electoral
support as such.
These doubts about the impact of electoral support are increased in
cases of a disproportionate emphasis on the electoral event rather than
on the longer-term process of democratic institution building. The exclusive emphasis on elections, as the most important institution of democracy available to citizens, cannot answer the question of good governance and the quality of democracy.107 Ottaway, for instance, talks of
105
106
107
istry of Foreign Affairs, regarding international observers’ conclusions on
election results in Ukraine and Uzbekistan <http://www.ln.mid.ru/
brp_4.nsf/0/030111d3b474a94cc3256f790042f6f9?OpenDocument> Moscow, 28 December 2004. See also Y. Glumskova, “Foreign observers differ
in their evaluation of the election in Uzbekistan”, Central Asia News, 29
December 2004.
See generally M. Baker, “Why do OSCE, CIS observers rarely agree on
elections?”, 12 April 2005, <http://www.rferl.org/content/article/1058403.
html>.
BBC News, “Head to Head: Zimbabwe Election Observers”, 14 March
2002, <http://www.news.bbc.co.uk/1/hi/world/africa/1873438.stm>.
See e.g. G. O’Donnell, “Human Development, Human Rights, and Democracy”, in: G. O’Donnell/ G. Cullell et al. (eds), The Quality of Democracy. Theory and Applications, 2004, 9; L. Diamond/ L. Morlino, Assessing
the Quality of Democracy, 2005.
Binder, Two Decades of International Electoral Support
245
“limits of electoralism”, as it provides inadequate criteria for categorising regimes as democratic and distinguishes between “the ritual of democracy” and its “substance”, given that “many African leaders are
learning to play the election game-giving aid donors an election barely
clean enough to receive a low-passing grade, but dirty enough to make
it difficult for the opposition to win.”108 For this reason, scholars109
have repeatedly criticised an exaggerated focus by international actors
on elections rather than on the long-term democratisation process.
Means and strategies to reduce the political – and therefore volatile –
element linked to electoral support are the adoption of a long-term approach to electoral assistance and the avoidance of putting disproportionate emphasis on a specific electoral event.110 Such long term approach should further the process of democratic institution building
and thus enhance the sustainability of the respective electoral support
activity.
V. Conclusion
Despite its limitations and challenges, during the last two decades, international electoral support has proved to be a valuable instrument to
improve the quality of electoral processes. The comprehensive documentation of the entire election process, the immediate political pressure exercised by a mission’s findings and/or the technical and financial
assistance offered to countries truly present an “added value”. In particular in “evolving democracies” and in countries in transition, appropriate electoral support should thus constitute a viable tool to enhance
elections.111 This is evidenced in the Eastern European, the Baltic and
108
109
110
111
M. Ottaway, “Should Elections Be the Criterion of Democratization in Africa?”, CSIS Africa Notes 145 (1993), 3 et seq.
Ibid.
This general statement does not apply to cases where electoral assistance is
provided on a particular basis to improve specific shortcomings of the electoral process.
See on this Tostensen, who distinguishes four categories of situations where
election observation is particularly relevant: “(1) The emergence of new
state formations resulting either from decolonialisation, secession or from
the dissolution of federations; (2) the reconstitution of war torn societies
after protracted internal conflict or civil war; (3) transition from longstanding authoritarian rule to a democratic system of governance; (4) Re-
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Max Planck UNYB 13 (2009)
some of the Balkan states such as Croatia, where a successful combination of appropriate support with other (economic, etc.) factors furthered the process of democratic consolidation. The former emphasis
given to these countries by OSCE/ODIHR electoral support activities
has thus been gradually reduced with the consolidation of their democracies.112
Still, it should always be kept in mind that elections do not equate
with democracy. Elections are an essential, but only one of the elements
which are constitutive for a functioning democracy. Other relevant
elements include human rights, the rule of law and the separation of
powers. That elections are only one step on the road to democracy is
demonstrated by the fact that just 47 of the 81 countries that have embarked on democratic transitions since 1980 had become full democracies in 2002.113 It remains therefore essential to link electoral support to
a broader process of democratic institution building which presupposes
long term approaches to electoral assistance. UN Secretary-General
Kofi Annan recognised in 2000 the crucial importance of elections by
stating: “While democracy must be more than free elections, it is also
true … that it cannot be less.”114 An integrated approach to electoral
support, which effectively combines election observation with longterm electoral assistance programmes, allows us, however, also to address the “more” of democracy. It thus, without neglecting the crucial
importance of elections, truly turns out to be “democracy support”.
112
113
114
covery from serious internal tension towards a more stable situation”, Tostensen, see note 80, 335.
Details about the different missions can be found at the OSCE/ODIHR’s
website, <http://www.osce.org/odihr-elections/14207.html>. For details,
see Balian, see note 71, 197 and 202 et seq.
<http://www.hdr.undp.org/en/media/HDR_2002_EN_Complete.pdf10>
UNDP, Human Development Report 2002, Deepening Democracy in a
Fragmented World.
UN Secretary-General Kofi Annan, address at the International Conference “Towards a Community of Democracies”, Warsaw, 27 June 2000, see
Press Release SG/SM/7467, <http://www.un.org/News/Press/docs/2000/
sgsm7467.htm>.
The System of EU Crisis Management – From
Bringing Peace to Establishing Democracy?
Maike Kuhn1
I.
Overview of EU Crisis Management Operations and Missions
1. Differentiation
2. Operations and Missions in Particular
II. General Legal Framework
1. Mixture of Civilian and Military Crisis Management and its Problems
2. Legal Basis in European and International Law
III. Transfer of Democracy?
1. Rule of Law Concept of the EU
2. Result of the EU Crisis Management Missions and Operations:
Practical Output
Annex
This article aims to give an overview of the system of European Union
(EU) crisis management. Ongoing and completed missions and operations will be presented to show the wide-spread possibilities of the
EU’s crisis management system.
The article will focus especially on the practical output of crisis
management missions and operations and special attention will be given
to the question whether and to what extent the EU is able to “transfer
democracy” to third states.
1
The author is currently revising her doctoral thesis concerning “The European Security and Defense Policy in a Multi-level System, as exemplified
by the Military Operation of the EU in the Democratic Republic of the
Congo 2003”, under the supervision of Prof. Dr. Michael Bothe.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 247-266.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
Max Planck UNYB 13 (2009)
248
I. Overview of EU Crisis Management Operations and
Missions
To give an appropriate overview of EU crisis management it is necessary to start with a differentiation of the types of actions taken in the
field of European Security and Defense Policy (ESDP). The following
section deals with completed and ongoing operations and missions.
1. Differentiation
When considering EU crisis management one has to differentiate between two types of action: crisis management operations and crisis
management missions. Crisis management operations usually have a
military component, while crisis management missions are usually of a
civilian nature. Thus these two types of ESDP actions are often combined, especially in the field of civilian-military crisis management in
which the EU specializes. Since these regimes are shaped differently, the
combination is legally difficult to manage. Furthermore, the socioeconomic dimension of complex crisis management undertakings requires a multifaceted scope which is not limited to military options. The
year 2007 e.g. saw the increasing trend of deploying peace operations
with broad civilian mandates. The result has been a growing complexity
of peace operations that is proving difficult to manage.2 Unfortunately
there exists no consistent and uniform nomenclature in the EU documents naming the different actions the EU might undertake.
2. Operations and Missions in Particular
In the period between 2003 and 2009, the EU has launched twentythree crisis management missions and operations in twelve third-world
countries within the context of ESDP (see Annex). These have ranged
from advisory missions consisting of fewer than a dozen experts to
large-scale peacekeeping operations involving several thousands of military personnel. Out of the twenty-three, six were military operations
carrying out general peacekeeping and humanitarian tasks. The UN Security Council, acting under Chapter VII of the UN Charter, author2
See Annual Review of Global Peace Operations 2008, page 8; Annual Review of Global Peace Operations 2007, page 2.
Kuhn, The System of EU Crisis Management
249
ized five of these operations to take enforcement action in the performance of their mandate. The sixth operation (“Concordia”) followed an
explicit request from the former Yugoslav Republic of Macedonia government.
In addition, the EU has launched seventeen civilian crisis management missions, including seven police, three rule of law, two monitoring, two security sector, and two border assistance missions, and has
undertaken one mixed civilian-military mission.3 These numbers show
the high potential in this policy field.
There are fourteen ongoing operations and missions: three military
operations, four police missions, two rule of law missions, two border
assistance missions, two security sector reform missions and finally one
monitoring mission in Georgia.
In detail: there is one military operation in Bosnia-Herzegovina
named EUFOR Althea4 which is carried out with recourse to NATO
assets and capabilities, under the “Berlin Plus” Agreement.5 Another
military operation takes place in Chad and the Central African Republic (EUFOR TCHAD/RCA).6 This is a bridging operation which will
closely coordinate with the multi-dimensional United Nations (MINURCAT) presence in the East of Chad and in the North-East of the
Central African Republic in order to improve security in those regions.
3
4
5
6
See A. Sari, “The Conclusion of International Agreements by the European
Union in the Context of the ESDP”, ICLQ 57 (2008), 53 et seq. (53-54),
who covers the period from 2003-2007.
See Council Decision 2004/803/CFSP of 25 November 2004 on the launching of the EU military operation in Bosnia and Herzegovina, OJ L 353/21
of 27 November 2004.
The “Berlin Plus” Agreement, concluded on 17 March 2003, laid down the
foundations for NATO-EU cooperation in the field of crisis management.
It enables the Alliance to support EU-led operations in which NATO as a
whole is not engaged; see for further information M. Reichard, “The EUNATO ‘Berlin Plus’ Agreement: the silent Eye of the Storm”, in: S.
Blockmans (ed.), The European Union and Crisis Management – Policy
and Legal Aspects, 2008, 233 et seq.
See Council Joint Action 2007/677/CFSP of 15 October 2007 on the EU
military operation in the Republic of Chad and in the Central African Republic and Council Decision 2008/101/CFSP of 28 January 2008 on the
launching of the EU military operation in the Republic of Chad and in the
Central African Republic; D.M. Tull, “Tschad-Krise und die Operation
EUFOR Tschad/ZAR”, swp-Aktuell 15 (February 2009), 1-4.
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Max Planck UNYB 13 (2009)
On 19 September 2008 the EU launched a military coordination action in support of UN Security Council Resolution 1816 (2008) of 2
June 2008 concerning Somalia, named EU NAVCO as a reference to
“naval coordination”.7 It is a counter-piracy naval operation off the
coast of Somalia to support surveillance and protection operations led
by certain Member States of the United Nations in Somalia and off the
Somali coast. The coordination action is conducted from Brussels by a
Coordination Cell supported by the Military Staff of the European Union. In addition on 10 November 2008 the General Affairs/External Relations Council adopted a joint action on an EU military operation –
EU NAVFOR (“naval force”) Somalia operation “Atalanta” –, which
the EU launched in December 2008. It aims to contribute, in support of
resolutions of the UN Security Council, to the deterrence, prevention
and repression of acts of piracy and armed robbery off the Somali coast.
The activities of the EU NAVCO cell were closed on the launch date of
the EU NAVFOR military operation.
One of the police missions takes place in Bosnia-Herzegovina. It is
named EU Police Mission in Bosnia and Herzegovina (EUPM)8 and
was the first ESDP mission launched by the EU in 2003. It followed on
from the UN’s International Police Task Force. Another police mission
is being carried out in the Palestinian Territories (EUPOL COPPS).9
EUPOL COPPS’ operational phase started on 1 January 2006 and has
had an initial duration of three years. It has now been amended to a final duration of five years lasting until 31 December 2010.10 It has a
long-term reform focus and provides enhanced support to the Palestinian Authority in establishing sustainable and effective policing arrangements.
7
8
9
10
Council Joint Action 2008/749/CFSP of 19 September 2008, OJ L 252/39
of 20 September 2008.
See Council Joint Action 2007/749/CFSP of 19 November 2007 on the EU
(EUPM) in Bosnia and Herzegovina (BiH), OJ L 303/40 of 21 November
2007.
See Council Joint Action 2005/797/CFSP of 14 November 2005 on the EU
Police Mission for the Palestinian Territories and Council Decision
2008/134/CFSP of 18 February 2008 implementing Joint Action
2005/797/CFSP on the EU Police Mission for the Palestinian Territories,
OJ L 43/38 of 19 February 2008.
Council Joint Action 2008/958/CFSP, OJ L 338/75 of 17 December 2008.
Kuhn, The System of EU Crisis Management
251
The police mission in Afghanistan (EUPOL AFGHANISTAN)11
was launched in the framework of the EU’s comprehensive approach
towards Afghanistan in mid June 2007. The mission aims at contributing to the establishment of sustainable and effective civilian policing arrangements under Afghan authority in accordance with international
standards. The police mission in Congo (EUPOL RD Congo)12 was
deployed to assist the Democratic Republic of the Congo (DRC) authorities with a police reform and followed the EUPOL Kinshasa on 1
July 2007.
The first EU Integrated Rule of Law Mission in Iraq named EU Integrated Rule of Law Mission for Iraq (EUJUST Lex)13 was established
to strengthen the rule of law and to promote a culture of respect for
human rights in Iraq. It provides professional development opportunities to senior Iraqi officials from the criminal justice sector. The other
rule of law mission in Kosovo (EULEX KOSOVO)14 will not replace
the United Nations Mission in Kosovo (UNMIK) but rather support,
mentor, monitor and advise the local authorities. During the build-up
period to full operational capability, the EULEX mission will be developed and deployed under the umbrella of the EU Planning Team already on the ground in Pristina.
One of the two border assistance missions takes place at Rafah
Crossing Point in the Palestinian Territories (EUBAM Rafah).15 On 15
November 2005, Israel and the Palestinian Authority concluded an
“Agreement on Movement and Access”, including agreed principles for
the Rafah crossing (Gaza). On 21 November 2005, the Council of the
EU welcomed the Agreement and decided that the EU should under11
12
13
14
15
See Council Joint Action 2008/229/CFSP of 17 March 2008 amending Joint
Action 2007/369/CFSP on the establishment of the EU Police Mission in
Afghanistan, OJ L 75/80 of 18 March 2008.
See Council Joint Action 2008/38/CFSP of 20 December 2007 amending
Council Joint Action 2007/405/CFSP on the EU Police Mission undertaken in the framework of the reform of the security sector (SSR) and its
interface with the system of justice in the Democratic Republic of the
Congo, OJ L 9/18 of 12 January 2008.
See Council Joint Action 2008/304/CFSP of 14 April 2008, OJ L 105/10 of
15 April 2008.
Council Joint Action 2008/124/CFSP of 4 February 2008 on the EU Rule
of Law Mission in Kosovo, OJ L 42/92 of 16 February 2008.
Council Joint Action 2008/379/CFSP of 19 May 2008 amending Joint Action 2005/889/CFSP on establishing an EU Border Assistance Mission for
the Rafah Crossing Point (EU BAM Rafah), OJ L 130/24 of 20 May 2008.
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Max Planck UNYB 13 (2009)
take the Third Party role proposed in the Agreement to monitor the
operations of this border Crossing Point. Due to the circumstances of
the Rafah Crossing Point – there is temporarily no access for mission
personnel to the Crossing Point – it is a problematic mission.
The other border assistance mission which is technical and advisory
in nature is being carried out in Moldova and Ukraine (EU Border Assistance Mission to Moldova and Ukraine, code-named EUBAM).16 Its
mandate is to help improve the capacity of the Moldovan and Ukrainian border and custom services to prevent and detect smuggling, trafficking of goods and human beings, as well as custom fraud, by providing advice and training. This mission is carried out under first pillar (see
below) conditions and competences.
There is further one security sector reform mission in Congo
(EUSEC RD Congo)17 which followed an official request by the government of the DRC. The mission provides advice and assistance to the
Congolese authorities in charge of security while ensuring the promotion of policies that are in line with human rights and international humanitarian law, democratic standards, principles of good public management, transparency and observance of the rule of law. Additionally,
the EU has launched a mission in support of the security sector reform
in Guinea-Bissau (EU SSR Guinea-Bissau)18 which will be undertaken
in partnership with the Guinea-Bissau authorities. It will provide advice
and assistance regarding the reform of the security sector in order to
contribute to the creation of conditions for the implementation of the
National Security Sector Reform Strategy. The mission is part of a coherent EU approach and complementary to the European Development
Fund and other European Community activities.
16
17
18
See the Memorandum of Understanding between the European Commission, the government of the Republic of Moldova and the government of
Ukraine on the European Commission Border Assistance Mission to the
Republic of Moldova and to Ukraine, 7 October 2005; X. Kurowska/ B.
Tallis, “EU Border Assistance Mission: Beyond Border Monitoring?”,
European Foreign Affairs Review 14 (2009), 47 et seq.
Council Joint Action 2007/406/CFSP of 12 June 2007 on the EU mission
to provide advice and assistance for security sector reform in the Democratic Republic of the Congo, OJ L 151/52 of 13 June 2007.
Council Joint Action 2008/112/CFSP of 12 February 2008 on the EU mission in support of security sector reform in the Republic of Guinea-Bissau,
OJ L 40/11 of 14 February 2008.
Kuhn, The System of EU Crisis Management
253
Due to the incidents in Georgia in August 2008, the Council decided, on 15 September 2008, to establish an autonomous civilian mission in Georgia, called European Union Monitoring Mission
(EUMM).19 Its objective is to contribute to stability throughout Georgia and the surrounding regions. In the short term, its aim is to contribute to the stabilization of the situation, in accordance with the six-point
cease-fire agreement and the subsequent implementing measures.
This enumeration shows that civilian crisis management in all its
facets is the area in which the EU has made the fastest operational progress.20
II. General Legal Framework
1. Mixture of Civilian and Military Crisis Management and its
Problems
Civilian crisis management is peculiar to the EU and has no real equivalent in the lexicons of the United Nations, the Organization for Security and Cooperation in Europe (OSCE) or non-European regional organizations.21 The interrelationship between the military and civilian
components is usually characterized as one between distinct entities
with the military providing support and backup to the civilian presence
in the field. This support is grounded in the military’s ability to wield
overwhelming force.22 Nevertheless, civilian crisis management is an instrument for international actors to help create the structures and capacities that enable the state to provide for the security and safety of its
19
20
21
22
Council Joint Action 2008/736/CFSP of 15 September 2008 on the EU
Monitoring Mission in Georgia, EUMM Georgia, OJ L 248/26 of 17 September 2008.
R. Dawn, “Civilian Tasks and Capabilities in EU Operations”, SIPRI Policy Paper 8, 2004, 1; C.R. Earle, European Capacities for Peace Operations:
Taking Stock, Henry L. Stimson Center, March 2004, 6.
Dawn, see note 20.
Dawn, ibid., 15; H.G. Ehrhart, “The EU as a Civil-Military Crisis Manager
– Coping with Internal Security Governance”, International Journal 61
(2006), 433 et seq. (434-435).
254
Max Planck UNYB 13 (2009)
population. It is not a soft option for intervention but a fundamental
element in building sustainable peace.23
Civilian and military crisis management of the EU are shaped in a
different way. This is largely due to the different participation of the
European Commission and the European Parliament in the field of
military crisis management on the one hand and civilian crisis management on the other.24 The EU’s specialization in mixed civilian-military
crisis management could become legally difficult, as the European
Commission and the European Parliament both have huge influence in
the field of civilian crisis management. For this reason, a dispute over
competences might occur. To maintain its influence, the European
Commission might be (too) eager to label an action as one of a civilian
nature.
To alleviate tensions one could develop a catalogue of criteria. Such a
catalogue could be generated on the basis of completed military and civilian missions. Then, a fixed number of civilian as well as military criteria must be fulfilled to make combined crisis management possible.
Another possibility would be to rely on the focus of a specific action.25
Still the question remains exactly how the European Commission and
the European Parliament take part in this combined crisis management.
A greater framework than the presently existing Political and Security Committee (PSC) is needed.26 Therefore the Committee for Civilian Crisis Management (CIVCOM), could be further developed as a
coordinating mechanism. Thus, it is possible to achieve a step-by-step
cooperation (or participation) in the field of civilian-military crisis
management. It would be further possible and at the same time less
cost-intensive to establish, for example, a common “Security Council”
in which the PSC takes the leading role and the other two EU pillars
23
24
25
26
Dawn, see note 20, 22; F. Kupferschmidt, “Crisis Management – A Combined Effort with Civil and Military Means”, swp-FG3-Working Paper
(January 2007), 1-4.
See G. Müller-Brandeck-Bocquet, “The New CFSP and ESDP DecisionMaking System on the European Union”, European Foreign Affairs Review 7 (2002), 257 et seq. (274-278) and R. Rummel, “From Weakness to
Power with the ESDP?”, European Foreign Affairs Review 7 (2002), 453 et
seq. (462).
That would be a similar approach as the European Court of Justice had decided several times in regard to competence norms of the Treaty of the
European Community.
H.C. Hagman, European Crisis Management and Defence, 2002, 81.
Kuhn, The System of EU Crisis Management
255
(see below) are represented. The only rational alternative solution to
such an intensified coordination between the pillars of the EU would be
to abandon the pillar structure27 – but the loss of the pillars might be
possible, if at all, only in the long run.
Another open question is the implementation of financing. The lack
of transparency emerges particularly in the so-called hybrid operations
that is to say in the field of civilian-military foreign assignment of the
EU. These operations are financed through the budget of the EU.28 According to the financing options for civilian ESDP-missions (from the
budget of the European Community), voluntary national dues (as for
military ESDP-operations) or as was the case with ATHENA, the creation of a special financing mechanism,29 could be considered.
There are no participation rights foreseen for the European Parliament during the raising of national funds for the accomplishment of a
common action.30 ATHENA is rather a model for a financing mechanism for military ESDP-operations. Thus, the budgetary powers of the
European Parliament in the field of civilian-military crisis management
would be restricted. This is due to the fact that shadow-budgets in the
exclusive intergovernmental scope of the European Council are increasingly being established.31 The only alternative would be the financing
through the European Community’s budget. This would further promote the collectivization of ESDP and the Common Foreign and Security Policy (CFSP).
Command and control authorities remain, however, the most problematic issue in EU civil-military coordination. The military chain of
command in EU operations is, currently, distinct and separate from the
27
28
29
30
31
Hagman, see note 26, 82.
A. Benediek/ H. Whitney-Steele, “Wein predigen und Wasser ausschenken
– Die Finanzierung der EU-Außenpolitik”, swp-Aktuell 31 (July 2006), 3.
Council Decision 2008/975/CFSP of 18 December 2008 establishing a
mechanism to administer the financing of the common costs of EU operations having military or defense implications (ATHENA), OJ L 345/96 of
23 December 2008.
W. Kaufmann-Bühler/ N. Meyer-Landrut “Art. 28 EUV”, in: E. Grabitz/
M. Hilf (eds), Das Recht der Europäischen Union, Band 1, EUV/ EGV, 37,
2008, para. 17; K. Raube, “European Parliamentary Oversight of Crisis
Management”, in: S. Blockmans (ed.), The European Union and Crisis
Management – Policy and Legal Aspects, 2008, 181 et seq. (187 et seq.).
Kaufmann-Bühler/ Meyer-Landrut, see above, “Art. 28 EUV”, para. 17.
256
Max Planck UNYB 13 (2009)
civilian side.32 Thus many of the practical coordination challenges take
place at the operational level.33
2. Legal Basis in European and International Law
The potential legal basis for EU operations and missions in European
law is article 14 Treaty of the European Union (TEU) in conjunction
with article 17 para. 2 TEU. In particular the operative advancement of
the EU may be based on the instrument “Common Action” according
to article 14 TEU (in conjunction with article 17 para. 2 TEU). The socalled Petersberg-tasks in article 17 para. 2 TEU include humanitarian
and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis
management, including peacemaking.34
EU operations and missions are derived from article 14 TEU in the
form of a Common Action which is (usually) legally binding for all EU
Member States – except Denmark which secured itself an opt-out. This
type of action is typical for the operative progression of the EU. In such
a Common Action, a goal, the means, the amount/the complexity, the
terms and conditions, and (if necessary) the period of the action must
all be specified. But these are (only) formal requirements. The requirement of unanimity for decision-making underlines the intergovernmental character of the ESDP and the central role of the Council of the EU.
Thus, only the Member States which abstain from voting without
blocking the whole operation or mission are not obliged to contribute
to the financing of the specific action.
Both civil and military ESDP missions and operations are typically
executed in a two-step procedure. In the first step, the Council decides
upon a common action, which regulates the basic parameters for a
common approach to a concrete conflict. In a second step, the Council
32
33
34
See Dawn, see note 20, 17; M. Paul, “Soldaten als Entwicklungshelfer? –
Perspektiven zivil-militärischer Zusammenarbeit im Auslandseinsatz”,
swp-FG3-Discussion Paper 11 (October 2007), 4.
Dawn, see note 20, 19.
See for the Petersberg-tasks in general, R.A. Wessel, “The State of Affairs
in EU Security and Defence Policy: The Breakthrough in the Treaty of
Nice”, Journal of Conflict & Security Law 8 (2003), 265 et seq. (281) and S.
Kielmansegg, “The Meaning of Petersberg: Some Considerations on the
Legal Scope of ESDP Operations”, CML Rev. 44 (2007), 629 et seq.
Kuhn, The System of EU Crisis Management
257
decides the launching/initiation of a mission or operation and thus lets
it become operative.
The EU is not a state and thus not bound formally by the Charter of
the United Nations and due to emerging opinions of legal scholars,35
the legal basis of the EU in international law is not particularly clear.
No restriction can be found in article 17 para. 2 TEU. This means that
the EU is able to carry out operations and missions which are neither
limited by geographic criteria nor by a certain intensity of threat.36 Secondly, one of the objectives of the EU as defined in article 11 para. 2
TEU is to preserve peace and strengthen international security in accordance with the principles of the Charter of the United Nations when
defining and implementing the common foreign and security policy.
Additionally, there are several declarations concerning the collaboration
between the United Nations and the EU.37 Therein it is especially recalled that the United Nations Security Council has the primary responsibility for the maintenance of international peace and security.
The basic principles of the Charter of the United Nations entail the
prohibition of the use of force and basically the need for a Security
Council Resolution in case of any military coercive means. On the
other hand, the EU can also rely on the exemptions from the prohibition of the use of force. This is foremost the right to self-defense and
peace-keeping operations which do not constitute coercive means due
to the given consent of the state concerned. Furthermore the EU may
rely on possible exemptions from the prohibition of the use of force
which could develop on the basis of customary international law. Arti-
35
36
37
Some scholars want to establish more exceptions from the United Nations
Security Council’s power to allow the use of force; an overview is given by
Kaufmann-Bühler, see note 30, “Art. 17 EUV”, para. 8.
See S. Kielmansegg, Verteidigungspolitik der Europäischen Union, 2005,
148 et seq.; similar N. Tsagourias, “EU Peacekeeping Operations: Legal
and Theoretical Issues”, in: M. Thrybus/ N.D. White (eds), European Security Law, 2007, 102 et seq. (129).
Joint Declaration on EU-UN Co-operation in Crisis Management, 24 September 2003; EU-UN Co-operation in Military Crisis Management Operations – Elements of Implementation of the EU-UN Joint Declaration,
European Council, June 2004; Joint Statement on UN-EU Co-operation in
Crisis Management, 7 June 2007.
Max Planck UNYB 13 (2009)
258
cle 11 para. 2 TEU refers to the principles of the Charter of the United
Nations in a dynamic way.38
III. Transfer of Democracy?
Another question which remains is whether and to what extent the crisis management system of the EU really contributes to a transfer of
democracy into third countries. Therefore it is necessary to analyze the
EU’s rule of law39 concept and to have a closer look at the practical
output of its crisis management missions.
1. Rule of Law Concept of the EU
The EU’s rule of law concept must be seen in the context of the three
pillar structure of the Union. The EU is built under a single institutional roof standing on three pillars, established by the Treaty on the
EU (1992). The first pillar is the Community pillar, including the three
European Communities (EC, Euratom, ECSC). The second pillar is
cooperation between the Member States in the common foreign and security policy (the third pillar is cooperation in the fields of justice and
home affairs (JHA)). The Commission holds several instruments for
non-coercive intervention under the first pillar.40 It aims at strengthening and enforcing economic development, but also the respect for human rights, democratic values and the rule of law. For this purpose, the
EU has launched various cooperation programs designed to assist political and economic transformation in all parts of the world, but in particular with regard to the Mediterranean area, to Central and Eastern
Europe as well as to the Balkans (e.g. Phare, Tacis, Meda or Cards programs).41
38
39
40
41
Kielmansegg, see note 36, 227; probably also F. Pagani, “A New Gear in
the CFSP Machinery: Integration of the Petersberg Tasks in the Treaty on
European Union”, EJIL 9 (1998), 737 et seq. (741).
On the issue of rule of law, see Max Planck UNYB 12 (2008), 345 et seq.
See especially arts 177-181 Treaty of the European Community (Development Co-operation) and Part II. 1. above.
U. Schneckener, “Theory and Practice of European Crisis Management”,
European Yearbook of Minority Issues 1 (2001/2), 131 et seq. (132); F.
Hoffmeister, “Inter-pillar Coherence in the European Union’s Civilian Cri-
Kuhn, The System of EU Crisis Management
259
In contrast, the Council of the European Union and the Member
States rule in the second pillar within the framework of CFDP and
ESDP.42 Therein the EU tries to deal with potential crises, ongoing conflicts and/or post-conflict situations.43
Here the second pillar will be focused on where the EU made the
rule of law a priority,44 and elaborated a concept for missions in this
field.45 At the Göteborg European Council in June 2001 two generic
concepts of rule of law missions were elaborated:
“Strengthening the rule of law” missions:
In this case personnel in the field of the rule of law are deployed
essentially to educate, train, monitor and advise with the aim of
bringing the local legal system up to international standards, in
particular in the field of human rights. This includes technical
assistance, advice on institutions related to capacity building
(training, education, and standard setting), monitoring and mentoring of personnel, and the application of legislation and administrative procedures;46 and
“Substitution for local judiciary/ legal system” operations:
These missions involve the deployment of personnel to carry
out executive functions, notably where local structures are failing. The objective here is to consolidate the rule of law in a crisis
situation in order to restore public order and security. These
missions thus concern the functions of the courts, the prosecution system and the running of prisons as well as the provision
of defense lawyers.47
The general objective of both types of missions is “to provide for
complete and sustainable judiciary and penitentiary systems under local
42
43
44
45
46
47
sis Management”, in: S. Blockmans (ed.), The European Union and Crisis
Management – Policy and Legal Aspects, 2008, 157 et seq. (165-166).
See Part II. 1. above.
Schneckener, see note 41.
See Council of the European Union (CEU) 13309/01 and 14513/02.
See CEU 14513/02 and EU Doc. 9792/03, Comprehensive EU Concepts
for Missions in the Field of Rule of Law in Crisis Management, including
Annexes, Brussels, 26 May 2003 (EU 9792/03).
See J. Arloth/ F. Seidensticker (eds), The ESDP Crisis Management Operations of the European Union and Human Rights, German Institute for
Human Rights, April 2007, 27.
Arloth/ Seidensticker, see above.
260
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ownership and meeting rule of law and human rights standards in the
mission area.”48 According to the European Parliament “security and
the rule of law are indispensable preconditions for development and
long-term stability.”49 This shows the inter-linkage between first and
second pillar activities. Nevertheless the problem of coordination between the first and second pillar needs to be solved.50 Therefore a closer
look at the practical output of EU crisis management missions and operations is necessary.
2. Result of the EU Crisis Management Missions and
Operations: Practical Output
In general, EU crisis management missions and operations seem to be
successful. But, this rhetoric does not exactly correspond to reality. The
EU is facing numerous problems in regard to crisis management. In
part, this is due to the fact that the ESDP is still in its early stages. It
evolved at the beginning of the 2000’s and is still in its infancy. Therefore, the EU still lacks capacities to carry out autonomous operations
on a greater scale. In this field, larger operations are not possible without recourse to NATO assets and capabilities. Consequently, non-EU
Member States like the United States, Canada and Turkey have a stake
in genuine European decision-making and panels.
A good example is the deployment of EUPOL Afghanistan which
was delayed by Turkey, which used its NATO veto to show its displeasure with the EU. The EU mission has no cooperation agreement
with NATO which operates in Afghanistan under the mandates of
ISAF (International Security Assistance Force) and operation Enduring
Freedom. This means that EU police officers cannot automatically be
given NATO intelligence or backup support should they come under
attack from the Taliban.51 Furthermore, the political impact of some
48
49
50
51
See CEU 14513/02.
European Security Strategy and ESDP, European Parliament resolution of
19 February 2009 on the European Security Strategy and ESDP
(2008/2202(INI)), para. 22.
See Part II. 1. above.
P. Hughes, “NATO and the EU: Managing the Frozen Conflict – Test Case
Afghanistan”, Zentrum für Europäische Integrationsforschung Discussion
Paper C 178, 2007, 21, footnote 39; K.P. Klaiber, “The European Union in
Kuhn, The System of EU Crisis Management
261
missions and operations is highly volatile. For example, the EU Border
Assistance Mission at Rafah Crossing Point in the Palestinian Territories and the EUPOL COPPS. It was disputed among the EU Member
States whether they should take sides in the conflict. Rafah Crossing
Point was often blocked by the Israelis. Israel distrusts Europe for historic reasons, for having a pro-Arab and pro-Palestinian bias, and for
not being able to make a solid stance against terrorism. The numerous
common declarations of the EU on the Middle East read as a continuous indictment of Israeli occupation policies, and as a result the EU’s
political standing in Jerusalem remains low, while its impact on Israeli
policies is minimal.52 The mission in Kosovo e.g. cannot be fully appreciated outside the context of the acceptance of the newly created state.
Due to the absence of a United Nations Security Council Resolution
regarding the future status of Kosovo, the EU Member States Greece,
Spain, Cyprus, Slovakia, Bulgaria and Romania have not recognized
Kosovo as an independent state. The conflict in Sudan/ Darfur finally
illustrates the problematic role allocation between the EU and the African Union. The EU/African Union relationship on Darfur has been
generally successful from a technical point of view, however, the security situation is worsening53 and finally the coordination within and between each other could be much improved. Another example is the
EU’s engagement in Africa, especially in the Democratic Republic of
the Congo which is mainly promoted by France and the former colonial power, Belgium. The country has been a major focus for Europe
and a proving ground for an evolving European policy. Through operation “Artemis” the EU has demonstrated for the first time a common
European capability to launch military force over a great distance without recourse to NATO assets and capabilities.54 Nevertheless the role of
52
53
54
Afghanistan: Lessons Learned”, European Foreign Affairs Review 12
(2007), 7 et seq.
A. Pijpers, “The EU and the Palestinian-Israeli Conflict: The Limits of the
CFSP”, Paper of the Netherlands Institute of International Relations
Clingendael, September 2007, 4.
See International Crisis Group (ed.), Africa Report No. 99 of 25 October
2005, “The EU/ AU Partnership in Darfur: Not yet a Winning Combination”.
See RAND Institute (ed.), Europe’s Role in Nation-building from the Balkans to the Congo, 2008, 23 et seq.; S. Wiharta, “Planning and Deploying
Peace Operations”, SIPRI Yearbook 2008 – Armaments, Disarmament and
International Security, 97 et seq. (103-104); C. Gegout, “Causes and Consequences of the EU’s Military Intervention in the Democratic Republic of
262
Max Planck UNYB 13 (2009)
the EU in Africa is often criticized for being rather idealistic.55 The
problem may be located in the implementation of the abstract goals
such as promoting democracy, strengthening the rule of law and others.
Finally the change of a despotic state into a state which respects the rule
of law needs decades but EU missions have a limited time frame. When
money is available, they are prolonged from one year to another. Nevertheless it is unlikely that they can run for decades. Hence, the EU has
to develop substantial strategies. The lack of a strong sense of common
purposes in the foreign and security policy strongly indicates that less
ambitious but feasible crisis management policies, as opposed to morally stringent but difficult policies, are more conducive to the development of EU cohesion and common strategies.56
A general problem of the so-called rule of law missions is the understanding of the whole concept behind the idea, i.e. the question whether
rule of law is meant in a formal or in a material way. Whereas a formal
rule of law concept means “solely” a commitment to the law in force, a
material rule of law concept involves the notion of justice. International
consensus may be obtained on the formal rule of law concept. Nevertheless, this concept has to be adapted to the cultural background of a
specific country. That means that a specific European rule of law concept cannot be exported from one country to another. The rule of law
of a state is not a worldwide patent remedy. According to a report by
the Secretary-General of the United Nations, rule of law,
“refers to a principle of governance in which all persons, institutions
or entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, and in-
55
56
Congo: A Realist Explanation”, European Foreign Affairs Review 10
(2005), 427 et seq. (435).
T. Risse/ G. Walter-Drop, “Musterschüler mit Makeln – Im Jubiläumsjahr
2009 steht auch das Projekt Europa auf dem Prüfstand”, IP 2/2009, 88, 9192; A. Abass, “EU Crisis Management in Africa: Progress, Problems and
Prospects”, in: S. Blockmans (ed.), The European Union and Crisis Management – Policy and Legal Aspects, 2008, 327 et seq. (342-343).
S. Rynning, “Providing Relief or Promoting Democracy? The European
Union and Crisis Management”, Security Dialogue 32 (2001), 87 et seq.
(97).
Kuhn, The System of EU Crisis Management
263
dependently adjudicated, and which are consistent with international human rights norms and standards.”57
This rule of law concept is both formal and material.58 Nevertheless
international consensus may be reached on it, because it refers on the
material side to international human rights norms and standards on
which consensus may be obtained. But one must bear in mind that
there are still regimes refusing to respect fundamental human rights.
Crisis management in general is a very complex issue. The overall problem is one of connecting the use of force to the issue of local growth of
democracy.59 In principle the EU has quite a good starting position because of its combined military and civil crisis management capabilities.60
For the United Nations the EU is an attractive partner, it is widely accepted in the world, sometimes even more than NATO, which often is
seen as dominated by the United States of America.61
A possibility to develop substantial strategies could be the broadening of the scope of the defense policy of the EU and loosening the connection to overall worthy political goals, such as democracy and prosperity.62 But this would make the demarcation of powers between the
two pillars even more complicated. Therefore, coordination and cooperation between the different pillars and institutions remains a crucial
challenge for the future effectiveness of the EU’s crisis management system.63
57
58
59
60
61
62
63
Doc. S/2006/616, The Rule of Law and Transitional Justice in Conflict and
Post Conflict Societies, Report of the Secretary-General, 23 August 2004,
page 4.
The same is true for the European Union’s rule of law concept see under
Part III. 1. above. Nevertheless its concept goes a little bit further in the direction of a material rule of law concept.
Rynning, see note 56, 93; Kuperschmidt, see note 23, 6.
In the same way Hoffmeister, see note 41, 179.
S.B. Gareis, “Partner für den Weltfrieden? Die Zusammenarbeit zwischen
EU und UN in der internationalen Krisenbewältigung”, Vereinte Nationen
56 (2008), 154 et seq. (156); see for the first point also A. Menon, “From
Crisis to Cartharsis: EDSP after Iraq”, Int’l Aff. 80 (2004), 631 et seq.,
(642).
So the argument of Rynning, see note 56, 98.
See also Hoffmeister, see note 41, 179-180; Ehrhart, see note 22, 439 et seq.
Max Planck UNYB 13 (2009)
264
Annex
Ongoing Military Operations,
2009
Ongoing Civil Missions, 2009
EUFOR
Althea,
Herzegovina
EU Police Mission (EUPM), Bosnia-Herzegovina
Bosnia-
Start: December 2004
January 2003 – December 2009
Review: May 2009 (the end of the
operation has to be decided by
the Council)
EUFOR TCHAD/RCA
March 2008 – March 2009 (12
month)
EUPOL COPPS, Police Mission in
the Palestinian Territories
January 2006 – December 2010
Despite the official fulfillment of
the mandate in May 2009, the EU
remains active at a political and
diplomatic level in Chad
(5 years)
EU NAVFOR (‘naval force’)
Somalia/ operation “Atalanta”
EUPOL AFGHANISTAN (Police
Mission)
December 2008 – December 2010
(24 months)
June 2007 – June 2010 (3 years)
EUPOL RD Congo (Police Mission)
July 2007 – June 2009
EUJUST Lex, Integrated Rule of
Law Mission for Iraq
July 2005 – June 2009
EULEX KOSOVO (Rule of Law
Mission)
February 2008 (fully operational in
December 2008) – 28 months from
the date of approval of the OPLAN
(probably February 2010)
EUBAM Rafah (Border Assistance
Mission in the Palestinian Territories)
Kuhn, The System of EU Crisis Management
265
November 2005 – November 2009
EUBAM (Border Assistance Mission to Moldova and Ukraine)
November 2005 – November 2009
EUSEC RD Congo (Security Sector
Reform Mission)
June 2005 – June 2009
EU SSR Guinea-Bissau (Security
Sector Reform Mission)
February 2008 – November 2009
EUMM
(Monitoring
Mission)
Georgia October 2008 – October
2009 (review after 6 months)
Completed Military Operations
Completed Civil Missions
Concordia, former Yugoslav Republic of Macedonia (fYROM)
Proxima (Police Mission), former
Yugoslav Republic of Macedonia
(fYROM)
March 2003 – December 2003
December 2003 – December 2005
Artemis, Democratic Republic of
the Congo
June 2003 – September 2003
EUPOL Kinshasa (Police Mission), Democratic Republic of the
Congo
April 2005 – June 2007
EUFOR RD Congo
July 2006 – November 2006
EUPAT (Police Advisory Team),
fYROM
December 2005 – May 2006
EU NAVCO (‘naval coordination’), off the Somali coast
EUJUST Themis (Rule of Law
Mission), Georgia
September 2008 – December 2008
July 2004 – July 2005
AMM (Aceh Monitoring Mission),
Indonesia
September 2005 – December 2006
EU Support to AMIS (civil-military operation), Sudan/ Dafur
July 2005 – December 2007
Lost (or Found) in Transition? The Anatomy of
the New African Court of Justice and Human
Rights
Dan Juma*
I.
Introduction
II. Historicizing the African Human Rights System
III. Key Features of the Protocol and Statute on the Integrated African Court
1. The New Court as Principal Judicial Organ
2. “Transnationalizing” Human Rights Protection in Africa?
3. Extending Complementarity beyond the Court and the African Commission
4. The Case for Direct Access for Individuals and NGOs
5. Interveners and Amicus Curiae
6. The New Court’s Jurisdiction Ratione Materiae
7. Advisory Jurisdiction
IV. In Lieu of a Conclusion
I. Introduction
The African Court on Human and Peoples’ Rights (ACtHPR) has been
in transition for several years now. The locus of this transition has been
an attempt to merge the Court with the African Court of Justice (ACJ),1
created in 2003, into a single judicial institution. Established slightly
over a decade ago by a Protocol to the African Charter on Human and
*
1
The views expressed here are personal.
Protocol of the Court of Justice of the African Union, adopted on 11 July
2003, entered into force on 11 February 2008, AU Doc. Assembly/AU/Dec. 25 (II). Article 2 of the Protocol establishes the African
Court of Justice, hereinafter the ACJ or Court of Justice.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 267-306.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
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Peoples’ Rights,2 the ACtHPR was finally elected in 2006, two years after its constitutive Protocol came into force. Three years later, it is yet
to commence its operations.
When it commences its work, it will only be for a transitional period
since the African Union (AU) adopted a Protocol3 in July 2008 to
merge the Court with the ACJ. The Protocol, which replaces the constitutive protocols creating these two Courts, establishes a new African
Court of Justice and Human Rights,4 with features of the ACtHPR and
the ACJ, all in a single judicial institution.
While the merger is a significant development in the institutionalization of human rights in Africa, some have pointed to the potential pitfalls of the merger, or at least some elements of the new Protocol.5 Yet
others have also questioned the procedural legality, in light of the law of
treaties, and the haste with which the merger was transacted.6 Even
more critical is the attrition of some provisions in the instruments
which the new Protocol replaces and the failure by the AU to reexamine the normative and institutional problems of the African Char-
2
3
4
5
6
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, adopted
26 June 1998, entered into force 25 January 2004, OAU Doc.
OAU/LEG/EXP/AFCHPR/PROT (III), hereinafter the 1998 Protocol.
Article 1 of the Protocol establishes the African Court on Human and
Peoples’ Rights, hereinafter ACtHPR.
Protocol on the Statute of the African Court of Justice and Human Rights,
adopted 1 July 2008, Assembly/AU/Dec. 196 (XI), hereinafter the new
Protocol.
Article 1, the African Court of Justice and Human Rights.
F. Viljoen/ E. Baimu, “Courts for Africa: Considering the Co-Existence of
the African Court on Human and Peoples’ Rights and the African Court of
Justice,” NQHR 22 (2004), 241 et seq. For a discussion of the merits, see K.
Kindiki, “The Proposed Integration of the African Court of Justice and the
African Court of Human Rights: Legal Difficulties and Merits,” RADIC
15 (2007), 138 et seq.
See C. Beyani, “Recent Developments in the African Human Rights System 2004 – 2006,” Human Rights Law Review 7 (2007), 582 et seq. (584);
C. Beyani, “A Human Rights Court for Africa,” Interrights Bulletin 15
(2004), 1 et seq.; I. Kane/ A.C. Motala, “The Creation of a new African
Court of Justice and Human Rights,” in: M. Evans/ R. Murray (eds), The
African Charter on Human Rights: The System in Practice 1986– 2006, 2nd
edition, 2008, 406 et seq., and Kindiki, see note 5, 140 – 144.
Juma, The Anatomy of the African Court of Justice and Human Rights
269
ter on Human and Peoples’ Rights7 in general during this transition. Of
these losses and silences, the linkages between the new Court and the
African Commission on Human and Peoples’ Rights,8 the limited direct
access of individuals and non-governmental organizations (NGOs) before the new Court and the new restrictive provisions on advisory
opinions stand out in particular. With the merger now being a fait accompli, the fundamental question remains whether the new Court will
bring home an effective system of protection, or whether it has been a
mere transition in name and anatomy.
On balance, while these issues remain the subject of debate, the
merged Court also comes with some new accretions. Foremost of these
changes is the complementarity required between the new Court and
other AU treaty bodies. Accordingly, regional treaty bodies such as the
African Commission, African Committee of Experts on the Rights and
Welfare of the Child9 and other treaty bodies that may be established in
future will be competent to refer cases to the new Court. Additionally,
the new Court may make provision for further complementarity in its
procedures. Another innovation is the granting of competence to national human rights institutions (NHRIs) to refer cases to the new
Court.
This article seeks to evaluate some of these issues to examine
whether the African human rights system has lost or gained new prospects in the transition from the two Courts to a single new Court.
Three premises animate this inquiry. First, institutional transitions
by their nature incur gains and drawbacks, even if transitory. While it
should be assumed that transitions are progressive and incremental to
accrued reforms, they may also repudiate existing features and occasion
far-reaching losses to existing catches in the net. This is also true in the
case of new legal regimes. Second, there have been some intractable
7
8
9
See African Charter on Human and Peoples’ Rights, adopted 27 June 1981,
entered into force 21 October 1986, OAU Doc. CAB/LEG/67/3 Rev. 5,
reprinted in: ILM 21 (1981), 59 et seq., hereinafter the African Charter or
the Charter.
The African Commission on Human and Peoples’ Rights, hereinafter the
African Commission or the Commission, is established under article 30 of
the African Charter.
See African Charter on the Rights and Welfare of the Child, OAU Doc.
CAB/LEG/24.9/49 (1990), adopted 11 July 1990, entered into force 29
November 1999. The Committee is established under article 32 of the
Charter to promote and protect the rights and welfare of the child.
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Max Planck UNYB 13 (2009)
long-standing problems in the system, key of which remains the restrictive access of individuals and NGOs to the human rights Court. With
ongoing debate on these issues, it is imperative to examine the response
to these open questions by the new Court’s architecture.
Finally, the development of the African human rights system, as indeed other human rights systems, is “work in progress”. The concern
therefore remains how to strengthen the system through constant reflections by both “insiders” and “outsiders.” This is part of such attempt by an “outsider.” The caveat here is that this is a preliminary assessment. It is by no means a complete offering as being evident from
the selective analysis of key provisions in lieu of an article by article examination of the new Protocol. Moreover the new Court, let alone the
ACtHPR elected over three years ago, is yet to be functional, once
elected after the new Protocol enters into force. Their rules of procedure (only for a transitional period in the case of the ACtHPR) and the
revised rules of procedure of the African Commission, whose mandate
the human rights section is supposed to complement, may well address
some of these issues raised here. This article will thus not address omissions of the new Protocol and Statute of provisions on admissibility10
and conditions for consideration of cases,11 amicable settlement,12 enquiries and expert testimony,13 all of which may be addressed in the
procedures of the new Court or the revised rules of the African Commission.
II. Historicizing the African Human Rights System
The African human rights system was founded in 1981 under the African Charter on Human and Peoples’ Rights. This development came
two decades after the idea of a regional human rights system was first
mooted.14 At the time of this initial conception, no African regional organization existed, and in 1963, when the Organization of African
Unity (OAU) was formed, no regional human rights system or mecha10
11
12
13
14
Article 6 of the 1998 Protocol.
Article 8, ibid.
Article 9, ibid.
Article 26, ibid.
See International Commission of Jurists, An African Charter on the Rule of
Law, Geneva 1961, cited in: C. Heyns (ed.), Human Rights Law in Africa,
Vol. 1, 2004, 299.
Juma, The Anatomy of the African Court of Justice and Human Rights
271
nism was established.15 Normatively, the Charter of the OAU emphasized “cooperation,” “brotherhood,” “solidarity,” “sovereignty,” “territorial integrity” and “reinforced links” between African states, paying
no homage to human rights.16 Moreover, while the OAU Charter outlined as one of its purposes the promotion of international cooperation,
“having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights,”17 practice privileged the principle
of “non-interference in the internal affairs of States”18 over human
rights.
The adoption of the African Charter therefore initialed a promise to
address the vexing democratic and human rights deficits of African
states at that time. The development also responded to the increasing
interest in and promotion of regional human rights systems.19 At the
time, regional human rights regimes attracted renewed attention for the
following reasons.20 First, it was thought that the existence of geographic, political, social, historical and cultural affinities among states of
15
16
17
18
19
20
See G. Naldi, “Future Trends in Human Rights in Africa: The Increased
Role of the OAU,” in: M. Evans/ R. Murray (eds), The African Charter on
Human and Peoples’ Rights: The System in Practice, 1986 – 2000, 2002, 1 et
seq. (1-5).
See the Charter of the Organization of African Unity, in: ILM 2 (1963),
766 et seq.
Ibid., article 2.
Ibid., article 3.
See A/RES/32/127 of 16 December 1977, urging in part “[s]tates in areas
where regional arrangements in the field of human rights do not yet exist to
consider agreements with a view to the establishment within their respective regions of suitable regional machinery for the promotion and protection of human rights.” See also World Conference on Human Rights, Vienna Declaration and Programme of Action, Doc. A/CONF.157/23 (Part I)
at para. 37, recognizing that “[r]egional arrangements play a fundamental
role in promoting and protecting human rights ... [and] reinforce universal
human rights standards.”
For an account on the rationale of the technique of regional human rights
protection, see generally D. Shelton, Regional Protection of Human Rights,
2008; H. Steiner/ P. Alston (eds), International Human Rights in Context,
2000; B.H. Weston et al., “Regional Human Rights Regimes: A Comparison and Appraisal,” Vand. J. Transnat’l L. 20 (1987), 587 et seq. and G.W.
Mugwanya, Human Rights in Africa: Enhancing Human Rights Through
the African Human Rights System, 2003, 32-36.
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Max Planck UNYB 13 (2009)
a particular region was a foundation for “common loyalties”21 around
which human rights would benefit from “collective enforcement.”22
This view also considered that the regional human rights system would
“load off” cultural, historical and social peculiarities from the international system23 through adaptations to local values and norms.24
Second, it was considered that regional human instruments would
represent consensus on human rights norms within a region,25 such
consensus would be translated into collective enforcement or compliance. This view follows the argument that states are likely to be more
confident in and less ambivalent towards regionally or locally guaranteed rights than those adopted by largely “remote” or “distant” global
human rights systems.26 Finally, it was, and still is considered that regional human rights systems have the potential of legitimating the human rights language in a region.27 Through the application of regional
human rights norms, the resulting publicity may result in rights discourse within a region, effectively publicizing and legitimating rights
discourse. By providing “bonds of mutuality”28 between participating
states, regional human rights regimes provide a forum for peer pressure
on recalcitrant states.
21
22
23
24
25
26
27
28
I. Claude, “Swords into Ploughshares,” 102, excerpt in: Steiner/ Alston, see
note 20, 781 et seq.
See S.C. Prebensen, “Inter-state Complaints under Treaty Provisions – The
Experience Under the European Convention of Human Rights”, in: G. Alfredsson et al., International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Moeller, 2001, 533 et seq.
Yash Ghai, Human Rights and Social Development: Toward Democratization and Social Justice, Democracy, Governance and Human Rights Programme Paper Number 5, 2001, 6 et seq., <http://www.law.wisc.edu/gls/do
cuments/social_justice_yash_ghai.pdf>.
See for instance M. Mutua, “The Banjul Charter and the African Cultural
Fingerprint: An Evaluation of the Language of Duties,” Va. J. Int’l L. 35
(1995), 339 et seq.
Weston, see note 20, 589.
Steiner/ Alston, see note 20, 783. See also C. Odinkalu, “The Individual
Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment,” Transnat’l L. & Contemp. Probs.
8 (1998), 359 et seq. (360- 362) and Mugwanya, see note 20, 32-36.
Steiner/ Alston, see note 20, 792.
N. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence, 2002, 82 et seq. See also
Claude, see note 21, 102.
Juma, The Anatomy of the African Court of Justice and Human Rights
273
While the African human rights system has not fully vindicated
these premises, there has been considerable progress in the human
rights movement on the continent. Over the years, there has been an
evolution, albeit slow, of human rights instruments and institutions for
the protection and promotion of human rights.29 The calls for an effective human rights Court have been at the centre of these developments.
Following years of advocacy by NGOs, the OAU Assembly of Heads
of State and Government finally adopted a Protocol in 1998 establishing
the ACtHPR with advisory and contentious jurisdiction30 to complement and reinforce the work of the African Commission on Human
and Peoples’ Rights.
Three points need to be mentioned in relation to this development.
First, the idea of a human rights Court is as old as the initial conceptions of a regional human rights system.31 These antecedent developments reveal that a regional Court was considered as key to the protection of human rights under the African system. This view was rejected,
the contested explanation being that the judicial mechanism of adjudicating human rights at the international level was not an African phenomenon.32 Further, it appears that during the initial discussions in
which the desirability of such a human rights Court was raised, individuals were envisaged as its main consumers.33 Finally, during the pe29
30
31
32
33
See generally C. Heyns (ed.), Compendium of Key Human Rights Documents of the African Union, 2005.
Arts 3 and 4 of the 1998 Protocol. For an analysis of the Court’s jurisdiction, see I. Österdahl, “The Jurisdiction ratione materiae of the African
Court on Human and Peoples’ Rights: A Comparative Critique,” Review
of the African Commission on Human and Peoples’ Rights 7 (1998), 132 et
seq. and A.P. van der Mei, “The new African Court on Human and Peoples’ Rights: Towards an effective Human Rights Protection Mechanism
for Africa?”, LJIL 18 (2005), 113 et seq.
Although a recent addition to the system, the idea of a regional human
rights system and human rights court dates back over four decades ago,
when the idea was mooted at the African Conference on the Rule of Law,
3-7 January 1961, Lagos, Nigeria. See Heyns see note 14, 299. For a brief
history, see also F. Viljoen, “A Human Rights Court for Africa, and Africans,” Brooklyn J. Int’l L. 30 (2004), 1 et seq. (4-10) and F. Ouguergouz,
The African Charter on Human and Peoples’ Rights, 2003, 688 et seq.
Kindiki, see note 5, 139 challenging this view and Odinkalu, see note 26,
363-364. This argument has little purchase since there is no monolithic African approach or tradition in dispute settlement, or even customary law.
Viljoen, see note 31, 5, quoting a delegate who proposed that a regional
court be established as a forum to “judge crimes against humanity against
274
Max Planck UNYB 13 (2009)
riod in which the need for a human rights Court gained momentum
over the last two decades, there was consensus, at least among the civil
society, that the protection of human rights on Africa required a regional Court.34
During this period, another transition was taking place in the African continent. This transition related to calls for economic and political
integration in Africa,35 whose apogee, it was expected, would be the
creation of a new regional organization to replace the nearly forty year
old OAU. Following a declaration in 1999 in the Great Socialist People’s Libyan Arab Jamahiriya,36 the OAU adopted the Constitutive Act
in Lomé, Togo in July 2000, and declared the establishment of the African Union in Sirte on 2 March 2001.37 Like it had been the case during
the establishment of the AU’s predecessor, the drafters of the Constitutive Act did not establish, assimilate or “constitutionalize” the African
Commission on Human and Peoples’ Rights or the ACtHPR as key
organs of the AU. Instead, the Act established the ACJ.38 The Act provided that the Court would interpret matters arising from the application or implementation of the Constitutive Act, whose function would
repose in the Assembly of the AU pending its establishment,39 making
the Court appear not only as an arbiter or advisor in legal issues, but
also in cases or questions of a “political and economic nature.”40 In
34
35
36
37
38
39
40
mankind and violations of human rights.” See Organization of African
Unity, Rapporteur’s Report of the Ministerial Meeting in Banjul, OAU
Doc. CAB/LEG/67/Draft Rapt. Rpt (II) Rev. 4, para. 13.
Viljoen, see note 31, 13-22.
Among the preceding piecemeal measures was the adoption of a treaty establishing the African Economic Community. See J. Senghor, “Treaty Establishing the African Economic Community: An Introductory Essay,” African Yearbook of International Law 1 (1993), 101 et seq.
Sirte Declaration of 9 September 1999, OAU Doc. EAHG//Decl. (IV) Rev.
1.
The establishment of the AU was declared by the 5th Extraordinary Assembly Session of the OAU. See Constitutive Act, adopted 11 July 2000,
and entered into force on 26 May 2001, Decision on the African Union,
OAU Doc. EAHG/Dec. 1 (V).
Ibid., article 5, para. 1 (d), and article 18. See generally T. Maluwa, “The
Constitutive Act of the African Union and Institution-Building in Postcolonial Africa,” LJIL 16 (2003), 157 et seq.
Article 26 of the Constitutive Act.
Viljoen/ Baimu, see note 5, 251.
Juma, The Anatomy of the African Court of Justice and Human Rights
275
2003, as mentioned above, the AU adopted the Protocol establishing
the ACJ.41
At the drafting of the Statute establishing the ACJ, the question of a
merger with the human rights Court arose, even finding expression in
some drafts of the Protocol.42 It would appear that since the ACJ was
intended to be an organ primarily for states or AU organs and not individuals, grafting the human rights Court in the instrument would have
been structurally or conceptually ambiguous, unless modeled primarily
as an inter-state, collective human rights system. In the final text of the
Protocol adopted by the AU Executive Council and later the Assembly
of Heads of State and Government, a resolution to expunge the
ACtHPR from the Draft Protocol and retain it as separate and distinct
from the ACJ was passed.43 However, barely a year later after the Protocol establishing the ACtHPR entered into force in January 2004, a
decision was taken by the AU to merge the Courts in July 2004.44 This
decision was reinforced by a further decision in 2005 by the Assembly
urging that a draft legal instrument relating to the establishment of the
merged Court comprising the ACtHPR and the ACJ be completed.45
Following several drafts and recommendations of the Executive Coun-
41
42
43
44
45
For an analysis of the Court, see K. Magliveras/ G. Naldi, “The African
Court of Justice,” ZaöRV 66 (2006), 187 et seq. According to records of the
AU, the 15th Instrument of ratification was deposited by Algeria on 11
January 2008, and accordingly, pursuant to article 60 thereof, the Protocol
effectively entered into force on 10 February 2008, <http://www.africaunion.org/root/au/index/index.htm>.
Viljoen/ Baimu, see note 5, 254.
Kane/ Motala, see note 6, 406. See Assembly, Decision on the Draft Protocol of the Court of Justice of the African Union, 11 July 2003, AU Doc. Assembly/AU/Dec. 25 (II), in which the Assembly followed the recommendations of the Executive Council, AU Doc. EX/CL/58 (III) and AU Doc.
EX/CL/Dec. 58 (III) (July 2003).
Decision on the Seats of the African Union, AU Doc. Assembly/AU/Dec.
45 (III), para. 4 (July 2004). This “decision on seats” also resolved that the
African Court on Human and Peoples’ Rights and the Court of Justice be
integrated into one Court, mandating the Chairperson of the African Union Commission (the executive arm of the Union) to work out the modalities on implementing the decision.
Decision on the Merger of the African Court on Human and Peoples’
Rights and the Court of Justice of the African Union, AU Doc. Assembly/AU/Dec. 83 (V) (July 2005).
276
Max Planck UNYB 13 (2009)
cil,46 the AU Assembly adopted a Protocol merging the infant
ACtHPR with the ACJ in July 2008.
The premises for the merger have been advanced as follows. First, it
has been argued that the AU does not have enough resources to maintain two Courts.47 A merger would save resources which can be applied
in complementary protection activities of the African human rights system.48 Even though this argument must be considered seriously as it has
been a key problem of the African Commission, it is premised on a
functional argument that the Courts have concurrent mandates. Even
so, such argument is selective as the same has not been applied to the
duplicity of executive or legislative organs of the AU.49 Moreover, the
merger may not reduce the expenses in relation to remuneration of
judges (who are to serve on a part-time basis,50 although the total number of the judges of the two Courts has been reduced from 22 to 16
with the merger51) or technical staff. However, there is credit that a
merger would ensure pooling together centralized support such as human resources, information services and systems and physical resources
– something that would have been equally addressed by a decision to
have the seats of the Courts in one place, with shared basic human resources and physical structures.
Second, proponents of a single Court have adumbrated the view that
proliferation of Courts in Africa is not good for the continent.52 By
46
47
48
49
50
51
52
See Meeting of the Permanent Representatives Committee and Legal Experts on Legal Matters, 16-19 May 2006, AU Doc. EX.CL/211 (VIII) Rev.
1, Annex I. See also Report on the Draft Single Legal Instrument on the
Merger of the African Court on Human and Peoples Rights and the Court
of Justice of the African Union, AU Doc. EX/CL/253 (IX), Annex II
(2006).
B. Kioko, “The African Union and the Implementation of the Decisions of
the African Court on Human and Peoples’ Rights,” Interrights Bulletin 15
(2004), 7 et seq. quoting the Chairperson of the Assembly of Heads of State
and Government during the plenary of the 3rd ordinary session of the Assembly held in Addis Ababa from 6 to 8 July 2004.
Kindiki, see note 5, 145.
See Kane/ Motala, see note 6, 414.
Article 8 (4) of the Statute of the new Court.
Article 3 (1) of the Statute of the new Court. Under article 11 of the 1998
Protocol, the ACtHPR was composed of 11 judges, the same holds true
under article 3 of the 2003 Protocol on the ACJ.
N. J. Udombana, “An African Human Rights Court and an African Union
Court: A Needful Duality or a Needless Duplication,” Brooklyn J. Int’l L.
Juma, The Anatomy of the African Court of Justice and Human Rights
277
simplifying the system, the merger would address potential confusion
of the two Courts by future consumers. However, this view has not
been applied to the growth of sub-regional Courts in Africa and their
application of the African Charter and human rights generally.53 Even
so, proliferation of international Courts and Tribunals remains a subject
of debate, and it is still unclear whether it is a good or bad phenomenon,54 neither is there a pre-ordained unequivocal prescription to the
world. Generally, the establishment of two or more Courts with different mandates and philosophical bases should not be considered to be
proliferation, but rather a process of institutional growth to meet
emerging needs. Applying this logic to the present case, the two African
Courts should have been considered as distinct entities operating in distinct spheres, with the ACJ as the principal judicial organ of the AU
and the ACtHPR as a treaty body being established under a human
rights instrument.55 This tempers the proliferation argument.
Related to proliferation of Tribunals and Courts is the question of
fragmentation of international law as a result of multiple international
judicial organs. While there is no consensus on the scope and undesirability of fragmentation,56 there is a growing interest in the phenome-
53
54
55
56
28 (2003), 811 et seq. and Viljoen/ Baimu, see note 5, 252. See also Kindiki,
see note 5, 144 referring to proliferation as a “problem” that requires an
“antidote.”
These include the Court of Justice of the Economic Community of West
African States (ECOWAS), the East African Court of Justice (EACJ); the
Southern African Development Community (SADC) Tribunal, the Court
of Justice of the Common Market of East and Southern Africa (COMESA), and the Court of Justice of the Economic and Monetary Union of
West Africa (UEMOA). See F. Viljoen, International Human Rights Law
in Africa, 2007, 479 et seq. and G.M. Wachira (ed.), Regional and Subregional Platforms for Vindicating Human Rights in Africa: Judiciary
Watch Report, 2007.
See T. Buergenthal, “Proliferation of International Courts and Tribunals: Is
It Good or Bad?” LJIL 14 (2001), 267 et seq.; B. Kingsbury, “Foreword: Is
the Proliferation of International Courts and Tribunals a Systemic Problem?” N. Y. U. J. Int’l Law & Pol. 31 (1999), 679 et seq. and C.P. Romano,
“The Proliferation of International Judicial Bodies: The Pieces of the Puzzle,” N. Y. U. J. Int’l Law & Pol. 31 (1999), 709 et seq.
Kane/ Motala, see note 6, 409.
See for example, M. Koskenniemi/ P. Leino, “Fragmentation of International Law? Postmodern Anxieties,” LJIL 15 (2002), 553 et seq.; R. Higgins, “A Babel of Judicial Voices: Ruminations from the Bench,” ICLQ 55
(2006), 791 et seq.; B. Simma, “Fragmentation in a Positive Light,” Mich. J.
278
Max Planck UNYB 13 (2009)
non not just in Africa but all over the world.57 The concern here is that
effective international governance and state compliance requires a
common understanding of the normative content of international law,
normally achieved through norm clarification by judicial organs. Conflicting judgments undermine this goal of “unity” or coherence, and
should be avoided. Applied to the co-existence of the ACtHPR and the
ACJ, potential jurisdictional overlaps, “forum shopping” and fragmentation of jurisprudence are likely to arrest the standing of these Courts
hence the need for a merger.58 However, with the increasing number of
sub-regional Courts whose mandates extend to human rights, it is not
clear how the merger of the ACtHPR and the ACJ will be a solution to
the putative fragmentation. Moreover, it is also plausible that the two
Courts would have restrained themselves from this scenario, or even
better still, the ACJ may have evolved, as did the European Court of
Justice, into a “human rights court.”59
Finally, conspirators to a merged Court have also pointed to such
integration as a means of ensuring that human rights on the continent
are not interpreted in a decontextualized or depolitical venue, far from
the Union’s key organs. According to this view, human rights, the
economy and politics are inter-related and by merging the ACtHPR
and the ACJ, the intersection between human rights and economic and
political well-being is likely to be realized.60 On the contrary, opponents of the merger claimed that the ACtHPR was a specialized tribunal and that a merger would subsume and relegate human rights to the
57
58
59
60
Int’l L. 25 (2004), 845 et seq.; G. Hafner, “Pros and Cons Ensuing From
Fragmentation of International Law,” Mich. J. Int’l L. 25 (2004), 849 et
seq.; G. Abi-Saab, “Fragmentation or Unification: Some Concluding Remarks,” N. Y. U. J. Int’l Law & Pol. 31 (1999), 919 et seq.; and P. Dupuy,
“The Danger of Fragmentation or Unification of the International Legal
System and the International Court of Justice,” N. Y. U. J. Int’l Law & Pol.
31 (1999), 791 et seq.
See International Law Commission, Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International
Law, Report of the Study Group of the International Law Commission,
2006, UN General Assembly Doc. A/CN.4/L.682, reprinted in: H. Steiner/
P. Alston/ R. Goodman, International Human Rights in Context, 3rd edition, 2008, 402 et seq.
Udombana, see note 52, 855- 859.
The ECJ is not strictu sensu a human rights Court, but may address such issues in the context of European community law.
Kindiki, see note 5, 145 and Viljoen/ Baimu, see note 5, 253- 261.
Juma, The Anatomy of the African Court of Justice and Human Rights
279
periphery.61 While both arguments are plausible, mere merger alone
may not subsume human rights issues if the Court is properly structured or divided into thematic sections as has been the case. Nor can
mere institutional integration consummate normative intersectionality
of socio-economic and political considerations in the Court’s jurisprudence. Even so, the admission of human rights cases by sub-regional
Courts illustrates that such inter-linkages are already on course.62
III. Key Features of the Protocol and Statute on the
Integrated African Court
The Protocol on the Statute of the new Court merges the ACtHPR and
the ACJ into a single Court. The instrument replaces, over a transitory
period, the 1998 Protocol establishing the ACtHPR and the 2003 Protocol of the ACJ. The Protocol stipulates that the 1998 Protocol shall
be provisionally valid for a transitional period not exceeding a year after
entry into force of the new Protocol.63 This means that pending entry
into force of the new Protocol, the ACtHPR64 may receive cases under
article 5 of the 1998 Protocol, or requests for advisory opinions under
article 4. Should such cases (and opinions)65 be pending following the
entry into force of the new Protocol, they shall be transferred to the
Human Rights Section of the single Court.66 While the Protocol of the
ACJ came into force in February 2008, the Protocol and Statute of the
new Court does not make reference to any transitional arrangements
relating thereto, perhaps because this was not envisaged as possible before the adoption of the Protocol.
61
62
63
64
65
66
Viljoen/ Baimu, see note 5.
Viljoen, see note 53, 500, referring to the emergence of a common human
rights standard in the sub-regional systems.
Article 7 of the Protocol on the Statute of the new Court.
Pursuant to the African Protocol, the Assembly of Heads of State and
Government of the African Union appointed judges at its 6th ordinary session held in Khartoum between 23-24 January 2006. See Assembly/AU/Dec. 100 (VI) Decision on the Election of Judges of the African
Court on Human and Peoples’ Rights. On 1 July 2008, following the expiry of the term of four judges, it adopted the [re]election of four judges as
recommended by the Executive Council. See Assembly/AU/Dec. 202 (XI).
Arguably, this would also apply to advisory opinions, although the new
Protocol makes no transitional provisions therefore.
Article 5 and article 7 of the Protocol on the Statute of the new Court.
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1. The New Court as Principal Judicial Organ
The new Court the African Court of Justice and Human Rights shall
now be the principal judicial organ of the AU.67 The Court is integrated, but divided, that is, it comprises a General Affairs Section and a
Human Rights Section.68 The Human Rights Section is mandated to
hear all cases concerning human rights,69 while the General Affairs Section will hear all cases other than those relating to human and peoples’
rights.70 This division notwithstanding, the Court is considered being a
single entity, and so are the judgments of its sections or chambers,
which shall all be considered as rendered by the Court.71 Either of the
sections can defer a matter to the full Court for consideration if it
deems it necessary.72 This may apply in cases raising serious questions
or in which a decision may be inconsistent with a judgment previously
delivered by the Court, as is the case in the European human rights system where a chamber can in such cases relinquish jurisdiction in favor
of the Grand Chamber.73
The mandating of a principal judicial organ to determine human
rights cases has several advantages. First, it has the potential of “demarginalizing” human rights issues heretofore only ancillary to the AU.
Even the General Affairs Section, mandated with the interpretation of
Union law other than human rights law, may develop a human rights
regime based on the Constitutive Act.74 As a key organ of the Union,
this also means that human rights issues will now be mainstreamed into
the conversations of other organs of the Union, through the provisions
for instance on the enforcement of judgments.75 Ultimately, this has the
67
68
69
70
71
72
73
74
75
Article 2 of Statute of the new Court and article 5 (1) of the Constitutive
Act of the AU.
Article 16 of the Statute of the new Court.
Article 17 (2), ibid.
Article 17 (1), ibid.
Article 19, ibid.
Article 18, ibid.
Article 30 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 213 UNTS 222, adopted on 4 November 1950, entered into force on 3 September 1953, 213 UNTS 221, as
amended.
Viljoen/ Baimu, see note 5, 246-248, noting the human rights principles in
the Constitutive Act.
See Kioko, see note 47, 7.
Juma, The Anatomy of the African Court of Justice and Human Rights
281
prospect of transforming the African Charter on Human and Peoples’
Rights into a “constitutional instrument”76 of the Union and its members. Second, the mainstreaming of human rights into the principal judicial organ of the Union would most likely have a bearing on compliance with its decisions. The argument here is that if states comply with
the decisions of the Court on the interpretation of general legal issues,
their non-compliance with the Court’s human rights decisions would
be seen to be selective.
Finally, the merger and establishment of a single judicial organ will
also address the concern over bifurcation of the system and related possibilities of fragmentation of jurisprudence arising from these systems.
While the General Affairs Section may make decisions with human
rights implications, the Human Rights Section could also make judgments or rulings with implications on the AU’s laws or decisions.
Nonetheless, the establishment of a single presidency, vice-presidency
and registry77 should ensure efficient coordination between the two
sections. The new Court should also adopt formal procedures or informal measures that would enable its sections or chambers to avoid jurisdictional overlaps. For example, there could be a preliminary assessment of the legal issues during the admissibility stage, references made
to the relevant section, or deferred altogether to a Full Court or specially constituted chamber with judges from both sections.78
2. “Transnationalizing” Human Rights Protection in Africa?
The Protocol and Statute of the new Court is an attempt, albeit incomplete,79 to “transnationalize” human rights protection and promotion in
the continent. The theory and practice of the “transnational legal proc-
76
77
78
79
The idea is borrowed from reference by the European Court to the European Convention for the Protection of Human Rights and Fundamental
Freedoms as a “constitutional instrument”, in: Loizidou v. Turkey (Preliminary Objections) (1995) 20 EHRR 99.
Article 22 of the Statute of the new Court.
Under article 19 of the Statute of the new Court, the judgments of such
chambers shall be considered as rendered by the Court.
The incompleteness of the project based on the critique below on the limitations of individual and NGOs’ direct access to the new Court. See Part
III. 4. on individual access.
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ess”80 explains how public and private actors – nation-states, international organizations, national human rights institutions, NGOs, and
private individuals – interact in a variety of public and private, domestic
and international fora to make, interpret, enforce, and ultimately internalize international law.81 This idea rests on the interaction between
states and non-state actors inter se and with international bodies, as well
as normative processes of interpretation, internalization and enforcement.82 The empowerment of the Executive Council to supervise the
execution of the judgments of the new Court83 and the granting of
powers to the Assembly to impose sanctions for non-compliance with
the judgment or decisions of the Court84 are leading examples of an attempt to ensure effective enforcement of human rights in the African
human rights system through this transnational technique. To this list
add the complementarity required between the new Court and other
treaty bodies.
In this process of “transnationalization”, the granting of competence
to African national human rights institutions (NHRIs)85 stands out in
particular. Increasingly, the NHRI is a key player not only in domestic
but also global and regional protection of human rights.86 In mandating
80
81
82
83
84
85
86
See H. Koh, “Transnational Legal Process,” Nebraska Law Review 75
(1996), 181 et seq.
Ibid., 183, 184.
Ibid.
Article 43 (6) of the Statute of the new Court provides that “[T]he Executive Council shall also be notified of the judgment and shall monitor its
execution on behalf of the Assembly.”
Article 46 (4) and (5) of the Statute of the new Court provide that in case of
non-compliance, the Court shall refer the matter to the Assembly, which
may impose sanctions by virtue of para. 2 of article 23 of the Constitutive
Act.
Article 30 (e) of the Statute of the new Court.
See L. Reif, The Ombudsman, Good Governance, and the International
Human Rights System, 2004; R. Murray, The Role of National Human
Rights Institutions at the International and Regional Levels: The
Experience of Africa, 2007; International Council on Human Rights Policy,
Performance & Legitimacy: National Human Rights Institutions, 2004 and
R. Kumar, “National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights,” Am. U. Int’l L. Rev.
19 (2003), 259 et seq. See also Human Rights Watch, Protectors or Pretenders? Government Human Rights Commissions in Africa, 2001, A. Müller/
F. Seidensticker, The Role of National Human Rights Institutions in the
United Nations Treaty Body Process, 2007.
Juma, The Anatomy of the African Court of Justice and Human Rights
283
these institutions to refer cases to the Court, an opportunity arises for
NHRIs to promote and protect human rights through reference of
cases, local discourses on state compliance, awareness raising on the
Court and the African Commission, and generally, monitoring compliance with international human rights law. Considering the limited access of individuals before the Court, NHRIs could use this function to
seize the African Court in urgent matters requiring speedy determination or interim measures, particularly where these are domestically unavailable.
The Statute of the new African Court of Justice and Human Rights
defines NHRIs as “public institutions established by a state to promote
and protect human rights.”87 Following this definition, it is safe to say
that any NHRI is competent to refer cases to the Court. In countries
where NHRIs have restricted mandates that would otherwise be construed domestically as not to permit such references, the Court or the
African Commission should urge States Parties to ensure that the mandates accorded to NHRIs include these functions of domestic and regional protection and the promotion of human rights. Nonetheless, absent such express mandates, African NHRIs can imply these powers
from their express mandates.
3. Extending Complementarity beyond the Court and the
African Commission
Complementarity between the African Commission and the Court has
been long considered overdue. At the time of the adoption of the 1998
Protocol which also enunciated this principle, human rights violations
remained commonplace in Africa, thanks in part to the weaknesses of
the protective and promotional mandates of the African Commission.
Advocates for an effective human rights system argued that only a
Court would remedy the weaknesses of the protective mandate of the
African Commission in considering individual communications, providing interim measures and laying down binding decisions. Under
such an arrangement, the Commission would continue to exercise limited protective functions and focus on promotional or “political”
roles.88
87
88
Article 1 of the Statute of the new Court.
For example, Makau Mutua has argued that the Commission should have
soft promotional functions such as monitoring and oversight through state
284
Max Planck UNYB 13 (2009)
While the principle of complementarity enshrined in the Protocol
and Statute is animated by the historiography of a weak system of protection and enforcement, it is as well driven by the move towards complementarity between international and regional human rights bodies in
general. The Preamble of the Protocol on the Statute of the new Court
thus acknowledges that in order to achieve the objectives of the African
Charter, the Court will supplement and strengthen the mission of the
African Commission, the African Committee of Experts on the Rights
and Welfare of the Child,89 and other continental treaty bodies and special mechanisms.90 Similarly, article 38 of the Statute enjoins the Court
to lay out its procedures, taking into account the complementarity between the Court and other treaty bodies of the Union.
On the whole, these provisions are prima facie super-equivalent to
the 1998 Protocol. Under the latter, the ACtHPR was established to
complement and reinforce91 the protective mandate of the African
Commission. In contrast, the new Protocol and Statute expressly include other treaty bodies and NHRIs, setting the stage for a multilayered system of human rights protection. However, the new Protocol
has lost, at least from its text, some key complementarity provisions
embedded in the 1998 Protocol. For example, the 1998 Protocol expressly empowered the Court to request the opinion of the Commission on the admissibility of cases referred to it by individuals or
NGOs.92 Further provision was made for the Court to transfer cases it
deemed necessary to the Commission.93 Such cases, it can be interpreted, may have included those in which the Court needed the Commission’s assistance in fact finding, as in the Inter-American system.94
89
90
91
92
93
94
reporting procedures and technical support in legislation and policy. See M.
Mutua, “The African Human Rights Court: A Two Legged Stool?”, HRQ
21 (1999), 342 et seq. (360- 361).
Preamble to the Protocol on the Statute of the new Court, para. 5.
Ibid., para. 10. For special mechanisms in the African human rights system,
see R. Murray, The Special Rapporteurs in the African System, in: Evans/
Murray, see note 6, 344.
Article 2 and Preamble of the 1998 Protocol, para. 7.
Article 6 (1) of the 1998 Protocol.
Article 6 (3) ibid.
C. Medina, “The Inter-American Commission on Human Rights and the
Inter-American Court of Human Rights: Reflections on a Joint Venture,”
HRQ 12 (1990), 439 et seq. (460).
Juma, The Anatomy of the African Court of Justice and Human Rights
285
Another venue where complementarity would have been found is
amicable settlement, which has been lost from the text of the new Protocol.95 It could be argued that since this is best done by quasi-judicial
bodies like the African Commission,96 cases for amicable settlement are
among those that the Court may have transferred under this provision.
Also, the requirement that the Rules of Procedure of the Court should
lay down the detailed conditions under which the Court shall consider
cases brought before it, bearing in mind the complementarity between
the Commission and the Court97 may have been interpreted as a certificate granting the Commission some functions of filtering cases, or at
the very least, advising the Court on the admissibility of cases.98 Taking
this interpretation, only cases of “principle”, with the potential to contribute to the jurisprudence of the Court, may be referred to the
Court.99
Finally, the Protocol has also failed to clearly demarcate the responsibilities and institutional relations between the Court and the African
95
96
97
98
99
Unlike the 1998 Protocol, the new Protocol makes no such provision for
amicable settlement. See article 9 of the 1998 Protocol on the Establishment
of the ACtHPR.
See for instance article 48 (1)f of the American Convention on Human
Rights, in: Basic Documents Pertaining to Human Rights in the InterAmerican System 25, OEA/Ser. L.V/ II.82, Doc. 6, Rev. 1 (OAS General
Secretariat 1992 and article 52 of the African Charter). See also R. Murray,
“A Comparison between the African and European Courts on Human
Rights,” African Human Rights Law Journal 2 (2002), 195 et seq. (199201).
Article 8 of the 1998 Protocol.
This has of course its advantages and disadvantages. Some have argued that
this would “choke” off some cases at the Commission, which would have
otherwise been admitted by the Court, while others have argued that the
Commission should only have promotional and political functions such as
monitoring and oversight through state reporting procedures and technical
support in legislation and policy. Another recent development also disrupts
the image that the independence of the African Commission[ers] had been
attained following the declaration of a seat of a Commissioner as vacant before the end of his term as a result of concerns over his lack of independence from his government. See R. Murray, “Recent Developments in the
African Human Rights System 2007,” Human Rights Law Review 8
(2008), 356 et seq. (357); J. Harrington, “The African Court on Human and
Peoples’ Rights”, in: Evans/ Murray, see note 15, 319 et seq. (322).
Mutua, see note 88, 362.
286
Max Planck UNYB 13 (2009)
Commission in their contentious and advisory jurisdictions.100 While
the procedural rules may address the lacunae or silences in the Protocol
and Statute, the existence of patent and latent ambiguities in the instrument purveys no unequivocal drafting “instructions” to the writers of
these rules. For instance, as will be argued in subsequent sections of this
article,101 there is no clear justification why the African Commission is
required to seek the authority of the Assembly in order to submit a request for an advisory opinion. This gives the impression that complementarity is not considered imperative in this sphere, yet the possibility
of fragmented jurisprudence in the advisory opinions of the new Court
and the African Commission makes a compelling case for complementarity.102
In order to address this, the Assembly should grant the Commission
and its special mechanisms “unlimited” authority to request advisory
opinions as and when they deem necessary. The explanation here is that
as an organ established by the African Charter, the African Commission should have unfettered access to the Court on any question regarding the interpretation of the Charter, as this will help it to perform its
tasks.103 It is not enough that it can intervene104 or appear before the
Court105 subsequent to a request for an advisory opinion by another
body, as this presupposes that the Commission will have been notified.106 In the Inter-American human rights system, for instance, the In100
101
102
103
104
105
106
See I.A.B. Elsheikh, “The Future Relationship between the African Court
and the African Commission,” African Human Rights Journal 2 (2002), 252
et seq.
See Part III. 7.
N. Krisch, “The Establishment of an African Court on Human and Peoples’ Rights,” ZaöRV 58 (1998), 713 et seq. (720).
Elsheikh, see note 100, 257.
Arts 50 (2) and 52 (2) of the Statute, applicable by analogy to advisory
opinions, impliedly grant the African Commission, as an organ of the Union having been notified of an advisory opinion, the right to intervene in
proceedings relating to any interpretation and application of the Constitutive Act or any other treaties respectively.
Ibid., article 54 (1). Also, article 54 (2) only makes references to states or
any Intergovernmental Organization considered by the Court as the key
entities likely to appear before the Court during advisory proceedings.
Based on the requirement that a request for an advisory opinion should not
relate to an application before the African Commission, it is to be expected
that the Court will notify the Commission of all requests for advisory
opinions.
Juma, The Anatomy of the African Court of Justice and Human Rights
287
ter-American Commission on Human Rights, as an organ of the Organization of American States (OAS), has an absolute right to request
an advisory opinion from the Inter-American Court on any matter
within its “sphere of competence.”107 Through this structure, the Court
complements the Commission’s work by determining human rights
questions within the OAS.108 Whether such question is admissible is a
judicial question, only within the province of the Court to determine.
Second, from the view that the Court may not issue an advisory opinion suo motu,109 it appears that requests for advisory opinions will
mainly come from human rights bodies.
4. The Case for Direct Access for Individuals and NGOs
Much of the criticism about the 1998 Protocol was directed at the restricted direct access of individuals and NGOs to the ACtHPR.110 Under article 5 (1) of this Protocol, only the African Commission, States
Parties and African Intergovernmental Organizations had automatic access to the Court. In contrast, the Court had the discretion to allow
relevant NGOs with observer status at the African Commission and
individuals to institute cases directly before it,111 provided that the State
107
108
109
110
111
Article 64 (1) of the American Convention.
See J. M. Pasqualucci, “The Advisory Practice of the Inter-American Court
of Human Rights: Contributing to the Evolution of International Human
Rights Law,” Stan. J. Int’l L. 38 (2002), 241 et seq.
This may however be the case, if the rules of procedure or practice so crystallize, taking note that the African Commission recently issued an advisory opinion suo motu. See African Commission on Human and Peoples’
Rights, Advisory Opinion of the African Commission on Human and
Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous People (2007).
J. Harrington, “The African Court on Human and Peoples’ Rights,” in:
Evans/ Murray, see note 15, 319; G. Bekker, “The African Court on Human and Peoples’ Rights: Safeguarding the Interests of African States,”
Journal of African Law 51 (2007), 151 et seq.; A.A. Mohammed, “Individual and NGO Participation in Human Rights Litigation before the African
Court on Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights,” Journal of African Law 43 (1999),
201 et seq.; E. de Wet, “The Protection Mechanism under the African
Charter and the Protocol on the African Court on Human and Peoples’
Rights,” in: Alfredsson, see note 22, 724-725.
Article 5 (3) of the 1998 Protocol on the Establishment of an ACtHPR.
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Max Planck UNYB 13 (2009)
Party concerned had made a declaration accepting the competence of
the Court to receive such cases at the time of the ratification of the Protocol or any time thereafter.112 As was the case under the 1998 Protocol
and now the 2008 Protocol, the duration of the declarations is not clear,
and it is possible that such declarations may be valid for an indefinite
time or a specified period.113 Moreover, as was the case in the “old”114
European human rights system, some States Parties may make declarations with impermissible limitations,115 or where the declarations are
time specific, may fail or neglect to renew their declarations.116
While no credible justification was made for this restrictive approach, it was considered a necessary incentive for the adoption or ratification of the Protocol establishing the Court.117 Another justification
evident from the initial versions of the 1998 Protocol is that the drafters
may have preferred access by individuals or NGOs only in exceptional
circumstances.118 With the experience of over 40,000 cases submitted to
the European Court of Human Rights every year,119 it could have been
further argued that the Court should ideally not be a venue for individual justice, but rather a source of jurisprudence on the African Charter.
112
113
114
115
116
117
118
119
Article 34 (6) of the 1998 Protocol.
Article 45 (3) of the American Convention on Human Rights provides
these options.
Reference is made here to the “old” European human rights system which
was institutionally anchored on two organs, the European Commission on
Human Rights and the European Court of Human Rights. See C. Ovey/ R.
White, European Convention on Human Rights, 2002, for a historiography
of the European human rights system.
D. Harris et al., Law of the European Convention on Human Rights, 1995,
581 et seq.
For instance, the United Kingdom did not renew its declaration following
its expiry in 1981 until 1993, because of an unfavorable decision in a case
that had been initiated by an individual. See Harris, see note 115, 33 citing
the case of Tyrer v. UK (1978) Series A, No. 26, 2 EHRR 1.
See I.A.B. Elsheikh, “Draft Protocol to the African Charter on Human and
Peoples’ Rights on the Establishment of an African Court on Human and
Peoples’ Rights: Introductory Note,” African Journal of International and
Comparative Law 9 (1997), 943 et seq. (947).
Mei, see note 30, 121.
See generally S. Greer, “What’s Wrong with the European Convention on
Human Rights?”, HRQ 30 (2008), 680 et seq.
Juma, The Anatomy of the African Court of Justice and Human Rights
289
Yet such objective can be met through stringent admissibility rules or
review of working methods over time,120 or optional jurisdiction.121
It is clear that during the negotiations of the Protocol, the ambivalence by some states on the potential “danger” of allowing direct access
to the Court was not a secret, and only a compromise would appease
their desires.122 Despite this heavy price, it turned out that the rate of
ratification and accession still remained too slow, and only one state had
deposited declarations accepting the ACtHPR’s competence to receive
cases directly from individuals and NGOs at the time of the merger.123
Under article 29 of the new Statute, States Parties, the Assembly, the
Parliament and other organs of the AU authorized by the Assembly or
an appellant staff member of the Union are competent to refer cases to
the Court. This article, which tracks provisions on the jurisdiction ratione personae of the ACJ,124 further provides that the Court shall not
be open to states which are not members of the Union nor shall it have
jurisdiction to deal with a dispute involving a member of the Union that
has not ratified the Protocol.125 This formulation is premised on the
narrative of consent in international law, in which the exercise of jurisdiction is generally given through ratification of the treaty concerned,
declaration of acceptance of jurisdiction ratione personae or ad hoc
agreements.126 In relation to ad hoc agreements, the new Protocol has
lost a provision of the 2003 Protocol on the Statute of the ACJ, which
allowed third Parties under conditions to be determined by the Assembly, and with the consent of the State Party concerned, to submit cases
before the Court.127
120
121
122
123
124
125
126
127
See for example, under the European human rights system, Lord Woolf,
Review of the Working Methods of the European Court of Human Rights,
2005.
Mutua, see note 88, 361-362.
Harrington, see note 110, 310-316.
Burkina Faso.
Article 18 of the 2003 Statute on the ACJ.
Article 29 (2) of the Statute of the new Court.
See generally C. Romano, “The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of
Consent,” N. Y. U. J. Int’l Law & Pol. 39 (2007), 791 et seq. and J.M.
Pasqualucci, The Practice and Procedure of the Inter-American Court of
Human Rights, 2003, 98 et seq.
Article 18 (1) d of the 2003 Statute on the ACJ.
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Similarly, article 30 of the Protocol on the Statute of the new Court
is a deposit in part of the provisions of article 5 of the 1998 Protocol on
entities entitled to refer cases to the Court.128 The additional entities
expressly recognized under article 30 are the African Committee of Experts on the Rights and Welfare of the Child129 and African NHRIs.130
Article 30, read together with article 38 of the Statute and the overall
object of complementarity expressed in the preamble, is an attempt to
redeem the pitfalls of human rights protection under the African human
rights system. However, the significant additional entities in article 30
are only NHRIs, which had theretofore no recognition as competent
bodies to seize the Court.131 Under the 1998 Protocol, a purposeful interpretation of international organizations would have included the African Committee of Experts on the Rights and Welfare of the Child, or
any other treaty body.132 Article 30 of the Statute of the new Court is
however more restrictive than its predecessor by qualifying the category of African inter-governmental organizations as those “accredited
to the Union or its organs.”133
This is compounded by the definition of African intergovernmental
organizations which is restricted to those established with the aim of
128
129
130
131
132
133
Viljoen, see note 31, 23- 40 and D. Juma, “Access to the African Court on
Human and Peoples’ Rights: A Case of the Poacher turned Gamekeeper,”
Essex Human Rights Review 4 (2007), 1 et seq. (7- 21). Under article 5 (1)
the following are entitled to submit cases to the Court: the Commission;
the State Party which had lodged a complaint to the Commission; the State
Party against which the complaint has been lodged at the Commission; the
State Party whose citizen is a victim of human rights violation; African Intergovernmental Organizations. Under article 5 (3), “[t]he Court may entitle relevant Non Governmental organizations (NGOs) with observer status
before the Commission, and individuals to institute cases directly before it,
in accordance with article 34 (6) of this Protocol”.
Article 30 (c) of the Statute of the new Court.
Article 30 (e) of the Statute of the new Court.
For an account of the current engagement of NHRIs at the African Commission, N. Mbelle, “The Role of Non-governmental Organizations and
National Human Rights Institutions at the African Commission”, in: Evans/ Murray, see note 6, 289.
See P. Sands/ P. Klein, Bowett’s Law of International Institutions, 2001, 16
et seq. and H.G. Schermers/ N.M. Blokker, International Institutional
Law, 2001, 39 et seq.
Article 30 (d) of the Statute of the new Court.
Juma, The Anatomy of the African Court of Justice and Human Rights
291
ensuring socio-economic integration, or other sub-regional, regional or
inter-African organizations.134
While the granting of locus standi to individuals and NGOs to the
new Court regardless of whether they are victims or directly affected
by the complaint is a progressive move, the key concern remains the restricted direct access of individuals and NGOs under the Protocol and
Statute to the new Court. As has been argued elsewhere,135 the direct
access of individuals to any human rights system is based on four main
premises. First, the leitmotif of human rights is to insulate the individual from the “predatory state,”136 a scheme which necessitates platforms
accessible to the individual to complain in cases of violations. This view,
based on the liberal theory of human rights, further rests on the thesis
that individuals are the foremost consumers of the human rights protection systems, of which the African Court is a part.137 The same state,
presented in the image of a poacher,138 cannot be granted the primary
remit to seek redress on behalf of individuals whose rights it has violated through its acts or omissions.
Second, the limitation of individuals and NGOs also defies the object of internationalization and regionalization of human rights protection.139 Absent declarations by States Parties permitting direct access,
the main gateway for individuals to the Court may be the African
Commission,140 NHRIs and other treaty bodies. However, this presupposes that the protective mandate and functioning of these institutions
is not sub-optimal. Moreover, while almost all African countries now
have NHRIs of varying descriptions, each of them is founded on and
functions in different political, legal and constitutional environments.
This will implicate their willingness or capacity to refer cases to the new
African Court of Justice and Human Rights. In the case of the African
Commission, whose jurisdiction ratione materiae extends only to the
134
135
136
137
138
139
140
Article 1, ibid.
Juma, see note 128, 6-7.
See M. Mutua, “Savages, Victims and Saviors: The Metaphor of Human
Rights”, Harv. Int’l L. J. 42 (2001), 201 et seq. (221); and C. Douzinas, The
End of Human Rights, 2000, 119 et seq.
Mutua, see note 88, 355, 361 and Harrington, see note 110, 320.
Juma, see note 128, 3-6.
For a similar argument, see H.J. Steiner, “International Protection of Human Rights”, in: M. Evans (ed.), International Law, 2003, 760 et seq.
F. Viljoen, “Admissibility under the African Charter”, in: Evans/ Murray,
see note 15, 95.
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African Charter,141 a strict interpretation may imply limitations on receipt and referral of cases relating to “any other relevant human rights
instrument ratified by the states concerned.”142 Another difficulty may
relate to urgent cases referred to the Commission for transmission to
the Court for judicial protection measures when the Commission is not
in session.143 If the Court adopts a two-tier system of individual complaints procedures as is the case under the Inter-American human rights
system,144 the Court and the Commission will have to address these issues in their procedural rules.
Third, an underlying intent of human rights law is to provide legal
remedy in cases of violations of rights guaranteed. Human rights are
not intended to be pious platitudes, but rather justiciable claims
through among other means, adjudication.145 The vindication of these
rights is generally to be initiated by individual claimants and bearers of
these rights. The case for unfettered access of individuals and NGOs to
the African Court is thus to be viewed from the optic of enabling aggrieved parties to seize the Court for obtaining justice or remedies to
which they are entitled. Consequently, this will also have the effect of
elucidating the scope of the African Charter and other human rights instruments which the Court will apply.
Moreover, from the procedural point of view, it has become a basic
tenet of the judicial process that each party to a dispute be afforded a
reasonable opportunity to present its case under conditions that do not
place either party at an appreciable disadvantage vis-à-vis the other.146
A scheme through which States Parties have automatic access whereas
individuals and NGOs only have access to the African Court if the
141
142
143
144
145
146
Under article 61 of the Charter, the Commission is enjoined to take into
consideration other sources and principles of international law only as subsidiary means of interpretation.
Article 30 of the Statute of the new Court.
See under <http://www.achpr.org/english/_info/sessions_en.html> African
Commission on Human and Peoples’ Rights.
Article 44 of the American Convention on Human Rights, OAS Treaty Series No. 36, 1144 UNTS 123, adopted on 22 November 1969, entered into
force 18 July 1978, reprinted in Basic Documents Pertaining to Human
Rights in the Inter-American System, OEA/Ser.L.V/II.82 Doc. 6 Rev. 1, at
25 (1992).
Jayawickrama, see note 28, 125.
See Dombo Beheer B.V. v. The Netherlands (1993) Series A, No. 274, 18
EHRR 213.
Juma, The Anatomy of the African Court of Justice and Human Rights
293
State Party consents through a declaration repudiates this principle of
equality of arms.147
Unlike cases submitted directly by individuals and NGOs as parties
with the freedom to choose who to represent or assist them in the proceedings,148 it is probable that the individual victim or representative of
the victim may not be a party to the proceedings in cases referred to the
African Court by the African Commission, State Party, NHRIs or the
African Inter-governmental Organization as was the case in the “old”
European system until 1983.149 If this approach is taken, these entities
will then be considered as the party representing the interests of the individual.150 Yet there is no guarantee that the interests of the individual
and the recognized party will be congruent.151 Where the interests of
the Commission or any other designated representatives of the individual do not meet, the likelihood of “injustice” in the eyes of the individual is not remote. Even so, the fact that the individual is not a party to
the proceedings makes individual remedial justice not the object of the
proceedings, but rather state violation of rights, as was stated by the
European Court in the Vagrancy Cases thus:
“Since the [individual] is not party to the proceedings before the
Court, the object of those proceedings, strictly speaking, is not the
147
148
149
150
151
See A.A.C. Trindade, “The Inter-American Human Rights System at the
Dawn of the New Century: Recommendations for Improvement of its
Mechanism of Protection”, in: D.J. Harris/ S. Livingstone (eds), The InterAmerican System of Human Rights, 1998, 411 et seq., citing imbalances between the individuals and states such as the fact that states do raise preliminary objections before the Court on questions such as admissibility,
whereas individuals cannot do so since they are not parties to the case.
Article 36 (5) of the Statute.
Harris, see note 115, 660-661.
This interpretation follows article 36 (4) of the Statute which provides for
representation of the African Commission, the African Committee of Experts, African Inter-governmental Organizations and African NHRIs.
Unless where these are intervening or are submitting cases as amici curiae,
this provision, it appears refers to situations where these entities submit
cases to the Court and are thus parties. However, where an individual or an
NGO submits a case, it is clear that such will be a party, and pursuant to
article 36 (4), may be represented or assisted by a person of their choice.
D. Shelton, Remedies in International Human Rights Law, 1999, 3 et seq.
294
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damage suffered by him but the violation of the Convention alleged
against the respondent State.”152
Finally, from an effectiveness perspective, no human rights treaty is
worth the paper it is written on unless it has credible means of enforcement.153 Put differently, human rights are guaranteed in any system to provide a mechanism for ensuring enforcement of recognized
rights and obligations through the judicial process or any other means.
At the international level, the guaranteeing of these rights to the individual necessitates access and “full power”154 of the individual to enforce them in an international tribunal.155 This requires that regional
mechanisms are accessible to enforce these rights where the domestic
level falters. But the case is compelling further because as with other
human rights treaties, the African Charter has not been domesticated in
the municipal systems of all States Parties.156 This implies that the domestic level in many of the States Parties is arid in relation to the guaranteed rights. This is not helped by the claw-back clauses which have
been used to undermine the Charter,157 constitutional limitations, and
general ambivalence of states towards the findings of the African
Commission.158
152
153
154
155
156
157
158
De Wilde, Ooms and Versyp v. Belgium (The Vagrancy Cases), (No. 1)
(1971) 1 EHRR 373.
For a critique of the incompleteness of this “enforcement-centric” argument, see O.C. Okafor, The African Human Rights System, Activist Forces
and International Institutions, 2007.
R. Murray, “A Comparison between the African and European Courts of
Human Rights,” African Human Rights Law Journal 2 (2002), 195 et seq.
(201).
Ovey/ White, see note 114, 6-9.
Heyns, see note 14, 49 and C. Heyns/ F. Viljoen, The Impact of the United
Nations Human Rights Treaties on the Domestic Level, 2002, 46 et seq., citing regions, among them Africa, where engagement in this enterprise is the
“lowest.”
Mutua, see note 88, 358, 359.
See generally R. Murray, “Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights,” ICLQ 46 (1997), 412 et seq.
Juma, The Anatomy of the African Court of Justice and Human Rights
295
5. Interveners and Amicus Curiae
It is no longer in dispute that international law is not exclusively the
law of nations. States are no longer considered the only players in international law and governance, but also other non-state entities like
individuals.159 Nowhere is this better illustrated than in international
human rights law, where individuals and NGOs are influential participants in standard setting, monitoring, reporting, advocacy, litigation,
enforcement and other human rights protection measures.160 The latter
has entailed actions before judicial or quasi-judicial organs, ranging
from instituting cases as parties or petitioning requests for advisory
opinions to acting as interveners or amici curiae in contentious cases or
advisory opinions.
In the African human rights system, NGOs have played a phenomenal role in human rights protection.161 Most individual communications before the African Commission have been lodged by or at the
initiative of these organizations,162 even where they are not “victims” or
“directly affected” by the violations alleged.163 This implies that the African Charter, as was held in SERAC v. Nigeria,164 allows actio popularis. By the same token, there has been a practice of amicus curiae
briefs before the African Commission, albeit limited. However, it is not
clear if the Commission also allows interveners before it. Only with the
adoption of the new Protocol and Statute has the status of interveners
in the African human rights system been clarified. However, there are
some limitations which bear noting.
159
160
161
162
163
164
H.J. Steiner, “Individual Claims in a World of massive Violations: What
Role for the Human Rights Committee”, in: P. Alston/ J. Crawford (eds),
The Future of UN Human Rights Treaty Monitoring, 2000, 15 et seq.
See generally C. Welch Jnr. (ed.), NGOs and Human Rights: Promise and
Performance, 2001; D. Shelton, “The Participation of Nongovernmental
Organizations in International Judicial Proceedings,” AJIL 88 (1994), 611
et seq. and M. Mutua, “Standard Setting in Human Rights: Critique and
Prognosis,” HRQ 29 (2007), 547 et seq. (589-604).
See C. Welch Jnr. (ed.), Protecting Human Rights in Africa: Roles and
Strategies of Non-governmental organizations, 1995.
For the cases, see <http://www.achpr.org>.
Odinkalu, see note 26, 378, 379. Article 56 of the African Charter.
Decision Regarding Communication 155/96 (2001), Social and Economic
Rights Action Center/Center for Economic and Social Rights v. Nigeria,
Case No. 155/96 ACHPR/COMM/A044/1, para. 3.
296
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Under the Statute of the new Court, interested States Parties and organs of the AU can intervene in the proceedings of the Court whenever
the question of interpretation of the Constitutive Act165 or other treaties166 arises in a case167 in which they are not parties. It appears that the
idea behind this article is to ensure “collective enforcement” of resulting
judgments in issues where the States Parties and AU organs have an interest, since the Statute provides that the judgment will be binding for
all parties.168 If this interpretation is not disrupted, it is not clear why
human rights, which impose obligations erga omnes169 have been excluded from the category of cases in which States Parties or organs of
the AU can intervene.170
The other problem relates to the limitation of entities that can intervene. In these cases States Parties and organs of the AU only. Here, a
textual reading of the Statute repudiates the competences of NGOs,
NHRIs and individuals to intervene in such cases, which was a possibility under the 1998 Protocol.171 While it has to be recognized that the
Statute is silent on amicus curiae and hence the Court can admit NGOs
as such through its procedural rules and purposeful interpretation of
the Statute,172 the exclusion of these entities may have an effect since
interveners and amici curiae have different rights in a judicial process:
165
166
167
168
169
170
171
172
Article 50 of the Statute.
Article 51, ibid.
Article 56 of the Statute of the new Court makes the provisions on contentious cases applicable analogously to advisory opinions.
Arts 50 (3) and 51 (2) of the Statute of the new Court.
Barcelona Traction Case, Contentious Case, ICJ Reports 1970, 3 et seq.
The ICJ stated that in obligations relating to “the basic rights of the human
person … all states can be held to have a legal interest in their protection;
they are obligations erga omnes.”
Article 51 (3) of the Statute provides that these provisions are not applicable to cases relating to alleged violations of human rights.
Mohammed, see note 110, 202, 203 and 211-213 and V.O.O. Nmehielle,
The African Human Rights System: Its Laws, Practices and Institutions,
2001, 318 et seq. Under 26 (2) thereof, “[t]he Court may receive written
and oral evidence including expert testimony and shall make its decision on
the basis of such evidence.” This can be interpreted to include amici curiae
since it does not make reference to parties or States Parties.
For example, article 54 (4) of the Statute contemplates that organizations
may present written or oral statements or both in proceedings on advisory
opinions. See also article 36 (5) of the Statute, in relation to parties in contentious cases.
Juma, The Anatomy of the African Court of Justice and Human Rights
297
the former generally become parties to the proceedings, with the rights
and obligations appurtenant to that status, while amici curiae “cannot
control the direction or management of a case as parties can.”173
6. The New Court’s Jurisdiction Ratione Materiae
Like its predecessors,174 the new Court has jurisdictional competence
over all cases and all legal disputes relating to the interpretation, validity
or application of the Constitutive Act,175 the African Charter176 and its
Protocols,177 or any other general178 or human rights treaties of the Union,179 and all subsidiary legal instruments or acts and decisions of the
organs of the Union.180 Further, it also has competence on any question
of international law,181 breach of an obligation owed to a State Party or
to the Union182 and the nature or extent of the reparation to be made
173
174
175
176
177
178
179
180
181
182
Shelton, see note 160, 611-612. See also G. Williams, “The Amicus Curiae
and Intervener in the High Court,” Federal Law Review 28 (2000), 1 et
seq.; S. Kenny, “Interveners and Amici Curiae in the High Court,” The
Adelaide Law Review 20 (1998), 159 et seq. and R. Owens, “Interveners
and Amicus Curiae: The Role of the Courts in a Modern Democracy,” The
Adelaide Law Review 20 (1998), 193 et seq.
Article 3 (1) of the 1998 Protocol provides that “[t]he jurisdiction of the
Court shall extend to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any other
relevant Human Rights instrument ratified by the States concerned.” Article 19 of the 2003 Statute provides that: “The Court shall have jurisdiction
over all disputes and applications referred to it in accordance with the Act
and this Protocol which relate to: (a) the interpretation and application of
the Act; (b) the interpretation, application or validity of Union treaties and
all subsidiary legal instruments …; (c) any question of international law; (d)
all acts, decisions, regulations and directives of the organs of the Union; (e)
… (f) … breach of an obligation owed to a State Party or to the Union; (g)
the nature or extent of the reparation to be made for the breach of an obligation.”
Article 28 (1) of the new Statute.
Ibid., arts 28 (c) and 30.
Ibid., arts 28 (b), (c) and 30.
Ibid., arts 28 (d), (e),(h) and 30.
Ibid., arts 28 (b), (c) and 30.
Ibid., arts 28 (b), (e) and 30.
Ibid., arts 28 (a), (d), (g), (h) and 30.
Ibid., arts 28 (g) and 30.
298
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for the breach of an international obligation.183 Another innovation is
that the Court shall have subject matter jurisdiction through special
agreement.184
Without any doubt, this is the foremost broad and liberal jurisdiction ratione materiae ever conferred on a regional Court.185 However,
some observations are in order. It is clear that the generous jurisdiction
envisaged under article 28 of the Statute relates to the General Affairs
Section,186 with respect to matters relating to international law, the Union’s constitutive instrument, or any other general treaties of the AU.
Ergo, the jurisdiction ratione materiae of the Court is not a blank
cheque as it may appear at first sight. In the case of the Human Rights
Section, the question, case or dispute must relate to claims of violation
of a right guaranteed by the African Charter, the Charter on the Rights
and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any
other legal instrument relevant to human rights ratified by the States
Parties concerned.187 The Human Rights Section is, like the General Affairs Section, the Full Court or any chamber of the Court, empowered
to apply the Constitutive Act, customary international law and international treaties ratified by the contesting states,188 or other treaties to
which these treaties or the other African human rights treaties make
183
184
185
186
187
188
Ibid., arts 28 (h) and 30.
Ibid., article 28 (f).
Pasqualucci, see note 126, 91 discussing Las Palmeras v. Colombia (Preliminary Objections 2000), IACtHR Series C No. 67 (2000), para. 22 operative para. 2. In contrast, the Inter-American Court of Human Rights does
not have jurisdiction to render judgments on violations of other human
rights treaties which do not confer jurisdiction on the Court, even if the
states concerned have signed the treaty. However, in rendering advisory
opinions, it can consider any human rights treaty, article 64 (1).
Article 17 (1) of the Statute.
Article 30 of the new Statute. See also article 34 (1) which requires that
cases brought before the Court relating to an alleged violation of a human
right shall indicate the right(s) alleged to have been violated, and, insofar as
it is possible, the provision or provisions of the African Charter on Human
and Peoples’ Rights, the Charter on the Rights and Welfare of the Child,
Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa or any other relevant human rights instrument,
ratified by the state concerned, on which it is based.
Article 31 of the new Statute.
Juma, The Anatomy of the African Court of Justice and Human Rights
299
reference to.189 To this extent therefore, the provisions on jurisdiction
and applicable law190 are not super-equivalent to the 1998 Protocol.
On the other hand, while international human rights law is a “specialized” genre of international law, interpreting the former will inevitably invite methods of interpretation of international law and its norms
and general principles of law.191 For example, a State Party may bring
an inter-state complaint before the General Affairs Section based on an
alleged violation of another State Party’s obligation to respect or protect
human rights under the Principles of the Constitutive Act.192 By the
same token, this question or dispute may be brought to the Human
Rights Section. Accordingly, the strict view that the Human Rights Section will have jurisdiction in all human rights cases and questions must
be tampered, since human rights systems are not after all “selfcontained regimes” divorced from general international law.193
Another silence on the Court’s jurisdiction ratione materiae relates
to relevant human rights instruments. While it is clear that these must
be ratified by the States Parties concerned, some practical issues relating
to duplex jurisdiction with other judicial or quasi-judicial treaty bodies
may arise. The concerns here are that this may lead to fragmentation
and uncertainty as to which of the interpretations is authoritative.
While there is no clear way out of this jurisdictional reach, it may be
considered that objections to jurisdiction will be common in the
Court’s contentious cases. Such objections, if persistent and common,
may have an effect on the standing of the new Court. Another possibility is that some states may make subject matter reservations, thus un189
190
191
192
193
For example, article 60 of the African Charter provides that the African
Commission shall draw inspiration from the international law on human
and peoples’ rights, the Charter of the United Nations, the [Constitutive
Act], the Universal Declaration of Human Rights and any other human
rights instruments.
Under article 7 of the 1998 Protocol, “[t]he Court shall apply the provision
of the Charter and any other relevant human rights instruments ratified by
the States concerned.”
Kindiki, see note 5, 142.
See arts 28 and 29 of the new Statute.
See B. Simma/ D. Pulkowski, “Of Planets and the Universe: SelfContained Regimes in International Law,” EJIL 17 (2006), 483 et seq. (528)
and B. Simma, “How Distinctive are Treaties Representing Collective Interest? The Case of Human Rights Treaties,” in: V. Gowlland-Debbas (ed.),
Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process, 2000, 87 et seq.
Max Planck UNYB 13 (2009)
300
dermining the generous provisions of the Protocol. One way of resolving this is to insert compromisory clauses granting the Court jurisdiction in future treaties. However, this should not be a pathway for forum
shopping or the granting of jurisdiction otherwise vested in other
courts through lex specialis treaties, such as for instance, the International Criminal Court. The Court could also consider issuing an advisory opinion on the scope of the Court’s jurisdiction in receiving questions or cases based on “other relevant treaties ratified by the States
Parties concerned.”
7. Advisory Jurisdiction
The new African Court has jurisdiction to deliver advisory opinions on
any legal question at the request of the Assembly, the Parliament, the
Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council, the Financial Institutions or any other organ
of the Union as may be authorized by the Assembly.194 To avoid disguised contentious cases being submitted as requests for advisory opinions and to limit jurisdictional overlaps, the subject matter of the advisory opinion must not be related to a pending application before the
African Commission or the African Committee of Experts on the
Rights and Welfare of the Child.195 While it is not expressly provided in
the Protocol on the Statute, nor the Statute itself, the Court like other
similar judicial bodies has the compétence de la compétence to determine
whether it has the jurisdiction on any “legal question” referred to it.196
It is still however unclear whether questions of jurisdiction and admissibility in general will be determined by the Registry, Full Court, a
chamber or either Sections of the Court depending on the subject matter.
The advisory jurisdiction is a key feature of international legal and
regional human rights systems.197 The idea stems from the premise that
194
195
196
197
Article 53 (1) of the new Statute.
Article 53 (3) of the new Statute.
See generally D. Akande, “The Competence of International Organizations
and the Advisory Jurisdiction of the International Court of Justice,” EJIL
9 (1998), 437 et seq. and Pasqualucci, see note 108, 250, 251.
See Article 96 of the Charter of the United Nations, article 47 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended and article 64 American Convention on Human
Juma, The Anatomy of the African Court of Justice and Human Rights
301
the law’s provisions are most often capable of varying interpretation,
and it is only desirable that in cases of doubt, the apex judicial organ in
the judicial system concerned should provide an authoritative interpretation. Advisory opinions have the following key functions. First, they
are venues for clarification of legal standards and norms, particularly
where legal provisions or obligations are ambiguous or contested. This
in turn enables players in the enforcement of rights and obligations to
effectively undertake their tasks. Second, advisory opinions, particularly those relating to the compatibility of domestic laws, practices and
policies with international laws are important impulses for state compliance with international law.198 Even where these are not specific to
any state, the evolution of practices voluntarily or through resulting
pressure following these opinions points to the potency of advisory
opinions.199 Third, although non-binding and “soft” in nature, advisory
opinions provide non-adversarial means of resolving or preventing international legal disputes.200
While the subject matter jurisdiction on any “legal question” provides the Court with latitude to receive the broadest possible range of
questions, this provision has lost the spirit and letter of the 1998 Protocol on the ACtHPR.201 Instead, it embraces the provisions of article 44
of the Statute of the ACJ, which granted competence only to similar
organs of the AU. Conspicuously missing are NGOs, NHRIs, the Af-
198
199
200
201
Rights. Article 45 (3) of the African Charter mandates the African Commission to “[I]nterpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU.”
Pasqualucci, see note 108, 241, 243 and 284-286. See article 64 (2) of the
American Convention which mandates the Inter-American Court to provide advisory opinions to requesting states regarding the compatibility of
any of its domestic laws with the American Convention or of other treaties
concerning the protection of human rights in the American states.
T. Buergenthal, “The Advisory Practice of the Inter-American Human
Right’s Court,” AJIL 79 (1985), 1 et seq. (25).
Pasqualucci, see note 108, 247.
Krisch, see note 102, 718, 724. Under article 4, any Member State of the
AU, the AU, any of its organs, or any African organization recognized by
the AU may request the African Court to provide an opinion on any legal
matter relating to the Charter or any other relevant human rights instruments.
302
Max Planck UNYB 13 (2009)
rican Commission,202 and Member States of the AU,203 although the
latter can request an advisory opinion through organs of the AU.
Two key problems arise out of the new provisions on advisory opinions. First, the general formulation of the provisions casts the advisory
opinion as a facility for the organs of the AU. In contrast, the advisory
opinion contemplated in the 1998 Protocol empowered not only the
AU, but also Member States and any African organization to request an
advisory opinion. While the Protocol did not define African organizations, observers argued that African NGOs could request advisory
opinions under this article.204 In addition to the exclusion of NGOs, it
is not clear why NHRIs – most of whose mandates include advisory
functions – have not been granted competence to submit requests for
advisory opinions to the new Court. It is also not clear why NGOs and
NHRIs have been excluded from the entities which the Court has discretion to notify when a request for an advisory opinion is received.205
Second, and related to the above, it appears from a textual reading of
the relevant parts of the Statute that the advisory opinion is largely intended as a mechanism for inter-state or inter-governmental relations
within the AU.206 Nothing illustrates this better than the omission of
the African Commission, the African Committee of Experts on the
Rights and Welfare of the Child, NHRIs and NGOs from the list of entities competent to submit requests for advisory opinions, discussed
above. Moreover, the state-centrism of the advisory opinion is not only
evinced by the categories of entities competent to request advisory
202
203
204
205
206
After over twenty years of existence, the Commission issued its first advisory opinion in May 2007, which points to the inadequacy of its advisory
opinion functions.
States Parties, for instance, may need advisory opinions not as a group
within the AU, but individually on domestic issues such as the compatibility of its laws with international human rights law.
See A.P. van der Mei, “The advisory jurisdiction of the African Court on
Human and Peoples’ Rights,” African Human Rights Law Journal 5
(2004), 27 et seq. (35-37).
Article 54 (1) and (4) of the new Statute.
See article 53 (1) of the new Statute detailing AU organs and granting the
Assembly the “gatekeeper” role. See also article 54 (1), (2), (3) and (4) respectively, making reference in part to “States or organs entitled to appear
before the Court,” “State[s] entitled to appear before the Court or any Intergovernmental Organization[s],” “States entitled to appear before the
Court” and “States and Organizations.” See also arts 50 and 51 on interveners in contentious cases, applicable by analogy to advisory opinions.
Juma, The Anatomy of the African Court of Justice and Human Rights
303
opinions, but also the requirement that the Assembly grants authority
to any other AU organ seeking an advisory opinion.
The problem with this is that some advisory opinions may need to
be given speedily, for instance, on a question before the African Commission, otherwise the substratum of the question may be lost before
the requisite authority is given. Another ambiguity with this provision
is that the granting of “initial” authority by the Assembly, a political
body, is technically a judicial process, almost similar with consideration
of admissibility of such requests. Unless the Assembly will merely authorize without looking at the merits of a request, this determination
should be the province of the Court.
Finally, it also remains to be seen how the Court will construe the
scope of any “legal question.” The difficulty here is that the Statute
does not define any instruments that the “legal question” relates to.
However, considering the object and purpose of the Protocol on the
Statute of the new Court, the “legal question” should primarily relate to
the interpretation or application of the Constitutive Act, African Charter on Human and Peoples’ Rights and its Protocols and related human
rights treaties, and any other treaties adopted within the framework of
the AU.207
On the whole, this provision appears to be a generous offering at
first glance, yet it is its generality that may also grant the new Court
discretion to reject matters which may be within the scope of human
rights, yet are not purely legal. The questions here are: can the Court
admit a request for an advisory opinion, for instance, on contemporary
forms of colonialism or global justice? Can an advisory opinion be requested on a political question based on non-compliance by a State
Party to the African Charter on Democracy, Elections and Governance
when it comes into force? 208
Following the experience of the ICJ, there is no doubt that the new
Court will be faced with the issue of whether a matter is legal or politi207
208
See Preamble of the Protocol on the new Statute.
Kane/ Motala, see note 6, 427,428. African Charter on Democracy, Elections and Governance, adopted on 30 January 2007, AU Doc. Assembly/
AU/Dec.147 (VIII). While this is not clear, in relation to contentious cases,
article 25 of the Charter envisages trial of perpetrators of unconstitutional
change of government in Africa before the competent Court of the Union.
It has been argued that such may be criminal trials, best conducted through
specialized criminal tribunals or the International Criminal Court, and not
the African Court.
Max Planck UNYB 13 (2009)
304
cal in almost all the requests. Within the context of the utility of the advisory opinion in strengthening the African human rights system, the
Court may need to note the “political” in human rights209 and politicization as a means of securing and enforcing human rights.210 So long as
the Court can relate these to any existing principles and rules contained
in international law and the treaties of the AU in relation to the matter,
the same should be regarded as a legal question. Thus in the Advisory
Opinion on the Legality of the Use of Nuclear Weapons, the ICJ reaffirmed its interpretation on the scope of a “legal question” in earlier advisory opinions thus:
“The fact that … [a] question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ … Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations
imposed upon them by international law ... The Court moreover
considers that the political nature of the motives which may be said
to have inspired the request and the political implications that the
opinion given might have are of no relevance in the establishment of
its jurisdiction to give such an opinion.”211
IV. In Lieu of a Conclusion
A decade ago, it seemed that the idea of the ACtHPR, having been conceived, could not be unthought-of. But the recent merger of the Court
with the ACJ to establish a single Court has proved that the African
human rights system is indeed “work in progress.” Accordingly, views
on the losses and gains in the new Protocol and Statute are only pre209
210
211
Illustrated in cases involving unconstitutional change of government and
denial of citizenship rights for political reasons such as Dawda Jawara vs
The Gambia, African Commission on Human and Peoples’ Rights, Comm.
Nos. 147/95 and 149/96 (2000) and John K. Modise vs Botswana, African
Commission on Human and Peoples’ Rights, Comm. No. 97/93 (2000). See
generally M. Ignatieff (ed.), Human Rights as Politics and Idolatry, 2001.
M. Ruteere, “Politicization as a Strategy for Recognition and Enforcement
of Human Rights in Kenya,” Human Rights Review 7 (2006), 6 et seq.
Legality of the Use of Nuclear Weapons, Advisory Opinion, ICJ Reports
1996, 226 et seq. (234, para. 13).
Juma, The Anatomy of the African Court of Justice and Human Rights
305
liminary. Current efforts, in this regard, including those of the African
Commission, to finalize its revised rules of procedure, some of which
may remedy some of the current problems in the protective mandate of
the system, should be noted.
However, the breakneck speed with which the merger was undertaken may lead to intractable differences between states in the African
human rights system and the precarious foundations of its institution.
As has been illustrated in this article, while the new Protocol largely
tracks the provisions of the 1998 Protocol on the ACtHPR and the
2003 Protocol on the ACJ, there has been an erosion of several elements
of both instruments.
Yet others are silent and thus remain open to interpretation. Of
these, the continued restricted direct access of individuals and NGOs to
the new Court in the absence of Declarations by States Parties stands
out in particular. In addition to the practical difficulties of accessing the
Court through the entities competent to seize the Court, this continued
privileging of States Parties also gives an impression that the new Court
is intended to be a Court for African States or the AU, with human
rights being only ancillary. This impression is further enhanced by the
provisions on advisory opinions of the Court, which makes the mechanism appear intergovernmental or state-centric by excluding NHRIs
and NGOs from the list of entities competent to refer questions to the
new Court for an advisory opinion.
It has also been argued that the new Court alone may not ordain a
departure from the normative and institutional deficiencies of the system in general. In this regard, the architecture of the African human
rights system is still unclear even after the adoption of the Protocol and
Statute. Here, the concern remains the reform of the African Commission and its working methods, and its linkages with the new Court.
While some of these aspects may be addressed in the procedural rules of
the new Court and through revision of the procedures of the African
Commission, these piecemeal changes may result in a patchwork. Even
more worrying are recent developments concerning the AU’s attempts
to curtail the powers of the African Commission to adopt countryspecific resolutions,212 and more recently, allegations of lack of inde212
Kane/ Motala, see note 6, 437, referring to the AU Assembly’s adoption of
the 19th Activity Report of the African Commission, “except for those
containing [human rights violations] the Resolutions on Eritrea, Ethiopia,
the Sudan, Uganda and Zimbabwe.” See Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, Doc.
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Max Planck UNYB 13 (2009)
pendence of a member of the African Commission, which led to his seat
being declared vacant.213 While the African Commission has witnessed
notable advances in its jurisprudence and working generally, these developments repudiate the standing of the institution in the African human rights system.
Finally, at the normative level, the entry into force of the Protocol
on Women’s Rights and most recently the adoption of a treaty on the
rights of Internally Displaced Persons must be considered significant.
Nevertheless standard setting and the development and clarification of
human rights norms by no means complete the matrix of human rights
realization. In this regard, NGOs should also be competent to request
advisory opinions from the new Court as envisaged by the 1998 Protocol. Finally, whether or not the substantive premises and impulses for
reform have been lost in the transition to a new African Court of Justice and Human Rights is a matter for determination in the future.
213
EX.CL./236 (VIII), Assembly/AU/Dec.101 (VI), Assembly of the African
Union, 6th ordinary session Khartoum, Sudan, Assembly/AU/Dec. 91-110
(VI).
See note 98.
Legal Issues Arising from the Possible Inclusion
of Private Military Companies in UN
Peacekeeping
Matija Kovač*
I.
II.
Introduction
Terms and Working Definitions
1. A UN Peacekeeping Force
2. A Private Military Company (PMC)
III. Legal Framework for PMC Inclusion in UN Peacekeeping Forces
1. Scenarios and Modes of Engagement
2. Subjects of International Law Relating to PMC Peacekeeping Engagement
3. Rules of International Law Generally Applicable to the PMC Peacekeeping Engagement
a. The UN Charter as the Basis for Peacekeeping Normative Framework
b. Specific Rules Relating to Peacekeeping Forces on the Ground
aa. Convention on the Privileges and Immunities of the United
Nations
bb. Status of Forces Agreements
cc. Convention on the Safety of United Nations and Associated
Personnel
c. General Rules Relating to Peacekeeping Forces on the Ground
aa. International Human Rights Law
bb. International Humanitarian Law
d. Other Sources of Law Applicable to Peacekeeping Forces and
PMCs
*
The article is based on the author’s Master in International Affairs Dissertation at the Graduate Institute of International and Development Studies,
Geneva, 2008. The author wishes to thank Professor Andrea Bianchi, Ph.D.
for his substantial comments and Livia Rurarz-Huygens for her editorial
comments. Views expressed in this article are solely those of the author.
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 307-374.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
308
IV.
V.
Max Planck UNYB 13 (2009)
Responsibility Issues Arising from Acts of the PMC Peacekeeping Force
1. General Issues of Attribution
2. The Secondment of the PMC by a State Scenario
3. PMC Hired for Peacekeeping Directly by the UN
Conclusion
Kovač, Private Military Companies in UN Peacekeeping
309
I. Introduction
The main aim of this article is to explore the legal issues arising from the
possible inclusion of Private Military Companies (PMC) as a military
component of United Nations (UN) peacekeeping. The idea of private
military contractors conducting combat-related activities traditionally
reserved for public authorities, especially at the international level, is
thought-provoking. Not only are the legal implications complicated, it
also raises complex political questions, especially in the light of historical trends toward the national and international regulation of military
activities
Since the establishment of the UN in 1945, the states controlling international peace and security protection mechanisms have been reluctant to provide the UN with sufficient resources, that would allow its
rapid reaction to situations that require its presence, either as a mediator, confidence-builder, security guarantor or even as a state or nation
builder. In fact, the idea of peacekeeping (as it is known both today and
during the early years) was not originally envisaged for the UN, but
developed through practice, which was marked by a constant quest for
neutrality and willing states with the appropriate military capacities. A
situation that has particularly proliferated since the end of the 1980s. In
this context the various ideas of stand-by UN forces trained to conduct
peacekeeping and able to react in a timely manner, have been voiced,
but also zealously rejected. The main reasons for the lack of enthusiasm
for this idea are that the UN might gain autonomy, the increased costs
such developments would entail, inefficient and inadequate management practices and the threat of abuse of such powers.
The potential use of PMCs in UN military peacekeeping structures
is, of course, not the only way to improve UN peacekeeping in the
wider role of the UN’s contribution to world peace and security. It
seems, however, an interesting strategy that could tackle the challenges
that burden the traditional approaches to peacekeeping, which rest
upon the principle of the exclusive role of the states as contributors of
troops.1 This is a time-consuming process, which sometimes results in
late reactions to situations which would require prompt responses. One
of the arguments supporting PMC peacekeeping involvement is that
this solution would be both cost - and time-effective. A market approach, building on a competitive and growing PMC industry, might
1
C. Rochester, White Paper: A Private Alternative to a Standing United Nations Peacekeeping Force, Washington Peace Operations Institute, 2007.
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reduce the costs of peacekeeping and provide the high-quality service
entities willing to undertake the necessary measures required by the
regulator. The latter is an essential component of a successful policy and
should not be underestimated. PMC involvement could, furthermore,
provide a solution to the factor that often dissuades governments from
committing themselves to UN engagement, namely the threat of casualties when they send troops. The role of US public opinion and the policy shift of the US government during its involvement in Somalia in the
1990s is a well-known example of this. In short, adopting this policy
might increase the capacity of the UN to accomplish its peacekeeping
work.
This article explores therefore the legal implications, consequences
and limitations of such a policy option. The bulk of the work conducted here will not aim at arguing in favour of such an option, but will
touch upon the legal questions arising from it, and indeed, there are
many. The topic is based upon the interaction of actors from the public
and private spheres, both conducting governmental functions in an extraterritorial context. Furthermore, it is a topic involving the interaction
of various bodies of international law, often in an undefined manner.
Lastly, it is a situation without a clear-cut legal precedent, calling for the
application of peacekeeping-related practice and allowing for some
analogies, but leaving room for innovative thinking.
The work is organised as follows: first, the concepts of peacekeeping
and PMCs will be clarified. The second part then outlines the legal
framework applicable to PMC peacekeeping in detail: two scenarios for
PMC inclusion are described, the legal subjects involved are identified
and the applicable substantive rules of international law are surveyed.
Emphasis is placed on the rules relating to UN peacekeeping and they
are applied in analogy at the end of each section regarding either private
contractors or the two outlined hypothetical scenarios. Next, the two
scenarios are tested against rules of international responsibility for
wrongful acts. The conclusion outlines the major findings and legal
limitations accompanying the possible use of PMCs in UN peacekeeping.
II. Terms and Working Definitions
This section defines the two crucial concepts of this work, namely a
UN peacekeeping force and a PMC. The purpose of this exercise is not
to arrive at a definition that would definitively settle the classification
Kovač, Private Military Companies in UN Peacekeeping
311
issues, but to outline the scope of this work and clearly define the limits
of its operational applicability. This is essential since the aim is to construct a legal picture for the potential inclusion of PMCs in peacekeeping operations, not as mere logistical or technical support, but as an actual combat force mandated by the UN to perform protection activities
of a military nature. Focusing on a currently fictional situation creates
uncertainties by default, which can be partially accommodated by the
precise definition of terms. Neither of the two terms, however, has an
unambiguous and widely recognised definition which would easily
serve legal purposes, although one could perhaps claim that peacekeeping is characterised by a greater degree of legal clarity due to its substantial degree of practice and the fact that its initiation is inherently
dependant on relevant international law provisions. This initial focus on
the definition of terms is of additional importance as it points to the
underlying issues causing doctrinally divergent international law debates, although limited space demands a concise analysis of the issue.
1. A UN Peacekeeping Force
It is preferable to turn first to the understanding of the terms peacekeeping and peacekeeping force. The concepts are not new, they operate
within a clear and well-established legal framework, and they serve as a
basis for the theoretical incorporation of PMCs, defined later in this
paper. A maximalist understanding of peacekeeping, denotes “the multidimensional management of a complex peace operation, usually in a
post-civil war context, designed to provide interim security and assist
parties to make those institutional and material transformations that are
essential to make peace sustainable.”2 The term nowadays, often used
interchangeably with peace support operations or even with peacebuilding, has undergone considerable development since it was first
used in 1956.3 This is characterised by its partial detachment from the
2
3
M. Doyle/ N. Sambanis, “Peacekeeping Operations”, in: T. Weis/ S. Daws
(eds), The Oxford Handbook on the United Nations, 2007, 323 et seq.
(332); K. Rudolph, “Peace-Keeping Forces”, in: R. Wolfrum (ed.), United
Nations: Law, Policies and Practice, 1995, 957 et seq.
The then UN Secretary-General Hammarskjöld and the former Canadian
foreign minister Pearson invented the term for the purpose of the establishment of UNEF I (United Nations Emergency Force); M. Bothe,
“Peacekeeping”, in: B. Simma (ed.), The Charter of the United Nations: A
Commentary, 2002, 648 et seq. (681).
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UN and the differentiation of three generational paradigms of peacekeeping.4
The so-called first generation of peacekeeping encompasses a consent-based interposition of lightly-armed forces under UN authority
with a mandate to monitor, report and engage in hostilities only in selfdefence after a truce has been reached. The personnel involved are almost exclusively military, as are their functions.5 The second generation
of peacekeeping refers to multidimensional operations for the purpose
of implementing complex and multidimensional peace agreements; it
generally includes law-enforcement activities such as police and civilian
tasks and also includes, in a more complex way, an element of crisis
management.6 The third generation of peacekeeping mainly encompasses enforcement operations under Chapter VII,7 blurring the line between peacekeeping and peace enforcement.8 An extended comprehensive operational strategy involving the authoritative assistance in administrating and re-building states with the aim of assuring sustainable
4
5
6
7
8
This paragraphs draws from Doyle/ Sambanis, see note 2. For a comprehensive description of UN peacekeeping generations see also M. Katayanagi, Human Rights Functions of United Nations Peacekeeping Operations,
2002, 42-54.
Typical examples are UNEF I and II, UNDOF (UN Disengagement Observer Force) and UNIFIL (UN Interim Force in Lebanon) from 1978 etc.
Examples are: UNAVEM (UN Angola Verification Missions I, II and III),
various UN Missions in Haiti UNMIH (UN Mission in Haiti) and its successors. See in respect of Haiti J. Leininger, “Democracy and UN PeaceKeeping – Conflict Resolution through State-Building and Democracy
Promotion in Haiti”, Max Planck UNYB 10 (2006), 465 et seq., and
UNAMIC (UN Advance Mission in Cambodia) and UNTAC (UN Transitional Authority in Cambodia), see Bothe, see note 3, 682.
Imposing order without local consent; non consent distinct arrangements
(no fly zones); exercise of force to implement the terms of a comprehensive
peace agreement from which parties defected, Doyle/ Sambanis, see note 2,
327 et al.
Some make an elementary distinction that peacekeeping operations are not
“‘peace enforcement’ [...], i.e., international sanctions that imply ‘action by
air, sea or land forces as may be necessary to maintain or restore international peace or security’ under the terms of article 42 of the UN Charter,”
J. Saura, “Lawful Peacekeeping: Applicability of International Humanitarian Law to United Nations Peacekeeping Operations”, Hastings Law Journal 58 (2007), 479 et seq. (481).
Kovač, Private Military Companies in UN Peacekeeping
313
peace is required.9 The role of military functions and personnel in this
contemporary understanding of peacekeeping, which extends beyond
the activities of UN agents and increasingly relies on regional and nongovernmental actors, is complementary to other, non-military activities.
However, noting the underlying importance of security guarantees for
the conduct of non-military aspects of modern peacekeeping operations, the persistently crucial role of an authoritative military component must be recognised. One can therefore agree with the lowest
common denominator observation that “essentially peacekeeping involves deployment of armed forces under UN control to contain and
resolve military conflicts.” 10 This can be confidently affirmed as a
cross-cutting characteristic of all peacekeeping generations.
Furthermore, the institutional affiliation of these forces to the UN
entails very specific rules for their creation and engagement. UN peacekeeping forces were originally an ad hoc solution for a disfunctionality
or even collapse of the UN peace and security assurance system, failing
to work along the provisioned UN Charter Chapter VII rules in their
entirety.11 The need to separate UN authorised peacekeeping from Article 42 enforcement measures12 or Chapter VI measures for peaceful
settlement of disputes13 results in reference to peacekeeping, which is
sometimes referred to as the Chapter VI and a half action.14 Through
9
10
11
12
13
14
The doctrinal strategy was provided by the UN Secretary-General in his
report An Agenda for Peace, Doc. A/47/277-S/24111 of 17 June 1992.
M.N. Shaw, International Law, 5th edition, 2003, 1108.
The reference here is, of course, to the inapplicability of UN Charter
Chapter VII measures during the time of Cold War which not only prevented the UN from military engagement but also rendered inapplicable
the implementation of UN Charter Articles 43 to 47. These would offer a
plausible legal and operational basis for the implementation and conduct of
peacekeeping action as it has evolved through time.
Taken by the UN or its members on behalf of the UN in their role of restorer of international peace and security.
Methods for peaceful settlement of disputes among countries are listed in
Article 33 of the UN Charter.
The action is an interplay of the Chapters VI and VII. According to the
former, any dispute or situation that might endanger international peace
and security can be brought to the attention of the Security Council or
General Assembly (Article 35 (1)), and the latter may “recommend appropriate procedures or methods of adjustment” (Article 36 (1)), which can, at
least on paper, include also action (Article 37 (2)). It is, however, Chapter
VII which provides the Security Council with powers to take decisions that
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Max Planck UNYB 13 (2009)
the authorisation of peacekeeping operations the UN Security Council,15 (or exceptionally the General Assembly16) de facto mandates an
action to aid the warring parties in their dispute settlement. Often the
peacekeepers are mandated to use force in order to carry out their mandate. This is essentially a situation-specific characteristic of a mission,
therefore making generalisations difficult. One could claim, however,
that recent practice has gone beyond the pure “self-defence” character
of peacekeeping in the direction of peacekeepers being authorised “to
use all necessary means to carry out its mandate.”17 Certain discretion
for international armed forces to use force can also be inferred from a
further characteristic of peacekeeping, commonly referred to as its element, namely that it is usually based on the consent18 of the respective
states and armed factions.19 Despite being standard practice expressing
the bona fide of warring parties, such consent can have a very limited
value in reality. In any case, it should not be seen as a blanket authorisa-
15
16
17
18
19
its members are bound to accept and carry out (Article 25), which include
restrictive measures including the use of force.
This is a well-established practice now, confirming the Council’s primary
responsibility for the maintenance of international peace and security. The
Council has the power to create subsidiary organs under Article 29. Generally on UN subsidiary organs see D. Sarooshi, “The Legal Framework
Governing United Nations Subsidiary Organs”, BYIL 67 (1997), 413 et
seq. (416).
Such action can in theory be authorised by the UN General Assembly, according to the Uniting for Peace Resolution (A/RES/377 (V) of 3 November 1950), which, however, did not refer to peacekeeping, but enforcement
action. Only in exceptional cases (UNEF I, UN Security Force in West
New Guinea (UNSF)/Temporary Executive Authority (UNTEA)) was the
peacekeeping force established by the General Assembly, see for the latter
D. Gruss, “UNTEA and West New Guinea”, Max Planck UNYB 9 (2005),
97 et seq.
Saura, see note 8, notes, that in 2007 out of the six operations based on
Chapter VII, only UNMIL (UN Mission in Liberia) was not expressly authorised to use force along these lines.
C. Greenwood, “International Humanitarian Law and United Nations
Military Operations”, Yearbook of International Humanitarian Law 1
(1998), 3 et seq. (10); B. Tittemore, “Belligerents in Blue Helmets: Applying
International Humanitarian Law to United Nations Peace Operations”,
Stanford J. Int’l L. 33 (1997), 61 et seq. (77); Saura, see note 8, 482.
U. Palwankar, “Applicability of International Humanitarian Law to United
Nations Peacekeeping Forces”, Int’l Rev. of the Red Cross 294 (1993), 227
et seq. (228).
Kovač, Private Military Companies in UN Peacekeeping
315
tion for the use of force, particularly as UN operations are deployed in
order to keep or to assist in maintaining conditions for peace rather
than to provide them.
Finally, one needs to explore the essential link between the peacekeeping force and the UN that has authorised its deployment. The Department of Peacekeeping Operations (DPKO) is charged with planning, preparing, managing and directing UN peacekeeping operations
so that they can effectively fulfil their mandates under the command
vested in the UN Secretary-General, who reports to the Security Council on their progress.20 The mandates provided are often vague and
complex in their transformation into practice. This said, one may propose the following understanding of the term as it will be used here: a
UN peacekeeping force is a formation of a mainly military character,
which is legally established and mandated to conduct its activities by
the UN Security Council and operates under the command vested in
the UN Secretary-General, to whom it is ultimately responsible.
2. A Private Military Company (PMC)
The integration of private contractors in military-related activities at
national and international level has proliferated considerably since the
late 1990s,21 obviously creating an attractive policy option as well as
considerable academic and media attention. Serious analysis in this area
has often been frustrated by the lack of agreement as to what PMCs actually do, 22 resulting in an agreement that “there is no commonly
agreed definition of what constitutes a ‘private military company’ or a
‘private security company.’”23 A distinction between the two, built
20
21
22
23
See below. See also S. Gordon, “Icarus Rising and Falling: The Evolution of
UN Command and Control Structures”, in: D.S. Gordon/ F.H. Toase
(eds), Aspects of Peacekeeping, 2001, 19-41.
See J. Messner/ Y. Gracielli, State of the Peace and Stability Operations Industry: Survey 2007, for an overview of the industry.
S. Chesterman/ C. Lehnardt, “Introduction”, in: S. Chesterman/ C.
Lehnardt (eds), From Mercenaries to Markets: The Rise and Regulation of
Private Military Companies, 2007, 1 et seq. (3).
E.C. Gillard, “Business Goes to War: Private Military/Security Companies
and International Humanitarian Law”, Int’l Rev. of the Red Cross 863
(2006), 525 et seq. (529).
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Max Planck UNYB 13 (2009)
upon the different nature of their engagement,24 seems to prevail. It is,
however, of limited value as the reality on the ground appears to be that
many companies offer a broad spectrum of services.25 Furthermore, associating PMCs solely with offensive activity and security companies
only with defensive activity makes little sense, as the line is extremely
blurred26 and case-specific, or even irrelevant from the perspective of
international humanitarian law (IHL). For the purpose of IHL, an “attack” is an act of violence against the adversary, regardless of its being
carried out offensively or defensively.27
PMCs can and do perform a wide variety of activities on behalf of
virtually all active participants in international relations.28 This functional diversity makes classification difficult and stimulates a definition
of the activities rather than of the entity itself.29 They are first distinguished by their impact, either between those aiming to alter the strate24
25
26
27
28
29
By which private security companies are to engage only in defensive and
protection operations, as opposed to offensive manoeuvres conducted by a
narrower category of private military companies. Chesterman/ Lehnardt,
see note 22, 2; F. Schreier/ M. Caparani, “Privatising Security: Law, Practice
and Governance of Private Military and Security Companies”, DCAF Occasional Paper No. 6 (2005), 26; B. Perrin, “Promoting Compliance of Private Security and Military Companies with International Humanitarian
Law”, Int’l Rev. of the Red Cross 863 (2006), 613 et seq. (614); D. Brooks,
“Protecting People: The PMC Potential. Comments and Suggestions for the
UK Green Paper on Regulating Private Military Services”, 25 July 2002, 23, available at: <http://www.hoosier84.com/0725brookspmcregs.pdf>.
Gillard, see note 23.
The typical examples are the hot pursuit and offensive defence situations:
an attack on a military entity by another can lead to a counterattack of the
former for defence purposes, in order to chase away the original attacker.
Whether the reacting entity (or its activity) should be seen as offensive or
defensive remains unclear.
L. Doswald-Beck, “Private Military Companies under International Humanitarian Law”, in: Chesterman/ Lehnardt, see note 22, 115 et seq. (115);
also Protocol I Additional to the Geneva Conventions of 12 August 1949,
relating to the Protection of Victims of International Armed Conflicts,
adopted on 8 June 1977, 1125 UNTS 3.
States being their primary clients followed by multinational corporations
and increasingly also international organisations, non-governmental humanitarian or development agencies, communities and individuals.
This classification draws from K.A. O’Brian, “What Should and What
Should Not Be Regulated?”, in: Chesterman/ Lehnardt, see note 22, 29-48
(40-41).
Kovač, Private Military Companies in UN Peacekeeping
317
gic landscape where PMCs are involved and those aiming at local/immediate impact only. It is fair to note that such a distinction is
much clearer in theory than in practice, making it dangerous to undermine the broader impact of small-scale activities. A similar classification, which still allows placing the categories of PMCs on the impactscale, distinguished between the following four types of activities: environment-altering military operations by private actors; 30 militarysupport operations, with strategic impact but not altering the environment alone;31 defensive/protective security operations;32 and non-lethal
security operations.33 Although far from being perfect, bringing some
order into this classification gives at least some overview of the scope of
activities the PMCs may provide. Similar to peacekeeping forces, multifunctionality may be and often is their characteristic.
After briefly acknowledging what activities a PMC can perform (at
least in theory), one should note that in practice the distribution of
these activities is very uneven. However, although direct combat engagement of these private entities currently presents only a small segment of the activity on the ground – rather the exception than the rule –
the conduct of combat activities has, unsurprisingly, been perceived as
the most contentious development reflected in the debates surrounding
PMCs.34 As is often repeated, combat activities have traditionally been
the exclusive domain of a state, which enjoys a monopoly over the lawful use of force.35 From an international system-wide perspective, the
30
31
32
33
34
35
These operations, defensive and offensive, include operational combat support (logistics, air-support, intelligence etc.); peacekeeping and peaceenforcement; military-advisory services and training; and intelligence services in support of the hiring entity’s security objectives.
Professionalisation or integration training and logistics.
Protection of both large-scale installation and asset protection and smallscale personnel protection.
This category should include immediate/local impact activities such as private intelligence support (tactical, law enforcement and other non-national
security related), law enforcement and policing in countries in transition;
transport; paramedical services; humanitarian-aid convoy protection; refugee protection; administration and logistics; other non-frontline services.
O’Brian, see note 29, proceeds that consequently, “[t]oo much of the international debate around regulating PMCs has focused on atypical, but highprofile companies … rather than on the broader spectrum of privatized
military and security activities” (emphasis added).
Chesterman/ Lehnardt, see note 22, 1, referring to internal (inferred from
Weber’s theory), but also external aspects (UN Charter). These arguments
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Max Planck UNYB 13 (2009)
use of military (that is of national military forces, which are also included in peacekeeping operations) is controlled by politically accountable leadership, responsible for the regulation of these forces in accordance with national and international rules. The usage of private (and
potentially multinational) entities entering into contractual relations
with public entities other than a government (which traditionally exercises military oversight and arms control) complicates the control of
these entities, even more so because of their raison d’être. Thus, to focus
on a segment of the industry with war-waging potential, presents a legitimate choice due to its potentially crucial impact on international security. Furthermore, this choice is confirmed by the extremely rapid
pace with which the related “non-core activities”36 of many armed
forces were outsourced to these entities in two decades.
The final step in the exercise of defining a PMC should therefore
keep in mind the following: first, as our understanding of peacekeeping
operations is rather traditional in the sense of focusing on their military
component, the PMCs that will be considered here should fulfil the criteria of at least possessing the ability to conduct combat activities. The
ability to conduct such activities does not presuppose that they actually
do so as this depends on the mandate under which the operations are
conducted. The ability to conduct combat activities seems plausible as it
would also apply to the national contingents provided for the purpose
of peacekeeping operations. Second, the de facto multifaceted role of
PMCs, manifested in the range from combat, through protection to
training activities is the next relevant characteristic of private entities
considered here.37 Thirdly, PMCs are private corporate and legal entities, national or transnational, disconnected from public authorities in
the sense that the latter can exercise only limited control over their activities. PMCs enter into contractual relations38 with these public au-
36
37
38
have in common the overarching (and ideal) public accountability of officials, contrary to the corporate nature of PMCs. But for survival of the industry, the highest possible degree of public accountability seems inevitable, although not through the existing regulation, A. Leander, “Regulating
the Role of Private Military Companies in Shaping Security and Politics,”
in: Chesterman/ Lehnardt, see note 22, 49 et al. (56-58).
Schreier/ Caparani, see note 24, 4.
Similarly to peacekeepers whose activity can range from security services
for international and humanitarian staff to combat services as a cease-fire
enforcer, depending on the mandate and the environment they work in.
A contract defines mutual obligations between the two entities and should,
foremost, be a direct way for a client to require a private contractor (and its
Kovač, Private Military Companies in UN Peacekeeping
319
thorities, national or international, and should not be equated with individual private actors, usually referred to as mercenaries.39 A PMC
therefore is a private corporate entity, capable of undertaking a wide
range of military activities in a national or international setting, including direct combat engagement, hired by a public authority on a contractual basis.
III. Legal Framework for PMC Inclusion in UN
Peacekeeping Forces
After outlining the scope of this research by providing working definitions of the two crucial terms used, the normative framework applicable
during their interaction must now be identified. This interaction is presumed according to the two possible scenarios (or modes of engagement) resulting from a potential inclusion of PMCs in the peacekeeping
operations of international organisations (IOs). One is a PMC seconded
as part of a peacekeeping contingent by a state, and the other a PMC as
part of a peacekeeping troop hired directly by an IO. The former mode
has been partially tested in reality (although not in a UN forum),40 but
the latter, at least to this author’s knowledge, has not.41 Identifying and,
in particular, putting in order the applicable rules for both scenarios
(which often overlap) is a challenge since sources are numerous.
39
40
41
employees) to respect certain standards and avoid unintended external effects. M. Cottier, “Elements for Contracting and Regulating Private Security and Military Companies”, Int’l Rev. of the Red Cross 863 (2006), 637
et seq. (638). For guidelines on principles governing these contractual relations see resolution Contracts Concluded by International Organizations
with Private Persons, adopted in 1977 in Oslo by the Institute of International Law.
The focus here is on PMCs as corporate entities, which are, exactly for the
reason of their corporate character, subject to some degree of oversight and
accountability, opposite to individuals involved in selling their military services and skills on an ad hoc basis. The distinction is, however, again fluid
and one can identify the cases when individuals working for a PMC might
(although unlikely) fall within the definition of a mercenary under article
47 of Protocol I Additional to the Geneva Conventions.
In 1998 the United States contracted the company DynCorp to the OSCE
Verification Mission in Kosovo.
This does not mean, however, that IOs have not been working with private
contractors, particularly security firms.
Max Planck UNYB 13 (2009)
320
To deal with this difficulty, this part is organised in the following
manner:42 first, the basic inquiry of the legal subjects in question and
their ability to assume rights and duties from the perspective of international law will be examined. Then, with analogy to standard peacekeeping as an established practice, the applicable rules are assessed in a holistic manner. The assessment commences with an analysis of the UN
Charter as the basic international legal source for peacekeeping and
continues with an overview of the peacekeeping-specific international
legal sources. They are then supplemented with general rules of international humanitarian and human rights law. These rules form a system
within which the specificities of potential PMC inclusion in peacekeeping are considered. The two scenarios for such an inclusion are treated
separately within these subgroups only when such differentiation is
necessary. The Chapter will provide the necessary background for the
responsibility-related discussions below, although it avoids a detailed
discussion of substantive rules.
1. Scenarios and Modes of Engagement
Before answering the question from which sources the law is obtained,
the two potential scenarios for PMC inclusion in peacekeeping should
be looked at more closely. They are, at least for the time being, hypothetical constructions, due to a lack of state (or IO) practice. They are,
however, crucial for creating an image of what this study is about. The
first option assumes that a PMC is seconded to an IO (in our case the
UN) as peacekeeping troops (either as an individual national contingent
or a part of it) by a Member State of the UN. This secondment could
theoretically be performed jointly by two or more states leading to an
extremely complicated web of legal relations. In any case, the result of
providing a PMC based military contingent for the purpose of peacekeeping operations within the UN framework would be the incorporation of this entity into the structures under the joint command of the
UN, therefore de jure becoming an integral part.
The second possible scenario envisaged is one which, contrary to the
first case, presupposes a direct contractual link between the PMC and
the IO. If it is the government in the first scenario, which hires the
42
It builds on M. Bothe/ T. Dörschal, “The UN Peacekeeping Experience”,
in: D. Fleck (ed), The Handbook of the Law of Visiting Forces, 2001, 487 et
seq.
Kovač, Private Military Companies in UN Peacekeeping
321
company and then hands it over to the international entity that will
(ideally) exercise command-control over the company, the second scenario lacks this indirect element. The PMC is therefore hired directly
by an IO and incorporated into peacekeeping forces. Although the
process would in practice probably go along very different lines – for
example who will choose what PMC for which purpose? – the result
would greatly resemble the first scenario: incorporation of a PMC in
the structures and under joint command of the IO, forming an integral
part.
Notwithstanding this, the two approaches do differ in many ways.
The applicable law is not necessarily the same nor is it enforced in the
same manner. For example, the PMC seconded by a government might
be under stricter scrutiny to comply with a national treaty-based commitment or a certain national law than a directly hired PMC. Furthermore, the rules of attribution of acts to an entity and consequently the
determination of responsibility for (wrongful) acts and measures following might differ considerably. The role of the sending-state’s responsibility is, for example, much clearer in the first scenario than in the
second. Lastly, the differences between scenarios produce dissimilarities
in the criminal responsibility of PMC peacekeepers that are held liable
for wrongful acts they have committed.
2. Subjects of International Law Relating to PMC
Peacekeeping Engagement
The past six decades have seen a remarkable shift from the traditional
public international law perspective in recognising that entities other
than states can bear rights and duties under international law. The international legal personality, although derived,43 now seems indisputable for IOs.44 Traditional peacekeeping forces composed of national
43
44
H.G. Schermers/ N.M. Blokker, International Institutional Law: Unity
within Diversity, 4th revised edition, 2003, 989.
Reparation for Injuries Suffered in the Service of the United Nations, ICJ
Reports 1949, 174 et seq. (179): “… the Organization [UN] was intended
to exercise and enjoy, and is in fact exercising and enjoying, functions and
rights which can only be explained on the basis of the possession of a large
measure of international personality and the capacity to operate upon the
international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was
devoid of international personality”.
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contingents are considered to be a part of the institutional apparatus of
the UN and therefore form its subsidiary organs.45 These national contingents, which are considered to be a part of the troop-sending state
prior to integration, are put under the control and command of the UN
to act within a mandate provided by the UN principal organ, almost
exclusively the Security Council.46 This incorporation of the contingent
therefore transforms the nature of its personality based on the effective
control principle, rendering the official acts of those forces attributable
to the UN. Although, as will be seen below, this transformation does
not completely divest the state of responsibility for acts committed by
these forces. The application of both scenarios for PMC inclusion in
UN peacekeeping would not produce different results, presupposing
that integrated peacekeeping would be subject to the approval and authority of the respective UN principal organ. In any case, the PMC although a private entity, would be considered a subsidiary organ presumably under effective control of the UN, and therefore being bound
by international law.
Such a determination is independent from the involvement or recognition of other subjects of international law relevant for both scenarios of
PMC peacekeeping inclusion, particularly states linked to the operation
(PMC sending, hiring or registering states, as well as the state where the
peacekeeping operation takes place); all these can bear certain rights and
obligations that can trigger international responsibility. It is possible,
however, that their capability to perform their rights and duties is considerably limited due to the limitations in performance of their sovereign governmental function.47
45
46
47
Subsidiary organ of the UN is a) created by, or under the authority of, a
principal organ of the UN, which b) may determine or modify its membership, structure and terms of reference and c) can terminate it. The subsidiary organ, however, d) necessarily possesses a certain degree of independence from its principal organ, Sarooshi, see note 15, 416.
It is imperative to separate peacekeeping and military operations undertaken by states or groups of states from those undertaken under a mandate
of the UN. Somehow ironically, that “UN action” is privatised in a different way. See J. Quigley, “The ‘Privatization’ of Security Council Enforcement Action: a Threat to Multilateralism?”, Mich. J. Int’l L. 17 (1996), 249
et seq.
If, hypothetically, the peacekeeping force is deployed into a failed or collapsed state, the de facto ability of such subject to exercise its rights and duties is extremely limited. This would entail a rather awkward situation in
which a proper international legal person does not posses the prerequisite
Kovač, Private Military Companies in UN Peacekeeping
323
Furthermore, it is sometimes considered (through direct or indirect
reference to international rules) that the wide category of other nonstate actors may attain a status comparable to that of subjects of international law.48 It is argued that they often have the capacity to perform
activities, which can be attributed to them and for which they can be
held accountable. Despite taking into consideration the approach that
there are certain entities, which are recognised by international law and
endowed with similar (but fewer) capacities than states,49 they cannot
be equated with classical subjects of international law or be considered
on equal terms in the international responsibility debate. Nevertheless,
one should not ignore the pragmatic approach which recognises that
two categories of these non-state actors in particular – individuals and
corporations50 – possess the capacity to act. Therefore, the question is
whether this capacity to act is in any way regulated or affected by rules
of international law which confer rights and duties on these entities directly without an intermediary role of the state. This question is very
quickly answered in the affirmative with a survey of relevant bodies of
international law such as international human rights or IHL,51 introducing the concept of individual criminal responsibility that supplements the international responsibility of states and IOs. The views of
48
49
50
51
capacity to act. State collapse refers to a situation where the structure, authority (legitimate power), law, and political order have fallen apart, causing disruption manifested “by the combination of violent conflict, fragmentation of authority and humanitarian disaster”, A. Yannis, State Collapse and the International System: Implosion of Government and the International Legal Order From the French Revolution to the Disintegration
of Somalia, 2000, 122; P. Minnerop, “The Classification of States and the
Creation of Status within the International Community”, Max Planck
UNYB 7 (2003), 79 et seq.
For example de facto regimes and peoples that represent national liberation
movements, non-state armed actors, multinational companies, or even individuals. The debate here often becomes dogmatic and dysfunctional. For
an overview of insights on the topic see A. Clapham, Human Rights Obligations of Non-State Actors, 2006, 59 et seq.
Such approach is particularly feasible in order to overcome the doctrinal
capacity-subjectivity debate. See D.P. O’Connell, International Law, 2nd
edition, 1970, 81-82.
One cannot deny corporations the capacity to act since joint action is one
of the reasons for which they are established by individual persons.
See below.
Max Planck UNYB 13 (2009)
324
analogous limited international legal personality of national or transnational corporations are, for the time being, rather isolated.52
3. Rules of International Law Generally Applicable to the
PMC Peacekeeping Engagement
Before continuing with a detailed investigation it is worth considering
how these various relevant legal provisions relate to one another by
outlining the framework. The UN Charter forms the basis of this
framework, under which the peacekeeping operation is established,
mandated, and operated. Its vagueness requires further internal UN
regulations de facto enabling its operation. As the mandate refers to the
activity of the UN on the territory of a sovereign state, which (according to the established practice) consented to such activity in good faith,
the necessary link between the two – UN and receiving state – is established. Both entities are obliged to fulfil their international obligations.
First, these obligations derive from the mandate which provides a basis
for the peacekeeping force deployment. Second, their relation is regulated by the Status of Forces Agreement (SOFA) or further agreements,
defining the special rights, immunities, privileges, jurisdictional and
claims issues etc. for the peacekeeping force on the territory of the receiving state. Further agreements (in terms of functions) are concluded
between the force contributing states and the UN, establishing a legal
link between them.
The function of a SOFA and forces-contributing agreement is therefore twofold: it is a legal arrangement enabling the exercise of the operation and a legal instrument providing for protection against the mistreatment of the UN’s staff. In the latter function, a SOFA is to be read
together with the two relevant multilateral Conventions (see below)
relevant in this context. The protection against maltreatment is, however, a wider concept which includes the obligations of subjects involved particularly under international human rights law (IHRL) and
IHL. These two bodies of law not only extend the scope of rights and
duties in substance, but bring in additional subjects which are bound by
them. Those include, among others, state contributors of military contingents for the peacekeeping forces and non-state actors such as PMCs.
Finally, UN internal rules, national legislation (of the host state, the
52
See for example Clapham, see note 48, 79.
Kovač, Private Military Companies in UN Peacekeeping
325
PMC-registration state and potentially personnel-origin state) and various contractual arrangements complete the relevant framework.
a. The UN Charter as the Basis for Peacekeeping Normative
Framework
Notwithstanding the mode of engagement of the PMC into UN peacekeeping forces, there are numerous provisions of the UN Charter applicable to it in analogy to traditional peacekeeping troops, foremost
because the Charter is a constituting document of the international legal
system53 and the basis of the UN legal framework.54 Bearing in mind
these functions of the Charter and the fact that the Charter does not
explicitly provide for peacekeeping forces, one can distinguish between
two types of provisions: the general rules, defining the basic scope and
modalities of peacekeeping activities, and the operational rules concerned with relations within the UN structure and limited status rules
of peacekeeping.
The general rules are of fundamental importance as they define the
basic scope of peacekeeping. Furthermore, they also determine the
scope within which the specific normative framework is then built. The
starting points for these general rules are the purposes and principles of
the UN. First, the peacekeeping action must be seen in line with and
should be conducted for the fulfilment of the UN’s purpose to maintain
international peace and security, for which appropriate measures should
be taken.55 Second, while pursuing this action the states and the UN
should act in accordance with the basic principles enshrined in Article 2
of the Charter.56 Specifically, when conducting peacekeeping action, the
Member States should act in good faith, respect each other’s territorial
integrity and independence, settle their disputes peacefully, support the
UN in its action and refrain from threat or use of force or intervention,
if inconsistent with Charter provisions. These principles constitute,
53
54
55
56
S. Szurek, “La Charte des Nations Unies: constitution mondiale?”, in: J.P.
Cot/ A. Pellet (eds), La Charte des Nations Unies: Commentaire article par
article, 3rd edition, 2005, 29 et seq.
A note of caution is needed here. Like any other international treaty the
Charter should be read as a whole (a net of interrelated provisions), but in
the light of its subsequent practice which has made some parts obsolete.
Article 1 (1).
As to what extent these rules also exist independently see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), ICJ Reports 1991, 47 et seq., (96-97, para. 181).
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among others, the basis for one of the most significant characteristics of
peacekeeping operations – their consensual nature. Although practice
shows that receiving states are from time to time reluctant to admit international peacekeeping forces to their territory and do so only after
international pressure had been exercised, the deployment is almost exclusively subject to their consent.57 Consent is of crucial importance as
it establishes a quasi contractual relationship between the receiving
state, the UN and other participating actors. The situation is, of course,
more difficult in the case of failed states or non-state parties on the territories of a given state.
The operational rules labelled, so that their reference to peacekeeping is more concrete can, in principle, distinguish between the following
aspects: rules relating to the establishment of the peacekeeping operations,58 to their mandate and the rights and obligations of capacity
holders involved in these operations, either of public entities or of individuals.
The mandate rules distinguish between substantive powers (to deal
with a certain situation), formal powers (to adopt decisions) and organisational powers (creation and functioning of the peacekeeping unit) derived from the Charter in relation to peacekeeping.59 The Charter and
subsequent practice have confirmed the Security Council’s nearly exclusive role in the decision-making process leading to the establishment
and mandating of peacekeeping operations.60 Since the determination
for Chapter VII situations is subject to a Security Council decision (Article 39), which is also the sole organ of the UN in a position to make
legally binding recommendations for action under Chapter VII,61 it
seems plausible to conclude that the Charter supports the Council’s
57
58
59
60
61
The form of consent can vary.
Partially dealt with above in the section on the working definition of a
peacekeeping force.
The analysis is rendered difficult as these aspects are often not clearly
enough distinguished; Bothe, see note 3, 684.
The power of action is enshrined in Article 24 (2), which further refers to
Purposes and Principles of the UN, and the “specific powers granted to the
Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII”.
Which is also the sole organ of the UN in a position to make legally binding recommendations for action under Chapter VII. According to Article
25 the members of the UN agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter.
Kovač, Private Military Companies in UN Peacekeeping
327
primacy in relation to peacekeeping.62 This is supported by the increasing reference to Chapter VII in resolutions establishing peacekeeping
forces and their expanding mandates, which include peace enforcement.
Furthermore, one could also refer to recent practice.63 Therefore the
mandate, operationally formulated in a Security Council resolution,
should define the purpose and functions of the peacekeeping operation
and any other fundamental matters in relation to it, such as its time
limit.64 On a technical level it can be enriched by reference to other
documents, the Secretary-General’s report being a standard example,
which describes the proposed action in more detail. 65 Concerning
peacekeeping-related organisational powers other than the force’s establishment and mandate, the Charter presumes the involvement of the
Secretariat and the Secretary-General who performs “such other functions as are entrusted to him by these organs”, according to Article 98.66
In the case of peacekeeping operations this includes, as mentioned
above, their administration. Considering the fact that combat forces integrated in peacekeeping operations constitute a part of the institutional
apparatus of the UN regardless of their origin (being a national contingent, PMC seconded by a state or a PMC hired directly by the UN),
one could argue that provisions of the UN Charter relating to the staff
of the organization provide fundamental principles applicable to UN
peacekeepers.
Acquiring sufficient troops and resources is, at least for Chapter VII
actions, partially acknowledged by the Charter, which obliges states to
actively participate in UN action.67 This is poorly applied in peacekeeping practice, as the UN has always been struggling to acquire sufficient
62
63
64
65
66
67
See also limitations to General Assembly action in relation to maintenance
of international peace and security: “Any such question on which action is
necessary shall be referred to the Security Council by the General Assembly either before or after discussion”, Article 11 (2), second sentence.
The recent authorisation for re-mandating the UN operation in Sudan took
place only after support was given by all permanent members of the Security Council.
This has become practice in order to prevent self-perpetuation of operations that lost the backing of the relevant majority of the Security Council.
Bothe/ Dörschal, see note 42, 488.
The Secretary-General acts in this capacity as enshrined in Article 98 UN
Charter.
See Arts 25 and 43 (1).
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resources. The mobilisation role of the Secretary-General is crucial in
resolving this problem and expands his Charter-based function to that
of an advocate for the UN’s peacekeeping. To complete the Charter’s
reference relevant to peacekeeping operations, one must consider its
contribution to the rules relating to the rights and obligations of peacekeeping-related actors. It must be admitted that these references are
surprisingly modest and disproportional to the role the UN has dedicated to some of these approaches during its existence.68 The Charter
generically concentrates on its staff and confers “special status” upon it,
deriving from the functional approach of the law of diplomatic privileges and immunities.69 This leads to the recognition that the special
status of international staff is imperative for the exercise of the UN’s
functions, subject to limitations by the functional necessity test. The
UN shall, according to Article 105, enjoy in the territory of each of its
members only “such privileges and immunities as are necessary for the
fulfilment of its purposes.”
The Charter, as indicated, contains a wide range of principles applicable to various aspects of peacekeeping. Most importantly it provides
the basis for UN peacekeeping engagement by defining the decision
structures for its establishment, authorization, mandate, basic rules of
engagement and some hints as to the status and rights of its personnel.
However, it remains quiet on details and consequently on the majority
of questions which pop-up with the potential inclusion of PMCs in this
activity. This is understandable, as many of the Charter’s arrangements
are of an indicative nature and are only indirectly applicable. It should
therefore be read together with relevant provisions derived from multilateral agreements, international custom including UN’s practice and its
internal regulations.
68
69
The reference to human rights is a classic example. The Charter establishes
the UN as a promoter of fundamental human rights, see Arts 13 (b), 55 (c)
and 62 (2) and reaffirms its faith in them.
There are important differences among the laws of diplomatic protection
accorded to states and IOs. The former is much older, customary based and
firmly enshrined in the 1961 Vienna Convention on Diplomatic Relations
concluded 18 April 1961, 500 UNTS 95. The latter, although based on the
principles of the former, largely treaty-based, differentiates among IOs and
departs from the reciprocity principle. See O. Engdahl, Protection of Personnel in Peace Operations: the Role of the ‘Safety Convention’ against the
Background of General International Law, 2007, 120-132.
Kovač, Private Military Companies in UN Peacekeeping
329
b. Specific Rules Relating to Peacekeeping Forces on the Ground
The need for the special status of UN agents on the ground has been
enshrined in the Charter and is summed-up by a functional requirement
for special status, safety-related provisions and regulations regarding jurisdictional matters. Beyond the functionality reasons already outlined
above, the special status is conferred upon the personnel on the ground
due to the very nature of the peacekeeping operations, which are usually conducted in a dangerous environment. This implies that personnel, particularly peacekeepers as part of a military component, are likely
to become engaged in situations where force will be used by it and
against it. Determination of status, ideally conducted before deployment, is crucial as it determines the rules, their applicability and modalities for enforcement between the three main capacity holders involved –
the UN, the receiving state and the contributing state. It is regulated
primarily by the following three sources: the bilateral agreements on
the status of forces, which are based on relevant UN peacekeeping practice, the Convention on the Privileges and Immunities of the United
Nations70 and the Convention on the Safety of United Nations and Associated Personnel (UN Safety Convention).71
aa. Convention on the Privileges and Immunities of the United Nations
The Convention of 13 February 1946 pre-dates peacekeeping and was
applied to military components of peacekeeping operations only
through constant reference to it and incorporation of its provisions in
bilateral SOFAs.72 Notwithstanding its limitations,73 it is directly appli-
70
71
72
73
Hereafter referred to as the Convention, adopted by A/RES/22 (I) of 13
February 1946, 1 UNTS 15. The Convention confirms the juridical personality of the UN and defines its capacities (article I); extends protection over
the UN property, funds and assets (article II); confers certain immunities
and privileges to members’ representatives (article IV); exempts UN officials from legal process, taxation, immigration duties (article V) and UN
experts on missions from arrest, legal process etc. for acts performed in the
official capacity (article VI); and provides UN laissez-passer (article VII).
Convention on the Safety of United Nations and Associated Personnel of
1994, Doc. A/49/49 (1994), 299.
UN Model Status of Forces Agreement, Doc. A/45/594 of 9 October 1990,
para. 3, footnote 4; see also paras 25-26.
There are several practical issues that limit the Convention’s application. It
is, first, subject to ratification by the state on whose territory the peace-
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cable to UN staff (officials and experts on missions), subject to the decision by the UN Secretary-General confirmed by the General Assembly.74 The latter granted privileges and immunities according to article
V and VII “to all members of the staff of the United Nations, with the
exception of those who are recruited locally and are assigned to hourly
rates.”75 This category, however, excludes the members of national contingents of peacekeeping forces. Although these are under the command
and control of the UN, the SOFA of the first peacekeeping operation in
1956 established the practice of placing those troops under the individual SOFA regime. The specificities in relation to the military staff, most
notably the exclusive criminal jurisdiction of the sending state for acts
committed, are discussed later.
Exclusion of national contingents from the Convention’s scope of
application would clearly encompass the nationally seconded PMCs.
But it would not hinder the applicability for the PMC staff hired directly by the UN, as long as they are regarded as UN staff. In this case
much would depend on the conditions of a contract according to which
the PMC and its staff would be operating, particularly regarding the
modes of their recruitment. The General Assembly limiting provisions
– excluding locally recruited personnel on an hourly basis – are narrow.
Although one can imagine reasons for which a PMC might consider recruiting its staff locally,76 it seems plausible to expect that the UN
would be reluctant to engage local staff en masse for military tasks. This
would be detrimental to the impartiality of the peacekeeping force and
therefore would not be in accordance with its mandate. Whether the
same rationale is applicable to PMCs, which are often multinational
companies that recruit on a global scale, is less clear. If local recruitment
occurred only exceptionally, one might easily argue that it would not
threaten the impartiality of the force and would be, for the reasons
stated above, even preferable for operations. One reason why such
practice might cause certain problems is the occasional reluctance of the
74
75
76
keeping forces have been deployed. Second, even if the receiving state gives
its consent to be bound, it can still express its reservations to apply the
Convention partially only.
Article V, Section 17.
Privileges and Immunities of the Staff of the Secretariat of the United Nations, A/RES/76 (I) of 7 December 1946.
Most notably the knowledge of and familiarity with the local environment,
culture and language. These conditions often are the requirement for employment in the field.
Kovač, Private Military Companies in UN Peacekeeping
331
receiving state to recognise privileges and immunities to UN staff of its
own nationality.77
Furthermore, the Convention is unclear about how one should treat
the private contractors and their personnel contracted by the UN. As
its applicability is subject to the UN’s recognition of who constitutes its
staff, the view of the UN Office of Legal Affairs (UNOLA) in relation
to civilian contractors for UN peacekeeping operations from 1995 is of
utmost importance. When it addressed the question of whether these
can be understood as “experts on missions”, UNOLA referred to the
ICJ Advisory Opinion,78 which provided the basis for its understanding of private contractors. Its negative decision was reasoned primarily
on the commercial nature of the functions performed by these contractors79 and the fact that they did “not qualify as members of UNAVEM
III, as they [were] not part of the civilian, military or police components.”80 One must note though, that the analogous application of this
reasoning is inaccurate. The function performed by the PMC contractor
falling within the definition would be fundamentally different, closer to
that of a UN security guard, which is regarded as an expert on mission.81 However, some are of the opinion that international immunities
77
78
79
80
81
Although such demands have usually been made in connection with taxation issues, the practice might be particularly detrimental for an independent functioning of the operation, a recent example being UNMEE (UN
Mission in Ethiopia and Eritrea). It has been the constant position of the
UN, however, to uphold the privileges and immunities of all officials so
categorised by the General Assembly.
In the applicability of article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations, the ICJ, inter alia, indicated that: “[experts on mission] … have been entrusted with mediation,
with preparing studies, investigations or finding and establishing facts”, ICJ
Reports 1989, 177 et seq. (194, para. 48).
See the Memorandum from the Legal Counsel to the Assistant SecretaryGeneral for Peacekeeping Operations, 23 June 1995, UNJYB 1995, 407.
Question of whether contractors’ personnel could be considered as “experts on missions” – Article VI, Section 22 of the 1946 Convention on the
Privileges and Immunities of the UN. Memorandum to the Director, Field
Administration and Logistics Division/ Department of Peacekeeping
(FALD/DPKO) <http://untreaty.un.org/cod/UNJuridicalYearbook/texts/
1998_extracts_legalopinions.pdf> of 23 March 1998.
In the Memorandum of the Director of the Field Operations Division, Office for General Services, 4 September 1992, UNJYB 1992, 479, the UN
guards, having special service agreements with the UN, should according to
the opinion of the UNOLA, be regarded as experts on mission.
Max Planck UNYB 13 (2009)
332
never apply to a contractor as a matter of right, except in special arrangements.82 This, nevertheless, does not provide a final answer since
it does not determine if an agreement between the PMC and the UN is
sufficient for the establishment of such an arrangement. Although the
receiving state is the entity which should preferably consent to special
rights being conferred, it is the UN’s responsibility to decide who constitutes its staff and who will benefit from a special status.83 It is safe to
conclude, therefore, that in the case of the PMC peacekeeping inclusion, the status of PMC personnel would have to be regulated and clarified by the provisions of a further agreement between the UN and the
receiving state.84
bb. Status of Forces Agreements
Individual SOFAs aim to facilitate the implementation of the operation’s mandate and deal with issues of status, privileges and immunities
of UN peacekeeping personnel in further detail. They include detailed
logistic and technical provisions, jurisdictional provisions and dedicate
more attention to safety-related issues. The practice has, to a great extent, followed the logic and provisions of a prototype SOFA agreement
for UNEF in 1956,85 which was supplemented by the 1990 issuance of a
UN Model SOFA by the Secretary-General.86 The most relevant developments in these agreements since their initiation have included reference to the binding character of international humanitarian law for UN
peacekeepers in the 1990s, provisions on safety and security of person-
82
83
84
85
86
C.W. Jenks, International Immunities, 1961, 143-144.
The immunities and privileges can and should be waived by the UN Secretary-General article 47 (b) of the Convention if they “impede the course of
justice” and if this would be “without prejudice to the interests of the
United Nations”.
This is supported by scepticism as to whether the Convention has gained
the status of customary international law. Solely its provisions would be insufficient to provide the basis for the status of peacekeeping forces on the
ground, Engdahl, see note 69, 147-149.
Summary Study of the Experience Derived from the Establishment and
Operation of the Force: Report of the Secretary-General, 9 October 1958,
Doc. A/3943, see para. 134.
See note 72. This presents the main reference here, if not otherwise indicated.
Kovač, Private Military Companies in UN Peacekeeping
333
nel87 and recently the inclusion of provisions relating to employment
and the status of contractors.88
A SOFA is a bilateral legal arrangement between the UN and the receiving state of which the force contributing state is only a beneficiary,
although the agreement contains provisions almost exclusively relevant
to it. Due to the complex legal picture accompanying UN peacekeeping
deployment, the conclusion of a SOFA should clarify the applicable
rules for subjects involved, particularly in relation to the consent of the
receiving state.89 Whether it presents a necessary requirement is, however, a different question, considering its occasional absence in practice
or negotiation and entry into force only after deployment with retroactive effect. Its relatively immutable structure since its introduction together with the general acceptance of the prototype provisions of the
UN model would speak in favour of its customary status, at least until a
lex specialis SOFA is concluded and derogates from the general SOFA
rules.90
SOFAs offer a multi-layered approach to the status of peacekeeping
personnel, referring to the above mentioned Convention and providing
for special provisions in these agreements. Special diplomatic protection
is conferred upon the high-ranking members of the operation.91 Further
a distinction is made between the civil component and the military
component of an operation. The civil component comprised of members of the UN Secretariat,92 military observers, UN civilian police and
civilian personnel other than UN personnel93 is covered by functional
87
88
89
90
91
92
93
Including the key provisions of the Safety Convention, see for example
UNMISET (UN Mission in Support of East Timor), SOFA of 20 May
2002, 2185 UNTS 367.
Engdahl, see note 69, 202.
It affirms, defines responsibilities and is able to address specific issues.
For example, when calling upon the receiving states to conclude agreements with the Secretary-General within 30 days, the Security Council has
determined that “pending upon the conclusion of such agreements, the
model status-of-forces agreement of 9 October 1990 (A/45/594) shall apply
provisionally”, S/RES/1509 (2003) of 19 September 2003; S/RES/1545
(2004) of 21 May 2004.
Article 24.
Article 25 of the UN Model SOFA, falling under Convention article V and
VII, considered as “officials”.
Article 26, falling under Convention article VI, considered as “experts on
mission”.
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immunities comparable to those of the Convention.94 The civilian personnel assigned to a military component are subject to the same regime
as other members of the civilian component over which jurisdiction is
shared in accordance with the relevant provisions of the SOFA.95 The
“military personnel of national contingents,” on the contrary, is subject
to privileges and immunities only as provided in the agreement96 and a
particular jurisdictional regime. The latter, which confers exclusive jurisdiction with respect to any criminal offence committed by these personnel in the territory of the receiving state to the troop-sending
states,97 is somehow controversial, but probably “the most important
principle in the status agreement.”98
It is important also due to the fact that it does not allow the Secretary-General to waive the special rights of military personnel.99 Apart
from the argumentation that this provision is essential for the successful
recruitment by the United Nations of military personnel from its
Members States and for the independent exercise of its functions, it
paves the way for addressing the jurisdictional vacuum in which criminal offenders would escape prosecution by both the receiving state and
the troop providing state. It is important, however, not to abuse this exceptional rule of immunity to escape the jurisdiction of local courts100
94
95
96
97
98
99
100
Article 46. It includes reference to local population and refers to immunity
from “legal process in respect of words spoken or written and all acts performed by them in their official capacity” with durable effect.
Most notably arts 40, 47 (a), 49, 51, 52, 53, 54 etc.
Article 27.
Article 47 (b). See for example MINURCA (UN Mission in the Central
African Republic), SOFA of 8 May 1998, 2015 UNTS 734, para. 50 (b); or
UNAMSIL (UN Mission in Sierra Leone), SOFA of 4 August 2000, 2118
UNTS 190, para. 51 (b) etc.
Summary Study, see note 85, para. 163.
The waiver right of the Secretary-General is usually not explicitly stated in
SOFAs (or UN Model SOFA), but it is inferred from the incorporation of
the Privileges Convention.
The special status and certain privileges are not granted for the benefit of
the individual concerned; some machinery for prosecuting the offenders of
local law would be preferable and local law should be taken into consideration, D.W. Bowett, United Nations Forces: A Legal Study of United Nations Practice, 1964, 437-438, especially if the crime committed in the receiving state was not an offence in the contributing state.
Kovač, Private Military Companies in UN Peacekeeping
335
and not to extend it unnecessarily.101 There exists a requirement for the
Secretary-General to obtain such assurances from the sending states,102
either in the form of troop-contributing agreements or memoranda in
the form of exchange of letters.103 This creates a positive obligation of
the sending state, which otherwise might be hindered in its implementation by factors such as variety of legal systems,104 insufficiency of sending states’ domestic legislation105 or by the potential decision of the receiving state to withhold its consent for the operation. If arrangements
between the receiving and sending state for implementation of jurisdictional provisions are made, they should take into consideration the
relevant SOFA provisions.
SOFAs are a tool offering a wide array of possibilities for the regulation of contractors. Their situation is somehow special as they are, as
understood in the light of current practice and their support function to
peacekeeping operations, not entitled to benefit from privileges and
immunities of the Convention. The situation is paradoxical as they are
101
102
103
104
105
Only in the Congo was such jurisdiction extended to civilian members of
the military component, see ONUC (UN Operation in the Congo), SOFA
of 27 November 1961, para. 9, 414 UNTS 229. However, the recent practice of non UN command operations such as the International Security Assistance Force (ISAF) in Afghanistan extended exclusive criminal jurisdiction for some elements of national personnel such as “supporting personnel, including associated liaison personnel”, see Military and Technical
Agreement between the International Security Assistance Force (ISAF) and
the Interim Administration of Afghanistan, Annex A, 4 January 2002, ILM
41 (2002), 1032, arts 1- 4.
Article 48 and note h to this article of the UN Model SOFA.
See article VIII, para. 25 of the Model Contribution Agreement between
the UN and Participating State Contributing Resources to the United Nations Peace-keeping Operation, in: Note by the Secretary-General: Reform
of the Procedures for Determining Reimbursement to Member States for
Contingent-owned Equipment, Doc. A/50/995 of 9 July 1996, Annex.
Different offences treated differently in different legal systems can have the
consequence that one member of the peacekeeping force is subject to different laws and sanctions than another in the same situation for the same
acts.
As raised by the Secretary-General in 1958 already, “national laws may differ to the extent to which they confer in courts martial jurisdiction over
civil offences in peacetime, or confer on either military or civil courts jurisdiction over offences abroad. Some provide only for trial in the home
country, thus posing practical questions about the submission of the evidence”, Summary Study, see note 85, para. 137.
336
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employees of their respective international service agencies and companies (therefore not staff members, employees or agents of the United
Nations), but perform functions of UN operations, which were previously conducted by personnel regarded as being agents of the UN.
However, providing functions for the UN should provide such personnel with legal protection.
The question that remains is whether such protection is, based upon
practice or any instrument, pre-existent or whether inclusion in a
SOFA, calling for special consent of the receiving state, is required. According to UNOLA, the inclusion of international contractual personnel under a SOFA would require additional support by the General Assembly urging the government concerned to grant such personnel functional immunity106 and legal protection.107 The latter should, according
to the Secretary-General and UNOLA, be included in SOFAs, but this
has been accepted with reluctance by receiving states, which seemed to
be given ultimate discretion in the matter,108 leaving aside the private
contractors for the time being from this special regime. Similarly there
is no decision of the General Assembly which would endorse such special protection.
cc. Convention on the Safety of United Nations and Associated
Personnel
SOFAs of a later date included some, but limited, beneficial provisions
regarding contractors,109 which would be insufficient for the successful
exercise of peacekeeping functions of a potential PMC operating under
UN command. This is indirectly confirmed by the increasing emphasis
placed on the need for more effective protection of UN personnel in
peace operations from the 1990s onwards; the results of which have
been the adoption of the Convention on the Safety of UN and Associ-
106
107
108
109
Engdahl, see note 69, 165.
This should extend to immunity in respect of words spoken and written
and all acts performed by them in their official capacity, as well as entitlement to repatriation, Report of the Secretary-General: Use of Civilian Personnel in Peacekeeping Operations, para. 32, Doc. A/48/707 (1993).
See note 79.
Freedom of movement, the provisions of supplies and services and permits
and licenses, see UNMISET SOFA, see note 87, MINURCA and UNAMSIL SOFA, see note 97, para. 12.
Kovač, Private Military Companies in UN Peacekeeping
337
ated Personnel and its Optional Protocol.110 Besides the additional111
safety assurance provisions112 applicable to personnel within its scope
of application, the Convention elaborates on the meaning of the term
‘UN and associated personnel’ and their duty to respect the laws and
regulations of the receiving state and to refrain from action incompatible with it.113 UN personnel114 and associated personnel115 are defined
with reference to UN operations; those are established by the competent UN organ and conducted under UN authority and control, either
for the purpose of maintaining or restoring international peace and security, or following the Security Council and General Assembly in respect of the existence of exceptional risks for the personnel included in
the operation.116 This broad definition is narrowed by the partial exclusion of Chapter VII operations with enforcement elements “in which
any of the personnel are engaged as combatants against organized
armed forces to which the law of international armed conflict applies.”117 Besides the IHL related problems, particularly the overlap of
110
111
112
113
114
115
116
117
Optional Protocol to the Convention on the Safety of United Nations and
Associated Personnel, A/RES/60/42 of 8 December 2005 and A/RES/49/59
of 9 December 1994, Annex.
Bothe/ Dörschal, see note 42, 499 are of the opinion that it only makes
more explicit what is already contained in instruments such as the General
Convention or SOFAs, O. Engdahl, “Protection of Personnel in Peace Operations”, International Peacekeeping 10 (2006), 53 et seq. (54), emphasises
its contribution as a criminal law and enforcement instrument.
States Parties have negative and positive obligations to assure safety and security of the UN personnel (article 7), criminalise disrespect and enforce
this obligation in their national law (article 9) and establish jurisdiction for
punishment of such acts (article 10), supplemented by measures implementing the aut dedere aut prosequi principle (arts 13, 14 and 15).
Article 6, which in para. 2 obliges the Secretary-General to take all appropriate measures to ensure the observance of these obligations.
This covers “members of the military, police or civilian components of a
United Nation operation” and “other officials and experts on mission of
the United Nations”, article 1 (a).
The peacekeeping PMCs could be considered to fall within the following
two categories of the associated personnel: (i) Persons assigned by a Government or an IO with the agreement of the competent organ of the UN,
or (ii) persons engaged by the Secretary-General of the UN to carry out activities in support of the fulfilment of the mandate of a UN operation, article 1 (b).
Article 1 (c).
Article 2 (2).
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338
the Convention regime and non-international armed conflict IHL arising from this provision, the Convention is only partially applicable for
newer generations of peacekeeping operations. As indicated above, they
are almost always authorized under Chapter VII and blur the line between traditional peacekeeping and peace enforcement due to the inclusion of enforcement elements. It is self-evident that these limitations of
the Convention would apply to PMC peacekeeping regardless of the
scenario of inclusion. Still, the Convention may be considered to establish at least non-opposing if not favourable conditions for PMC peacekeeping inclusion: it does not preclude the status of private contractors
integrated into peacekeeping forces nor does it distinguish between assurances which are conferred upon either of the two categories, the UN
or associated personnel.
The crucial criterion for linkage of personnel to the UN operation is
reduced to the functional element to carry out the activities in support
of the fulfilment of the mandate of an operation, regardless of the particular status of the supporting entity. The regime established by the
Convention is, however, focused on protection matters and adds little
to clarify the status arising from the incorporation of private entities in
peacekeeping operations. The subordinate position of the Convention
in these matters is also expressed in the provision which obliges the receiving state and the UN to conclude the SOFA as soon as possible,
which should include “inter alia, provisions on privileges and immunities for military and police components of the operation.”118 The Convention also turns to two other important bodies of international law
governing peacekeeping, namely international humanitarian law and international human rights law, to which it recognises primacy.119
c. General Rules Relating to Peacekeeping Forces on the Ground
What is referred to as general rules relating to peacekeeping is primarily
limited to two bodies of international law, IHL and IHRL, which operate independently of the specific peacekeeping rules mentioned above.
They serve a joint purpose in relation to peacekeeping by defining the
basic humanity-driven restraints and assuring the protection of human
beings affected by the peacekeeping activity, although one should im-
118
119
Article 4.
Article 20 (a).
Kovač, Private Military Companies in UN Peacekeeping
339
mediately recognise their distinct modes of application.120 Although
IHRL can be subject to limitations during times of public emergency in
respect of the application of certain obligations,121 it remains in force
during times of armed conflict or occupation. The modalities of the applicability of IHL are dependant on the actual involvement of peacekeeping forces in hostilities and help determine its status. As a result the
two bodies of law can operate simultaneously,122 keeping in mind that
the more widely applicable IHRL must take into consideration the lex
specialis standards of IHL.123 Thus the rights and duties of actors involved in peacekeeping, including the PMCs in their various capacities
or individual PMC personnel, should not be seen in isolation from
IHRL and IHL. However, the difficulty lies in the determination of
precise rules applicable to these complex legal situations which involve
a variety of non-state actors. Major specificities and hindrances to their
applicability to peacekeepers, particularly if they are privately contracted will now be examined.
aa. International Human Rights Law
The embedding of human rights in the inter-state structure of the international legal system, mirrored in the proliferation of international treaties to which parties are exclusively states,124 has resulted in the statecentric view that IHRL is mainly about “the way a state treats those
within its domain.”125 This quickly proves inadequate to comprehend
human rights obligations in relation to UN peacekeeping. Speaking
120
121
122
123
124
125
J. Cerone, “Human Dignity in the Line of Fire: The Application of International Human Rights Law During Armed Conflict, Occupation, and
Peace Operations,” Vand. J. Transnat’l L. 39 (2006), 1447 et seq. (1453),
identifies distinctions between the two also with regard to obligations, the
institutions competent to determine violations, the period of application,
the scope of beneficiaries, the locus of application, the range of rights protected and the sources of obligation.
For derogation clauses see the IHRL section below.
Legal Consequences of the Construction of a Wall in Occupied Palestinian
Territory, ICJ Reports 2004, 136 et seq. (178, para. 106).
Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226
et seq. (240, para. 25).
Though this trend might be turned around with the accession of the EU to
the European Convention on the Protection of Human Rights and Fundamental Freedoms when the Reform Lisbon Treaty enters into force.
Cerone, see note 120, 1453.
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strictly legally and being subject to attribution rules, complications arise
as the obligations in place are also those of a separate legal entity on behalf of which the peacekeeping troops act, the UN. These must be combined with the contributing state’s obligations arising from its retention
of a certain degree of control and jurisdiction over the acts of its troops.
Furthermore, to prevent the detachment of human rights guarantees
from the individual whom they were originally supposed to serve, one
needs to go beyond the inter-entity approach.
To overcome the problem of the lacuna of sources for UN human
rights obligations there are several paths to follow. In particular one
may turn to the binding nature of customary international law,126 even
some jus cogens obligations,127 and the practice arising foremost in the
context of UN peacekeeping operations. As for customary international
law, the usual argument for the almost customary nature of some
widely endorsed or ratified IHRL instruments is made, in particular the
Universal Declaration of Human Rights and the two human rights
covenants.128 Obligations such as the prohibition of torture or inhumane or degrading treatment or punishment, the prohibition of all
forms of discrimination, the prohibition of arbitrary deprivation of life,
unlawful detention, slavery etc. are regularly referred to as attaining
customary nature.
The respect of human rights and fundamental freedoms is enshrined
in the UN Charter.129 Furthermore, the practice-based reference to hu126
127
128
129
Following the reasoning that if custom is obligatory for states, those cannot
simply divest themselves of such obligations when they empower the IO to
act, Clapham, see note 48, 109. Moreover, the sole debate over the capacity
of IOs (above) presupposes obligations of such capacity holders. There is
little support for reasoning that IOs would not be bound by custom before
expressing their consent, primarily due to their intergovernmental nature.
Recognition of some human rights obligations as jus cogens obligations is
referred to, for example, by A. Bianchi, “Assessing the Effectiveness of the
UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion,” European Journal of International Law 17 (2006),
881 et seq. (913, 915); or see also Human Rights Committee, Doc.
CCPR/C/21/Rev.1/Add.11 of 31 August 2001, General Comment No. 29,
States of Emergency (article 4).
Namely ICCPR and ICESCR, but also more specific instruments such as
the Convention on the Rights of the Child or the International Convention
on the Elimination of All Forms of Racial Discrimination.
See Charter Article 1 (3). Additionally, the preamble as a normative basis
reaffirms “faith in fundamental human rights”.
Kovač, Private Military Companies in UN Peacekeeping
341
man rights obligations of the UN is inferred from the constant manifestations of the UN and its institutions130 of the need for respect of human rights or their active acknowledgement in UN training materials
and internal rules.131 The latter are currently under review in order to
ensure their standardisation and applicability to all categories of peacekeeping personnel.132 It seems obvious that this would call for a stringent approach by the UN to guarantee the implementation of the highest possible human rights standards.
The sources of a sending state’s human rights obligations – apart
from customary rules – are easier to determine. However the problem
arises with their application. The first specificity arises from the fact
that peacekeeping missions are conducted abroad, being therefore exclusively extraterritorial. This calls for recourse to the effective control
principle in order to trigger the obligations arising from the major hu130
131
132
See UN High Commissioner for Human Rights (UNHCHR) Recommended Principles and Guidelines on Human Rights and Human Trafficking, referring in Guideline 10 to obligations and prohibitions on human
trafficking for peacekeepers, Doc. E/2002/68/Add.1 of 20 May 2002; see
also Secretary-General’s Bulletin: Special Measures for Protection from Sexual Exploitation and Sexual Abuse, Doc. ST/SGB/2003/13 of 9 October
2003.
For an overview and guiding principles see the “Capstone Doctrine” as
formulated in UN Peacekeeping Operations: Principles and Guidelines,
DPKO, Department of Field Support: 2008; for operational rules see “Ten
Rules – Code of Personal Conduct for Blue Helmets”, particularly Rule 5
referring to respect and regard of human rights for all, DPKO Training
Unit, 1997; and “We Are United Nations Peacekeeping Personnel”, referring to the Universal Declaration of Human Rights, IHL and some specific
human rights obligations, DPKO, Training Unit, 2006.
Following the recommendations of the Group of Legal Experts, see Report
of the Group of Legal Experts on Making the Standards contained in the
Secretary-General’s Bulletin binding on Contingent Members and Standardizing the Norms of Conduct so that they are applicable to all Categories of Peacekeeping Personnel, Doc. A/61/645 of 18 December 2006, that
reviewed standards of conduct for United Nations peacekeeping personnel,
ibid., Annex II and proposed the Code of Personal Conduct for United
Nations Peacekeeping Personnel, ibid., Annex IV. For subsequent developments see A/RES/61/291 of 24 July 2007 and A/RES/62/273 of 11 September 2008, and the reports of the Special Committee on Peacekeeping
Operations, requesting the DPKO “to generate such a guide and to present
the result of its work”, see Report of the Special Committee on Peacekeeping Operations and its Working Group Doc. A/61/19/Rev.1, paras 76-78;
also Doc. A/62/19, para. 59.
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man right treaties. While it was initially argued that the scope of beneficiaries is limited to those within a state’s territory or subject to its jurisdiction, the jurisprudence of several international judicial and quasijudicial bodies has now clearly established the basis for the extraterritorial application of states’ human rights obligations abroad, particularly
in the context of peacekeeping,133 but subject to differences in regimes
established by various instruments,134 particularly regional.135 However,
support for a single standard for all human rights treaties may also be
found. 136 After recognising that human rights obligations of states
133
134
135
136
The Human Rights Committee held in its General Comment No. 31 (Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, Doc. CCPR/C/21/Rev. 1/Add.13 of 26 May 2004, para. 10) that
“[a] State Party must respect and ensure the rights laid down in the Covenant [ICCPR] to anyone within [its] power or effective control, even if not
situated within the territory of the State Party …. This principle also applies to those within the power or effective control of the forces of a State
Party acting outside its territory, regardless of the circumstances in which
such power or effective control was obtained, such as forces constituting a
national contingent of a State Party assigned to an international peacekeeping or peace-enforcement operation”.
The ICJ, see note 122, 180, para. 111 endorsed the logic of extraterritorial
application, however under different thresholds. While the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction
outside its own territory”, the ICESCR extraterritorial application requires
territorial control (180, para. 112); but the Court was unclear which of the
two standards it applied for the Convention on the Rights of the Child.
The jurisprudence of the European Commission and European Court of
Human Rights (ECtHR) has been particularly rich in this respect see for
example Loizidou v. Turkey (preliminary objections), No. 15318/89, 310
ECtHR (Series A), 62 although somehow inconsistent, especially when referring to the regional application (espace juridique) principle. See the
Bankovič case (Bankovič et al. v. Belgium and others, No. 52207/99, [2001]
ECHR 970 of 19 December 2001, 80), afterwards de facto overturned by
the Issa case (Issa v. Turkey, No. 31821/96 [2004] ECHR 629 of 16 November 2004, 74).
See Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda), ICJ Reports 2005, 116 et seq. (243, para. 216),
where the Court first refers to the Wall Case “that international human
rights instruments are applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory” and then to IHRL
treaties that do not necessarily include clauses on their extraterritorial effect, such as the African Charter on Human and Peoples’ Rights or the
Convention on the Rights of the Child.
Kovač, Private Military Companies in UN Peacekeeping
343
abroad do not vanish, the question of their range and level arises, which
is again, to a certain extent, shaped by the fact that the state is acting extraterritorially. The level of obligations depends on the degree of the
control the state exercises. Inferring from this it is arguable that “human
rights obligations requiring the adoption of affirmative measures may
be more limited in an extraterritorial context,”137 although bearing in
mind the positive obligations arising from the tasks that the state
pledged itself to fulfil in accordance with the mandate of the peacekeeping mission.
Under certain conditions, namely during times of public emergency
threatening the life of the nation, the range of some human rights obligations138 of a state are subject to the derogation regime, although only
“to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.”139 Although derogations are theoretically possible, considering they are declared in accordance with the
foreseen procedures, it is rather unlikely for a state under a treaty regime to derogate from its obligations when involved in multinational
forces.140 The engagement in an armed conflict through a peacekeeping
contingent deployment is conducted on a voluntary basis, which foresees risks associated with such deployment.
This dimension of states’ human rights obligations in the context of
possible PMC peacekeeping is relevant particularly for a scenario which
assumes the secondment of PMCs as part of national contingents. It of137
138
139
140
Cerone, see note 120, 1498.
Some obligations are non-derogable, cf. e.g. ICCPR, article 4 (2), referring
to the following rights from which derogation cannot be made: article 6, 7,
8 (paras 1 and 2), 11, 15, 16 and 18. One might potentially argue that there
are further guarantees arising directly from international law and particularly international human rights law, for which derogations are not permissible even though they might not be explicitly mentioned in the Conventional system. This goes in line with reasoning presented by the Human
Rights Committee, General Comment No. 29, see note 127, 136, paras 1317.
ICCPR article 4 (1). That armed conflict is a public emergency does not
seem to be disputed, F. Pocar, “Human Rights under the International
Covenant on Civil and Political Rights and Armed Conflict”, in: L.C.
Vohrah et al. (eds), Man’s Inhumanity to Man: Essays on International Law
in Honour of Antonio Cassese, 2003, 729 et seq. (730).
P. Rowe, The Impact of Human Rights Law on Armed Forces, 2006, 248249.
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fers a relatively clear and broad framework of human rights obligations
that regulate PMC conduct even in the absence of specific further rules
as these PMCs become quasi state entities which need to abide by both
the sending state’s international obligations, and its national rules.
These would together oblige a sending state to assure that the conduct
of a seconded peacekeeping PMC is in accordance with the state’s international obligations and standards. Disrespect of these is, in accordance with established practice of status of forces agreements, which
presupposes its exclusive criminal jurisdiction, properly dealt with.
The second scenario of PMC peacekeeping involvement raises issues
which are more difficult to resolve than in the case of the secondment.
As outlined above, the main problem does not lie in the absence of applicable rules – PMCs hired directly by the UN would of course be
subject to the human rights obligations of the UN, even though these
obligations are not conventional in nature and therefore less clearly introduced and dispersed. The major problem and shortcoming of such
an approach is, namely, the limited capacities of the UN to enforce
these rules.
For these reasons, one is compelled to identify a functional substitute for the “sending state” concept,141 meaning the authority willing
and able to take over these law enforcement obligations. One possible
way is to turn to the origin of the PMC. As the PMC is, in this scenario, a private corporate entity which enters into contractual relations
with an international public entity independently of the will of any
state, the closest approximations to the “sending state” concept are either “state of registration of PMC” or “PMC export licensing state.”
The relation of these two to the UN would, however, be different as
they do not automatically assume responsibility for infringement of its
international human rights obligations by private entities, especially if
these infringements are exercised abroad, outside the scope of their effective control. Although some states might possess the legislation and
machinery to prosecute individuals and companies for wrongdoings
abroad, this is often limited to acts committed in an official capacity.142
141
142
This detachment appears in a similar manner in the following section on
IHL.
For example, although the US War Crimes Act (18 U.S.C. § 2441), the Torture Statute (18 U.S.C. § 2340), the Military Extraterritorial Jurisdiction
Act (MEJA 2000, amended 2005, 18 U.S.C. § 3261, 18 U.S.C. § 3267(1)(A))
and the US PATRIOT Act (18 U.S.C. § 7 (9)) provide options for prosecution of contractors abroad, only the first two are extendable to acts outside
Kovač, Private Military Companies in UN Peacekeeping
345
However, even if such an option exists, it is insufficient due to the unsatisfactory guarantees that such an action will actually be undertaken,143 or that it will be comprehensive in terms of ratione personae or
ratione materiae.144 If one views the positive obligations of states to ensure respect for human rights in a very broad manner, an indirect source
of human rights obligations may be linked to the introduction and enforcement of an appropriate national licensing or export regime.145 This
is currently not usually the case as the existing licensing regimes are
more concerned with overseeing respect for human rights than the accountability of PMCs.146
Two further options exist to engage IHRL concerns into the discourse and which are relevant for both scenarios. First, the PMC peacekeeping entity should take into consideration the laws of the receiving
state; second, it should also be aware of its corporate obligations under
international law.147 The implication of the receiving state laws on human rights guarantees is relevant as it offers a possible applicable normative framework, subject to limitations arising from functional immunities, which provide for restricted jurisdictional powers of the receiving state. The fact that the activity of a peacekeeping PMC will be conducted on the territory of the receiving state offers a well-established
basis to define law, on the condition that it meets the minimum international standards. This, in effect, may be supplemented by international
obligations of corporate entities. In particular IHRL developed the idea
143
144
145
146
147
of the official capacity. See also under <http://www.amnestyusa.org/annu
alreport/2006/provisions.html>.
Even if this is the case a PMC might off-shore its activity or simply dissolve and reconstitute itself as in the case of South Africa-based Executive
Outcomes in the 1990s. See P.W. Singer, Corporate Warriors: The Rise of
the Privatized Military Industry, 2004, 3-4.
For example the question of covering the nationals of other states in the
first case and the question of which are the applicable human rights in the
second.
For a recent overview see M. Caparini, “Domestic Regulation: Licensing
Regimes for the Export of Military Goods and Services”, Chesterman/
Lehnardt, see note 22, 158-179.
South Africa, for example, does not grant an approval to PMCs if this
could “result in the infringement of human rights and fundamental freedoms in the territory” where the firm would operate.
See E. Mongelard, “Corporate Civil Liability for Violations of International Humanitarian Law”, Int’l Rev. of the Red Cross 863 (2006), 665 et
seq. (668-673).
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of obligations of non-state actors such as individuals and corporations,
incorporated in the main IHRL treaties148 or expressed as soft law or
voluntary provisions making reference to IHRL standards.149 As noted
above, this will not give rise to the same level of international responsibility as in the case of established subjects of international law, such as
states and IO. Nevertheless, these obligations will play a role in determining individual or corporate liability for actions in which the PMCs
are engaged, despite the lack of clear mechanisms provided by international law for their enforcement. If obligations are enforced this is most
likely to happen at the domestic level of the PMC registration state.
bb. International Humanitarian Law
The application of IHL is a somewhat controversial point. As the UN
is not a party to any convention relating to the law of war, the question
which arises is, whether customary international law is applicable. The
UN is bound by general international law, the law of war being no exception. Therefore it is uncontested that peacekeeping forces are subject
148
149
The UDHR reminds in its Preamble “that every individual and every organ
of society” should keep it constantly in mind, making it applicable to nonstate actors such as companies, L. Henkin, Beyond Voluntarism Human
Rights and the Developing International Legal Obligations of Companies,
2002, 52; in a similar manner the ICCPR and ICESCR in their joint article
5 (1) deprive any State, group or person of “any right to engage in any activity or perform any act aimed at the destruction of any of the rights and
freedoms recognized” in the covenants.
See for example multiple references to respect for human rights in Norms
on the responsibilities of transnational corporations and other business enterprises with regard to human rights, UN Sub-Commission on the Promotion and Protection of Human Rights, 26 August 2003, Doc.
E/CN.4/Sub.2/2003/12 Rev. 2: “Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes
against humanity, genocide, torture, forced disappearance, forced or compulsory labour, hostage-taking, extrajudicial, summary or arbitrary executions, other violations of humanitarian law and other international crimes
against the human person as defined by international law, in particular human rights and humanitarian law.” See also ILO Tripartite Declaration of
Principles concerning Multinational Enterprises and Social Policy, 3rd edition, 2001, para. 8 or OECD Guidelines for Multinational Enterprises,
“Enterprises should ... [r]espect the human rights of those affected by their
activities consistent with the host government’s international obligations
and commitments,” at II., General Policies, Revision 2000, OECD.
Kovač, Private Military Companies in UN Peacekeeping
347
to IHL if the conditions for its applicability are met. To what extent,
however, remains controversial. 150 The issuance of the SecretaryGeneral’s bulletin in 1999 151 introduced some clarity, but rightly
pointed out that the document itself is not exhaustive. It furthermore
noted that “[T]he fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United
Nations forces when in situations of armed conflict they are actively
engaged therein as combatants, to the extent and for the duration of
their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted
in self-defence.”152 The UN, inter alia, undertook “to ensure [through
SOFAs] that [its] force shall conduct its operations with full respect for
the principles and rules of the general conventions applicable to the
conduct of military personnel” and that “members of the military personnel of the force are fully acquainted with the principles and rules of
those international instruments,” even if SOFAs are not concluded.153
Furthermore, it noted that, without prejudice to the rules mentioned
above, military personnel remains bound by national law throughout
the operation.154
Although the debate on IHL obligations of non-state actors follows
the IHRL logic (see previous section) and introduces additional possibilities to confer legal obligations, particularly in light of individual
criminal responsibility, the proliferation of PMCs produced a debate
depicting a legal vacuum where there is none.155 This image of lawlessness portrays PMCs in a negative light, amounting to a legal anomaly
and a publicly unattractive option. This negative image, which also results from their limited regulation, may therefore be transformed into
the automatic rejection of an appropriate status for PMC personnel for
inherently the same reasons as for a recently vastly growing number of
150
151
152
153
154
155
Bothe/ Dörschal, see note 42, 499.
Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, Doc. ST/SGB/1999/13 of 6 August 1999.
Ibid., Section 1. (1.1.). This also correctly assumes the applicability of IHL
relating to international armed conflict (IAC). Even if recent UN peacekeeping engagement is conducted mainly in non-international armed conflict (NIAC) situations, UN involvement provides an element that internationalises these situations, at least with respect to the UN itself, and renders
applicable the more comprehensive set of IAC rules.
Ibid., Section 3.
Ibid., Section 2.
Doswald-Beck, see note 27, 115.
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“unlawful or unprivileged combatants”,156 i.e. failing to distinguish between jus ad bellum and jus in bello rules. One needs to avoid normative judgements and recall the raison d’être of IHL, which recognises
that what counts is a de facto link or belonging of PMCs to public entities that initiate their involvement in situations where IHL is applicable.157 Given that original158 or softened159 conditions to achieve the
combatant status under modern IHL, which gives access to POW status
as a determinant of the factual legality of a combatant, are relatively
easy to achieve, there are various views regarding PMC agents’ entitlement to such a status. The more stringent approach requires the ability
of the public entity concerned to exercise criminal jurisdiction over
such forces, which also need to be within its army’s chain of command.160 The less stringent understanding follows the rationale of loosening the provision of the first Additional Protocol, which broadens the
combatant category and takes into consideration the factual linkage to
156
157
158
159
160
See for example K. Doermann, “The Legal Situation of ‘unlawful/unprivileged combatants’”, International Review of the Red Cross 849
(2003), 45 et seq.
J. Pictet, Commentary: Geneva Convention Relative to the Treatment of
Prisoners of War, Vol. III, 1960, 57; or Expert Meeting on Private Military
Contractors: Status and State Responsibility for Their Actions, Geneva,
2005, 30; but see Gillard, see note 23, 533, for opposite view.
In our case either formally incorporated into the army (Geneva Convention III article 4 A. (1)) or being members of other militias belonging to a
Party to the conflict fulfilling four conditions ((a) being commanded by a
person responsible for his subordinates, (b) having a fixed distinctive sign
recognizable at a distance, (c) carrying arms openly and (d) operating in accordance with the laws and customs of war (Geneva Convention III, article
4 A. (2)).
Additional Protocol I, arts 43 and 44, equating within members of a belligerent party subject to an internal disciplinary system; they are required to
distinguish themselves from the civilian population and carry their arms
openly during commission and preparation of their military engagement in
order to obtain the POW status.
M. Schmitt, “War, International Law and Sovereignty: Re-evaluating the
Rules of the Game in a New Century: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees”,
Chicago Journal of International Law 5 (2005), 511 et seq.
Kovač, Private Military Companies in UN Peacekeeping
349
the public entity, determined also by the contractual nature of the PMC
entity relation.161
Regardless of the approach taken, IHL confers on the belligerent the
obligation to ensure respect of its rules, which includes its enforcement
as well as jurisdictional measures. Stringent demands for such supervision might prove difficult in the case of PMCs though, if they do not
amount to grave breaches.162 If the hiring entity is a state, it might not
be in a position to exercise its jurisdiction for several reasons already
specified above or due to specific jurisdictional exemptions. The problem is aggravated if the hiring entity is the UN itself. In line with established peacekeeping practice, the jurisdictional requirements need to be
retained by states in order to achieve the effective enforcement of IHL,
even where an operation is conducted entirely under UN’s command
and control. 163 Alternative options are ad-hoc mission-specific arrangements or recourse to the tools and institutions of international
criminal law. In light of the current opposition to it and the structure of
the global PMC industry, the latter possibility does not seem plausible
for the time being.164 Similarly, the former requires institutional developments and adaptations that are currently not envisaged.
In conclusion, IHL plays a relevant role for both scenarios of PMC
peacekeeping inclusion as it confers rights and obligations on various
capacity holders involved in these scenarios. However, its application is
subject to various assumptions determining the status of the potential
peacekeeping PMC and its enforcement proves particularly difficult in
relation to the second scenario of direct PMC hiring by the UN.
161
162
163
164
Doswald-Beck, see note 27, 121: “Presumably there would be a form of responsibility to the state in that non-performance of the contract would result in liability in the form of breach of contract”.
See, for example, Geneva Convention I (arts 49-52), Geneva Convention II
(arts 51-53), Geneva Convention III (arts 129-132), Geneva Convention IV
(arts 146-149). These imply not only universal jurisdiction, but also erga
omnes obligation. For Additional Protocol Provisions see arts 11, 85, 86.
Saura, see note 8, 503.
One of course has in mind the US opposition and the hostile approach to
undermine the functioning of the ICC combined with the US efforts to exempt its citizens and military personnel from its jurisdiction by avoiding
extradition through bilateral agreements following article 98 of the Statute
of the ICC.
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d. Other Sources of Law Applicable to Peacekeeping Forces and
PMCs
International law presents a further vast body of other rules which
might affect or limit the conduct of peacekeeping operations by states
or IOs or the activities of companies and private individuals. In combination with the rules referred to above, one should not overlook the
particular importance of international criminal law and the acts it
criminalises at the international level, whether these amount to international crimes165 or international delicts.166 These are supplemented by
the stunning number of international treaties, which remove states’ exclusive jurisdiction from some acts that they would normally have control over and confer upon them the obligation to either extradite or
prosecute the perpetrators. There is no reason to believe that, apart
from specific exemption provisions, the PMC peacekeepers would be
excluded from these regimes. Notwithstanding this scenario, states retain the positive obligation to prevent such acts if it is within their capacity to do so. Domestic and national laws then supplement these provisions and often provide a prerequisite for their implementation and
enforcement before national courts and authorities.
Taking into consideration the practice of modern peacekeeping, particularly the employment of national contingents and the SOFA based
exclusive jurisdiction of a sending state over the acts of its troops, the
role of national laws is all but trivial, particularly the laws of armed
forces. On the one hand, they build on and incorporate the established
principles of international law mentioned above. On the other hand,
their role is complementary, since they introduce rules of engagement
165
166
One of the first definitions by the Nuremberg Tribunal in 1948, stating that
an international crime is “such an act universally recognized as criminal,
which is considered a grave matter of international concern and for some
valid reason cannot be left within the exclusive jurisdiction of the state that
would have control over it under ordinary circumstances” (US v. List et al,
19 February 1948, Trials of War Criminals Before the Nuremberg Tribunals
under Control Council Law No. 10, Washington, DC: US Government
Printing Office, 1950, Vol. IX 1230, 1241).
Distinction based on C. Bassiouni, Introduction to International Criminal
Law, 2003, 63, 121-122, but contrary to his opinion. The placement into
one of the two categories is indeed a “value judgment”. One can argue that
the acts, despite not necessarily fulfilling the criteria of being “a product of
state action or state-favoring policy” (ibid.), are more and more seen as international crimes, confirmed by states’ opinio juris.
Kovač, Private Military Companies in UN Peacekeeping
351
(RoE) for troops, rules governing the internal disciplinary systems and
further substantial rules to which these troops need to adhere. These often contain specific provisions in the form of handbooks or manuals,
which are applicable when contingents are contributed to multinational
or peacekeeping forces. When operating under UN mandate the reference to applicable international law and terms of the mandate will
probably be incorporated.167 Such types of instruction are important in
practice as soldiers will be rather inclined to follow directives from the
authority to which they are accustomed, although sole reliance on these
may also detract from the international character of the force.168 To this
end, some joint core rules governing UN involvement are the requirement for the conduct of a peacekeeping operation under UN command
and control and this core is provided via the internal rules of the UN.
In the case of early peacekeeping operations169 elaborated force regulations were issued by the Secretary-General. However, recent practice
distinguishes between the operations plan as a precise military interpretation of the mandate given to forces by the UN organs,170 which is issued by the commander, and RoE, which set the rules under which
weapons and force may be used.171 The latter represent one of the most
167
168
169
170
171
Rowe, see note 140, 228.
Bothe/ Dörschal, see note 42, 495.
For example UNEF I, ONUC, UNSF or UNFICYP (UN Peacekeeping
Force in Cyprus).
The operations plan addresses command and control structure of the
peacekeeping force, procedures for assigning operational, administrative
and civilian personnel, chain of command, authority of various levels of
command, detailed description of specific missions of the peacekeeping
forces as a whole and of its subunits, areas of responsibility of the various
national contingents of the peacekeeping force, rules of information and
accountability, relationships between the peacekeeping units and the government and local authority of the receiving state, combat readiness, intelligence and the security of the force, composition and missions at the reserves, rights, authority and the procedures in the conduct of searches and
seizures of weapons and military equipment from private individuals, relationship with the mass media and other practical issues of the daily activities of force. Bothe/ Dörschal, see note 42, 494-495.
These cover the rules for carrying and restoring weapons and definitions of
the possibilities and rules for the justifiable use of weapons including selfdefence of peacekeeping personnel, defence of peacekeeping posts and facilities, support of other peacekeeping sub-units, enforcing compliance
with the conditions of demilitarised and buffer zones, and prevention of
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contentious issues at stake, differing on a case by case basis, depending
on the mandate of the operation, the states involved, and the need to
strike a balance between flexibility and legal certainty.172 They should
be “sufficiently robust and not force United Nations contingents to
cede the initiative to their attackers.”173 The basis for these rules is
again, to some extent, unclear especially for possible PMC peacekeeping involvement when the UN directly hires the company. The applicable RoE would be determined in line with the general mission RoE, the
RoE of the national contingent into which the PMC would be incorporated and the established organisational practice. Furthermore, this
practice is to be examined in connection with the internal rules of the
UN. These potentially cover a vast array of substantive questions (see
above).174
Lastly, one should look at the heart of the legal relation between a
PMC and the entity recruiting the company for the purpose of peacekeeping: the contracts between them. Apart from defining their mutual
relation, these present a framework for the inclusion of obligations arising from various abovementioned sources of public international law
but also ad-hoc solutions to questions of forum and jurisdiction for
possible contractual breaches. Contractual provisions are considered a
serious alternative for the regulation of PMC conduct,175 although the
difficulty with effective monitoring and actual enforcement, depending
on the public entity (government or, in our case, also an IO) persists.176
For this reason, the idea of contractual enforcement by third-parties,
these being any other public or private entity or individuals, would pre-
172
173
174
175
176
violent flare-ups that threaten the life and health of the population, ibid.,
495.
A.P.V. Rodgers, “Visiting Forces in an Operational Context”, in: Fleck, see
note 42, 533-560 (548).
Report of the Panel on United Nations Peace Operations of 21 August
2000, Doc. A/55/305-S/2000/809, at x.
These rules can in limited cases, in combination with their practical application, provide for customary rules with external effect for the claimant, see
K. Schmalenbach, “Third Party Liability of International Organizations”,
International Peacekeeping 10 (2006), 33 et seq. (50-51).
See L.A. Dickinson, “Contracts as a Tool for Regulating Private Military
Companies”, in: Chesterman/ Lehnardt, see note 22, 217-238.
One of the often cited negative examples is the US non-enforcement practice with regard to US contractors in Iraq involved in Abu-Ghraib prison
interrogations or other cases of possible excessive use of force by private
contractors.
Kovač, Private Military Companies in UN Peacekeeping
353
sent a viable and welcome option, subject to sufficient clarity of dispute
settlement provisions in the contract. A brief overview of the current
UN general contractual conditions leads to the presumption that this is
more likely to be the case when the contractual relation includes a governmental actor.177 The inclusion of specific claim settlement rules in a
SOFA also seems possible.
IV. Responsibility Issues Arising from Acts of the PMC
Peacekeeping Force
The notion of responsibility in international law, which was traditionally confined to state responsibility178 but later expanded (at least) to
the responsibility of IOs179 and individual responsibility for certain acts
deemed criminal under international law,180 encompasses the responsibility that subjects of international law incur for their wrongful acts
under international law. Bearing in mind the difficulties with the debate
on international law subjects, a pragmatic and more comprehensive approach was applied in the first part of this article. In line with this, one
should acknowledge the arguments that responsibility for wrongful acts
can potentially be incurred also by non-state actors. Following this ra-
177
178
179
180
United Nations General Conditions of Contract, Section 16, refers only to
the UN Commission on International Trade Law (UNCITRAL) Conciliation Rules.
“State responsibility is a fundamental principle of international law, arising
out of a nature of the international legal system and the doctrine of state
sovereignty and equality of states. It provides that whenever one commits
an internationally wrongful act against another state, international responsibility is established between the two. A breach of an international obligation gives rise to a requirement for reparation,” Shaw, see note 10, 694; see
also ILC, Report of the International Law Commission, Fifty-third Session
2001, GAOR, Fifty-sixth Secession, Suppl. No. 10, Doc. A/56/10, hereafter
referred to as ILC Draft Articles on State Responsibility.
The topic was included in the programme of work of the ILC only in 2002
when Giorgio Gaja was appointed as the Special Rapporteur for the topic.
The ILC has so far produced 45 draft articles. See Report on Responsibility
of International Organizations: Report of the International Law Commission on the Work of its Fifty-ninth Session, Doc. A/62/10, 2007, hereafter
referred to as Draft Articles on IO Responsibility.
Based on S. Marks/ A. Clapham, International Human Rights Lexicon,
2005, 226.
Max Planck UNYB 13 (2009)
354
tionale the PMCs, although not a classical subject of international law,
bear some international legal obligations. Furthermore, as responsibility
is “the necessary corollary of a right,”181 which a PMC is definitely able
to infringe, direct PMC responsibility issues are not trivial. However,
since this article is already building on a hypothetical scenario, the examination of responsibility issues arising from PMC peacekeeping will
focus on aspects of state responsibility and of the responsibility of
IOs.182 The issue of individual criminal responsibility of PMC peacekeepers will be touched upon only indirectly. Limiting oneself to an
analysis of these aspects proves challenging: it includes a plurality of
subjects and capacity holders, which are diverse and subject to a wide
array of legal obligations. Consequently, this indicates that responsibility might not be exclusive but multilayered, bearing in mind the intrinsic linkage of actors such as states and IOs. Furthermore, if there is an
agreement on an established body of practice and more or less agreedupon rules on state responsibility, this is not the case with the rules on
responsibility of IOs. This part therefore explores how the rules of international law as identified above and applicable to potential PMC
peacekeeping would interact and trigger the rules of international responsibility. The exercise, which is conducted on the basis of the two
scenarios, can sometimes lead to several outcomes and anticipated solutions that aim to achieve at least some legal clarity, but often also raise
new questions. The basic rules on responsibility are explained as one
follows the first scenario of PMC inclusion and then further elaborated
if the need for adaptations is required by the second scenario.
1. General Issues of Attribution
Before approaching the two scenarios, a few general issues of international responsibility will be considered. First, the issue of responsibility
for wrongful acts should be distinguished from attribution rules, which
only establish that there is an act for the purposes of responsibility, but
181
182
Judge Huber in Spanish Zone of Morocco Claims (2 RIAA, p. 615 (1923),
641), who continued that “[a]ll rights of an international character involve
international responsibility. Responsibility results in the duty to make
reparation if the obligation in question is not met.” See J. Crawford, The
International Law Commission’s Articles on State Responsibility, 2003, 78.
The rules for these are indeed the most developed and supported by practice. Limitation of space is another reason. The analysis relies heavily on
the work of the ILC.
Kovač, Private Military Companies in UN Peacekeeping
355
say nothing about the legality of the conduct.183 Whether an international obligation has been breached is a separate question, treated by
special rules.184 Second, attribution rules are relatively clear when a state
acts in its individual capacity, but become more complex in the context
of collective action such as peacekeeping. Although it is, for example,
uncontested “that the conduct of an organ of a State … that is placed at
the disposal of an IO shall be considered an act of the latter organization, if the organization exercises effective control over that conduct”,185 the picture is more blurred in reality. It was demonstrated
above that the sending state retains a significant degree of control over
its national contingents, which are bound by its national laws and are
subject to the sending state’s jurisdiction. To complicate the situation
even more, the contingent might be operating in a national and international capacity simultaneously. It is therefore important to assess the issue of attribution in light of the particular features, mandate, RoE,
SOFA etc., of each operation.186
Next, as PMCs were originally not a public entity but a non-state
actor, clarification whether their conduct can be attributed to a state or
international entity is required. The answer is straightforward and positive in the case of state responsibility rules, when the (non-state) actor is
acting on the instructions of, or under the direct control of a state; or
when it is exercising elements of governmental authority in the absence
or in default of official authorities; or when the conduct is subsequently
adopted by a state.187 General rules on attribution of conduct to an IO,
as they currently read,188 allow for a non-state actor’s conduct to be attributed to an IO, being considered an organ or an agent of the IO.
As demonstrated above, formal PMC incorporation into a peacekeeping force, regardless of the scenario, would result in its being considered an organ of the UN, assuming its placement under command
183
184
185
186
187
188
ILC Draft Articles on State Responsibility, see note 178, 81. See Chapter II,
also in Draft Articles on IO Responsibility, see note 179, 200,
Chapter III of both Draft articles.
Draft Articles on IO Responsibility, see note 179, article 5.
Cerone, see note 120, 1457.
Draft Articles on State Responsibility, see note 178, arts 8, 9 and 11.
“The conduct of an organ or agent of an IO in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in
respect of the organization,” Draft Articles on IO Responsibility, see note
179, article 4 (1).
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Max Planck UNYB 13 (2009)
and control of the UN. And even if one opposes this approach, it is argued that the term agent comprises a PMC, which is under the direction and control of the respective organisation.189 As in the case of state
responsibility, the conduct acknowledged and adopted by an IO as its
own is attributable to it.190 Furthermore, conduct attribution rules for
both states or IO, are without prejudice to the excess of authority or
contravention of instructions.191 However, this does not directly incur
responsibility.
There is an additional aspect of responsibility and attribution rules
which presents some conceptual difficulties, namely a non-action or
omission of action by an entity. Failing to act may constitute a breach
of an obligation by a state or IO.192 Consequently, in the cases of omission the distinction between the rules for attribution and the rules on
responsibility for wrongful acts is less obvious and therefore analytically more challenging. An examination of this option is particularly
relevant as was shown in the overview of substantial rules of international law applicable to possible PMC peacekeeping. Direct examples
for this are the SOFA based obligations of receiving states to provide
for the protection of peacekeepers on their territory, exercise of jurisdictional obligations and disciplinary measures of the sending states, as
well as their positive obligations under IHL or IHRL to steer their
agents to abide by the rules of these bodies of law, or the positive obligations of the UN to train its staff in accordance with the required international IHL and IHRL standards.
2. The Secondment of the PMC by a State Scenario
The secondment of the PMC by a state to a peacekeeping operation
creates a situation similar to regular peacekeeping as it presupposes the
active role of a contributing state, which enters into a legal relation with
the IO receiving a peacekeeping unit. It is therefore crucial to clarify the
189
190
191
192
For the purposes of para. 1, the term “agent” includes officials and other
persons or entities through whom the organization acts, ibid. article 4 (2).
Draft Articles on IO Responsibility, see note 179, article 7.
Draft Articles on State Responsibility, see note 178, article 7; Draft Articles
on IO Responsibility, see note 179, article 6.
Daft Articles on State Responsibility, see note 178, article 2 (a); Draft Articles on IO Responsibility, see note 179, article 3 (2) (a).
Kovač, Private Military Companies in UN Peacekeeping
357
modalities of the state-PMC relation and the nature of the functions
performed by a PMC.
If secondment means hiring and officially sending a PMC to take
part in a peacekeeping operation, which has traditionally been a governmental function,193 one view is that its acts are automatically attributed to the state. The first scenario assumes secondment in such a form,
which is similar to a traditional military contingent contribution, which
implies the continuing connection of an organized military group to the
sending state. The latter should be able, in accordance with the established practice, to exercise criminal jurisdiction over the members of the
seconded PMC contingent, which would presumably even be a precondition for the IO to accept such secondment.194
Softening the meaning of secondment by either assuming merely a
financial or referential relation between the state and the PMC to be
seconded to the peacekeeping operation proves to be a trickier case. It is
the view of some that the well-established practice of states merely
funding peacekeeping or referring a PMC to an IO and volunteering to
fund its activities would not make their acts attributable to the state.195
Although these conditions fall short of the classical conception of a
sending state and imply only limited or no contractual relationship, or
even no effective measures of control, the financing of a particular
PMC, referring or recommending it, assumes some degree of inclusion
of a state into a selection procedure.196 It seems reasonable to assume
that a state will finance or recommend only those entities whose action
it approves or deems to be in accordance with its national standards and
its international obligations, as it would otherwise face at least internal
193
194
195
196
See article 5 of Draft Articles on State Responsibility, see note 178: “The
conduct of a person or entity which is not an organ of the State … but
which is empowered by the law of that State to exercise elements of the
governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the
particular instance”.
Expert Meeting, see note 157.
Ibid., 31. Western states often fund peacekeeping activities conducted by
African states.
Although in the Military and Paramilitary Activities in and against Nicaragua case, see note 56, 64-65, which included the financing of the guerrillas
by the US, the ICJ concluded that for responsibility to incur, “it would in
principle have to be proved that the state had effective control [emphasis
added] of the military and paramilitary operation in the course of which alleged violations were committed”.
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legal scrutiny. Along the same line, the question also arises whether actions which cannot be clearly attributed to the state, can incur this
state’s responsibility due to its due diligence obligation under international law, which requires it to prevent, or at least respond to the violations of international law. Whether such obligations exist is unclear.197
But if a state financed or recommended a certain entity, it is logical to
assume that it can withdraw its financial support, recommendation or
even license when it learns of the wrongful conduct of a PMC. In this
case it is not the private conduct itself, but the omission of action or an
insufficient effort to prevent such action that might generate the state’s
responsibility. The rules on state responsibility are clear in this respect:
“[t]he State responsible for the internationally wrongful act is under an
obligation: (a) to cease that act, if it is continuing;” even more, it should
offer “appropriate assurances and guarantees of non-repetition, if circumstances so require.”198 This option is also particularly relevant for
the second scenario, where the PMC would be hired directly by the
UN and where the role of the state (of origin of the PMC) would be
that of a possible silent regulator.
The next step in determining the attribution of a PMC peacekeeping
action to the state (subject to the vagueness of their interrelation) is
whether such action entails an exercise of a governmental authority. Although the concept is vague,199 and the proliferation of PMCs weakens
it even more, the reliance on the opinion of the ILC would entail that
some activities – arguably law enforcement, engaging in combat, seizure
of money, detention and interrogation etc. – are so commonly regarded
as core government functions that their performance by PMCs would
amount to the exercise of a governmental authority.200 If a state hires a
private contractor to perform these actions on its behalf in a peacekeeping operation in which it takes part, the PMC action will therefore be
attributable to it. However, the responsibility for these acts will be subject to the mandate of the operation, command and control arrangements existing between the UN and states, provisions of SOFAs or
status of contributing forces agreements. The responsibility for any
wrongful act will therefore have to take into consideration the interplay
197
198
199
200
See next section for follow-up on the due diligence concept.
Draft Articles on State Responsibility, see note 178, article 30.
For discussion of its problems see C. Lehnardt, Private Military Companies and State Responsibility, International Law and Justice Working Papers 2007/02, 7-9.
Draft Articles on State Responsibility, see note 178, article 5 Commentary.
Kovač, Private Military Companies in UN Peacekeeping
359
of the rules of state responsibility and the responsibility of the IO. For
example, the division of responsibility is clearly different in the case
when a wrongful act by the PMC is a consequence of executing the
commands or orders of a unit commander, that are discordant with the
operation’s RoE,201 versus if action is conducted following faulty orders
issued by the overall operation’s commander – a UN high official. The
latter case would incur the responsibility of the UN.202 In the former
case, however, the principles of excess of authority of an agent of the
IO203 (in this case the PMC seconded by the state) and the principle of
direction and control exercised by a state over the commission of an internationally wrongful act by an IO, will have to be weighed.204
The answer to the question of responsibility for acts of the peacekeeping forces will therefore be answered simultaneously with the determination of who has effective control over the peacekeeping
forces.205 This is determined by the division of powers between the hierarchical levels of the operation’s overall structure,206 which shifted
from precedential high competences of the UN’s administrative chief in
early peacekeeping operations207 to the more precise and tighter control
of operations by the Security Council in present-day peacekeeping.
This control is expressed through timely reporting demands, short-term
201
202
203
204
205
206
207
Or if individual acts of peacekeepers are not in accordance with the internal
disciplinary rules of the contingent. These acts will incur sending state responsibility.
Draft Articles on IO Responsibility, see note 179, article 5.
Ibid., article 6.
Ibid., article 26.
Commentary on Draft article 5 on IO Responsibility, Report of the International Law Commission on the Work of its Fifty-sixth Session, Doc.
A/56/10, 2004.
Establishing organ Security Council, the Secretary-General, the commander in chief and his staff, Separate National (or PMC) contingents’
commanders and all the way to the individual soldier. Bothe, see note 3,
687.
Who enjoyed a great degree of independence, even more due to the unanimity of the P5 Security Council members. In UNEF I the General Assembly appointed the commander-in-chief, but authorised the SecretaryGeneral to issue all instructions and regulations for the functioning of the
force (A/RES/1001 (ES-I) of 7 November 1956, para. 7.); in ONUC the
Secretary-General was mandated to create a force and to appoint the commander in chief. It was his responsibility to act within the general framework of the mandate in order to implement it (S/RES/145 (1960) of 22 July
1960, para. 5; S/RES/146 (1960) of 9 August 1960, para. 6).
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mandate extensions and the increasing precision of the mandate. The
question that persists is: does the supervisory role of the Security
Council, derived from its central role as a collective security guarantor
and therefore the source of authority vested in the peacekeeping force
through the Secretary-General, amount to effective control? Due to realities arising from the implementation and operation of its authority on
the ground through these complex multidimensional operations,208 the
retention of ultimate authority and control does not necessarily correspond entirely with the exercise of the operational command of the
force. In a recent case Behrami and Behrami v. France before the European Court of Human Rights (ECtHR) concerning the accountability
of some European states for the acts of their military personnel when
participating in operations,209 the Court did not distinguish between
acts attributable to the UN (UNMIK) and mandated coalitions and alliances (KFOR), due to reliance on UN Security Council Resolution
1244, jointly providing a mandate for their action. The ECtHR’s reasoning seems to neglect its own understanding that, “it [is] essential to
recall … that the necessary … donation of troops by willing TCNs
[troop contributing nations] means that, in practice, those TCNs retain
some authority over those troops”.210 This (retained) authority is by
default operation - and situation-specific, which the Court did not take
sufficiently into consideration. As UN peacekeeping operations by default include stricter central command than peace operations of the
mandated coalitions and alliances (as, for example KFOR), the analogous application of the case should be considered with caution. To resort merely to decisions of the Security Council as the ultimate source
determining the effective control of the UN peacekeeping force is
therefore questionable.211
208
209
210
211
Particularly the non-execution of Article 43 of the Charter and the reliance
on national contingents.
ECtHR in Behrami and Behrami v. France (No. 71412/01, [2007] 45
EHRR, 2 May 2007, 121-151, but particularly 131-134). The applications
relate to the failure of the French, German and Norwegian military contingents of the international security presence in Kosovo (KFOR) to comply
with the European Convention on Human Rights during their participation in multinational security operations in Kosovo in 2000-2001, particularly in relation to their legacy of unexploded cluster bombs killing or injuring civilians and the failure of their removal.
Ibid., para. 138.
Even more so if the international courts apply this reasoning for the purpose of determining the lack of their jurisdiction, as was essentially the case
Kovač, Private Military Companies in UN Peacekeeping
361
This demands that closer attention be paid to the role of the other
UN organ at the top of the operational chain of command, the Secretary-General. The Secretary-General gives general instructions and exercises political guidance but divests responsibility for military activities
to the military commander-in-chief, appointed by the SecretaryGeneral. The commander-in-chief is the top of the established military
command hierarchy, recruiting the members of his/her staff and has national contingent commanders and their units placed under his/her
command; these national contingents presumably no longer serve a
state, but the UN.212 The effective control drawn from this hierarchical
chain of command is closer to reality, yet limited due to the reluctance
of national contingents to recognise de facto exclusive control of the
UN for legal, and also purely political, reasons.213 “[T]here is always a
national override on foreign command of national contingents,” often
referred to as “parallel command”.214 The problem of peacekeeping is
therefore precisely “the frequency with which national command is invoked.”215
In this regard one should recall that “while it is understandable that,
for the sake of efficiency of military operations, the United Nations insists on claiming exclusive command and control over peacekeeping
forces, attribution of conduct should also in this regard be based on a
212
213
214
215
with the Behrami and Behrami v. France decision. The decision of the
Court was based on the reasoning that it lacks jurisdiction in the present
case as the disputed violations of the European Convention on Human
Rights were attributable to the United Nations, a non-party to the convention which, subsequently, cannot be held liable for these acts.
Bothe, see note 3, 688, 691.
For US practice see Presidential Decision Directive 25 (PDD-25), May
1994, Bureau of International Organizations Affairs, US Department of
State, at v: “A. Our Policy: The President retains and will never relinquish
command authority of the U.S. forces. On a case by case basis, the President will consider placing appropriate U.S. forces under the operational
control of competent UN commander for specific UN operations authorized by the Security Council”, reprinted in: Bothe/ Dörschal, see note 42,
504, footnotes 75-75.
J.V. Arbuckle, Military Forces in 21st Century Peace Operations, 2006, 121123, who gives an example of the NATO doctrine, which the UN utilises
selectively precisely for the reason of the weakness of its joint command
structure.
Ibid., 123.
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factual criterion.” 216 The determination of legal responsibility for a
wrongful act will depend heavily on the specificities of the case in the
conduct of the operation: “In the absence of formal arrangements between the United Nations and the State or States providing troops, responsibility would be determined in each and every case according to
the degree of effective control exercised by either party.”217 In this
manner any simplified interpretation of the rules on international responsibility, which is often utilised as a tool providing for a corporate
veil that divests states of their responsibility, should be avoided. This
might lead to overlooking the real violators of international law, particularly states or groups of states hiding behind IOs, and to watering
down established standards or limiting judicial enforcement of the
law.218
A necessary next step in the implementation of the international responsibility for wrongful acts (of states or IOs) is the invocation of
such responsibility, which is, according to the existing and currently
drafted219 rules on international responsibility, the discretionary right of
states and IOs. The practice of peacekeeping operations paved the way,
however, for the factual implementation of responsibility rules that, ir216
217
218
219
Second Report on Responsibility of International Organizations by Mr.
Giorgio Gaja, Special Rapporteur, Doc. A/CN.4/541 of 2 April 2004, para.
41.
Report of the Secretary-General, Administrative and Budgetary Aspects of
the Financing of the United Nations Peacekeeping Operations, Doc.
A/51/389 of 20 September 1996, para. 18.
See Behrami and Behrami v. France, see note 209, particularly paras 121151, where the Court, for the purpose of determining its (non)jurisdiction,
failed to distinguish between acts attributable to the UN (UNMIK) and
KFOR, due to reliance on S/RES/1244 (1999) of 10 June 1999, jointly providing mandate for their action. The main fault of the ECtHR reasoning
was the neglect of its own recognition that “it [is] essential to recall … that
the necessary … donation of troops by willing TCNs [troop contributing
nations] means that, in practice, those TCNs retain some authority over
those troops” (para. 138). This authority is by default operation - and situation-specific which the Court did not take sufficiently into consideration;
furthermore, classical peacekeeping by default included stricter central
command under the UN auspices than peace operations of the mandated
coalitions and alliances as in the case of KFOR.
For ILC Draft Articles on State Responsibility, see note 178, article 42; for
Draft Articles on IO Responsibility, see Sixth Report on Responsibility of
International Organizations, Doc. A/CN.4/597 of 1 April 2008, Draft article 46.
Kovač, Private Military Companies in UN Peacekeeping
363
respective of whether the responsibility for the breach of an obligation
is incurred by the contributing state or the UN, will be followed by the
obligation of the respective entity to make restitution, provide for compensation or give satisfaction for damage or injury caused.220 There is,
in fact a general principle of liability law of IOs, taken from the widespread compensation practice of military operations of IOs, including
both the combat-related and ordinary operational activities of UN
forces,221 that there exists a principal obligation to compensate harmful
acts attributable to the IO. Therefore, the “refusal to pay compensation
to individuals unlawfully damaged through negligence or intent would
… constitute a violation of international law.”222 A specific characteristic of this responsibility is that it is limited: assuming that a peacekeeping operation on the territory of a receiving state is carried out for its
benefit, this state is consenting to bear, at least in part, the consequences
of the organisation’s presence.223 The limitation is dropped, however, if
damage is caused by gross negligence or wilful misconduct. However,
the organisation, although assuming the responsibility vis-à-vis the
third party, retains the right to seek reimbursement from the troopcontributing state.224 The responsibility and liability are also dropped
when a breach satisfies the criteria of operational necessity.225
To conclude, the first scenario of PMC peacekeeping inclusion raises
similar issues to those of traditional national contingent involvement in
220
221
222
223
224
225
Draft Articles on IO Responsibility, see note 179, arts 38, 39 and 40 and
arts 35, 36 and 37 of Draft Articles on State Responsibility, see note 178.
See note 217 and also Doc. A/51/903 (1997). See also A/RES/52/247 of 26
June 1998 Third-party Liability: Temporal and Financial Limitations. The
issue is touched upon in detail in the next part.
Schmalenbach, see note 174, 51.
D. Shraga, “UN Peace Keeping Operations: Applicability of International
Humanitarian Law and Responsibility for Operations–related Damage”,
AJIL 94 (200), 406 et seq. (410). These limitations are also temporal and financial.
See Model Contribution Agreement, see note 103: “The United Nations
will be responsible for dealing with any claims by third parties where the
loss of or damage to their property, or death or personal injury, was caused
by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this Agreement. However, if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government,
the Government will be liable for such claims”.
See below.
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UN peacekeeping. When determining responsibility for the wrongful
acts committed by these peacekeepers, the principle of effective control
of the force at the time of the commission of the act will be invoked.
Bearing in mind, however, that the scenario assumes a prevailing role of
the PMC sending state in the process of the provision of the PMC to
the UN, it is plausible to expect that their involvement would be subject to certain commitments by this state with regard to assurances for
their lawful conduct. The closer these troops would be to the status of
the sending state’s army or forces incorporated into that army, the more
extensive its responsibilities would be, subject to its agreements with
the UN. In accordance with the established practice for regular peacekeeping the seconded PMC peacekeepers would be subject to the criminal jurisdiction of the sending state, which would present an additional
obligation as the state had to ensure to prosecute the violators.
3. PMC Hired for Peacekeeping Directly by the UN
The scenario for a direct hiring of a PMC by the UN would result in
the shift of attribution for their acts to the UN in the majority of situations and this would, to a large degree, incur its responsibility. This
would not, though, completely remove the responsibility of states
linked to the PMC (states of registration or origin). The problems
posed by the scenario are, however, connected to the obscurity of
measures that arise from the wrongful conduct, which is, in traditional
peacekeeping dealt with through the obligations of the sending state to
assure the prosecution of individual perpetrators.
Subject to the modalities of the contractual relationship established
between the PMC and the UN, the established practice with regular national contingent peacekeepers and the need for operational control
over the contractor’s conduct, the PMC would need to be integrated
into the structures of the UN in order to achieve its alignment with
other segments of the operation. They would, for this reason, be considered agents through which the organisation acts.226 Taking into consideration that they would perform identical functions compared to and
alongside national contingents amounting to the exercise of governmental authority (as seen above), their acts would be attributable to the
public authority, which would exercise effective control over their conduct. The assumption that the UN, as the entity that hires the PMC,
226
Article 4, Draft Articles on IO Responsibility, see note 179.
Kovač, Private Military Companies in UN Peacekeeping
365
would wish to maintain effective and operational control over the PMC
is reasonable for the following two reasons: the first is entirely pragmatic and stems from the fact that the PMC is directly contracted by
the UN and therefore answers solely to the organisation, without the
state link as in the case of a national peacekeeping contingent.227 As
such, it gives the UN some potential autonomy, which avoids the need
for parallel command. The second reason is also pragmatic, but rests, to
a large extent, on the essence of legal reasoning and international responsibility rules. Since the UN can be held responsible for acts that
violate its international obligations, it would presumably wish to control its acts in order to avoid violations for which it can be held liable,
especially as this liability can have serious financial consequences. Similarly to regular peacekeepers this functional requirement for the treatment of potential peacekeeping PMCs and their staff is detached from
the current practice relating to private contractors in UN peace operations.228 The analogy is, however, superfluous as they currently perform
inherently different functions, falling short of the exercise of governmental authority.
The next issue raised with regard to the responsibility of the UN for
the conduct of the hired peacekeeping PMC, is the applicability of the
respective law. Previous sections indicated a potentially broad body of
international law that places the UN under an obligation, which may be
owed to one or more IOs, states or to the international community as a
whole,229 but also for the breach of rights that “accrue to any person or
entity other than a State or an IO,”230 that undeniably covers the area of
breaches committed by peacekeeping forces and affecting individuals.231
The previous parts pointed to potential problems that might stem
from the fact that the UN is not a party to most international agree227
228
229
230
231
It is at this stage less important, whether such an option is currently feasible or politically acceptable, but its occurrence would for certain give an
additional leverage to the autonomy of the organization.
These are neither fully integrated in the operational structures of the UN
operations, they are not subject to the internal disciplinary system of the
UN, nor do they enjoy the same functional privileges and immunities from
the jurisdiction of the receiving state. See above.
Draft Articles on IO Responsibility, see note 179, article 36 (1).
Ibid., article 36 (2).
See ILC Commentary on article 36 on IO Responsibility. The ILC stated
in the Commentary that the consequences of these breaches are not covered by the Part II of the Draft Articles, although they are arguably similar
to them. See note 179, para. 344.
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ments and conventions that are usually a source of substantive international human rights and humanitarian law obligations. In regular peacekeeping this problem is avoided (or at least minimized) due to the fact
that military personnel remains subject to their national rules, which
almost at all times include obligations under basic international human
rights and IHL instruments. In this case, the PMC hiring scenario calls
for the identification of obligations applicable directly to the UN, for
which resorting to customary rules is required, as already indicated
above. In addition to these, the agreements of the UN with the receiving state, the contributing states or IOs might help in pointing to the
applicable obligations to which the UN would be bound. These are
then transformed into the internal rules and regulations of the organisation, which by themselves do not provide the source of international
obligations, but have a direct legal effect internally, in accordance with
the internal legal system of the organisation. Considering the principle
of the inferiority of rules of the organisation to its international obligations,232 the identification of the latter is crucial.
The contractual relation between the PMC and the IO is therefore
only of secondary importance, defining their mutual obligations, but
not inflicting on the organisation additional substantive international
obligations. It has a significant value, however, as it aids the organisation in meeting its international obligations by establishing the set of
rules which apply mutually between the two contractual parties, obliging the PMC to exercise its conduct in accordance with the provisions
of the contract, governed by private law, which should contain reference to internal organisational rules, but also to international obligations by which the UN is bound. Furthermore, the additional value of
the contract in relation to the responsibility issues is its indicative role
of the positive measures adopted by the organisation in order to meet
its international obligations. As seen above, international responsibility
may be incurred for action, but also omission of action. The illegality of
non-action is particularly relevant when it could prevent the occurrence
of violations of international obligations or at least respond to the
breach of obligations, but has failed to do so. To a certain extent, this
232
Article 35 of the Draft Articles on IO Responsibility, see note 179, which
currently reads: “The responsible international organization may not rely
on its rules as justification for failure to comply with its obligations under
this Part,” this being “without prejudice to the applicability of the rules of
an international organization in respect of the responsibility of the organization towards its Member States and organizations”.
Kovač, Private Military Companies in UN Peacekeeping
367
can be inferred from the general rules on the responsibility of IOs,233
and is most evident in cases of a repetition of the breach. The assurance
for cessation is not a precondition for the positive obligation to arise, as
what is actually sought is compliance with primary rules that were
breached.234 However, the assurances and guarantees of non-repetition
may be regarded as a “new obligation that arises as a consequence of the
wrongful act, which signals the risk of future violations.”235
Clear-cut articulation of what exactly due diligence means is, again,
case specific, depending on circumstances236 and on the level of applicable norms,237 but should not be neglected in connection with private
contractors, simply because “the State [or any other public entity, such
as the IO] cannot absolve itself from responsibility by delegating its obligations to private bodies and individuals.”238 After acknowledging
that the decision to hire a contractor would require the UN to assure
the lawful conduct of the PMC or at least to strive in this direction, the
question remains whether similar obligations are to be expected from
the state linked to this PMC. What is at stake here is the potential international responsibility of the state in which the PMC, which has violated existing international obligations through its conduct, is registered
(the term “exporting state” is usually used). For the responsibility to be
incurred in this scenario, it should be established that the duties of this
state, for example the respect for human rights or provisions of IHL,
apply extraterritorially.239 Furthermore, the state must be able to exercise its authority over the private actor, which is extremely difficult
when this actor is active abroad. Although the “exporting state” would
be under an obligation to prevent an unlawful action of the PMC, in
233
234
235
236
237
238
239
Ibid., article 33, Cessation and non-repetition: “The international organization responsible for the internationally wrongful act is under an obligation:
(a) To cease that act, if it is continuing; (b) To offer appropriate assurances
and guarantees of non-repetition, if circumstances so require”.
Commentary on article 33, see note 179, para. 344, page 202 sub para. 2-4.
Ibid.
A.V. Freeman, “Responsibility of States for Unlawful Acts of Their Armed
Forces”, RdC 88 (1955), 267 et seq. (278).
Lehnardt, see note 199, 18.
ECtHR, Costello Roberts v. UK, Judgement, 23 February 1993, No.
13134/87, para. 27.
Lehnardt, see note 199, referring to the UK Court of Appeal, Al-Skeini and
others v. Secretary of State for Defence, Judgment, 21 December 2005.
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particular if directed towards the territorial integrity of another state,240
it is rather unlikely that such an obligation would exist for a PMC integrated into a UN peacekeeping force, acting under a Chapter VII mandate of the Security Council. While the comprehension of the due diligence principle, which would compel the states to play a role of a regulating authority that would strictly supervise and monitor the conduct
of PMCs registered with them for their activity abroad, is desirable and
possible in theory, it is “important to note that to date no court has
found a state to be responsible for failing to control its companies or
nationals abroad [for their private conduct] under such circumstances.”241
Since the UN would evidently be held responsible for wrongful acts
of the hired peacekeeping-PMCs in most cases, a more detailed look at
the principles for the invocation of such responsibility seems necessary.
According to the proposed IO responsibility rules this can be invoked
by the injured state (or IO)242 or even any other non-injured state (or
an IO), provided that the obligation breached by the organisation is
owed to the international community as a whole.243 Such invocation
may be accompanied by the claim for cessation of such acts and the obligation to provide reparations.244
In addition to these theoretical considerations and similar to the
PMC secondment scenario, the established peacekeeping practice
would also provide the basis for third-party liability claims against the
240
241
242
243
244
The Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the Charter
of the UN, A/RES/2625 (XXV) of 24 October 1970.
Lehnardt, see note 199, 19.
Article 46, Articles on IO Responsibility, see note 179.
Article 51 (2) and (3), ibid.
Article 51 (4), ibid. This offers, at least in theory, a few possible scenarios
for the invocation of an organisation’s responsibility for breaches of law
caused by the PMC. A classic example would be the invocation by the host
state for peacekeeping-related damages of its property or the gross violations of human rights or provisions of SOFAs by the PMC-peacekeeping
contingent. The organisation could be held responsible by other members
of the international community, such as states or IOs not directly involved
or injured by the acts of the UN hired PMC, in the case of the breach of
obligations the organization owes to the international community as a
whole. A PMC (or even a “normal” national peacekeeping contingent) systematically violating basic human right or IHL would (although unlikely)
be an example of such conduct.
Kovač, Private Military Companies in UN Peacekeeping
369
UN, offering a real-time tool for an injured party to obtain compensation for damages. If the assumption is that the UN General Assembly
endorsed provisions for limited liability of conduct-related and ordinary operational activities of UN forces245 are applicable mutatis mutandis, the question is to what extent they overlap or are in contradiction with the responsibility principles just quoted. Limited or shared liability draws its essence from the consent given by the receiving state
for the peacekeeping presence. The limitation is not applicable for damage caused by gross negligence or wilful misconduct, for which the UN
would be responsible in that case. However, it is equally inapplicable in
the way that it divests the UN of the responsibility in the cases of operational necessity, a concept developed in the practice of peacekeeping
by analogy to military necessity but wider in scope.246 In this case the
UN incurs no liability for damage caused “from the necessary actions
taken by a peacekeeping force in the course of carrying out its operations in pursuance of its mandate,” if such action satisfies the cumulative conditions: the force commander holding the discretionary power
to decide on the operational necessity of any given measure, must be
convinced that such necessity exists; the measure itself must be strictly
necessary and not just a matter of mere convenience or expediency; it
must be a part of an overarching operational plan and not the result of a
rash individual action; and the damage inflicted must be proportional to
what is strictly necessary to achieve the operational goal.247
The last few points touch upon the issue of fora, either from the perspective of competence to adjudicate claims settlement involving thirdparties and the UN, or from the perspective of assuring that violators,
who act on behalf of the UN, get punished for breaches they have
committed. The dispute settlement practice of peacekeeping operations
undertaken so far would once again prove to offer a solid background
in the case of PMC peacekeeping integration, provided that they are
properly incorporated in the relationship between the UN and the receiving state (through SOFAs liability clauses) but also included in the
terms of reference of the local UN claims review boards. These local
245
246
247
See Report note 217 and Report note 221.
Military necessity is limited to combat operations and is governed by the
laws of war. The concepts are, however, conceptually similar as they serve
“as an exemption from liability, or a legitimization of an act that would
otherwise be considered unlawful”, Doc. A/51/389, see note 217, para. 13,
footnote 5.
Ibid., 14; see also Schmalenbach, see note 174, 41-42.
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administrative organs of the UN, operating in the country and reporting to the Secretary-General,248 would probably not differ between the
two scenarios of PMC inclusion, although they would need to take into
consideration the differences between the modalities of the two.
The problem of jurisdiction over and the obligation to prosecute individual PMC peacekeepers directly hired by the UN would, however,
present a bone of contention that can hardly be resolved under the current customary or conventional law rules relating to peacekeeping. The
issue of individual criminal responsibility of the PMC peacekeeper is a
topic of its own, already partially addressed in the IHL and IHRL sections above, and goes beyond the scope of this research. It is, however,
important to touch upon this in the light of responsibility issues as the
obligation of perpetrators for wrongful acts presents one of the most
crucial obligations of public authorities (usually states) under international law giving effect to reparation measures. The problem, of course,
derives from the fact that in the scenario in which the PMC is hired directly by the UN, the concept of the sending state is substituted by the
sending international organisation, which, under current circumstances,
is unable to guarantee the exercise of criminal jurisdiction over the individuals involved in its operations. The rights and duties of the UN, as
well as its functions and structures, are not identical to those of a
state.249 However, the peacekeeping record of the UN confirms that the
organisation can be empowered to perform certain governmental functions. It is consequently under an obligation to perform these functions
in accordance with its obligations arising from such exercise, including
the assurance of the implementation of disciplinary, prosecution and
penal measures for individual perpetrators. Inferring from this, the hiring of the PMC by the UN scenario would require the determination of
procedures and measures that would secure the effective implementation of justice for these military personnel, particularly determining jurisdiction, but preferably also clarifying the law that would serve as a
basis for such measures. The primary responsibility for this would lie in
248
249
The UN has undertaken (in SOFAs, based on Section 29 of the Privileges
and Immunities Convention) to settle private-law claims by means of a
standing claims commission. Although such standing claims commission
has never been created, UN-based claims review boards were established,
instead, in almost every peacekeeping operation; Shraga, see note 223.
Or as the ICJ stated in 1949, see note 44, 179, when recognising the international personality of the UN: “That is not the same thing as saying that it
is a State, which it certainly is not, or that its legal personality and rights
and duties are the same as those of a State”.
Kovač, Private Military Companies in UN Peacekeeping
371
the hands of the UN as the main entity being responsible for the conduct of such a force.
It is unclear how the UN would tackle this issue, but it would, due
to reasons similar to those that present the basis for functional immunities of the UN in receiving states, presumably wish to avoid the primary jurisdictional role of the receiving state.250 The alternative would
require the consent of the receiving state and it should be stipulated in
the operation’s SOFA or in an agreement with any further entity affected by it, including potentially the PMC, the PMC exporting state or
states of which the PMC personnel are nationals.251
Some possible options, however, present themselves. A pragmatic
solution would be to have recourse to the disciplinary and criminal
procedures of one of the contributing states taking part in the operation
at stake. Although this would require a special agreement between the
UN and the state willing to exercise such jurisdiction, the pragmatism
of the solution lies in the use of a judicial system already in place. Another possibility is for the UN to resort either to the existing fora of international criminal justice such as the ICC or to the internal justiceadministration procedures of the UN. Both these options would first
require the modification and adaptation of the existing procedures and
institutional mechanisms. The ICC option would preferably refer for
its jurisdiction to article 13 (b) of the Court’s statute. But it would be
relatively narrow in scope, covering only the most serious international
crimes. The use of internal UN justice mechanisms such as the claims
tribunals or administrative tribunals is, however, even more limited as
these are not organs of criminal prosecution and lack adequate procedures, competence and resources. As the internal structures of the organisation are subject only to gradual and non-revolutionary change
which is, if anything, very likely to take longer than the procedures to
mandate PMC peacekeepers, it is plausible to expect that the applied solution would be ad-hoc, mixing elements of the established national
procedures with the indispensible elements of international criminal
justice. The pressing urge to deal with such issues would, however, aid
in further developing the mechanisms of the latter, which might subse250
251
One must not forget that the role of the receiving state is not trivial as there
exists a possibility for its exercise of jurisdiction under the contemporary
system, subject to the concept of the contributing state and the UN, especially in off-duty issues.
The latter case especially indicates the additional potential body of law that
would be applicable, namely the law of consular protection.
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quently lead to the development of effective disciplinary and criminal
procedures applicable to all subjects involved in international peacekeeping.
V. Conclusion
This article has explored the most pertinent legal issues that would arise
from the possible inclusion of PMCs as a military component of UN
peacekeeping. The core of the research was a detailed outline of the legal framework applicable to PMC peacekeeping and the exploration of
issues of international responsibility of related international law subjects. This exercise was conducted on the two most likely scenarios to
provide a basis for PMC inclusion in these operations – the secondment
of a PMC by a government or a direct hiring of the company by the
UN – and it relied on the established peacekeeping practice as the fundamental source of legal principles and rules applied in the analysis.
Considering that the situations dealt with were without a clear-cut legal
precedent, the use of these analogies was the only way to develop the
topic, notwithstanding the need for occasional presumptions and inventions. In particular the following notable issues require attention or restatement:
First, one may conclude that there exists a certain detachment between the current use and status of private contractors in UN operations and the modalities which would be required for the implementation of the two hypothetical scenarios presented, namely the utilisation
of PMCs as security-providing and combat forces under UN control
and command. Subject to the functional necessity test to determine the
special status, rights and duties of international staff incorporated in
UN operations, the peacekeeping PMCs would need to be included in
the overall legal regime applicable to the UN forces on the territory of
the receiving state. Current practice relating to private contractors, including private military and security companies, is reluctant to handle
them along the same lines as other personnel included in peacekeeping
operations. For this reason one is also awaiting precedent cases and further practice of international organisations and states, particularly of receiving states.
Second, both core parts of the analysis indicated that there currently
exists a firmer case for the implementation of the first scenario that assumes an active role of states as providers of PMC peacekeepers as seconded entities, similar to that of the national peacekeeping contingents.
Kovač, Private Military Companies in UN Peacekeeping
373
This conclusion was expected, taking into consideration the analogy of
the approach with established peacekeeping practice. Furthermore, the
international conventional rules, which nowadays are numerous compared to other sources of international law, are set down primarily to
regulate the conduct of states rather than IOs. The fact that the UN is
not a party, for example, to some major IHL and IHRL conventions
renders certain aspects of their applicability difficult and unclear. Since
the second scenario assumes the primary role and responsibility of the
UN and recognises that obligations of states are fewer (or at least less
clear, as with the due diligence concept) its precise conceptualisation
would require clearer primary (i.e. substantive) rules, as well as defined
secondary (i.e. responsibility) rules. For these reasons any further clarification and implementation of the second scenario would depend on a
more precise investigation of current practice, but even more on the development of further rules, either positive or through practice.
The third and final concluding comment deals with the assessment
of the rationale of the international responsibility debate. This work has
focused primarily on responsibility issues arising from PMC peacekeeping inclusion that concern states and IOs, and devoted less attention to issues of individual international criminal responsibility. Determining which international legal subject bears responsibility for wrongful acts committed by its agents is clearly relevant. This has therefore
been analysed in detail, coming to the conclusion that every such analysis must take into consideration the specificities of the inspected situation, such as the determination of the effective control of the PMC at
the time of the execution of a wrongful act and the obligations of international subjects connected to these PMCs (UN as a hiring entity, states
as entities sending, steering, registering, regulating or even hosting such
companies) with the enforcement of applicable rules. Notwithstanding
this, one should develop this approach and recognise that, in its essence,
international wrongful acts are not committed by public authorities, but
individuals. It is therefore important to emphasise the issue of individual criminal responsibility of PMC peacekeepers (and some day potentially also the corporate responsibility of PMCs) for wrongful acts
committed during the performance of their duties (and also off-duty),
which for practical reasons of finding and sanctioning the violators of
the established norms plays a crucial supplementary role to the issues of
international criminal responsibility of states and IOs. The application
of principles of international criminal law, combined with IHL and
IHRL enforcement mechanisms and procedures, leading to the acknowledgement of the concept of international criminal responsibility,
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should therefore play a constituent part in the analyses of responsibility
issues connected with the possible inclusion of PMCs in the UN or
other forms of international peacekeeping. From the analysis above one
may, again, infer that the current international legal framework and
practice favour the option of PMC state-secondment to that of direct
hiring of a PMC by the UN.
The latter option will, if ever applied, require a progressive development of enforcement rules relating to individual international criminal responsibility for wrongful acts.
The Relation between International Law, Islamic
Law and Constitutional Law of the Islamic
Republic of Iran – A Multilayer System of
Conflict?
Ramin Moschtaghi
I.
Introduction
II. The Terminology of Islamic Law
III. International Law and Islamic afari Law in the Iranian Constitution
1. Islamic afari Law in the Iranian Legal System
2. The Rank of International Law in the Iranian Legal System
a.
International Treaty Law
b.
Rules of Customary International Law
IV. The Conflict between International Law and Islamic ( afari) Law
1. The Conflict from the Perspective of Islamic Law
a.
The siyar as the Islamic “External Law” and an Overview of its
Meaning
b.
The Subjects of the siyar and the Structural Differences between
the siyar and modern International Law
c.
Evolution of the Islamic “External Law”?
d.
Islamic Treaty Law as a Point of Contact between Islamic Law
and International Law
aa.
The Treaty of Protection (muw da'a) as a Facility to suspend ihad and its Prerequisites
bb.
Modern International Law as a Form of muw da'a?
2. The Conflict between the two Systems from the Perspective of International Law
a.
Islamic afari Law
b.
The Relation between Domestic Law and International Law
from an International Law Perspective
c.
Options for Islamic States to Avoid International Obligations
Inconsistent with Islamic Law
aa.
Reservations as an Instrument to Prevent Conflict between International Obligations and Islamic Law
A. von Bogdandy and R. Wolfrum, (eds.),
Max Planck Yearbook of United Nations Law, Volume 13, 2009, p. 375-420.
© 2009 Koninklijke Brill N.V. Printed in The Netherlands.
Max Planck UNYB 13 (2009)
376
bb.
V.
The Solution of Conflicts between Treaty Obligations
and Islamic Law in Case no Explicit Reservations have
been raised
Conclusion
I. Introduction
Whether studying reports of United Nations Treaty Bodies and Special
Rapporteurs1 or publications of various NGOs in the human rights sector,2 one can hardly fail to notice the very unsatisfactory human rights
record of the Islamic Republic of Iran (I.R. Iran). Execution of perpetrators who were minors when committing crimes,3 applications of
cruel and inhuman punishments like stoning and flogging and multiple
forms of discriminations of religious minorities4 are prominent exam1
2
3
4
For instance the report of Abdelfattah Amor, Special Rapporteur on Religious Intolerance of the former Commission on Human Rights of his visit
to the I.R. Iran, Doc. E/CN.4/1996/95/Add. 2 of 9 February 1996; the one
of Maurice Danby Copithorne, Special Representative of the former Commission on Human Rights on the Situation of Human Rights in the I.R.
Iran, Human Rights Questions: Human Rights Situations and Reports of
Special Rapporteurs and Representatives, Situation of Human Rights in the
I.R. Iran, Doc. A/52/472 of 15 October 1997 and Doc. E/CN.4/2002/42 of
16 January 2002; Committee on the Rights of the Child, e.g. Concluding
Observations, I.R. Iran of 31 March 2005, Doc. CRC/C/15/Add.254, para.
22; Human Rights Committee, e.g. Concluding Observations of 3 August
1993, Doc. CCPR/C/79/Add.25, para. 8 et seq.; Committee on Economic,
Social and Cultural Rights, e.g. Concluding Observations of 9 June 1993,
Doc. E/C.12/1993/7, para. 5 et seq.; Committee on the Elimination of Racial Discrimination, Concluding Observations of 10 December 2003, Doc.
CERD/C/63/CO/6 para. 14.
For instance Amnesty International, Iran Human Rights Abuses against
the Kurdish Minority, 2008; Human Rights Watch, Guardians of Thought –
Limits on Freedom of Expression in Iran, 1993; Human Rights Watch,
Power Versus Choice, Vol. 8, No. 1, 1996; Human Rights Watch, Religious
and Ethnic Minorities – Discrimination in Law and Practice, Vol. 9 No. 7
(E), September 1997; Human Rights Watch, World Report 2009.
Human Rights Watch, The Last Holdouts – Ending the Juvenile Death
Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen, September
2008.
Amnesty International, Iran Human Rights Abuses against the Kurdish
Minority, 2008; Abdelfattah Amor, see note 1, Add. 2, para. 63;
<http://www.hrw.org/english/docs/2007/09/20/iran16906.htm>
Human
Moschtaghi, A Multilayer System of Conflict?
377
ples of breaches of internationally recognised human rights standards
committed by the authorities of the I.R. Iran. Nevertheless, the I.R.
Iran is party to most major international human rights treaties, in particular the International Convention on the Elimination of All Forms
of Racial Discrimination,5 the International Covenant on Civil and Political Rights,6 the International Covenant on Economic, Social and
Cultural Rights,7 the Convention on the Rights of the Child8 and the
Convention against Discrimination in Education.9 With the sole exception of the Convention on the Rights of the Child all of these human
rights instruments have been signed and ratified without any reservation. The Convention on the Rights of the Child is also the only major
human rights treaty Iran has joined since the establishment of the Islamic Republic and it has been signed and ratified with the reservation
that it will not apply any provision of the Convention which is incompatible with Islamic law.10 Moreover, Iranian officials regularly try to
5
6
7
8
9
10
Rights Watch; R.S. Moschtaghi, Die menschenrechtlichen Situation sunnitischer Kurden in der Islamischen Republik Iran – Probleme der Verwirklichung der Menschenrechte in einer stark religiös geprägten Rechtsordnung
im Spannungsverhältnis zwischen Völkerrecht, iranischem Verfassungsrecht
und schiitischem religiösem Recht, 2009, to be published in Beiträge zum
ausländischen öffentlichen Recht und Völkerrecht.
International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, entry into force 4 January 1969, UNTS
Vol. 660, 195 et seq. Signature by the then Iranian Empire, 8 March 1967
ratification 29 August 1968. Reservations were neither made upon signature nor ratification.
International Covenant on Civil and Political Rights of 19 December 1966,
entry into force 23 March 1976, UNTS Vol. 999, 171 et seq. Signature by
the then Iranian Empire 4 April 1968 and ratification 24 June 1975. Reservations were neither made upon signature nor ratification.
International Covenant on Economic, Social and Cultural Rights of 19 December 1966, entry into force 3 January 1976, UNTS Vol. 993, 3 et seq. Signature by the then Iranian Empire 4 April 1968 and ratification 24 June
1975. Reservations were neither made upon signature nor ratification.
Convention on the Rights of the Child of 20 November 1989, entry into
force 2 September 1990, ILM 28 (1989), 1457 et seq. Signature by the I.R.
Iran 5 September 1991, ratification 13 July 1994.
Convention against Discrimination in Education of 14 December 1960, entry into force 22 May 1962, UNTS Vol. 429, 93 et seq. The then Iranian
Empire has ratified the Convention on 17 July 1968.
The I.R. Iran made the following reservations upon signature: “The Islamic
Republic of Iran is making reservation to the articles and provisions which
378
Max Planck UNYB 13 (2009)
justify breaches of internationally recognised human rights standards
by references to Islamic law.11 By the term Islamic law the I.R. Iran exclusively refers to Islamic law in the interpretation of the Shiite afari
school of law,12 the religion of the majority of the Iranian people and
the official creed of the Iranian state.13
These observations show that at least in the interpretation prevailing
within the administration of the I.R. Iran, Islamic law and international
law, in particular human rights law, are inconsistent in various aspects.
In order to answer the question whether the I.R. Iran may invoke Islamic law to successfully justify breaches of international law, this article analyses the relationship between Islamic law and international law
both from the perspective of international law and Iranian domestic
law. As will be demonstrated, the latter establishes a kind of multilayer
system between Islamic law, domestic law and international law.
The first section will provide a short overview of the Islamic legal
terminology. The second one assesses the significance and rank of Islamic law and international law respectively according to the Iranian legal system. In the final section the conflict between international law on
the one hand and Islamic law and the Iranian Constitution on the other
will be examined including possible options provided by the different
systems to bridge the conflict. It should be mentioned that due to the
11
12
13
may be contrary to the Islamic Sharî'a, and preserves the right to make
such particular declaration, upon its ratification.” Upon ratification: “The
Government of the Islamic Republic of Iran reserves the right not to apply
any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.”
Cf. for instance the Iranian delegate Khosroshahi before the Human Rights
Committee, Summary Record of the 364th Mtg, Doc. CCPR/C/SR. 364 of
19 July 1982, 3 para. 4; cf. Ayatollah Khomeini, quoted in: Farhang Rajaee,
Islamic Values and World View – Khomeini on Man, the State and International Politics, 1983, 81.
The afari school of law is named after its founding father Imam ’far asS diq. Today the afari school of law is the largest Shiite school of Islamic
law. It is also referred to as the im miya or twelver Schia since its followers
recognise a genealogic line of twelve legitimate successors to the prophet
Mohammad called Im ms. For details on the afari school of law refer to
M. Momen, An Introduction to Schi'i Islam, 1985.
The official religion of Iran is Islam and the Twelver a'fari school, and
this principle will remain eternally immutable. Article 12 of the Iranian
Constitution (IC) of 15 November 1979, including the amendments of 28
July 1989, Official Gazette (ruzn me-ye rasmi) No. 12957, in: A.P.
Blaustein (ed.), Constitutions of the Countries of the World, 2006.
Moschtaghi, A Multilayer System of Conflict?
379
complexity of the topics and restrictions of space, the following analysis
will concentrate on structural discrepancies of the different legal systems. For discussions on individual conflicts between Islamic law and
international law in detail, the reader is kindly asked to refer to the
multitude of publications focusing on these special topics.14
II. The Terminology of Islamic Law
The expression “Islamic law” is generally applied to refer to the whole
system of law connected to Islam. It therefore is used as a generic term
encompassing both the primary sources of law, which are also referred
to as the šarî'a, and the rules which are derived from the šarî'a by Islamic legal science (feqh/fiqh).15
- šarî'a
The Arabic term šarî'a in the religious context refers to the way God
has stipulated for men which was heralded by his messenger, the
prophet Mohammad.16 The šarî'a is composed of the two primary
sources, Koran und sunna. The first is the holy book of Islamic faith
whereas the second term refers to traditions of the life of Mohammad in
his function as the messenger of God, i.e. to actions, sayings, implicit
approvals or omissions attributed to him. In his function as prophet,
Mohammad is considered impeccable by Islamic doctrine. The šarî'a is
14
15
16
For instance on the discrepancies between the prohibition of the use of
force in international law and the concept of ihad in Islamic law, A.E.
Mayer, “War and Peace in the Islamic Tradition and International Law”, in:
J. Kelsay/ J.T. Johnson (eds), Just War and Jihad, 1991, 195 et seq.; C.A.
Ford, “Siyar-ization and Its Discontents: International Law and Islam’s
Constitutional Crisis”, Tex. L. Rev. 30 (1995), 499 et seq.; I. Marboe,
“Völkerrecht und Islamisches Recht: Unvereinbare Gegensätze?”, in: I.
Marboe (ed.), 26. Österreichischer Völkerrechtstag 2001, Zwangsarbeiter
und Restitution – Streitbeilegungsverfahren im internationalen Wirtschaftsrecht – Dialog der Zivilisationen – Staatenverantwortlichkeit, 2002, 88 et
seq.; D.F. R. Pohl, Islam und Friedensvölkerrechtsordnung, 1988.
Irshad Abdal-Haqq, in: H.M. Ramadan (ed.), Understanding Islamic Law,
2006, 3.
Adel El Baradie, Gottes-Recht und Menschen-Recht, 1983, 22; Irshad Abdal-Haqq, see note 15, 4; in detail on the history of the term šarî'a, T. Nagel, Das islamische Recht, 2001, 4 et seq.
Max Planck UNYB 13 (2009)
380
perceived as the divine source of all principles of Islamic law. However,
it encompasses not only legal norms, it also regulates all aspects of religion and is regarded as the binding source of Islamic belief including religious rituals and ethics.17
- feqh/fiqh
The Arabic term feqh or fiqh in Persian is translated by “to comprehend” and “to understand.”18 It refers to Islamic legal science.19 Due to
the character of the šarî'a as God’s law and the codification of his will,
its origin and validity cannot be questioned by Islamic legal science.
Therefore feqh exclusively focuses on discovering the will of God as
expressed in the šarî'a and applying it to individual cases whether real
or hypothetical.20 The objective of Islamic legal science is to interpret
the will of God for the assessment of human behaviour.21 Feqh is therefore described as the knowledge of the legal norms for individual cases,
derived from the sources of law.22 Since the šarî'a, according to Islamic
doctrine, has to be regarded as a comprehensive legal system, which is,
however, in need of interpretation and concretisation, the object of feqh
is to assess and regulate all aspects of life on the basis of the šarî'a.23
17
18
19
20
21
22
23
For details of the term šarî'a please refer to Irshad Abdal-Haqq, see note
15, 4; Adel El Baradie, see note 16, 22; Nagel, see note 16, 4 et seq. Regarding doctrinal differences between Shiite and Sunni Islam concerning the
šarî'a and its content, Momen, see note 12, 172 et seq.; H. Halm, Der
schiitische Islam, 1994; cf. H. Modaressi Tab tab ’i, An Introduction to Sh ’
Law, 1984, 2 et seq.; R. Cleave, Inevitable Doubt – Two Theories of Sh ’i
Jurisprudence, 2000, 1; M. H shemi, Hoquq-e as si-ye omhuri-ye esl miye ir n, Vol. I, 1382 (2002), 108; H. Löschner, Die dogmatischen Grundlagen des Schiitischen Rechts, 1971, 86 et seq.; W. Buchta, Die iranische Schia
und die islamische Einheit 1979-1996, 1997, 29.
In detail Nagel, see note 16, 6 et seq.; cf. Irshad Abdal-Haqq, see note 15, 6.
Adel El Baradie, see note 16, 43; N.J. Coulson, A History of Islamic Law,
1964, 75; Löschner, see note 17, 27; Said Mahmoudi, “The Sharî'a in the
New Afghan Constitution”, ZaöRV 64 (2004), 867 et seq., (867).
Coulson, see note 19, 75 et seq.; cf. Irshad Abdal-Haqq, see note 15, 5; Nagel, see note 16, 6 et seq.; M. Asad, The Principles of State and Government
in Islam, 1961, 11 et seq.; cf. F. Broschk, Gottes Gesetz zwischen Elfenbeinturm und Außenpolitik – Schiitisches Völkerrecht in der Islamischen Republik Iran, 2008, 18.
Nagel, see note 16, 9.
Löschner, see note 17, 27; cf. Adel El Baradie, see note 16, 43.
Irshad Abdal-Haqq, see note 15, 5.
Moschtaghi, A Multilayer System of Conflict?
381
Hence, there is no possibility of feqh beyond the šarî'a. However, both
terms are interrelated since the šarî'a is depending on feqh to facilitate
an assessment of concrete, external human actions.24 A decisive difference is that whereas the rules and principles of the šarî'a are perceived
as being impeccable, eternal and resistant to change, the results and
regulations reached by feqh may be modified due to the passing of time
and change of circumstances.25
A fatv is a legal opinion of a scholar of Islamic law (faqhih; pl. foqhoh )26 based on the šarî'a and the application of the methods of
feqh.27 The foqhoh can rely on four methods to derive rules from the
šarî'a and establish them. These methods are also referred to as the usul
al-feqh.28 These four sources of law are categorised into primary and
secondary sources. The first of the primary sources is the deduction of
rules and principles by the interpretation of the Koran. The second is
the application of the principles embodied in the sunna to individual
cases. Secondary source of law both according to the afari school of
24
25
26
27
28
Adel El Baradie, see note 16, 44.
Irshad Abdal-Haqq, see note 15, 5; cf. G.M. Badr, “A Survey of Islamic International Law”, in: M.W. Janis/ C. Evans (eds), Religion and International Law, 95 et seq. (95).
The term foqoh is the plural of faqih which means “expert” in Arabic. In
the afari school of law it is used as a synonym for the term of a mo tahed.
The term mo tahed in the terminology of afari law refers to a member of
the ulam who is accepted as an expert on the interpretation of Islamic law.
Prerequisite for obtaining such a rank are studies of Islamic law lasting
many years at the end of which a person is awarded by its teacher the license (e ze) to issue independent interpretations based on the application
of his rational powers (aql). The teacher has to be a mo tahed himself. The
process to reach a legal opinion based on rational consideration is called e teh d. The term literally means the exertion of all abilities to achieve a certain aim. For details on the process how to become a mo tahed see D.J.
Stewart, Islamic Legal Orthodoxy, 1998, 223 et seq.; on peculiarities of the
terms mo tahed, faqih and e teh d refer to Momen, see note 12, 186 et
seq.; H shemi, see note 17, Vol. II, 1383 (2003), 113. Finally on the special
role mo tahed enjoy in the Iranian constitutional system and its problematic aspects in regard to human rights Moschtaghi, see note 4, Part 3, A.) 1.
Cf. auch S. Tellenbach, Untersuchungen zur Verfassung der Islamischen
Republik Iran vom 15. November 1979, 1985, 253.
Irshad Abdal-Haqq, see note 15, 5.
382
Max Planck UNYB 13 (2009)
law and its four orthodox Sunni counterparts is the consent (i ma) of
the scholars of Islamic law.29
However, the two sects of Islam hold a different perception regarding the question under which circumstances a sufficient consent is
given.30 A further secondary source of law according to the predominant perception31 of scholars within the afari school of law is reason
('aql).32 Rather than reason, the Sunni schools accept only analogy (qiy s).33
The difficulties regarding a correct delimitation of the terms šarî'a
and feqh are aggravated by the phenomenon that authors frequently fail
to differentiate between them. This means that sometimes the rules established by feqh are referred to as parts of the šarî'a.34 However, to
apply šarî'a synonymously to Islamic law as a whole is highly problematic because this means that the line between the impeccable rules which
have been revealed by Koran and have been applied and demonstrated
in the sunna on the one hand and the principally fallible human efforts
of feqh on the other is blurred.35 It should be emphasised, however, that
efforts to blur the delimitation between feqh and šarî'a have a certain
tradition in Islamic law. There are historic sources reporting on respective policies of Islamic potentates which date back to the time following
the fall of Baghdad to the Mongol invaders. This policy was meant to
elevate the rules determined by the scholars of the different schools of
29
30
31
32
33
34
35
Irshad Abdal-Haqq, see note 15, 6; B. Krawietz, Hierarchie der Rechtsquellen im tradierten sunnitischen Islam, 2002, 182 et seq.; Löschner, see
note 17, 111 et seq.
For a detailed elaboration on i ma and its prerequisites in afari law refer
to Löschner, see note 17, 134 et seq.; cf. Momen, see note 12, 186; H.
Enayat, Modern Islamic Political Thought, 2004, 48.
Momen, see note 12, 117 et seq., 161 et seq.; Halm, see note 17, 127 et seq.;
W. Buchta, Schiiten, 2004, 41 et seq.; cf. R. Cleave, Inevitable Doubt – Two
Theories of Sh ’i Jurisprudence, 2000; id., “Akhb ri Sh ’ us l al-feqh and
the Juristic Theory of Y suf al-Bahr n ”, in: R. Cleave/ E. Kermeli (eds),
Islam Law – Theory and Practice, 1997, 24 et seq.
Momen, see note 12, 185 et seq.; in detail Löschner, see note 17, 149 et seq.;
H shemi, see note 17, 109 et seq.
Krawietz, see note 29, 203 et seq.
Irshad Abdal-Haqq, see note 15, 6; As an example for confusing the terms
šarî'a and feqh, Abdur Rahman I. Doi, Sharî'ah – The Islamic Law, 1984,
6.
Irshad Abdal-Haqq, see note 15, 6.
Moschtaghi, A Multilayer System of Conflict?
383
law to the rank of the šarî'a and thereby to let them participate in the
divine character of the latter.36
- mazhab/mathhab
Finally another important Islamic (legal) term is mathhab in Arabic or
mazhab in Persian. The term, similar to šarî'a, means “way”.37 In Islamic legal terminology the term refers to the schools of law, i.e. the
afari mazhab is the afari school of law. While there were at least
nineteen schools of Islamic law during the first centuries of Islam, their
number dwindled significantly over the centuries and today only five
major schools remain.38 On the Sunni side these are the hanafi, mailiki,
shafii and hanbali schools of law and on the Shiite side, the afari
school of law.39 The different schools vary both in their doctrines and in
practical aspects of religious rites and daily life. Every Muslim belongs
to a certain mazhab, the rules of which are binding on him in rituals
and legal matters, such as inheritance or marriage.40
- Im m
The schism between Shia and Sunna dates back to the early years of Islam. To the Shiites 'Alî Ibn Abî T lib the son-in-law and cousin of
Mohammad was the only legitimate successor to the prophet. His followers who perceive all other caliphs as usurpers were called the party
of 'Alî, i.e. shî'at 'Alî in Arabic, or the Shiites.41 The Shiites recognise
‘Alî Ibn Abî T libs, and eleven of his descendants from the marriage
with Fatima, Mohammad’s daughter, as the only legitimate leaders of
the Muslims. 'Alî Ibn Abî T lib and eleven of his offsprings bear the title of Im m. The twelfth and last Im m is perceived as the messiah who
has not died but remains in occultation since 874 AD and will return at
the end of time to establish a realm of truth and justice. According to
Shiite doctrine, comprehensive knowledge of Islamic law and moral in-
36
37
38
39
40
41
Irshad Abdal-Haqq, ibid., 6.
Irshad Abdal-Haqq, ibid., 15, 24.
For details on the different schools of law cf. Irshad Abdal-Haqq, see note
15, 24 et seq.; J. Schacht, An Introduction to Islamic Law, 1982, 28 et seq.
Further Shiite schools of law which however have much less followers are
the ismaili and the zaidi school.
Buchta, see note 17, 32, there note 33.
On the history of the schism in detail Momen, see note 12, 11.
384
Max Planck UNYB 13 (2009)
fallibility are indispensable prerequisites for the leader of the Muslims.42
These qualities are fully developed only in the Im ms who are regarded
as specially inspired by God.43 This inspiration is based on a special hereditary charisma within the family of the prophet. The special virtues
of the Im m qualify him not only to be the political leader of the believers but provide him with unrestricted moral and religious competence. The special role of the Im m in Shiite law and its consequences is
one of the major differences between Shiite and Sunni Islam.44
III. International Law and Islamic afari Law in the
Iranian Constitution
1. Islamic afari Law in the Iranian Legal System
The rather extensive preamble of the Iranian Constitution of 15 November 1979 strongly emphasises the role that Islam and Islamic law
have played in the establishment of the I.R. Iran and its legal system in
particular. In fact the Constitution is inclined to perpetuate and increase
the role Islam plays in society and within the legal system. Evidence is
given by the very first sentence of the preamble, reading:
“The Constitution of the Islamic Republic reflects the desire of the
umma [i.e. the global community of all Muslims] to set forth the
cultural, social, political and economic institutions of the Iranian society, based on Islamic principles and rules.”
One of the most important provisions regarding the integration of
Islamic law into the legal system is article 4 of the Iranian Constitution
(IC) which stipulates that all laws and regulations in the I.R. Iran must
be based on Islamic law.45 As the article explicitly promulgates, this
42
43
44
45
S. Ruhollah, Khomeini, Islam and Revolution – Writings and Declarations
of Imam Khomeini, 1981, 60; cf. K.H. Göbel, Moderne Schiitische Politik
und Staatsidee, 1984, 112 et seq.; S. H. Nasr in: All mah Sayyid Muhammad Husayn Tab tab ’ , Shi’ite Islam, 1977, 174 et seq.
Buchta, see note 17, 22; in detail on the virtues of the Im m, Momen, see
note 12, 153 et seq.; cf. Göbel, see note 42, 114.
For details on the Im m and the pecularities of Shiite belief Momen, see
note 12.
Article 4 IC: “All civil, penal, financial, economic, administrative, cultural,
military, political, and other laws and regulations must be based on Islamic
criteria. This principle is absolutely and generally binding to all articles of
Moschtaghi, A Multilayer System of Conflict?
385
does also encompass the Constitution. Hence, both parliamentary laws
and the Constitution itself must comply with Islamic law and have to
be interpreted in the light and spirit of its rules. The superiority of Islamic law is secured by article 72 IC stipulating that the parliament
must not pass any legislation that is at variance with the official school
of Islamic law (mazhab) of the country.46
In order to enforce this limitation, a special constitutional organ, the
so-called Guardian Council (shur -ye negahb n)47 is established by article 91 IC.48 The Council consists of twelve members, six of them secular jurists and six scholars of Islamic law (foqoh ). According to arts 4,
72,49 and 9650 IC, the latter are inter alia competent and obliged to re-
46
47
48
49
the Constitution as well as to all other laws and regulations and the foqoh
of the Guardian Council are judges in this matter.”
Article 72 IC: “The Islamic Consultative Assembly cannot enact laws contrary to the official religion mazhab (school of law) of the country or to the
Constitution. […].”
The Guardian Council beside its competence to review the compliance of
legislation with Islamic law and the constitution is supposed to supervise
all elections and referenda in the I.R. Iran (article 99 IC). Although the establishment of this Council has been inspired by the French Conseil Constitutionell practically there are only remote similarities. The Council has
been criticised repeatedly for the extensive use of its veto powers to block
legislation and the equally extensive disqualification of candidates for elections. For details on this council A. Schirazi, The Constitution of IranPolitics and the State in the Islamic Republic, 1997; Tellenbach, see note 27;
Moschtaghi, see note 4. For instance in the course of the presidential elections of June 2009 the Guardian Council accepted only four out of 475
candidates; inter alia all 42 female candidates were excluded from the elections <http://www.news.bbc.co.uk/2/hi/middle_east/8058884.stm>.
Article 91: “In order to safeguard the commandments of Islam and the
Constitution and to avoid any conflict between them and the legislation
passed by the Islamic Consultative Assembly [i.e. the Iranian parliament], a
council to be known as the Guardian Council with the following composition is to be established:
1. six foqoh , conscious of the needs and issues of the day, to be selected by
the Leader, and
2. six jurists, specialized in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by
the Head of the Judicial Power.”
Article 72 IC: “The Islamic Consultative Assembly cannot enact laws contrary to the official school of law of the country or to the Constitution. It is
the duty of the Guardian Council to determine whether a violation has occurred […].”
Max Planck UNYB 13 (2009)
386
view all drafts passed by parliament regarding their compliance with Islamic law.51 As an additional safeguard to ensure the superiority of Islamic law, the Constitution obliges Iranian judges to refrain from applying any executive decrees and regulations which are at variance with
Islamic rules.52
Therefore, according to the IC, Islamic law constitutes the superior
law of the I.R. Iran, outranking executive decrees, parliamentary legislation and even the Constitution.53 As can be discerned by an interpretation of article 4 IC read together with article 72 IC, it becomes clear
that the term “Islamic law” in article 4 IC refers to afari Islamic law
only. Hence, in the I.R. Iran all rules which are perceived by the competent organs as being at variance with Islamic law according to the afari
school of law are invalid.
2. The Rank of International Law in the Iranian Legal System
a. International Treaty Law
As was mentioned in the introduction, the I.R. Iran is party to most
major international human rights treaties and with the sole exception of
the Convention on the Rights of the Child has signed and ratified them
without any reservation. Regarding the domestic effect of international
treaties, article 9 of the Iranian Civil Code promulgates:
50
51
52
53
Article 96 IC: “The determination of the compatibility of the legislation
passed by the Islamic Consultative Assembly with Islamic law rests with
the majority vote of the foqoh of the Guardian Council […].”
According to the opinion of the Guardian Council, its competencies do not
just encompass the review of drafts which have not yet come into force, but
the Council deems itself also competent to control whether legislation already in effect complies with Islamic law. Official Statement of the Guardian Council No. 1983 dated 8.2.1360 (1981) printed in H shemi, see note
17, 242. Since the Council according to article 98 IC is competent to issue
binding interpretation of the Constitution, this opinion of the Council is
binding on other state organs.
Cf. article 170 IC.
H shemi, see note 17, 167 et seq. and also 83 et seq.
Moschtaghi, A Multilayer System of Conflict?
387
“Treaty regulations which have been concluded between Iran and
other states according to the constitution share the force of laws.”54
Hence, treaty provisions, where the respective treaties have been
ratified in compliance with the constitutional prerequisites, share the
rank of regular parliamentary laws in the domestic hierarchy of
norms.55 As a consequence, Iranian law also provides for the possibility
to invoke provisions of international treaties before domestic courts.
The Iranian judiciary explicitly confirmed this finding in regard to the
International Covenant on Civil and Political Rights.56 Since the respective treaty provisions form an integral part of the Iranian legal order
and share the rank of parliamentary legislation in the hierarchy of
norms, in case of conflict between such a provision and a provision of
parliamentary law the rule of lex posterior derogat legi priori is applied,
according to which the more recent norm prevails.57 However, since
they share the rank of parliamentary legislation, international treaty
provisions rank below the Constitution in the domestic hierarchy,
which, from a comparative perspective, is quite a common regulation.58
54
55
56
57
58
Fakhreddin Badrian, Q nun-e madani /The Civil Code of Iran, Tehran
1380 / 2001; M.A.R. Taleghany, The Civil Code of Iran, 1995.
M.R.Z. Bigdeli, Hoquq-e bein’ol mellal-e omumi (Public International
Law), 2007, 89 et seq.; cf. also the elaboration on the I.R. Iran, Doc.
HRI/CORE/1/Add. 106 of 15 July 1999, paras 79 et seq.
Consideration of Reports Submitted by States Parties under article 40 of
the Covenant: Iran, GAOR, Human Rights Committee, 46th Sess., 1193
Meeting; Doc. CCPR/C/SR. 1193 (1992) of 29 October 1992, 15; C.
Harland, “The Status of the International Covenant on Civil and Political
Rights (ICCPR) in the Domestic Law of State Parties: An Initial Global
Survey Through UN Human Rights Committee Documents”, HRQ 22
(2000), 187 et seq. (225); Advisory Opinion No. 7/1669 of the Legal Department of the Iranian Judiciary of 19 October 1992; cf. regarding this
Advisory Opinion also the elaboration of the I.R. Iran of 15 July 1999,
Doc. HRI/CORE/1/Add. 106, para. 82; cf. also Bigdeli, see note 55, 74 et
seq.; cf. the Iranian delegate Hossein Mehrpour in front of the Committee
for the Elimination of Racial Discrimination, Doc. CERD/C/SR.1597 of 29
September 2003, para. 51; M. Nowak, U.N. Covenant on Civil and Political Rights, 2005, 59.
Bigdeli, see note 55, 90.
M. Herdegen, Völkerrecht, 2008, 156 et seq.; To name just one example,
also in Germany the constitution surpasses provisions of international treaties in cases of conflict. Article 59 of the German Basic Law of 23 May
1949, BGBl. I 1949, 1; H. Jarass, “Artikel 59 GG”, in: H. Jarass/ B. Pieroth
(eds), Grundgesetz, 2006, 699.
Max Planck UNYB 13 (2009)
388
Nevertheless, article 4 IC, according to which all norms including
the Constitution itself must comply with Islamic afari law, provides
for a peculiarity of the Iranian legal system. Since international treaties
share the rank of parliamentary laws, and the latter according to arts 4
and 72 IC must not be at variance with Islamic law, international treaty
provisions in the I.R. Iran are subordinated not only to the Constitution but also to Islamic ( afari) law. Hence, it is consistent from a domestic point of view that deputies of the various Iranian administrations repeatedly emphasised that in case of conflict between provisions
of the International Covenant on Civil and Political Rights and Islamic
law, the latter prevails.59
In fact, there is evidence that the Iranian legislator promulgates
theories which tend in the direction of strong monism giving precedence to domestic law and denying any binding force of treaty provisions which are inconsistent with Iranian domestic law or Islamic law.60
Such tendencies are evident in the law61 regulating the accession of the
I.R. Iran to the Convention against the Illicit Traffic in Narcotic Drugs
and Psychotropic Substances.62 In spite of the fact that the I.R. Iran,
upon signature of the Convention, only raised a reservation concerning
its article 6 and did not make any reference to Islam or Islamic law, the
accession act promulgated that treaty provisions which are at variance
with domestic law or Islamic law are not binding for the I.R. Iran.63
b. Rules of Customary International Law
Unlike the situation concerning treaty-based provisions, there are no
provisions in the Iranian legal order regarding the domestic impact of
non-treaty based rules of international law. According to Iranian doc59
60
61
62
63
Cf. the report on the elaborations of the Iranian delegate Khosroshahi in
front of the Human Rights Committee: “He [i.e. the delegate] felt bound to
emphasize, that although many articles of the Covenant [i.e. the ICCPR]
were in conformity with the teachings of Islam, there could be no doubt
that the tenets of Islam would prevail whenever the two sets of laws were
in conflict.” Doc. CCPR/C/SR. 364 (1982) of 19 July 1982, para. 4; cf. Ayatollah Khomeini, see note 11.
Bigdeli, see note 55, 90.
Quoted in Bigdeli, ibid., 90.
Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances of 20 December 1988, entry into force 11 November 1990, ILM
28 (1989), 497 et seq., ratification by the I.R. Iran 7 December 1992.
Bigdeli, see note 55, 90.
Moschtaghi, A Multilayer System of Conflict?
389
trine, non-treaty based rules of international law become part of the
domestic legal order only if they are transformed by a legal act.64 From
a domestic perspective this perception seems consistent. Arts 4, 72 and
170 IC are supposed to guarantee that in the I.R. Iran only regulations
which comply with Islamic law are applied. Therefore, rules of customary international law can only be integrated into the Iranian legal system by a transformation act guaranteeing that these rules are not at
variance with Islamic afari law.
Summing up, the Iranian hierarchy of norms establishes an absolute
precedence of Islamic law as it is interpreted by the afari school of law.
Hence, Shiite Islamic law enjoys superiority both to the Constitution
and to treaty-based provisions of international law. Rules of customary
international law have no impact on the legal system of the I.R. Iran as
long as they have not been transformed into domestic law by an act of
transformation which must comply with Islamic law in order to be
valid.65
IV. The Conflict between International Law and Islamic
( afari) Law
1. The Conflict from the Perspective of Islamic Law
Islamic law perceives itself as an all-embracing and, as far as the šarî'a is
concerned, as a divine legal order. In fact this legal order constitutes in
itself a substantive part of the Islamic message of salvation.66 Islamic
law claims to encompass all aspects of life and to be authoritative for
every Muslim, no matter if he lives in a country with a Muslim majority
or not.67 In consequence Islamic law is unable to accept that the life of
individual Muslims or a community of Muslims could be regulated by
rules originating outside of Islamic law. Therefore, from an Islamic law
64
65
66
67
Bigdeli, ibid.
Cf. article 4, 72 IC concerning parliamentary legislation and article 170 IC
regarding executive regulations.
Nagel, see note 16, 3. This is demonstrated vividly by the story that during
the crusades if a crusader turned to the Muslim side and converted to Islam,
it was said that he had raised his fingers and had sworn to the law.
M. Khadduri, “International Law, Islamic”, in: R. Bernhardt (ed.), Encyclopaedia of Public International Law, 1995, Vol. III 2, 1236 et seq.; Isam Kamel Salem, Islam und Völkerrecht, 1984, 149; Marboe, see note 14, 91.
390
Max Planck UNYB 13 (2009)
perspective the legal system of every state with a Muslim population is
only acceptable if it is consistent with Islamic law. This provides an explanation why in spite of all differences in detail, the supporters of an
Islamic state and system of government, no matter if of Shiite or Sunni
creed, agree in the perception that the establishment of the šarî'a as superior law and its execution are the constitutive factors for a state to be
considered Islamic.68 Most Islamic states69 try to fulfil this requirement
and to avoid conflict between their domestic legal order and Islamic law
by adjusting the former as far as possible to the latter. In consequence
their constitutions either contain norms which limit the competencies
of legislation to regulations consistent with Islamic law or introduce Islamic law as (the) source of legislation.70
The relation of Islamic law to international law is much more complex. Although the claim of absolute validity held by Islamic law also
encompasses international relations, this claim is not enforceable on the
international level since it is beyond the power of Islamic states to enforce unilaterally the conformity of the international legal order with
Islamic law. Hence, in order to provide information on the relationship
between the two different legal systems it is necessary to analyse
whether there are consistencies or divergences between them and how
far the one may be subsumed into the other.
In order to do so, it is first necessary to give a short overview of the
part of Islamic law which covers the external relations of the Muslims,
the so called siyar. It must be emphasised straight away, however, that
this term serves as a categorisation which is known in the Sunni schools
of Islamic law only. Nevertheless, the siyar shall serve as the basis of the
68
69
70
Ruhollah, see note 42, 40 et seq.; cf. also Sayyid Abdul A'la Maududi, Islamic Law and Constitution, 1960, 45 et seq.; M. Asad, The Principles of
State and Government in Islam, 1961, 34; Seyyid Qutb, Milestones, 2003, 9.
By the term “Islamic states” it is referred to states in which Islam is considered the religion of state. Applying the same terminology H. Krüger, Fetwa
und Siyar, 1978, 21, footnote 14.
Cf. article 4 of the Iranian Constitution; article 3 of the Afghan Constitution of 25 January 2004, promulgated by presidential decree 103, Official
Gazette ( aride-ye rasmi) No. 818, English text in: Blaustein, see note 13,
Vol. I; article 227 para. 1 of the Pakistani Constitution of 12 April 1973 including the amendments of 31 July 2004, English text ibid., Vol. XIV.; article 2 of the Egyptian Constitution of 11 September 1971 including the
amendments of 22 May 1980, English text ibid., Vol. VI; cf. also the preamble of the Mauritanian Constitution of 16 July 1991, English text ibid., Vol.
XII.
Moschtaghi, A Multilayer System of Conflict?
391
elaborations because first, the rules of the Sunni schools of law are
much more thoroughly researched and second, the categorisation of
these rules in the siyar provides an excellent starting point for a comparison of the Islamic rules with other legal systems like international
law. This is justified since, although a special category to match the
Sunni siyar is missing in the afari school of law, which might be related
to the exclusion of Shiites from the actual execution of government authority in the first centuries of Islam, there is an agreement in principle
between the different institutes of the siyar and the parallel rules of the
afari school.71 Cases in which there are divergences between the two
sects of Islam will be mentioned in detail.
In the course of the following section first the term siyar representing Islamic “external law” will be explained. This is followed by an
analysis of the subjects of the siyar and its sources in which the structural differences between Islamic law and international law are demonstrated. As will be shown, although the siyar is often denominated as
“Islamic international law”, in fact only a very restricted part of it really
can be addressed as international law. It is on this component of the siyar, which consists of Islamic international treaty law, that the final part
of the overview will focus. In this part the requirements for the conclusion of international treaties according to Islamic law will be highlighted answering the question how far modern international law is
consistent with the requirements of Islamic international treaty law.
a. The siyar as the Islamic “External Law” and an Overview of its
Meaning
The Arabic term siyar is the plural of sîra which can be translated by
“practice” or “shape.”72 In the context of Islamic law the term siyar refers to the practice of the prophet Mohammad in the course of his military expeditions and other forms of contact with non-Muslims.73 In the
early years of Islam the term siyar was used to refer to the narrative stories about the campaigns of the prophet and his companions out of
which scholars of Islamic law, in the course of time, derived legal pre71
72
73
Cf. E. Kohlberg, “The Development of the Im mî Shî'î Doctrine of jih d”,
Zeitschrift der Deutschen Morgenländischen Gesellschaft 126 (1976), 64 et
seq. (64); cf. also Broschk, see note 20.
For details on the etymology of the term H. Kruse, Islamische Völkerrechtslehre, 1979; cf. also Krüger, see note 69, 31.
Kruse, see note 72.
392
Max Planck UNYB 13 (2009)
requisites regulating the treatment Muslims should bestow upon the
outside world.74 Therefore, the siyar in the first place analyses rules regarding the relation between Muslims and non-Muslims, no matter
whether the latter were living as so-called Dhimmi (“protected people”)
under Muslim superiority in the territories conquered by the Muslims
or in non-Muslim realms. However, the siyar also encompass regulations regarding apostates and rebels, even though the latter are Muslims
themselves.75 In order to understand the meaning of the siyar it is necessary to understand their conception as transitional regulations. They
are based on the underlying perception that sooner or later the whole
world will become part of the Islamic community, the umma, and
therefore the siyar will become irrelevant once this transitional period is
over.76
Hence, the ultimate aim of the siyar is to guarantee peace in the territories already subject to Islamic law on the one hand, and to enlarge
the realm of Islam on the other until it encompasses the whole world.77
This conception renders the siyar an imperial system of law. In accordance with their basic conception, the siyar divide the world into two
different categories of territories. On the one hand there is the so-called
d r al-isl m “the territory of Islam” and on the other the d r al-harb or
the “territory of war”. The siyar define the d r al-isl m as the territory
controlled by Muslims and subject to the laws of the šarî'a.78 The term
d r al-harb is attributed to the rest of the world which is controlled by
74
75
76
77
78
Regarding Sunni Islam Muhammad al-Shaybani (deceased 805 AD) who
devised the first systematic work on the rules of the siyar (for an English
translation see M. Khadduri, The Islamic Law of Nations – Shayb nî's Siyar, 1966, is of special importance. Whereas regarding Shiite Islam the
work of Al-Nihaya of Abu afar al-Tusi (deceased 1067 AD) has been very
influential. See Mayer, see note 14, 195.
Krüger, see note 69, 32; M. Khadduri, in: M. Khadduri/ H.J. Liebesny
(eds), Law in the Middle East, 1955, 350; Kruse, see note 72, 32; M.
Hamidullah, “Theorie und Praxis des Völkerrechts im frühen Islam”, Kairos 5 (1963), 100 et seq., (101); Salem, see note 67, 97 et seq.; cf. also
Broschk, see note 20, 19.
Khadduri, see note 75, 350; Salem, see note 67, 98.
Khadduri, see note 67, 1236 et seq. (1236).
Kruse, see note 72, 57; Cf. also Broschk, see note 20, 33 et seq.; cf. for the
terms of d r al-isl m and d r al-harb also A. Bouzenita, Abdarr hm n alAuz ' – ein Rechtsgelehrter des 2. Jahrhunderts und sein Beitrag zu den Siyar erarbeitet auf der Grundlage des ar-Radd 'al siyar al-Auz ' , 2001, 194
et seq.
Moschtaghi, A Multilayer System of Conflict?
393
non-Muslims, i.e. non-believers.79 A peculiarity of afari law is the existence of a third category of territory called the d r al-im m. The d r
al-im m is a subcategory to the d r al-isl m and part of it. It is distinguished from the d r al-isl m by the fact that it is subject to Islamic law
as interpreted by the Shiite afari school.80
According to the siyar, the relationship with the world outside the
d r al-isl m is almost exclusively characterised by aspects of ihad,81
i.e. religious war, which is considered the regular situation between the
two territories.82 The participation in ihad is a religious duty for every
able Muslim.83 The ultimate aim of ihad is the islamisation of the nonMuslim territories which will render the siyar unnecessary.84 However,
war in the sense of ihad is not necessarily a continuing deployment of
79
80
81
82
83
84
In particular in the doctrine of the Sunni shafi schools of law there is a
third category beside the two, the so called d r al-sulh. Referring to the territories which have achieved an autonomy status within the Islamic empire
by an agreement on tribute. However this category has not been accepted
by the majority of the other schools. It has been correctly emphasised that
a substantive characteristic of the peace treaty between the d r al-sulh with
the d r al-isl m is the acceptance of the suzerainty of the latter due to
which this territories consequently are regarded as being part of the d r alisl m by the other schools. Cf. Pohl, see note 14, 74 et seq. For the striking
parallels of the siyar and the atavistic view of the world of Ayatollah
Khomeinis, see note 11, 78 et seq.
A.K.S. Lambton, “A Nineteenth Century View of Jih d”, Studia Islamica
32 (1979), 181 et seq.; cf. Kohlberg, see note 71, 69.
Although the Arabic term ihad literally means “extortion” and can be understood also as the “fight” against base instincts instead of “war”, the
principle of ihad as religious war cannot be denied without rendering the
classical doctrine of the siyar absurd. Kruse, see note 72, IX; cf. on the principle of ihad also M. v. Bredow, Ibn-Ab -Zaid al-Qairaw n , Abdall h:
Der Heilige Krieg ( ih d) aus der Sicht der m likitischen Rechtsschule,
1994.
Khadduri, see note 75, 353 et seq.; also note 67, 1236; Salem, see note 67,
97; Kruse, see note 72, 31; Marboe, see note 14, 96; Mayer, see note 14, 196;
G. M. Badr, “A Survey of Islamic International Law”, in: M.W. Janis/ C.
Evans (eds), Religion and International Law, 95 et seq. (95); cf. also N.
Qorb ni , Feqh va hoquq-e bein ol'mellal (‘Feqh and International Law’),
Faslen me-ye qabs t 15/16, 1379 (2000), 1 et seq. (10).
Kohlberg, see note 71, 64 et seq.
Ford, see note 14, 500 et seq.; Badr, see note 82, 95; E. Gräf/ H. Krüger,
“Völkerrecht”, in: K. Kreiser/ R. Wielandt (eds), Lexikon der islamischen
Welt, 1992, 276 et seq. (276).
394
Max Planck UNYB 13 (2009)
armed force.85 For instance, a formal maintenance of the state of war
and constant preparation for future combat might be perceived as sufficient to fulfil the duty of ihad.86 In spite of the basic concurrence between the afari school of law and its Sunni counterparts regarding the
duty of ihad against the d r al-harb, the afari perspective of ihad is
distinguished by the extension of this duty also to fight and convert the
non-Shiite part of the d r al-isl m to the d r al- im m.87 This is justified by the argument that the part of the d r al-isl m which has not yet
become part of the d r al- im m is the realm of rebels who are Muslims
but who have revolted against the rightful authority of the Im m and
are still doing so by refusing to accept afari law.88
b. The Subjects of the siyar and the Structural Differences between
the siyar and modern International Law
According to the siyar only the community of Muslims, the umma, and
its individual members are considered being legal subjects, whereas in
contrast the d r al-harb and its inhabitants lack any legal subjectivity. 89
Rather the d r al-harb and its inhabitants are mere objects for the siyar
and conquest in the course of ihad. The political organisation of the
d r al-harb is not recognised. It is regarded as legally indifferent
(mub h)90 and as a merely factual organisation of power.91 There are no
differences between the Sunni and Shiite schools of law regarding this
perception. Hence, the siyar like Islamic law as a whole, provide for a
personally structured legal system that extends internal and unilateral
regulations of Islamic law on the actions of Muslims towards the external (non-Muslim) world.92 The siyar provide neither non-Muslim
communities nor their individual members with the capacity to participate on an equal basis in the legal order and to influence its rules. This
85
86
87
88
89
90
91
92
Ford, see note 14, 502.
Khadduri, see note 75, 354.
Kohlberg, see note 71, 69.
Kohlberg, see note 71, 69 et seq.; on the history of the schism in detail
Momen, see note 12, 11.
Khadduri, see note 67, 1236; also, “The Islamic Theory of International Relations”, in: J.H. Proctor (ed.), Islam and International Relations, 1965, 24
et seq. (25); cf. Salem, see note 67, 149.
Krüger, see note 69, 122; Kruse, see note 72, 57.
Kruse, see note 72, 60, 70; Krüger, see note 69, 120.
Kruse, see note 72, 8; Khadduri, see note 67, 350.
Moschtaghi, A Multilayer System of Conflict?
395
phenomenon constitutes the decisive difference between the regulations
of Islamic law and modern international law, since in contrast to the
rules of the siyar, Article 2 para. 1 of the UN Charter stipulates the
principle of sovereign equality as one of the cornerstones of modern international law.93 In consequence, international law is understood as the
total of norms regulating the relations of states, international organisations and other subjects of international law that in its authority does
not depend on its acceptance by individual states, but whose basic principles are accepted by the overwhelming majority of states as binding in
their mutual relations.94
In striking contrast the acceptance of Islamic law and its principles
by non-Muslim individuals and states from the perspective of Islamic
law is of no consequence to its validity.95 According to the siyar there
are principally no rules between sovereign and equal states but between
believers and non-believers.96 Hence, although the rules of siyar are often referred to as “Islamic law of nations” or “Islamic international
law,”97 at least not the whole body of the siyar may be regarded as regulations of international law.98 Rather the siyar share similarities with the
roman ius gentium. Similar to the siyar the ius gentium was domestic
Roman law which regulated the relation between Roman citizens and
foreigners.99 Hence, the siyar instead of “Islamic law of nations” have
correctly been addressed as “external law” of the Islam.100 Islamic law
provides a scope for rules that really provide for mutual rights and obligations only in so far as it allows treaties between the umma and non-
93
94
95
96
97
98
99
100
Cf. G. Dahm/ J. Delbrück/ R. Wolfrum, Völkerrecht, Vol. I/1, 1988, 214 et
seq.
Dahm/ Delbrück/ Wolfrum, see note 93, 27 et seq.; Herdegen, see note 58,
2.
Kruse, see note 72, 8; Khadduri, see note 67, 350.
Gräf/ Krüger, see note 84, 276; cf. K.H. Ziegler, Völkerrechtsgeschichte,
2007, 63.
For instance Subh Mahm s n , “The Principles of International Law in the
Light of Islamic Doctrine”, RdC 117 (1966), 206 et seq. (235); Khadduri,
see note 74, 3.
Kruse, see note 72, 3 et seq.; cf. Pohl, see note 14, 56; cf. also Broschk, see
note 20, 19 et seq.
Cf. M. Khadduri, War and Peace in the Law of Islam, 1955, 45; cf. also
Krüger, see note 69, 34, who compares the siyar with international private
law.
Kruse, see note 72, 9.
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Max Planck UNYB 13 (2009)
Muslim states.101 In these instances Islamic law provides facilities for legal regulations based on reciprocity and mutual acceptance. However,
since treaties generally are not determined unilaterally, such treaties
cannot be considered genuinely Islamic. Rather only the prerequisites
that these treaties have to fulfil in order to be valid according to Islamic
law are Islamic. In order to examine them in detail it will be necessary
to come back to these aspects of the siyar which may be termed Islamic
international treaty law.
First it is important to shed light on another fundamental discrepancy between siyar and modern international law, consequence to the
concept of the umma in Islamic doctrine.102 All schools of Islamic law
concur in the perception that there is only one community of believers,
one umma which in conformity to the unity of God is attributed with a
uniform organisation and leadership. In consequence Islamic law claims
that the umma has to be headed by a single leader.103 Therefore according to Islamic legal doctrine the umma is principally indivisible and
only the umma as a whole and its individual members enjoy legal subjectivity. Consequently there are no legal categories for fractions of the
umma and hence no legal subjectivity. Therefore Islamic law in principal does not provide for legal regulations of the relations between different Islamic states.104
A system of international law whose subjects are Muslim states is
alien to Islamic legal doctrine.105 Scholars of Islamic law have accepted
the factual fragmentation of the Islamic world only in very exceptional
101
102
103
104
105
Id., see note 72, 8.
For a detailed analyses of the structural differences between the umma and
the state as the central subject of international law please refer to Pohl, see
note 14, 51et seq.
Kruse, see note 72, 4; Krüger, see note 69, 34, 104 et seq.; Mayer, see note
14, 196; Khadduri, see note 99, 21; vgl. Pohl, see note 14, 49; Ford, see note
14, 505; J.M. Mössner, Die Völkerrechtspersönlichkeit und die Völkerrechtspractice der Barbareskenstaaten, 1968, 66.
Kruse, see note 72, 4; Krüger, see note 69, 35; also Salem, see note 67, 97;
Ford, see note 14, 505; Mössner, see note 103, 64; Gräf/ Krüger, see note 84,
277; Ziegler, see note 96, 65.
Kruse, see note 72, 4; Krüger, see note 69, 35; Salem, see note 67, 97; Ford,
see note 14, 505; Mössner, see note 103, 64; cf. Ziegler, see note 96, 95.
Moschtaghi, A Multilayer System of Conflict?
397
cases.106 Regularly they have applied the rules the siyar provide concerning rebellion and apostasy to give a legal assessment of the factual
circumstances.107 There was a heated debate within the Sunni schools of
Islamic law whether the leadership of the umma is divisible or not. In
the end the doctrine of its principal indivisibility prevailed and was
maintained in spite of the factual fragmentation of the Islamic world.108
In this regard there is no divergence between afari law and its Sunni
counterparts. Although the former discerns between d r al-isl m and
d r al-im m, this categorisation is based on the difference between true
believers and their territory, i.e. the d r al-im m on the one hand and
such Muslims on the other who refuse to accept the authority of the
Im ms and therefore are considered rebels.109
Hence, since the beginning of the increasing fragmentation of the Islamic world, the siyar have reflected an ideal to strive for rather than
provide a legal description of reality. Hence although there have been
legal regulations concerning the relation between Islamic states, these
were not based on the siyar but rather on practical considerations, and
therefore Islamic law remained largely unheeded regarding questions of
tribute and sovereignty between Islamic states.110
106
107
108
109
110
Kruse, see note 72, 5; Krüger, see note 69, 34; Salem, see note 67, 97; Mössner, see note 103, 64.
Krüger, see note 69, 34; cf. Ziegler, see note 96, 96.
For details on this argument refer to Khadduri, see note 74. Krüger, see
note 69, 104 et seq.; Ford, see note 14, 507. While the orthodox perception
due to the unity of god still held on to the necessity of a uniform leadership
for the umma, there were voices that propagated that a partition of the
umma into different territories under different rulers is, in principle, possible, if there are natural borders like oceans or mountain separating the Islamic territory. The decisive prerequisite for them was that due to a lack of
any mutual influence, a uniform leadership was impossible. However, it has
correctly been pointed out that the prerequisite that there is no contact between the two territories renders any information on the mutual relation of
its rulers impossible. Mössner, see note 103, 66 et seq. Moderating scholars
held the opinion that the existence of local rulers is compatible with Islamic
law as long as these recognise the suzerainty of the Caliph.
Kohlberg, see note 71, 69 et seq.
Pohl, see note 14, 60 et seq.; Gräf/ Krüger, see note 84, 277. To discern this
domain from the regulations of the siyar it is named Muslim, i.e. innerIslamic, international law which is rightfully described as belonging in essence to legal reality rather than Islamic legal doctrine. Cf. ibid., 9; also
Krüger, see note 69, 36 who correctly pointed out the limitations regarding
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Max Planck UNYB 13 (2009)
Summing up, it has been established that there are fundamental differences between modern international law and the siyar. Points of contact exist only in so far as the siyar permit international treaties with
non-Muslim communities. However, there are voices who, often by
reference to the practice of Islamic states, argue that the siyar have
changed in the course of the centuries and that today the identified
structural differences between the two legal orders have been eliminated
by an accommodation of the siyar to modern international law. By an
examination of the different sources of the siyar it will be analysed
whether this claim is correct and there has truly been an evolution of
the siyar.
c. Evolution of the Islamic “External Law”?
The decisive factor for understanding the sources of the siyar as well as
the respective institutes of the afari school of law and thereby for answering the question whether the practice of Islamic states has led to an
evolution of the Islamic “External Law” is to understand that the siyar
do not form a separate part of Islamic law following rules of its own.
Rather they constitute an integral part of Islamic law and are therefore
based on the general sources of law, i.e. Koran, sunna, consent (i m )
and reason ('aql) as far as the afari school of law is involved and analogy (qiyas) for the Sunni schools of law respectively.111 In concurrence
with the usul al-feqh the siyar were mainly developed out of the sunna
of the prophet Mohammad, i.e. the traditions of his military campaigns
and his practice of government vis-à-vis non-Muslims. In contrast, the
practice of subsequent Muslim rulers or states according to Islamic legal
doctrine might only be regarded as a source of law in case these rulers
have been specially distinguished and hence their actions might be categorised under one of the sources of Islamic law.112 This could be considered if their conduct could be interpreted as being part of the sunna.
111
112
the categories of rebellion and apostasy which constitute genuine Islamic
rules; cf. also Pohl, see note 14, 82 et seq.
Khadduri, see note 99, 47; the same, in: Khadduri/ Liebesny, see note 75,
350; also, The Islamic Law of Nations, see note 74, 8; Kruse, see note 72;
Krüger, see note 69; Salem, see note 67, 98; Ford, see note 14, 500; Subh
Mahm s n , see note 97, 235; M.R.Z. Bigdeli, Esl m va hoquq-e bein’ol
mellal (‘Islam and International Law’), Tehran 1385 (2006), 27 et seq.;
Broschk, see note 20.
Mayer, see note 14, 196; Khadduri, in: Khadduri/ Liebesny, see note 75,
512.
Moschtaghi, A Multilayer System of Conflict?
399
However, in Shiite law beside the prophet himself this quality is only
ascribed to the twelve Im ms, and only the first Im m 'Alî Ibn Abî
T lib actually wielded state power as the fourth caliph. On the Sunni
side, at most the state practice of the first four caliphs who are also
called the rightly guided ones might be attributed such quality. Although their actions are not deemed themselves part of the sunna, special significance is attributed to them regarding the confirmation of the
sunna of the prophet since they have been his trusted companions
(ashab ). In contrast, the practice of other Muslim governments can
neither be regarded as a source of law for the siyar nor for the rest of Islamic law. From the Shiite point of view, the insignificance of state practice for the evolution of Islamic law is increased by the fact that according to traditional Shiite doctrine until the return of the twelfth Im m,
every worldly power is stained by the blemish of illegality. It was not
until the advent of Ayatollah Khomeini and his doctrine of the rule of
the supreme religious scholar that this dogma was challenged and this
doctrine is still rather the perception of a minority within Shiite Islamic
law.113 Moreover, there is no hint that the followers of this doctrine
perceive the actions of the supreme religious scholar as a source of Islamic law.
Since the practice of Islamic states is no source of law for the siyar,
the variances Islamic states allowed from its rules in their relations to
other states were not sufficient to reform the siyar. Hence, neither the
rules governing the relation between the factually independent local potentates within the Islamic caliphate, whose number since the tenth century A.D. has increased more and more, nor the rules of international
law which developed in the relationship between parts of the d r alisl m and non-Muslim states, in particular on the Iberian peninsula,
were able to herald an evolution of the siyar.114
Another option for an evolution of the siyar could be a reinterpretation of its principles by the scholars of Islamic law in reaction to the
practice of Islamic states. For instance, starting with the sixteenth century, there have been numerous treaties between the Ottoman Empire
113
114
For details on Ayatollah Khomeinis doctrine of the rule of the supreme religious scholar (vel yat-e faqih) see Asghar Schirazi, The Constitution of
Iran-Politics and the State in the Islamic Republic, 1997; Tellenbach see note 27; Moschtaghi, see note 4.
In detail on the situation on the Iberian peninsula Salem, see note 67, 184 et
seq.; cf. also R. Lohlker, Islamisches Völkerrecht – Studien am Beispiel
Granadas, 2006.
400
Max Planck UNYB 13 (2009)
and Safavid Persia,115 which due to the religious difference between the
two realms necessarily had to be concluded on a rather secular basis.116 117
It has been rightly highlighted that by these agreements both states,
at least indirectly, had to accept that their actions should be separated
from questions of religious doctrine and thereby they had to accept a
secularisation of state practice and a mutual recognition based on the
principle of equality and reciprocity.118 However, although some authors deem it otherwise,119 this did not result in a reform of the siyar. It
has been rightly noted that there is no factual basis for such a perception.120 By his detailed analyses of legal opinions of Ottoman scholars
of Islamic law between the seventeenth and nineteenth century, Krüger
has demonstrated convincingly that if they have given opinions on the
relationship of Islamic states at all, they have applied the traditional
categories of the siyar regarding rebellion and apostasy rather than
adapting the siyar to the reality of a multitude of independent Islamic
states.121 Therefore the war against Safavid Persia was regarded as a police action only slightly different from actions against highway robbers.122 However, this categorisation could hardly provide a correct description of reality, because the major part of the Safavid territory had
never been under Ottoman rule. The categorisations undertaken by the
Islamic scholars motivated by political opportunity were meant to pro-
115
116
117
118
119
120
121
122
In particular the treaty of Amasya of 29 May 1555 as the first formal peace
treaty between the two empires should be mentioned. cf. C.H. Alexandrowicz, An Introduction to the History of the Law of Nations in the
East Indies, 1967, 91 et seq.
Khadduri, see note 67, 1240; also, The Islamic Law of Nations, see note 74,
62 et seq.
While the Ottoman dynasty established the Sunni Hanafi school of law as
religion of state, Ism ’îl I. established the afari school of law in 1501 as the
official creed of the realm and pursued the conversion of his subjects to
Shiite Islam.
Khadduri, see note 67, 1240; also, The Islamic Law of Nations, see note 74,
61.
Khadduri, see note 74, 61 et seq.; see also note 67, 1240.
Mössner, see note 103, 66.
Krüger, see note 69, 124 et seq.
Krüger, see note 69, 124 et seq. As Krüger convincingly demonstrates these
advisory opinions due to reasons of political opportunism applied rules of
the siyar to situations on which they were hardly applicable.
Moschtaghi, A Multilayer System of Conflict?
401
vide reality with the pretence of Islamic legitimacy.123 Hence, the relation between the two empires was based on rules that had no basis in
Islamic law but rather were born out of the necessities of the mutual relationship.124 As detailed analyses show, neither did the actions of the
Ottoman Empire towards non-Muslim nations and the legal opinions
issued by the scholars of Islamic law in this regard led to a reform of the
siyar.125
Since neither the Sunni nor the Shiite scholars of law undertook a
reinterpretation of the siyar in reaction to the changes of state practice,
it must be ascertained that a true reform of the siyar and the respective
“external law” of the afari school has not been achieved until today.
Even though there are several approaches to achieve such reform,126
none of these has been accepted by a significant number of scholars of
Islamic law. Therefore, the perception of a slow convergence of Islamic
law and international law over the centuries lacks any evidence.127 Islamic legal scholars, no matter if of Sunni or Shiite creed, have tended to
perpetuate the ideas established by their ancestors in the early centuries
of Islam rather than to observe the factual state practice. Thus the rules
of Islamic law became more and more detached from the rules and
regulations derived from factual state actions.128 Hence, the only possible conclusion is that Islamic law and present international law represent two fundamentally different legal systems.
d. Islamic Treaty Law as a Point of Contact between Islamic Law
and International Law
However, in spite of this finding it might be possible to subsume modern international law into the prerequisites of the Islamic law of international treaties. The siyar and also the respective rules of the afari
123
124
125
126
127
128
Krüger, see note 69, 125 et seq.
[…] ein der Rechtswirklichkeit angehörendes Verkehrsrecht. Kruse, see note
72, 9; Krüger, see note 69, 36.
Krüger, see note 69, 123 et seq.
For an overview on these views Marboe, see note 14, 97et seq.; cf. Qorb ni , see note 82; Broschk, see note 20, 26 et seq.
Also Kruse, see note 72, IV.
Mayer, see note 14, 196; regarding the relation between Islamic states
Krüger, see note 69, 124 et seq.; Ford, see note 14, 505; Mössner, see note
103, 70; L. Milliot, “La Conception de l’état et de l’ordre légal dans
l’Islam”, RdC 75 (1949), 597 et seq. (598).
402
Max Planck UNYB 13 (2009)
school of law explicitly provide for the possibility of treaties between
Muslims and non-Muslim communities.129 Moreover, Muslims are religiously obliged to fulfil treaty obligations. The rule pacta sunt servanda is derived inter alia directly from the Koran and therefore enjoys
paramount importance in Islamic law.130 All Islamic schools of law concur in the perception that this is both a legal and religious obligation.131
The obligation to fulfil treaty obligations also includes treaties concluded with non-Muslims.132 Even though treaties do no constitute a
source of Islamic law, they nevertheless influence its content indirectly,
since the fulfilment of a treaty becomes a religious duty for the community and the individuals bound by the treaty. Therefore, if the content of modern international law could be subsumed under the prerequisites of Islamic treaty law, even though this would not change the
fundamental difference between both legal systems, international law as
a permissible treaty arrangement would also nevertheless be binding
from an Islamic law perspective. In order to examine whether this is the
case, the prerequisites and limitations the siyar and the afari school of
law establish concerning treaties will be examined in detail.
aa. The Treaty of Protection (muw da'a) as a Facility to suspend ihad
and its Prerequisites
It has already been mentioned that according to the basic concept of the
siyar the normal condition between the d r al-isl m and the d r al-harb
129
130
131
132
Lohlker, see note 114, 23; Bigdeli, see note 111, 39 et seq.; Broschk, see note
20, 26 et seq.; Qorb ni , see note 82, 3 et seq.
Krüger, see note 69, 121; Khadduri, in: Khadduri /Liebesny, see note 75,
366; Pohl, see note 14, 81; Ziegler, see note 96, 65; W.M. Ballantyne, “The
Shari'a”, Arab Law Quarterly 2 (1987), 12 et seq. (19 et seq.); Qorb ni , see
note 82, 3; Bigdeli, see note 111, 39 et seq.
Kruse, see note 72, 81; Mayer, see note 14, 201; Salem, see note 67, 198;
Noor Mohammad, “Principles of Islamic Contract Law”, in: .H.M. Ramadan (ed.), Understanding Islamic Law, 2006, 95 et seq. (96); Qorb ni , see
note 82, 3.
Kruse, see note 72, 81 et seq.; Mayer, see note 14, 201; Salem, see note 67,
198; G.M. Badr, “A Survey of Islamic International Law”, in: M.W. Janis/
C. Evans (eds), Religion and International Law, 95 et seq. (98); Mössner,
see note 103, 77; Ziegler, see note 96, 65; Ford, see note 14, 518 et seq.; cf.
also Broschk, see note 20, 26 et seq.
Moschtaghi, A Multilayer System of Conflict?
403
is ihad.133 However, under certain conditions the siyar allow agreements with the d r al-harb suspending ihad.134 Such a treaty is called a
muw da'a.135 The instrument of muw da'a is based on the tradition of
the prophet Mohammad, who negotiated an armistice of ten years with
the then still non-Muslim people of Mecca in Hudaibiya in the year 628
AD. This tradition being part of the sunna of the prophet is also recognised by the afari school of law136 and since the afari school establishes rules regarding circumstances under which a muw da'a might be
cancelled in case of ihad it may be deduced that it also accepts the instrument of muw da'a.137
It is characteristic for the siyar and the respective regulations of
afari law that as a consequence of the permanent state of war between
the d r al-isl m and the d r al-harb, it is the suspension of ihad which
necessitates special justification rather than warfare.138 However, as may
be observed by the treaty of Hudaibiya, permanent warfare was practically unfeasible, even in the times of the prophet. Hence a muw da'a
might be negotiated in case the aim of the ihad, i.e. the conversion of
the non-Muslims to Islam, cannot be achieved by armed combat at the
moment.139 Such an agreement must focus on a certain legal consequence and has to fulfil the general prerequisites Islamic law introduces
for treaties to become valid.140 A muw da'a not only encompasses the
cessation of hostilities between the parties and thereby suspends an ongoing combat, such a treaty moreover includes a temporary mutual
guarantee of security from the military actions of the signatory and may
include services in return.141
133
134
135
136
137
138
139
140
141
This is also valid for the afari school of law, cf. Qorb ni , see note 82, 10,
who describes the perception as prevailing although he himself rejects it.
Krüger, see note 69, 119; Khadduri, in: Khadduri/ Liebesny, see note 75,
350; Qorb ni , see note 82, 3 et seq.
Krüger, see note 69, 119; Qorb ni , see note 82, 3 et seq.
Qorb ni , see note 82, 3 et seq.; Bigdeli, see note 111, 39 et seq.; cf.
Broschk, see note 20, 29.
Kohlberg, see note 71, 85 et seq.
Cf. Khadduri, in: Khadduri/ Liebesny, see note 75, 358 et seq.; Salem, see
note 67, 199; Pohl, see note 14, 65; Marboe, see note 14, 96; Qorb ni , see
note 82, 4, 10.
Krüger, see note 69, 120; cf. Qorb ni , see note 82, 4.
Lohlker, see note 114, 91; Bigdeli, see note 111, 44 et seq.
Kruse, see note 72, 86 et seq.; Salem, see note 67, 198; cf. Qorb ni , see note
82, 4.
404
Max Planck UNYB 13 (2009)
For a treaty to become valid, the person acting on the Muslim side
must be competent to conclude a treaty. It is very interesting that according to Islamic legal doctrine, in principle, every individual Muslim
is competent to conclude a muw da'a.142 Although the scholars of Islamic law tried to limit the mandate to conclude treaties at least internally to the leader of the umma or the leaders of groups of the umma,
internal prohibitions, even though they render the perpetrator liable to
punishment could not affect the validity of the agreements.143 Therefore
the lack of legal subjectivity of Islamic states according to Islamic law
has had no effect on the mandate of its leaders to conclude a muw da'a.
The siyar does not establish any prerequisites concerning the position and competences of the person acting on the non-Muslim side of
the treaty. Therefore the non-Muslim treaty party may be a king or any
other sovereign within the d r al-harb, or a tribe, or a city. The decisive
factor is only that the treaty partner wields factual power over his subjects and is recognised by them as their ruler.144 A muw da'a might also
be concluded with Muslim rebels or apostates.145 However, it should be
emphasised that a muw da'a, like any other treaty, must respect the
limits of the šarî'a in order to be valid according to Islamic law.146
As has been already mentioned, the major challenge in legal doctrine
regarding the muw da'a is the question under which circumstances
such a treaty and the imminent suspension of the duty to wage ihad is
justified.147 Moreover, in accordance with the circumstances surrounding the treaty of Hudaibiya such treaties must have a temporary character with a maximum duration of ten years.148 149 The afari school of
142
143
144
145
146
147
148
Kruse, see note 72, 103.
Ibid., 103.
Ibid., 104; Mössner, see note 103, 78.
Krüger, see note 69, 133; Khadduri, see note 74, 222, 234. Concerning rebels a argumentum a fortiori is applied, by arguing that if it is allowed to
conclude such an agreement with unbelievers it must be even more so regarding Muslims. In regard to apostates the possibility of such agreements
is justified by comparing them with the inhabitants of the d r al- harb.
Salem, see note 67, 198; Ford, see note 14, 521; Bigdeli, see note 111, 44 et
seq.
Krüger, see note 69, 121; Salem, see note 67, 199; Kruse, see note 72, 101 et
seq.
In the hanafi and maliki school of law the maximum duration is fixed at
between three and four years, because the Meccans broke the treaty prematurely. In detail Khadduri, see note 67; also, War and Peace in the Law of
Islam, 1955, 134; Ford, see note 14, 504 note 23; Pohl, see note 14, 81.
Moschtaghi, A Multilayer System of Conflict?
405
law concurs with its Sunni counterparts in the perception that a muw da'a between Muslim and non-Muslim communities must be temporary if the non-Muslims do not accept the suzerainty of the Muslims.150
Concerning possible justifications for a muw da'a with non-Muslims,
the various schools of Islamic law concur in the perception that necessity might be such a justification, e.g. due to a temporary superiority of
the non-Muslim forces.151 The afari schools of law and parts of the
Sunni schools deem a muw da'a also permissible if it serves the interests of the Muslims.152 However, in this case the Sunni schools of law
reduce its duration to four months.153 A particularity of afari law is
the suspension of the duty to participate in aggressive ihad, i.e. ihad
aiming at the extension of the Muslim territory, until the advent of the
twelfth Im m.154 Based on this particularity of afari law there is a
temporary armistice (hudna) with the opponents of the Shiites until the
return of the twelfth Im m, as long as their opponents do not undertake actions which render defensive ihad obligatory.155
A muw da'a triggers a fundamental change in the relations between
the umma (or its part) and the respective non-Muslim community for
the duration of the treaty. Whereas Islamic law generally perceives
states within the d r al-harb as a mere factual organisation for the execution of power without any legal significance,156 by the conclusion of a
muw da'a the community associated with the umma by the agreement
enters the horizon of Islamic law since the muw da'a legitimises the existing legal organisation of the respective state in the view of the
149
150
151
152
153
154
155
156
This provides an explanation why the Leader of the HAMAS proposed to
Israel on 22 April 2008 a ceasefire limited to ten years, since this is the
maximum duration of a muw da'a according to the siyar.
Qorb ni , see note 82, 4.
Kruse, see note 72, 102; Krüger, see note 69, 120 et seq.; Salem, see note 67,
143, 199; Ziegler, see note 96, 64; Qorb ni , see note 82, 4.
Qorb ni , see note 82, 4. As an example for a permissible situation it is
mentioned that the non-Muslims within the duration of the muw da'a become Muslims.
Kruse, see note 72, 105; Salem, see note 67, 143, 199; cf. Lohlker, see note
114, 36.
A.K.S. Lambton, “A Nineteenth Century View of Jih d”, Studia Islamica
32 (1979), 181 et seq. (183); Kohlberg, see note 71, 78 et seq.; cf. Momen,
see note 12, 1985, 189 et seq.
Kohlberg, see note 71, 78.
Kruse, see note 72, 60, 70; Krüger, see note 69, 120.
406
Max Planck UNYB 13 (2009)
umma.157 Due to the mutual recognition for the duration of the muw da'a there is a valid and common norm for the actions of both communities and the legally deficit status of the non-Muslim state is healed for
the purposes of the treaty.158 The possibility of a muw da'a to be based
on equality of the parties and to encompass temporary mutual recognition is already implied in the text of the treaty of Hudaibiya.159 In its
text all references to a superior rank of Mohammad and to his position
as prophet and messenger of God are avoided.160
Hence a muw da'a constitutes a temporally and regionally limited
legal system between the participating states.161 In consequence, the
muw da'a serves as an instrument to establish temporary relations
based on equality between Muslim and non-Muslim states and therefore has been denoted correctly as nucleus of a law of international
treaties within Islamic law.162 The concept of muw da'a has vividly
been labelled a compromise between idea and reality, whose basis is the
political and military need for the Muslim community to reach a ceasefire and thereby to become a subject of bilateral treaty law.163 Therefore
it might be possible to interpret modern international law from an Islamic law perspective as a form of muw da'a, based on the necessity for
the umma to accept the reality of a permanent coexistence of different
states.
bb. Modern International Law as a Form of muw da'a?
A major argument for the perception that Islamic law accepts modern
international law as a form of muw da'a is that Islamic law by allowing
the institute of muw da'a arranged for a legal institute by which mutual
obligations between states might be established. Moreover, the fulfilment of these obligations is ensured by the superior importance the rule
pacta sunt servanda enjoys in Islamic law.164 However, first it should be
remembered that Islamic law does not accept the partition of the umma
157
158
159
160
161
162
163
164
Krüger, see note 69, 120; Pohl, see note 14, 81; Lohlker, see note 114, 33 et
seq.
Kruse, see note 72, 71; Pohl, see note 14, 81; Lohlker, see note 114, 92.
Khadduri, in: Khadduri/ Liebesny, see note 75, 365.
Also Pohl, see note 14, 80; Lohlker, see note 114, 34.
Kruse, see note 72, 81 et seq.
Pohl, see note 14, 81, 84; Kruse, see note 72, 9.
Kruse, see note 72, 129 et seq.; Gräf/ Krüger, see note 84, 277.
So apparently Qorb ni , see note 82, 3 et seq.
Moschtaghi, A Multilayer System of Conflict?
407
into different states. Therefore according to the rules of Islamic external
law, treaty regulations between Muslim states might only be concluded
under the fiction that each of the parties regards the other one as rebel
or apostate. Such a perception is however hardly consistent with the
principle of sovereign equality as a basic pillar of modern international
law.
Second, a muw da'a between Islamic and non-Islamic states according to Islamic law has to be temporary. One might be tempted to rely
on an implied extension of a treaty as long as it has not been terminated,
to achieve a permanent commitment to treaties which possess permanent character. However, the compliance of such a solution with the
temporary nature of treaties according to Islamic law would be a mere
farce.
Finally from the perspective of Islamic treaty law, the binding nature
of customary international law for Islamic states is hard to explain and
might be achieved by the fiction of an imaginary conclusion of a respective treaty. Although Islamic law in principle accepts customary law as
subsidiary source of law,165 it is accepted only under the condition that
Islamic law is silent in the respective matter and that the rules of customary law do not breach other rules of Islamic law.166 Since the muw da'a provides prerequisites for a suspension of ihad exclusively
there is no room for customary law in these matters.
Therefore Islamic law on the one hand and modern international
law on the other form two separate and different legal systems. Although there are overlaps between the two systems, since some principles like pacta sunt servanda are recognised by both, the fundamental
differences mean that modern international law cannot be explained in
terms of Islamic law.
In spite of the discrepancy between the two systems, there is no
doubt that today Islamic states perceive themselves as being principally
bound by international law.167 This is demonstrated in particular by the
fact that all states with a majority Muslim population have decided to
join the United Nations and to participate in its various principal and
subsidiary organs. The acceptance of the principles and aims of this or-
165
166
167
It should be mentioned that the term customary law (orf) applied in Islamic
legal doctrine mainly refers to domestic law.
Bigdeli, see note 111, 35.
Also Krüger, see note 69, 23; Khadduri, see note 67, 67 et seq.; Ford, see
note 14, 514 et seq.; cf. Badr, see note 25, 98; Kruse, see note 72, 170.
408
Max Planck UNYB 13 (2009)
ganisation by all of these states is demonstrated vividly by the fact that
the preamble of the Charter of the Organisation of the Islamic Conference,168 which all these states have joined, explicitly emphasises the
commitment of its members to the Charter of the United Nations. Even
the I.R. Iran, which has relied repeatedly on Islamic law to justify
breaches of internationally recognised human rights standards, has
demonstrated constantly that in spite of discrepancies between Islamic
law and international law, it perceives itself principally bound by the
latter.169 For instance although in the course of the hostage crisis in
1979/80 the I.R. Iran refused to appear before the ICJ and challenged
the jurisdiction of the court it did not base a single argument on Islamic
law, but rather referred to the interventions by the United States in Iran
since the 1950s, which they deemed relevant for the case and therefore
refused to accept a decision limited to the actual occupation of the embassy. The I.R. Iran did not challenge being bound by its international
obligations, and explicitly emphasised the respect the I.R. Iran held visà-vis the court and its merits for peaceful reconciliation.170 The I.R. Iran
based all its arguments on categories of international law rather than Islamic principles.171 To refer to a more recent case, also in the course of
the present dispute on the Iranian nuclear programme, the I.R. Iran
avoids any references to Islamic law but instead bases its arguments on
international law invoking the Treaty on the Non-Proliferation of Nuclear Weapons and the Statute of the International Atomic Energy
Agency to plead its case.172
Historic examples provided by several authors give evidence that in
spite of the rigidity of Islamic legal doctrine, already in former times the
practice of Islamic states demonstrated that these states adjusted their
actions to the necessities to accept the reality of a permanent coexis168
169
170
171
172
Charta of the Organisation of the Islamic Conference of 4 March 1972, entry into force 28 February 1973, UNTS Vol. 914, 111 et seq.
Broschk, see note 20, 53 et seq.
United States Diplomatic and Consular Staff in Tehran, Provisional Measures, ICJ Reports 1979, 7 et seq. (10 et seq.); Case Concerning United
States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, 3 et seq.
(8 et seq.).
Mayer, see note 14, 196.
See the letter of the Iranian Minister of Foreign Affairs to the General Secretary of the United Nation of 24 March 2008, Annex to the letter of information from the International Atomic Agency INFCIRC/724 of 28
March 2008, <http://www.iaea.org/Publications/Documents/Infcircs/200
8/infcirc724.pdf>.
Moschtaghi, A Multilayer System of Conflict?
409
tence of different states, by almost completely disregarding the rules of
siyar in their relations with other states no matter whether Islamic or
non-Islamic.173 With regard to the discrepancies between Islamic law
and modern international law and the practice of Islamic states which is
more or less consistent with the latter, the observations of these authors
seem perfectly correct also for the present situation. Khadduri elaborates in this regard:
“Twentieth-century Islam has found itself completely reconciled to
the Western secular system [i.e. modern international law][…]. Even
the jurists who objected to the secularization of Islamic Law governing domestic affairs have accepted marked departures from the
law and practice governing external relations.”174
Although th