German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 28 (1985) [1 ed.] 9783428461486, 9783428061488

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G E R M A N Y E A R B O O K OF I N T E R N A T I O N A L Volume 28

LAW

GERMAN YEARBOOK OF INTERNATIONAL LAW J A H R B U C H FÜR INTERNATIONALES R E C H T

Volume 28 · 1985

founded by RUDOLF

LAUN

· HERMANN VON

MANGOLDT

Editors: Jost Delbrück · Wilhelm Α . Kewenig · Rüdiger Wolfrum Assistant Editor: Klaus Dicke Institut für Internationales Recht an der Universität Kiel

DUNCKER

& HUMBLOT

/

BERLIN

The Editors and the Institut

für Internationales

Recht

do not make themselves in any way responsible for the views expressed by contributors

This Yearbook may be cited: G Y I L 28 (1985)

Communications should be addressed to: The Editors German Yearbook of International Law Institut für Internationales Recht an der Universität Kiel Olshausenstrasse 40/60 D-2300 Kiel 1

All rights reserved © 1986 Duncker & Humblot GmbH, Berlin 41 Printed 1986 by Vollbehr u. Strobel, Kiel, West-Germany ISBN 3-428-06148-9

CONTENTS

Articles ALFRED DE ZAYAS / JAKOB T H . M Ö L L E R / TORKEL O P S A H L : A p p l i c a t i o n o f t h e

International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee

9

CÉSAR SEPÚLVEDA: The Inter-American Commission on Human Rights of the Organization of American States: 25 Years of Evolution and Endeavour

65

MARTIN BULLINGER: Freedom of Expression and Information: A n Essential Element of Democracy

88

ALBERT BLECKMANN: The Subjective Right in Public International Law

. . .

144

HÂKON ERIKSEN: The Legal Statuts of the Sami in Norway

163

WILHELM WENGLER: Neue Australische Verfassungsrechtsprechung zur Rassendiskriminierung {with English Summary )

186

JOST DELBRÜCK / K L A U S D I C K E : T h e C h r i s t i a n P e a c e E t h i c a n d t h e

Doctrine

of Just War from the Point of View of International Law

194

TRUTZ RENDTORFF: Christian Ethics and the Doctrine of Just War: A R é é v a luation in the Nuclear Age

209

ELMAR RAUCH: Military Uses of the Oceans

229

L. F. E. GOLDIE: Special Problems Concerning Deep Seabed Mining in the Eevent of Non-Participation in U N C L O S : Prospect for a Reciprocating States Régime, Site Certainty, Investment Assurance and Potential Litigation

268

UWE JENISCH: Sovereign Rights in the Arctic Maritime Policies and Practices after U N C L O S I I I

297

HUBERTUS WELSCH: The London Dumping Convention and Sub-Seabed Disposal of Radioactive Waste

322

MARK M . BOGUSLAVSKY: Technology Transfer and International Law: the Soviet Approach

355

6

Contents

TOBIAS STOLL: Proprietary Protection of Computer Software in National and International Perspective

370

WOLFGANG SEIFFERT: Völkerrechtliche Aspekte der Verlängerung des Warschauer Paktes {with English Summary)

409

Note and Comment ROGER D . BILLINGS: International Standards for Automotive Arbitration

. .

425

ANGELA RAPP: The Legal Limits of the Director General's Discretionary Authority to Renew or not Renew Fixed-Term and Temporary Appointments. A Review of the Cases Decided by the Administrative Tribunal of the I L O

435

Reports WULF HERMANN: Die Tätigkeit des Nordischen Rates im Jahre 1984 . . . .

442

MICHAEL PEHLKE: Die Europäischen Gemeinschaften im Jahre 1984

456

. . . .

REGINE LUDWIG: Die Tätigkeit des Europarates im Jahre 1984

478

Documentation Nordischer Rat: Ubereinkommen über die Zusammenarbeit zwischen Dänemark, Finnland, Island, Norwegen und Schweden (Helsinki-Abkommen) i. d. F. vom 28. Januar 1984

506

Geschäftsordnung des Nordischen Rates i. d. F. vom 15. Juni 1983

519

Book Reviews Internationales Redit in europäischen Festschriften {Fiedler)

528

Recht als Prozeß und Gefüge. Festschrift für Hans Huber zum 80. Geburtstag Völkerrecht und Rechtsphilosophie. Internationale Festschrift für Stefan Verosta zum 70. Geburtstag Im Dienste Deutschlands und des Rechtes. Festschrift für Wilhelm G. Grewe zum 70. Geburtstag Seerecht und Antarktis {Wolfrum) POST: Deepsea Mining and the Law of the Sea ANAND: Origin and Development of the Law of the Sea QUIGG: A Pole Apart. The Emerging Issue of Antarctica

532

Contents NUSSBAUM:

GÜNDLING:

LILLICH

KISSLER:

535

Theoretische Fragen des modernen Seevölkerrechts (Jenisch)

LAZAREV:

FERENCZ:

Rohstoffgewinnung in der Antarktis (Wolf rum)

536

Die 200-Seemeilen-Wirtschaftszone (Wolf rum)

538

Enforcing International Law — A Way to World Peace (Wolf rum)

(ed.): The Iran — United States Claims Tribunal

1981—1983

(Prieß)

.

. . . .

.

.

541

Die Zulässigkeit von Wirtschaftssanktionen der Europäischen Gemeinschaft

gegenüber Drittstaaten (Bockslaff) RETTBERG:

STEIN:

540

Weltwährungsfonds mit Weltbankgruppe und UNCTAD (Petersmann)

Die Auslieferungsausnahme bei politischen Delikten (Prieß)

543 .

544

545

Books Received

547

List of Contributors

554

ARTICLES

Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee by Alfred de Zayas / Jakob Th. Möller / Torkel Opsahl* Table of Contents I. Introduction 1. Procedure on Admissibility and Merits a) Admissibility b) Merits c) Interim Measures 2. Evidence and Burden of Proof 3. Individual Opinions 4. Duration of the Procedure 5. Progress of Work II. Issues Considered by the Committee 1. Criteria for Admissibility under the Optional Protocol a) The Standing of the Author b) The Victim c) Date of Entry into Force of the Covenant and the Optional Protocol d) Individuals Subject to a State Party's Jurisdiction e) Preclusion under Article 5 (2) (a) of the Optional Protocol f) Reservations by States Parties g) Exhaustion of Domestic Remedies h) Incompatibility i) Substantiation of Allegations j) Abuse of the Right of Submission k) Competence of the Committee vis-à-vis National Law and Decisions 2. Substantive Issues under the Covenant a) Article 6: The Right to Life b) Article 7: The Right not to be Subjected to Torture c) Article 9: The Right to Liberty and Security of Person aa) Arbitrary Arrest and Detention (Art. 9 [1] ) bb) The Right to be Brought Promptly before a Judge (Article 9 [3] ) cc) The Right to Challenge the Lawfulness of one's Arrest and Detention (Article 9 [4] ) dd) The Right to Compensation for Unlawful Arrest or Detention (Article 9 [5] ) d) Article 10: The Right to be Treated Humanely during Imprisonment * This article draws on material published in the annual reports of the Human Rights Committee. Further thoughts expressed and observations made are those of the authors in their purely personal capacities.

10

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e) Article 12: The Right to Freedom of Movement f) Article 13: The Right of an Alien not to be Expelled Arbitrarily g) Article 14: The Right to a Fair Hearing aa) Fair and Public Hearing (Article 14 [1] ) bb) Minimum Guarantees in the Determination of any Criminal Charge (Article 14 [3] ) cc) The Right to Review of Conviction and Sentence (Article 14 [5] ) h) Article 15: Nulla poena sine lege i) Article 17: The Right to Freedom From Interference with one's Privacy, Family, Home, and Correspondence j) Article 18: The Right to Freedom of Thought, Conscience and Religion k) Article 19: The Right to hold Opinions, Freedom of Expression 1) Article 20: Prohibition of War Propaganda and the Right to Protection from Advocacy of Racial or Religious Hatred m) Article 22: Freedom of Association n) Article 23: The Right of the Family to Protection o) Article 25: The Right to Take Part in Political Activity p) Article 26: Discrimination on the Ground of Sex q) Article 27: Protection of Minorities 3. Derogation from Obligations under the Covenant (Article 4 of the Covenant) I I I . Conclusion

I. Introduction The International Covenant on C i v i l and Political Rights and the Optional Protocol thereto were adopted by the General Assembly on 16 December 1966 and entered into force on 23 M a r d i 1976, after 35 States parties had ratified or acceded to the Covenant and twelve of these States had ratified or acceded to the Optional Protocol. I n accordance w i t h Article 28 of the Covenant, the States parties established the Human Rights Committee on 20 September 1976, electing 18 independent experts as members, whose terms of office began on 1 January 1977. The Committee's first session was held in N e w Y o r k from 21 March to 1 A p r i l 1977. As of the writing of this article, the Committee, which meets three times a year, has just completed its twenty-eighth session (7 to 25 July 1986). Among the responsibilities of the Committee are (1) the consideration of reports submitted by States parties under Article 40 of the Covenant, (2) the preparation of general comments under Article (Art.) 40 (4) of the Covenant, i. e. elucidating the content of the articles of the Covenant so as to assist States parties in fulfilling their reporting obligations, and (3) examining communications from individuals alleging violations of any of the rights set forth in the Covenant, as provided for in the Optional Protocol thereto. This article focuses primarily on the Committee's consideration of communications under the Optional Protocol and aims at explaining, on the procedural level, the criteria of admissibility as laid down in the Optional Protocol and restated in the Committee's provisional rules of procedure, and at illustrating, on the substantive level, the Committee's findings on the merits of communi-

Human Rights Committee

11

cations submitted under the Optional Protocol. Enough data are now available to allow an initial assessment of the Committee's "case l a w " since 1977, which shall be supplemented by relevant parts of the Committee's general comments mentioned above. (Thus far the Committee has adopted general comments relating i. a. to Articles 1, 2, 3, 4, 6, 7, 9, 10, 13, 14, 19 and 20.) The structure of this article is accordingly simple. A general description of the Committee's work is followed by a section on admissibility criteria such as the standing of authors, the exhaustion of domestic remedies and the competence of the Committee vis-à-vis national law and decisions. The main part of the article consists of a survey of the Committee's pronouncements on many of the articles of the Covenant, as formulated in the Committee's views and other decisions under the Optional Protocol. Observations on the issue of derogation by States parties from some provisions of the Covenant are then followed by brief concluding remarks. A t this point it should be indicated that the Committee is neither a court nor a body w i t h a quasi-judicial mandate like the t w o organs created under the European Convention on Human Rights (the European Court of Human Rights and the European Commission of Human Rights). Nevertheless, the Committee does perform functions similar to those of the European Commission of Human Rights when the latter considers applications from individuals: The Committee also decides on the admissibility of communications; those cases declared admissible are then examined on the merits, the facts are established and the Committee states its opinion as to whether or not there have been violations of the Covenant. Its decisions on the merits are, in principle, like the reports of the European Commission, non-binding recommendations, and are referred to as "views under Article 5 (4) of the Optional Protocol". The two systems differ, however, in that the Optional Protocol has no express provisions for friendly settlement between the parties, and more importantly, in that the Committee does not make binding decisions (as the European Court). 1 Although the system under the Optional Protocol is simple, i t can and does yield results by persuasion of State parties. The Committee applies the provisions of the Covenant and Optional Protocol in a judicial spirit. The Preamble of the Optional Protocol states its purpose as follows: to enable the Human Rights Committee . . . to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of any of the rights set forth in the Covenant. 1

When the Court's optional jurisdiction is not resorted to, the binding decision under the European Convention has to be taken by the Committee of Ministers of the Council of Europe.

12

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Möller / Opsahl

O n l y States parties to the Covenant (at present 85) may ratify or accede to the Protocol (Art. 8); thus far 38 States have done so.2 N o communication can be received by the Committee i f i t concerns a State party to the Covenant which is not also a party to the Optional Protocol (Art. 1 in fine). So far, communications have been received w i t h respect to 22 States parties. The fact that no communications have been received in respect of 16 States parties may be partly attributable to lack of knowledge of the system. Communications are addressed to the Human Rights Committee in care of the Centre for Human Rights, United Nations Office at Geneva. This article seeks to review the "holdings" and "obiter dicta " of the Committee in a number of leading cases, most of which have already been made public in the annual reports of the Human Rights Committee to the General Assembly under Article 45 of the Covenant. 3 A volume containing 67 "Selected Decisions under the Optional Protocol" including the text of some of the decisions referred to below and covering the Committee's jurisprudence through its sixteenth session, was published 1985 in an English version. 4 Spanish and French versions are forthcoming. Volume 2 covering the Committee's seventeenth through twenty-eighth session is in preparation. 1. Procedure on Admissibility

and Merits

Consideration of communications under the Optional Protocol takes place in closed meetings (Art. 5 [3] of the Optional Protocol). A l l documents pertaining to the work of the Committee under the Optional Protocol (submissions from the parties and other working documents of the Committee) are confidential. 2 These States are Argentina, Barbados, Bolivia, Cameroon, Canada, the Central African Republic, Colombia, Congo, Costa Rica, Denmark, the Dominican Republic, Ecuador, Finland, France, Iceland, Italy, Jamaica, Luxembourg, Madagascar, Mauritius, the Netherlands, Nicaragua, Niger, Norway, Panama, Peru, Portugal, Saint Vincent and the Grenadines, San Marino, Senegal, Spain, Suriname, Sweden, Trinidad and Tobago, Uruguay, Venezuela, Zaire and Zambia. 3 See Official Records of the General Assembly, Thirty-fourth Session, Supplement No. 40 (A/34/40 hereafter referred to as H R C 1979 report; Thirty-fifth Session, Supplement No. 40 (A/35/40) hereafter referred to as HRC 1980 report; Thirty-sixth Session, Supplement No. 40 (A/36/40) hereafter referred to as HRC 1981 report; Thirty-seventh Session, Supplement No. 40 (A/37/40) hereafter referred to as H R C 1982 report; Thirty-eighth Session, Supplement No. 40 (A/38/40) hereafter referred to as HRC 1983 report; Thirty-ninth Session, Supplement No. 40 (A/39/40) hereafter referred to as H R C 1984 report; Fortieth Session, Supplement No. 40 (A/40/40) hereafter referred to as HRC 1985 report; Forty-first Session, Supplement No. 40 (A/41/40) hereafter referred to as H R C 1986 report. The H R C 1984 report for the first time gave a summary of the Committee's jurisprudence. This article follows a similar pattern but contains considerably more detail, including excerpts from decisions which have been made public since the adoption of that report. 4 Human Rights Committee, Selected Decisions under the Optional Protocol, CCPR/C/ OP/1 (hereinafter cited as H R C Selected Decisions), New York, 1985.

Human Rights Committee

a)

13

Admissibility

Once a communication has been registered, the Committee must decide whether i t is admissible under the Optional Protocol. The requirements for admissibility, which are contained in Articles 1, 2, 3 and 5 (2) of the Optional Protocol, are listed in Rule 90 of the Committee's provisional rules of procedure, pursuant to which the Committee shall ascertain: (a) That the communication is not anonymous and that i t emanates from an individual, or individuals, subject to the jurisdiction of a State party to the Protocol; (b) That the individual claims to be a victim of a violation by that State party of any of the rights set forth in the Covenant. Normally, the communication should be submitted by the individual himself or by his representative; the Committe may, however, accept to consider a communication submitted on behalf of an alleged victim when i t appears that he is unable to submit the communication himself; (c) That the communication does not constitute an abuse of the right of submission under the Protocol; (d) That the communication is not incompatible w i t h the provisions of the Covenant; (e) That the same matter is not being examined under another procedure of international investigation or settlement; (f)

That the individual has exhausted all available domestic remedies.

Unlike in the procedure before the European Commission (Article 26 of the European Convention), there is no requirement under the Optional Protocol that the author submit his communication to the H R C w i t h i n six months from the exhaustion of domestic remedies in the State concerned. Under Rule 91(1) the Committee or its Working Group on Communications 5 may request the State party concerned or the author of the communication to submit, w i t h i n a time-limit which is indicated in each such decision (normally six weeks or two months), additional written information or observations relevant to the question of admissibility of the communication. Such a request does not imply that any decision has been taken on the question of admissibility (Rule 91 [3] ). I f the case is referred to the State party at this stage, any reply received from i t is transmitted to the author to give him an opportunity to comment thereon. I f the case is only referred back to the author for clarifications under Rule 91 and is subsequently declared inadmissible, no 5

Rule 91 simply refers to "a Working Group" having this competence. The Committee has in practice institutionalized this Working Group, which is generally referred to as the Working Group on Communications.

14

de

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transmittal to the State party may have taken place. 6 The Committee may also decide to discontinue or suspend consideration of a communication, for example, i f its author indicates that he wants to withdraw the case or i f the Committee has lost touch w i t h the author. A decision to declare a communication inadmissible (or otherwise to discontinue or suspend consideration of it) may, in a clear case, be taken without referring the case to the State party for its observations. The decision to declare a communication admissible or inadmissible rests w i t h the Committee only, not w i t h its Working Group. b)

Merits

I f a communication is declared admissible, the Committee proceeds to consider the substance of the complaint. I n accordance w i t h Article 4 of the Optional Protocol, i t requests the State party concerned to submit to the Committee "explanations or statements clarifying the matter and the remedy, i f any, which may have been taken" by it. Under Article 4 (2), the State Party has a time-limit of six months in which to submit its observations. When these observations are received by the Secretariat, the author is given an opportunity to comment thereon. The Committee then normally formulates its views and forwards them to the State party and to the author of the communication, i n accordance w i t h Article 5 (4) of the Optional Protocol. The State party may be requested to transmit a copy of the views to an imprisoned victim. 7 Before the adoption of final views, further information may be sought from the State party or the author by means of an interim decision. 8 Throughout the proceedings, the principle of equality of arms prevails. Unless a communication is declared inadmissible without referral to the State party (or otherwise discontinued before referral to the State party), both parties are given an opportunity to comment on each other's submissions. c) Interim Measures Rule 86 of the Committee's provisional rules of procedure provides that the Committee may, prior to the forwarding of its final views on a communication, inform the State party whether interim measures of protection β H R C Selected Decisions, cases No. 13/1977, C. E. v. Canada , p. 16; No. 17/1977, 2 . 2 . v. Canada , p. 19; No. 26/1978, N. S. v. Canada , p. 19; No. 15/1977, D. B. v. Canada , p. 20; No. 53/1979, K.B. v. Norway , p. 24; No. 59/1979, K.L. v. Denmark , p. 24; No. 60/1979, /. /. v. Denmark , p. 26. 7 H R C 1983 report, cases No. 80/1980, Vasilskis v. Uruguay , p. 179, para. 12; No. 81/1981, Dermit v. Uruguay , p. 124, para. 11; No. 88/1981, Larrosa v. Uruguay , p. 185, para. 13; No. 43/1979, lbarburu de Drescher v. Uruguay , p. 196, para. 15; H R C 1984 report, cases No. 83/1981, Martinez Machado v. Uruguay , p. 153, para. 14; No. 103/1981, Oxandabarat v. Uruguay y p. 158, para. 12; No. 85/1981, Romero v. Uruguay , p. 163, para. 14. 8 H R C Selected Decisions, cases No. 5/1977, Hernandez Valentini de Bazzano v. Uruguay , p. 37; No. 24/1977, Lovelace v. Canada , p. 37 etseqj; No. 29/1978, E.B. v. S., p. 39.

Human Rights Committee

15

may be desirable to avoid irreparable damage to the victim of the alleged violation. Such request for interim measures does not imply a determination of the merits of the communication. The Committee has had occasion to request interim measures in a number of cases, e. g. N o . 22/1977 (O. E. v. S.) where i t informed the State party of the view of the Committee "that pending further consideration of the case, the alleged victim, having sought refuge in S., should not be handed over or expelled to Country X " 8 a . I n an interim decision relating to another case, the Committee expressed concern over the state of health of the alleged victim and requested the State party "as a matter of urgency to arrange for him to be examined by a competent medical board and . . . to furnish the Committee w i t h a copy of the board's report" (No. 10/1977, Altesor v. Uruguay) 8b. Most recently, at its 28th session in July 1986, the Committee adopted an interim decision requesting a State party to refrain from carrying out a death sentence pending further examination of the question of admissibility of a communication placed before it at that session. 2. Evidence and Burden of Proof Thus far the Committee has not developed any independent fact-finding functions under the Optional Protocol, 9 but i t is required pursuant to Article 5 (1) of the Optional Protocol to consider "all written information made available to i t " by the parties. W i t h respect to the burden of proof, the Committee has established in a number of cases dealing w i t h alleged violations of Articles 6 (right to life), 7 (torture and ill-treatment) and 9 (arbitrary arrest, disappeared persons), that this cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information. I t is implicit in Article 4 (2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, especially when such allegations are corroborated by evidence submitted by the author of the communication, and to furnish to the Committee the information available to it. In cases where the author has submitted to the Committee allegations supported by substantial witness testimony, as in this case, and where further clarification of the case depends on information exclusively in the hands of the State party, the Committee may consider such allegations as substantiated in the absence of satisfactory evidence and explanations to the contrary from the State party (No. 30/1978, Bleier v. Uruguay). 10 8a H R C Selected Decisions, 5. 8b Op. cit., 106. 9 For comments on the possibilities in this respect see, for instance, Erik Mose / Torkel Opsahl , in: Santa Clara Law Review vol. 21 (1981), 271 et seq. (289—90 and 319—20). ι® HRC 1982 report, Annex X, para. 13.3.

16

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Furthermore, the Committee has held that "a refutation of [the author's] allegation in general terms is not sufficient" (No. 11/1977, Grille Motta ν . Uruguay)} 1 3. Individual

Opinions

The Committee in practice works by consensus without resorting to voting as provided for in Article 39 (2) (b) of the Covenant. However, pursuant to rule 94 (3) of the Committee's provisional rules of procedure, members can append their individual opinions to the Committee's views. Such individual opinions have been appended to cases Nos. 9/1977, 11/1977, 24/1977, 52/1979, 56/1979, 61/1979 and 124/1982. Individual opinions have also been appended to decisions declaring communications inadmissible, Nos. 78/1980, 118/1982 and 121/1982. 4. Duration

of the Procedure

Since the Committee, which meets three times a year, must allow both the author and the State party sufficient time to prepare their submissions, a decision on admissibility can only be taken between six months and a year after the initial submission; views under Article 5 (4) of the Optional Protocol may follow one year later. The entire procedure normally may be completed w i t h i n two to three years. The Committee tries to deal expeditiously w i t h all communications. 12 5. Progress of Work Since the Committee started its work under the Optional Protocol at its second session in 1977 through its twenty-eighth session in July 1986, 211 communications relating to 22 States parties have been placed before i t for consideration. The status of registered communications is as follows: (a)

Concluded by the adoption of views under Article 5 (4) of the Optional Protocol:

72

(b)

Concluded by decision of inadmissibility:

55

(c)

Discontinued or withdrawn:

51

(d)

Declared admissible, not yet concluded:

12

(e)

Pending at pre-admissibility stage (20 thereof transmitted to the State Party under Rule 91 of the Committee's provisional rules of procedure): . .

21

« H R C 1980 report, Annex X , para. 14. 12 Case No. 146/1983 was submitted on 5 July 1983 and subsequently joined with the similar cases Nos. 148 to 154/1983, submitted on 31 July and 4 August 1983. Final views were adopted with respect to the joined communications on 4 April 1985, i. e. less than two years after submission, H R C 1985 report, Annex X .

17

Human Rights Committee

II. Issues Considered by the Committee The following survey illustrates the nature and results of the Committee's activities under the Optional Protocol and explains its findings under the Covenant as they have been expressed in its decisions, views and general comments. For the full text of the Committee's findings and views the reader should consult the annual reports and the volume of Selected Decisions of the Human Rights Committee. 1. Criteria

for Admissibility

under the Optional

Protocol

I t is convenient to distinguish the issues which mainly concern the various conditions for considering communications, (admissibility criteria under the Optional Protocol) from the substantive issues concerning the rights and freedoms under the Covenant (2. below). The criteria for proceeding w i t h a communication always depend, directly or indirectly, on the terms of the Optional Protocol. 13 a) The Standing of the Author (Optional Protocol Arts. 1 and 2) Normally, a communication should be submitted by the individual himself or by his representative; the Committee may, however, accept to consider a communication submitted on behalf of an alleged victim when i t appears that he is unable to submit the communication himself (Rule 90 [1] [b] ). I n practice, the Committee has accepted communications not only from a duly authorized legal representative, but also from close family members acting on behalf of alleged victims. I n other cases the Committee has found that the author of a communication lacked standing. I n case N o . 128/ 1982 (L. A. v. Uruguay ), the author was a member of a non-governmental organization and had taken interest in the alleged victim's situation. H e claimed to have authority to act because he believed "that every prisoner treated unjustly would appreciate further investigation of his case by the Human Rights Committee". 1 4 The Committee decided that the author lacked standing and declared the communication inadmissible. The Human Rights Committee has thus established through a number of decisions on admissibility that a communication submitted by a third party on behalf of an alleged victim can only be considered if the author justifies his authority to submit the communication. 13

For a detailed discussion in terms of what the Optional Protocol decides or allows, see Mose/Opsahl (note 9), 291—311. 14 H R C 1983 report, Annex X X V I , para. 2.

2 GYIL 28

18

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The Committee has also held that an organization as such cannot submit a communication. I n case N o . 163/1984 (C. et al. v. Italy ) i t stated: "According to Article 1 of the Optional Protocol, only individuals have the right to submit a communication. To the extent, therefore, that the communication originates from the [organization], it has to be declared inadmissible because of lack of personal standing". 1 5 Similarly, in case N o . 104/1981 (/. T. v. Canada ), the Committee declared a communication inadmissible, partly because "the W . G. Party is an association and not an individual, and as such cannot submit a communication to the Committee under the Optional Protocol". 1 6 b) The V i c t i m The Committee has clarified in case N o . 35/1978 (Aumeeruddy-Cziffra ν . Mauritius) that

et al.

a person can only claim to be a victim in the sense of Article 1 of the Optional Protocol if he or she is actually affected. I t is a matter of degree how concretely this requirement should be taken. However, no individual can in the abstract, by way of an actio popularis , challenge a law or practice claimed to be contrary to the Covenant. I f the law or practice has not already been concretely applied to the detriment of that individual, it must in any event be applicable in such a way that the alleged victim's risk of being affected is more than a theoretical possibility. 1 7

That is, a person is not a victim unless he has personally suffered a violation of his rights. I n case N o . 61/1979 (Leo Hertzberg et al. v. Finland) the Committee stressed that it has only been entrusted with the mandate of examining whether an individual has suffered an actual violation of his rights. I t cannot review in the abstract whether national legislation contravenes the Covenant, although such legislation may, in particular circumstances, produce adverse effects which directly affect the individual, making him thus a victim in the sense contemplated by Articles 1 and 2 of the Optional Protocol. 18

A t its twenty-second session in July 1984 the Committee was again confronted w i t h this problem. I n declaring Communication N o . 163/1984 (C. et. al. v. Italy) inadmissible the Committee explained that: the author of a communication must himself claim, in a substantiated manner, to be the victim of a violation by the State party concerned. I t is not the task of the Human Rights Committee, acting under the Optional Protocol, to review in abstracto national legislation as to its compliance with obligations imposed by the is ie 17 is

HRC HRC HRC HRC

1984 1983 1981 1982

report, report, report, report,

Annex Annex Annex Annex

X V , para. 5. X X I V , para. 8. X I I I , para. 9.2. X I V , para. 9.3.

Human Rights Committee

19

Covenant. I t is true that, in some circumstances, a domestic law may by its mere existence directly violate the rights of individuals under the Covenant. I n the present case, however, the authors of the communication have not demonstrated that they are themselves actually and personally affected by Article 9 of Law No. 638 of 11 November 1983. Consequently, the Committee is unable, in accordance with the terms of the Optional Protocol, to consider their complaints. 10

A t its twenty-fourth session in A p r i l 1985 the Committee declared Communication N o . 187/1985 (/. Η. ν . Canada ) inadmissible because [t]he author of the present communication has not put forward any facts to indicate that he is or has been a victim of discrimination in violation of the provisions of the Covenant. A n allegation to the effect that past or present promotion policies are generally to the detriment of English-speaking members of the Canadian Armed Forces is not sufficient in this respect. The Committee, accordingly, concludes that the author has not shown that he has a claim under Article 2 of the Optional Protocol. 20

c) Date of Entry into Force of the Covenant and the Optional Protocol The Committee has indicated frequently that i t "can consider only an alleged violation of human rights occurring on or after 23 March 1976 (the date of entry into force of the Covenant and the Protocol for [the State party] ) unless it is an alleged violation which, although occurring before that date, continues or has effects which themselves constitute a violation after that date". The Committee has declared a number of communications inadmissible ratione temporis (or parts of said communications) when the alleged violations occurred prior to the entry into force of the Covenant and the Optional Protocol for the State party concerned. Although this issue is mostly disposed of at the admissibility stage, the Committee may indicate in its views that "the facts as found by the Committee, in so far as they continued or occurred after [the date of entry into force of the Covenant and the Optional Protocol for the State party concerned] disclose violations . . etc . (No. 123/1982, /. Manera ν . Uruguay)? 1 Aside from the date of entry into force of the Covenant and the Optional Protocol for the State party concerned, no other date or period of limitation is established, unlike in the European system, where a complaint must be submitted w i t h i n six months after the exhaustion of domestic remedies (Article 26 of the European Convention). 18 H R C 1984 report, Annex X V , para. 6.2. so H R C 1985 report, Annex X V I I I , para. 4.2. 2i H R C 1984 report, Annex X I I , para. 10.

2*

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Individuals Subject to a State Party's Jurisdiction

I n several cases the Committee has had to address the question whether an alleged victim is "subject to the jurisdiction" of the State party for the purposes of Article 1 of the Optional Protocol. I n case N o . 110/1981 (A. Viana Acosta v. Uruguay ), the State party contended that the communication was inadmissible because the alleged victim had been released from imprisonment and "he left the country to live abroad and he was therefore not subject to the jurisdiction" of the State party. 2 2 The Committee noted in its views that by virtue of Article 2, Paragraph 1 of the Covenant, each State party undertakes to respect and to ensure to "all individuals within its territory and subject to its jurisdiction" the rights recognized in the Covenant. Article 1 of the Optional Protocol was clearly intended to apply to individuals subject to the jurisdiction of the State party concerned at the time of the alleged violation of the Covenant. This was manifestly the object and purpose of Article l . 2 3

The same question was dealt w i t h in case N o . 25/1978 (C. Améndola G. Baritussio ν . Uruguay) ,24

and

A related issue arises when the alleged violation of the human rights of a national of a State party occurs when that person is not residing in his country at the time of the alleged violation. This was the situation in case N o . 57/1979 (S. Vidal Martins ν . Uruguay) where the author, while living abroad, requested the renewal of her passport. I t was the Committee's view that the issue of a passport to a Uruguayan citizen is clearly a matter within the jurisdiction of the Uruguayan authorities and he is "subject to the jurisdiction" of Uruguay for that purpose. Moreover a passport is a means of enabling him "to leave any country, including his own", as required by Article 12 (2) of the Covenant. I t therefore follows from the very nature of the right that, in the case of a citizen resident abroad it imposes obligations both on the State of residence and on the State of nationality. 25

The Committee expressed a similar view when it declared case N o . 125/1982 admissible. I t stated: "The question of the issue of a passport by [the State party] to a national [of the State party] wherever he may be, is clearly a matter w i t h i n the jurisdiction of the [State party's] authorities and he is "subject to the jurisdiction' of [the State party] for that purpose". 26

22 23 24 25 2β

H R C 1984 report, Op. cit., para. 6. H R C 1982 report, H R C 1982 report, H R C 1984 report,

Annex X I , para. 4. Annex X V I I I , para. 7.2. Annex X I I I , para. 7. para. 576.

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e) Preclusion under Article 5 (2) (a) of the Optional Protocol i f the Same Matter is Being Examined under another Procedure of International Investigation or Settlement The Optional Protocol precludes the competence of the Committee to consider cases which are simultaneously being examined under other procedures of international investigation or settlement, such as the procedures of the Inter-American Commission on Human Rights ( I A C H R ) 2 7 and the European Commisson of Human Rights (ECHR). When this situation arises, the practice of the Committee has been to instruct the Secretariat to explain to the author that consideration by the Committee is precluded under Article 5 (2) (a) of the Optional Protocol. I n the majority of such cases (which have concerned examination of the same matter by the Inter-American Commission on Human Rights) the authors have then withdrawn their communications from the I A C H R in order to enable the Committee to proceed w i t h its examination. I n one case the author preferred to withdraw the case from the Human Rights Committee in order to have i t considered by the European Commission of Human Rights. Simultaneous consideration by the H u m a n Rights Committee and the I A C H R is, however, possible under certain conditions. Thus, in the case N o . 10/1977 {Alberto Altesor v. Uruguay) the Committee concluded "that i t is not prevented from considering the communication submitted to i t by the authors on 10 March 1977 by reason of the subsequent complaint made by an unrelated third party under the procedure of the I A C H R " . 2 8 The rationale for this decision was explained in case N o . 74/1979 {M. A. Estrella v. Uruguay) where the Committee observed that the provision of Article 5 (2) (a) "cannot be so interpreted as to imply that an unrelated third party, acting without the knowledge and consent of the alleged victim, can preclude the latter from having access to the Human Rights Committee". 2 9 As to what constitutes the "same matter", the Committee decided i n case N o . 6/1977 {M. Millan Sequeira ν . Uruguay) that a two-line reference to the person concerned in a case before the Inter-American Commission on H u m a n Rights, which listed in a similar manner the names of hundreds of other persons allegedly detained in the country, " d i d not constitute the same matter as that described in detail by the author in his communication to the H u m a n Rights Committee". 3 0 The Committee has also held that the submission of a similar case concerning a third party to another international procedure does not constitute 27 César Sepulveda , The Inter-American Commission on Human Rights of the Organization of American States, in: German Yearbook of International Law 28 (1985), 65—87. 28 H R C 1982 report, Annex I X , para. 7.2. 2» H R C 1983 report, Annex X I I , para. 4.3. 30 HRC 1980 report, Annex I X , para. 9 (a).

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the "same matter". Thus in case N o . 75/1980 (D. Fanali ν . /ta/;y) the Committee explained: " . . . the concept of the "same matter' w i t h i n the meaning of Article 5 (2) (a) of the Optional Protocol must be understood as including the same claim concerning the same individual submitted by him or someone else who has the standing to act on his behalf before the other international body".31 I n the first case placed before i t under the Optional Protocol, the Committee had occasion to determine that the examination of a particular human rights situation in a given country under Economic and Social Council resolution 1503 ( X L V I I I ) 3 2 — which governs a procedure for the examination of situations which appear to reveal "a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms" — does not, w i t h i n the meaning of Article 5 (2) (a) of the Optional Protocol, constitute an examination of the "same matter", as a claim by an individual submitted to the Human Rights Committee under the Optional Protocol. 3 3 The procedure governed by Economic and Social Council resolution 1503 ( X L V I I I ) therefore does not bar the H u m a n Rights Committee from considering an individual case. Also in one of the early cases considered, the H u m a n Rights Committee determined that a procedure established by a non-governmental organization (such as the Inter-Parliamentary Council of the Inter-Parliamentary Union) does not constitute a procedure of international investigation or settlement w i t h i n the meaning of Article 5 (2) (a) of the Optional Protocol. W i t h respect to Communication Nos. 146/1983 and 148 to (Baboeram-Adbin et al. v. Suriname) the Committee observed

154/1983

that a study by an intergovernmental organization either of the human rights situation in a given country (such as that by the I A C H R ) or a study of the trade union rights situation in a given country (such as the issues examined by the Committee on Freedom of Association of the International Labour Organisation [ I L O ] ), or of a human rights problem of a more global character (such as that of the Special Rapporteur of the Commission on Human Rights on summary or arbitrary executions), although such studies might refer to or draw on information concerning individuals, cannot be seen as being the same matter as the examination of individual cases within the meaning of Article 5 (2) (a) of the Optional Protocol. Secondly, a procedure established by non-governmental organizations (such as Amnesty International, the International Commission of Jurists or the International Committee of the Red Cross, irrespective of the latter's standing in international law) does not constitute a procedure of international investigation or settlement within the meaning of Article 5 (2) (a) of the Optional Protocol. 34 31 32 33 34

HRC 1983 report, Annex X I I I , para. 7.2. U N Doc. ESCOR Forty-eighth Session, Supplement no. 1A (E/4832/Add. 1), p. 8 et seq. HRC Selected Decisons, 17. H R C 1985 report, Annex X , para. 9.1.

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f)

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Reservations by States Parties

Several States parties have further limited the competence of the H u m a n Rights Committee to deal w i t h communications under the Optional Protocol. W i t h reference to Article 5 (2) (a) the Governments of Denmark, France, Iceland, Italy, Luxembourg, N o r w a y , Spain and Sweden made reservations upon ratification of the Optional Protocol, precluding the competence of the Committee to consider a communication from an individual i f the matter has already been examined under another procedure of international investigation or settlement. This reservation goes beyond the provision in the Optional Protocol which only precludes consideration w i t h respect to cases which are simultaneously being examined elsewhere but not w i t h respect to cases the consideration of which has been concluded under another procedure. I n case N o . 121/1982 ( A . Μ. ν . Denmark ), the author had first submitted his communication to the European Commission of Human Rights, which had declared i t inadmissible as manifestly ill-founded. The Committee at its sixteenth session concluded that i t was not competent to consider the communication in the light of the State party's reservation. 35 I n a subsequent case concerning another State party (O. F. ν . Norway) the author first approached the European Commission of Human Rights but was informed by its Secretariat that i t was already too late to submit an application. The State party itself informed the Committee that it would not object to the admissibility of the communication on the basis of its reservation, because the case had not been examined by the European Commission of H u m a n Rights. 3 6 I n a more recent case N o . 168/1984 (V. 0 . v. Norway) the State party pleaded its reservation and the Committee found the objection to be dispositive of the matter. A t its twenty-fifth session, the Committee, in declaring the communication inadmissible, shed further light on the meaning of the term "the same matter", as applied to communications submitted both to the Committee and to another international body: The Committee notes that the Norwegian reservation to Article 5 (2) of the Optional Protocol stipulates that the Committee shall lack competence to consider a communication if "the same matter" has already been examined under other international procedures. This phrase in the view of the Committee refers, with regard to identical parties, to the complaints advanced and facts adduced in support of them. Thus the Committee finds that the matter that is before the Committee now is in fact the same matter that was examined by the European Commission. While fully understanding the circumstances which have led the author to make a communication under the Covenant, the Committee finds that 35 HRC 1982 report, Annex X X , para. 6. 3β HRC 1985 report, Annex X I I , para. 3.3.

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the State party's reservation operates to preclude it from examining the communication. 37

g) Exhaustion of Domestic Remedies Pursuant to Article 5 (2) (b) of the Optional Protocol the Committee shall not consider any communication unless i t has ascertained that the author has exhausted all available domestic remedies. The rule of exhaustion is a general rule of international law whereby a claimant is not entitled to approach an international body of investigation or settlement unless and until he has exhausted the means available to him in the State concerned for redressing his injuries, whether by appeal to the domestic courts or to the administrative authorities. This is a reasonable rule which is predicated both on practicality and on due respect for the sovereignty of States. A number of communications before the Committee have been declared inadmissible on this ground (e. g. Nos. 26/1978, 39/1978 and 41/1979). I n its decisions on admissibility, the Committee has clarified the meaning of Article 5 (2) (b) of the Optional Protocol, explaining inter alia that "exhaustion of domestic remedies can be required only to the extent that these remedies are effective and available" 3 8 and in case N o . 89/1981 {Muhonen v. Finland) the Committee further clarified that an "extraordinary remedy of seeking the annulment of the decisions of the Ministry of Justice" does not constitute an effective remedy w i t h i n the meaning of Article 5 (2) (b) of the Optional Protocol. 3 9 I n a number of early cases Uruguay contended that the authors had failed to exhaust domestic remedies. I t submitted to the Committee a general description of remedies provided under the law of Uruguay, without, however, linking these remedies to the specific circumstances of each case. The Committee considered that this was insufficient and informed the State party that i t would be necessary to give "details of the remedies which i t submitted had been available to the author in the circumstances of his case, together w i t h evidence that there would be a reasonable prospect that such remedies would be effective" 4 0 (No. 4/1977, William Torres Ramirez ν . Uruguay). The provisional rules of procedure also provide that a decision on admissibility may be reviewed in the light of any explanations or statements submitted by the State party under Article 4 (2) of the Optional Protocol (Rule 93 [4] ). 4 1 Such a review requires the State party to give "specific details of domestic remedies which i t claims to have been available to the alleged victim, 37 H R C 1985 report, Annex X I X , para. 4.4. 38 H R C 1984 report, para. 584. 30 H R C 1985 report, Annex V I I , para. 5.2. and 6.1. 40 H R C 1980 report, Annex V I I I , para. 5. 41 H R C Selected Decisions, 156.

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25

together w i t h evidence that there would be a reasonable prospect that such remedies would be effective". 42 I n case N o . 113/1981 (F. L. v. Canada) the Committee first declared the communication admissible at its nineteenth session, but i t invited the State party to submit additional information on available domestic remedies. A t its twenty-fourth session in A p r i l 1985, the Committee revised its prior decision as follows: Pursuant to Rule 93 (4) of its provisional rules of procedure, the Human Rights Committee has reviewed its decision on admissibility of 25 July 1983. O n the basis of the additional information provided by the Canadian Government, the Committee concludes that the authors could have obtained redress for the violation complained of by seeking a declaratory judgement. The Committee has stressed in other cases that remedies the availability of which is not reasonably evident cannot be invoked by the Government to the detriment of the author in proceedings under the Optional Protocol. According to the detailed explanations contained in the submission of 17 February 1984, however, the legal position appears to be sufficiently clear in that the specific remedy of a declaratory judgement was available and, if granted, would have been an effective remedy against the authorities concerned . . . I n the light of the above considerations, the Committee finds that it is precluded under Article 5 (2) (b) of the Optional Protocol from considering the merits of the case and decides : 1. The decision of 25 July 1983 is set aside. 2. The communication is inadmissible.48

h)

Incompatibility

The Committee can consider communications only insofar as they relate to alleged violations of rights contained in the International Covenant on C i v i l and Political Rights. Communications relating to alleged violations of other rights must therefore be declared inadmissible ratione materiae as incompatible w i t h the provisions of the Covenant. For instance, the Committee at its seventh session had to declare Communication N o . 53/1979 (Κ. Β. ν . Norway) inadmissible because "the right to dispose of property, as such, is not protected by any provision of the International Covenant on C i v i l and Political Rights". 4 4 Similarly, at its eighteenth session, the Committee declared Communication N o . 129/1982 (/. Μ. ν . Norway) inadmissible because "the assessment of taxable income and allocation of houses are not themselves matters to which the Covenant applies". 45 42 43 44 45

Case No. 29/1978, E.B. v. S, H R C Selected Decisions, 12. H R C 1985 report, Annex X V , para. 10.1. and 11. H R C Selected Decisions, 24. HRC 1983 report, Annex X X V I I , para. 5.

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I n case N o . 117/1981 (F . A. v. Italy) the authors had claimed that the extradition proceedings, initiated by I t a l y against the alleged victim, at that time living in France, constituted a violation of the Covenant. A t its twentyfirst session the Committee declared that the claim was without foundation. "There is no provision of the Covenant making i t unlawful for a State party to seek extradition of a person from another country. This claim is therefore inadmissible under Article 3 of the Optional Protocol, as incompatible w i t h the provisions of the Covenant, ratione materiae". 4* i) Substantiation of Allegations Although at the stage of admissibility an author of a communication need not prove the alleged violation, he must submit sufficient evidence in substantiation of his allegations as w i l l constitute a prima facie case. The Committee has declared a number of communications inadmissible on the ground of non-substantiation of allegations. The Optional Protocol has no provision to declare communications inadmissible on the ground of being "manifestly ill-founded" (as in the European system, Article 27 (2) of the European Convention). The Committee has recently disposed of such cases by declaring that the author "has no claim under Article 2 of the Optional Protocol" (e.g. Nos. 170/1984, Ε. Η. v. Finland 46a; 173/1984, M. F. v. Netherlands 47; 174/1984, J. K. v. Canada™; and 187/1985, J. H. v. Canada) 49. j)

Abuse of the Right of Submission

Under Article 3 of the Optional Protocol, the Committee shall declare inadmissible a communication which it considers to be an abuse of the right of submission. I n case N o . 72/1980 (K. L. v. Denmark ), where the author had alleged violations of rights not protected in the Covenant, had failed to substantiate in fact or law other allegations which pertained to rights protected by the Covenant and had himself indicated that he still intended to pursue further domestic remedies, the Committee concluded that " i n these circumstances, the submission of the communication must be regarded as an abuse of the right of submission under Article 3 of the Optional Protocol". 5 0 The Committee, however, has been reluctant to declare communications inadmissible on the ground of abuse and prefers to declare them "incompat46 H R C 1984 report, Annex X I V , para. 13.4. 46a HRC 1986 report, Annex I X D, para. 5. 47 H R C 1985 report, Annex X I I I , para. 4. 48 H R C 1985 report, Annex X I V , para. 7.3. 40 HRC 1985 report, Annex X V I I I , para. 4.2. so HRC Selected Decisions, 26.

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27

ible" w i t h the Covenant under Article 3 of the Optional Protocol. For instance, in case N o . 104/1981 (/. T. v. Canada) the author claimed a violation by Canada of his right to freedom of expression under Article 19 of the Covenant, because he had been prevented from disseminating anti-Semitic messages through the telephone and postal systems. The Committee found that Canada had an obligation under Article 20 (2) of the Covenant to prohibit such advocacy of racial or religious hatred. " I n the Committee's opinion therefore, the communication is, in respect of this claim, incompatible w i t h the provisions of the Covenant, w i t h i n the meaning of Article 3 of the Optional Protocol". 5 1 k)

Competence of the Committee vis-à-vis National Law and Decisions

Several of the conditions for admissibility already examined are at the same time, broadly speaking, limitations on the competence of the Committee. Communications must directly or indirectly emanate from the alleged victim and must relate to facts relevant in time and subject-matter; i f not, they are declared inadmissible as incompatible ratione personae, temporis or materiae , respectively. I n practice, it is often necessary to elaborate on the limited competence of the Committee as regards the subject-matter complained of, especially when the victim questions national law and decisions. Here i t should be recalled that the competence of the Committee derives, of course, from the Covenant and the Optional Protocol and only from these instruments; hence i t has no power or function on any other basis and in particular not w i t h i n national legal systems. I t is not a "fourth instance" 52 following the exhaustion of domestic remedies and cannot be used as a forum for pursuing a complaint on the basis of domestic law. As a point of departure, therefore, i t must be irrelevant for the Committee whether, for instance, a national law is constitutional or unconstitutional, or whether national courts are right or wrong under national law. What matters is only whether the laws, actions and judgements raise issues concerning or interfere w i t h rights protected under the Covenant. Since the 5

* H R C 1983 report, Annex X X I V , para. 8. This unofficial term was coined when the European Commission from the outset took a similar stand. A standard formula in its practice reads as follows: With regard to the judicial decision(s) of which the applicant complains, the Commission recalls that, in accordance with Art. 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant jurisprudence (See e. g. decision on the admissibility of application No. 458/59 etc.). 52

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parties often repeat their arguments about national law and decisions, the Committee in a number of cases has had to explain the scope of its competence in more detail. I n case N o . 58/1979 (Anna Maroufidou v. Sweden ), the Committee, in its views under Article 5 (4) of the Optional Protocol, delimited its own jurisdiction: The Committee takes the view that the interpretation of domestic law is essentially a matter for the courts and authorities of the State party concerned. I t is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly in the case before it under the Optional Protocol, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power. 5 3

The Committee did not indicate any explicit basis for its caveat regarding bad faith or abuse of power. O f course, neither the Covenant nor the Optional Protocol afford any basis for any general competence of the Committee to test the good faith of national authorities or check their possible abuse of power as such. What the Committee appears to have had in mind is that such circumstances are likely to bring the provisions of the Covenant into play. Hence, the saving clause in the Maroufidou case is best understood as indicating that the Committee would have competence when, for instance, i t has to test the observance of such Covenant rights as equality before the law (Article 26) and those connected w i t h a fair hearing before courts and tribunals (Article 14). Usually the distance is narrow between subjective bad faith or abuse and objective unfairness, and evidence of the former is therefore relevant to the latter. I f applied more generally, i. e. to all "competent authorities of the State party" apart from courts, the Maroufidou formula would find only ambiguous and partial support in the Covenant, for example in those provisions which refer to " l a w f u l " acts (of deprivation of liberty, Article 9), or restrictions imposed " i n conformity w i t h the l a w " (Article 21), and perhaps to a certain extent in such general provisions as Article 5 of the Covenant. This is not the place, however, to enter into a general discussion of the possibility of renvoi from the Covenant to domestic law. I n its subsequent decision in case N o . 27/1978 (L. Pinkney v. Canada ), in which the author claimed that the Canadian courts had failed to evaluate missing evidence in his case and that such evidence would have assisted his defence, the Committee observed that: As regards the allegedly missing evidence, it has been established that the question whether it existed, and, if so, whether it would be relevant, was considered both 58 HRC 1981 report, Annex X V I I , para. 10.1.

29

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by the trial judge and by the Court of Appeal. I t is true that in the absence of the allegedly missing material itself, the Court's findings depended on an assessment of the information before them. However, it is not the function of the Committee to examine whether this assessment by the Courts was based on errors of fact, or to review their application of Canadian law, but only to determine whether it was made in circumstances indicating that the provisions of the Covenant were not observed. The Committee recalls that M r . Pinkney was unable to convince the courts that such evidence would in any way have assisted his defence. Such a point is normally one on which the assessment of the domestic courts must be decisive.54 M o r e recently, at its t w e n t y - t h i r d session, t h e C o m m i t t e e declared C o m m u n i c a t i o n N o . 174/1984 ( / . K. v. Canada) i t was b e y o n d its competence " t o r e v i e w

inadmissible a n d observed t h a t

findings

of fact made b y national

t r i b u n a l s o r t o determine w h e t h e r n a t i o n a l t r i b u n a l s p r o p e r l y e v a l u a t e d n e w evidence s u b m i t t e d o n a p p e a l " . 5 5 N o t w i t h s t a n d i n g this e v i d e n t r e s t r i c t i o n o n the C o m m i t t e e ' s competence, the consideration o f c o m m u n i c a t i o n s under t h e O p t i o n a l P r o t o c o l , as i n d i cated above, requires the C o m m i t t e e t o evaluate specific facts a n d t o test i n concrete cases the c o m p a t i b i l i t y o f n a t i o n a l l a w , as a p p l i e d , w i t h the p r o visions o f the C o v e n a n t . S o m e w h a t related t o this f u n c t i o n is t h e C o m m i t t e e ' s a u t h o r i t y t o i n t e r p r e t the C o v e n a n t . I n case N o . 50/1979 ( G . van Duzen Canada )

v.

the C o m m i t t e e observed t h a t

its interpretation and application of the International Covenant on Civil and Political Rights has to be based on the principle that the terms and concepts of the Covenant are independent of any particular national system of law and of all dictionary definitions. Although the terms of the Covenant are derived from long traditions within many nations, the Committee must now regard them as having an autonomous meaning. The parties have made extensive submissions, in particular as regards the meaning of the word "penalty" and as regards relevant Canadian law and practice. The Committee appreciates their relevance for the light they shed on the nature of the issue in dispute. O n the other hand, the meaning of the word "penalty" in Canadian law is not, as such, decisive. Whether the word "penalty" in Article 15 (1) should be interpreted narrowly or widely, and whether it applies to different kinds of penalties, "criminal" and "administrative", under the Covenant, must depend on other factors. Apart from the text of Article 15 (1), regard must be had, inter alia , to its object and purpose. 56 T h e C o m m i t t e e has also h a d the o p p o r t u n i t y o f p r o n o u n c i n g itself o n its general m a n d a t e i n c o n n e c t i o n w i t h the issue w h e t h e r the C o m m i t t e e has a HRC 1982 report, Annex V I I , para. 20—21. H R C 1985 report, Annex X I V , para. 7.2. se H R C 1982 report, Annex X I I , para. 10.2. See also Torkel Opsakl / Alfred de Zayas, in: Canadian Human Rights Yearbook vol. 1 (1983), 237—254 (250—253). 55

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right to have direct access to individuals who claim to be victims of violations of their rights under the Covenant and who are detained by a State party. The Committee has maintained that its mandate necessarily covers this right of direct access. One State party, however, has challenged this position. I n the Committee' views under Article 5 (4) of the Optional Protocol in ca$e N o . 63/ 1979 (V. Setelichv. Uruguay) the Committee rejected the contention that i t had exceeded its mandate when in its decision of 24 October 1980, it requested the State party to afford to Raul Sendic Antonaccio the opportunity to communicate directly with the Committee. The Committee rejects the State party's argument that a victim's right to contact the Committee directly is invalid in the case of persons imprisoned in Uruguay. I f governments had the right to erect obstacles to contacts between victims and the Committee, the procedure established by the Optional Protocol would, in many instances, be rendered meaningless. I t is a prerequisite for the effective application of the Optional Protocol that detainees should be able to communicate directly with the Committee. The contention that the International Covenant and the Protocol apply only to States, as subjects of international law, and that, in consequence, these instruments are not directly applicable to individuals is devoid of legal foundation in cases where a State has recognized the competence of the Committee to receive and consider communications from individuals under the Optional Protocol. That being so, denying individuals who are victims of an alleged violation their right to bring the matter before the Committee is tantamount to denying the mandatory nature of the Optional Protocol. 57 I n subsequent cases the Committee has established the practice of requesting State parties to forward copies of the Committee's views to detained victims. For instance, in case N o . 84/1981 (Dermit Barbato v. Uruguay ), the Committee stated "that the State party is under an obligation . . . to transmit a copy of these views to Guillermo Dermit". 58 (See also the views in cases Nos. 88/1981, 106/1981, and 43/1979.) 2. Substantive Issues under the Covenant I n its views on the merits of communications under Article 5 (4) of the Optional Protocol the Committee has applied and explained its understanding of many provisions of the International Covenant on C i v i l and Political Rights. There is no unanimity about the legal basis for an interpretative role of the Committee or its effects, generally speaking. From time to time some Committee members have stressed that opinions expressed by the Committee on matters o f interpretation are not binding and that State parties have reserved this function for themselves. But in practice the Committee works on the 57

H R C 1982 report, Annex V I I I , para. 18. 58 H R C 1983 report, Annex IV, para. 11. See, supra , note 7,

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assumption that interpretation is inherent in stating "views" as well as in making "general comments" under Article 40 in connection w i t h State reports. A n d since the Committee is not likely to apply different standards in cases under the Optional Protocol, regard should also be had to the general comments in surveying the Committee's stand on substantive issues. Much of the case law of the Committee is simple; once the Committee has established the facts on which i t should formulate its views, the result is often obvious, as in the cases of torture or ill-treatment referred to below (Article 7). I n other cases, however, and to an increasing extent in the last few years, more subtle legal issues have also been considered, such as the question whether the Covenant, properly understood, is applicable to certain facts, or whether any of its limitation clauses can be invoked w i t h justification by the State party. The following survey w i l l illustrate a number of such issues. Apart from the question of limitation of rights, which we shall deal w i t h in relation to each of the articles referred to below, there is the more general question of derogation by States parties from certain rights and freedoms set forth in the Covenant (Article 4). This is also a substantive issue, to which we shall briefly turn at the end of this article. 59 Some of the issues considered under the substantive provisions of the Covenant have been: a) Article 6: The Right to Life 6 0 The right to life is dealt w i t h generally in Paragraph 1 of Article 6 of the Covenant, while Paragraphs 2 to 6 mostly concern the application of the death penalty. 59 For a detailed discussion of the limitation and derogation provisions of the Covenant, see the Proceedings of a Symposium held at Syracuse, Sicily in April/May of 1984 on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, in: Human Rights Quarterly vol. 7 (1985), 1—131. 60 The Committee has issued two general comments interpreting the content of Article 6. Both comments reject a narrow interpretation of the right to life and focus on grave issues arising under the first paragraph of Article 6, including the duty of States to prevent mass violence such as war; they emphasize that States should adopt positive measures to protect the right to life. The second and most recent general comment applies this approach more particularly to nuclear arms. Some of these matters are not likely to be addressed under the Optional Protocol as they are not easily "justiciable" at the request or on behalf of individual alleged victims, while other matters, sudi as killings by security forces or disappearances, have a direct bearing on such cases. In the first of these comments adopted at its 378th meeting on 27 July 1982 (16th session), the Committee noted (General comment 6 [16], in: HRC 1982 report, Annex V, p. 93 et seq., para. 1—4): The right to life enunciated in article 6 is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (article 4) . . . It is a right which should not be interpreted narrowly.

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There have been relatively few communications before the Committee involving Article 6 of the Covenant. I n case N o . 45/1979 (P. Camargo v. Colombia ), the Committee, commenting generally on Article 6, stated inter alia: The requirements that the right [to life] shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State. I n the present case it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year . . . The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life . . . In this respect, the Committee notes, in particular, a connection between article 6 and article 20, which states that the law shall prohibit any propaganda for war (paragraph 1) or incitement to violence (paragraph 2) as therein described. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life. The Committee, still in the context of the "inherent right to life" (Art. 6 [1] ), also referred to positive measures e. g. to "reduce infant mortality" and "eliminate malnutrition and epidemics". It then went on to comment on capital punishment (op. cit ., para. 5): While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the "most serious crimes". Accordingly, they ought to consider reviewing their criminal laws in this light . . . In its second general comment on Article 6, the Committee, at its 563rd meeting on 2 November 1984 (23rd session), after expressing its concern over the toll of human life taken by conventional wars, continued (General comment 14 [23], in: H R C 1985 report, Annex V I , p. 162 et seq., para. 4—7): It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today. This threat is compounded by the danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure . . . The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity. The Committee accordingly, in the interest of mankind, calls upon all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement to rid the world of this menace.

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33

to surrender to the police patrol or to offer any explanation of their presence or intentions . . . β 1

The Committee concluded: that the action of the police resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was disproportionate to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary to Article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as the police action was made justifiable as a matter of Colombian law by Legislative Decree N o . 0070 of 20 January 1978, the right to life was not adequately protected by the law of Colombia as required by Article 6 (1) . . . The Committee is accordingly of the view that the State party should take the necessary measures to compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to ensure that the right to life is duly protected by amending the law. 6 2

Perhaps the leading cases dealing w i t h Article 6 are Nos. 146/1983 and 148 to 154/1983 (Kanta Baboeram-Adhin et al. v. Suriname) decided by the Committee at its 24th session. I n its views under Article 5 (4) of the Optional Protocol the Committee declared: Article 6 (1) of the Covenant provides: "Every human being has the inherent right to life. This right shall be protected by law. N o one shall be arbitrarily deprived of his life." The right enshrined in this article is the supreme right of the human being. I t follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State. I n the present case it is evident from the fact that 15 prominent persons lost their lives as a result of the deliberate action of the military police that the deprivation of life was intentional. The State party has failed to submit any evidence proving that these persons were shot while trying to escape. The Human Rights Committee, acting under Article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the victims were arbitrarily deprived of their lives contrary to Article 6 (1) of the International Covenant on Civil and Political Rights. I n the circumstances, the Committee does not find it necessary to consider assertions that other provisions of the Covenant were violated. ei H R C 1982 report, Annex X I , para. 13.1. and 13.2. 62 Op. cit., para. 13.3. and 15.

3 GYIL 28

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The Committee therefore urges the State party to take effective steps (i) to investigate the killings of December 1982; (ii) to bring to justice any persons found to be responsible for the death of the victims; (iii) to pay compensation to the surviving families; and (iv) to ensure that the right to life is duly protected in Suriname. 63 I n case N o . 84/1981 (Dermit

Barbato

ν . Uruguay ),

the C o m m i t t e e observed

t h a t w h i l s t i t c o u l d n o t a r r i v e at a definite conclusion as t o w h e t h e r

the

v i c t i m h a d c o m m i t t e d suicide, was d r i v e n t o suicide o r was k i l l e d b y others w h i l e i n custody, " t h e inescapable conclusion is t h a t i n a l l the circumstances the U r u g u a y a n authorities either b y act o r b y omission w e r e responsible f o r n o t t a k i n g adequate measures t o p r o t e c t his life, as r e q u i r e d b y A r t i c l e 6 (1) o f the C o v e n a n t " . 6 4 T h e fate o f so-called " d i s a p p e a r e d persons" has also been dealt w i t h i n c o n n e c t i o n w i t h A r t i c l e 6. T h u s i n case N o . 30/1978 (Bleier C o m m i t t e e f o u n d t h a t the fact o f the disappearance o f Eduardo

v. Uruguay ),

the

Bleier in O c t o b e r

1975 d i d n o t alone establish t h a t he was arrested b y the U r u g u a y a n authorities. But, the allegation that he was so arrested and detained is confirmed (i) by the information, unexplained and substantially unrefuted by the State party, that Eduardo Bleiers's name was on a list of prisoners read out once a week at an army unit in Montevideo where his family delivered clothing for him and received his dirty clothing until the summer of 1976, and (ii) by the testimony of other prisoners that they saw him in Uruguayan detention centres . . . I t is therefore the Committee's view that . . . there are serious reasons to believe that the ultimate violation of Article 6 has been perpetrated . . . [T]he Committee urges the Uruguayan Government to reconsider its position in this case and to take effective steps . . . to establish what has happened to Eduardo Bleier since October 1975, to bring to justice any persons found to be responsible for his death, disappearance or ill-treatment, and to pay compensation to him or his family for any injury which he has suffered. 65 b)

A r t i c l e 7:

T h e R i g h t n o t t o be Subjected

to Torture or to Cruel, Inhuman or Degrading Treatment 66 A r t i c l e 7, w h i c h p r o h i b i t s t o r t u r e a n d o t h e r cruel, i n h u m a n o r d e g r a d i n g t r e a t m e n t o r p u n i s h m e n t , has been i n v o k e d i n a n u m b e r o f cases, m o s t l y concerning

Uruguay

(in

particular

N o s . 4/1977,

5/1977, 8/1977,

9/1977,

63 HRC 1985 report, Annex X , para. 14.3.—16. β4 HRC 1983 report, Annex I X , para. 9.2. es HRC 1982 report, Annex X, para. 13.4. et seq. 66 In its general comment on Article 7, the Committee has elaborated on the purpose and implications of this prohibition in various respects which may become important in future cases under the Optional Protocol. A point already made in a number of cases is the duty to investigate complaints about ill-treatment (see above, concerning evidence and burden of

35

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11/1977, 25/1978, 28/1978, and 110/1981).

33/1978, 37/1978,

52/1979,

63/1979,

73/1980,

67

I n these cases the authors h a v e m a d e d e t a i l e d descriptions o f v a r i o u s forms o f t o r t u r e a n d other cruel t r e a t m e n t allegedly i n f l i c t e d u p o n the v i c t i m s (such as beatings, electric shocks, i m m e r s i o n i n w a t e r t o a p o i n t near s u f f o c a t i o n , b u r n i n g w i t h cigarettes a n d p r o l o n g e d forced standing). Some o f the authors i d e n t i f i e d b y name the persons w h o h a d allegedly engaged i n the t o r t u r e . I n a l l the cases listed above the C o m m i t t e e f o u n d v i o l a t i o n s o f A r t i c l e 7. T h e C o m m i t t e e has f o u n d i t at times d i f f i c u l t t o circumscribe the c o n t e n t o f A r t i c l e 7. I t has therefore i n a n u m b e r o f cases m a d e findings o f v i o l a t i o n s o f A r t i c l e 7 together w i t h A r t i c l e 10 (1), as i n case N o . 49/1979 (D. v. Madagascar ),

w h e r e the v i c t i m h a d been h e l d incommunicado

Marais

f o r several

years i n a " c e l l measuring 1 meter (m.) b y 2 m . i n the basement o f the p o l i t i c a l proof) and to provide safeguards. In its general comment on Article 7, adopted at the 378th meeting on 23 July 1982 (16th session), the Committee observed, inter alia (General comment 7 [16]; in: HRC 1982 report, Annex V, p. 94, p. 94 et seq., para. 1—2): Its purpose is to protect the integrity and dignity of the individual. The Committee notes that it is not sufficient for the implementation of this article to prohibit such treatment or punishment or to make it a crime. Most States have penal provisions which are applicable to cases of torture or similar practices. Because such cases nevertheless occur, it follows from article 7, read together with article 2 of the Covenant, that States must ensure an effective protection through some machinery of control. Complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation. Among the safeguards which may make control effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees; provisions requiring that detainees should be held in places that are publicly recognized and that their names and places of detention should be entered in a central register available to persons concerned, such as relatives; provisions making confessions or other evidence obtained through torture or other treatment contrary to article 7 inadmissible in court; and measures of training and instruction of law enforcement officials not to apply such treatment. As appears from the terms of this article, the scope of protection required goes far beyond torture as normally understood . . . In the view of the Committee the prohibition must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure. Even such a measure as solitary confinement may, according to the circumstances, and especially when the person is kept incommunicado, be contrary to this article. 67 The first seven years of the work of the Committee have to some extent been characterized by the many cases dealt with concerning alleged torture and ill-treatment in Uruguay. Recent developments in that country indicate that this period has come to an end. However, the issue of remedies for violations occurring in the past is likely to continue to require the attention of Government authorities and perhaps the Committee. — Although somewhat out of context, it is tempting to mention at this time that on Human Rights Day, 10 December 1984, the General Assembly of the United Nations adopted by consensus and opened for signature, ratification and accession the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; see A/RES/39/46, Annex, in: GAOR Thirty-Ninth Session, Supplement No. 51 (A/39/51), p. 197 et seq.

3*

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p o l i c e p r i s o n at A m b o h i b a o " . 6 8 S i m i l a r l y , i n case N o . 115/1982 (John v. Madagascar ),

because the v i c t i m

"was kept in a solitary room

Wight a t the

[ p o l i t i c a l p o l i c e p r i s o n ] chained t o a bed s p r i n g o n the floor, w i t h m i n i m a l c l o t h i n g a n d a severe r a t i o n i n g o f f o o d " , a n d because d u r i n g h o s p i t a l i z a t i o n he was "chained t o the floor . . . a n d h e l d t o t a l l y I n case N o . 107/1981 (Quinteros

v. Uruguay)

incommunicado" .βθ the Committee found that

m e n t a l anguish suffered b y a m o t h e r because o f t h e disappearance o f her d a u g h t e r also constitutes a v i o l a t i o n o f A r t i c l e 7: The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. I n these respects, she too is a victim of the violations of the Covenant suffered by her daughter, in particular of Article 7 . 7 0 c) A r t i c l e 9 : T h e R i g h t t o L i b e r t y a n d Security o f P e r s o n 7 1 aa)

A r b i t r a r y Arrest and Detention (Article 9 [ 1 ] )

A l t h o u g h m a n y c o m m u n i c a t i o n s s u b m i t t e d t o the C o m m i t t e e c l a i m t h a t the v i c t i m has been subjected t o a r b i t r a r y

arrest a n d d e t e n t i o n , this a l l e g a t i o n

has p r o v e d t o be d i f f i c u l t t o establish, since States parties h a v e been able t o 68 HRC 1983 report, Annex X I , para. 17.4. 69 HRC 1985 report, Annex, para. 14. 70 HRC 1983 report, Annex X X I I , para. 14. 71 At its sixteenth session (378th meeting on 27 July 1982) the Committee adopted a general comment on Article 9, making the following clarification: "The Committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addition, educational purposes, immigration control, etc." (HRC 1982 report, Annex V). The Committee has also made clear, that inter alia the individual's right to have the legality of detention examined by a Court (Art. 9 [4], see below) as well as the duty of the State to ensure an effective remedy (Art. 2 [3] ) are applicable to all of these cases. Complaints in many parts of the world of alleged mental patients, vagrants, illegal immigrants etc. about their detention underline the potential importance of these statements for the Committee's practice under the Optional Protocol. Such cases of administrative detention without sufficient legal safeguards have increasingly occupied the European Commission and the European Court of Human Rights (Eur. Court H . R.) in recent years. Breaches of the corresponding provisions in Article 5 of the European Convention have been found in Judgments of the European Court in cases of detention in vagrancy centres in Belgium (de Wilde , Ooms and Versyp Cases, judgment of 18 June 1971, Eur. Court H. R., Series A, No. 12, p. 12 et seq.), in psychiatric hospitals in several countries such as the Netherlands (Winterwerp case, judgment of 24 October 1979, Eur. Court H. R. Series A, No. 33, p. 4), the United Kingdom (X. v. United Kingdom , judgment of 5 November 1981, Eur. Court H . R., Series A, No. 46, p. 4) and Italy (Luberti v. Italy , judgment of 23 February 1984, Eur. Court H. R., Series A, No. 75, p. 4) as well as in various forms of arrest under military discipline in the Netherlands (case of Engel and others , judgment of 8 June 1976, Eur. Court H. R., Series A, No. 22, p. 4) Further breaches were found by the Commission (Eur. Com. H. R.) in cases of arrest under military discipline in Switzerland, see application No 7341/76 ( £ g g 5 ) , Report of 4 March 1978, Eur. Com. H . R., Decisions and Reports vol. 15,

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37

show in most cases that the deprivation of liberty was carried out according to the law of the State concerned. I n the absence of an independent factfinding machinery, the Committee has experienced considerable difficulty in determining whether in the circumstances of each case the deprivation of liberty could be deemed arbitrary. I n cases, however, where the facts indicated that no arrest warrant had been issued or that the victim was not released from imprisonment after serving his term or after issuance of a release order, the Committee has found violations of Article 9 (1). Thus, for example, i n case N o . 25/1978 (C. Améndola and G. Baritussio v. Uruguay ), where one of the victims was kept in detention for over one month after fully serving her term of detention, and the other victim was "subjected to arbitrary detention under the 'prompt security measures' until 12 August 1978 after having signed on 15 August 1974 the document for her provisional release". 72 Similarly in case N o . 37/1979 {Soriano de Bouton v. Uruguay) the victim "was not released until one month after an order for her release was issued by the military court"; 7 3 and in case N o . 33/1978 (Leopoldo Buffo Caraballal ν . Uruguay) the victim "was not released until approximately six or seven months after an order for his release was issued by the military court". 7 4 I n case N o . 56/1979 (Lilian Celiberti v. Uruguay ), the victim had been abducted by agents of the State party in another country, brought across the border and charged w i t h "subversive association". The Committee found a violation of Article 9 (1), "because the act of abduction into Uruguayan territory constituted an arbitrary arrest and detention". 7 5 I n case N o . 16/1977 (D. Monguya Mbenge v. Zaire), the Committee found that Abraham Oyabi had been "arrested on 1 September 1977 in order to force him to disclose the whereabouts of Simon Biyanga and that he was not released from detention until late in 1978 or early in 1979. The State party has not claimed that there was any criminal charge against him. I n the view of the Committee, therefore, he was subjected to arbitrary arrest and detention contrary to Article 9 of the Covenant." 7 6 The "disappearance" of a person has also been found to entail a violation of Article 9 when evidence indicates the responsibility of the State party (No. 30/1978, Bleier ν . Uruguay ). Similarly, in case N o . 107/1981 {Quinteros v. Uruguay ), the Committee found that the evidence showed that "on 28 June p. 35, and in application No. 7468/76 (Santschi ) and others, Eur. Com. H. R., Decisions and Reports vol. 31, p. 5 seq.; these cases were concluded by resolutions of the Committee of Ministers, D H (79) 7 and D H (83) 5, respectively. 72 H R C 1982 report, Annex X V I I I , para. 13. 73 HRC 1981 report, Annex X I V , para. 13. 74 HRC 1981 report, Annex X I , para. 13. 75 H R C 1981 report, Annex X X , para. 11. 7β HRC 1983 report, Annex X, para. 20.

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1976, Elena Quinteros was arrested on the grounds of the Embassy of Venezuela at Montevideo by at least one member of the Uruguayan police force and that in August 1976 she was held in a military detention centre in Uruguay . . . " 7 7 Although the State party claimed to have no knowledge of these events, the Committee concluded that the author had submitted sufficient evidence to sustain a finding of a violation of Article 9. bb) The Right to be Brought Promptly Before a Judge and Tried w i t h i n a Reasonable Time (Article 9 [3] ) One of the most fundamental rights of persons who have been arrested or detained on a criminal charge is the right to be brought " p r o m p t l y " before a judicial officer, and to " t r i a l w i t h i n a reasonable time". The Committee has received many communications concerning alleged violations of this right, but it has not yet established the precise meaning of the terms used in Article 9 (3) of the Covenant. However, the relevant general comment, adopted by the Committee at its sixteenth session, sheds some light on these issues. I n particular, " p r o m p t l y " is held to mean that "delays must not exceed a few days", while the total length of "detention pending trial" is "another matter", and should be "as short as possible". 78 I n its views under the Optional Protocol the Committee has been less explicit in distinguishing these different elements of Article 9 (3). I t has held, however, that the article had been breached w i t h respect to a victim who had been arrested on 24 March 1977 and detained until 9 January 1978 (i . e. over nine months) without having been brought before a judge (No. 90/1981, Lueye Magana ex-Philibert v. Zaire).™ I n another case of an established breach the victim was arrested on 2 December 1980, was kept incommunicado and not brought before a judicial authority until 23 March 1981, i. e. over three months later (No. 84/1981, Dermit Barbato v. Uruguay) 80. (See also Nos. 5/1977, 6/1977, 77 HRC 1983 report, Annex X X I I I , para. 12.3. 78 The general comment on article 9, reads in relevant part as follows (General comment 8 (16), in: HRC 1982 report, Annex V, p. 95 et seq., para. 2—3): Paragraph 3 of Article 9 requires that in criminal cases any person arrested or detained has to be brought "promptly" before a judge or other officer authorized by law to exercise judicial power. More precise time limits are fixed by law in most States parties and, in the view of the Committee, delays must not exceed a few days. Many States have given insufficient information about the actual practices in this respect. Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the Committee, and members have questioned whether their practices have been in conformity with the entitlement "to trial within a reasonable time or to release" under paragraph 3. Pre-trial detention should be an exception and as short as possible . . . 78 HRC 1983 report, Annex X I X . 80 H R C 1983 report, Annex I X .

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8/1977, 10/1977, 11/1977, 28/1978, 32/1978, 33/1978, 37/1978, 44/1979, 52/1979, 63/1979, 66/1979, and 73/1980). O n the other hand, the Committee found no violation of Article 9 (3) where the person was arrested on 28 September 1978 and charged before a military examining judge on 7 November 1978, i. e. six weeks later ( N o 43/1979, Drescher ν . Uruguay). 81 Perhaps this finding fails to bear out the difference between judicial review of the arrest and detention, which shall take place " p r o m p t l y " , and the trial, which shall follow " w i t h i n a reasonable time". For the latter purpose six weeks is not particularly long, while for the former it would certainly be, as suggested by the different terms for the t w o matters. To prepare the trial is a different and much more time-consuming task than to establish the basis for pre-trial detention. 82 cc) The Right to Challenge the Lawfulness of one's Arrest and Detention (Article 9 [4] ). The Committee has considered many communications in which the authors have alleged that the right to take proceedings before a court in order to challenge their arrest has been violated, in particular because they were denied the remedy of habeas corpus. The Committee found a violation of Article 9 (4) in cases where it established that the victims had no way of challenging their arrest, because the remedy of habeas corpus was not applicable to persons arrested under the so-called "prompt security measures" in the State party concerned (Nos. 4/1977, 5/1977, 6/1977, 8/1977, 9/1977, 10/1977, 11/1977, 25/1978, 28/1978, 32/1978, 33/1978, 37/1978, 43/1979, and 44/1979. I n case N o . 46/1979 (O. Fais Borda et al. v. Colombia ), the Committee noted: "As to the allegations of breaches of the provisions of Article 9 of the Covenant, i t has been established that the alleged viatims did not have recourse to habeas corpus", 83 The Committee concluded that the provision had been violated because the victims "could not themselves take proceedings in order that a court might decide without delay on the lawfulness of their detention". 8 4 si HRC 1983 report, Annex X V I I I . 82 The practice of the European organs in corresponding cases offers instructive parallels: They accept only a few days' delay in review of detention by a judicial officer, but have on the other hand acquiesced in periods of pre-trial detention of years' duration. Two cases among many must suffice to illustrate these different issues: The Commission recently unanimously found a breach by Sweden in a case where the victim had been brought before a judge one week after his arrest — i. e. not sufficiently "promptly" (although he had thereupon been tried within a month). A friendly settlement was reached before the European Court, the Government making important concessions. See the Skoogström case, Judgment of 2 October 1984 (not yet printed). On the other hand, pre-trial detention of three years and five months in Germany did not, in the Court's opinion, exceed a reasonable time in the circumstances of the Wemhoff case, judgment of 27 June 1968, Eur. Court H. R., Series A, No. 7, P. 4. 83 H R C 1982 report, Annex X I X , para. 13.4. 84 op. cit., para. 14.

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For one of the two victims in this case a breach was also found of Article 9 (3). I t would seem to follow that a person detained on a specific criminal charge may invoke both Paragraph 3 and Paragraph 4 of Article 9. But many of the cases of breaches of Article 9 (4) confirm that this right is independent of such a charge and arises, in particular, when someone is detained on security grounds, which is often the justification given for political detention. Whether or not such detention is considered as compatible w i t h Article 9 as a whole (not arbitrary etc.), there must be the possibility of court review as required under Article 9 (4). This right also has potential application in many other cases.85 dd) The Right to Compensation for U n l a w f u l Arrest or Detention (Article 9 [5] ) I n a number of cases the Committee has expressed the view that the State party is under an obligation " t o provide effective remedies to the victim, including compensation in accordance w i t h Article 9 (5) of the Covenant" (No. 9/1977 8 6 ; see also 8/1977, 25/1978, 90/1981, 107/1981, 132/1982). Compensation under Article 9 (5) is granted only w i t h respect to "unlawful arrest or detention", which according to the Committee's practice covers not only breaches of Article 9 (1), but also breaches of Article 9 (3) and (4). Furthermore, the Committee has frequently recommended that the State party pay compensation to victims of violations of other articles of the Covenant such as Articles 6, 7, 10 and 14. (See e. g. Nos. 30/1978, 45/1979, 52/1979, 70/1980 87 and 146/148—154/1983 88 ). The duty to do so may be said to follow from Article 2 (3) of the Covenant. d) Article 10: The Right to be Treated Humanely during Imprisonment 8 9 A violation of the first Paragraph of this Article, which provides that all persons deprived of their liberty shall be treated w i t h respect for the inherent 85 The general comment quoted above under Article 9 (1) and 9 (3) also clarifies the applicability of Article 9 (4) to many categories of deprivation of liberty outside criminal cases. 8β H R C 1980 report, Annex V, para. 13. 87 H R C 1981 report, Annex X I X , para. 14; H R C 1982 report, Annex X, para. 15; HRC 1982 report, Annex X I , para. 15; H R C 1982 report, Annex X V I , para. 13. 88 H R C 1985 report, Annex X, para. 16. 89 The Committee adopted a general comment on Article 10 at its sixteenth Session (378th meeting on 27 July 1982). It provides in relevant part (General Comment 9 [16] H R C 1982 report, Annex V, p. 96 et seq., paras 2—4, 6, 8): The Committee notes in particular, that paragraph 1 of this article is generally applicable to persons deprived of their liberty, whereas paragraph 2 deals with accused as distinct from convicted persons, and paragraph 3 with convicted persons only . . . The wording of paragraph 1, its context — especially its proximity to article 9, paragraph 1, which

41

Human Rights Committee

d i g n i t y o f the h u m a n person, has been f o u n d i n a n u m b e r o f cases, i n c l u d i n g case N o . 49/1979 ( D . Marais

ν . Madagascar ),

w h e r e the v i c t i m h a d been h e l d

" i n a cell measuring 1 m . b y 2 m . i n the basement o f the p o l i t i c a l police p r i s o n at A m b o h i b a o a n d has been h e l d incommunicado 109/1981 (Gômez

de Voituretv.

was k e p t i n s o l i t a r y

Uruguay ),

ever s i n c e " 9 0 , i n case N o .

"because Teresa Gomez

deVoituret

confinement f o r several m o n t h s i n c o n d i t i o n s

which

f a i l e d t o respect the i n h e r e n t d i g n i t y o f the h u m a n p e r s o n " 9 1 , i n case N o . 85/1981 (Romero v. Uruguay ),

"because Hector

Alfredo

Romero

has n o t been

treated w i t h h u m a n i t y a n d w i t h respect f o r the i n h e r e n t d i g n i t y o f t h e h u m a n person, i n p a r t i c u l a r because he was k e p t incommunicado

a t an u n k n o w n

place o f d e t e n t i o n f o r several m o n t h s ( f r o m N o v e m b e r 1976 t o the m i d d l e o f 1977) d u r i n g w h i c h t i m e his fate a n d his whereabouts w e r e u n k n o w n " 9 2 . (See also N o s . 4/1977, 5/1977, 8/1977, 10/1977, 11/1977, 25/1977, 27/1978, 30/1978, 33/1978, 44/1979, 56/1979, 63/1979, 70/1980, 73/1980 a n d 115/1982). P a r a g r a p h 2 o f A r t i c l e 10 p r o v i d e s f o r the r i g h t o f accused persons t o be segregated f r o m c o n v i c t e d persons a n d prescribes special t r e a t m e n t f o r juveniles. I n case N o . 27/1978 ( L . Pinkney

ν . Canada)

the Committee noted:

that the requirement of Article 10 (2) of the Covenant that "accused persons also deals with all deprivations of liberty — and its purpose support a broad application of the principle expressed in that provision. Moreover, the Committee recalls that this article supplements article 7 as regards the treatment of all persons deprived of their liberty. The humane treatment and the respect for the dignity of all persons deprived of their liberty is a basic standard of universal application which cannot depend entirely on material resources. While the Committee is aware that in other respects the modalities and conditions of detention may vary with the available resources, they must always be applied without discrimination, as required by article 2 (1). Ultimate responsibility for the observance of this principle rests with the State as regards all institutions where persons are lawfully held against their will, not only in prisons but also, for example, hospitals, detention camps or correctional institutions . . . Sub-paragraph 2 (b) of the article calls, inter alia , for accused juvenile persons to be separated from adults . . . This is an unconditional requirement of the Covenant. It is the Committee's opinion that, as is clear from the text of the Covenant, deviation from States parties' obligations under sub-paragraph 2 (b) cannot be justified by any consideration whatsoever . . . The Committee further notes that the principles of humane treatment and respect for human dignity set out in paragraph 1 are the basis for the more specific and limited obligations of States in the field of criminal justice set out in paragraphs 2 and 3 of article 10. The segregation of accused persons from convicted ones is required in order to emphasize their status as unconvicted persons who are at the same time protected by the presumption of innocence stated in article 14, paragraph 2. The aim of these provisions is to protect the groups mentioned, and the requirements contained therein should be seen in that light. Thus for example, the segregation and treatment of juvenile offenders should be provided for in such a way that it promotes their reformation and social rehabilitation. »0 H R C 1983 report, Annex X I , para. 17.4. oi HRC 1984 report, Annex X, para. 13. »2 HRC 1984 report, Annex I X , para. 13.

42

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shall, save in exceptional circumstances, be segregated from convicted persons" means that they shall be kept in separate quarters (but not necessarily in separate buildings). The Committee would not regard the arrangements described by the State party whereby convicted persons work as food servers and cleaners in the remand area of the prison as being incompatible with Article 10 (2) (a), provided that contacts between the two classes of prisoners are kept strictly to a minimum necessary for the performance of those tasks. 93

e) Article 12: The Right to Freedom of Movement and to Leave any Country 9 4 Most recently, at its twenty-seventh session in March/April 1986, the Committee adopted views in t w o Zairian cases concerning inter alia the right to freedom of movement. I n Ngalula et al. v. Zaire (CCPR/C/27/D/138/1983 para. 10 — to be published as Annex V I I I A in H R C 1986 report) the Committee found a violation of Article 12 (1) "because they were deprived of their freedom of movement during long periods of administrative banishment"; similarly, in Mpaka-Nsusuv. Zaire (CCPR/C/27/D/157/1983 para. 10 — to be published as Annex V I I I D in H R C 1986 report) the Committee found a violation of Article 12 (1) "because he was banished to his village of origin for an indefinite period". There has also been a number of cases raising issues under Article 12 (2) concerning the right to leave any country, including one's own, and, in particular, the question as to how a refusal to issue a passport to a citizen may affect the exercise of that right ("passport cases"). The first case involved a journalist living abroad, whose passport had not been renewed upon expiry on 27 September 1977. I n response to the Committee's decision on admissibility (case N o . 31/1978, G. Waksman v. Uruguay ), the State party informed the Committee that it had instructed the relevant consulate to renew the claimant's passport, whereupon the Committee decided to discontinue consideration of the case.95 I n another case the Committee found a violation of Article 12 (2) of the Covenant, because the victim had been "refused the issuance of a passport without any justification therefor, thereby preventing her from leaving any country including her o w n " (No. 57/1979, S. Vidal Martins v. Uruguay) 9*. I n a third case the Committee clarified further the content of Article 12 (2): As to the alleged violation of Article 12 (2) of the Covenant, the Committee has observed that a passport is a means of enabling an individual "to leave any country, including his own"

as required by that provision: consequently, it

follows from the very nature of that right that, in the case of a citizen resident abroad, Article 12 (2) imposes obligations on the State of nationality as well as »3 94 95 9®

H R C 1982 report, Annex V I I , para. 30. The Committee has not yet adopted any general comment concerning article 12. HRC 1980 report, Annex V I I . HRC 1982 report, Annex X I I I , para. 9.

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43

on the State of residence and, therefore, Article 2 (1) of the Covenant cannot be interpreted as limiting the obligations of Uruguay under Article 12 (2) to citizens within its own territory. The right recognized by Article 12 (2) may, in accordance with Article 12 (3), be subject to such restrictions as are "provided by law, are necessary to protect national security, public order (ordre public ), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the Covenant". There are, therefore, circumstances in which a State, if its law so provides, may refuse passport facilities to one of its citizens. However, in the present case, the State party has not, in its submissions to the Committee, put forward any such justification for refusing to renew the passport of Mabel Pereira Monter ο P 1 (No. 106/1981, M. Pereira Montero ν . Uruguay ; see also No. 108/1981, C. Varela Nunez v. Uruguay.)

f)

Article 13: The Right of an Alien not to be Expelled Arbitrarily from his Country of Residence98

The Covenant does not provide for a right to asylum, but "an alien lawfully in the territory of a State party . . . may be expelled therefrom only in pursuance of a decision reached in accordance w i t h law". The application of this 97 H R C 1983 report, Annex X V I I , para. 9.4. 98 At its 27th session in April 1986 the Committee adopted a general comment on the position of aliens under the Covenant (General comment 15 [27], CCPR/C/21/Add. 5, HRC 1986 report, Annex VI). It provides in paras 9 and 10 that Article 13 is applicable to all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise. If such procedures entail arrest, the safeguards of the Covenant relating to deprivation of liberty (Arts. 9 and 10) may also be applicable. If the arrest is for the particular purpose of extradition, other provisions of national and international law may apply. Normally an alien who is expelled must be allowed to leave for any country that agrees to take him. The particular rights of Article 13 only protect those aliens who are lawfully in the territory of a State party. This means that national law concerning the requirements for entry and stay must be taken into account in determining the scope of that protection, and that illegal entrants and aliens who have stayed longer than the law or their permits allow, in particular, are not covered by its provisions. However, if the legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with Article 13. It is for the competent authorities of the State party, in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing, however, such requirements under the Covenant as equality before the law (Art. 26). Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out "in pursuance of a decision reached in accordance with law", its purpose is clearly to prevent arbitrary expulsions. On the other hand, it entitles each alien to a decision in his own case and, hence, Article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions. This understanding, in the opinion of the Committee, is confirmed by further provisions concerning the right to submit reasons against expulsion and to have the decision reviewed by and to be represented before the competent authority or someone designated by it. An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one. The principles of Article 13 relating to appeal against expulsion and the entitlement to review by a competent

44

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p r o v i s i o n o f A r t i c l e 13 was e x a m i n e d i n case N o . 58/1979 (Anna

Maroufidou

v. Sweden ), w h e r e the C o m m i t t e e u n d e r l i n e d t h a t , whereas the article applies o n l y t o an a l i e n " l a w f u l l y i n the t e r r i t o r y " o f a State p a r t y , i t was n o t i n dispute t h a t Anna

Maroufidou

was a l a w f u l resident i n Sweden w h e n the

question o f her e x p u l s i o n arose. The only question is whether the expulsion was "in accordance with law" . . . The Committee takes the view that the interpretation of domestic law is essentially a matter for the courts and authorities of the State party concerned. I t is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly in the case before it under the Optional Protocol, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power." N o violation was found in that case. A t its t w e n t y - t h i r d session the C o m m i t t e e declared C o m m u n i c a t i o n 173/1984 (M.

F. ν . the Netherlands)

inadmissible;

there the

author

No. had

c l a i m e d a n u m b e r o f breaches o f the C o v e n a n t b y the State p a r t y , because he h a d been denied a s y l u m a n d was threatened w i t h expulsion. T h e C o m m i t t e e held: A thorough examination of the communication has not revealed any facts in substantiation of the author's claim that he is a victim of a breach by the State party of any rights protected by the Covenant. I n particular, it emerges from the author's own submission that he was given ample opportunity, in formal proceedings including oral hearings, to present his case for sojourn in the Netherlands. The Committee, accordingly, concludes that the author has no claim under Article 2 of the Optional Protocol. 100 g)

A r t i c l e 14: T h e R i g h t t o a F a i r H e a r i n g

A r t i c l e 14 of the C o v e n a n t , as the C o m m i t t e e has observed, is of a complex nature and . . . different aspects of its provisions will need specific comments. A l l of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. T h i s is h o w the C o m m i t t e e began its recent general c o m m e n t o n A r t i c l e 1 4 . 1 0 1 I n d e e d , the r i g h t t o a f a i r h e a r i n g i n c o u r t is one o f the cornerstones o f the authority may only be departed from when "compelling reasons of national security" so require. Discrimination may not be made between different categories of aliens in the application of Article 13." 90 HRC 1981 report, Annex X V I I , para. 10.1. HRC 1985 report, Annex X I I I , para. 4. 101 Adopted at the 516th meeting held on 12 April 1984, HRC 1984 report, Annex VI, page 143, para. 1.

Human Rights Committee

45

Covenant as a guarantee of the rule of law. This general comment w i t h its 19 paragraphs is the most comprehensive of all so far adopted, but by no means exhausts the numerous issues of principle and practice arising in the interpretation and application of Article 14. One may expect, for example, that the Committee w i l l soon have to consider the scope of Article 14 (1), which lays down the most important principles for a fair hearing. The Committee has yet to clarify the extent to which Article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine "rights and obligations in a suit at l a w " . Besides private law disputes, which clearly must be covered, matters such as the rights and obligations of individuals towards the State are likely to be brought up for consideration. But how broadly does Article 14 guarantee a right to a court hearing in such "public law disputes"? I n other words, the question of a right to judicial review of administrative action arises. So far, no communication raising this problem has reached the stage of the merits. However, in a complex decision in case N o . 112/1981 (Y. L. v. Canada) 101* concerning a complaint about decisions by a pension review board, the Committee found that the guarantees of Article 14 (1) did not apply because a "suit at l a w " was not involved. The Communication was declared inadmissible. Experiences of similar bodies suggest that i t may become a prominent area of controversy in the years to come. 102 Apart from this uncertainty about the full scope of Article 14 (1), other issues of principle are looming in the background. I t may be noted that the rest of the Article — Paragraphs (2) to (7) — concerns only criminal procedures, which the Covenant regulates in much more detail than other court procedures. The general comment referred to elaborates on many principles in a more general way than the Committee has done in its views under the Optional Protocol, stating, for instance, that the "presumption of innocence" in criminal cases implies "a duty for all public authorities to refrain from 101a HRC 1986 report, Annex I X A. 102 The similar provision in the European Convention, Article 6 (1), concerning the "determination of civil rights and obligations" was first interpreted as excluding public law disputes. It has, however, been applied by the Commission and Court to provide for court review of many administrative actions when these are decisive for individual rights and obligations. Leading cases are those of the Ringeisen case, Judgment of 16 July 1971, Eur. Court H. R. (Series A, No. 13) which concerned proceedings to obtain approval of a transfer of real property; König v. Federal Republic of Germany , Judgment of 28 June 1978 (Series A, No. 27) in relation to withdrawal of authorizations to run a clinic and practice medicine; and Sporrong and Lönnroth v. Sweden , Judgment of 23 September 1982 (Series A, No. 52) as to the continuation of expropriation permits and prohibitions against construction, affecting the applicants' properties. All these matters were found by the Court to concern the determination of "civil rights and obligations".

46

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prejudging the outcome of a trial". I n other words, the presumption must be respected not only by the judge, particularly in connection w i t h the burden of proof and the extension to all accused persons of the benefit of the doubt (in dubio pro reo), but also by other public authorities dealing w i t h such persons. U n t i l they are proven guilty according to law, the presumption prevails, particularly in connection w i t h the treatment of accused persons and w i t h the issuance of statements about them, e. g. to the press. The case-law under the Optional Protocol so far has applied the requirements of Article 14 mainly to victims of defective criminal proceedings in Uruguay, as the following summary w i l l show. I n particular, the right to a fair and public hearing (Art. 14 [ 1 ] ) and some of the minimum guarantees of the defendant (Art. 14 [3] ) have been highlighted in a number of cases. aa) Fair and Public Hearing by a Competent, Independent and Impartial Tribunal (Article 14 [ l ] ) 1 0 8 I n case N o . 70/1980 (Eisa Cubas v. Uruguay) the Committee made findings of fact that the victim "was tried in camera , the trial was conducted without her presence and the judgement was not rendered in p u b l i c " 1 0 4 and held that these facts revealed a violation of Article 14 (1) "because she did not have a fair and public hearing" 1 0 5 . Similarly, in case N o . 10/1977 (Alberto Altesor v. Uruguay ), the Committee found that Article 14 (1) had been violated "because he did not have a fair and public hearing" 1 0 8 . I n case N o . 44/1979 (A. 103

In its general comment on Article 14 the Committee observed in relevant part (General comment 13 [21] in: H R C 1984 report, Annex VI, p. 143 et seq., paras 4, 6): The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14 . . . The publicity of hearings is an important safeguard in the interest of the individual and of society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that, apart form such exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which the public is excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public. HRC 1982 report, Annex X V I , para. 11.2. *05 Op. cit.y para. 12. 106 H R C 1982 report, Annex I X , para. 15.

Human Rights Committee

Pietroroia

ν. Uruguay ),

47

the C o m m i t t e e made a finding o f fact t h a t the v i c t i m

was sentenced " i n a closed t r i a l , c o n d u c t e d i n w r i t i n g a n d w i t h o u t his presence . . . a n d the j u d g e m e n t o f the C o u r t was n o t made p u b l i c " , a n d based thereon a

o f a v i o l a t i o n o f A r t i c l e 14 ( l ) . 1 0 7 (See also cases N o . 28/

finding

1978, a n d 32/1978.) bb)

M i n i m u m Guarantees i n the D e t e r m i n a t i o n

o f a n y C r i m i n a l Charge ( A r t i c l e 14 [ 3 ] ) 1 0 8 — T h e R i g h t t o C o m m u n i c a t e w i t h Counsel ( A r t i c l e 14 [ 3 ] [ b ] ) V i o l a t i o n s o f A r t i c l e 14 (3) have been f o u n d i n numerous cases, e. g. N o . 83/1981 ( V . Martinez

Machado

detention from N o v e m b e r

v. Uruguay)

"because the c o n d i t i o n s o f his

1980 t o M a y 1981 e f f e c t i v e l y b a r r e d h i m

from

107 HRC 1981 report, Annex X V I , para. 13.2. 108 The Committee's general comment on article 14 provides in relevant part ( [note 103], paras 8—15): Among the minimum guarantees in criminal proceedings prescribed by paragraph 3, the first concerns the right of everyone to be informed in a language which he understands of the charge against him (subparagraph [a] ) . . . Article 14, subparagraph 3 (a) applies to all cases of criminal charges, including those of persons not in detention. The Committee notes further that the right to be informed of the charge "promptly" requires that information be given in the manner described as soon as the charge is first made by a competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such. The specific requirement of sub-paragraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based. Sub-paragraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is "adequate time" depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this sub-paragraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter. Sub-paragraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place "without undue delay". To make this right effective, a procedure must be available in order to ensure that the trial will proceed "without undue delay", both in first instance and on appeal. Not all reports have dealt with all aspects of the right of defence as defined in subparagraph 3 (d). The Committee has not always received sufficient information concerning the protection of the right of the accused to be present during the determination of any charge against him nor how the legal system assures his right either to defend himself in

48

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Opsahl

access to legal assistance", 109 and N o . 49/1979 (D. Marais ν. Madagascar) "because he has been denied adequate opportunity to communicate w i t h his counsel, . . . and because his right to the assistance of his counsel to represent him and prepare his defence has been interfered w i t h by the Malagasy authorities", 1 1 0 and N o . 115/1982 (/. Wight v. Madagascar) "because during a tenmonth period . . . while criminal charges against him were being investigated and determined, he was kept incommunicado without access to legal counsel." 111 — The Right to Legal Assistance of One's O w n Choosing (Article 14 [3] [b] ) I n a number of cases the Committee has found that the victims were denied the right to defend themselves through counsel of their own choosing and were compelled to accept ex officio counsel in violation of Article 14 (3) (b) and (d), (No. 52/1979, 56/1979, and 73/1980). Thus in case N o . 52/1979 (Lopez Burgos v. Uruguay ), the Committee noted: The State party has stated that Lopez Burgos was not prevented from choosing his own legal counsel. I t has not, however, refuted witness testimony indicating that Lopez Burgos and others arrested with him, including Monica Solino and Inès Quadros , whose parents are attorneys, were forced to agree to ex officio legal counsel.112 — The Right to Have Adequate Time and Facilities for the Preparation of one's Defence (Article 14 [3] [ b ] ) person or to be assisted by counsel of his own dioosing, or what arrangements are made if a person does not have sufficient means to pay for legal assistance. The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary. Sub-paragraph 3 (e) . . . is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution. Sub-paragraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence. Sub-paragraph 3 (g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable. In order to safeguard the rights of the accused under paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations of the right of the accused during any stage of the prosecution. ioe HRC 1984 report, Annex V I I , para. 13. HRC 1983 report, Annex X I , para. 19. i 1 1 HRC 1985 report, Annex V I I I , para. 17. us HRC 1981 report, Annex X I X , para. 11.5.

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49

I n case N o . 158/1983 (O. F. v. Norway) the author had been found guilty of driving his automobile at a speed exceeding that allowed by the traffic law and of failing to furnish information to an official register about a business firm which he operated. H e claimed that he was not able to adequately prepare his defence because the Court did not provide him w i t h copies of all relevant documents about the traffic violation. I n declaring the case inadmissible, the Committee noted that from 26 August to the date of the hearing on 21 October 1982 the author could have examined, personally or through his lawyer, documents relevant to his case at the police station. H e chose not to do so, but requested that copies of all documents be sent to him. The Committee notes that the Covenant does not explicitly provide for a right of a charged person to be funished with copies of all relevant documents in a criminal investigation, but does provide that he shall "have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing." Even if all the allegations of the author were to be accepted as proven, there would be no ground for asserting that a violation of Article 14 (3) (b) occurred. 113

— The Right to be Tried without Undue Delay (Article 14 [3] [c] ) A violation of this provision of the Covenant is frequently accompanied by a violation of the right to be brought promptly before a judge and tried w i t h i n a reasonable time (Article 9 [3] ). Thus far the Committee has not defined the relevant terms or suggested a rule of thumb, because i t must consider the particular circumstances of each communication. I n case N o . 43/1979 (A. Drescher C aidas v. Uruguay) a victim who had been arrested on 28 September 1978 and tried before a military court in July 1979 (10 months later was deemed to have suffered a violation of his right to be tried without undue delay. 1 1 4 The Committee has also found a violation of Article 14 (3) (c) in case N o . 80/1980 (5. Vasilskis v. Uruguay ), where the victim was arrested some years before the entry into force of the Covenant and the Optional Protocol and was not tried until some time after the entry into force of these instruments for the State concerned. I n that case the victim had been arrested on 4 June 1972, the Covenant and Optional Protocol had entered into force on 23 March 1976 for the State party concerned and judgement was not pronounced by the court of first instance until 14 December 1977. 115 (See also Nos. 4/1977, 5/1977, 6/1977, 8/1977, 10/1977, 27/1978, 28/1978, 32/1978, 33/ 1978, 44/1979, 46/1979, 52/1979, 56/1979, 63/1979, 70/1980, and 73/1980.) — The Right to Free Legal Assistance (Article 14 [ 3 ] [ d ] ) I n case N o . 158/1983 (O. F. v. Norway) 113

HRC 1985 report, Annex X I I , para. 5.5. Π4 H R C 1983 report, Annex X V I I I . 1« HRC 1983 report, Annex XV.

4 GYIL 28

the author, who had been found

50

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ayas / Möller / Opsahl

guilty of two minor offences and sentenced to pay a fine of N K r . 1,000.— claimed, inter alia , that Article 14 (3) (d) had been violated in his case. The Committee observed in this connection: The Covenant foresees free legal assistance to a charged person "in any case where the interests of justice so require and without payment by him in any such case if he does not have sufficient means to pay for it". The author has failed to show that in his particular case the "interests of justice" would have required the assignment of a lawyer at the expense of the State party. 1 1 6

The author's communication was declared inadmissible. — The Right to Examine Witnesses (Article 14 [3] [e] ) I n case N o . 63/1979 (V. Setelich ν . Uruguay) the Committee found a violation of Article 14 (3) (e) because the victim "was denied the opportunity to obtain the attendance and examination of witnessess on his behalf." 1 1 7 — The Right not to Incriminate Oneself (Article 14 [3] [g] ) The use of forced confessions in order to convict accused persons has been found by the Committee to be in violation of Article 14 (3) (g) in cases Nos. 52/1979 and 73/1980. Thus in case N o . 52/1979 (Lopez Burgos v. Uruguay ), the author had submitted written witness testimony by four ex-detainees who asserted "that Lopez Burgos and several others were forced under threats to sign false statements which were subsequently used in the legal proceedings against them". 1 1 8 I n its views the Committee noted: "The State party has not refuted the author's allegations that M r . Lopez Burgos was forced to sign false testimony against himself and that this testimony was used in the trial against him."119 cc) The right to Review of Conviction and Sentence (Article 14 [5] ) 1 2 0 I n case N o . 64/1979 (Salgar de Monte jo v. Colombia ), the Committee noted that the expression "according to law" in Article 14 (5) of the Covenant is not ne 117 ne ne

HRC 1985 report, Annex X I I , para. 5.6. H R C 1982 report, Annex V I I I , para. 20. H R C 1981 report, Annex X I X , para. 2.3. Op. cit., para. 11.5. 120 In its general comment on Article 14 the Committee elaborated ( [note 103] para. 17): Article 14, paragraph 5, provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Particular attention is drawn to the other language versions of the word "crime" ("infraction "delito "prestuplenie") which show that the guarantee is not confined only to the most serious offences. In this connection, not enough information has been provided concerning the procedures of appeal, in particular the access to and the powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgement and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of Article 14.

Human Rights Committee

51

intended to leave the very existence of the right to review to the discretion of the States parties, since the rights are those recognized by the Covenant, and not merely those recognized by domestic law. Rather, what is to be determined "according to law" is the modalities by which the review by a higher tribunal is to be carried out. 1 2 1

The Committee found that the facts of the case disclosed a violation of Article 14 (5), because the victim "was denied the right to review of her conviction by a higher tribunal." 1 2 2 I n case N o . 27/1978 (L. Pinkney ν . Canada ) the author had appealed his conviction to the British Columbia Court of Appeal. The production of the transcripts of the lower court proceedings, however, was delayed for two and a half years. The author alleged that this delay was excessive and prejudicial to his exercise of the right to appeal. The Committee observed "that the right under Article 14 (3) (c) to be tried without undue delay should be applied in conjunction w i t h the right under Article 14 (5) to review by a higher tribunal, and that consequently there was i n this case a violation of both of these provisions taken together. w 1 2 3 h) Article 15: Nulla poena sine lege 124 I n case N o . 28/1978 (L. Weinberger Weisz v. Uruguay ), the Committee found that Article 15 had been violated "because the penal law was applied retroactively against" the victim: the charge of conspiracy (Asociacion para delinquir) was found to be tantamount to prosecution for membership in a political party, which had been lawful at the time when the victim was affiliated w i t h i t and which had been banned only afterwards. 125 (See also Nos. 44/1979, 46/1979, and 91/1981.) The purpose of the main principle of Article 15 is to protect individuals against ex post facto criminal laws operating to their detriment. The last sentence of Paragraph 1 of Article 15 departs from this safeguard when this purpose is absent; on the contrary, i t not only allows, but prescribes the retroactive operation of a new law imposing a "lighter penalty". The Committee has been seised of two cases where i t was claimed that a new law changing the conditions of parole should have been applied retroactively to two convicted persons. I n the specific circumstances of the cases, the Com121 H R C 1982 report, Annex X V , para. 10.4. 122 Op. cit., para. 11. 123 HRC 1982 report, Annex V I I , para. 22. 124 The Committee has not yet adopted a general comment on Article 15. 125 HRC 1981 report, Annex I X para. 16.

*

52

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ayas / Möller / Opsahl

mittee decided that no violation of the Covenant had taken place (Nos. 50/ 1979, Van Duzen ν . Canada 126; 55/1979, Maclsaac v. Canada) 121. The Committee found that i t had not been shown in either of the two cases that the alleged victim had in fact been adversely affected by the non-retroactive application of the new rules. I t therefore left open several difficult questions of interpretation such as whether the duty of States parties to extend the benefit of a "lighter penalty" retroactively, despite its broad wording, must not have inherent limitations. 1 2 8 Certain reservations and interpretative declarations have limited i t to "cases in progress", i. e. before sentence is passed. I n another case (No. 46/1979, Fais Borda et al. v. Colombia ), the Committee in an obiter dictum seems to have assumed that this clause is inapplicable after the rejection of appeals. 129 I f not, States parties when introducing lighter penalties would seem to have to provide for review of earlier sentences without any explicit time limit. i) Article 17: The Right to Freedom from Interference w i t h one's Privacy, Family, Home, or Correspondence 130 The first case where the Committee examined the implications of Article 17 in some depth, concerned the effects on family life of certain immigration legislation in Mauritius (No. 35/1978, Aumeeruddy-Cziffra v. Mauritius). The Committee took the view that since the common residence of husband and wife was normal, "the exclusion of a person from a country where close members of his family are living can amount to an interference w i t h i n the meaning of Article 17 (1). I n principle, Article 17 (1) applies also when one of the spouses is an alien". 1 3 1 The "existing precarious residence situation of foreign husbands in Mauritius" represented an interference w i t h the family life of the Mauritian wives and their husbands, and although this interference was neither "unlawful nor necessarily 'arbitrary' ", the enjoyment of family life was not secured without discrimination. The position resulted from "an adverse distinction based on sex", which was contrary to the Covenant, Articles 2 (1) and 3 applied in conjunction w i t h Article 17 ( l ) . 1 3 2 I 2 0 H R C 1982 report, Annex X I I . 127 HRC 1983 report, Annex V I I . 128 for a n affirmative conclusion, upon a discussion of various points of interpretation in the context of the two cases, reservations, etc. and the travaux préparatoires , see Opsahl / de Zayas (note 56), 237—254. 120

H R C 1982 report, Annex X I X , 193 et seq., at 204. 130 The Committee has not yet adopted a general comment on Article 17.

131 Case No. 35/1978, Aumeeruddy-Cziffra X I I I , para. 9.2 (b) 2 (i) 2. 132 Op. cit., para. 9.2 (b) 2 (i) 8.

et al. v. Mauritius,

H R C 1981 report, Annex

Human Rights Committee

53

This case was also examined in the light of Article 23 (see below), and sets an important precedent in various respects. The protection of privacy and home has not been in dispute, but many prisoners or their representatives have complained to the H u m a n Rights Committee because of the extent of official censorship of their correspondence. I n case N o . 74/1980 (Miguel Angel Estrella ν . Uruguay ), the Committee made a finding of a violation of Article 17 read in conjunction w i t h Article 10 (1). While accepting "that i t is normal for prison authorities to exercise measures of control and censorship over prisoners' correspondence", the Committee noted that any such measures of control or censorship should be subject to satisfactory legal safeguards against arbitrary application . . . Furthermore, the degree of restriction must be consistent with the standard of humane treatment of detained persons required by Article 10 (1) of the Covenant. I n particular, prisoners should be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving visits. 188

Also in an earlier case, N o . 27/1978 (L. Pinkney v. Canada ), the Committee had examined the author's allegations that his correspondence had been subjected to arbitrary or unlawful interference by prison authorities in Canada. I t observed that the very general terms of the Gaol Rules and Regulations 1961 (British Columbia) about control and censorship of letters, did not provide satisfactory legal safeguards against arbitrary application, but found that the author had not established a violation in his particular case, and noted that new rules since 1978 were considerably more specific. 134 j) Article 18: The Right to Freedom of Thought, Conscience and Religion 1 3 5 The Committee has not been seised of cases concerning an alleged violation of the right to adopt and practise a religion, but i t has examined the right of atheist parents to exempt their children from religious instruction pursuant to Article 18 (4) of the Covenant, which provides that "States parties . . . undertake to have respect for the liberty of parents . . . to ensure the religious and moral education of their children in conformity w i t h their own convictions." I n case N o . 40/1978 (E. Hartikainen v. Finland ), the Committee found that the author's submissions did not sufficiently substantiate his claim of a breach of Article 18. I n this case the Committee found that an obligatory alternative to religious instruction, which the public schools in Finland offer to students whose parents and guardians are non-believers, was not in itself 133 H R C 1983 report, Annex X I I , para. 9.2. 134 H R C 1982 report, Annex V I I , para. 34. 135 The Committee has not yet adopted a general comment on Article 18.

54

de lay as / Möller / Opsahl

incompatible w i t h Article 18 (4), i f such alternative course of instruction "is given in a neutral and objective way and respects" their convictions. 136 I n any event, exemption was possible by arranging comparable instruction outside of school. However, difficulties having arisen in giving effect to these provisions, the State party later took action by revising the law and charging the Board of Education w i t h closer inspection of instruction of ethics and the history of religions and ethics. 137 The Committee has also been confronted w i t h the question whether conscientious objection to military service falls w i t h i n the scope of Article 18 (1). I n case N o . 89/1981 (Paavo Muhonen v. Finland) the Committee by-passed this issue, noting that, although the M i l i t a r y Service Examining Board and the Ministry of Justice had in 1978 and 1979 rejected M r . Muhonen' s application to be exempted from military service on ethical grounds, a subsequent decision of the Examining Board of 2 February 1981 recognized M r . Muhonen 3s right to be exempted from military service because of his profound ethical convictions. Consequently, the Committee noted that no further question of violation of that Article arises. Therefore, the question whether Article 18 (1) guarantees a right of conscientious objection to military service does not have to be determined by the Committee in the present case. 188

I n another case involving the same State party, the author claimed that the failure of the Finnish authorities to recognize his status as conscientious objector made him a victim of a breach of Articles 18 and 19 of the Covenant. A t its twenty-fifth session the Human Rights Committee declared the case (No. 185/ 1984, L. Τ. Κ . v. Finland) inadmissible as incompatible w i t h the provisions of the Covenant, observing that "the Covenant does not provide for the right of conscientious objection; neither Article 18 nor Article 19 of the Covenant, especially taking into account Paragraph 3 (c) (ii) of Article 8, can be construed as to imply that r i g h t . " 1 3 9 k) Article 19: The Right to H o l d Opinions, Freedom o f Expression 140 I n case N o 28/1978 (L. Weinberger Weisz ν . Uruguay ), the Committee found a violation of Article 19 (2) because the victim "was detained for «β H R C 1981 report, Annex X V , para. 10.4. !37 H R C 1983 report, Annex X X X I I I . 138 H R C 1985 report, Annex V I I , para. 3. 13» H R C 1985 report, Annex X X I , para. 5.2. 140 During its nineteenth session (461st meeting on 27 July 1983) the Committee adopted a general comment relative to Article 19, which represents a compromise in general terms, following a broad discussion of different approaches to freedom of expression. To some extent, however, it also reflects the Committee's consideration of communications under the Optional Protocol including case No. 61/1979. It reads in relevant part (HRC 1983 report, Annex VI, general comment 10 [19], para. 4):

55

Human Rights Committee

h a v i n g disseminated i n f o r m a t i o n r e l a t i n g t o t r a d e - u n i o n a c t i v i t i e s " . 1 4 1 I n case N o . 4 4 / 1 9 7 9 (A.

Pietroroia

v.

Uruguay ),

the C o m m i t t e e s i m i l a r l y f o u n d

a

v i o l a t i o n because the v i c t i m h a d been "arrested, detained a n d t r i e d f o r his p o l i t i c a l a n d t r a d e - u n i o n a c t i v i t i e s " 1 4 2 a n d e x p l a i n e d its finding as f o l l o w s : As regards Article 19, the Covenant provides that everyone shall have the right to hold opinions without interference and that the freedom of expression set forth in Paragraph 2 of that Article shall be subject only to such restrictions as are necessary (a) for the respect of the rights and reputations of others or (b) for the protection of national security or of public order ("ordre public"), or of public health or morals. The Government of Uruguay has submitted no evidence regarding the nature of the activities in which Rosario Pietroroia was alleged to have been engaged and which led to his arrest, detention and committal for trial. Bare information from the State party that he was charged with subversive association and conspiracy to violate the Constitution, followed by preparatory acts thereto, is not in itself sufficient, without details of the alleged charges and copies of the court proceeedings. The Committee is therefore unable to conclude on the information before it that the arrest, detention and trial of Rosario Pietroroia was justified on any of the grounds mentioned in Article 19 (3) of the Covenant. 1 4 3 (See also N o s . 8/1977, 11/1977, 33/1978, 52/1979 a n d 132/1982). T h e r i g h t t o f r e e d o m o f expression has also been i n v o k e d i n c o n n e c t i o n w i t h alleged censorship i n r a d i o

and television programmes dealing

with

h o m o s e x u a l i t y . I n this regard the C o m m i t t e e h a d t o l o o k i n t o the r o l e o f the mass m e d i a a n d the a p p l i c a t i o n o f the c r i t e r i a o f A r t i c l e 19 (3) t o self-imposed restrictions. I n its v i e w s i n case N o . 61/1969 ( L . Hemberg

v. Finland ),

the

Committee noted first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities. The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and television are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as Paragraph 3 [of article 19] expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole. However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be "provided by law"; they may only be imposed for one of the purposes set out in sub-paragraphs (a) and (b) of paragraph 3; and they must be justified as being "necessary" for that State party for one of those purposes. 141 H R C 1981 report, Annex I X , para. 16. 142 H R C 1981 report, Annex X V I , para. 17. 143 loc. cit., Annex X V I , para. 15.

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de Zayas 1 Möller / Οpsähl

encouraging homosexual behaviour. According to Article 19 (3), the exercise of the rights provided for in Article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and television programmes are concerned, the audience cannot be controlled. I n particular, harmful effects on minors cannot be excluded. 144 N o v i o l a t i o n was f o u n d . 1) A r t i c l e 2 0 : P r o h i b i t i o n o f W a r P r o p a g a n d a a n d the R i g h t t o P r o t e c t i o n f r o m A d v o c a c y o f R a c i a l o r Religious H a t r e d 1 4 5 A r g u a b l y , A r t i c l e 20 (2) contains a r i g h t t o be p r o t e c t e d b y

appropriate

State legislation f r o m violence o r d i s c r i m i n a t i o n arising o u t o f a d v o c a c y o f n a t i o n a l , r a c i a l o r religious h a t r e d . W h a t the a r t i c l e

requires is t h a t such

a d v o c a c y as w e l l as p r o p a g a n d a f o r w a r ( A r t i c l e 20 [ 1 ] ) shall be p r o h i b i t e d b y l a w . H o w e v e r , so f a r n o a u t h o r o f a c o m m u n i c a t i o n has c l a i m e d t o be a v i c t i m o f a v i o l a t i o n o f this r i g h t w i t h respect t o himself. O n t h e o t h e r h a n d t h e m e a n i n g o f the a r t i c l e has been i l l u s t r a t e d w h e n States parties h a v e i n v o k e d it to justify

restrictions o f rights u n d e r A r t i c l e s

17 a n d 19 o n the

basis

o f t h e i r o b l i g a t i o n t o p r o h i b i t a d v o c a c y o f r a c i a l o r religious h a t r e d . T h i s question has also arisen u n d e r the O p t i o n a l P r o t o c o l . T h u s , i n case N o . 104/ 1981 ( / . T. v. Canada ),

earlier referred t o u n d e r I I 1. (j) above, the State p a r t y

144 H R C 1982 report, Annex X I V , para. 10.4. 145 During its nineteenth session (457th meeting on 25 July 1983) the Committee adopted a general comment relating to Article 20 (General comment 11 [19],, H R C 1983 report, Annex VI, pp. 109 et seq., paras 1, 2): In view of the nature of article 20, States parties are obliged to adopt the necessary legislative measures prohibiting the actions referred to therein . . . In some States such actions are neither prohibited by law nor are appropriate efforts intended or made to prohibit them . . . Article 20 of the Covenant states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities. The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations, while paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the State concerned. The provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations. For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. The Committee therefore believes that States parties which have not yet done so should take the measures necessary to fulfil the obligations contained in article 20, and should themselves refrain from any such propaganda or advocacy.

Human Rights Committee

57

rightly contended "that the impugned provision of the Post Office Act gives effect to Article 20 of the Covenant, and therefore, that this part of the communication is inadmissible under Article 3 of the Optional Protocol." 1 4 8 The Committee accepted this argument and the Communication was declared inadmissible. m) Article 22: Freedom of Association 146 ® I n case N o . 118/1982 (/. B. et al. v. Canada) the authors, members of the Alberta Union of Provincial Employees, claimed that existing Canadian law prohibiting them from exercising the right to strike made them victims of a violation by Canada of Article 22 of the Covenant, which provides that "everyone shall have the right to freedom of association w i t h others, including the right to form and join trade unions for the protection of his interests." I n a significant decision declaring the communication inadmissible ratione materiae , the Committee held that the right to strike was not protected by the Covenant on C i v i l and Political Rights, but rather by the Covenant on Economic, Social and Cultural Rights. I n interpreting the scope of Article 22 of the Covenant, the Committee first gave attention to the ordinary meaning of each element of the article in its context and in the light of its object and purpose (Article 31 of the Vienna Convention on the Law of Treaties [ V C L T ] ), and also had recourse to supplementary means of interpretation by perusing the travaux préparatoires of the Covenant (Article 32 V C L T ) . The majority of the members of the Committee could not deduce from such examination that the drafters of the Covenant on C i v i l and Political Rights intended to guarantee the right to strike. The conclusions to be drawn from the drafting history are corroborated by a comparative analysis of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 8 (1) (d) of the International Covenant on Economic, Social and Cultural Rights recognizes the right to strike, in addition to the right of everyone to form and join trade unions for the promotion and protection of his economic and social interests, thereby making it clear that the right to strike cannot be considered as an implicit component of the right to form and join trade unions. Consequently, the fact that the International Covenant on Civil and Political Rights does not similarly provide expressly for the right to strike in Article 22 (1) shows that this right is not included in the scope of this Article, while it enjoys protection under the procedures and mechanisms of the International Covenant on Economic, Social and Cultural Rights, subject to the specific restrictions mentioned in Article 8 of that instrument. "β H R C 1983 report, Annex X X I V , para. 6. 2. 148a The Committee has not yet adopted a general comment on Article 22.

58

de

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Möller /

psahl

F i v e members o f the C o m m i t t e e d i d n o t agree w i t h this analysis a n d subm i t t e d a dissenting o p i n i o n . I n t h e i r v i e w the c o m m u n i c a t i o n s h o u l d have been declared admissible. I n its decision i n the case, the C o m m i t t e e t h a t i n the circumstances i t d i d n o t h a v e t o examine f u r t h e r

added

the question

" w h e t h e r an alleged breach o f a c o l l e c t i v e r i g h t , such as the r i g h t t o strike, can be the subject o f a c l a i m s u b m i t t e d b y i n d i v i d u a l s p u r s u a n t t o A r t i c l e s 1 a n d 2 o f the O p t i o n a l P r o t o c o l . " 1 4 6 1 * T h e C o m m i t t e e thus far has n o t h a d occasion t o examine other aspects o f A r t i c l e 22 o f the C o v e n a n t . n)

A r t i c l e 23: T h e R i g h t o f the F a m i l y t o P r o t e c t i o n

T h e C o m m i t t e e f o u n d a v i o l a t i o n o f A r t i c l e 23 i n c o n j u n c t i o n w i t h A r t i c l e s 2 (1), 3 1 4 7 a n d 26 ( d i s c r i m i n a t i o n on g r o u n d o f sex) w h e r e the State p a r t y ' s i m m i g r a t i o n l a w a n d d e p o r t a t i o n l a w subjected f o r e i g n husbands o f

native

w o m e n t o certain restrictions, whereas f o r e i g n w i v e s o f n a t i v e m e n were n o t so subjected ( N o . 35/1978, Aumeeruddy-Cziffra

et al. v. Mauritius).

148

The

same case was also considered u n d e r A r t i c l e 17 (see above). The Committee further held that each of the couples concerned constitutes also a "family" within the meaning of Article 23 (1) of the Covenant, in one case at least — that of Mrs. AumeeruddyCziffra — also with a child. They are therefore as such "entitled to protection by society and the State" as required by that article, which does not further describe that protection. The Committee is of the opinion that the legal protection or CCPR/C/28/D/R. 26/118, to be published as Annex I X Β in H R C 1986 report. 7 After formulating its views in case No. 35/1978 (Aumeeruddy-Cziffra et al. v. Mauritius), the Committee highlighted two of its concerns in general comments as follows (General comment 4 [13], HRC 1981 report, Annex V I I , p. 109, paras 2, 3): Firstly, article 3, as articles 2 (1) and 26 in so far as those articles primarily deal with the prevention of discrimination on a number of grounds, among whidi sex is one, requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights. This cannot be done simply by enacting laws. Hence more information has generally been required regarding the role of women in practice with a view to ascertaining what measures, in addition to purely legislative measures of protection, have been or are being taken to give effect to the precise and positive obligations under article 3 and to ascertain what progress is being made or what factors or difficulties are being met in this regard. Secondly, the positive obligation undertaken by States parties under that article may itself have an inevitable impact on legislation or administrative measures specifically designed to regulate matters other than those dealt with in the Covenant but which may adversely affect rights recognized in the Convenant. One example among others, is the degree to which immigration laws which distinguish between a male and a female citizen may or may not adversely affect the scope of the right of the woman to marriage to non-citizens or to hold public office. 14 8 It was learned shortly after the publication of the Committee's views that the political party of the main author of this communication had won a major victory in the general election and that Mrs. Aumeeruddy-Cziffra had become a Cabinet minister. i46b 14

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Human Rights Committee

measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions . . . however, the principle of equal treatment of the sexes applies by virtue of Articles 2 (1), 3 and 26, of which the latter is also relevant because it refers particularly to the "equal protection of the law". Where the Covenant requires a substantial protection as in Article 23, it follows from those provisions that such protection must be equal, that is to say not discriminatory, for example on the basis of sex . . . [ I ] t follows that also in this line of argument the Covenant must lead to the result that the protection of a family cannot vary with the sex of the one or the other spouse. Though it might be justified for Mauritius to restrict the access of aliens to their territory and to expel them therefrom for security reasons, the Committee is of the view that the legislation which only subjects foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, is discriminatory with respect to Mauritian women and cannot be justified by security requirements . . . The Committee therefore finds that there is also a violation of Articles 2 (1), 3 and 26 of the Covenant in conjunction with the right of the three married co-authors under Article 23 ( l ) . 1 4 9 T h e State p a r t y subsequently i n f o r m e d the C o m m i t t e e t h a t the l a w s question h a d been amended, so as t o r e m o v e the d i s c r i m i n a t o r y

in

provisions

o f those l a w s o n the g r o u n d o f s e x . 1 5 0 o)

Article 25: The R i g h t to Take Part i n Political A c t i v i t y

Restrictions o n the r i g h t t o engage i n p o l i t i c a l a c t i v i t y h a v e been e x a m i n e d b y the C o m m i t t e e i n t h e l i g h t o f State p a r t y contentions t h a t such restrictions were necessary because o f a state o f emergency. I n case N o . 44/1979 Pietroroia

v. Uruguay ),

(A.

the Committee noted

that the sanction of deprivation of certain political rights is provided for in the legislation of some countries. Accordingly, Article 25 of the Covenant prohibits "unreasonable" restrictions. I n no case, however, may a person be subjected to such sanctions solely because of his or her political opinion (Articles 2 [1] and 26). Furthermore, the principle of proportionality would require that a measure as harsh as the deprivation of all political rights for a period of 15 years be specifically justified. N o such attempt has been made in the present case. 151 T h e C o m m i t t e e f o u n d a v i o l a t i o n o f A r t i c l e 25 i n the case. I n case N o . 34/1978 ( / . Landinelli

Silva

v. Uruguay ),

the C o m m i t t e e f o u n d

a violation, noting that even on the assumption that there exists a situation of emergency in Uruguay the Human Rights Committee does not see what ground could be adduced to support 149 HRC 1981 report, Annex X I I I , para. 9.2 (b) 2 (ii) 1—4. 150 HRC 1983 report, Annex X X X I I . 151 H R C 1981 report, Annex X V I , para. 16.

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the contention that, in order to restore peace and order, it was necessary to deprive all citizens, who as members of certain political groups had been candidates in the elections in 1966 and 1971, of any political right for a period as long as 15 years. This measure applied to everyone, without distinction as to whether he sought to promote his political opinions by peaceful means or by resorting to, or advocating the use of, violent means. The Government of Uruguay has failed to show that the interdiction of any kind of political dissent is required in order to deal with the alleged emergency situation and pave the way back to political freedom. 152 (See also N o s . 5/1977, 10/1977 a n d 28/1978.) I n case N o . 35/1978 (S. Aumeeruddy-Cziffra

et al. v. Mauritius ),

the C o m -

m i t t e e also e x a m i n e d the authors' allegations o f a v i o l a t i o n o f A r t i c l e T h e C o m m i t t e e , finding

25.

n o v i o l a t i o n , observed as f o l l o w s :

The Committee considers that restrictions established by law in various areas may prevent citizens in practice from exercising their political rights, i. e deprive them of the opportunity to do so, in ways which might in certain circumstances be contrary to the purpose of Article 25 or to provisions of the Covenant against discrimination, for example if such interference with opportunity should infringe the principle of sexual equality. However, there is no information before the Committee to the effect that any of this has actually happened in the present cases. As regards Mrs. AumeeruddyCziffra, who is actively participating in political life as an elected member of the legislative assembly of Mauritius, she has neither in fact nor in law been prevented from doing so. I t is true that on the hypothesis that if she were to leave the country as a result of interference with her family situation, she might lose this opportunity as well as other benefits which are in fact connected with residence in the country. The relevant aspects of such interference with a family situation have already been considered, however, in connection with Article 17 and related provisions above. The hypothetical side-effects just suggested do not warrant any finding of a separate violation of Article 25 at the present stage, where no particular element requiring additional consideration under that Article seems to be present. 153 p) The

A r t i c l e 2 6 : D i s c r i m i n a t i o n o n the G r o u n d o f Sex

Committee

(Aumeeruddy-Cziffra Articles

17, 23

deportation

law

found

a v i o l a t i o n o f A r t i c l e 26 i n

et al. v. Mauritius

a n d 2 5 ] ) , w h e r e the State p a r t y ' s subjected f o r e i g n

case N o .

35/1978

[also referred t o above i n r e l a t i o n t o

husbands o f

immigration law

native women to

and

certain

restrictions, whereas f o r e i g n w i v e s o f n a t i v e m e n w e r e n o t so s u b j e c t e d . 1 5 4 152

Op. cit., Annex X I I , para. 8.4. 3 H R C 1981 report, Annex X I I I , para. 9.2 (c) 2. 154 Op. cit., para. 10.1.

15

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Human Rights Committee

q)

Article 27: Protection of Minorities

A r t i c l e 27 has been i n v o k e d before the C o m m i t t e e p r i m a r i l y i n c o n n e c t i o n w i t h the rights o f C a n a d i a n I n d i a n s t o t h e i r c u l t u r a l heritage. I n case N o . 2 4 / 1 9 7 7 (Sandra

Lovelace

v. Canada ),

a n a t i v e I n d i a n h a d been denied b y

o p e r a t i o n o f the I n d i a n A c t , the legal r i g h t t o reside o n a n I n d i a n reserve because she h a d m a r r i e d a n o n - I n d i a n . She l a t e r d i v o r c e d . T h e

Committee

f o u n d a breach o f A r t i c l e 27. I t considered t h a t f o r purposes o f A r t i c l e 2 7 she must s t i l l be considered a m o n g "persons b e l o n g i n g " t o the m i n o r i t y concerned; a n d a l t h o u g h the r i g h t t o reside i n the reserve was n o t as such guaranteed b y A r t i c l e 27, access t o her n a t i v e

c u l t u r e a n d language h a d i n f a c t been denied

t o her i n a w a y w h i c h the C o m m i t t e e h e l d t o be unjustified. I t also m a d e reference t o o t h e r p r o v i s i o n s o f the C o v e n a n t i n v o k e d b y

Mrs.

Lovelace.

C a n a d a subsequently i n f o r m e d the C o m m i t t e e t h a t the I n d i a n A c t h a d been d u l y amended, so as t o r e m o v e t h e r e f r o m a n y d i s c r i m i n a t o r y p r o v i s i o n s . 1 5 5 3.

Derogation

from

( Article

Obligations 4 of the

under

the

Covenant

Covenant) 1™

A f t e r h a v i n g r e v i e w e d the C o m m i t t e e ' s a p p l i c a t i o n a n d i n t e r p r e t a t i o n

of

the v a r i o u s p r o v i s i o n s o f the C o v e n a n t , i t is useful t o recall t h a t States parties 155 H R C 1983 report, Annex X X X I . 15 6 In a general comment adopted at its thirteenth session (311th meeting on 28 July 1981), the Committee explained that (General comment 5/13, HRC 1981 report, Annex V I I , p. 110, para. 1—3): When a public emergency which threatens the life of a nation arises and it is officially proclaimed, a Stat« party may derogate from a number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights and may not take discriminatory measures on a number of grounds. The State party is also under an obligation to inform the other States parties immediately, through the Secretary-General, of the derogations it has made including the reasons therefor and the date on which the derogations are terminated. States parties have generally indicated the mechanism provided in their legal systems for the declaration of a state of emergency and the applicable provisions of the law governing derogations. However, in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations. The Committee holds the view that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States parties, in times of public emergency, to inform the other States parties of the nature and extent of the derogations they have made and of the reasons therefor and, further, to fulfil their reporting obligations under article 40 of the Covenant by indicating the nature and extent of each right derogated from together with the relevant documentation.

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h a v e the r i g h t t o derogate f r o m c e r t a i n p r o v i s i o n s o f the C o v e n a n t i n t i m e o f p u b l i c emergency, a n d t h a t several States h a v e made use o f this r i g h t . A r t i c l e 4 o f the C o v e n a n t a l l o w s d e r o g a t i o n o n l y u n d e r c e r t a i n c o n d i t i o n s . N o d e r o g a t i o n f r o m c e r t a i n f u n d a m e n t a l articles, i. e. A r t i c l e 6 ( r i g h t t o l i f e ) , Article

7 (prohibition

of torture), Article

8 (prohibition of

slavery

and

servitude), a n d A r t i c l e s 11, 15, 16 a n d 18, m a y be made. T h e C o m m i t t e e has h a d the o p p o r t u n i t y t o discuss the m o d a l i t i e s o f derog a t i o n i n connection w i t h its e x a m i n a t i o n o f a n u m b e r o f

communications

u n d e r the O p t i o n a l P r o t o c o l . I n case N o . 34/1978 (Jorge Landinelli v. Uruguay) political

Silva

et al.

w h e r e the authors h a d s h o w n t h a t t h e y h a d been d e p r i v e d o f

rights f o r

15 years u n d e r U r u g u a y a n legislation,

the

Committee

e x p l a i n e d the State p a r t y ' s obligations as f o l l o w s : Although the Government of Uruguay, in its submission of 10 July 1980, has invoked Article 4 of the Covenant in order to justify the ban imposed on the authors of the Communication, the Human Rights Committee feels unable to accept that the requirements set forth in Article 4 (1) of the Covenant have been met. According to Article 4 (1) of the Covenant, the States parties may take measures derogating from their obligations under that instrument in a situation of public emergency which threatens the life of the nation and the existence of which has been formally proclaimed. Even in such circumstances, derogations are only permissible to the extent strictly required by the exigencies of the situation. I n its note of 28 June 1979 to the Secretary-General of the United Nations . . . which was designed to comply with the formal requirements laid down in Article 4 (3) of the Covenant, the Government of Uruguay has made reference to an emergency situation in the country which was legally acknowledged in a number of "Institutional Acts". However, no factual details were given at that time. The note confined itself to stating that the existence of the emergency situation was "a matter of universal knowledge"; no attempt was made to indicate the nature and the scope of the derogations actually resorted to with regard to the rights guaranteed by the Covenant, or to show that such derogations were strictly necessary. Although the sovereign right of a State party to declare a state of emergency is not questioned, in the specific context of the present Communication, the Human Rights Committee is of the opinion that a State, by merely invoking the existence of exceptional circumstances, cannot evade the obligations which it has undertaken by ratifying the Covenant. Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to Article 4 (3) of the Covenant, the State party concerned is dutybound to give a sufficiently detailed account of the relevant facts when it invokes Article 4 (1) of the Covenant in proceedings under the Optional Protocol. I t is the function of the Human Rights Committee, acting under the Optional Protocol, to see to it that States parties live up to their commitments under the Covenant. I n order to discharge this function and to assess whether a situation of

63

Human Rights Committee

the kind described in Article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information. I f the respondent Government does not furnish the required justification itself, as it is required to do under Article 4 (2) of the Optional Protocol and Article 4 (3) of the Covenant, the Human Rights Committee cannot conclude that valid reasons exist to legitimize a departure from the normal legal regime prescribed by the Covenant. 1 5 7 I n case N o . 46/1979 ( O . Fais Borda

v. Colombia)

the C o m m i t t e e n o t e d

that the Government of Colombia in its submission of 30 April 1980 made reference to a situation of disturbed public order in Colombia within the meaning of Article 4, Paragraph 1, of the Covenant. I n its note of 18 July 1980 to the Secretary-General of the United Nations, which was designed to comply with the formal requirements laid down in Article 4 (3) of the Covenant, the Government of Colombia has made reference to the existence of a state of siege in all the national territory since 1976 and to the necessity to adopt extraordinary measures within the framework of the legal regime provided for in the National Constitution for such situations. With regard to the rights guaranteed by the Covenant, the Government of Colombia declared that "temporary measures have been adopted that have the effect of limiting the application of Article 19, Paragraph 2, and Article 21 of that Covenant". The present case, however, is not concerned with Articles 19 and 21 of the Covenant. 1 5 8 S i m i l a r l y , i n case N o . 64/1979 ( C . Salgar

de Monte jo v. Colombia)

the

C o m m i t t e e observed t h a t the State p a r t y , b y m e r e l y i n v o k i n g t h e existence of a state of siege, cannot evade the obligations which it has undertaken by ratifying the Covenant. Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to Article 4 (3) of the Covenant, the State party concerned is duty bound, when it invokes Article 4 (1) of the Covenant in proceedings under the Optional Protocol, to give a sufficiently detailed account of the relevant facts to show that a situation of the kind described in Article 4 (1) of the Covenant exists in the country concerned. 159 III.

Conclusion

A l t h o u g h the H u m a n R i g h t s C o m m i t t e e , as i n d i c a t e d above, is n o t a j u d i c i a l b o d y , as such, its a p p l i c a t i o n a n d i n t e r p r e t a t i o n o f the p r o v i s i o n s o f the I n t e r n a t i o n a l C o v e n a n t o n C i v i l a n d P o l i t i c a l R i g h t s a n d the O p t i o n a l P r o t o c o l thereto has started t o y i e l d a b o d y o f " c a s e - l a w " . I t is n o t the i n t e n t i o n o f the authors o f this a r t i c l e t o evaluate t h e effectiveness o f the procedure at this e a r l y stage i n the w o r k o f the H u m a n R i g h t s 157 H R C 1981 report, Annex X I I , para. 8.1—8.3. 158 H R C 1982 report, Annex X I X , para. 13.2. is» H R C 1982 report, Annex X V , para. 10,3.

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ayas / Möller /

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Committee. Reference has however been made to a number of decisions which have resulted in positive follow-up actions by the States parties concerned. Such developments are likely to continue. I n addition, the reader may be referred to the 1984 annual report of the Human Rights Committee, listing the names of a number of persons who have been released from detention following the adoption of the Committee's views. 1 6 0 The authors have by and large resisted the temptation to compare the jurisprudence of the H u m a n Rights Committee w i t h the jurisprudence of other international human rights bodies, such as the Inter-American Commission and Court of Human Rights and the European Commission and Court of Human Rights. I n this connection i t may be noted that the Committee itself does not rely on such comparison, but is pragmatically and steadfastly developing its own profile. I t is the authors' hope that the above compilation of holdings and obiter dicta of the Human Rights Committee shall be of value to lawyers, research workers and the general public, and that i t w i l l contribute to making the Committee's work more generally k n o w n . 1 6 1 Ultimately, the goal is to help strengthen international observance of the rights enshrined in the International Covenant on C i v i l and Political Rights.

160 HRC 1984 report, para. 623, 624. For periodic surveys of the jurisprudence of the Human Rights Committee (in German) see Manfred Nowak , Die Durchsetzung des internationalen Paktes über bürgerliche und politische Rechte. Bestandsaufnahme der ersten zehn Tagungen des UN-Ausschusses für Menschenrechte, in: Europäische Grundrechte Zeitschrift (EuGRZ) 7 (1980), 532 et seq.; Rechtsprechungsbericht Oktober 1981 bis Oktober 1982, in: EuGRZ 10 (1983), 11—16; Rechtsprechungsbericht März 1983 bis Juli 1984, in: EuGRZ 11 (1984), 421—430; Rechtsprechungsbericht Juli 1984 bis Juli 1986, to be published in: EuGRZ 13 (1986). For German translations of important excerpts from the published decisions of the Committee, see the periodic articles by Christian Tomuschat in the EuGRZ. For an analysis of the jurisprudence of the Committee with respect to the Nordic States, see Alfred de Zayas / Jakob Möller , Optional Protocol Cases concerning the Nordic States before the United Nations Human Rights Committee, to be published in: Nordic Journal of International Law 55 (1986). 161

The Inter-American Commission on Human Rights of the Organization of American States 25 Years of Evolution and Endeavour by César Sepulveda* I. Introduction October 1984 was the 25th anniversary of the creation of the Inter-American Commission on H u m a n Rights ( I A C H R ) . For this reason, a number of celebrations and joint work meetings together w i t h other organizations working in the field of human rights all over the w o r l d took place in Washington, where the headquarters of the organization is situated. I n a formal session of the Permanent Council of the Organization of American States its activities were praised and appreciation expressed for the positive results achieved. Nevertheless there is a lack of an objective, serene and detailed approach to its work, to its possible merits, to its real achievements w i t h i n the regional political community, to its prospects and also to its failures which are attributed to i t from time to time, appraisal made by someone such as an impartial and detached expert. This scrutiny is, of course, very difficult, because the Inter-American Commission is a complex organ w i t h i n the framework of a regional international organization which itself is also very complex, not very homogeneous and in which the member states do not have permanent connections w i t h other. I n view of the fact that no such analysis was made, which is nevertheless very essential it seems appropriate to deal w i t h the topic of the active life of the Inter-American Commission on Human Rights since its creation 25 years ago. I n doing so i t is my aim to display the highest possible degree of neutrality, trying to leave aside my personal affection for the Commission, an affection which I developed in the six years that I served in i t and because I played an active part on several important occasions. When studying the I A C H R and its tasks i t is possible to apply various criteria. Either one looks at i t as an organic whole, starting from its creation and then * The author is President of the Inter-American Commission on Human Rights of the OAS and Ambassador of Mexico before the Federal Republic of Germany.

5 GYIL 28

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Cesar Sepulveda

examining its structure and its functions, its changes, or one could consider it as part of a regional system. A third possibility might be to compare i t w i t h other similar organs. A n d finally one could carry out an analysis by going through its reports, both annual and special, deducing from them some explanations. I n this article I have decided to follow a different and somewhat varying line, m y aim being to draw a v i v i d picture of this organization w i t h its different activities and as it was at different points in time, by evaluating its methods of operation and finally by giving an outline of the future prospects for the best possible fulfilment of its delicate mission. I w i l l do so to the extent to which i t is possible w i t h i n the limitations of this paper. II. Creation of the Inter-American Commission on Human Rights I t is very difficult to give an exact definition and description of the circumstances that led to the creation of the Inter-American Commission on Human Rights at the end of the year 1959 1 . Apart from being somewhat mysterious, the circumstances of its constitution are somewhat peculiar. When an inter-governmental organ is to be set up, there are usually experts who make preliminary studies, there is an exchange of ideas among the governments interested, maybe a conference is called at which constitutional provisions are drafted, rules as to the future statutes and regulations, and in some cases also a treaty or an agreement that states the obligation of the states involved. 1 Although there are several works and articles about the Commission, it has to be said that they are not very well known, probably because they mostly refer to its organization, tasks, constitution and duties, and to its institutional development, but less to its activities and achievements. On the other hand, literature is not up-to-date; there is a lack of a comprehensive and current work on the IACHR. The works to be mentioned are, for example: Kar el Vasak , La Commission Interamericaine des Droits de l'Homme, Paris 1958, a work of profound analysis; Anne P. Schreiber , The Inter-American Commission on Human Rights, Leiden 1970; Lawrence J. Le Blanc , The OAS and the Promotion and Protection of Human Rights, doctoral thesis, Iowa University, 1973; Hector Gros Espiell , L'Organisation des Etats américains (OEA), in: Karel Vasak (Rédacteur générale), Les Dismensions internationales des droits de l'homme, Paris 1978, 600—633. An english version was published in Karel Vasak (ed.), The International Dimensions of Human Rights. Revised and edited for the English edition by Philip Alston, vol. 2, Paris 1982, 543—574. The Inter-American Convention came into force after the publication of these works and there have only been a few works on the Commission since then, e. g. : Lars Schoultz , The case of Human Rights in Latin America, in Jack L. Nelson / Vera M. Green (eds.) International Human Rights. Contemporary Issues, New Brunswick 1980, 317—343; Fernando Volio , La Comisiôn Interamericana de Derechos Humanos, in: Organizaciôn de los Estados Americanos, Secretaria General (ed.), La Convenciôn Americana sobre Derechos Humanos, Washington 1980, 77—90; John H. Barton , The Likely Effects of the New American Convention on Human Rights, in: Paula Newburg (ed.), The Politics of Human Rights, 1979, 249—267; César Sepulveda , The Inter-American Commission on Human Rights (1960—1981), in: Israel Yearbook on Human Rights 12 (1982), 46—61.

Inter-American

Commission of Human Rights

67

I n the case of the I A C H R a fairly unusual procedure was followed. I t was created by means of an act of a special conference, i. e. the Meeting of Consultation of Meeting of the Ministers of Foreign Affairs, an organ of the Organization of American States (OAS) which in those days had ample, political powers. This situation was due to the fact that the main organ, i. e. the Inter-American Conference, which was later replaced by the annual General Assembly, was not able to convene. N o reason has officially been given for the decision to create this new organ of the inter-American system, i. e. of the I A C H R , thus giving free course to speculation. Maybe the breakdown of constitutional order in various American states and a consequent deterioration of human rights had given rise to justified worries. Maybe it was thought that the inter-American system, which had suddenly almost been paralyzed, needed new dynamic elements. O r maybe a need was felt for impulses which could lend the OAS a new k i n d o f respectability. Some hold the view that the presence of Castro's regime in Cuba made it imperative to define the relationship between democracy and human rights. O r maybe there was the legitimate desire for a body specializing in this difficult matter, a body which would work out studies and would advise the main organs of the Organization. Maybe i t was the search for something which would equal the newly-created European Commission. O r else i t is very likely that by then the idea which had emerged at the Nineth Inter-American Conference in Bogota, i. e. to have specific bodies to look after these basic rights when the Declaration of Human Rights and Duties was adopted, had already taken a more concrete shape. Possibly all these factors somehow converged simultaneously in a certain way. The circumstances are rather enigmatic. I t is, however, a fact that the creation of the I A C H R was the right step at the right time, in certain way providential, as it was proven subsequently. The somewhat unsual genesis of the I A C H R , however, neither hampered its functioning, nor did i t lessen its efficiency. Its creators could not have imagined at that time that i t would become a body of major importance, indispensable to the OAS. N o r could they have imagined that i t would be able to act as a catalyst in advancing the progress of representative democracy in Latin America. The results far exeeded the predictions of its progenitors. Since the very beginning, the Inter-American Commission displayed marked differences when compared w i t h other regional commissions as for example w i t h the European Commission 2 , due to its strong political features. I f one 2 The doctoral thesis of Juliane Kokott, Das Interamerikanische System zum Schutz der Menschenrechte, prepared at the Max-Planck-Institut für Ausländisches öffentliches Recht und Völkerrecht, Heidelberg, to be published in Spring 1986, is to be recommended for evaluating

*

68

Csar Sepulveda

analyses the activities of this body, one w i l l see that there is a special relationship between politics and law, a relationship which enabled i t to develop its functions without being hampered by restrictions which characterize excessively regulated bodies. The Permanent Council of the OAS, however, was right to define only barely its functions, so that the possibilities to take action, the political setting in which i t had to function and the natural necessity of the existence of such a body at the time i t was founded, slowly did the rest. III. Development and Work of the Commission I n order to give a more accurate report of the development and the work of the I A C H R , I would like to describe three different phases in its evolution. The first phase starts w i t h its creation and ends in 1973; a markedly different phase is the one from 1974 until 1979. The final phase, characterized by a high degree of maturity, is the one from 1980 up to the present. 1. From 1960 through 1973 The Inter-American Commission on Human Rights was created by the Council of the Organization of American States on M a y 25th, 1960, the date when this body adopted its first Statutes 3 , and took up work on October 3rd of the same year. To tell the truth, the first members of the Commission could not find a way to perform the function entrusted to them and felt rather disoriented. The Statutes described i t as "an autonomus entity of the OAS for furthering the observance of human rights". They did not, however, entrust them w i t h clearly-defined tasks, so that they did not know where to start. T w o years later, on the occasion of the Eighth Meeting of Consultation of the Ministers of Foreign Affairs in Punta del Este, Uruguay, in 1962, the member States of the OAS had to admit that the competences and powers of the Commission were insufficient. The Council of the O A S was therefore entrusted w i t h the task of redrafting the original Statutes, so that the Commission could "amplify its competences and powers to such an extent as to enable i t to efficiently carry out the promotion of the observance of those rights" 4 . the differences between one Commission and another. See also Thomas Buergenthal, Las Convenciones Europea y Americana: Algunas Similitudes y Diferencias, in: La Convenciôn Americana sobre Derechos Humanos (note 1), 179—190. 3 The text of the original Statute is to be found in Doc. OAS/Ser. L/V/1.1., September 26th, 1960; the version in force in 1980 in: Thomas Buergenthal / Robert Ε. Ν orris, Human Rights. The Inter-American System, vol. 1, Dobbs Ferry 1984, Part I, chapter V I I I , 1 et seq. 4 In Minutes and Documents of the 8th Consultation Meeting, Document OAS/Series F/III. 8, 300—301.

Inter-American

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The re-formulation of the Statutes of the Commission took another three years. The tasks of this body were limited and there was no visible evidence of its work. O n l y one report was presented, i. e. the Report on the H u m a n Rights Situation in the Republic of Cuba, dated M a y 1st, 1962 5 , which helped to bring about the famous exclusion of Cuba. This caused an increase of its powers. The event that pushed things forward was its acting in the intervened Dominican Republic, where the Commission was sent by the Secretary General of the OAS in 1965. The I A C H R was very helpful since i t succeeded in protecting the lives, the freedom and the safety of many people. As one of its members put it, i t was "a mission in which i t used its resources and its reputation in order to do away w i t h the excesses and put an end to the violation of human rights , , e . The recognition of the Commission by the OAS materialized during the Second Extraordinary Inter-American Conference in Rio de Janeiro in November 1965, when new and important functions were assigned to the Commission, functions i t had been claiming for a long time and which were now incorporated into its Statute in A p r i l 1966 7 . Among other things the Commission was now given the right to turn to the governments of the American states w i t h the aim of receiving "the information which i t considers pertinent" and the right "to formulate recommendations" aiming to ensure a more efficient observance of human rights, and most important of all, the right to "present an Annual Report". I t can be said that from this moment forward, the I A C H R had a legitimate basis for its activities, activities which up until then had been carried out without a definite constitutional basis. A n d i t was the Commission itself, and no other authority, that carried out these alterations and amendments to its Statutes. Nevertheless the Commission was very cautious in carrying out its functions. From its creation until 1970, i t presented — apart from the Report on Cuba from 1962, which we have already mentioned — three more reports on this country: in 1963 one on the situation of the political prisioners on that island 8 and in 1967 and 1970 9 reports which dealt in general terms w i t h the human rights situation in that country. The advantage was that Cuba had s OAS/Ser. L/V/I. II. 4 doc. 30, 1962. β Durward V. Sandifer , The Interamerican Commission on Human Rights in the Dominican Republic, June 1965 to June 1966 (a report prepared for the Hammarskjold Forum, 1966), 7. 7 See: Final Act of the Second Conference . . ., Official Documents, OAS/Ser. E / X I I I . 1—1965, 46—47, and La Organizaciôn de los Estados Americanos y los Derechos Humanos, 1960—1967, ed. by Comisiôn Interamericana de Derechos Humanos, Washington 1972. s OAS/Ser. L/V/II. 7 doc. 4, 1963. « OAS/Ser. L/V/II. 17. doc. 4, 1967 and OAS/Ser. L/V/II. 23. doc. 6, 1970.

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been banned from the regional organization and that for this reason most of the other countries fully supported the activities of the I A C H R . I n addition, this country did not react in any way to the harsh criticism expressed in the reports. Other reports presented by the Commission were on H a i t i , N o . 1, in 1963 10 and N o . 2 in 1969 11 , two on the Dominican Republic in 1965 12 and one on E l Salvador and Honduras 1 3 in 1970, dealing w i t h the war of 1969. Thus there were nine reports altogether on four countries and one on the case of an armed conflict. So the Commission did some important work by venturing into unknown fields in a political atmosphere which was not always stable. Nevertheless it did not achieve very much in these first ten years apart from consolidating its structure and preparing for more comprehensive and far-reaching tasks to come. I n 1970 the amended Charter of the OAS became effective, the alterations being contained in the Buenos Aires Protocol of 1967. W i t h these reforms the Inter-American Commission achieved a much greater stature, for one because i t was accorded the rank of a "main organ" of the regional organization, and also because its functions were definitely widened by entrusting i t w i t h the promotion of the defense and the vigilance over the observance of such rights (Articles 112 and 150 of the amended Charter). From 1970 to 1973 the Commission's posture is characterized by circumspection and caution, and no spectacular actions took place. Maybe i t was waiting for the Inter-American Convention of San José 1969 to come into effect, which would confer even more competence and an even wider radius of action on it. These were times of reflection and thought. There had not yet been such a dramatic eruption of violations of human rights in the countries of the inter-American system. Soon a new occasion arose for the I A C H R to be put to the test. 2. From 1974 to

1979 u

I f one takes a closer look at the Commission's work, one w i l l see that during this period it efficiently responded to the challenge which the tightening o f the human rights situation represented in the countries of the southern part of South America. This is the activity that characterizes the Commission in these years. The existence of a military dictatorship in Chile in the aftermath of the fall of President Allende in 1973, the later onset of an era of harsh military 10 OAS/Ser. L/V/II. 7 doc. 28, 1963. 11 OAS/Ser. L/V/II. 21. doc. 6, 1969. 12 OAS/Ser. L/V/II. 13 doc. 14, rev. 1965 and OAS/Ser. L/V/II. 15 doc. 6, rev. 1966. 13 OAS/Ser. L/V/II. 23. doc. 9, rev. 1970. 14 For this period it is advisable to see Comision Interamericana de Derechos Humanos, Diez Afios de Actividades 1971—1981, ed. by Secretaria General. Organizacion de los Estados Americanos, Washington D. C. 1982.

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repression in Uruguay and the continuing deterioration of and disregard for human rights in Paraguay were the reasons w h y the Commission decided to analyze w i t h renewed energy the state of basic human rights in these countries. As far as Chile is concerned, this is a country that has deserved the I A C H R ' s attention since those decisive events. The relations between the Commission and the regime of General Pinochet have not been productive, due to the fact that this military dictatorship has not been able to bring about a substantial improvement in the basic human rights situation. I n the case of this country, it should be mentioned that, for the first time in history, the Commission succeeded in receiving an invitation for an observation visit from the said government. The Commission presented its first report on Chile in the autumn of 1974 and followed that w i t h a second one in 1976 and a third one in 1977 15 . The latter t w o were drafted upon request by the Assembly. Since then Chile has been observed by the Commission on an annual basis since nothing has improved w i t h respect to various basic human rights. The interesting aspect of this is that we are here dealing w i t h one of the important countries of the Inter-American system and that therefore, a discussion of the situation there by the I A C H R is of major importance. I n addition, Chile has been discussed annually in the respective section of the Annual Report of the Commission and the relations between the latter and this country have always been strained 153 . Another problematic case during this period was Uruguay. A general report on this country was presented in February 1978 16 . This report criticized the government as severe human rights' violations watched over by the Commission had been observed. I n the course of the years, Uruguay continued to be the focus of attention in the Commission's Annual Reports, until democracy was re-established in 1985. Paraguay has had its ups and downs but i t has never escaped the Commission's attention. The I A C H R presented a general report at the beginning of 1978 17 in which i t stated that essential human rights were being infringed upon and violated, and Paraguay has been included annually in the reports of the Commission as basic rights continue to be violated. I n connection w i t h these countries of South America, the Commission also made further in loco observation visits. I t is interesting to see that i t was during this period of time that most invitations were received or positive is OAS/Ser. L/V/II. 34. doc. Ser. L/V/II. 40. doc. 10, 1977. i5a OAS/Ser. L / V / I I doc. 16, OAS/Ser. L/V/II. 43, doc. 17 OAS/Ser. L/V/II. 43, doc.

21, 1974; OAS/Ser. L/V/II. 37. doc. 19, corr. 1976; OAS/ October 7th, 1985. 10, 1978. 13, 1979.

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reactions to these plans were noted. Apart from Chile, which has previouslybeen mentioned, circumstances in the following countries were observed in situ: Panama (December 1977), E l Salvador (January 1978), H a i t i (August 1978) and Nicaragua (October 1978). I t should be noted that when the effects of these visits became felt (devastating in the case of Nicaragua, for example, and in the case of Argentina later on), other governments decided not to give permission for or to adjourn visits sine die for investigations in loco . As far as Panama is concerned, violations 1 8 were described in the corresponding report, violations which fortunately ceased in most of the cases before the end of the following year. Regarding E l Salvador, the Commission reported grave violations of human rights which lamentably still continue to be committed in this country, thus forcing this body to include i t in its subsequent Annual Reports. I n the case of Nicaragua the situation was rather tense, as the very harsh report of the I A C H R 1 9 was taken up by the Seventeenth Meeting of Consultation of the Ministers of Foreign Affairs which in consequence condemned the Somoza government and declared i t to be illegal, thus causing its fall and contributing to the triumph of the Sandinista revolution. The report stated grave and extensive violations of basic human rights. I n my view this led to a substantial increase in the prestige of the Commission. As for H a i t i , this country was visited by the I A C H R in August 1978. However, the report was only presented in December 1979 20 , so that i t can rather be considered to belong to the last period to be discussed. I n this report serious violations of human rights were described, which still have not been stopped up to now. Apart from the reports based on observation visits there was also a fifth report on Cuba 2 1 in 1976, dealing w i t h prisons in general and w i t h political prisoners in particular. The period in question, i. e. 1974 to 1979, is not only characterized by enormous progress of the Commission but also by the fact that i t was drawn to the centre of public interest, thus turning it from a body that was almost being ignored into an institution which deserves to be heard, whose political importance w i t h i n the regional community cannot be overlooked. I t is obvious that its activities were intensified and became more profound. The Commission asserted its self-confidence and this allowed i t to embark upon endeavours of major significance. « ι» 20 si

OAS/Ser. OAS/Ser. OAS/Ser. OAS/Ser.

L/V/II. L/V/II. L/V/II. L/V/II.

44. 45. 46. 38.

doc. doc. doc. doc.

38, rev. 1. 1978. 16, rev. 1. 1978. 66, rev. 1. 1979. 2, 1977.

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3. The Phase between 1980 and 1985 W i t h the experience gained in the struggles of the preceding period and recognizing that its activities were being fully supported by the General Assembly, the Commission proceeded to fully assert its role. During the last five years i t has completely justified the hopes placed i n i t by showing new possibilities which are of great future potential and by growing to be an important body of the regional system. I n 1980 the I A C H R began to face enormous tasks. First of all i t compiled an extensive and important Report on the H u m a n Rights Situation in the Republic of Argentina 2 2 , on the basis of data which i t had compiled on the occasion of an observation visit upon invitation of this country in autumn 1979. I t happened to be one of the most important countries of the hemisphere. As it is known, the report was devastating, ending in the relentless but justified condemnation of this state. The Commission's prestige and credibility was at stake, as well as its political future and its place w i t h i n the constellation of the bodies of the OAS. The military junta governing this country threatened to withdraw from the Organization i f this report was adopted by the General Assembly which, however, did not reject it. I t should be pointed out that this report became a bestseller. Although i t was suppressed by the Argentine government, copies of it were clandestinely distributed by interested circles, more than sixty thousand copies, in fact, all over the country. They were re-printed in all possible ways and thus this report became very well-known throughout the Republic. I t is difficult to evaluate exactly the effects of this report on public opinion in the American continent and in the world. But the chapters on disappearance of people and those on torture had a deep influence on the public's conscience, thus playing their part in the condemnation of the military dictatorship, in the eradication of this regime and in the re-installation of democracy. One of the consequences of all this was the fact that one of the first steps of the Alfonsin government was the ratification of the San José Convention and thus the acceptance of the compulsory jurisdiction of the Court, consequently setting an example 23 . One episode in which the members of the Commission risked a great deal and in fact even endangered their own lives was their intervention in Bogota, Colombia, in A p r i l 1981, upon request of the government of this country to assist in the liberation of about fifty diplomats who for two months had been 22 OAS/Ser. L/V/II. 49. doc. 19, 1980. 23 On September 5th, 1984 the Republic of Argentina ratified the Inter-American Convention on Human Rights, being the 18th member-country and accepting the compulsory jurisdiction of the Inter-American Court and the Commission's power to know about the petitions of an American state against another on behalf of Human Rights.

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held as hostages inside the embassy of the Dominican Republic in the Colombian capital. I t was an exceptional case of mediation between the authorities and the kidnapping guerrilleros, an incident that fortunately had a happy ending. The members of the Commission offered their own corporal integrity as a guarantee in this case and were prepared to accept the risk of themselves being kidnapped while escorting the diplomats and the kidnappers from the embassy to the airport where a Cuban aircraft had been made available to take them to Havanna 2 4 . T w o observation visits were made to Nicaragua by the I A C H R , both of them upon invitation of the government of this country. The first took place in October 1980, in order to observe the way in which the provisions of the Convention of San José, which had been ratified by the Sandinista government when it came to power, were being fulfilled. The corresponding report dated June 1981 25 contained recommendations for the observance of the obligations undertaken and for the improvement of the human rights situation. A t the same time a dialogue w i t h the government was taken up and continued, so that quite considerable progress for the cause of human rights could be achieved. Following the forced resettlement of about 9000 Miskito Indians from the River Coco near the Honduran border to the interior of the country the Commission decided to pay this country a second visit. This transfer had been dictated by the government, the idea being that the Indians should be housed in patrolled camps. Philanthropic societies as well as the press and some governments were shocked at such a move. After its visit to Nicaragua the Commission was requested by the Sandinista government to act as a conciliator (a role which is stipulated in Article 48 et seq. of the Inter-American Convention of Human Rights) in order to bring about a peaceful settlement. I t was the first time that the institution had to play such a part in a politically turbulent situation, for which maybe i t is not quite the right agency. Nevertheless i t accepted, under conditions which were approved by the government, and knowing that by means of a dialogue, which is the main element of mediation, i t would be able to ensure a better treatment of the Miskito people. The political complications of this matter, however, and the lack of responsible representatives of the Miskitoes made any peaceful settlement impossible. I n spite of this, the Sandinista government provided the necessary legislation in order to improve the situation of this community. Nearly all prisoners were released and a general amnesty was proclaimed and applied even to those who had actually infringed 24 See Report of the Commission OAS/Ser. L/V/II. 53. doc. 22, 1981. 25 OAS/Ser. L/V/II. 53. doc. 25, 1981.

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upon the law. As no final agreement could be reached, the Commission published its "Report on the Human Rights Situation w i t h i n the Miskito Population in Nicaragua", which was accompanied by the "Resolution on the Procedure to Reach a Peaceful Settlement of the Human Rights Situation of the Miskito Population in Nicaragua" in M a r d i 1984. 2β The I A C H R also did in situ observation work in Guatemala, after having been invited there by the military government of Εfrain Rios Montt in 1983. The respective report 2 7 thoroughly condemned the conditions in this country. The Commission strongly opposed the establishment of the absurd and illegal "Courts of Special Jurisdiction", courts which violated the Convention, and drew attention to the grave infringements committed by this regime , especially w i t h reference to the "enforced disappearance" of people, the non-functioning of the judicial power and the lack of a democratic political system. I t is symptomatic that the coup that overthrew Rios Montt and brought to power General Mejia Victores was facilitated, among other things, by the fact that the preceding head of government had only shown contempt for human rights. Consequently, the Report of 1981 did have its impact in this country. As is known, elections are planned in Guatemala for autumn 1985, so there is hope that a moderate swing to democracy w i l l take place. The present government has invited the Commission to visit the country during 1985 in order to establish that the human rights situation is improving in fact, both in regard to civil and to political rights. This visit actually was effected by a sub-commission from 6th to 10th May. I t is not yet possible to present the results of this observation, since the time reserved for a prior confidential discussion of the results has not yet elapsed 273 . Another observation visit took place in Surinam in 1983, followed by another one at the beginning of this year. The Commission's report 2 8 on the first visit harshly condemned the government of Commander Bouterse for the cruel repression and the lack of freedoms in this country. The government offered to bring about an improvement in the human rights situation. The second observation visit was an in loco visit, aimed at determining the degree to which the provisions were being fulfilled, and last March the Commission presented a number of recommendations to the government of Surinam, urging i t to fulfil them w i t h i n a period of three months. 2β OAS/Ser. L/V/II. 62. doc. 10, rev. 3. 1983 and OAS/Ser. L/V/II. 62. doc. 26, 1984. 27 OAS/Ser. L/V/II. 61. doc. 47, 1983. 27a In the meantime the Commission has published "Informe sobre la Situaciôn de los Derechos Humanos en la Republica de Guatemala", OAS/Ser. L/V/II. 66. doc. 17, September 27th, 1985. 28 OAS/Ser. L/V/II. 61. doc. 6, rev. 1. 1983.

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During the same period the Commission presented the Sixth Report 2 9 on Political Prisoners i n Cuba (1980), promoting in some way the release of about 3,600 political prisoners by the Cuban government. Furthermore, the I A C H R drew up a report on Bolivia in 1981 30 . Shortly after this report was published, Bolivia put an end to military dictatorship and re-installed democracy, w i t h a government intent upon observing the recommendations of the Commission. I n the past five years the Commission has been fighting the infamous crime of officially-approved torture of prisoners. Upon request by the Commission, the General Assembly of the OAS has already adopted various important resolutions regarding this topic. Coordinating their work, the I A C H R and the Inter-American Juridical Committee in 1980 drafted a convention which defines torture as an international crime. The draft was accepted by the Permanent Council and by the General Assembly, and, at its Fourteenth Meeting in Brasilia in 1984, the latter decided to call a Specialized Inter-American Conference in 1985, whose purpose would be to discuss the draft and to adopt an Inter-American Convention on this subject. 31 I t is likely that this conference w i l l be adjourned for a few months. The Commission w i l l continue to make efforts to bring about this regional convention, which would represent a welcome complement to the Convention against Torture and other Cruel Treatments and Punishments, which was adopted by the United Nations last December, w i t h the aim of rooting out this abominable crime which is a shame to the American continent. A further objective of the Commission has been to abolish the obnoxious practice by which prisoners and civilians simply disappear: the enforced disappearance of prisoners, as i t is called. The problem has become alarming during the past few years — in Argentina six thousand or even more people disappeared between 1974 and 1979. I t is therefore v i t a l to adopt certain basic measures. I t is not enough to condemn this situation, i t is not enough to exhort the governments to do something against this. I n the eyes of the I A C H R , i t is necessary to demand that the individual states adopt a set of methods w i t h which this infamous and inadmissible practice can be erradicated. I n 1983 the General Assembly, urged by the Commission, declared this to be a "crime against h u m a n i t y " 3 2 thus providing a basis from which more concrete 29 OAS/Ser. L/V/II. 61. doc. 29, rev. 1. 1983. so OAS/Ser. L/V/II. 53. doc. 6, rev. 2. 1981. si In Organization of American States. General Assembly GA/doc. 1902/84, Rev. 1, GA/RES 736 (XIV—0/84). See as well the resolutions GA/RES 624 (XII—0/82) and GA/doc. 1687, rev. 1. of the same body. 32 Organization of American States. General Assembly, 13th Ordinary Session, Washington, November 14th, 1983. Document OAS/Ser. P. GA/doc. 1712/83, p. 3. sub-section 4. "RESOLVES: 4. To declare, that the practice of enforced disappearance of persons in

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steps can be taken, such as the accusation and punishment of those who commit this k i n d of inexcusable crime and the creation of central registers of prisoners to which everyone has access. Another topic which gives rise to worries w i t h i n the Commission is a phenomenon that is new in our hemisphere. I t is the massive migration of people from one country to another, i. e. the phenomenon of refugees. Since 1980 the Commission has kept a watchful eye on this development, for i t feels that the lack of certainty in the field of basic human rights is one of the main reasons for this exodus. I n view of the close relation between international humanitarian law and human rights the Commission has always been ready and w i l l i n g to cooperate w i t h the United Nations H i g h Commissioner for Refugees. Bearing in mind that very useful knowledge is gained from cooperation w i t h others, knowledge that can then be applied in tackling the task of promoting and safeguarding human rights in Latin America, the Commission did not shrink away from any effort to support the spreading of the rules in connection w i t h the refugee problem, for example at the important Colloquium on Asylum and International Protection of Refugees in Latin America, which took place in Mexico in 1981 and was organized jointly by the Institute Matias Romero de Estudios Diplomaticos and the Institute of Legal Research of the National Autonomous University of Mexico ( U N A M ) under the auspices of the U N H C R 3 3 . W i t h this colloquium the way was paved for the idea of the establishment of a separate institution of the inter-American system whose function i t would be to co-ordinate the questions of refugees in America, an institution which would in some way be related to the organs of the United Nations. Various members of the Commission cooperated very actively on this occasion. They were also active participants at the colloquium in Cartagena in 1984, a follow-up event to the one in Mexico which was supported and organized by the U N H C R and the University of Cartagena, Colombia. A t this meeting the very important "Declaration of Cartagena on Refugees" was adopted, a declaration which represents an enormous step forward and in which the Commission 34 took a relevant part. Last November America is an affront to the conscience of the hemisphere and a crime against humanity". 33 The results and recommendations of this Colloquy have been set down in Asilo y Protecciôn Internacional de Refugiados en America Latina, published by the Instituto de Investigaciones Juridicas de la Universidad Autônoma Mexico (UNAM) (Institute of legal studies of the National Autonomous University of Mexico) together with the Instituto Matias Romero de Estudios Diplomâticos de la Secretaria de Relaciones Exteriores (Matias Romero Institute for Diplomatic Studies of the Mexican Secretariat for Foreign Affairs), Mexico, 1982. See as well Cesar Sepulveda , La Protecciôn de los Refugiados en América. Alcances y Limitaciones, in: Anuario Juridico Interamericano 1982. Subsecretaria de Asuntos Juridicos, Secretaria General, OEA, 1984, 233—282. 34 The declaration is to be found in a booklet, published by the U N H C R on January 1985, printed in three languages, i. e. Spanish, English and French.

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the Fourteenth General Assembly to the OAS in Brasilia entrusted the Permanent Council to draft, on the basis of the recommendations presented by the I A C H R , a report on the state of the work done i n connection w i t h the grave problem of refugees in Latin America. 35 Such recommendations aim at setting up an inter-American institution which would be responsible for the assistance and protection rendered to the refugeees in this part of the world, in close cooperation w i t h the U N H C R , and calling upon the states to adopt domestic norms on the status of refugees that could protect persons in such a situation. Another area of concern for the I A C H R in the past five years has been that of economic, social and cultural rights, which have a particular significance on our continent because in our countries more than one hundred million people live below the poverty line. As is known, the American Convention on Human Rights, i. e. the Convention of San José of 1969, only contains a very brief provision referring to this topic, that is Article 26, and no concrete measures arise from it for the safeguarding of these rights. For this reason the I A C H R has repeatedly advocated the drafting of an additional Protocol to the Convention of San José which should include these rights. The InterAmerican Commission holds that the regard for these rights by the individual governments could not only satisfy some of the basic needs of the population, but could also prevent the occurrence of elements of conflict that lead to violations of the other human rights, i. e. the rights of the individual, and to the consequent disruption of social peace, w i t h effects that we are very well aware of. A preliminary draft was already presented by the Preparatory Committee of the General Assembly in 1983. However, i t does not come up to the Commission's expectations because i t does not regard this group of rights as rights , w i t h everything that this word includes in the legal sense of the word, but only as targets or aims of development. The Commission also views that the D r a f t Protocol should include control mechanisms regarding the observance of these rights, as for example periodic and compulsory reports. These would make possible an evaluation of the progress both by the body responsible for the protection and promotion of these rights and by the specialized institutions of the regional system. The Commission remains involved in this work and has decided to continue its aim until the Protocol 3 6 has been presented. 85 In: Organization of American States, General Assembly, 14th Session, Brasilia 1984, doc. GA/RES. 739 (XIV—0/84), November 17th, 1984. 38 On August 23rd—26th, 1984 a Seminar on International Protection of the Economic, Social and Cultural Rights sponsored by the Inter-American Commission on Human Rights and in cooperation with the Institute of Legal Studies of the National Autonomous University of Mexico took place in Mexico, dealing with these issues. Its results will soon be published. EXCELSIOR, the Mexican newspaper, published the Seminar's conclusions on August 29th,

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I would like to end my summary on the history and evaluation of the Commission by briefly commenting on the activities of the I A C H R w i t h regard to the diffusion and fostering of human rights in the American hemisphere. The promotion of work in favour of these rights, which is one of the original objectives of the Commission, is of great importance in our region, in a region where there is still social turbulence, where education has not yet reached the level of other parts of the world and where i t is vital to create awareness of the existence of these rights and of the fact that they must be respected. I t is imperative to ensure that future judges and magistrates as well as officers of the institutions responsible for law and order possess sound knowledge about these rights. Ours is work out of the limelight, not very spectacular, but a task that claims to be done continuously. A lot of resources are needed which are not always w i t h i n the reach of the Commission. The members of the Commission, the Executive Secretariat and some members of the staff have had to participate actively and personally in these campaigns to spread the knowledge of these rights, either by taking part in courses, conferences, colloquia and symposia or else by writing about experience of the Commission. There is a fair ammount of literature published by the members of the Commission themselves. I n addition to that, however, the Commission sponsors scholarships, supports publications, takes part in the organization of propagation programs and contributes financially to advanced courses on human rights institutions. A t the same time the Inter-American Commission contributes publications, reports and data to all non-governmental institutions that favour human rights in Latin America. Although quite a lot is being done in this field, I feel that far more could be achieved if sufficient financial means were available. IV. The Methods of the Inter-American Commission on Human Rights The Commission has at its disposal a number of techniques of action which enable it to defend human rights and to induce the different states to observe them. Firstly there are the individual communications, i. e. complaints, that require a resolution from which a condemnatory verdict against a state can ensue, recommendations or both. Then there are the reports, which can be 1984, page 22. The Preliminary Draft of the Additional Protocol to the Inter-American Convention is stated in GA/doc. 1656/83. The General Assembly in its resolution of November 17th, 1984 (GA/RES. 742 XIV—0/84), point 9, has insisted on inviting the memberstates and the interested bodies and organizations to present their specific proposals about the tenor of the planned Additional Protocol at the 15th Session. It seems chat the complexity of the involved issues will demand an extention of the dead-line.

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compulsory or optional or again general or special. As I have already discussed these aspects, I w i l l not go into further details here 37 . Undoubtedly the most useful method for the Commission, the one that yields the best results for the safeguarding of the human rights, is the observation visits in loco. These shall be discussed in greater detail here. I n contrast to other commissions, the Inter-American Commission has made use of this method quite frequently, as has already been explained above. 38 The Inter-American Commission on H u m a n Rights has gained a great deal of experience in the course of the more than ten years during which i t has been paying visits to different countries. This is w h y i t regards this method as the most suitable one for fact finding purposes. This method presents some advantages. The in situ observations allow a direct and lively dialogue between the visiting sub-commission and the members of the different authorities who are involved in human rights in the respective countries and who are interviewed by the visiting body. This makes frank negotiations and the promotion of human rights easier. By this means a direct and detailed information on the local system for protection of the rights is obtained. Direct visiting is a most appropriate means of getting to know intimately the situation in the respective country and to confirm and clarify in a professional manner the reports or accusations that have reached us. By going to the country the Commission is able to see and verify the conditions of detention i n jails and consequently is able to formulate the most appropriate recommendations. Charges and complaints can be received during the visit, information that otherwise might never have reached the I A C H R . Direct visiting confers a detailed knowledge of the general situation of the country, information which is obtained via labor leaders, members of the opposition, government officials, professionals, churches, university members, journalists, workers' organizations, etc., i. e. from a large variety of people, information which otherwise would not be available. I t should be seen that, when these visits are carried out adequately, in many cases the burden of proof is transfered to the authorities. A n d finally, i t has been found that a vitsit results in a better observance of human rights. I t might be added that a visit of this k i n d is beneficial to a government that does not use this visit for propaganda purposes or only in order to smooth unrest in the country but acts in good faith, because in this way i t exhibits its genuine w i l l to improve the situation. 37 E. g. my work "The Inter-American Commission on Human Rights" (1960—1981) (note 1). 38 With reference to this topic it is advisable to consider the work of Edmundo Vargas Carreno (Executive Secretary of the Inter-American Commission on Human Rights), The Experience of the Inter-American Commission on Human Rights in Bertrand G. Ramcbaran , (ed.) International Law and Fact Finding in the Field of Human Rights, The Hague 1982, 137—150.

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Quite clearly this is a task characterized by a great deal of responsibility and even risk. I t is not an easy one and requires poise, tact, enthusiasm for the cause, devotion to one's own convictions, discretion and courage. I t calls for a great deal of talent and reflection in examining the data, for only that information can be accepted that seems to correspond to reality and has been thoroughly checked. Suggestions and recommendations must be formulated in a clear and convincing way i n order to enhance the quality of the local protection systems as well as to induce the authorities to make a positive response to the urge of the Commission. I t is a fact that apart from groundless and isolated attacks by governments that were characterized by a disregard for human rights, the I A C H R has not met w i t h any k i n d of well founded criticism directed against the reports following visits to the respective countries. Quite on the contrary there has been a high degree of cooperation in many cases and after finding that subsequent to the observation visit the human rights situation had improved and the basis for an exchange of ideas w i t h the governments had been fortified, i t can be concluded that the policy of visiting countries in our part of the w o r l d is beneficial to the promotion of human rights. I n addition the in loco observation visits have raised the status of the Commission, as i t thus became possible to tender proof of the moral integrity of its members, their independence, their autonomy as far as politics is concerned, their objectivity in dealing w i t h the matter and their dedication to the cause of the human rights which they are to protect and the observance of which they must monitor. Another instrument for the furthering of human rights i n a member state of the OAS, an instrument of which the Commission can make use, is that of a peaceful settlement, stipulated in Article 48 para . 1 lit. f of the Convention of San José 39 . This means that, in the case of a complaint against a government, conciliation should be aimed for, a solution which must always be based on the respect for the human rights valid i n our part of the world. I n the way i t is described in the inter-American documents, this is a complicated procedure from a technical point of view, a fairly rigid procedure that only seems to be appropriate for certain kinds of problems, maybe problems of property and also cases of disputes between t w o states. I t might also come into consideration for cases of complaints by a clearly-defined group that has a self-assertive representation and has claims to put forward about a government i f it is w i l l i n g to negotiate and the government concerned accepts the mediation of the Commission and there exists full cognizance about the 39 "Article 48. 1. The Cammission, in receiving a petition or communication claiming any violation of human rights stated in this Convention, will proceed in the following terms: f. it will submit itself to the interested parties, in order to reach a peaceful settlement, based on the respect for human rights, recognized by this Convention." (Author's translation).

6 GYIL 28

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demands and the positions of both parties. I discussed this topic not so long ago and I would like to refer to my work contained in the Festschrift to Dunshee de Abranches , a book which was published by the Commission itself 40 . This mechanism of peaceful settlement was adopted in the American continent from the European Convention for the Protection of Human Rights and Basic Liberties of November 4th, 1950. I n our Convention, however, the correlative regulation referring to the definition of the procedure was not included, a fact which gave rise to a number of complications for the Commission. The limitations of the method were most clearly seen in the case of the violation of the human rights of the Nicaraguan citizens of Miskito origin, an Indian ethnic group. These violations were committed by the country's authorities, thus forcing the Commission to spend nearly two years looking for a solution to this problem. The Nicaraguan government always expressed its willingness to bring about such a solution. I n the course of the process the I A C H R , which benefitted from the favourable attitude of the authorities, succeeded in claiming step by step better conditions for the Miskito population. I n addition i t persuaded the government to accept the presence of representatives of the International Red Cross and the United Nations H i g h Commissioner for Refugees, w i t h the aim of ensuring communication among the Miskito who were in Honduras and their relatives in Nicaragua. I n spite of all the efforts made by the Commission and by the government, the endeavour could not be resolved, because there was no real possibility to carry out the functions i t had been entrusted with, mainly because of the absence of genuine representatives of the Miskitoes who would be able to negotiate w i t h the government. Nevertheless the door was left open for the continuation of the dialogue which had been embarked upon, a fact which brought about a general amnesty and further improvements as have been described above. This episode led to the conclusion that the norms and regulations had drawbacks, so the Commission decided to reform its Regulations by means of appropriate amendments, amendments which w i l l become effective on July 1st, 1985 and which w i l l allow this process to be used in the appropriate circumstances41. 40

César Sepulveda , El Procedimiento de Soluciôn Amistosa ante la Comisiôn Interamericana de Derechos Humanos, in: Organization of American States, Inter-American Commission on Human Rights (ed.), Derechos Humanos en las Americas, Festschrift to Carlos A. Dunshee de Abranches , Washington 1985, 242—252. 41 The amendments appear in the Manual de Normas Vigentes en Materia de Derechos Humanos en el Sistema Interamericano (current version as of July 1st, 1985), Organization of American States, Inter-American Commission on Human Rights, OAS/Ser. L/V/II. 65. doc. 6, 1985.

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V. The Commission and the Inter-American Court of Human Rights The American Court of H u m a n Rights, whose creation is stipulated in the Convention of San José (Articles 52 and 69) and whose w o r k was started in 1979, set up a new framework and opened up a new dimension for the I A C H R . A definition of the inter-relationship between the Court and the Commission is not an easy task. I n the beginning there was some misunderstanding due in part to the fact that the Court was naturally looking for a field of activity — which was in a way detrimental to the Commission — but also because the matters dealt w i t h by the Commission, which are generally of a political nature, do not lend themselves to be handled by the Court. The Court is in a somewhat awkward position as not all of the American member states of the Convention of 1969, i. e. only eight (Argentina, Colombia, Costa Rica, Ecuador, Honduras, Peru, Uruguay and Venezuela 42 ), have recognized the mandatory jurisdiction of the Court, and this is an insufficient basis for the competence of the Court. There is one area in the competence of the Court, however, that allows the Commission to make use of the valuable juridical assistance that the Court can offer. I t is the field of advisory opinions (Article 64 of the Convention of San José and 49 of the Rules and Regulations of the Court). 4 3 The first official contact between the Court and the Commission was by means of a petition for an advisory opinion on the phrase "other treaties" contained in Article 64 of the Convention of San José presented by the Peruvian government in 1982. The I A C H R responded to the Note of the Secretariat of the Court to the effect that in its opinion the advisory competence of the American Court had to extend to any provision regarding the protection of human rights in any international treaty applicable w i t h i n the American states, by virtue of Article 53 of the Vienna Convention on the Law of Treaties, a norm that stipulates that treaties which refer to human rights and humanitarian law are jus cogens. O n the whole the Court agreed w i t h the Commission, even though it did not make any reference to the Vienna Convention because i t did not want to complicate the matter. A n Advisory Opinion AO/1—82 was issued on September 24th, 1982, stating that the advisory opinion of the Court is an instrument that can be used in connection w i t h any k i n d of treaty applicable to the American states. 42 The 19 member-states are: Argentina, Barbados, Bolivia, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Peru, Dominican Republic, Uruguay, Venezuela. 43 Juliane Kokott, Der Interamerikanische Gerichtshof für Menschenrechte und seine bisherige Praxis in: Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht 44 (1984), 806—839. This excellent work on the Court contains information on the relationship between the Court and the Commission and is complementary to this part of my article.

6*

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A few months after this the Commission came to be conclusion that the time had come to enrich the practice of the safeguarding of human rights by presenting to the Court a request for an expert opinion on the American states' reservations as to the coming into effect of the American Convention (Articles 74 and 75), in view of the fact that one country, namely Mexico, had stated that as far as this country was concerned, the Convention was binding right from the moment of the deposit of its ratification. There had, however, been presented an interpretation by the General Secretariat of the OAS, to the effect that there should be a waiting period of one year, as mentioned in Article 20 of the Vienna Convention on the Law of Treaties. The Advisory Opinion A O 2/82, also dated September 24th, 1982, fully confirmed the view of the Commission, according to which the Convention of San José had to become effective from the day of the deposit of the instrument of ratification or adherence document — a more accurate and wiser interpretation. O n A p r i l 15th, 1983 the I A C H R submitted to the Court a request for an advisory opinion on the scope of the final part of Article 4 of the American Convention on Human Rights and inquired i n particular whether the government of Guatemala would have the juridical possibility to pass laws after the Convention came into effect and to impose the death penalty in the case of offences for which no such penalty had existed before the date of ratification. I n more concrete terms this meant that the Commission strongly opposed the creation and the work of the so-called "Courts of Special Jurisdiction" set up under the regime of General Rios Montt and requested the expert opinion of the Court on capital punishment which they imposed. I n its Advisory Opinion A O — 3 , entitled "Restrictions to the Death Penalty", dated September 8th, 1983, the Court stated that a member state, in this case Guatemala, could not pass retrospective legislation in order to widen the scope of capital punishment to cover offences to which previously the death penalty did not apply. These Opinions of the Court are to be considered as positive development of law in the field of human rights, and they re-inforce the views held by the Commission. The latter played a very active role in bringing them about. They are susceptible to being used as a basis for the reports of the Commission and when solving individual cases, so that a general buttressing of the juridical network for the protection of these rights can be ensured. VI. Politics and Law in the Work of the Commission When taking a look at the activities of the I A C H R in the past 25 years, i t is easy to recognize a dynamic and fruitful inter-relation between politics

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and law. Institutions like this one are the ideal instrument for the development of this phenomenon, more in fact than in other aspects of international life. I t is unquestionable that the norms that define the Commission are of a juridical nature, just as those at the root of the rights that i t has to safeguard, the activities that i t can carry out in order to protect such rights, the basis of the resolutions it adopts and the obligations of the states towards their citizens and other members of the regional community. Law conveys to all procedures of the Commission a solemnity of effect. I t is therefore an institution which is largely determined by legal rules. But i t must not be forgotten that politics plays a very important role together w i t h law, that is politics i n the real sense of the word, politics w i t h very high aims. Otherwise i t would be grossly ignoring the dynamic and operating reality. There is a wide scope for making politics in favour of the legitimate claimants to human rights, above all i n a situation where the Commission acts w i t h i n a regional community of states which is strongly influenced by politics. A n d i t is not possible to ignore the fact that human rights constitute a decisive element in international relations, an essential political factor. I t is the extent to which these human rights are observed or not observed that in some cases determines whether a government is accepted or disapproved of. I f a state is accused by others of having disregarded these rights, this is not considered to be intervening in the original sense of the word, for there is also a political element that characterizes these rights. I n accordance w i t h the imperative postulate, human rights are no longer a matter which lie w i t h i n the individual competence of a single state but are a matter of general public interest. Apart from being a very useful field of activities for the noble objectives entrusted to the Commission, this political field, which is connected w i t h that of law, provides a broad basis for its activities. This can be seen, for example from the way in which reports are drafted, but above all from the language used in the conclusions in which the respective state is made responsible for the violations of human rights. The influence of politics can also be perceived in the tenor of the Commission's recommendations to the government. Politics is also perceptible in the degree of urgency of the I A C H R in bringing about an invitation or in requesting permission to visit certain countries for in loco observation. There is also a variety of political aspects that are not noticed at first when a continuous dialogue w i t h a certain government is taken up w i t h the aim of improving the human rights situation or the juridical system of a given country. A further political aspect which has to be taken into account is the atmosphere w i t h i n the General Assembly during whose session a report or an annual report is to be presented and the possible attitudes of the member states w i t h respect to the fellow member that is the subject of the particular report. A n d finally politics is also of major importance when i t

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comes to establishing a basic principle or when i t is necessary to give an interpretation of the Convention of San José in order to assert the protecting role of the Commission or else when i t comes to establishing what the Commission itself defines as its "doctrine", i. e. a kind of interpretative jurisprudence which is very useful in the reports that issue from this body. 4 4 Another major aspect of the connection that exists between politics and law is the obvious tendency of some large states to incorporate the question of human rights into their bilateral foreign policy, clearly distinguishing in their attitude between friendly and hostile states. Such attitudes must be avoided, for even though the intention is to protect these rights, which is not however always the case, the damage to the work of the I A C H R would exceed the benefits. The task of safeguarding these rights should be left exclusively to specialized institutions that have the technical and professional capacities to do so and whose work is characterized by objectivity, independence and neutrality. A l l this goes to show to some extent that the I A C H R is not a static organism that applies the stipulations of the law to a concrete case in the same way as a court would, i. e. mechanically and w i t h no further follow-up. Rather, i t has very sensitive political functions which i t has to exert w i t h a high degree of discretion, delicacy and talent, but also w i t h a great deal of vigour, and its activities must be characterized by circumspection. I t also throws light on this interesting relationship between politics and law, a relationship that has its influence on the work of international institutions and that shows how international law is that part of law that is characterized by more political features than probably any other branch of law. V I I . Future Prospects From what has been said up to now i t can be seen that the I A C H R has entered into one of the best eras of its existence, that its authority is respected by the other organs of the OAS and by the member states, that i t entertains very fruitful relations w i t h the international organs that are connected w i t h human rights and humanitarian law, that its work for the safeguarding and promotion of human rights in the Americas is effective and welcome. I t is also possible to award i t some role in the re-establishing of representative democracy in various countries of our hemisphere and in discrediting military dictatorships. The Commission has been making steady progress and has won itself the respect and trust of the public in general. 44

The "doctrine" of the Commission is to be found mostly in Inter-American Commission of Human Rights, Ten Years of Activity 1971—1981, Washington D. C. 1982, Section V, 313—339.

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We can, however, ask ourselves whether the future w i l l continue to be so promising for this organism and whether i t w i l l be able to continue fulfilling its noble task at the same speed and w i t h the same candor and efficiency as before. For the moment the indications seem quite encouraging. I n the past few years the number of member states of the American Convention of Human Rights of 1969 has been increasing, and various countries, such as Argentina, last year, and Uruguay, who ratified i t on A p r i l 19th, 1985, are now firm supporters of the Commission's work. The Commission itself can feel the technical support rendered by the Inter-American Court. I n addition i t enjoys the very efficient help of the Executive Secretariat, which is made up of high-qualified and experienced staff, which is very important for the Commission's task. The Commission's doctrine has a firm basis and has become generally accepted. Nevertheless there is the possibility of some setbacks, which might hamper its work. First there are the economic problems of the Latin American members of the OAS which w i l l probably have to be reflected in the Commission's budgets, obliging i t to adopt saving measures which w i l l then l i m i t its scope. Then there are the tensions in Central America which threaten to end in violence, a situation detrimental to human rights. I t should also be borne in mind that if the circumstances of general poverty persist in the Latin American region, internal conflicts may arise that could lead to a violation of these basic rights and to a deterioration of social peace. So there are some clouds in the sky that could bring bad weather and i t is necessary to prevent a deterioration in the state of affairs. However, I believe that, just as in the past 25 years of its life that we have been reviewing, the Commission w i l l find the best ways and the most appropriate means to continue to fulfill its honourable function, which is to reach a maximum degree of observation and promotion of human rights on the American continent.

Freedom of Expression and Information: An Essential Element of Democracy * by M a r t i n Bullinger Table of Contents Part 1: Introduction 1. Implications of Satellites and Cable Networks 2. Different Aspects of the Convention and the Treaty of Rome 3. Freedom of Expression by New Electronic Media as an Element of Democracy 4. Individual Freedom of Expression as the Primary Subject of this Report Part 2: Democracy in the Sense of Art. 10 of the Convention 1. Freedom of Expression as a Foundation of Democracy 2. Pluralistic Democracy 3. Prerequisites of a Pluralistic Democracy 4. Different Meanings of Freedom of Expression in Pluralistic and Non-Pluralistic Democracies Part 3: Individual Freedom of Expression and Information as an Element of Democracy I. Freedom of Expression in General 1. A Prerequisite of Democratic Decision-Making, an Element of the Forming of Public Opinion 2. Position of Aliens 3. Content of Expression a) Offending or Shocking Minority Statements Included b) Enhanced Freedom of Political Expression c) Commercial Character not Excluding Freedom of Expression 4. Ways and Means a) Technical Ways and Means b) Financial Means 5. Purely Negative Freedom or Necessity of "Affirmative" State Action II. Freedom to Receive Information and Ideas: Specific Aspects 1. Freedom to Take Notice of Illegally Disseminated Information and Ideas 2. Freedom to Seek Information 3. Right to Information a) Right to be Generally Informed by Mass Media and Public Authorities b) Individual Access to Information Held by Public Authorities Part 4 : Freedom of Expression and Information by Print Media as an Element of Democracy I. Non-Periodical Publications 1. Leaflets, Tracts 2. Books * This paper has been presented to the 6th International Colloquy about the European Convention on Human Rights, 13—16 November 1985 at Seville (Spain). The present version has been updated for this publication. The text was revised by my Canadian assistant, Michèle Franke , who also took an active part in the comparative legal research.

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II. Periodicals, in Particular Newspapers 1. Declining Plurality of Newspapers 2. "Public Task" of Newspapers, Shortcomings Concerning Individual Freedom of Expression 3. State Duty to Affirm Freedom of Expression 4. Means of Affirming Freedom of Expression 5. Compensation by Other Media for Insufficient Newspaper Plurality Part 5: Freedom of Expression and Information by Electronic Media as an Element of Democracy A. General Remarks B. Radio and Television I. Freedom of Expression by Radio and Television in General 1. Traditional Public Monopoly and its Impact on the Interpretation of Art. 10 a) Licence Clause Originally Interpreted as Indiscriminately Authorizing a Public Monopoly (1968) b) Possible Impact of a Public Monopoly on Freedom of Expression c) Licence Clause Partly Reconsidered (Affirmative Duty, Access to Broadcasting Time only in Exceptional Circumstances) d) Reluctance to Grant Access to Individuals or Groups to Public Broadcasting in the Member States 2. Changing Factual and Legal Conditions of Broadcasting as a Possible Inducement to further Reconsider Art. 10 a) Progressive Abandonment of the Public Broadcasting Monopoly in the Member States b) Structural Evolution of Radio and Television Underlying the Abandonment of the Monopoly c) Factors and Conditions of a Reorientation on the European and National Level 3. Individual Freedom to Impart Information and Ideas by Broadcasting (Access to Broadcasting) a) Access of Programme-Providers to Private Broadcasting aa) Access to Transmission Facilities bb) Access to Programme Licences cc) Restrictions Affecting Access, in particular Advertising Regulations b) Access of Programme-Providers to Public Broadcasting c) Access of Foreign Programme-Providers to Inland Broadcasting aa) Foreign Providers of Normal Inland Programmes bb) Foreign Programme-Providers of Inland Programmes for Inland Alien Communities cc) Access of Foreigners to Public Broadcasting d) Access of Foreign Broadcasters to Inland Retransmission aa) Programmes Transmitted by Direct Broadcasting Satellites bb) Programmes Transmitted by Telecommunication Satellites cc) Satellites Creating the Need for a Harmonization of National Broadcasting Laws II. Freedom to Receive Radio and Television Programmes 1. Freedom to Receive Radio and Television Programmes in General a) Inapplicability of the Licence Clause b) Right to Use an Individual Antenna c) Right to Receive by Community Antennas All Programmes Normally Available in the Air 2. Freedom to Receive Satellite Programmes in Particular a) Freedom to Receive Direct Broadcasting Satellite (DBS) Programmes

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b) Freedom to Receive Programmes Transmitted by Telecommunication Satellites C. New Forms of Electromagnetic Delivery (New Electronic Services) I. The Phenomenon II. Freedom of Expression by New Electronic Services 1. Inapplicability of the Licence Clause Concerning "Broadcasting" (Art. 10 [1] 3) 2. Possible and Partial Applicability of the Licence Clause Concerning Cinema Enterprises (Art. 10 [1] 3) 3. Freedom to Seek Information by New Electronic Services I I I . New Electronic Information Services as a Link between Print and Electronic Media, between Individual and Mass Communication Part 6 : Summary

Part 1: Introduction A r t . 10 of the European Convention on Human Rights, ratified by all member states of the Council of Europe 1 , guarantees freedom of expression 2 in the following words: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 1. Implications

of Satellites and Cable Networks

Legal implications and factual conditions of freedom of expression are of growing concern to the Council of Europe and its member states. This is due to the fact that direct broadcasting satellites (DBS), telecommunication satel1 The Convention is reprinted in United Nations Treaty Series (UNTS) 213, 221 et seq. In addition to the 21 member states, Finland and the Vatican have also ratified the Convention. For a complete list see Felix Ermacora / Manfred Nowak / Hannes Tretter , Die Europäische Menschenrechtskonvention in der Rechtsprechung der österreichischen Höchstgerichte, Wien 1983, 41. As to the application of Art. 10, France had made a reservation concerning the now defunct Radio and Television Act of 1972 (Act No. 72 - 553). Malta made a reservation concerning the freedom of expression of its public officers; see Herbert Miehsler / Herbert Petzold , European Convention on Human Rights, vol. I, Köln / Berlin / Bonn / München 1982, 58—62.

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lites 3 , broadband cable systems and new local radio frequencies are about to unsettle the established order of electronic and print media. O n the one hand, multiplied transmission facilities can be used to allow a greater variety of different opinions and programme interests to be voiced directly. O n the other hand, market forces could tend to transform satellite and cable systems into distribution facilities for the delivery of international films and other international cultural goods, offered on a European and even world-wide scale by multinational consortia of broadcasters, press publishers, film producers and other enterprises. The question might therefore be how to preserve national, regional and local electronic and print media as a genuine political and cultural forum accessible to all opinions, including those of individuals and small groups 4 . 2

Based on Art. 10 and its interpretation, the following terminology will be used: 1. Freedom of expression

a) Freedom to hold opinions

b) Freedom to impart (disseminate) information and ideas

(1) by personal means of dissemination

c) Freedom to receive informations and ideas (which is often, as i n the Federal Rep. of Germany, Austria and Switzerland called "freedom of information")

(2) b y means of access to mass media

(1) Freedom to take notice of information and ideas

(2) Freedom to seek information and ideas

(possible extension to:)

2. Right to informatio n (see: US "freedom of information" Act)

a) Right to be informed (by government, mass media)

b) Access to government and administration records or other information

The term "freedom of information" will be avoided as far as possible since it is often used without a precise meaning or with different meanings. 3 The Recommendation of the Committee of Ministers No. R (84) 22 (December 7, 1984) on "The use of satellite capacity for television and sound radio" suggests the new term "fixed services satellites (FSS)". 4 Martin Bullinger, Vom Rundfunk zum elektronischen Versandhandel, in Bullingerl Eigler / Külp J Lehmann / Schlier, Die elektronische Herausforderung, Freiburg i. Br. 1985, 63; Wolf gang Hoffmann-Riem, Kulturelle Identität und Vielfalt im Fernsehen ohne Grenzen?,

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2.

Different

Aspects

of the Convention

and the Treaty

of

Rome

T h e d e v e l o p m e n t o f electronic a n d p r i n t m e d i a engages the C o u n c i l

of

E u r o p e a n d the E u r o p e a n C o m m u n i t y d i f f e r e n t l y . T h e a i m o f the T r e a t y o f R o m e t o establish a C o m m o n M a r k e t f o r goods a n d services includes i n p r i n ciple b r o a d c a s t i n g services, as the C o m m i s s i o n o f the E u r o p e a n C o m m u n i t y has s t r o n g l y argued i n its Green Paper o f 1984 5 . T h i s o b j e c t i v e does entirely

not

coincide w i t h the a i m o f A r t . 10 o f the C o n v e n t i o n o n H u m a n R i g h t s

t o guarantee, regardless o f frontiers, a free flow o f i n f o r m a t i o n as a prerequisite o f an open, d e m o c r a t i c society 6 . T h e economic aspect o f a free m a r k e t a n d the democratic aspect o f a free m a r k e t p l a c e o f ideas 7 are related interconnected, b u t n o t i d e n t i c a l 8 . T h e present r e p o r t is p r i m a r i l y

and

concerned

w i t h the l a t t e r aspect. 3. Freedom

of Expression as an Element

by New of

Electronic

Media

Democracy

T h e idea t h a t freedom o f expression is a prerequisite o f a democratic society has f r e q u e n t l y been p r o n o u n c e d b y a l l authorities o f the C o u n c i l o f E u r o p e : the P a r l i a m e n t a r y A s s e m b l y 9 , the C o m m i t t e e o f M i n i s t e r s 1 0 , the C o m m i s s i o n 1 1 in: Media Perspektiven 1985, 181—190. As early as 1981 the Recommendation 926 of the Parliamentary Assembly of the Council of Europe on "Questions raised by cable television and by direct satellite broadcasts" based on the Stoff elen Report (July 17, 1981; Council of Europe, Parliamentary Assembly, Documents, Working Papers [Doc.] 4756), pointed to opportunities as well as to dangers of satellite communication. 5 "Television without frontiers" (June 1984). See also Ivo Schwartz , Rundfunk und EWGVertrag, in: Jürgen Schwarze (ed.), Fernsehen ohne Grenzen, Baden-Baden 1985, 45 (english version in: Fédération internationale pour le droit européen (F.I.D.E.), Reports for the l l t h Congress, vol. 1: Europe and the Media, the Hague 1984). In the Saccbi case, the European Court of Justice recognized that television is a "service" in the sense of Art. 59, 60 of the Treaty of Rome, but interpreted Art. 90 (1) as authorizing a state monopoly, judgement of 30 April 1974, Sammlung (German version of the Collection of Judgements of the European Court of Justice), vol. X X , 409 (428, 430). β Art. 10 of the Convention might therefore not necessarily be interpreted in favour of a free market in broadcasting services to the extent which the Green Paper (127—136) and Schwartz (note 5) suggest. 7 This expression was first used by Justice Holmes (Justice Brandeis concurring) in his dissenting opinion to Abrams v. US, 250 United States Supreme Court Reports (U.S.) 616 (1919). Both judges argued in favour of those who had been sent to prison for having disseminated pamphlets against the sending of American troops to combat the Bolsheviks in Russia. 8 See Friedrich Kübler, Wirtschaftsordnung und Meinungsfreiheit, Tübingen 1966; Martin Kriele, Einführung in die Staatslehre, 2nd ed. Opladen 1981, 194—198. 9 Recommendation of 1981 (note 4), No. 4. ίο Declaration on the freedom of expression and information, adopted by the Committee of Ministers at its 70th Session on 29 April 1982. 11 Handyside case, Report (30 September 1975), in: Council of Europe, Yearbook of the European Convention on Human Rights (4 B) 17, 228—302.

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and the Court 1 2 . Whereas the Court has not yet had the opportunity to deal w i t h freedom of expression by new technical means, the Commission is increasingly seized w i t h complaints from individuals, groups or enterprises concerning national restrictions on private local radio stations. Very prudently, the Commission has still avoided a decision on the merits, while indicating its willingness to reconsider former statements as to the legitimacy of a state monopoly for broadcasting. 18 The Parliamentary Assembly and the Committee of Ministers, not being confined to a case-by-case approach, have repeatedly dealt w i t h the general impact of satellite and cable systems. They proposed European standards, especially concerning satellite programmes, and recommended appropriate state legislation. 14 Their aim was to ensure the contribution of these new technical means to plurality and diversity of opinions. A Steering Committee on the Mass Media is charged w i t h establishing "common European principles which can help to ensure the viability of the media in a free and democratic society". 15 4. Individual Freedom of Expression as the Primary Subject of this Report I t does not seem appropriate, however, to confine the present report to mass media problems. This would even obscure the fundamental issue, namely the individual freedom of expression as i t is guaranteed by A r t . 10 of the Convention in its democratic as well as in its human rights aspect. Nevertheless, stress w i l l be laid on the urgent problems presented by the new electronic media.

Part 2: Democracy in the Sense of Art. 10 of the Convention 1. Freedom of Expression as a Foundation

of Democracy

"Democratic society" is mentioned in A r t . 10 (2) of the Convention as justifying restrictions on freedom of expression. I t is however commonly accepted that freedom of expression is primarily one of the essential foundations of democracy. 16 12

Handyside case, Judgement (7. Dec. 1976), Publications of the European Court of Human Rights, Series A: Judgements and Decisions (J. D.) 24, 23. 18 Telebiella case (Sacchi v. Italy), decision of 12 March 1976, Council of European Commission of Human Rights, Decisions and Reports (D. R.) 5, 43—52. 14 See Recommendations cited (notes 3, 4). 15 See Directorate of Human Rights, Council of Europe activities in the mass media field ( D H - M M [84] 4 of 31 August 1984). 16 See supra , notes 9—12.

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2.

Pluralistic

Democracy

T h e C o u r t a n d the C o m m i s s i o n have g i v e n t o this " d e m o c r a t i c society" a genuine meaning, w h i c h is d e r i v e d f r o m the specific p o l i t i c a l system o f the member states o f the C o u n c i l o f Europe. T h e k e y - w o r d s are " p l u r a l i s m a n d t o l e r a n c e " 1 7 . P l u r a l i s t i c democracy, the t r a n s p o s i t i o n o f 1 9 t h c e n t u r y

liberal

ideas i n t o 2 0 t h c e n t u r y mass society c o n d i t i o n s , 1 8 presents the f o l l o w i n g characteristics, as f a r as f r e e d o m o f expression is c o n c e r n e d : 1 9 a)

State a n d society are n o t based o n one pre-established d o c t r i n e w h i c h

has t o be pursued b y a c o m m o n e f f o r t . A p a r t f r o m a m i n i m u m consensus (infra

3 a), there is o n l y a r e l a t i v e t r u t h , n a m e l y the outcome o f discussion a n d

compromise.20 b)

A p o l i t i c a l m i n o r i t y has t o be g i v e n the chance t o t u r n p u b l i c o p i n i o n

i n its f a v o u r a n d t o become the m a j o r i t y at the n e x t general e l e c t i o n . 2 1 T h i s remains a mere chance a n d n o t a guarantee, even i f a certain m i n o r i t y is o f the o p i n i o n t h a t its o w n d o c t r i n e s h o u l d necessarily p r e v a i l as the

"truth".

M i n o r i t i e s do n o t h a v e the r i g h t t o impose t h e i r " t r u t h " b y force. T h e y h a v e to convince b y their arguments.22 c)

M i n o r i t y v i e w s are t o be " t o l e r a t e d " n o t as u n a v o i d a b l e evils whose

supporters w o u l d better be p u t i n t o j a i l , q u a r a n t i n e o r a s y l u m , 17

b u t as a

See supra , notes 11 and 12. Cf. Fritz W. Scbarpf , Demokratietheorie zwischen Utopie und Anpassung, Konstanz 1970, 31 et seq. ; Richard Bäumlin, Lebendige oder gebändigte Demokratie, Basel 1978, 18—21; René A. Rhinow, Grundprobleme der schweizerischen Demokratie, Basel 1984 (Schweizerischer Juristenverein Heft 2/1984). 19 It is respectfully suggested that the formula used by the Commission in the Handyside case (note 11), namely that freedom of expression is based on "the need of a democratic society to promote the individual self-fulfilment of its members, the attainment of truth, participation in decision making and the striking of a balance between stability and change", needs to be partly implemented, partly restricted as democracy and freedom of expression are used in a rather broad sense. For a more concise view, see Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 13th ed. 1982, 53, 61, 62—64(, 151—155; Rhinow (note 18). 20 Cf. Rhinow (note 18), 173. This relativism replaces the original liberal theory which assumed that free rational discussion would contribute to establishing "the truth"; see John Stuart Mill , Essay on Liberty, 1859, ch. 2 (each opinion which is suppressed by authority might be "true"); Thomas Emerson , Toward a General Theory of the First Amendment, in: Yale Law Journal 72 (1962/63), 877—956 (881). 21 Discrimination of minor political parties as regards broadcasting time during election campaigns may therefore not be justified with the argument (Collection of Decisions of the German Federal Constitutional Court [BVerfGE] 14, 121, [136], decision of 30 May 1962) that the formation of numerous political parties could hamper the functioning of parliament and government. 22 See, however, Herbert Marcuse , Repressive Toleranz, in : Robert Paul Wolff / Barrington Moore / Herbert Marcuse , Kritik der reinen Toleranz, Frankfurt/M. 1968, 105, 121, 127/28, advocating a natural right of "resistance" by minorities who are fighting against the "false" state of minds of "repressive" majority. 18

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necessary challenge to established majority views, preventing their sclerosis and forcing peaceful adaptation to changing conditions and needs. This is an essential element of an open society and thus of a pluralistic democracy. 23 d) The member states of the Council of Europe do not generally require that all segments of the society (groups, organizations) be organized according to the model of a democratic State, namely that they be based on a general right of all members to vote and to elect a governing body. 2 4 Such an internal democratic structure might, however, be justified as far as political parties are concerned, because of their more or less direct participation in political decision-making. 25 e) A democratic society must not be a closed circle of officially recognized organizations. I t has to be "open" in the sense that individuals can always leave organizations which no longer represent their own ideas and form new organizations (freedom of association, A r t . 11 of the Convention). 3. Prerequisites

of a Pluralistic

Democracy

A pluralistic society cannot in itself create and preserve a democratic State. There must be strong factors of unity to counterbalance the possible destructive or stifling effect of pure pluralism. a) Behind the plurality of opinions must lie a certain consensus on fundamental questions of society and government. 26 C i v i l war, a confrontation between fundamentally different views, signifies the end of a pluralistic democracy. The system has failed to bind opposing forces into a peaceful evolution. Under war and other emergency conditions, freedom of expression might be drastically restricted (Art. 15 of the Convention). 2 7 b) Pluralism must be combined w i t h the willingness of all tendencies to accept majority decisions at the level of Parliament and Government, taken after free discussion. Pluralism is neither anarchy nor an interest-preserving co-imperium of social groups. 28 23 See Emerson (note 20), 884. 24 See however Sweden, Constitution of 1976/77, chapter 1 § 2 para. 3; Portugal. Constitution of 1976, Art. 2, 18 (all constitutional provisions regarding rights, liberties and guarantees entail "both public and private entities"; see however infra note 31). Advocating the idea, for example, Bäumlin (note 18), 42 et seq., 55; contra Wilhelm Hennis , Demokratisierung. Zur Problematik eines Begriffs, in: Martin Greiffenhagen , Demokratisierung in Staat und Gesellschaft, München 1973, 47. 25 See Constitution of the Federal Republic of Germany, Art. 21 (1) 3. 2 6 Cf. Rhinow (note 18), 175, 250. 27 See the Swiss Kaempfer case, Collection of Decisions of the Swiss Federal Court (BGE) 60 I 108, judgement of 23 February 1934 (suspension of a communist newspaper inciting to quasi-revolutionary actions in a situation of social unrest). 2 8 Cf. Rhinow (note 18), 171—175; Scharpf (note 18), 75.

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c) Finally, pluralism seems to require a certain economic, social and cultural development, including religious, philosophical and moral relativism. 29 I t is significant that pluralism did not appear before the 19th century. 4. Different Meanings of Freedom of Expression in Pluralistic and Non-Pluralistic Democracies For the reasons stated above, a pluralistic democratic society cannot easily be expected from every country. I n any event, it is excluded in those states where a unique official doctrine is deemed necessary for promoting the wellbeing of the society. Therefore, i t is evident that freedom of expression, in the member states of the Council of Europe under A r t . 10 of the Convention, cannot have the same "democratic" meaning as freedom of expression according to A r t . 19 of the United Nations International Covenant on C i v i l and Political Rights of 1966 and of the Universal Declaration of Human Rights of 1948. These wider international agreements have to be applied to many states w i t h a quite different concept of democracy, not always being that of a pluralistic democracy. 30 The present report is only concerned w i t h the specific democratic function of freedom of expression in the member states of the Council of Europe. I t w i l l , however, refer when appropriate to other states acknowledging the same pluralistic idea of democracy, particularly the United States, where the Supreme Court has contributed much to the "Western" democratic concept of freedom of expression.

Part 3: Individual Freedom of Expression and Information as an Element of Democracy Freedom of opinion is, according to A r t . 10 of the Convention and the Constitutions of the member states of the Council of Europe, primarily an individual freedom 31 , even in its function as a prerequisite of a pluralistic democratic society. 32 29

Cf. Jörg P. Müller, Elemente einer schweizerischen Grundrechtstheorie, Bern 1982, 4. Cf. Rudolf Bernhardt, Internationaler Menschenreditssdiutz und nationaler Gestaltungsspielraum, in : Rudolf Bernhardt / Wilhelm Karl Geck / Günther Jaenicke J Helmut Steinberger (eds.), Völkerrecht als Rechtsordnung — Internationale Gerichtsbarkeit — Menschenrechte, Festschrift für Hermann Mosler, Berlin/Heidelberg/New York 1983, 75—88 (78). U N and UNESCO proposals and resolutions for a "new information order" (see Roger Pinto, La liberté d'information et d'opinion en droit international, Paris 1984, 36—46) indicate that the pluralistic concept of freedom of expression is in a rather defensive position. 31 Possible exceptions exist. The Portuguese Constitution of 1976 might indicate that the transformation into a "classless society" (Art. 1) and "the transition to socialism" were the 30

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This legal aspect needs further consideration. A pluralistic democratic society is generally considered as being based on group participation rather than on individual participation in the forming of political opinion. The original liberal key figure of the independent individual has almost disappeared in modern theory oriented towards mass society. 33 The question is, therefore, whether individual freedom of expression still fulfills essential democratic functions. T w o "democratic" modes of freedom of expression are guaranteed by Article 10 of the Convention: 1. freedom to impart information and ideas, and 2. freedom to receive information and ideas. Both freedoms are two faces of the same freedom of expression and, therefore, normally have the same scope of application 3 4 . Freedom to receive information however, exceeds to some extent freedom to impart information. 3 5 This specific scope of application w i l l be treated separately {infra sub II.). I. Freedom of Expression in General 1. A Prerequisite of Democratic Decision-Making. , an Element of the Forming of Public Opinion Individual freedom of expression is a prerequisite, not a part of decisionmaking in a pluralistic democracy. 36 principal aims underlying all fundamental rights (Art. 2). This would mean, according to the constitutional theory in socialist states, that freedom of expression is the opportunity to contribute to the development of socialism. It seems, however, that Art. 37 (freedom of expression and information) and Art. 38 (freedom of the press and means of social communication) can no longer be interpreted in this way, though they reflect to some extent socialist ideas (even after the revision of 1982). 32 See the third broadcasting decision of the German Federal Constitutional Court, BVerfGE 57, 295 (319), of 16 June 1981. The court recognized that "broadcasting freedom" serves the same purpose as all other guarantees of Art. 5 Grundgesetz (GG), namely the furthering of individual freedom of expression. 33 Cf. Jürgen Habermas, Strukturwandel der Öffentlichkeit, Neuwied / Berlin, 3rd ed. 1968, 247. 34 See BVerfGE 27, 71 (82), decision of 3 October 1969. 35 It seems that the Commission was thinking of such a possible "exceeding" freedom to receive information when it states, in the case Berger v. United Kingdom (5528/72), in which citizens alleged interference with their right to take notice of the "Little Red Schoolbook", also object of the Handy side case, that "even supposing that the rights ensured by Art. 10 of the Convention encompass a general right to acquaint oneself with any information or idea intended for publication by an author" (whether legally permitted or not), "there was no interference . . .". See also the recent decision of 5 Mardi 1985 in the case A. v. Switzerland (10248/83), concerning the right to use powerful individual antennas in order to receive pirate radio stations and possibly illegal foreign radio stations.

7 GYIL 28

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a) The majority principle does not apply. 3 7 Parliament cannot, by majority vote, decide which idea should or should not be expressed. Restrictions which may be imposed by law according to A r t . 10 (2) of the Convention, have been less and less broadly interpreted by the Court and the Commission. 38 b) Individual freedom of expression is an intrinsic element of the free formation of public opinion. This is not a legal fiction destined to conceal that under the conditions of a mass society only social, economic or political organizations can really participate i n the process of forming public opinion. Individual freedom of expression contributes to keeping this process open. As long as individuals are legally entitled to voice their disagreement w i t h majority group views and t r y to find public support, those majority group views cannot claim an exclusive position in the political process which is destined to bring about decisions based on consensus or compromise. The relatively small „class" of politically active individuals and groups can neither bar newcomers from access nor exclude dissenters. 39 c) Individual freedom of expression seems to be a prerequisite even of opinion polls which keep government and political parties constantly aware of public opinion. 4 0 I n a general climate of intolerance, open answers cannot be expected, even i f their confidentiality is assured. General elections or referenda 41 would not be the free expression of the people's opinion, i f votes were not able to openly discuss candidates and programmes. 2. Position of Aliens Being in its essence a human right, freedom of expression is granted to everybody, including aliens. 42 I n its democratic function, however, this guar36 Participating in democratic decision-making, such as voting in general elections is, of course, based on a certain opinion and represents a particular form of expressing this opinion (see Art. 3 of the First Protocol to the Convention, 20 March 1952, UNTS 213, 262 etseq.)> but it does not follow from Art. 10 of the Convention (see X v. Netherlands , Decision of 19 December 1974, D. R. 1, 87). Decison-making and the forming of private and public opinion follow different legal rules. This could be obscured by the formula used by the Commission (see supra note 19). 87 Cf. Rhinow (note 18), 253. 38 Particularly significant is the Court's judgement in the Sunday Times case of 26 April 1979, J. D. 30, 35—36. In the Handyside case, the Commission already states (supra note 11) that protection of the freedom is the general rule; restrictions should therefore not be interpreted in a way as to completely suppress free dissemination. s» Cf. Rhinow (note 18), 238, 250/51, 253, 255; Scharpf (note 18), 33—35, 39/40, 57/58. 40 See the critical analysis of Wilhelm Hennis , Meinungsforschung und repräsentative Demokratie, Tübingen 1957. 41 Guaranteed by Art. 3 of the First Protocol to the Convention of 20 March 1952. 42 The German Constitution of 1919 (Art. 118) for example had reserved freedom of expression to "Germans".

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antee is not regarded as protecting aliens to the same extent as citizens who, being part of the "people", have the right to vote in democratic elections and referenda. 43 According to A r t . 16 of the Convention, A r t . 10 cannot be interpreted as excluding restrictions on the political activity of aliens 44 . The question is whether the mere expression of a political idea amounts to such political activity 4 5 . Neither the Court nor the Commission has had the opportunity to clarify A r t . 16. A narrow interpretation w i l l be required i n order to assure freedom of expression 48 . 3. Content of Expression Freedom of expression is guaranteed regardless of its content. Expression of political ideas, however, enjoys particularly high protection. a) Offending or Shocking M i n o r i t y Statements Included I n its Handyside judgement 47 concerning immoral publications, the Court stated the principle that A r t . 10, subject to restrictions pursuant to paragraph 2, is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as matters of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. b) Enhanced Freedom of Political Expression Particularly when "freedom of expression in political matters is involved", restrictions must be applied in a spirit of pluralism, tolerance and broadmindedness. 48 A "politican must be prepared to accept even harsh criticism 48 Some member states have given alien residents a right to vote in the election of local or regional councils. As a rule, the right to vote is limited to citizens. 44 As to the possible restrictions concerning freedom of establishment and services (reasons of public order etc.) under the Treaty of Rome (Art. 56 [1], 66), see EC Green Paper 1984, 125—127. 45 See infra 3 b as to the related question whether the mere expressing of "totalitarian" political ideas is tantamount to an "activity" aimed at the destruction of freedoms guaranteed by the Convention and thus not protected by the Convention. 46 Karl-Josef Partscb, Die Redite und Freiheiten der Europäischen Menschenrechtskonvention, in: Karl-August Bettermann / Franz L. Neumann l Hans Carl Nipperdey, Die Grundrechte 1/1, Berlin 1966, 235—492 (312/313); Heinz Guradze, Die Europäische Menschenrechtskonvention, Berlin/Frankfurt 1968, 154; Pinto (note 30), 55; Jörg P. Müller / Stefan Müller, Grundrechte, Besonderer Teil, Bern 1985, 93—95; Nowak, in Ermacora / Nowak / Tretter (note 1), 577. In Austria, where the Convention has been adopted as part of the Constitution, Courts do not clearly pursue such a restrictive interpretation, see Nowak, op. cit. 577—579, 449—456. 47 Supra note 12. 48 Report of the Commission (11 October 1984) in the second Lingens case (Application 9815/82), concerning alleged defamation of the Austrian Federal Chancellor by a journalist, 21.

ν

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of his public activities and statements, and such criticism may not be understood as defamatory unless i t throws a considerable doubt on his personal character or good reputation." 4 9 Such critical value judgements are not only to be allowed i f their " t r u t h " can be proven. 5 0 These statements of the Commission in the two Lingens cases were directed against Austrian criminal legislation and jurisprudence stifling or "chilling" critical political statements. Similarly, expression of politial ideas in a broad sense is given a privileged position by the German Federal Constitutional Court 5 1 and by the Swedish Constitution 5 2 . Even this particularly wide freedom of political expression does not entitle "any group or person" to "engage in any activity or perform any act aimed at the destruction" of freedom of expression or any other basic rights (see A r t . 17 of the Convention). This cannot, however, be interpreted as excluding the pure expression and communication of those ideas which might eventually lead, i f accepted by the people, to a "totalitarian regime", as long as the "speaker" does not pursue actively this opinion or incite others to do so. 53 The United States Supreme Court adopted the theory that only a "speech" 54 causing "clear and present danger" of a serious evil may be penalized. The distributing of leaflets or other forms of publicizing a destructive (for example anarchistic) opinion is not in itself sufficient. 55 I t is not clear whether the 49

Decision of the Commission (11 December 1981) in the first Lingens case (Application 8803/79), D . R . 26, 171 (181/182); report in the second Lingens case, 20. 50 Report in the second Lingens case, 21. 51 Summing up the German position on this point see BVerfGE 66, 116 (139) of 25 January 1984. 52 As revised 1976, chapter 2 § 13 (2). 58 See Jochen A. Frowein , Reform durch Meinungsfreiheit, in: Archiv des öffentlichen Rechts (AÖR) 105 (1980), 169 (178—180). A decison of the German Federal Constitutional Court of 17 January 1978 (BVerfGE 47, 130, 143), concerning the distribution of communist newspapers to soldiers, inciting them to insubordination, might have to be interpreted in the same way, given the context of its reasoning. The Court rather sweepingly acknowledged that criminal laws could, as "general laws" restrict freedom of expression, provided that they are interpreted "in the light of" freedom of expression. 54 The first amendment to the United States Constitution uses the term "freedom of speech" as equivalent to "freedom of expression". 55 This doctrine was developed by one of the great liberal judges, Holmes , in Schenck v. US , 249 U.S. 47 (1919), concerning the circulation among soldiers of a document inciting to insubordination. He sought to limit legislation restricting freedom of expression; see also Justice Holmes , (Justice Brandeis concurring) in Abrams v. US ( supra note 7). The concurring opinion of Brandeis , in Whitney v. California , 274 U.S. 357 (1927), concerning communist activity, marks the victory of this liberal jurisprudence. In a more recent decision, the U.S. Supreme Court reformulated the "clear and present danger" test and limited State intervention in the area of free speech to cases "where such advocacy (of the use of force or of law violation) is directed to inciting or producing imminent lawless action and is likely to incite or produce such action", see Brandenburg v. Ohio , 395 U.S. 444 (1969). See Donald M. Gillmor / Jerome A. Barron, Mass Communication Law, 2nd ed. 1974, 8—25; Zechariah Chafee , Free Speech in the United States. Cambridge/Mass. 1948, 86, 90, 108 et seq.

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Commission of Human Rights also had such requirements in mind when i t declared that A r t . 10 of the Convention did not exclude the conviction of individuals possessing, w i t h a view to distribution, leaflets inciting racial discrimination against blacks in the Netherlands. 56 I n the Arrowsmith case, the Commission distinguished between a mere "statement" and the distribution of leaflets in Northern Ireland which "encouraged individual soldiers to disaffection indicating specific means of assistance" 57 . c) Commercial Character not Excluding Freedom of Expression Although the concept of freedom of expression is chiefly concerned w i t h "political" speech in the broadest sense, in the Commission's opinion this does not exclude "commercial speech" in the form of commercial advertising, though protection might be of a lesser degree. 58 This view seems to correspond to the jurisprudence of the German Federal Constitutional Court. 5 9 The Swiss Federal Court, however, restricts freedom of expression to statements which are of an "ideal" character and not predominantly commercial, commercial speech being covered by freedom of commerce. 60 The European Court of Human Rights did not, in the recent Barthold judgement, decide the general question 61 , but stated, that the "publicity-like" effect of a veterinarian's press interview did not exclude it from protection by A r t . 10. Thus, i t seems at least to be established that commercial motives, circumstances or effects of the expression of "political" information and ideas in the broadest sense do not place it outside the scope of freedom of expression. 56 Glimmerveen and Hagenbeek ν . The Netherlands , D. R. 18, 187, 1979. See, however, Pinto (note 30), 56/57, who suggests a narrow interpretation of Art. 17 by relying on the jurisprudence of the Court. 57 Application 7050/75, Report of 12 Oct. 1978, D. R. 19, 5 (23); see also the Reports of the Commission in the de Becker case (European Court of Human Rights, Series Β 1962, 137), and the Lawless case (Series Β 1960/61, 180), ("actions" "for the purpose of destroying the free democratic order"). 58 X & Church of Scientology v. Sweden , decision of 5 May 1979, D. R. 16, 68 (73); affirmed by Parliamentary Assembly Recommendation 952 (1982), 4. 50 See BVerfGE 11, 234 (238) of 22 June 1960 and BVerfGE 30, 336 (352) of 23 March 1971, both concerning advertising for pornographic or nudist publications; BVerfGE 64, 108 of 10 May 1983, at 114 (freedom of the press includes the advertising part of newspapers, as this is essential to their financing) and at 118 (the "negative" freedom of expression of a journalist being more protected in the editorial part than in the advertising part of a newspaper). «ο Cf. Peter Saladin , Grundrechte im Wandel, 3rd ed. Bern 1982, 49. See also the Constitution of the Netherlands (1983), Art. 7 (4), excluding advertising from freedom of expression. 61 Judgement of 25 March 1985, 17. For a general comparative survey of the problem, see Anthony Lester / David Pannick , Advertising and Freedom of Expression in Europe, 1984.

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4. a)

Ways and

Means

Technical W a y s a n d Means

U n l i k e A r t . 19 o f the I n t e r n a t i o n a l C o v e n a n t o n C i v i l a n d P o l i t i c a l R i g h t s , A r t . 10 o f the C o n v e n t i o n does n o t expressly guarantee t o e v e r y b o d y freedom to i m p a r t

i n f o r m a t i o n a n d ideas " e i t h e r o r a l l y ,

in writing

or

the in

p r i n t , i n the f o r m o f a r t , o r t h r o u g h a n y other m e d i a o f his choice". N e v e r theless, the general w o r d i n g o f A r t . 10 is u n d e r s t o o d as i n c l u d i n g i n p r i n c i p l e , a l l technical means o f c o m m u n i c a t i o n . 6 2 I n the recent " R a d i o 24"

case 63 the

C o m m i s s i o n stated t h a t freedom o f expression includes the freedom t o i m p a r t i n f o r m a t i o n a n d ideas "also b y means o f r a d i o b r o a d c a s t i n g " .

62 Cf. Walter Berka , Die Kommunikationsfreiheit in Österreich, in: Europäische Grundrechte-Zeitschrift (EuGRZ) 9 (1982), 413 (417 with note 27). As to the constitutions of the member states, this is not altogether clear: Federal Republic of Germany : Unlike the Constitution of 1919 (Art. 118), the present Constitution (Art. 5 [1]) does not expressly mention other means of dissemination than "speech, writing and graphic representation"; as to the state of legal opinion, see Martin Bullinger , Kommunikationsfreiheit im Strukturwandel der Telekommunikation, Baden-Baden 1980, 63, 117. Portugal : (Art. 38, 39 as revised 1982), Spain (Art. 20): Expression by all "means" guaranteed, subject however to many restrictions as regards means of "social communication" (in particular broadcasting). Sweden (chapter 2, § 13, para. 3): No "restrictions" of freedom of expression if state legislation regulates the way of imparting and receiving ideas or information, provided that this is done without regard to the content of expression. Denmark : General agreement that the guarantee of Art. 77 is only a safeguard against censorship (see Ole Espersen , Freedom of Expression in the Danish Radio and Television, in: Revue des droits de l'homme 8 [1975], 139). Greece : Art. 14 confines freedom of expression to written or press statements, excluding (Art. 15) film, records, radio, television and similar means of dissemination. Netherlands (Art. 7): Radio and television depend on statutory regulation; dissemination by other means than the press is free of censorship as far as their content is concerned. In the United States , the question gave rise to some dissent in the case Kovacs v. Cooper , 336 U. S. 77 (1949), concerning the interdiction of "sound trucks" by New Jersey legislation,. Three dissenting judges (Black, Douglas , Rutledge JJ.) were of the opinion that those "who do not have enough money to own or control publishing plants, newspapers, radios . . .", should be given the opportunity to use cheaper means to disseminate their ideas. The majority seemed to consider "technical" means of dissemination as in principle protected by freedom of speech, but agreed that sound trucks should be prohibited for the protection of other citizens against noise. Judges Frankfurter and Jackson argued that there are vital differences between natural speech and other modes of expression, especially mass communication, which did not allow indifferently the same first amendment protection to all physical means of communication. Frankfurter seems to have gone as far as to indicate that freedom of speech would only be infringed by legislation prescribing the content of speech, but this is not entirely clear. 63 Decision of 17 May 1984 (Application 10799/84), concerning the Swiss interdiction to retransmit experimental local radio programmes by a cable network whose antenna lies outside the legal diffusion zone of the radio programme.

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b) Financial Means I t seems to be generally accepted that individual freedom of expression includes the right to make use not only of personal efforts, but also of personal financial means, be i t at a loss or at a profit, provided that i t does not amount to economic pressure. 64 (1) As has already been stated (supra 3 c), A r t . 10 is not confined to "pure" ideas being free of any financial consideration. A "political dinner" aimed at raising funds in support of a certain political movement, is covered by freedom of expression. (2) A t elections and referenda, the vote of each citizen must be given equal weight 6 5 . This does not apply to the dissemination of political ideas. Here, each citizen is allowed to give his voice an unequally high weight. Since political "speech" is part of the opinion-making and not of the democratic decision-making process, it remains in the forefield of democratic equality. The amount of money to be spent by an individual for the propagation of his political opinion is limited neither by the Convention nor by the Constitutions or laws of the member states. There are at the most rules restricting "spending power" for election campaigns 66 or the financing of political parties 67 , both being affiliated w i t h the democratic decision-making, rather than w i t h the mere forming of political opinion. Unequal distribution of skill, income and fortune is, to a certain extent, an inherent element of a pluralistic democratic society which is, in principle, based «4 See BVerfGE 25, 256 (264/65), Blinkfüer case of 26. Feb. 1969. See Reynolds ν . Sims , 377 U. S. 533 (1964), concerning the apportionment of election districts. This "equal weight" doctrine does not, however, command an election system based on proportionality; see BVerfGE 3, 19 (24) of 1 August 1953, BVerfGE 3, 383 (398) of 3 June 1954, BVerfGE 6, 84 (90) of 23 January 1957. ββ See Great Britain's Representation of the People Act 1983 (Halsbury's Laws of England, vol. 15 [4th ed.] 1977, Cumulative Supp. 1984, Pt. 1), Section 76 limits the amount of money which a candidate may spend on his election campaign in a county constituency to £ 2,700, plus an additional 3,1 pence for every entry in the register of electors. 67 In the Federal Republic of Germany, contributions to political parties are only exempt from income tax within certain limits (since 1984, 5 °/o of the income; before, 600 or 1,200 D M per year). It would be contrary to the constitutional principles of democratic equality to give financially potent citizens a considerably higher influence on the forming of the political will and the possibility of improving the position of political parties whose ideas appeal to those citizens; see BVerfGE 52, 63, decison of 24 July 1979, decision of 15 January 1985, in: Neue Juristische Wochenschrift (NJW) 38 (1985), 1017. Otherwise, however, financial contributions of citizens to political parties are not limited. Statutory provisions try to assure transparence (see also Art. 21 [1] 3 of the Federal Constitution) and to avoid the "bargaining" of political or economic favours (see Parteiengesetz § 25). See Hans Herbert v. Arnim , Verfassungsfragen der Parteienfinanzierung, in: Juristische Arbeitsblätter 1985, 121—131. 65

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on free economy. H e who is economically successful, may also be successful in politics 6 8 . Others can form associations and thus combine their financial means and efforts in order to influence public opinion. The result is unequal influence on the forming of public opinion 6 9 . This raises the question whether in a "social" State, legislation or the administration should to some extent mitigate the financial inequality of "speakers" and l i m i t opinion-making economic power, especially in the field of the mass media (see infra Part 4 I I 3, 4; Part 5 Β I 3 a, b). 5. Purely Negative Freedom or Necessity of " Affirmative

" State Action

A r t . 10 of the Convention protects individual freedom of expression against "interference by public authority". Positive, "affirmative" State action 7 0 facilitating individual political "speech" is not expressly required. I t seems, however, that the Court and the Commission increasingly acknowledge such an affirmative duty. 7 1 The traditional approach 72 did not sufficiently secure a real basis for exercising freedom of expression. If, for example, public streets and squares are not open to free expression of information and ideas without prior administrative permission, the discretionary refusal to "grant" such permission would in fact be tantamount to interfering w i t h freedom of expression. This seems to have been taken into account by the Swiss Federal Court, which has otherwise declined to acknowledge any affirmative duty of the State. 73 The same would apply to access to town halls, i f they are the only local meeting places. 74 The State or local authorities are, however, not required to subsidize

68

As to the origin of this liberal idea, see Kühler (note 8), 5. Swiss BGE 98 I a 73 (79) (Kellermüller case). See the critical analysis of Hermann Heller , Staatslehre, Leiden 1934, 178/79. 70 See Emerson (note 20), 902, pointing out the increasingly real difficulties of freedom of speech in a modern mass society. 71 See infra Part 4 I I 3 (newspapers), Part 5 Β I 1. c) (broadcasting). As to the legal doctrine, see Willihaid Fahr, Informationsfreiheit und Demokratie, in: EuGRZ 6 (1979), 110; Jochen Α. Fr owein, Die Europäische Menschenrechtskonvention in der neueren Praxis der Europäischen Kommission und des Europäischen Gerichtshofes für Menschenrechte, in: EuGRZ 7 (1980), 231—257 (235); Berka (note 62), 421; Frits Hondius, Freedom of expression and information in European law, in: Directorate of Human Rights, Inform, doc. 2 July 1984; Andreas Khol , The International Aspects of the Freedom of Expression in Radio and Television, in: Revue des droits de l'homme 8 (1975), 127—138 (138). 72 Cf. Emerson (note 20), 900. 73 See Saladin (note 60), X X I I — X X V . As to the corresponding jurisprudence of the Dutch Höge Raad, see Ulrich Hoffmann-Remy , Die Möglichkeit der Grundrechtseinschränkung nach den Art. 8—11 Abs. 2 der Europäischen Menschenrechtskonvention, Berlin 1976, 185. 74 Saladin, op. cit., X X V / X X V I , citing an unpublished decison of the Swiss Federal Court. 69

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Freedom of Expression and Information

expression of political information and ideas by applying special rates or by otherwise granting financial aid. 7 5 II. Freedom to Receive Information and Ideas: Specific Aspects Freeedom to impart information and ideas includes the right that reception is not to be interfered w i t h 7 6 . Freedom to receive is thus its necessary counterpart. To some extent, however, freedom to receive information has or may have a wider scope of application. This shall now be dealt with. 1. Freedom to Take Notice of Illegally

Disseminated Information

and Ideas

Everyone is entitled to take notice of any information or idea which is in fact available, even i f it has been disseminated illegally, be it an incitement to revolutionary activity or news transmitted by a pirate radio station. This is commonly recognized in the member states of the Council of Europe. 77 The view of the Commission is apparently not different. 7 8 Freedom to take notice of illegal information does not, of course, prevent public authorities from interfering w i t h the illegal dissemination of such information. 2. Freedom to Seek Information Freedom to receive information is not confined to opening eyes and ears. Though not expressly mentioning the right to "seek" information 7 9 , the Convention allows anyone to actively secure information which is destined to him or to the general public. 8 0 7« See X. v. Federal Republic of Germany (Applications 2834/66 and 4038/69), D. R. 35, 29, 13 July 1970, concerning the refusal to subsidize a puppet-show, cited by HoffmannRemy (note 73), 170 and Pinto (note 30), 93/94; see German Federal Administrative Court (BVerwG), decisions of 4 January 1978 and 2 July 1979, in: Die öffentliche Verwaltung (DöV) 1978, 415 and DöV 1979, 718 respectively, (local community under no obligation to publish without charge the information bulletins of a local political group). 76 Radio 24 case, decision of the Commission of 17 May 1984 (Application No. 10799/84). 77 See, e. g., BVerfGE 27, 71 (85) of 3 October 1969 (East German publication imported into West Germany). Those who have taken notice of such illegally disseminated information or ideas may even be entitled to disseminate them further, subject to restrictions; see BVerfGE 66, 116 (137/138) of 25 January 1984 (the Wallraff / Bildzeitung case in which a writer had, under a false name, become a journalist of the Bildzeitung in order to discover how the editorial staff of this popular newspaper works). 78 See the decison of the Commission in the case A. v. Switzerland (Application No. 10248/83) of 5 March 1985, taking into account the (legitimate) interest of the applicant to receive pirate radio stations. 79 As is done by Art. 19 (1) of the International Covenant on Civil and Political Rights of December 1966. 80 Implicitly recognized by the Commission in the Case A. v. Switzerland (note 78), in which the right to set up individual antennas, which constitutes an "active" searching for

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This, again, includes information and ideas, whose dissemination in the area of reception is not allowed. 8 1 The German Federal Constitutional Court decided that a West German citizen could individually import from the German Democratic Republic a newspaper whose publication and distribution in the Federal Republic would have constituted a criminal offence, provided that i t was not likely to seriously threaten the constitutional order. 82 Freedom to seek information has thus been recognized as being of primary importance for an open democratic society. One seems to be allowed to use all technical means in order to seek information, provided that this information is meant for the public, or is, by its nature, open to the public. Freedom to seek information does not cover intrusion into private or administrative secrets by electronic eavesdropping or similar devices. 83 3. Right to Information Open discussion in a pluralistic democratic society depends to a considerable extent on government and mass media making available the information of which they dispose. The question is therefore, whether freedom to receive information needs to be complemented by a right to information , such as has been provided for by the US Freedom of Information A c t 8 4 . This complementary right could be — a right to be generally informed on all important matters by public authorities and mass media, and (or) —

a right of access, on demand, to information held by public authorities. a) Right to be Generally Informed by Mass Media and Public Authorities

I n the Sunday Times case, the Court stated that in a democratic society "the public has a right to receive" information and ideas whose dissemination information, was in principle brought under Art. 10; see Swiss BGE 104 l a , 95 (infra note 88) with further references; Guradze (note 46), 143; Pinto (note 30), 96/97; Heinz Wittmann, Rundfunkfreiheit, Wien/New York 1981, 193/194 with note 54. For contrary opinion see Hoffmann-Remy (note 73), 164; Peter Curdin Ragaz, Die Meinungsäußerungsfreiheit in der Europäischen Menschenrechtskonvention, Bern 1979, 56/57; Berka (note 62), 413, 419 with note 42; Partsch (note 46), 435/436. This contrary opinion seems to be directed against a right of access to confidential information, a right which is, indeed, not guaranteed by Art. 10 (see infra 3). Berka himself states (at 419) that the (active) importation of foreign books can only be restricted under Art. 10 (2); similarly Hoffmann-Remy , op. cit., 164. 81 Supra note 78. 82 Supra note 77, at 85—88. 83 See § 201 (2) of the German Federal Criminal Code (StGB); see BVerfGE 66, 116 (137), supra note 77. 84 5 United States Code (U.S.C.) § 552 (1974). Concerning the idea of a "right to information" in general, see Balle, Médias et société, 3rd ed., Paris 1984, 195 et seq.

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is the " t a s k " o f the m e d i a . 8 5 I t does n o t seem, h o w e v e r , t h a t the C o u r t h a d i n m i n d the r e c o g n i t i o n o f an i n d i v i d u a l r i g h t , u n d e r A r t . 10, o f each m e m b e r o f the p u b l i c t o be i n f o r m e d b y the mass m e d i a . 8 6 T h e statement o f the C o u r t m u s t be read i n the c o n t e x t o f its reasoning t h a t the l e g i t i m a c y o f restrictions o n f r e e d o m t o i m p a r t i n f o r m a t i o n b y the press s h o u l d be w e i g h e d against the p u b l i c ' s " r i g h t " t o be i n f o r m e d . T h e same p r u d e n t approach seems t o p r e v a i l i n the m e m b e r states. 8 7 A s i m i l a r prudence is t o be a p p l i e d t o the democratic o b l i g a t i o n o f g o v e r n m e n t a n d o t h e r p u b l i c authorities t o keep t h e people i n f o r m e d o n i m p o r t a n t matters. I t seems t h a t this c o n s t i t u t i o n a l o b l i g a t i o n does n o t give rise t o a corresponding i n d i v i d u a l r i g h t o f each c i t i z e n w h i c h c o u l d be b r o u g h t u n d e r the p r o t e c t i o n o f the C o n v e n t i o n ( A r t . 10) o r the C o n s t i t u t i o n o f a member state. 8 8 E n f o r c e m e n t is l e f t t o p a r l i a m e n t . b)

I n d i v i d u a l Access t o I n f o r m a t i o n H e l d b y P u b l i c A u t h o r i t i e s

" C o n s i d e r i n g the i m p o r t a n c e adequate i n f o r m a t i o n

on

public

for

the p u b l i c i n a d e m o c r a t i c

issues", the C o m m i t t e e o f

society

Ministers

of has

recommended, o n 25 N o v e m b e r 1 9 8 1 , 8 9 t h a t , subject t o exceptions, " e v e r y o n e 85 Judgement of 26 April 1979, Series A, vol. 30, 40 (No. 65). 86 The Commission, in the case X v. United Kingdom (Application 8575/79, Decision of 14 December 1979), D. R. 20, 202, did not exclude the possibility of deriving such an individual right from the Sunday Times judgement. This statement is, however, not persuasive since the case concerned neither mass media nor a right of the general public, but rather an individual prisoner claiming access to administrative information concerning him personally, i. e. the composition of an administrative commission revising annually his imprisonment conditions. The " . . . duty for mass communication media to give complete and general information on public affairs" might "correspond" to everyone's freedom to seek information (see Parliamentary Assembly Recommendation No. 582 [1970], A [3] ), but not necessarily to everyone's individual right to be completely and generally informed by all mass media. 87 The "right" of each citizen "to pluralistic information" was recognized by the French Conseil Constitutionnel (Decision No. 84—181 DC, October 10, 11 1984, Actualités juridiques — Droit administratif [AJDA] 1984, 684) in its judgement on the Press Concentration Act of 1984 ("loi visant à limiter la concentration et à assurer la transparence financière et le pluralisme des enterprises de presse", Loi No. 84—937, J. O. 24 Oct. 1984, 3323). This does not, however, seem to imply an individual right enforceable by the courts. See Jean-Claude Masclet, AJDA 1984, 644, 657; see also the decision of the U.S. Supreme Court in the Red Lions case, 395 U.S. 367 (1969): "It is the right of the public to receive suitable access to social, political, aesthetic, moral, and othdr ideas . . .". The German Federal Administrative Court (decision of 26 April 1978, DöV 1979, 102) did not recognize an individual right against a public broadcasting institution to have certain information included in a programme. 88 See Swiss BGE 104 l a (1978), Schweizerische Journalistenunion v. Graubünden , 88 (95); Decisions of the German Federal Administrative Court (BVerwGE) 47, 247 (253) of 3 December 1974. This does not exclude that, under particular circumstances, an individual right might be recognized; see / . P. Müller / S. Müller (note 46), 130/131. 89 Recommendation No. R (81) 19 on access to information held by public authorities.

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shall have the right to obtain, on request, information held by public authorities . . . " ; this access to information " . . . shall not be refused on the ground that the requesting person has not a specific interest in the matter". I t seems that the Committee could not rely on A r t . 10 of the Convention. 9 0 Traditionally, constitutional freedom to receive (and seek) information does not include a general "democratic" access of everybody to administrative records or other information; this "public" access depends on additional legislation which is still non-existent in a considerable number of member states including the Federal Republic of Germany, though there is a growing tendency to grant access.91 The legal situation is more favourable for the applicant seeking access to information concerning him personally. 92 Given the "task" of print and electronic media to inform the public (see supra a) and their dependence on official information, journalists may have a right to request information from government and administrative authorities provided that secrecy is not required 93 .

Part 4: Freedom of Expression and Information by Print Media as an Element of Democracy Since the 16th century, the distribution of printed material has been one of the most important means of communicating information and ideas. Freedom of the press, an achievement of the 19th century liberal movement, is guaranteed as such by many Constitutions, whereas other Constitutions and the Convention do not mention expressly this particular mode of freedom of expression. 94 90 See the Commission's decision in the case of 16 Austrian communes, Y. B. 17, 338, 354 (31 May 1974); Berka (note 62), 419. 91 See Martin Bullinger , in: Donald C. Rowat (ed.), Administrative Secretary in Developed Countries, New York 1979, 217 et seq. As to other countries, see the articles in Rowat and the contributions to the Colloquy of the Council of Europe on freedom of information at Graz (1976), particularly Wennergren (Sweden) and Adamovich (Austria). In France, public access has since been established by the Loi No. 78—753 of 17 July (J. O. 18 July 1978), Titre 1er: De la liberté d'accès aux documents administratifs. 92 See Bullinger, loc. cit. The Commission is of the opinion that "under certain circumstances" Art. 10 might include a right of access to documents which, although not generally accessible, are of particular importance for the particular position of the interested person ( X v. Federal Republic of Germany , Application 8383/78, decision of 3 October 1979 D. R. 17, 227). 93 This right is granted by German press laws and might follow from the constitutional guarantee of freedom of the press; see Helmut Kohl , Press Law in the Federal Republic of Germany in: Pnina Lahav (ed.), Press Laws in Modern Democracies, 185 (204); Hesse (note 19), 152. More generally see Saladin (note 60), 83—86. 94 See Yutaka Tajima , Protection of Freedom of Expression by the European Convention, in: Revue des droits de l'homme 2 (1969), 658 (664).

Freedom of Expression and Information

109

Freedom of the "press" comprises all sorts of print media, leaflets, books, newspapers and magazines. The various p r i n t media do not in the same way enable everybody to freely express information and ideas. Freedom of expression cannot therefore be applied indiscriminately to all print media. As the Commission stated in the Geillustre er de case95, there are "substantial differences" even between the daily press and weekly magazines, differences which have to be taken into account. I. Non-Periodical Publications 1. Leaflets y Tracts Leaflets and tracts have always been a rather inexpensive means of disseminating religious and political ideas and as such are readily available to everybody. Freedom to distribute leaflets and tracts in public streets without discretionary administrative authorization is therefore of primary importance to an open democratic society 06 . 2. Books The publication of books is also attainable for everybody. Modern electronic equipment, rapidly decreasing in price, allows an author to "type" his manuscript in a way that i t can be printed automatically, thus avoiding the rising costs of professional composing. A n y author is entitled under A r t . 10 of the Convention to become his own editor and to spend his income or wealth in organizing the sale or other distribution of his books (see supra Part 3 I 4 b). Most authors are unable to afford or unwilling to take this risk. They depend on their manuscripts being accepted for publication by a commercial publisher. The distributing function of publishers is covered by A r t . 10 of the Convention. The protection offered by A r t . 10 might be restricted to the "intellectual owner", i. e. to a "person or body who produces, provides or organizes" the information, as the Commission suggested in the Geillustreede case. This applies to commercial publishers as well as to their authors. I t is not the commercial publisher's profit aim as such which is protected under A r t . 10, 97 but rather his contribution to imparting information and ideas. 98 This contribution is indispensable in an open democratic society which is substantially based on free economy. »5 Application No. 5178/71, Report of 6 July 1976, D. R. 8, 5 (16, No. 104). »e See J. P. Müller / Stefan Müller (note 46), 154/155. See Abrams v. U. S. (note 7), in which Justice Holmes (dissenting) developed the notion of a "marketplace of ideas" in connection with the distribution of leaflets. »? See supra note 95, at 13 (No. 84). «s Op. cit., at 14 (No. 88).

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This notion of freedom of expression by commercial book publishing conveys to a limited number of persons (publishers, editors and their staff) the power to select "ideas" for mass production and mass distribution. Member states of the Council of Europe rely on the expectation that competition between independent publishers should secure a sufficient real chance for all ideas to be conveyed to the public in the form of books. The access of new publishers to the market is excluded neither legally nor economically; excessive concentration of publishers is dealt w i t h according to normal anti-trust devices". I n the absence of commercial publishers, freedom to impart by means of books would to a considerable extent depend on government, a dependence which would be far less compatible w i t h the aim of A r t . 10 of the Convention. Governmental subsidizing of selected books is tolerable as long as i t does not create a factual censorship. This can easily be avoided by entrusting selection to politically independent institutions. Freedom to receive (or refuse) information and ideas can sufficiently be exercised by acquiring or not acquiring certain books, be they published inside or outside the country 1 0 0 . Inequality of purchasing power is not considered incompatible w i t h freedom of expression. II. Periodicals, in particular Newspapers 1. Declining

Plurality

of Newspapers

Periodicals present a different situation insofar as their publication requires financial means which a decreasing number of independent publishers can afford. This is particularly true as far as daily newspapers are concerned 101 . A rather limited number of newspapers exercise continuous and considerable influence on the opinion of their readers who, by their number, represent a considerable part of the public. Since the capital of newspaper-publishing companies could be provided by foreigners, newspaper concentration might be accompanied by a dominating position of foreigners in the forming of the public opinion. 99

See the decision in the Quinn case (of 4 July 1979, Application 8456/78). The Commission affirmed that Art. 10 "in no way obliges publishers to publish an individual's material". 100 See supra Part 3 I I 2 with note 82. 101 See Martin Löf fier, Das Pressefusionskontrollgesetz, in: Archiv für Presserecht 7 (1976), 155 et seq.; Roger Pinto , (note 102), 15 et seq.-, Lord Ardwick, Economic and financial Aspects of the Daily Newspapers, in: EC Mass Media Files No. 3 (Economic and financial Aspects of the Mass Media) (1982); (German) Monopoly Commission, Hauptgutachten 1984, chapter V.

111

Freedom of Expression and Information

The question is therefore whether freedom of expression element of (national) democracy is still secured or has to additional legal devices. Freedom of individuals and their disseminate information and ideas w i l l have to be considered dom of everybody to take notice of or to seek information and 2. "Public Task" of Newspapers , Shortcomings Individual Freedom of Expression

as an essential be secured by associations to as well as freeideas.

Concerning

Individual freedom of expression seems somehow to disappear behind the notion of a public "task" of mass media in general and newspapers in particular. Their " d u t y " is to impart information in matters of public interest, to form and express public opinion which is an important element of controlling the holders of public power in a democratic society. 102 This "public function" can be fulfilled to some extent by a few economically prosperous newspapers which do not depend on government or political parties. They can afford to keep up a more or less high standard of professional journalism and reveal misuses of government and administration, as scandals or sensations best attract readers. The Watergate affair was made public by a commercial newspaper. 103 The report of the commercial Sunday Times on the disastrous effects of Thalidomide gave rise to the principal judgement of the Court on freedom of the press. 104 Yet the question remains, whether this powerful position of a few commercial newspapers realizes in all respects the democratic function of freedom of expression: a) Ideas of individuals or groups who "offend, shock or disturb" a majority of readers might not have a chance to be reported. b) The publisher or editor of a newspaper enjoying a monopolistic or oligopolistic situation could use the resulting power on public opinion to 102 See Sunday Times case, Judgement (note 85); second Lingens case (note 48), Report of the Commission of 11 October 1984, 19 (No. 74); principal statements of the German Federal Constitutional Court, c/. BVerfGE 20, 162 (174—176) of 5 August 1966 {Spiegel case). The Portuguese Constitution of 1976 (as revised 1982) seems to classify the press as a means of "social communication" together with broadcasting (Art. 38). See also Art. 20 (3) of the Spanish Constitution of 1978. As to the institutional notion of freedom of the press in general, see BVerfGE 10, 118 (121) of 6 October 1959; Helmut K. J. Ridder , Meinungsfreiheit, in: Franz L. Neumann / Hans Carl Nipperdey / Ulrich Scheuner, Die Grundrechte, vol. I I , Berlin 1954, 243—290 (250— 255), subjecting the political press to the same "internal democratic restrictions" as political parties (257); Ulrich Scheuner, Pressefreiheit, in: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (WDStRL) 22, Berlin 1965, 1—100 (29—32); Saladin (note 60), 43—48; Roger Pinto, La liberté d'opinion et d'information, 1955, 42 (service public), and Georg Ress (note 117), 45; Berka (note 62), 417/18 (the Austrian Courts have rejected the institutional theory). 103 See Frowein (note 53), 170, with note 9. 104 Supra note 85.

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create a majority for his own political views. This might be considered as exceeding the inherent economic inequality of individual freedom of expression in an open, pluralistic society (see supra part 3 I 4 b) and could create particular problems for democracy when a powerful newspaper is owned by foreigners. c) Individual freedom to receive information and ideas requires, in the field of mass media, a minimum choice between different, independent sources of information which can suffer from excessive newspaper concentration. 3. State Duty to Affirm

Freedom of Expression

The "political" authorities of the Council of Europe therefore recommended to the member states various legal and administrative measures destined to maintain pluralism of newspapers. 105 As to the Commission and the Court the question is whether A r t . 10 of the Convention requires or justifies positive state action in order to protect individual freedom of expression in the field of newspapers and comparable mass print media. I n the Geillustreerde case 106 , the Commission suggested that a state could fail " i n its duty to protect [newspapers] against excessive press-concentrations". This statement seems to confirm that an affirmative duty can be derived from A r t . 10. 1 0 7 Its fulfilment might not be regarded as a restriction (paragraph 2) but as part of the legal protection (paragraph l ) . 1 0 8 Nevertheless, affirmative legal devices should be subject to a "necessity" test whenever elements of freedom are removed in order to protect freedom. 109 Otherwise, the affirmative duty might become a veiled way of restricting freedom of expression. Interpretation of A r t . 10 (2) w i l l have to be adjusted to this task of controlling affirmative state action. 1 1 0 105

Committee of Ministers, Resolution (74) 43 on press concentrations of 16 December 1974; Parliamentary Assembly, Recommendation 747 (1975) on press concentrations. ιοβ Supra note 95, at 14 (No. 88). ίο? Supra Part 3 I 5. 108 As to the distinction between legislation restricting and legislation affirming freedom, see for example BVerfGE 57, 295 (320), of 16 June 1981 (Third broadcasting decision). 109 German Federal Constitutional Court (note 108); French Conseil Constitutionnel, decision of 27 July 1982 (J. O. 29 July 1982, 2422), concerning the constitutionality of the Audiovisual Communication Act of 1982 ("loi sur la communication audiovisuelle", Loi No. 82—652, J. Ο. 30 July 1982, 2431), holding that state regulation "ne doit pas excéder ce qui est nécessaire à garantir l'exercice d'une liberté". See also the decision on the Press Concentration Act (supra note 87), holding that certain dispositions of the statute were not compatible with freedom of expression because they went further than necessary to assure pluralism of the press. 110 Art. 10 (2) only specifies conditions (such as "public safety") for legislation restricting freedom of expression, conditions which cannot easily be applied to legislation affirming freedom. The principal requirement, however, that conditions must be "prescribed by law" and be "necessary in a democratic society" can guide affirming legislation as well.

Freedom of Expression and Information

4. Means of Affirming

113

Freedom of Expression

Several forms of legal action positively affirming individual freedom of expression in the field of newspapers and comparable mass print media have been taken in the member states of the Council of Europe: a) The right of everybody (individuals, groups) to freely found and run a newspaper, still being the principal freedom, receives some economic support (1) by tax exemptions and reductions or by state subsidies which, unless indiscriminately granted to all newspapers, may create an undue influence of government on the content of newspapers; (2) by special restrictions put on excessive press concentration; 111 (3) exceptionally 1 1 2 , by reserving the right to run a newspaper to individual publishers, non-profit organizations and associations of journalists, thereby preventing, in theory at least, economic power to occupy the opinion-making "social communication". Whether such a far-reaching exclusion of "capitalist" publishers is compatible w i t h the Treaty of Rome and A r t . 10 of the Convention, is questionable. b) I n addition, some countries seek to prevent foreigners from dominating the forming of the national public opinion. France reserves, w i t h some exceptions, the right to publish political periodicals or those providing general information in the French language to French citizens and companies whose shares are held by French citizens. 113 According to A r t . 16 of the Convention, member states are not prevented from "imposing restrictions on the political activity of aliens". The question is whether this justifies the wide French ban on foreign newspaper publishers (see infra Part 5 Β I 3 c as to radio and television). 114 The French Minister of the Interior disposes of a complementary discretionary power to prohibit the importation of foreign publications 1 1 5 . 111

See the French Press Concentration Act (note 87), Art. 10—13, concerning newspapers. Portugal, Constitution of 1976, Art. 38 (4); the revision of 1982 eliminated these restrictions, which are, however, still to be found in the corresponding statute. 113 Art. 9 of the abovementioned Act (note 111). Exceptions are made for publications intended for ethnic communities in France, Art. 9 (5). See also Sweden, Press Law, ch. 5 and 13: Printing and publishing in Sweden is reserved to Swedish citizens. Foreign publications can be imported freely; foreign and Swedish periodicals which are mainly destined to be diffused in Sweden must, however, receive a licence in Sweden (as a means of preventive control of legality), but do not have to be published by a Swedish citizen. The Portuguese press law of 26 February 1975 (Decreto-lei No. 85-C/75), Art. 7 (2), (8) requires that periodicals be published by Portuguese citizens or companies in which not more than 10°/o of the shares are in the hands of foreigners. 114 Partsch (note 46), 313 note 261, would only accept restrictions as to political periodicals. 115 Art. 14 of the Act of 29 July 1881 which is still in force; see Masclet (note 87), 649. 112

8 GYIL 28

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Martin Bullinger

This discretionary power affects freedom to receive information, which is particularly protected in an open democratic society (see supra Part 3 I I 1, 2), and might not pass the "necessity test" of A r t . 10 (2). 1 1 β c) Political pluralism of newspapers is protected in some member states by granting to the editorial staff a certain independence vis-à-vis the publisher 117 . Thus the freedom of expression of a " f e w " editors is limited in favour of a more considerable number of professional journalists who might represent a broader range of ideas. Such legal requirements of a certain independence for newspaper editorial staff seem to be compatible with, but not required by, A r t . 10 of the Convention. Traditionally, freedom of expression is considered to protect journalists against public authorities and not directly against other private persons, such as private publishers. 118 A n "affirmative" duty of the state to grant independence to the editorial staff of newspapers does not seem to have been widely derived from the general guarantee of freedom of expression. 119 d) Those who cannot afford to publish a newspaper and do not work as journalists, are only granted a very limited right of reply to newspaper statements which concern them personally. 120 This is far from a general right of access to newspapers assuring the publication of everybody's information or ideas, whether in the form of articles, reader's letters or advertisements. Their publication depends on the private publisher's or editor's free decision. 121 To a limited degree, the reader can express his political preference by purchasing the national, regional or local newspaper which most appeals to him, provided that there is a sufficient choice on the market, or by importing a foreign newspaper (see supra Part 3 I I 2). 5. Compensation by Other Media for Insufficient

Newspaper

Plurality

Individual freedom of expression might not, therefore, be considered effectively protected i f one only considers newspapers. I t appears necessary ne See Pinto (note 30), 110—114. See Karl Doehring et al, Pressefreiheit und innere Struktur von Presseunternehmen in westlichen Demokratien, Berlin 1974, in particular Georg Ress (for the French situation); Heinz-Dietrich Fischer et al., Innere Pressefreiheit in Europa, Baden-Baden 1975 (concerning England, France and Sweden); Peter Lerche, Verfassungsrechtliche Aspekte der "inneren Pressefreiheit", Berlin 1974; Saladin (note 60), 73, 415 (no case has been decided by the Federal Court). The new French Press Concentration Act of 1984 (note 87), only requires that a daily newspaper has its own editorial staff (Art. 14). ii® Concerning this aspect and that of an affirmative duty in general, see Berka (note 62), 421. i i 0 See, however, Hesse (note 19), 153. 120 See Khol (note 71), 136; Recommendation 582 (1970) of the Parliamentary Assembly. 121 See BVerfGE 42, 53 (62), of 24 Mardi 1976; also infra note 122. 117

Freedom of Expression and Information

115

to take into account other print media and the electronic media as complementary means of communicating information and ideas. The question is to which extent individual means of propagating ideas, such as leaflets, tracts and books, can compensate for the lack of access to newspapers 122 , how far other periodicals such as weekly papers or magazines w i l l make up for deficient plurality in the field of newspapers and to which extent individual access to electronic media w i l l have to compensate for the deficiency in individual freedom of expression by print media 1 2 3 .

Part 5: Freedom of Expression and Information by Electronic Media as an Element of Democracy A . General Remarks Technical evolution is about to transform electronic media into a press-like variety of means for disseminating information and ideas. 124 Interactive Videotext by telephone cable permits the distribution of "electronic leaflets" to the electronic "letter boxes" of selected households and allows the reception of these "electronic leaflets" upon request. Non-interactive wireless teletext or cabletext, a relatively inexpensive cyclical transmission of "magazines" composed of small rectangles w i t h textual information, enables a subscriber to choose at a given moment a certain "page" and make i t visible on his television set, comparable to the consulting of a booklet or leaflet page. Broadband cable networks in connection w i t h telecommunication satellites technically allow an almost unlimited number of video and audio programmes to be transmitted. This might give rise to an "electronic" revival of the 19th century print media situation in which each political movement could afford its own newspaper. Wireless television programmes over DBS (Direct Broadcast Satelite) or terrestrial transmitters require more frequency space and higher financial means. As in the case of daily newspapers, this restricts the number of services. This broad spectrum of electronic media and the widely different real conditions it presents to freedom of expression require a differentiated legal 122 See the American case Kovacs v. Cooper (note 62), dissenting judgement; BVerfGE (note 121), in which a monopolistic regional newspaper had refused to publish political advertising concerning a referendum. The court held that leaflets could have been used to compensate for the newspaper's refusal which was covered by freedom of the press. 123 See Martin Bullinger, Du monopole de l'Etat à la liberté de la communication audiovisuelle, in: Aspects du droit des médias II, Fribourg/Suisse 1984, 301 et seq.-, the same, Strukturwandel von Rundfunk und Presse, in: NJW 37 (1984), 385—390 (390). 124 See Holde Lhoest, The Interdependence of the Media, CE Mass Media Files, No. 4 (1983); Bullinger (note 123), 385; the same (ed. and co-author), Rechtsfragen der elektronischen Textkommunikation, München 1984; the same (note 4), 63—91.

8*

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approach, commencing from, but not adhering to, the aspects of traditional broadcasting.

B. Radio and Television I. Freedom of Expression by Radio and Television in General 1. Traditional Public Monopoly and its Impact on the Interpretation of Art. 10 As a rule, freedom to impart information under A r t . 10 includes the right to use the means of radio and television. This was recognized by the Commission in the Radio 24 case.125 Freedom to impart is here, however, "of a more limited scope" 126 , since A r t . 10 provides that a state may require the licencing of "broadcasting" (in the sense of radio) and television. a) Licence Clause Originally Interpreted as Indiscriminately Authorizing a Public Monopoly (1968) The "licence clause" could have been interpreted as allowing preventive restriction 1 2 7 or protection of freedom of expression. Both could be considered necessary because a few broadcasting programmes occupied the limited wireless transmission facilities 1 2 8 and thus exercised a particularly great influence on public opinion. 1 2 9 Instead, the basic decision of the Commission ( X v. Sweden , [1968] ) 1 3 0 interpreted the licence clause as purely and simply authorizing a state monopoly. I n the Sacchi case (1974), the Court of Justice of the European Community gave the same meaning to A r t . 90 (1) of the Treaty of Rome. 1 3 1 The Commission on Human Rights relied on the fact that "both at the time of the drafting of the Convention and at the present time, a great number of member States had established a system of public monopoly enterprises for radio and television", without further inquiring as to whether these public monopolies were a means of affirming or restricting freedom of expression. 125 Supra note 76. 126 Decision of the Commission (1st March, 1982) in the case X Association v. Sweden (Application 9297/81, D. R. 28, 204), concerning access time. 127 In the Netherlands, a court decision of 1965 has applied Art. 10 (2) to restrictions imposed by a licence system, see Hoffmann-Remy (note 73), 170. 128 See Lester / Pannick (note 61), 18; Hondius (note 71), 8/9; Khol (note 71), 135. 129 As to this specific influence, especially of television, see the Swiss decision in the Kellermüller case (note 69), 81 et seq.; BVerfGE 35, 202 (226/27), of 5 June 1973; Lebach decision concerning a TV-play representing a real murder case. 130 X v. Sweden , decision of 7 February, 1968 (Application 3071/67). 131 Supra note 5; the only condition is that such a monopoly lies "in the public interest"; see Schwartz (note 5), for a restrictive interpretation of this monopoly as far as the retransmission of foreign programmes is concerned.

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b) Possible Impact of a Public Monopoly on Freedom of Expression I n fact, such an inquiry might have given rise to certain doubts as to unconditional compatibility of a public broadcasting monopoly w i t h individual freedom of expression: (1) A public broadcasting monopoly may give decisive influence to government, as might be the case in France and Greece. 132 (2) A power-sharing between major political parties and other organizations w i t h the editorial staff of public broadcasting, as in the Federal Republic of Germany 1 3 3 , leaves smaller political parties or groups as well as oppositional individuals without institutional participation and without right of access.134 (3) Legal provisions which grant the editorial staff of public broadcasting a certain independence (see supra Part 4 I I 4), have to provide for the staff's obligation to give "objective" or "balanced" information, the journalists being "trustees" of the public. This "objectivity", however, may result in the filtering of minority ideas, in particular when they shock or offend the majority (objectivity versus plurality; see supra Part 3 I 3). Consequently, programmes may be destined to, but not left to minorities, as might be the case w i t h the British Broadcasting Corporation (BBC) and the Independent Broadcasting Association (IBA) in Great Britain 1 3 5 . c) Licence Clause Partly Reconsidered, (Affirmative D u t y , Access to Broadcasting Time only in Exceptional Circumstances) The Commission has become increasingly aware of this possible conflict between public monopoly and freedom of expression. According to its de132 Art. 15 (2) of the Greek Constitution of 1975 places radio and television "under the direct control of the State". In France, the Audiovisual Communication Act of 1982 (see supra note 109) tempers to a certain extent traditional government influence on public broadcasting programmes, but does not abandon it, in spite of the remarkably neutralizing activity of the Haute Autorité de la communication audiovisuelle ; see Roger-Michel Chevallier, AJDA 1982, 555 (565—570). More generally, Khol (note 71), 128, affirms that radio and television "are, in one way or the other, closely controlled by the government". 133 See Christian Starch, Teilhabeansprüche auf Rundfunkkontrolle und ihre gerichtliche Durchsetzung, in: Presserecht und Pressefreiheit, Festschrift für Martin Loeffler, München 1980, 375—389 (376).. 134 See Christopher Wittemann, West German Television; an argument for media as an instrument of self-government, in: Hastings International and Comparative Law Review 7 (1983), 145 (163 et seq., esp. 166—168); BVerfGE 60, 53 (63—67, of 9 February 1982): no right of a minority political party to be represented in the broadcasting council of the Norddeutscher Rundfunk (NDR); Superior Administrative Court of Lüneburg, DöV 1979, 170 (Right of a protestant church to be represented in the broadcasting council of the N D R refused). 135 See X and Association of 2 v. United Kingdom, decision of the Commission of 12 July 1971 (Application No. 4515/70, Y. B. 1971, 538).

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cision in the Telebiella case of December 1976 (Sacchi v. Italy), the Commission is no longer disposed to sustain "purely and simply" its former statement that A r t . 10 authorizes a public monopoly. 1 3 6 I n the more recent case X Association v. Sweden of March 1982 137 , a political student organization had not even received an answer from the public radio and television corporation to their letter requesting a certain programme to be broadcast. The Commission stated that " . . . a State that establishes a system requiring licencing has special duties to ensure that the rights under A r t . 10 of the Convention remain protected". 1 3 8 As the association in question did not demand to establish its own broadcasting station but rather to have access to public broadcasting, the Commission could confine its decision to this limited issue. I t saw no reason to give up its formerly established 139 , rather limited notion that only " i n particular circumstances" might the denial of broadcasting time to a private citizen or organization affect A r t . 10. Freedom of expression could not "be taken to include a general and unfettered right for any private citizen or organization to have access to broadcasting time on radio or television in order to forward its opinion." d) Reluctance to Grant Access to Individuals or Groups to Public Broadcasting in the Member States The reluctance of the Commission to seriously question a public broadcasting monopoly which does not generally provide for access time or otherwise effectively protect individual freedom of expression, reflects a similar attitude of courts in the member states and elsewhere 140 , w i t h the exception of the Italian Constitutional Court. 1 4 1 To a greater degree than newspapers (see supra Part 4 I I ) , radio and television are traditionally considered public institutions which, independently from government, fulfil a public function of "objectively" informing the ΐ3β Supra note 13. 137 Supra note 126. 138 Inasmuch as such affirmative measures restrict freedom, the "necessity" test of Art. 10 (2) will apply directly or indirectly, see supra Part 4 I I 3, with notes 109, 110. 130 Supra note 135. 140 See the Swiss Vigilance case, BGE 97 I (1971), 731 (734/35), concerning access of a regional political movement to broadcasting information. Wide discretionary power was left to Swiss public broadcasting, limited only by the obligation to give equal chances to political parties; similarly BVerfGE 47, 198 (225) of 14 February 1978. See the comparative analysis by Wittmann (note 80), 190—192; as for the comparable Danish jurisprudence Espersen (note 62), 141—143; for Finland, see Tore Modeen , The Freedom of Expression in Radio and Television in Finland, in: Revue des droits de l'homme 8 (1975), 151—164 (157, 159— 161). 141 Cf. Decisions Nos. 225 and 226/1974; see Enzo Cheli , in: Aspects du Droit des Médias II, Fribourg/Suisse 1984, 311—313.

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people and providing a proper balance of the main currents of opinion. Individual freedom of expression is thus more or less reduced to a "right" to be informed objectively (see supra Part 3 I I 3 a). 1 4 2 The German Federal Constitutional Court did not seriously question 143 the doctrine that access of all "relevant" ideas is sufficiently secured through the existence of broadcasting councils in which major political parties and other established organizations are represented. The Court relied on the legal obligation of these representatives to assure an objective and well-balanced information, an obligation which does not necessarily correspond to political reality. 1 4 4 Minor political and other groups have no right to be represented in a broadcasting council. 1 4 5 I n some member states constitutional or legal rules provide political parties and other groups w i t h limited access time. 1 4 6 O n l y in the Netherlands the entire public broadcasting system is based on the idea that all currents of opinion should have their own broadcasting time; however, well-established groups are given preference and the system is not readily open to new movements. 147 2. Changing Factual and Legal Conditions of Broadcasting as a Possible Inducement to further Reconsider Art. 10 I n the light of the rapidly changing factual and legal situation of radio and television, the Commission might be induced to further reconsider its original understanding of the licence clause as legitimizing a public broadcasting monopoly. 142

See Arç 15 of the Greek Constitution of 1975 (Objectivity and cultural quality instead of press-like individual freedom of expression). See further unpublished decision of the Swiss Federal Court of 17 October 1980, "Temps present", cited in: Zeitschrift des Bernischen Juristenvereins (ZBJV) 118 (1982), 209 (225). 143 See the third broadcasting decision of the Federal German Constitutional Court (note 32), 324/325. The Court did, however, fix abstract standards for the representation of relevant social groups in broadcasting councils. See also BVerfGE 60, 53 (63—67), supra note 134. 144 See for example the Bavarian Broadcasting Act (of 1948 as revised 1973) Art. 6 (1) 2. 145 See supra b) with note 134. 146 See § 5 (1) of the Austrian Broadcasting Act (1974); in the Federal Republic of Germany, see for example Art. 4 (2) of the Bavarian Broadcasting Act (access time only during election compaigns) whereas the Süddeutsche Rundfunk is under a legal obligation to grant access time to political parties in general; see further BVerfGE 14, 121 (134) of 30 May, 1962. As to the legal situation in Switzerland, see the Vigilance case (note 140), at 732 mentioning the internal regulations of the Swiss Broadcasting Corporation. See further Art. 40 (1), (3), of the Portuguese Constitution of 1976 as revised in 1982; Spanish Constitution (1978) Art. 20 (3), as to public broadcasting institutions. 147 See the introduction to the Report of the Commission in the Geillustreerde case (note 95); cf. Cohen Jehoram , The unique Dutch Broadcasting System . . ., in: Journal of Media

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a) Progressive Abandonment of the Public Broadcasting Monopoly in the Member States The original interpretation of the licence clause was based on the assumption that a public monopoly existed in many member states when the Convention was concluded, and still existed in 1968. I n the meantime, this monopoly has been abandoned or is in the process of being abandoned in a considerable number of member states. 148 Private broadcasting organizations, in part charged w i t h "public functions", are about to enter into competition w i t h each other and w i t h the traditional public broadcasting organizations: (1) I n 1982, France replaced its public monopoly by a "freedom of communication" and, though still favouring public broadcasting, authorized hundreds of private local radios which enable different groups and currents of ideas to express themselves directly. 1 4 9 Private television is under consideration; it w i l l be regulated as a "public service" in private hands and might combine independent local or regional programmes w i t h national networks. 1 5 0 Mixed economy cable networks w i l l provide private enterprises w i t h additional means of distributing films, music and other programmes, which might be brought in by telecommunication satellites. (2) Recently, Italy provisionally legalized the nationwide private broadcasting networks which had in fact emerged as a result of the decisions of the Constitutional Court liberalizing local and regional radio and television. 151 (3) I n the Federal Republic of Germany , most of the States (Länder) have already passed or are about to pass statutes providing for definite or experimental licensing of private radio and television broadcasters. These broadcasters are more or less supervised by councils consisting of representatives of political parties and other social groups. Negotiations between the States might lead to attributing DBS television and radio channels to public broadLaw and Practice, vol. 2, December 1981, 253—269; the same, in: Martin Seidel (ed.), Hörfunk und Fernsehen im Gemeinsamen Markt, Baden-Baden 1983, 121—143; the same, in: Martin Bullinger (ed.), Rechtsfragen der elektronischen Textkommunikation (note 124), 83—98. 148 The following list does not claim to be exhaustive. 149 Audiovisual Communication Act (France), supra note 109, Art. 1, 81; see Chevallier (note 132); for a complete list of private local radios see Le Matin , 9 July 1985, Numéro hors série (special issue). 150 On the basis of the Bredin Report of 20 May 1985, La Documentation Française, Paris 1985; see Le Monde , 22 May 1985, 20, one or two national private TV-networks transmitting during prime-time in the evening, time-sharing with independent local TV-stations, might be authorized as a "public service" during 1985: see the critical remarks of the Haute Autorité de la communication audiovisuelle , Le Figaro, 16 June 1985, 8. 151 Decreto-legge of 6 December 1984 (Gazzetta Uffiziale m. 336), "converting" law of 4 February 1985, n. 10 (Gazzetta Uffiziale m. 30 of 5 February 1985).

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casting c o r p o r a t i o n s as w e l l as t o p r i v a t e consortia o f p r i v a t e publishers a n d other enterprises. 1 5 2 (4)

O n an e x p e r i m e n t a l basis, several countries have a u t h o r i z e d p r i v a t e

l o c a l r a d i o stations (Switzerland,

Sweden , Norway ,

stations (.Switzerland , Denmark).

I n a d d i t i o n , Switzerland

subscription television a n d Norway (5)

I n Spain ,

Denmark)

a n d television

has a l l o w e d p r i v a t e

seems t o a u t h o r i z e p r i v a t e cable t e l e v i s i o n . 1 5 3

several p r i v a t e r a d i o stations o n a n a t i o n a l level a n d m a n y

l o c a l r a d i o stations have been a u t h o r i z e d . 1 5 4 A n organic l a w a u t h o r i z i n g p r i v a t e television is being p r e p a r e d b y the G o v e r n m e n t . 1 5 5 (6)

Great

Britain

leaves t o p r i v a t e p r o v i d e r s a n d operators o f cable net-

w o r k s the almost entire freedom t o decide w h i c h television o r r a d i o p r o g r a m mes

shall be t r a n s m i t t e d ,

thereby

a b a n d o n i n g the t r a d i t i o n a l

monopoly

shared b y B B C a n d I B A . 1 5 6 (7)

I n the Netherlands ,

subscription television programmes v i a cable are

reserved t o p r i v a t e enterprises. P u b l i c broadcasting organizations are e x c l u d e d f r o m such n e w services. 1 5 7 b)

Structural Evolution

o f R a d i o a n d T e l e v i s i o n U n d e r l y i n g the A b a n d o n m e n t o f the M o n o p o l y T h e progressive legal a b a n d o n m e n t o f p u b l i c broadcasting monopolies is 152 See Martin Bullinger, Satellitenrundfunk im Bundesstaat, in: Archiv für Presserecht 15 (1985), 1—14. 158 See Hansjörg Stolz, Die Entwicklung des lokalen Hörfunks in der Schweiz, in: Zeitschrift für Urheber- und Medienrecht/Film und Recht (ZUM) 1985, 136; Peter Saladin / Stefan Mesmer , Rechtliche Grundlagen neuer Medien in der Schweiz (Landesbericht Schweiz), in: Martin Bullinger (ed.), Rechtsfragen der elektronischen Textkommunikation (note 124), 32—82 (55/56); Vibeke G. Petersen / Ole Prehn / Erik Nordahl Svendsen, Ein Jahr lokaler Rundfunk in Dänemark, in: Media Perspektiven 1985, 425—434; Gerd Pasch, Nahradio in Schweden, in: Media Perspektiven 1982, 758; Eckart Klaus Roloff, Schlaglichter auf die norwegische Medienpolitik, in: Media Perspektiven 1982, 760. 154 See for example the Decreto 86/1982 of Andalusia, providing for the concession of educational or cultural radios (for three years) and commercial radios (for ten years). Radio and television are classified as means of "social communication", as a "public service" belonging to the State. The right to diffuse radio programs can, however, be exercised by private persons; see the Statute on Radio and Television, Ley 4/1980 Art. 1, 2; decision of the Constitutional Court of 20 December 1982 (STC 79/1982, RA-83 concerning the refusal of a radio concession). 155 See Karl-Peter Sommermann , Der Schutz der Grundrechte in Spanien nach der Verfassung von 1978, Berlin 1984, 159—161. The Spanish Constitutional Court (decision of 31st March 1982, STC 12 [1982] ) has argued that the Constitution (Art. 20) allows, but does not require the authorization of wireless private television. Given the scarcity of frequencies and the danger of private oligopolies, a statute allowing private television will have to ensure "plurality". — Further information has kindly been provided by Prof. Cruz Villalon , Sevilla. 156 See Cable and Broadcasting Act 1984, chapter 46. 157 Cable Regulation of 26 July 1984, especially Arts. 5, 6, 8, 12.

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caused or accompanied by a structural evolution of radio and television which affects the real conditions of exercising freedom of expression: 158 (1) The multiplication of transmission facilities (cable, satellites) technically allows a multiplication of television and particularly of radio programmes. Such a multiplication can be used to diversify television and radio programmes as to their service area (local, regional, national, "transnational"), their content (mass programmes, specialized programmes) and their political orientation ("objective" mass programmes, programmes propagating certain ideas). (2) This diversification

w i l l have to be financed

—

by (higher) public or private subscription fees, which the audience might not necessarily be willing to pay,

—

by (additional) advertising or sponsoring revenues which might not be unlimited,

—

by contributions of those who want their ideas to be propagated (churches, political parties, other groups, individuals).

As w i t h newspapers, financial conditions might favour a concentration of programme-providing organizations, particularly in television. The costdiminishing effect of such concentration is even higher than w i t h print media, since additional "consumers" do not raise the production and distribution costs considerably. I n this respect, the development of a few private television networks in I t a l y is significant. This raises the question of how to grant the different currents of opinion an opportunity to be expressed directly by television programmes. Even radio could require some state measures in order to assure plurality. (3) Satellites tend to establish a European market for broadcasting programmes , thus permitting a free exchange of ideas "regardless of frontiers", apart from language problems. O n the other hand, the outcome may be a " transnational 39 concentration of broadcasting organizations, be they public or private. Programmes risk being standardized in order to ensure their appeal to a "European audience". This applies not only to DBS but also to telecommunication satellites which can in fact be used to disseminate programmes either indirectly by cable networks or directly to the general public, as soon as powerful individual antennas are conveniently available. 158 For details, see EC Green Paper 1984, 11 et seq. ; Bullinger (notes 124, 152), for further references. On the financing of broadcasting in Japan, Great Britain, France and the Netherlands, see Bullinger , Rundfunkfinanzierung im Ausland — Rechtliche Aspekte, in: Z U M 1986, 219. See also supra notes 3, 4, 15.

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I t may therefore become necessary to secure sufficient radio and television facilities for the forming of a national (including regional, local) public opinion by national political parties and other groups. National, regional and even local broadcasting frequencies or cable channels can theoretically be transformed into mere distribution facilities for transnational satellite programmes, thus not serving as a forum for the dissemination of information and ideas specifically destined to the service area. (4) I n order not to lose audience or advertising income newspaper publishers and other press enterprises w i l l be inclined to offer radio and television programmes as well. The question is how to allow on the one hand the expansion and diversification of print media necessary to their very existence, without on the other hand giving way to an excessive multimedia concentration that would affect freedom of expression by print and electronic media alike. (5) Public broadcasting institutions , having lost their monopoly, w i l l be exposed to a competition for audience and advertising income, unless they are exclusively financed by public fees. I n order not to diminish their audience and the corresponding advertising income, they might be less and less inclined to spend broadcasting time on the dissemination of minority ideas which would "shock or offend" the majority. I t might therefore be necessary to impose specific legal obligations as to minority programmes. (6) Such legal provisions securing public broadcasting institutions as a forum for the free expression of all currents of opinion may be circumvented by government or public broadcasting corporations transforming themselves into shareholders of "private" broadcasting enterprises , on a national or European level. 1 5 9 c) Factors and Conditions of a Reorientation on the European and National Level Despite this rapidly changing legal and factual situation of radio and television, Court and Commission cannot be expected to boldly develop new principles for the protection of freedom of expression in the field of broadcasting. Their precarious authority as international organs depends on their being in certain harmony w i t h prevailing notions in the member states. 160 159 See Bernard Guillou , Les strategies multimédias des groupes de communication, Paris (Documentation Française) 1984. Europe 1, in the hands of the French government, and its multi-media expansion is just one example; Balle (note 84), 179—181. 160 See Bernhardt (note 30), 75 (79, 82), approving the Handyside judgement, Walter Jean Ganshof van der Meersch , Die Bezugnahme auf das innerstaatliche Recht der Vertragsstaaten in der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte, in: EuGRZ 81, 481, criticizing it; Albert Bleckmann, Der Beurteilungsspielraum im Europa- und im Völkerrecht, in:

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Nevertheless, European judicial authorities might be able to pursue a reorientation which can already rely on apparent legal and factual developments in the member states. (1) This necessarily prudent approach may not be conducive to "purely and simply" abandoning the original notion that the licence clause of A r t . 10 legitimizes a public broadcasting monopoly. European authorities w i l l have to take into account that according to the jurisprudence of the Constitutional Courts of Italy, the Federal Republic of Germany, France and Spain, State legislation securing pluralism and particularly preventing private oligopolies seems to be a minimum prerequisite of private broadcasting. Accordingly these courts do not yet recognize that individual freedom of expression directly implies the right to disseminate broadcasting programmes. 161 The Italian Constitutional Court had permitted private local and regional broadcasting and cable-casting on the assumption that the danger of private oligopolies was absent in this respect. 162 This assumption proved to be erroneous, particularly in the field of television, as local and regional programmes tended to be interconnected by factual national networks which were exposed to a process of concentration. I t seems that this experience w i l l incite the Italian Constitutional Court to be more restrictive in directly deriving from the constitutional freedom of expression a freedom to disseminate private broadcast programmes. 163 As long as there is a lack of sufficient antitrust devices which take into account the particular situation of broadcasting 164 (see supra 1 c), i t should be difficult to derive directly from A r t . 10 of the Convention a freedom of private broadcasting, responding to the aim of the Treaty of Rome to establish a free market in goods and services, including broadcasting. 165 The Green Book published by the European Community Commission in 1984 is not explicit as to the possibilities of effective antitrust measures on the European EuGRZ 6 (1979), 485—495 (486); Frowein (note 71), 234; the same, Die rechtliche Bedeutung des Verfassungsprinzips der parlamentarischen Demokratie für den europäischen Integrationsprozeß, in: Europarecht 18 (1983), 301—317 (303). 161 Italian Constitutional Court of 21 July 1981 (Giurisprudenza Italiana 1982, 604—614), not allowing the combination of local and regional private broadcasting stations with national networks; see Cheli (note 141); BVerfGE 57 (note 143); French Conseil Constitutionnel, decision of 27 July 1982 (J. O. of 29 July, 2422, at 2423), which should be read in connection with the Court's decision on the Press Concentration Act, supra note 87; Spanish Constitutional Court, supra note 155. 162 Decision of 15/28 July 1976, EuGRZ 3 (1976), 334, concerning local wireless or cable radio and television. i®® See the decision of 1981 (supra note 161). 164 As to the situation in the Federal Republic of Germany, see the reports of the Federal Monopoly Commission (in particular Hauptgutachten 1984 chap. VI). ι®* See, however, Schwartz (note 5), 89, 92/93.

Freedom of Expression and Information

level. European antitrust devices would be all the more important as national legislation is rather powerless in the face of Europe-wide satellite programmes. 166 (2) O n the other hand, member states might not indefinitely be able to rely on A r t . 10 (1) 3, when they maintain public broadcasting monopolies in the entire field of multiplied transmission facilities, including local cable networks w i t h 30 or more channels. 167 Such a continued public broadcasting monopoly would in fact mean to extend the monopoly far beyond its traditional scope of application which the Commission had in mind. Legislation and practical experience in a number of member states (see supra 2 a) may for example prove that, under conditions provided for by an appropriate legal framework, local wireless radio and local cable radio or television could improve the possibilities for a direct expression of ideas. I n this case, the European judicial authorities might be inclined to re-interpret the licence clause as authorizing such an appropriate legal framework and not a public monopoly. 3. Individual Freedom to Impart Information and Ideas by Broadcasting (Access to Broadcasting ) Whether a public broadcasting monopoly is upheld or not, legislation w i l l have to assure that individuals and groups are given a fair chance to have their ideas disseminated by broadcasting. 168 This affirmative duty does not include the providing of an audience. 169 a) Access of Programme-Providers to Private Broadcasting Member states who abandon their public broadcasting monopoly w i l l have to face the rather intricate question of how to regulate access to private broadcasting 170 in order to effectively affirm freedom of expression 171 . As to the 166 A broadcasting or multi-media enterprise can avoid national anti-trust legislation by diffusing from the DBS of another state; (see infra 3 d 1). 167 See Lester / Ρannick (note 61), 17. 168 See Recommendation 926 of the Parliamentary Assembly (note 4) which required measures to "guarantee the access of all political, social and cultural forces to the electronic media . . . on fair and equitable terms" (19 I); see BVerfGE 57 (note 143); Jörg Paul Müller, Landesbericht Schweiz, in : Martin Bullinger / Friedrich Kühler , Rundfunkorganisation und Kommunikationsfreiheit, Baden-Baden 1979, 229—271 (266/267). 169 See, however, Bruce Owen , Economics and Freedom of expression, 1975, 22: . . . "freedom of access to the media means little if there is no audience". 170 In the sense of recognizing a right to independently diffuse programmes. As to the mere "right of reply" in newspapers, see supra Part 4 I I 4 d. This right of reply is recognized in broadcasting law by the Committee of Ministers who required it for satellite programmes (Recommendation Assembly, who applied it to broadcasting in general (Recommendation 748, 1975).

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legal rules governing the "licencing" of private broadcasting, A r t . 10 (1) 3 of the Convention might be understood as providing member states w i t h a discretionary power which would not be permitted in the field of the printing press (see supra Part 4 I I ) . Court and Commission w i l l have to find the limits of such discretionary power in order to see the principal guarantee of freedom of expression affirmed. The rather complex factors and effects of "affirming" legislation in the field of broadcasting should be taken into account. aa) Access to Transmission Facilities Freedom of expression w i l l have to guide legislation and administrative decisions attributing transmission facilities. I n the case of DBS and cable systems, member states might be inclined to hand over transmission facilities to private or mixed enterprises able to bear the necessary investment for the technical equipment. 172 These private investors have a legitimate interest in offering programmes which attract subscribers or advertisers. Nevertheless, freedom of expression in the sense of A r t . 10 of the Convention could perhaps require legislation not to create such a monopolistic or oligopolistic position without imposing minimum conditions for the expression of a plurality of ideas. I n a cable network w i t h 30 channels, one or two channels might have to serve as "access channels" for minority programmes or individual statements. 178 This does not necessarily mean access free of charge. Freedom of expression is not right to have the propagation of one's ideas financed by others or by the general public (see supra Part 3 1 5 ) . "Deficiency" of individual access to newspaper publications (see supra Part 4 I I ) might have to be compensated by access to broadcasting. Such compensation does not, however, require that the relative financial inequality of those exercising freedom of expression be entirely neutralized. A certain financial inequality is inherent to a pluralistic society based on a free economy (see supra Part 3 I 4 b). I n the case of DBS, the question under A r t . 10 is whether one of the five or less national channels should be assigned to 16 radio programmes or to one single television-programme. Radio programmes would to a greater extent assure a plurality of information sources, which is a prerequisite of freedom 171

See supra note 168. This has already been done by Great Britain as far as cable networks are concerned; see supra note 156. 173 As to the access problem in the United States, see, among others, Michael Botein , Cornell Law Review 57 (1972), 419; Kreiss , Southern California Law Review 54 (1981), 1001; B. C. Schmidt , Freedom of the press vs. public access, 1976; Jerome A4 Barron , Access to the Press — A New First Amendment Right, in: Harvard Law Review 80 (1967), 1641—1678; Wolfgang Hoffmann-Riem, Kommerzielles Fernsehen, Baden-Baden 1981. 172

Freedom of Expression and Information

of expression. 174 Commission and Court might, however, hesitate to derive from A r t . 10 precise directives as to the use of DBS-channels. As financial and other economic considerations have to be taken into account, member states need a certain margin of discretionary power. bb) Access to Programme Licences Similar problems arise w i t h the licensing of television or radio programmes. A wireless radio frequency or cable radio channel can, for example, be used for one full-time programme of a financially potent private enterprise who can guarantee a high professional standard of popular entertainment and general information. The same frequency or channel could house a number of time-sharing minority programmes not complying w i t h high professional standards. I n this possible conflict of "quality versus plurality", freedom of expression requires that cultural "quality" not be given undue preference. Ideas which do not come up to professional standards and do not attract a large audience w i l l have to be given a fair chance. The licence clause of A r t . 10 should not be interpreted as allowing member states to leave licensing decisions to governmental or administrative discretion. Legal rules w i l l have to determine the conditions for obtaining a licence so that all groups, persons or enterprises w i l l have an "equal" chance. 175 During an experimental stage, this requirement may be somewhat reduced. cc) Restrictions Affecting Access, in particular Advertising Regulations Legal restrictions imposed on access to broadcasting of information and ideas w i l l have to pass a "necessity test" according to or analogous to A r t . 10 (2), even i f they are destined to ensure real conditions for freedom of expression (supra Part 4 I I 3). A t a time when a state monopoly in broadcasting was considered as "purely and simply" justified under the licence clause of A r t . 10 (1) 3 of the Convention, the Commission deduced from the "notion of licensing" that, " i n granting a licence, the State may subject radio and television broadcasting to certain regulations" 176 . This unconditional regula174 See Committee of Ministers, Declaration on the freedom of expression and information, 29 April 1982, 6 and I I d (concerning all mass media) and supra note 105; French Conseil Constitutionnel, decision of 10/11 October 1984 (supra note 87). 175 Licence conditions may, for that reason, impose time-sharing, especially for radio programmes (as is the case with private local radios in Paris, future radio and television programmes in Baden-Württemberg, according to its Media law bill of January 1985, Landtags-Drucksache [LTDr.] 9/955, prepared by a commission of which the author of this report was a member). 176 X and the Association of 2 v. United Kingdom (note 135), concerning the exclusion of political advertising by British broadcasting regulations.

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tory power no longer seems consistent w i t h the more restrictive attitude of the Commission concerning the licence clause in general. 177 I n particular, restrictions on advertising may not be left to the unfettered political discretion of the member states. I n several respects, advertising is relevant to free access of information and ideas to broadcasting: 178 (a) First, advertising is a means not only of diffusing commercial information 1 7 9 , but of diffusing political information and ideas 180 , especially of those who cannot afford to provide a continuous broadcasting programme of their own. The total interdiction of such political advertising in broadcasting, which does not exist in the press, may not easily be justified w i t h the argument that "exponents of political views w i t h the largest purse" would have the advantage. 181 The idea of an economically equal chance of all currents of opinion 1 8 2 is inconsistent w i t h the inherent structure of pluralistic freedom of expression (see supra Part 3 I 4 b). The aim of a pluralistic expression might, however, require state measures preventing dominant private positions in broadcasting based on financial superiority (see note 176). (b) Secondly, advertising, especially commercial advertising, is a means of financing private broadcasting, like private newspapers. O n the one hand, this mode of financing could result in broadcasting programmes being standardized so as to attract a mass audience which can be "sold" to commercial advertisers. The possible effect would thus be a filtering of minority views and cultural interests. Restrictions on advertising might thus be considered as means of protecting plurality. O n the other hand, an interdiction of advertising as a means of financing private broadcasting programmes might favour those programme-providers who can afford to finance their programmes out of their own funds or income. Broadcasting by other groups could be dried out. The French Audiovisual Communication Act of 1982 originally excluded advertising from private local radio programmes. 183 This provision was repealed in 1984, in order to avoid the disappearance of many stations; private local 177

See supra 2 c; see also Hoffmann-Remy (note 73), 167—170. For more details, see Martin Bullinger, Rundfunkwerbung im Umbruch der Medien, in: Zeitschrift für Urheber- und Medienrecht/Film und Redit, 1985, 121—136. 179 Concerning its legal situation, see supra Part 3, I 3 c. iso See BVerfGE 21, 271 (278/79) of 4 April 1967. 181 See the argument of the British Government in the case mentioned above (note 176); approved by Hoffmann-Remy (note 73), 170. 182 In its third broadcasting decision (note 32, the German Federal Constitutional Court did not entirely avoid formulae which could be understood as requiring such a "real" equality of chances for the relevant currents of opinion, see for example p. 324 : The expression "Gleichgewichtige Vielfalt" could mean "equal weight to all views", whereas the Court only wanted to exclude any dominant position based on financial superiority (see p. 325). 183 Art. 81 (4), providing instead for (limited) state subsidies. 178

Freedom of Expression and Information

radios are now given a choice between advertising income and State subsidies. 184 Faced w i t h this and other conflicting aspects of restrictions "affirming" freedom of expression, member states need a certain margin of regulatory discretion, which Court and Commission generally acknowledge. 185 A certain harmonization of national requirements w i l l prove to be inevitable in the era of Europe-wide satellite programmes (see infra d [3] ). 1 8 e b) Access of Programme-Providers to Public Broadcasting Member states which maintain their public broadcasting monopoly and extend it to all new transmission facilities w i l l have to consider whether freedom of expression does not require a higher degree of individual and group access.187 When public broadcasting is in command of many cable channels and additional wireless transmission facilities, i t w i l l no longer be possible to argue that for practical reasons, individual citizens cannot have a right to broadcasting time ( see supra 1 c, d). To a reasonable extent, access channels and access time should be provided for by statute, as a forum for the free formation of public opinion. Similar access requirements might have to be considered as regards private broadcasters enjoying a de facto monopolistic or oligopolistic position, whether they are charged w i t h a "public function" or not. 1 8 8 c) Access of Foreign Programme-Providers to Inland Broadcasting As freedom of expression is granted to everybody, the ensuing right to disseminate ideas by radio and television cannot as a rule be witheld from foreigners. Foreigners are citizens of another state who reside in the country ("aliens") or abroad. The term foreigners may also include companies which 184 Loi No. 84—742 of 1 August 1984 (J. O. 2 August 1984, 2548). Similar problems arise in other Member States; as to Swiss experimental local radios, see Stolz (note 153), 137—138. 185 See the judgement of the Court in the Handyside and Sunday Times cases, differing slightly from the position of the Commission (see supra notes 11, 85). ΐ8β See EC Green Paper 1984, 209—331; Recommendation No. R (84) 3, adopted by the Committee of Ministers of the Council of Europe on 23 February 1984. 187 The Parliamentary Assembly recommended (Recommendation 748, 1975) a "right of individual access to broadcasting in principle". 188 Access to oligopolistic private broadcasting programmes in the United States, which derived from the "trustee of the public" nature of the broadcasters, has been very restrictively acknowledged by the Supreme Courts. For the jurisprudence and the legal opinion in general, see supra note 173; Hoffmann-Riem (note 173), 220—249; Witteman (note 134); in Germany, see § 21 (2), (3) of the Media Law Bill of Baden-Württemberg of 1985 (LTDr. 9/955).

9 GYIL 28

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are incorporated in another state or whose capital is at least partly in the hands of foreigners. According to A r t . 16 of the Convention, however, A r t . 10 does not prevent a member state from imposing "restrictions" on any "political activity" of "aliens" in order to protect the internal democratic process as well as foreign relations (see supra Parts 3 I 2, 4 I I 4 b). A narrow interpretation seems to be necessary in order to safeguard the essential freedom of expression "regardless of frontiers" (Art. 10 [1] 1; see supra Part 3 I 2). I t might be argued that A r t . 16 is confined to "aliens" in the strict sense of foreigners residing in the country. Restrictions on other foreigners would then have to be justified by the licence clause (Art. 10 [ 1 ] 3) or pass the necessity test of A r t . 10 (2). aa) Foreign Providers of Normal Inland Programmes A member state that abandons its public broadcasting monopoly and licences private broadcasters may, under A r t . 16, exclude aliens and perhaps other foreigners from providing inland programmes which would constitute a "political activity", such as news services. 189 The same might be true for mixed programmes of which "political" information is an integral part, but not necessarily for programmes specialized in the diffusion of music or feature films. I n a very broad sense, selection of music or films to be transmitted by broadcasting is of a "political" nature, as i t involves preference given to national or foreign productions, for example to cheap American films instead of expensive inland or European films. A systematic and large-scale "flooding" of the electronic mass media w i t h foreign products might indeed result in a culture colonization destroying the cultural basis of the national democratic structure or the financial basis of national broadcasting and thus become a k i n d of a "political activity". This does not, however, depend on the programme-provider's nationality and can be prevented by a minimum percentage of national culture programmes imposed on private (and public) broadcasting. 190 The mere diffusion of foreign music or foreign films by a foreigner could not easily be considered an interdictable "political activity" in the sense of the traditional law concerning aliens which A r t . 16 of the Convention seems to preserve. Moreover, the question might be whether, under A r t . 10 of the Convention, aliens should not be given the possibility of expressing their grievances to the general public; a limited opportunity to broadcast i n the context of time189

Comparable restrictions on newspapers are discussed above, Part 4 I I 4 b. See Andreas Johannes Wiesand , Dämme gegen eine Art von Billig-Programmen?, in: Media Perspektiven 1985, 191—213. Inside the EC, the Treaty of Rome might require that programme production of all member states be given equal status.

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131

sharing radio or television programmes would not seem to run counter to the democratic function of freedom of expression as guaranted by Arts. 10 and 16. This freedom is a prerequisite and not an element of democratic decisionmaking which, as a rule, is reserved to citizens (see supra Part 3 I 2). Whether a more restrictive legislation could be based on the licence clause of A r t . 10 (1) 3 (see supra [3] ) or be justified under A r t . 10 (2) seems to be questionable. I n the European Community, national legislation excluding citizens of other member states from providing inland broadcasting programmes would infringe upon freedom of establishment and would have to be justified by reasons of "public order" under A r t . 56 of the Treaty of Rome. 1 9 1 bb)

Foreign Programme-Providers of Inland Programmes for Inland Alien Communities

A "political" broadcast programme provided by a foreigner does not interfere w i t h the forming of the national public opinion when i t is addressed to a community of aliens living in the country and given in their language. Restrictions could thus not easily be justified under the "political activity" clause, provided that foreign relations are not affected and the programmes are not directed against the public order of the state of domicile. 1 9 2 cc) Access of Foreigners to Public Broadcasting As long as a member state is entitled, under A r t . 10 (1) 3, to keep up its public broadcasting monopoly (see supra 2 c), i t may reserve this public service to its public officials, quasi-administrative corporations or to private companies being chosen at discretion and charged w i t h a public function. The same is true under A r t . 90 of the Treaty of Rome. 1 9 3 191 See Schwartz (note 5), 70. As to the question whether freedom of establishment may, in the field of broadcasting, be subject to restrictions "in the public interest", see infra note 204. Art. 55 (exercise of public power) does not seem to apply to public broadcasting; see Hans Peter Ipsen , Rundfunk im europäischen Gemeinschaftsrecht, Frankfurt/M. 1983, 99, 102/103; EC Green Paper (1984), 125—127, 199—208. Freedom of establishment is not contravened by state legislation requiring that foreigners who want to exercise a profession or business inside the country establish there a residence or headquarters, provided that this profession or business is generally subject to specific restrictions which have to be enforced. See decision of the European Court of Justice of 3 December 1974, in: NJW 28 (1975), 1095, concerning the requirement of a national residence for certain lawyers in the Netherlands. It is not permitted to forbid the establishment of a second residence or head office in another member state, see the Court's decision of 12 July 1984 (Case 107/83), in: NJW 38 (1985), 1275. 10 2 See supra Part 3 12. 19 3 See the Sacchi judgement (note 5); Ipsen (note 191), 99—103; EC Green Paper (1984), 199—204.

9*

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The use of broadcasting as a means of expression by aliens is thus reserved to access time or access channels from which aliens can perhaps not be entirely excluded (see supra [1] ). d) Access of Foreign Broadcasters to Inland Retransmission Legal restrictions concerning the access of foreigners to inland broadcasting (supra c) might prove to be of limited effect in the forthcoming era of satellite programmes covering the whole of Europe. The first question is whether providers of foreign satellite programmes can claim equal access to inland retransmission facilities, such as cable networks, by relying on the freedom of expression regardless of frontiers clause (Art. 10 [1] ). The second question w i l l be whether individual reception of foreign satellite programmes is protected (see infra I I 2 ) . I n both respects, direct broadcasting satellites and telecommunication satellites w i l l have to be distinguished. aa) Programmes Transmitted by Direct Broadcasting Satellites European direct broadcasting satellites (DBS) w i l l in fact cover almost all of Europe, despite international agreements which confine the elliptical diffusion zone to an area centered around their national territory. 1 9 4 The more limited "overspill" of traditional television and ultra-high frequency radio programmes diffused by terrestrial transmitters has been an established element of a "free flow of information" 1 9 5 . I n the area of overspill, inland retransmission by community antennas and cable networks has always been considered as collective reception rather than as broadcasting which would require a licence (see infra I I 2). 1 9 e The Committee of Ministers has apparently come to the conclusion that the Europe-wide "overspill" of DBS programmes should not be treated differently 1 9 7 . The Recommendation of 7 December 1984 1 9 8 does not generally require a "prior consent" of member states covered 194 See Bullinger, note 152. 195 See Walter Rudolf / Klaus Abmeier , Satellitendirektfunk und Informationsfreiheit, in: Archiv des Völkerrechts 21 (1983), 1—36 (4, 27—28, 35). See also the conclusion of the World Administrative Radio Conference of the International Telecommunication Union (1977), cited by Rudolf ! Abmeier , op. cit., at 4. 196 As far as copyright laws are concerned, retransmission by cable networks might be generally considered as a new "diffusion", see the Coditel case of the European Court of Justice (18 March 1980, Sammlung vol. I, 881). 197 This problem is dealt with by Jost Delbrück, Direkter Satellitenrundfunk und nationaler Regelungsvorbehalt, Frankfurt/M. 1982, 63—82; Rudolf ! Abmeier (note 195), 27— 36; Pinto (note 30), 279—292; Martin Seidel, Europa und die Medien, in: Schwarze (ed.) (note 5), 127 (139); Jochen A. Prowein / Bruno Simma, Das Problem des grenzüberschreitenden Informationsflusses und des "domaine réservé, Heidelberg/Karlsruhe 1979, 10—14, 72—77. 198 See supra note 3.

Freedom of Expression and Information

by the DBS programme of another state. When, however, a member state or a broadcasting organization of this state wants to diffuse radio or television programmes from the DBS of another member state, those states should agree as to the law which shall be applied to this programme. The question is whether, in the absence of such an agreement, a broadcasting organization using a foreign DBS can be considered as "circumventing" the licence system of its own state and therefore be excluded from inland cable retransmission. According to the Commission's decision in the Radio Caroline case 199 , the licence clause of A r t . 10 (1) authorizes legislation against advertising for pirate stations and against other modes of circumventing the national licence requirements. I t is doubtfoul whether the Commission would come to the same conclusion when a broadcaster is duly licenced by another member state to diffuse from its DBS a radio or television programme. I n general, cable retransmission of foreign DBS programmes may not be prohibited on the ground that the national broadcasting system could otherwise suffer. 200 National broadcasting, indispensable for the formation of a distinctive public opinion in the context of a national culture, w i l l have to be maintained by other means, such as preserving a public broadcasting system and granting financial assistance to national programme production. I n France, tax exemptions for investments in national film productions are being considered. bb) Programmes Transmitted by Telecommunication Satellites Programmes transmitted by telecommunication satellites are, according to international agreements, destined to be transported from one point to the other ("Fixed Services Satellites") and not to the general public. Their diffusion to a general public by means of cable networks can therefore be considered as licensable broadcasting and not as mere reception (see also infra I I 2 b ) . 2 0 1 Member states might however be inclined to facilitate the simultaneous retransmission of foreign broadcasting programmes by telecommunication satellites and cable networks, as has been done in the Netherlands. 202 190 Decision of 4 May 1978, D. R. 16, 190, concerning criminal sanctions against the holders of car stickers advertising for the (then) pirate station "Radio Carolina". 200 Schwartz (note 5), 108—111 goes even further. 2 ° i See Martin Bullinger, Satellitenrundfunk im Bundesstaat, in: Archiv für Presserecht (AfP) 1985, 1—14 (5 with notes 27, 30); for a contrary opinion, see Schwartz (note 5), 92. 202 Cable regulation 1984, Art. 4 (1) c. Any such extension must avoid discrimination as regards the nationality of service providers, especially under the Treaty of Rome; see the Debauve judgement of the European Court of Justice of 18 March 1980, Sammlung vol. I, 833.

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Under the Treaty of Rome, the question is whether broadcasting in one member state, being a "service" under A r t . 59 2 0 3 , can freely be extended to other member states. 204 This economic aspect of a free European market for broadcasting services might progressively become the dominant feature and coincide w i t h the idea of a "free flow of information" under A r t . 10 of the Convention. This evolution takes place to the extent that traditional mass broadcasting programmes are transformed into specialized programmes for segments of the public or into the press-like electronic delivery of news, films and music to subscribers or those who are willing to pay per view (see also infra C I I ) . 2 0 5 Telecommunication satellites in cooperation w i t h cable networks might contribute considerably to this transformation. As to traditional mass broadcasting programmes, however, the dominant tendency remains the preservation of a national forum for the formation of a pluralistic national opinion against an uncontrolled "inundation" by foreign programmes via telecommunication satellites. I n addition to DBS programmes, an "inundation" by telecommunication programmes might indeed render ineffective national antitrust devices and other legal rules destined to assure plurality. 2 0 6 cc) Satellites Creating a Need for a Harmonization of National Broadcasting Laws Sooner or later, DBS and telecommunication satellites might bring the relative autarchy of national broadcasting systems to an end and render their harmonization inevitable. Essential national guarantees for a plurality of independent information sources should therefore be given a Europe-wide effect. The authorities of the Council of Europe and the European Community can contribute considerably to this harmonization. 2 0 7 II. Freedom to Receive Radio and Television Programmes Freedom to receive information and ideas has a scope of application which exceeds that of freedom to impart (see supra Part 3 I I ) . This exceeding element 203 See supra note 5; Seidel (note 197), 133—135. 204 See the Debauve judgement (note 202), allowing restrictions "in the public interest" for certain services such as broadcasting, provided that these restrictions are applied indiscriminately, irrespective of nationality; EC Green Paper (1984), 105—208; as to retransmission of telecommunication satellite services via cable to other countries, see especially 131—132. The EC Commission attempts to assimilate the retransmission of programmes which are not normally available and the collective reception of "available" programmes, in order to promote a common market in broadcasting services; see Schwartz (note 5), 66, 92. 2 05 See Bullinger, note 152. 2 2

oe Ibid.

07 See EC Green Paper (1984), 5; 254 et seq.; Recommendation No. R (84) 22 of the Council of Europe's Committee of Ministers of 7 December 1984 on the use of satellite capacity for television and sound radio, establishing in particular programme standards.

Freedom of Expression and Information

becomes particularly important in the field of radio and television, since restrictive state licensing or economic factors tend to reduce the number and plurality of national information sources. Those who wish to escape the limited choice of licensed inland programmes w i l l then turn to pirate or foreign programmes as long as language is not an obstacle. The legal issue is to what extent such an escape from the carefully balanced national broadcasting system is protected under A r t . 10 of the Convention and corresponding national constitutions. Such an escape could theoretically dry out the audience, political influence and financial viability of national broadcasting. 1. Freedom to Receive Radio and Television Programmes in General a) Inapplicability of the Licence Clause Freedom to receive information and ideas by radio and television programmes is not subjected as such by A r t . 10 (1) 3 to the State licensing of "broadcasting" and "television". The licence clause is limited to the dissemination o f such programmes. This seems to have been implicitly recognized by the Commission in the two recent cases Radio 24 and A. v. Switzerland, 208 b) Right to use an Individual Antenna The use of an individual reception device (antenna) may require an administrative licence, but the granting of this licence should depend on objective criteria compatible w i t h A r t . 10 (2). A licence may be refused (1) when individual reception of legal or illegal programmes cannot be substantially improved by such an antenna, as the Commission found in the case of Α. ν . Switzerland , (2) otherwise only in order to assure compliance w i t h the indispensable technical requirements. Free broadcast reception is essential in a pluralistic society. I n the case A. v. Switzerland , the Commission did not rely on a predominant public interest to protect town and countryside but on the ineffectiveness of the individual antenna at stake. c) Right to Receive by Community Antennas all Programmes N o r m a l l y Available in the A i r The same should apply to cable networks used as community antennas inasmuch as they replace licence-free individual reception. O n the contrary, cable retransmission of programmes which could not be received "normally" by individuals may have to be considered as "broadcasting" requiring a licence (see supra I 3 d [ 2 ] ). 2

°8 Supra notes 76, 78.

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The Commission is perhaps prepared to concede to the member states a certain margin of discretion in defining the borderline between licence-free community reception and "licensable" retransmission (broadcasting). I n the Radio 24 case, the Commission found that i t was not incompatible w i t h A r t . 10 of the Convention to exclude transmission of an experimental local radio programme by a cable network antenna which was situated outside the legally prescribed diffusion zone of the radio programme (radius of 10 kilometers). The Commission relied on its Radio Caroline decision 209 and stated that a member state is entitled to "enact legislation which ensures compliance w i t h the licence in question, in particular by preventing means of circumventing the conditions stated in the licence". Since in the Radio 24 case, the radio company had complained of not being able to have its programme retransmitted outside the legal diffusion zone, the Commission did not have to decide whether the aspect of a "circumvention" of licence conditions also applied to the cable company claiming freedom to "receive". I t seems, however, that the Commission might not have decided the complaint of the cable company differently. This should not be understood as legitimizing a legal ban on the use of individual or community antennas for the reception of any broadcasting programmes outside their legal diffusion zone. I n the absence of a legally defined circumvention of the broadcasting licence system, the licence clause of A r t . 10 (1) 3 does not authorize directly or indirectly state legislation restricting the individual or collective reception outside the legal diffusion zone of those broadcasting programmes which are in fact available " i n the air". A r t . 10 (1) 1 guarantees freedom of reception "regardless of frontiers". This freedom includes the reception of pirate stations, as the Commission itself implicitly recognized in the recent A. v. Switzerland case 210 (see supra Part 3 I I 1). 2. Freedom to Receive Satellite Programmes in Particular The factual availability of radio and television programmes " i n the air" as the criterion of freedom to receive (see supra 1), w i l l be enlarged considerably by DBS and telecommunication satellites. a) Freedom to Receive Direct Broadcasting Satellite (DBS) Programmes Outside the elliptical legal diffusion zone of a DBS (see supra I 3 d [ 1 ] ) , international telecommunication law allows a State to use the same frequency for other services such as wireless telephone. Under A r t . 10 of the Convention 209 Supra note 199. 210 See supra note 78; see, however, Frowein

(note 197), at 1 (25).

Freedom of Expression and Information

13 7

and corresponding Constitutions of member states such an alternative use raises the question whether freedom to receive information and ideas regardless of frontiers is not interfered w i t h . 2 1 1 This depends on whether the alternative use amounts to a "jamming" which would have some difficulty in passing the "necessity test" of A r t . 10 (2). As has been seen (supra Part 3 I I 3 a), traditional understanding of freedom to receive does not involve a general right to information in the sense of an individual right to be positively informed by government or mass media. Government w i l l thus not have the "affirmative duty" to make available foreign broadcasting programmes. When, however, government bars access to foreign satellite programmes by using their frequencies for other purposes, this may be considered an active interference w i t h freedom to receive under A r t . 10, unless the alternative use is necessary for urgent telecommunication needs inside the country 2 1 2 . b) Freedom to Receive Programmes Transmitted by Telecommunication Satellites According to international telecommunication law, a programme transmitted by telecommunication satellite is not destined to be received by a general public (see supra I 3 d [ 2 ] ). Such a general reception might nonetheless be intended by the programme-provider. (1) I n this case, individual freedom to receive includes the right to seek access to this "illegally" transmitted programme. If, on the contrary, a message is coded or otherwise clearly not destined to the general public, access is not protected by A r t . 10 of the Convention. Such intrusion would be comparable to electronic eavesdropping (see supra Part 3 I I 2). (2) The retransmission by cable networks of telecommunication satellite programmes that are not "normally" available in the air may have to be considered as "broadcasting" and thus require a licence (see supra I 3 d [ 2 ] ). This restriction of cable reception w i l l become ineffective to the extent that the evolution of satellites or antenna techniques renders programmes transmitted by telecommunication satellites receivable by normal individual antennas, as is already the case w i t h DBS programmes (see supra 1 3 d [ 1 ] , I I 2 a). Consequently, the difference between programmes diffused by DBS and telecommunication satellites might progressively disappear. 211

The development of the right to "jam" programmes from other countries is explained by Rudolf / Abmeier (note 195), 30 and Delbrück (note 197), 42. At the present time the compatibility of "jamming" with Art. 10 ECHR is controversial; see Rudolf / Abmeier, op. cit., 13—16, 20. 212 As has been argued in the Federal Republic of Germany.

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C. N e w Forms of Electromagnetic Delivery (New Electronic Services) I. The Phenomenon N e w techniques for the electronic delivery of information and ideas such as interactive Videotext, noninteractive teletext and video or audio request services do not follow the traditional radio and television pattern of offering a continuous sequence of programmes to a mass audience (see supra A). The new "electronic" services offer information on a more "individual" basis. They allow the "customer" to choose at a given moment the specific information he wants and allows the information provider to reserve his service to those who have ordered it. These electronic information services present a wide range of varying characteristics. Some, such as the distribution of electronic advertising, may be compared to an individual mail service. Others are similar to the distribution of leaflets to a general public. This is the case w i t h the diffusion of short news by teletext or Videotext. Newspapers and booklets can be put on electronic sale in the form of cabletext. Films or recorded music might one day be ordered individually and telecommunicated automatically to the customer's video recorder (electronic request service). From a different perspective, these services offer elements of radio or television programmes separately to individuals or small segments of the public, thus "desegregating" traditional broadcasting. 218 II. Freedom of Expression by New Electronic Services 1. Inapplicability

of the Licence Clause Concerning (Art. 10 [1] 3)

" Broadcasting "

N e w electronic services oscillate between an electronic mail service, an instantaneous delivery of printed material including film and music cassettes, and an instantaneous delivery of individually selected segments of broadcasting programmes. Consequently, they cannot easily be considered as "licensable" broadcasting or television services in the sense of A r t . 10 (1) 3 of the Convention. I t is suggested that this licence clause is meant to protect the traditional broadcasting system of the member states and does not apply to new electronic services which do not present the same characteristics of continous mass programmes. A t the most, cyclically transmitted teletext could be 213

See Francis Balle / Gerard Eymery, Les nouveaux médias, 1984 (Que-sais-je); Bullinger (note 62), 30—53, and notes 124, 152; the same, Télécommunication et liberté d'information, Revue internationale de droit comparé 31 (1979), 5—20 (5).

Freedom of Expression and Information

classified as a modern form of "broadcasting"; this seems to be the prevailing view in most member states. 214 As to interactive Videotext, on the contrary, the tendency is to leave it outside the traditional broadcasting system and open i t to free expression by everybody. 2 1 5 Even i f new electronic services could be considered as "broadcasting" in the sense of A r t . 10 (1) 3, this does not imply that the licence clause as such would justify a public monopoly. 2 1 6 A r t . 10 of the Convention seems to require, on the contrary, that "electronic leaflets" by interactive Videotext or teletext, be put at everyone's disposal in order to improve real conditions of freedom of political expression. Electronic newspapers might have to be granted the same freedom as printed newspapers and be subject to the same legal requirements, such as rules against excessive concentration. I n general, new electronic services should be legally classified and regulated according to their real structure and function as a means of imparting and receiving information and not according to formal criteria. 2 1 7 2. Possible and Partial Applicability of the License Clause Concerning Cinema Enterprises (Art.

10 [1] 3)

As far as a request service for films is concerned, it might perhaps be considered as an electronic "cinema enterprise" for which A r t . 10 (1) 2 allows a rather questionable licence requirement. The French Audiovisual Communication Act (1982) has exempted request services for feature films from the general liberalization in order to protect the production of French films and their financially indispensable primary distribution by cinemas. 218 214

The media law bill of Baden-Württemberg distinguishes expressly teletext (Videotext, Kabeltext in the German terminology) from "broadcasting" and provides for free access (§ 1 t 3 ] 2)> §§ 4 3 > 4 4 > LTDr. 9/955); see also the Swiss "Mediengesamtkonzeption" , Bern 1982, 550/51 (teletext is not television); Bullinger (note 62), 69—71; note 124; note 152, at 6. 215 See Manfred Matzka , in: Robert Dittr ich / Manfred Matzka / Heinz Wittmann, Rechtsprobleme des Bildschirmbetriebs in Österreich, Wien 1984, 24; Swiss "Mediengesamtkonzeption" (note 214), 551—553. 216 See Swiss "Mediengesamtkonzeption" (note 214), 549—553. 217 See Swiss BGE 104 I a (4 October 1978), 377: Leserkamp} case in which a news bulletin, automatically transmitted on request via telephone ("telefonzijting") was recognized as "media", being entitled to equal information by public authorities in the same way as newspapers. 218 See Art. 77 of the French Audiovisual Communication Act of 1982, supra note 109; see also Art. 89 restricting the distribution of films in the form of vidéocassettes for an initial period of 6 to 18 months, in order to protect cinema distribution and its essential financial contribution to film production. This provision has been challenged before the European Court of Justice {Ciné the que v. Fed. Nat. des Cinémas français , case 60/84). The advocate general and the general director of the Commission's legal service (Ehlermann ) argued (published in Schwarze, supra note 5, 240) in favour of such a temporary restriction relying inter alia on the Geillustreerde case (see supra note 95).

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I n Austria, as in France, Videotext is not brought under cinema laws which are restricted to their traditional scope of application. 2 1 9 3. Freedom to Seek Information

by New Electronic Services

Freedom to seek information (see supra Part 3 I I 3) should be considered as including the "electronic" importation of foreign information, such as leaftext, cabletext or other request services, no less than the importation of hard copies. This may also eventually apply to foreign "live" television programmes which are brought over on individual request by broadband cable networks or telecommunication satellites. Contrary to the cable retransmission to a general public of imported foreign television programmes (see supra Β I 3 d [ 2 ] ; I I 2 b), a transmission on individual request does not amount to "broadcasting". III. New Electronic Information Services as a Link between Print and Electronic Media, between Individual and Mass Communication N e w electronic information services combine, as has been seen, elements of the printing press, of broadcasting and of telephone communication. Pure individual freedom of expression, the more institutional freedom of the press and the even more institutional freedom of broadcasting are no longer distinct compartments whose legal situation can be evaluated separately. Electronic and print media tend to converge technically as well as economically, both offering a variety of means for the dissemination and receiving of information and ideas, 220 ranging from cost-intensive mass programmes to "leaflets" and other means which are at everyone's disposal. A r t . 10 of the Convention and the corresponding constitutional guarantees of the member states w i l l have to be gradually reconsidered in view of this development.

Part 6: Summary 1. I n a pluralistic democracy such as i t is presupposed by A r t . 10 of the Convention on Human Rights, a profoundly liberal understanding of freedom of expression gives minorities and dissenting individuals a chance to gain public support, to influence government and to w i n the next elections. 2. Legal principles governing democratic decision-making do not apply to the preliminary stage of free expression: 219

See Matzka (note 215), 11 (18/19), whereas at 32, he applies the licence clause of Art. 10 without further discussion. 22 0 See Lhoest , supra note 124.

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a) Skill and financial means may be actively used by individuals, groups or enterprises to give their ideas unequal weight, be it at a loss or at a profit, whereas democratic participation in decision-making is based on the principle of equality. b) Aliens may not entirely be excluded. A r t . 16 of the Convention which allows restrictions on the "political activity of aliens" must be narrowly interpreted. 3. Free dissemination of information and ideas by profit-oriented enterprises is an essential element of a pluralistic democracy based on free economy. This function of dissemination and not the commercial character as such is protected under A r t . 10 of the Convention. 4. Freedom to impart information and ideas under A r t . 10 implies the right to use all technical means. This includes a) printed leaflets and electronic leaflets (by Videotext, teletext), b) printed newspapers and "electronic" newspapers (e. g. cabletext), c) radio and television, whether financed by public fees, advertising, subscription or pay-per-view. 5. A r t . 10 of the Convention imposes on the member states not only an obligation to refrain from interfering w i t h free expression, but also the duty to affirm real conditions for such freedom, without neutralizing the inherent inequality of pluralistic contributions (see supra 2 a). I f such affirmative action restrains freedom in order to preserve it otherwise, it has to be justified in the same way as other restrictions (Art. 10 [ 2 ] , "necessity test"). 6. When means of political expression tend to be concentrated in a few hands, such as printed or electronic newspapers and radio or television mass programmes, legislation w i l l have to assure that minorities and dissenting individuals are given a fair chance to have their views directly disseminated, without censorship or moderation. This essential pluralistic function is obscured when "mass media" are exclusively considered as exercising a "public function" of providing "objective" or "well-balanced" information. 7. Consequently, legislation concerning newspapers and public or private broadcasting w i l l have to take into account the following principles: a) A n excessive concentration must be avoided, whether in the hands of individuals, private or public enterprises, major political parties or other powerful groups. b) M i n o r i t y publications or programmes may have to be facilitated (1) by granting tax exemptions and other financial aids to newspapers, and (2) by providing for time-sharing radio frequencies, access time, public access channels and political advertising.

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c) Excessive priority must not be given to professionally-made publications or programmes w i t h mass appeal enriching the national culture, as minority programmes or contributions may not easily meet such requirements. 8. Nevertheless, a minority and dissenting individuals w i l l have to rely much on financially more amenable means of disseminating their views, such as leaflets and booklets. The distribution o f "electronic" leaflets or booklets by interactive videothek or teletext might therefore, under A r t . 10, have to be liberalized, instead of being reserved for monopolistic or oligopolistic broadcasting or press organizations. 9. The licence clause of A r t . 10 (1) 3 of the Convention w i l l have to be further reconsidered as authorizing, in the field of traditional radio and television mass programmes, state licensing as a means of preventively affirming pluralistic freedom of expression and not as a means of keeping up a public monopoly as such. 10. A r t . 16 of the Convention might authorize the exclusion of aliens and other foreigners from publishing one of the few national newspapers or mass broadcasting programmes and thereby gain dominant influence on the forming of national public opinion. This may, however, not justify an entire ban on all publications or programmes by aliens or other foreigners (see supra 2 b). 11. Freedom to receive information and ideas, as guaranteed by A r t . 10 of the Convention, is the necessary counterpart of freedom to impart, but exceeds i t considerably. This exceeding part is of major importance to the free forming of public opinion without interference by public authorities and regardless of frontiers. 12. Freedom to receive includes all information which is in fact available, provided that i t is destined for, or by its nature open to, the public. a) This applies to illegally disseminated information such as pirate broadcast programmes, and to b) the "overspill" of foreign broadcast programmes, be they transmitted by terretorial stations or by direct broadcasting satellites, c) but not to broadcast programmes provided for by telecommunication satellites, as long as their signals cannot be received w i t h individual antennas; freedom to receive does not include the right to have such "unreceivable" programmes transmitted by cable systems. 13. A r t . 10 does not only protect the opening of eyes and ears, but also the active seeking of information and ideas, for example a) the importing for individual use, whether in the form of a hard copy or electronically, of foreign books, newspapers or films, which could not legally be published inside the country,

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b) the installing of a powerful individual antenna in order to receive distant broadcast programmes or telecommunication satellite programmes. 14. A r t . 10 and traditional constitutions of the member states do not guarantee a right to information, in the sense that anyone would have an enforceable right to be generally informed by government and mass media and to have access to government or administrative information on request. A n effective freedom of expression by print or electronic mass media might however require that government does not withhold from journalists information which is not to be kept secret. 15. Individual freedom to receive information and ideas, even when understood as conferring a right to be objectively informed by government or mass media, cannot replace freedom to impart information and ideas in its essential democratic function. 16. Under the impact of direct broadcasting satellites, telecommunication satellites, cable networks and new electronic techniques, a) the clear distinction between individual communication and mass communication, between broadcasting, the printed press and telephone calls w i l l give way to a wide range of different means of expression, b) frontiers w i l l no longer allow a national broadcasting or press autarchy. N e w legislative concepts and a cooperation of the member states of the Council of Europe w i l l have to ensure that individual freedom of expression under A r t . 10 of the Convention, an essential element of the pluralistic forming of a national public opinion, be enhanced and not submerged by standardized international productions.

The Subjective Right in Public International Law by Albert Bleckmann 1. Although the classical international law of co-existence1 protects only the subjective interests of the member states and not the general interests of the international community, and consequently always gives rise only to a bundle of subjective legal relationships, this central topic of subjective rights in public international law is rarely treated. One would search in vain for this theme in the major texts of public international law; likewise as regards articles and monographs 2 . A t first glance i t would appear as i f the predominant opinion is that subjective rights do not play any role whatsoever in international law. I n fact, most literature treats principles of public international law, in accordance w i t h the classical institutional method of public law, 3 as objective law. Typically this misunderstanding of the subjectivity of legal relationships under international law arises i n the treatment of the law of damages. Doctrine, in fact, almost always demands as a condition precedent to a damage claim, an action which contravenes objective law and results in an injury to the detriment of the complaining state 4 . The notion of injury 5 itself, however, is not defined by reference to subjective rights. 1 The idea of co-existence in international law is not to be understood here in the socialist sense as regulating legal relationships between states with different social systems. In the following we rather contemplate in accord with Alfred Verdross / Bruno Simma , Universelles Völkerrecht, 3rd edition, Berlin 1984, 41 et seq., the historical development of co-existence and co-operation in international law. 2 So far as is evident, a comparative study of this problem has only been undertaken by Pieter van Dijk, Judicial Review of Governmental Action and the Requirement of the Interest to Sue, Alphen aan den Rijn 1980, which is, however, not sufficiently generalised. 3 Cf. Wolfgang Meyer-H essemann, Methodenwandel in der Verwaltungsrechtswissenschaft, Heidelberg/Karlsruhe 1981. 4 Cf. instead of all others the representative presentation in Verdross / Simma (note 1), 845 et seq. They cite, however, at 846, Footnote 3, the judgement of the Permanent Court of International Justice (P.C.I.J.) in the Phosphates in Morocco case, Preliminary Objections, Series A/B 74, 28, stating that it depends on an "acte contraire aux droits conventionnels d'un autre Etat" and the arbitration decision of Max Huher (ibid., Footnote 4) of 1 May 1925 in the Affaires des biens britanniques au Maroc espagnol, Review of International Arbitral Awards (RIAA) II, 641, stating that "La responsabilité est le corrollaire nécessaire du droit. Les droits d'ordre international ont pour conséquence une responsabilité internationale." 5 The — in other respects brilliant — work of Brigitte Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale, Paris 1973, does refer to the subjective law.

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A number of legal institutions of public international law stand in strange contrast to this purely objective viewpoint. The International Court of Justice (ICJ) expressly stated in the first Namibia decision 6 and in the Barcelona Traction case7 that a petition is only admissible i f the petitioner seeks to enforce his own subjective rights. I n particular, the legal institution of diplomatic protection 8 is understandable only in so far as states can only enforce subjective rights in international intercourse. Under this conception, only the home state may act to defend the rights of its citizens, and only because its own rights are injured 9 . Reprisals are only permitted where state A has injured the rights of state B. State Β may only defend its own rights and thereby may only in return infringe the rights of state A 1 0 . Also, the fact that under international law states may only dispose of their own subjective rights and legal positions, demonstrates that international law only gives rise to a bundle of subjective rights. This becomes clear in the case of cession where state A disposes of territory of state B. For the most part the doctrine of the disposition of rights of states under public international law remains underdeveloped. Thus, E. Klein indeed correctly emphasized that dispositions affecting the legal status on the basis of the underlying disposition of subjective rights is, in principle, only possible w i t h the participation of the rightholder 1 1 . Although it is related to the concept of subjective rights, international law, as a rule, deals w i t h this question mainly under the category of treaties affecting third parties. I n principle, such treaties only create third party obligations; doctrine, however, tends to extend the underlying concept to the disposition of third party rights. 12 On the other hand, it seems to me that the problem of the disposition of foreign rights has also found its way into the doctrine of ins cogens 13. Thereunder, a contractual agreement is deemed void when i t contravenes legal principles which protect not only the general interests of the international Contrariwise Adolf Schule , Delikt, völkerrechtliches, in: Karl Strupp / Hans-Jürgen Schlochauer (editors), Wörterbuch des Völkerrechts, Band (Bd.) I, Berlin 1960, 336 restricts the concept of damage to the legal items protected by international law. 6 International Court of Justice (I.C.J.) Reports 1970, 33 et seq. 7 I.C.J. Reports 1970, 86 et seq. 8 Cf. Wilhelm Karl Geck, Diplomatischer Schutz, in: Strupp I Schlochauer (note 5), 379. » Cf. Mavrommatis Palestine Concessions case, P.C.I.J., Series (Ser.) A, No. 2 (1924), 12. 10 Cf. Albert Bleckmann, Gedanken zur Repressalie. Ein Versuch der Anwendung der Interessenjurisprudenz auf das Völkergewohnheitsrecht, in: Ingo von Münch (editor), Staatsrecht — Völkerrecht — Europarecht, Festschrift für Hans-Jürgen Schlochauer, Berlin, New York 1981, 193 et seq. 11 Eckart Klein, Statusverträge im Völkerrecht, Heidelberg 1980, 81 ei seq. is Cf. ibid. 13 Cf. the literature cited by Verdross / Simma (note 1), 328 et seq.

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community 1 4 , but also the interests of foreign states. I t seems to me that one would do better to disengage the problem of the disposition of foreign rights from the ius cogens concept and from the legal principles concerning treaties affecting third states and treat i t separately, because the problem here is different from that in the areas of law just mentioned. That the whole of public international law is based upon the doctrine of subjective rights finally becomes clear when one considers that the objective principle of the rule of law, which is also valid in public international law (because every legal order must make provision for the enforcement of objective rights in constitutional reality) demands that the enforcement of law takes place w i t h i n the prescribed parameters 15 . That means that the legal order must entrust w i t h enforcement powers only those persons who are capable and willing to use such powers. Fundamentally, one can resort to only two possible models to achieve this goal. As soon as the relevant legal order recognizes the general interests of the community, it w i l l empower its central organs w i t h enforcement capacities. These w i l l be exercised not in its own interest and not w i t h respect to subjective rights, but in the general interest of the community. The other model empowers individuals to enforce the protected subjective interests in their own interest. U n t i l the development of the new ius cogens doctrine, international law did not recognize the general interests of the international community, but only protected the subjective rights of states. Therefore, the international legal order necessarily had to resort to the model of subjective rights. Nevertheless, the field of application in international law of the concept of subjective right must be clarified. According to the definition given by Bühler , which w i l l be expounded below, one characteristic element of the concept consists in the enforceability in court, i. e. requires a conferment of legal power by the state. 16 Thus, the subjective right in the national sphere extends only to legal proceedings. Importing this construction into international law poses a dual difficulty. O n the one hand, in contrast to national law, there is no compulsory jurisdiction in international law. One cannot presume, however, that international law recognizes subjective rights only when the parties have concluded an arbitration agreement. For damage claims, conditions precedent of reprisals etc ., this is of little note. I n general, under international law one must waive the "legal power" as a condition precedent of the subjective right. Op. cit., 331. On the objective rule of law principle, cf. Albert Bleckmann, Ordnungsrahmen für das Recht der Subventionen, Verwaltungsrechtliches Gutachten für den 55. Deutschen Juristentag 1984 in Hamburg, München 1984. 16 Ottmar Bühler, Die subjektiven öffentlichen Rechte, Berlin/Stuttgart/Leipzig 1914, 223 et seq., 261 et seq. 15

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On the other hand, it might be that the subjective right under international law also plays a role only as far as conditions precedent of legal consequences are concerned. A subjective right might be then the condition precedent of a damage claim, a reprisal, or a petition in an international court. I t may be questionable, however, whether international negotiations are also restricted to the enforcement of subjective rights. Apparently that is only the case i f an obligation to negotiate exists. One party could refuse to negotiate i f the other failed to assert subjective rights. 17 I n the absence of such an obligation, however, the contracting party is free to decide whether to take up negotiations or not. The necessity of a doctrine of subjective rights is made especially clear when considering the law of damages. I f we do not l i m i t damage claims to the violation of a subjective right, any state in the w o r l d could claim the damage sustained by Afghanistan as a result of the Soviet occupation, asserting the infraction of a general interest in peace, because the compensation for immaterial damage is recognized under international law. I t is here a question of finding a doctrine according to which the interests for which damage claims are demanded are to be allocated on a legal basis among the various states of the world. A comparable problem arises in the case of American Jews murdered by German occupation troops in the Netherlands: The Netherlands were empowered to raise a damage claim for the violation of their territorial rights, but this claim could not include the damage incurred by the American Jews themselves, because these damages were a consequence of a violation of the American personal sovereignty. Therefore, only the United States could raise this damage claim. 2. Since literature in the field of public international law yet has dealt little w i t h the topic of the subjective rights of states, one can find no general, uniformly accepted definition of subjective rights, which, when applied to the norms of international law, would permit conclusions as to which state could acquire subjective rights under a norm of objective law. I n the German literature of the nineteenth century, two different concepts of the subjective right were developed. Jhering defined the subjective right as a legally protected interest 18 , Dernburg , by contrast, as the "power of w i l l " (Willensmacht ) conferred by law 1 9 . Through Anglo-Saxon 2 0 and French 21 legal philosophers, these « Cf. Verdross / Simma (note 1), 283, 700. R. v. Jhering , Der Geist des römischen Rechts, vol. 3, 6th edition, Leipzig 1907, 339. 19 Heinrich v. Dernburg , System des römischen Rechts der Pandekten, 8th edition, Berlin 1911, 65 et seq. 20 Cf. e. g. R. W. Dias , Jurisprudence, 2nd edition, London 1964, 219 et seq. and the literature cited there. 21 Cf. e. g. Paul Roubier , Droits subjectifs et situations juridiques, Paris 1963. 18

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two definitions are known world-wide and are indeed generally accepted. I n the sphere of German law, apparently under the influence of the interestjurisprudence (lnteressenjurisprudenz) based on the teachings of Jbering and developed by Philipp Heck 22, the definition of the subjective right as a legally protected interest gained ground, particularly in public law, through the teachings of Bühler 23, Jellinek 24, and Bachof 25. I n the other states, however, no such development could be observed. This was due to fundamental reasons, which can be deduced from the structure of the prevailing legal order. I n fact, the doctrine of subjective rights was first developed in the field of private law. Here, for example, in sales law, basic norms exist providing when and for whom the norm establishes subjective rights. That is the essential reason why the founder of the British analytical school, John Austin , although his entire teaching revolved around subjective rights, only endeavoured to elaborate the different categories of subjective rights, leaving the definition aside. 26 Since, as a rule, public law, contrary to private law, enforces the interests of the community, the question must here appear much stronger than in private law, whether and for whom a norm establishes subjective rights. But that is only necessary if, as under German administrative law, the right of action is made dependent upon a subjective right of the petitioner. 27 By contrast, i f the legal proceedings are objectively framed, as under French law, one does not arrive at an operable definition of subjective rights. N o t subjective rights, but general interests are enforced and the actual interests of the petitioner and not subjective rights establish the right of action. Moreover, in French law, standing only serves as the impetus for the ensuing proceedings designed to enforce general interests. 28 22

Cf. Philipp Heck, Begriffsbildung und Interessenjurisprudenz, Tübingen 1932. 23 Bühler, op. cit. (note 16). 24 Georg Jellinek, Das System der subjektiven öffentlichen Rechte, 2nd edition, Tübingen 1905. 25 Otto Bachof, Reflexwirkungen und subjektive Rechte im öffentlichen Recht, in: Forschungen und Berichte aus dem öfftenlichen Recht. Gedächtnisschrift für W. Jellinek, München 1955, 287 et seq. 26 John Austin , Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edition, London 1885. 27 Cf. Norbert Achterberg, Allgemeines Verwaltungsrecht, Heidelberg 1982, 525 et seq.-, Hans-Uwe Erichsen / Wolf gang Martens, Allgemeines Verwaltungsrecht, 7th edition, Berlin 1986, 150 et seq.; Hartmut Maurer, Allgemeines Verwaltungsrecht, 4th edition, München 1985, 116. 28 On the French conception of the right of action, cf. Albert Bleckmann, La qualité pour agir en droit administratif français et allemand, dissertation, Grenoble 1960. Cf. for a comparative law analysis, Albert Bleckmann, Die Rolle der Klagebefugnis, in: Hermann Mosler (editor), Gerichtsschutz gegen die Exekutive, vol. 3, Köln/Berlin/Bonn/München 1971, 21 et seq.; as well as van Dijk (note 2). On the ability to petition under English law cf. Ludger König, Die Klagebefugnis im englischen Verwaltungsprozeß, dissertation, Münster 1979.

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I t can easily be explained w h y only German public law resorted to Jhering's concept of a legally protected interest. The only possible alternative, namely, a "power of w i l l " conferred by law, defines, in contrast to the legally protected interest, the essence of subjective rights and thereby does not afford the answer to the question, whether and when a certain norm establishes a subjective right. Since, as I have demonstrated, public international law, because of its strong affinity toward the concept of subjective rights, demands a definition capable of a legal imputation, which affords an answer to the question, for which state the norm of international law establishes subjective rights, one can only resort to the definition of Jhering. 3. I n the field of public law, Bühler 29 made this definition of subjective rights more precise by setting up three conditions precedent to its assumption: First, the norm must establish a legal obligation rather than only providing the state w i t h guidelines for the exercise of discretion. Second, the norm must be meant to protect the interests of the rightholder. A n d third, the norm must enable the individual to pursue its enforcement through legal proceedings. This definition can be incorporated into international law w i t h certain modifications. I n order to do so, the most important of the above-mentioned conditions is the purpose of the norm to protect the interests of the petitioner. I n view of the development of the international law principle of abuse of rights 30 , which, on the national plane, can be largely compared to the rules concerning the misuse of discretionary powers 31 , the concept should extend the prerequisite of strict legal obligation to also comprise a claim to receive a decision based on the correct use of discretionary powers. The third condition, namely the guarantee of legal proceedings, must fail, however, due to the lack of obligatory jurisdiction in public international law. Thus, the most important condition of the norm is the protection of interests particularly relating to the petitioner. I n German law, too, here lies the real difficulty, because, as a rule, the legal order does not make sufficiently clear who ought to be the bearer of the legally protected interest. Therefore, Otto Bachof resorted to the formula that the norm is made to protect the interests of those who are factually affected by its infringement. 32 However, even i f clarified to the extent that only interests affected necessarily or by infringement of the norm should be at stake, this formula only i n part helps 20 Bühler, op. cit. (note 16). 30 Cf. the literature cited by Albert Bleckmann, Die Aufgaben einer Methodenlehre des Völkerrechts, Heidelberg 1978, 11, footnote 29. 31 Cf. literature cited at note 27. For the French law and from a comparative viewpoint cf. the literature in: Albert Bleckmann , Europarecht, 4th edition, Köln/Berlin/Bonn/München 1985, 179 et seq. 32 Cf. supra note 25.

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to resolve the problem. Thus, for instance, norms of building law primarily protect certain general interests regarding stability, fire- and health-protection. I n order to achieve the result that these norms at the same time protect the interests of the neighbour, one has to develop a priori — i. e. prior to an interpretation of the norm in question — a general theory of an allocation of competence to protect and enforce certain interests between individuals, as well as between individuals and the state, because the interpretation of these norms only permits the conclusion that these provisions are meant to ensure the stability of the structure, prevent the outbreak of fire and protect the health of the neighbours. The decisive question, however, is whether only the general public or also the neighbour shall be the holder of all these interests, and, whether the proprietor, the tenant, the holder of mortgages etc. should be protected. 33 Again, this question cannot be answered by an interpretation of the norm, but only by taking recourse to a general theory of competence allocation for the representation of interests. Moreover, this is the only way to eliminate as a foundation for the ius standi the immaterial interests of the neighbour, which may be affected by any infringement of a norm of building law. Henke 34 correctly recognized this problem, describing as subjective rights the entirety of those interests belonging to the proper personal sphere of the individual. Thereby, this general theory of competence largely coincides w i t h the theory of the factual interests of individuals 3 5 developed by French doctrine in connection w i t h the question of right of action in administrative rescission proceedings. 4. The situation is similar in international law. Assume that in the British territorial sea a German ship bound for Iceland and conveying American goods and Belgian nationals, is sunk by a Russian submarine. Here the problem arises, whether only Great Britain can assert an infraction of the norm pertaining to the territorial sea, or whether this could also be done by the United States of America, Belgium, Iceland, and the Federal Republic of Germany. Similarly, the question might be asked, whether Italy, i n the case of the murder of an Italian Jew by German occupation troops on the territory of the Netherlands could assert not only an infraction of the norms pertaining to the treatment of aliens, but also of those pertaining to the territorial sovereignty of the Netherlands. 33 Cf. on this question the German commentaries on administrative court procedure. Above all Konrad Redeker / H ans-Joachim von Oertzen, Kommentar zur Verwaltungsgerichtsordnung (VwGO), 8th edition, Stuttgart/Berlin/Köln/Mainz 1985, § 42, Randnummer (RN) 132 et seq. 34 Wilhelm Henke, Das subjektive öffentliche Recht, Tübingen 1968. 35 Cf. Bleckmann (note 28).

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Taking recourse to the formula of Bachof , this violation of international law could in fact be enforced by all states directly or indirectly affected by the foreign act. According to the formula, the norms relating to the territorial sea protect the interests of those states whose interests are customarily affected by an infraction of the norm. However, the violation of the norms relating to the territorial sea necessarily first affects the interests of the coastal state itself. As i n the aforementioned example the additional condition of affected interests being traditionally protected by the entire international legal order must be met. This becomes clear i f through the violation of the norm relating to the territorial sea American security- or peace interests are affected. Similarly, the question arises whether international law also protects customarily affected interests of third states relating to the satisfaction of their population's welfare interests. The difference is obvious: interests regarding personal integrity and property (e. g. of goods and ships) are generally protected by international law, whereas this protection appears questionable w i t h regard to security- and peace interests as well as interests relating to the supply of the population. Even when taking recourse to the formula of Bachof stating that international law protects all interests customarily or necessarily affected by an infraction of the norm, i t has to be determined which of these affected interests are customarily protected by the entire international legal order, i n order to eliminate interests of a purely immaterial, aesthetic etc. character. This, however, calls for a general theory of subjective rights which distributes these rights among the states in the sense of a pattern of competence allocation on the basis of the whole international legal order. 5. As I have already demonstrated in another context 3 6 , this theory of subjective rights can only be developed by taking recourse to the external sovereignty of states which can be regarded as a standard of deep influence upon the entire content of the classical international law of co-existence; in principle, almost every norm of classical international law can be derived from the principle of sovereignty. Sovereignty thereby establishes the comprehensive, if not the only subjective right of public international law. Thus, one could arrive at developing a general theory of subjective rights in international law if succeeding in comprehensively defining the interests of a state protected by sovereignty. This is possible because the entire international law of co-existence only represents one aspect of the principle of sovereignty. Thus, the content of this principle as enshrined in positive international law can be determined by considering the content of all single norms of the whole international legal 36 Cf. Albert Bleckmann, Völkerrechts 1985, 450—477.

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order. The concept of sovereignty thus developed as a general principle of law, in turn influences the content of the single international legal norms. This interpretation, through which on the one hand the content of the general principles of law is derived from the single norms, and on the other hand the content of general principles thus circumscribed in turn determines the content of the single norms, is based on the principles of legal analogy 37 . So under German constitutional law the content of the principles of the rule of law and of democracy enshrined in the constitution is elaborated from the individual constitutional norms; but on the other hand, the general principle so developed effects repercussions on the interpretation of the single norms. 38 This method is also common under international law. So e. g. the term "subject of international l a w " gains its meaning from the entirety of international legal norms: A t first it is considered which subjects bear rights and obligations under the whole of international law. I n a second step, the general term "subject of international l a w " developed by this method, serves as a means of interpretation of the individual norms in order to determine to whom these norms confer rights and obligations. 39 a) As doctrine has correctly conceived, mainly in connection w i t h the question of gap-filling in international law, 4 0 sovereignty first of all establishes a comprehensive freedom of action of states. However, two of the conclusions which doctrine drew from this notion should be corrected. O n the one hand, this freedom of action is not comparable to the natural freedom of action of individuals, which the legal order presumes, for the law determines only the restrictions on this freedom rather than its content. As today A r t . 2 para. 1 of the constitution of the Federal Republic of Germany positively protects this natural freedom of action of individuals, one must also presume in international law, that the freedom of action of states is legally based on external sovereignty itself. O n the other hand, the classical concept of coexistence in international law did not know of a protection of general interests of the legal community; these interests first developed under the emerging concept of co-operation. Under the concept of co-existence, however, the freedom of action of states was not limited by the objective legal order, but rather by the subjective rights of other states.41 37

On law and legal analogy (Gesetzes- und Rechtsanalogie) cf. Karl Larenz, Methodenlehre der Rechtswissenschaft, 5th edition, Berlin/Heidelberg 1983, 365 et seq. 38 Cf. Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 2, 380 (403). 39 On the theory of subjects of international law, cf. V erdross / Simma (note 1), 2 et seq., 221 et seq. 40 Cf. literature in: Albert Bleckmann , Die Handlungsfreiheit der Staaten, in: österreichische Zeitschrift für öffentliches Recht 29 (1978), 173—196 (174, footnote 1). 41 Cf. e. g. von der Heydte , Völkerrecht I, Köln 1958, 99.

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b) Given the case that state A taking advantage of its freedom of action based on its sovereignty, encroaches upon the freedom of action of state B, which likewise is protected by the latter's sovereignty, corresponding defensive rights in favour of state Β evolve from its freedom of action, a development comparable to the emergence of the fundamental rights of individuals. O n the international plane, these rights of the states are traditionally embraced by the term of non-intervention. 42 N o w , analysing the rights of state B, i t is necessary to determine more exactly the sum of these rights. The principle of sovereignty protects the freedom of action, e. g. the freedom of w i l l and the factual freedom of movement, but at the same time areas of jurisdiction (territorial, personal and organisational sovereignty), and the interests to preserve the inviolability of these areas. This is, at least punctually, accepted by recent jurisprudence and literature. Thus e. g., in the international law concerning the neighbourly relations between states, the interest state Β has in its integrity is commonly recognized; in the international law of watercourses, a classical theory has indeed attempted to settle the rules regarding the distribution of the waters of an international watercourse by a twofold application of the principle of external sovereignty: O n the one hand the upstream entity, on the basis of its freedom of action flowing from its sovereignty, should be able to use ad libitum the water found on its territory. A n opposing notion regards sovereignty as constituting a comprehensive interest of integrity of the downstream entity, the latter being vested w i t h defensive rights to interdict to the upstream entity any use of the water which could have an effect on its territory. 4 3 A more recent theory, however, recognizes both of these sovereignty-based, albeit contradictory rights and attempts to reconcile the differences through a weighing of the interests of both sides.44 I n the Trail-Smelter-case 45 i t was established that international law prohibits an interference in the territorial integrity of the neighbouring state by transboundary environmental pollution. O n the other hand, the doctrine of diplomatic protection generally recognizes that a violation of the subjective rights of its nationals conferred to them by municipal law means a violation of the proper rights of the home state, viz. his integrity interests defined by nationality. 4 6 The International Court of Justice (ICJ) extended this doctrine 42 That the prohibition of intervention flows from the principle of sovereignty is made clear especially by Detlev Christian Dicke, Die Intervention mit wirtschaftlichen Mitteln im Völkerrecht, Baden-Baden 1978. 43 Cf. Diversion of Water from the Meuse case, P.C.I.J. Series A/B No. 70 (1937), 4—89. 44 The so-called Helsinki-Rules of the International Law Association (ILA), Verdross! Simma (note 1), 643. 45 Peter Schneider , Trail Smelter-Fall , in: Strupp / Schlochauer (note 5), vol. I l l , 447. 46 See supra, notes 8 and 9.

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to the employees of international organisations 47 , and thereby to the integrity interests of the states based on their organisational sovereignty. 48 c) We have already demonstrated, that apart from the freedom of action and the defensive rights related to territorial sovereignty and the general power to dispose of all particular subjective interests, sovereignty establishes for the states a legal position comparable to the national protection of property. I t should be added here, that also the principle of sovereign equality in international law derives from the notion of sovereignty. 49 W i t h this, the principle of sovereign equality had to assume a new function. There is a principle of international law stating that the members of the international community are only bound to legal principles and treaties which they have approved. Given the direct participation of all states in the decisions of the international legal community, this principle establishes an institutional guarantee (institutionelle Garantie) which, as the active and passive election rights in municipal law, provides that in the course of this decision all interests of all states are weighed against each other on a just and equitable basis. I n this way, the principle of equality functions as a "participation right" in the sense of the law governing democratic elections. I f , on the other hand, these decisions are subjected to the majority rule by treaty in order to ensure the necessary decision of the international community, sovereignty in its function as a participation right in a second sense demands that the international community outweighs all interests of all states on a just and equitable basis. I n close connection to the notion of misuse of discretionary powers in municipal law, on the international plane the prohibition of abuse of rights — typically first discovered in the emergence of the modern international law of cooperation — assumes the function of a participation right in this second sense. Moreover, since the states depend upon the accomplishments of other states in order to satisfy the general interests of their citizens, an increase of the effectivity of international law can also be observed in the age of international co-operation. A t the same time, an objective interest of the states emerges to extend their defensive rights versus the freedom of action of the other states. This interest is even stronger today, since in lieu of conquest and annexation, international trade is the appropriate instrument to enhance power and 47

Cf. Albert Bleckmann y Zur Verbindlichkeit des allgemeinen Völkerrechts für internationale Organisationen, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 37 (1977), 107—121 (114). 48 Reparation for Injuries Suffered in the Service of the United Nations case, I.C.J. Reports 1949, 189. 49 Cf. Wilfried Schaumann, Die Gleichheit der Staaten, Wien 1957, 68 et seq.

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prestige. As a consequence, the interest of the state increasingly focuses on an avoidance of war and a prohibition of annexations. 50 d) Sovereignty in its various functions thereby establishes fundamental rights of states similar to those which, in the national legal sphere of states, we know as the fundamental rights of individuals. 5 1 This notion must be complemented by the idea that sovereignty also entails rights of participation in a twofold sense: As long as in the age of the international law of co-existence, i. e. until the middle of the nineteenth century 5 2 , states remained in isolation lacking any neutral tie, international law knew only of the freedom of action and its opponents, the respective defensive rights. The setting resembled the "nightwatchman state" (Nachtwächterstaat )53 of the nineteenth century, i. e. a state in which the individuals could enforce their social needs either autonomously w i t h i n the bounds of classical freedoms or in conjunction w i t h the other members of the society. Therefore the state only had to protect the classical fundamental rights, i. e. maintain public security and order. 54 Based on this background, an order in which the freedom of action was not excessively restricted by defensive rights complied w i t h the objective interests of the states. I n fact, public international law, which at that time had not yet become very effective, was not able to protect sufficiently the sovereignty of states w i t h defensive rights. For the protection of their own sovereignty, states therefore preferred to rely on the power of their own army and on the power of alliances. Furthermore, the states at that time hoped to expand their power and their prestige by annexations, i. e. above all by resorting to war; consequently, in that situation the defensive rights ought not to have been too strong. A t the moment in which the individuals can no longer enforce their social needs self-sufficiently w i t h i n the bounds of their freedom of action, the functions of the state in the national sphere extend, in addition to the protection of public security and order, to all tasks of public welfare. However, as soon as states can no longer satisfy these general interests of the people by their own means, but only in conjunction w i t h other states, their interests turn away from the questions of freedom of action and defensive rights and are directed to a decision of the international legal community based on law, 50

On this modern development of international law cf. Verdross/ Simma (note 1), 759 et seq. Albert Bleckmann , Allgemeine Grundrechtslehren, 2nd edition, Köln/Berlin/Bonn/München 1985, 81 et seq. 52 Verdross ! Simma (note 1), 41. 53 The expression was coined by Ferdinand Lasalle. 54 Cf. Wilhelm von Humboldt , Ideen zu einem Versuch, die Grenzen der Wirksamkeit des Staates zu bestimmen, in: Gesammelte Werke V I I , Berlin 1841, 1—197. 51

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which brings about a just and reasonable weighing of all general interests of all states against each other. e) Thus, sovereignty as the "mother of subjective rights" comprises the freedom of action, defensive rights and integrity interests related to nationals, territory and organisation, and today also embraces the general social interests of the peoples and the right of participation in its double function. As demonstrated by the German doctrine of public subjective rights (subjektive öffentliche Rechte ), two different concepts may be chosen to determine which subjective interests are protected by a given norm of international law: aa) The so-called theory of the protective norm (Schutznormtheorie )55 refers to the interests protected by the infracted norm itself. E. g. when determining the standing of a neighbour intending to take up legal proceedings against a building permit 5 8 one has to consider the protective impact of the norm containing the legal basis for the conduct of the administration and thereby regulating the prerequisites of the administrative act. Making use of Bachof' s abovementioned formula 5 7 , we have to ask which interests are usually affected by an infringement of the respective norm. Applying this formula to the case above, we may conclude that the rules about the territorial sea protect the interests of the coastal state rather than the interests of those states to which the damaged ship or the goods and nationals transported on board appertain. bb) More recently, German doctrine 58 and jurisprudence 59 increasingly tend to refer to the indirect injury of the fundamental rights of the third party, e. g. to the injured property right of a neighbour, in order to determine the ius standi . The real problem here lies w i t h the question whether indirect incursions are also relevant in the field of fundamental rights; a positive answer to this question has found increasing support by doctrine and jurisprudence. 60 According to the decisions of the Federal German Constitutional Court 6 1 and the German Administrative Courts, the individual whose funda55

Cf. supra , note 18. Cf. the jurisprudence of the German administrative courts in: Redeker / von Oertzen (note 33), Section 42, R N 132 et seq. 57 Cf. supra , note 25. 58 Cf. Rudolf Bernhardt , Zur Anfechtung von Verwaltungsakten durch Dritte, in: Juristenzeitung (JZ) 1963, 302 et seq.; Hartmut Maurer, Allgemeines Verwaltungsrecht, 4th edition, München 1985, 114 et seq.; Albert Bleckmann, Subventionsrecht, Stuttgart/Berlin/Köln/Mainz 1978, 149. 59 Cf. Maurer (note 58), 121 with the cited decisions. 60 Cf. Hans-Ulrich Gallwas , Faktische Beeinträchtigungen im Bereich der Grundrechte, Berlin 1970; Paul Kirchof, Verwalten durch "mittelbares" Einwirken, Köln/Berlin/Bonn/ München 1977; Bleckmann (note 51), 269 et seq. « Cf. BVerfGE 6, 32 (37 et seq.). 56

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mental rights are injured by the administrative act can assert violation of any given norm of the legal order rather than only of those norms designed to protect his own interests. This concept, too, can be of fruitful use in international law. But rather than asking whose interests of sovereignty are protected by the injured norm, one has to determine whether the violation o f such interests in the given case is imputable to the violation of the objective norm. I n case of a violation of the sovereign interests the respective state can assert a violation of all norms of the objective legal order even if these norms are not made to protect his own interests. Referring to the abovementioned case, all states, i. e. also the Federal Republic of Germany, the United States of America, Belgium and Iceland (although the objective norm pertaining to the territorial sea only protects the sovereign interests of Great Britain), can assert a violation of international law based on this indirect incursion of their "fundamental rights", because the sinking of the German ship injures the sovereign interests generally protected under international law and thereby the "fundamental rights" of the Federal Republic of Germany (related to the ship), the United States (related to the American goods), Belgium (related to the Belgian nationals), and Iceland (related to the protection of the general interests of its citizens). Here again we may state, that there is a general theory of subjective rights in municipal as well as in international law, substantiated in German constitutional law by the general doctrinal concept of fundamental rights 62 , and based, in municipal private law, on the theory of subjective rights. I n all cases involving an incursion upon the sovereignty o f state B, exercised by state A on the basis of its freedom of action and bringing up the question of mutual delimination of legal spheres, the same problems arise and the same solutions are offered. Thus, we have demonstrated that the functions of sovereignty in international law resemble to a great extent the function of fundamental rights in national constitutional law, and that these general concepts of fundamental rights largely resemble the theory of subjective rights developed in private law. I n the context in question it may also be that only an indirect incursion upon the sovereignty of state Β establishes defensive rights of state B. Examining the international law of watercourses we could find that the "fundamental rights" o f both states must be weighed against each other, just as i t is the case in national constitutional law. To the same extent, the prohibition of abuse 62 Cf. Bleckmann (note 51); Jörg P. Müller, Elemente einer schweizerischen Grundrechtstheorie, Bern 1982; Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 14th edition, Karlsruhe 1984, 111 et seq.

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of rights in international law should demand for such a weighing of mutual interests. 63 I n this context, the problem of the third-party-effect (Drittwirkung) u also demands consideration in international law: I f sovereignty, like municipal fundamental rights, is regarded as a value protected against incursions from all sides, sovereignty must also be protected against incursions by private persons. As far as this third-party-effect of sovereignty cannot be upheld due to the fact that individuals do not possess the quality of subjects under international law 6 5 , the respective territorial state as a guarantor for the observation of international law in its territory 6 6 must incur an obligation to protect the third state from incursions upon its sovereignty originating from its territory. 6 7 cc) From this viewpoint, the violation of sovereignty gives rise to defensive rights rather than establishing the illegality of the foreign states' conduct, the latter being solely subject to the specific norms of objective international law. Therefore, the reason for the illegality of the sinking of the German ship is not the infringement upon the sovereign interests of the Federal Republic of Germany, the United States of America, Belgium and Iceland, but lies in the violation of the norms related to the territorial sea, a violation, therefore, of the British sovereign interests. Thus, we developed the doctrine of subjective rights in international law through a generalization of the rules concerning diplomatic protection, which likewise do not establish the illegality of the foreign states' conduct — this being a question of the international law related to the treatment of aliens —, but only the "ius standi " of the home state violated in its integrity interests through a violation of the interests of his citizen. 68 We have seen, however, that a violation of sovereignty and the interests of integrity resulting herefrom also establish the illegality of the foreign states' conduct, even in case international law has not yet developed specific norms governing the dispute in question. The Trail-Smelter-case is an enlightening example for this notion, too. This can be explained by the fact that sovereignty is a general principle of law developed from a synopsis of all international legal norms, which doubtlessly possesses the quality of positive international law. 6 9 A parallel may be drawn to sec. 823 sub-sec. 1 (governing the law of torts) and 1004 (on the disturbance of property) of the Federal 63

Cf. supra , notes 43 und 44. 04 Cf. Bleckmann (note 51), 152 et seq. 65 Cf. Verdross / Simma (note 1), 3 et seq., 255 et seq. ββ Cf. op. cit., 230, 280 et seq. «7 Cf. op. cit., 863. 68 See note .9. βθ Generally Verdross ! Simma (note 1), 47 et seq.

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German C i v i l Code: I n both cases, not the violation of the objective legal norm, but rather, the violation of subjective rights give rise to the ensuing illegality of the foreign conduct. These abstract presentations, too, should be clarified by means of a concrete example. We have shown that according to the classical conception of coexistence in international law, the freedom of action of state A , flowing from its sovereignty, finds its outer limits in the sovereignty, i. e. in the freedom of action, the competences and the integrity interests of state B. I n order to determine the defensive rights of state Β against incursions by state A , two lines of thought can be followed. Firstly, one can take recourse to the single norms of positive law such as the rules on the prohibition of intervention. From the classical viewpoint, however, the principle of non-intervention only protects state B's freedom of decision, and not its interests related to integrity and competences.70 For example, the principle has no impact in questions related to infringements of the rights of foreign nationals, foreign territory or foreign organization. The same holds true w i t h regard to competences: I f the Federal Republic of Germany would take influence on the transactions in the British stock exchanges, this conduct would be tantamount to an incursion into the territorial sovereignty of Great Britain which is not governed by the principle of non-intervention. 71 Apart from considering that these incursions may be regulated by other principles of international law, we have to deal here w i t h the general question as to whether the contents of sovereignty as founded in international law could be regarded as a general principle of law, from which new defensive rights could be developed. Thus, in the Trail-Smelter-case, we conceived of the notion an overall protection of territorial integrity. Apparently, the essential problem here consists in the general reluctance of doctrine to develop a general principle of international law out of single international legal norms, and to deduce, from this general principle, new norms of international law. Although legal analogy is generally recognized in international l a w 7 2 , the prevailing doctrine accepts positive international law only in the form of the individual legal principles of international law bearing only an indirectly abstract character. 6. Whereas, in international law, the classical notion of co-existence has been overruled by the modern concept of co-operation, the doctrine of subjective rights developed so far must be punctually corrected. I n fact, doctrine and jurisprudence accept the notion that present international law not only protects the subjective sovereignty interests of the member states, ™ Cf. Dicke (note 42). 71 Cf. however decisions of the Reichsgericht , civil law division (RGZ) 55, 183. 72 Cf. Albert Bleckmann, Die Analogie im Völkerrecht, in: Archiv des Völkerrechts (AVR) 18 (1977/78), 161—180.

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but also the general interests of the international legal community 7 3 ; this acceptance is no longer confined to questions related to the concept of ius cogens. Thus on the one hand, the International Court of Justice in its Advisory Opinion on the Genocide-Convention stated that international law not only generates an obligation versus other states, but also, versus the entire international community. 7 4 O n the other hand we have seen, that e. g. reprisals can be used not only for the protection of the proper interests of the state applying them, but also to protect the general interests of the international community. 7 5 These general interests of the international community are developing due to the increasing interdependence of states. On the one hand, the world becomes somewhat smaller each day due to these increasing interdependences and the development of technology. This means, however, that the conduct of states, even i f confined to the domestic sphere, increasingly touches upon the interests of the other states. Thus, e. g. an autonomous national economic policy seems impossible today, as the economic situation in, say, the United States automatically affects the economic situation of the Federal Republic of Germany. Similarly, the environmental pollution in one state causes repercussions upon the environment of the surrounding states. Moreover, states are caused to take concern in the interests of other states just because their own interests depend upon the enforcement of the interests of the other states. The well-being of state A dependent upon its exports, w i l l cause this state to take an interest in the increasing well-being of the other states, because in this case its export rate is growing. Because of the repercussions upon their own interests states are therefore interested in the enforcement of the interests of foreign states. Moreover, closer communities, as for example the family and the state, but clearly also the international community, show a tendency to adopt the interests of the other members of the community independent of such repercussion upon the proper interests. I n the state and in highly integrated communities, these general interests of the respective community are exclusively enforced and defined by central organs rather than by the members of the community themselves. I n administrative law, this is highlighted by the rejection of the actio popularis , i. e. the petition for enforcement of the general interests of the people. The international legal community, however, does not know of such central organs capable to enforce these general interests of the international community. 73

Cf. Klein (supra note 11), 345 et seq. Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, 15—69 (19). 75 Cf. Jochen Α. Fr owein, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Festschrift für Hermann Mosler, Berlin et al. 1983, 241—262 (259). 74

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Therefore, states as members of the international community are subsidiarily empowered to either individually or collectively enforce these general interests. Again, under the notion of double-functionality, the states assume the position of a procurator 7 6 of the international community and thus do not exercise subjective rights, but act under competences which are not to their disposition, and which cannot be used ad libitum , but only to enforce the general interests of the international community. This distribution of competences lays at the basis of international law; this becomes evident when we consider that also in international and supranational organizations vested w i t h central organs, states themselves may enforce the general interests. Thus, in the European Communities (EC), not only the Commission but also the member states can claim violations of community law by the organs of the EC and the other member states; in doing this, they protect the general interests of the EC and not their own interests. 77 The European Convention on Human Rights ( E C H R ) also permits a complaint of member states against other member states asserting a violation of this treaty, even i f their own interests derived from their sovereignty are not injured. This development of general interests of the international community and of closer regional communities becomes particularly clear in the context of the international law of treaties. Under the classical concept of co-existence, international state practice was confined to the conclusion of mostly bilateral treaties which established only a bundle of subjective rights rather than being law-making treaties. I n the beginning, multilateral treaties were only concluded in order to simplify the process of concluding a treaty by joining numerous single treaties in a comprehensive instrument. Thus, for example the European Convention on Establishment 78 and the European Convention on Extradition 7 9 can be regarded as a bundle of bilateral treaty relations. O n the contrary, modern multilateral treaties are designed to enforce the general interests of the respective community of states parties. This can be seen, e. g. when considering conventions and resolutions concerning labour and environmental law. I n these cases all states are interested in uniform enforcement of the treaties in all states parties because this is the only way to avoid distortions of concurrence resulting from different domestic legislation i n these fields. Another significant example for the development of general interests is given 76 On the theory of double functionality established by Georges Scelle , see Hans Wiebringhaus, Beitrag zur Lehre vom Gesetze der funktionellen Verdoppelung innerhalb einer universalistischen Theorie des Internationalprivat- und Völkerrechts, 2nd edition, Saarbrücken 1955. 77 Bleckmann (note 31), 170. 7 ® Done at Paris, 13 December 1955, United Nations Treaty Series (UNTS) vol. 529, 141 et seq. ™ Done at Paris, 13 December 1957, UNTS vol. 359, 273 et seq.

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by treaties such as the agreement concerning the non-proliferation of atomic weapons; here, i t is no longer a question of protection of subjective rights, but rather of the protection of the peace- und security interests of the general community. 8 0 The general interests of the international community thereby consist largely in the sum of general interests of the national peoples which are protected by the classical and social international fundamental rights. 7. Finally, we want to examine which consequences must be drawn from the previous reflections w i t h respect to the law of damages. As the international law of co-existence only establishes a bundle of subjective rights, and as, therefore, the freedom of action of a state is not limited by objective law, but by the subjective rights of the other states, the conclusion is permitted that the notion of doctrine according to which an infringement of objective law gives a sufficient basis for a damage claim, is not correct. 81 I t might, however, be questionable which of the two theories developed above may be taken as a basis for the damage claim: should one take recourse to the theory of protective norms (Scbutznormtheorie), or rather look at the indirect infringement of the rights deriving from sovereignty? I f one resorts to the theory of protective norms, the legal situation is comparable to that arising in case of a violation of protective statutory law in the context of sec. 823 sub-sec. 2 of the Federal German C i v i l Code. Then, the violation of the subjective right must result in a damage legally related to the violation of the subjective right. Therefore, only a violation of those interests which are protected by the subjective right can be in question, and only these interests can be compensated. I f , on the contrary, recourse is taken to the concept of the indirect violation of sovereignty, the legal situation can be compared to that arising under sec. 823 sub-sec. 1 of the Federal German C i v i l Code. There are two possible methods to achieve this legal construction: A violation of the subjective right of sovereignty can indeed be considered under two factual prerequisites of this norm — illegality of conduct and damage. I n the second case, illegality of conduct is not yet established by the mere infringement of the sovereignty interest; for this, one has to resort to the infringement of the single norms of objective international law. Thus, sovereignty interests only determine the amount of the damage. However, i f one assumes that the illegality of conduct already flows from the infringement of sovereignty interests, illegality as well as damage w i l l be determined by the concept of sovereignty. 80 Opened for signature at London, Moscow and Washington, 1 July 1968, UNTS vol. 729, 161 et seq. 81 See supra , notes 3—5.

The Legal Status of the Sami in Norway by H â k o n Eriksen* I. Introduction 1. The General Situation

of the Sami

The Sami in N o r w a y are citizens on an equal footing w i t h all other citizens of the country. A t the outset the Sami have the same rights and obligations as all other Norwegians. Nevertheless, the Sami are distinct — they are a separate ethnic group who differs on fundamental points from the majority of Norwegians. From a political and a sociological point of view, the Sami are a separate people. They have a language, legal notions, trading and settlement traditions, religious background, etc. which are to a greater or lesser degree distinct from what is typically "Norwegian". This difference is of vital importance for understanding the special demands and needs of the Sami. N o r w a y does not have separate census figures for the Sami, but according to censuses and surveys and definitions which have been used i n these, there are some 40,000 people w i t h a varying amount of Sami in their makeup i n N o r w a y . I n N o r w a y , Sweden, Finland and the USSR (on the Kola Peninsula), there are probably close to 70,000 Sami in all. 1 The definitions which have been used have stressed the use of the Sami language by the individuals, their parents or grandparents, and their own sense of themselves as being Sami. 2 The Sami have traditionally inhabited the northern and central parts of the country, and have been closely associated w i t h primary industries. Today, however, many Sami have moved, and we also find them in urban societies i n both N o r t h and South N o r w a y , and employed in secondary and tertiary industries. * The author would like to thank Torkel Opsahl , Professor at the University of Oslo, Einar Hogetveit , Senior Executive Officer of the Ministry of Justice, and Stein Owe , Secretary of the Norwegian Sami Rights Committee, for helping him in his work with this article. 1 See Norway's Public Reports (NOU) 1984:18, diapter (chap.) 3. Here and in the following notes certain Norwegian texts have been translated for convenience. 2 See also the Sami Culture Committee's draft for a Sami Language Act, § 6, in: N O U 1985:14, 189. Cf. Study of the problem of discrimination against indigenous populations, U N Doc. E/CN. 4/Sub. 2/1982/2/Add. 6, chap.V (Definition of indigenous populations).

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2. Norwegian

Eriksen

S ami Policy

The Sami policy of the Norwegian State has varied from period to period. From 1870 up to W o r l d War I I in particular, a liberal ideology prevailed. During this period, the State actively pursued a policy of assimilating the Sami into the dominant Norwegian society. The idea was that all citizens should have the same rights as individuals, and thereby the same opportunities for asserting their needs. Because of their lack of organization, the Sami's demands were scarcely heard. Since W o r l d War I I , the Norwegian State's policy has changed. The State now regards i t as its responsibility to safeguard the Sami culture. I t has gradually been realised that formal equality is not enough, and that the Sami's special needs justify positive differential treatment for the Sami as a group. 3. The Sami's Demands The Sami debate today concerns far more than matters like the position of the Sami language in the school system: i t concerns the future of the entire Sami culture. Sami problems are being taken up in their full breadth, and the debate is just as much political as legal in character. Although the Sami may be divided on some issues, we can schematically group their demands and their current work for their rights into three areas: 1) Protection of the Sami culture. Here the work for improving the situation of the Sami language occupies a key position. 2) The Sami demand wider rights over land and water and better protection of existing rights, both in the Sami areas of Finnmark and in other parts of N o r w a y w i t h a Sami population. 3) The Sami are working to transform the advisory bodies which they have today into bodies for partial Sami self-government (internal autonomy). The most significant move by the authorities in recent times i n the work for Sami interests is the appointment of t w o public committees to report on central legal and cultural issues concerning the Sami as a group. 4. Committees to Report on the Status of the Sami O n 10 October 1980, the Government appointed the so-called Sami Rights Committee, and gave it a comprehensive mandate. 8 I n the first place, the Committee is to describe prevailing rights in so far as they have a bearing on 3 See N O U 1984:18, chap. 2.

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the Sami's rights to land and water, both in Finnmark and in other parts of the country. The Committee is also to present proposals for new legislation in this area. Thereafter, the Committee is to assess the desirability of a separate provision in the Constitution concerning the legal status of the Sami and submit any proposals i t may wish to make. The Committee is also to consider whether separate Sami census figures and a representative body for the Sami ought to be established and likewise submit any proposal for legislation i n this respect. The Committee's proposals shall take into account existing international law. The Committee has planned three separate reports. The first was submitted and published in June 1984,4 and takes up the question of a separate provision in the Constitution and representative bodies. On 17 October 1980 the Government also established the so-called Sami Culture Committee. This Committee's mandate states amongst other things that the Committee is to consider what can be done to promote Sami culture and possibly submit proposals for an Act regarding the Sami language. Its first report was submitted and published in June 1985. 5 The two committees have already done thorough pioneering work in a number of fields. Consequently, i t is natural for an article on the rights of the Sami in N o r w a y to dwell at some length on the work and proposals of the Committees. II. Protection of Culture: Language Protection and maintenance of the Sami culture is an important premise for the maintenance of sense of Sami identity. The Sami culture is varied; it may be a question of Sami livelihoods — old and new, handicrafts ( c c duodji *), forms of dramatic expression, costume traditions and pictorial art. The Sami language, however, is regarded as the mainstay of the Sami culture. Today there are three Sami dialects in N o r w a y : i f N o r d - s a m i s k w h i c h is most used and mainly spoken in the northern part of the country, " Lule-samisk" and " Sor-samisk" . We are going to consider the Sami language as an example of the legal status of the Sami culture today. 1. International

Law

There are international rules concerning both minorities and indigenous populations. The decision as to whether a group is a minority must be based on t w o criteria: how many members the population has, and whether the population has an internal group identity. 4 See N O U 1984:18. s See N O U 1985:14.

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I n most cases the indigenous populations are considered a group of minorities w i t h special features and needs. There is no general definition of indigenous populations, but usually the following features are stressed: the group must be decendents from an ethnic group which lived in the area i n question before another group moved in. The group must further have preserved cultural features which are distinct from the culture of the rest of the community. I n addition, the group has to be in a subordinate position towards those who are in control of the state. I t is also demanded that the group considers itself as an indigenous population, and wants to be treated as such. The Sami in N o r w a y are considered to be a minority. The Sami also consider themselves to be an indigenous population, but on this point the official Norwegian attitude is somewhat unclear. The indigenous populations may choose to invoke both the international rules providing protection to minorities and the rules providing protection to indigenous populations. However, recently there has been a debate i f it, in the long run, is desireable for the indigenous populations to invoke rules concerning both minorities and indigenous populations. Regarding the minorities, the United Nations ( U N ) Covenant on C i v i l and Political Rights of 1966 contains a provision which deals w i t h individuals as members of minority groups. This is Article (Art.) 27, and i t reads: In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or use their own language. The rights and freedoms conferred by the provision are primarily negative. I t is clear from the text that persons belonging to the minority are not to be hindered by the State in their cultural expression. However there is also the question of whether i t is not possible to infer from the provision a positive right for minorities to protection of their cultural practices. Is it possible to deduce a duty on the part of the states to practice positive discrimination in relation to the protected minorities? T o support such a position, it could be maintained that this provision must be interpreted in relation to need, i. e. that importance be attached to the minorities' actual needs in the interpretation. I n addition i t has been maintained that the many resolutions from w o r l d organisations i n which the right of minorities to positive discrimination is stressed,6 also tend to interpret A r t . 6 See for instance the Declaration of Principle and the Programs for action from the U N Conferences on Race Discrimination in Geneva 1978 and 1983. See, e. g., the resolutions generated as a result of the Decade for Action to Combat Racism and Racial Discrimination, initated on 10 December 1973 by the General Assembly. Cf. Yearbook of the United Nations 1973, 523.

Legal Status of the Sami

27 in this light. But what concrete Sami and other minorities? What w i l l be the duty of the State to perhaps to economy, to afford opportunity as the other members

167

rights w i l l such an interpretation accord the can be said w i t h some certainty is that i t arrange matters relating to legislation and the members of the minorities the same of the society to enjoy their culture.

When i t comes to indigenous populations, the key treaty to this effect for a long time has been the International Labour Organisation ( I L O ) Convention N o . 107 on protection and integration of indigenous and other tribal and semi-tribal populations in independent countries 7 w i t h the accompanying Recommendation N o . 104. I t is A r t . 23 (1) of the Convention which deals w i t h our subject, and i t reads: Children belonging to the populations concerned shall be taught to read and write in their mother tongue, or, where this is not practicable, in the language most commonly used by the group to which they belong. The Convention has not been ratified by N o r w a y , but there has been debate as to whether this ought to be done. 8 Recently there has been work going on to further improve the conditions of the indigenous populations. The W o r l d Council of Indigenous Populations, which is not satisfied w i t h the fact that the I L O Convention N o . 107 seeks to intergrate the indigenous populations into the dominant society, is at present working on a declaration and a convention concerning the indigenous populations. Further, we may mention that the I L O , due to the critisism of the indigenous organizations, is planning to revise the Convention N o . 107. The U N Working Group on Indigenous Populations is also working w i t h questions concerning the indigenous populations rights to land and water, their economic conditions and their autonomy. 2. Norwegian

Law

a) Sami in the Nine-Year Basic School aa) Legal Situation I n N o r w a y there are nine years of compulsory schooling. The main law in this area is the Basic School Act. 9 This act lays down one important principle for teaching in school: A l l pupils shall have the right to an education in accordance with their abilities and qualifications. 10 7 Adopted at ILO's 40th International Labour Conference 1957, in: Yearbook of the United Nations 1957, 426—432 (427—28). 8 See N O U 1980:53. » The Basic School Act of 13 June 1969, number (no.) 24. The Basic School Act, § 7 (1).

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For Sami children this should mean that the Sami language ought to play a major role in the school system, at least during their early school years. This applies, firstly, to Sami as a teaching language, i. e. the teacher's medium of instruction. Secondly, i t applies to Sami as a subject, i. e. the puplis should be taught Sami grammar, literature etc . We shall take a look at the Act's more detailed specification of the question of Sami in the basic nine-year school. The Basic School Act now states: During [their first six years in school],11 children in Sami districts have the right to receive instruction in the Sami language or to have the Sami language as a subject. The Ministry can make exceptions. As from the seventh grade the pupils themselves decide whether they want to have the Sami language as a subject. They can also choose Sami as their main language . . . Sami language may also be taught to pupils with a Sami background living outside the Sami districts if circumstances make it possible. The Ministry sets regulations regarding the number of pupils, and decides what can be regarded as a Sami district 12 . When the law says "Sami language", i t means the *Nord-samisk " dialect. The law distinguishes between what i t calls Sami districts and other districts. I n Sami districts the children, both Sami and non-Sami, have the right to receive instruction in the Sami language for the first six years of basic school. I t is the parents, in consultation w i t h the teacher, who decide i f the pupil shall receive instruction in Sami. The right to six years of instruction in Sami extends the earlier practice by which instruction was given in Sami for two years, and it is anticipated that i t w i l l take some years before the arrangement is fully developed in all schools in question. Outside the Sami districts the law gives no right to receive instruction in the Sami language. I t is up to the Ministry of Church and Education to decide what shall be considered a Sami district. The concept does not only include the traditional Sami territory on the Finnmark highlands, but also territories w i t h a lesser Sami population element. According to practice, areas w i t h even less than 50 °/o Sami-speakers have been accepted i f the areas feature a certain amount of Sami culture. The pupils in Sami districts have the right to study Sami as a subject. I n the first six years of basic school the decisions as to whether the pupil shall study Sami is made by the parents in consultation w i t h the teacher. I n the last three years of basic school the puplis make the decision themselves. The law also makes i t possible to have Sami as a subject outside the Sami districts, for 11

The relevant period: barnesteget ("the child stage") is defined in the Basic School Act, § 2. 12 The Basic School Act, § 40 (7) as amended on 14 June 1985.

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instance in Oslo. I t is demanded that the pupil must have a Sami background, but this does not mean that the pupil has to be a Sami. I t is sufficient that the pupil has lived in a Sami area for some time, and that the pupil w i l l probably benefit from having Sami as a subject. bb)

Proposals

I n June 1985 the Sami Culture Committee submitted its report 1 8 and proposed new regulations concerning the Sami language in school. The proposal applies in the first place to the "Nord-samisk" dialect, but it goes further than existing law in that Sami-speaking children shall have the right to receive instruction in the Sami language and to have the Sami language as a subject regardless of whether they live in a Sami district or not. I n areas where Sami is the dominant language, the proposal goes even further in proposing that i n these areas it shall not only be a right to have the Sami language as a subject, but also an obligation. This proposal applies to both Sami and non-Sami children. b) Public Administration and the Sami Language aa) Legal Situation The act concerning use of language in the public service lays down regulations concerning the official languages of the country. The law contains the following manifesto: "Bokmal" and wNynorsk " are languages of equal worth and shall have equal status as written languages in all State, county and municipal bodies . . , 1 4 Both Bokmal and Nynorsk are Norwegian languages. They are no more different from one another than two dialects, and are fully mutually comprehensible. Traditionally, Bokmal has been used in the towns, whilst Nynorsk is a language which derives from the dialects i n the districts. According to the law, Bokmal and Nynorsk have equal status as official written languages i n the sense that they can, and in some cases must, be used in public administration. The Sami language on the other hand, has no official role in N o r wegian administration today. Thus the authorities do not have any legal obligation to have a command of or to communicate w i t h citizens in Sami, and the Sami are in a similarly weak position w i t h reference to their authorities when they wish to use their own language. However, in the traditional Sami areas in Finnmark, the local authorities usually use Sami, and is See N O U 1985:14. 14 Act concerning use of language in public service of 11 April 1980, no. 5, § 1.

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some municipalities and local state authorities have engaged an interpreter to help the Sami-speaking inhabitants to communicate w i t h the authorities. But the local inhabitants have no statutory protection for the maintenance of this practice. bb). Proposals The Sami Culture Committee's report of 1985 also contains a proposal for a Sami Language Act. The proposal contains the following "main provision" : Sami and Norwegian are languages of equal worth and shall be given equal status as official languages according to the provisions of this Act. 1 5

Briefly, it is proposed that this principle be realised in the following manner: Firstly, municipal councils shall be able to decide that Sami shall be made the main language i n their internal administration. Individual Sami-speakers shall further always have the right to use Sami in communication w i t h the courts, police, health services and church, and key laws shall be translated into Sami. Secondly, the proposal contains wide-reaching regulations for the municipalities w i t h the highest percentage of Sami-speaking inhabitants in Finnmark and one municipality in Troms country. Here everybody shall have the right to use the Sami language in communication w i t h the local state, county and municipal administration, regardless of whether the local authorities have made a decision regarding the use of Sami or not. The proposal applies mainly to the "Nord-samisk " dialect. c) Other Factors of Significance for the Sami Language Amongst other factors of significance for the Sami language, one might mention the use of the Sami language in the Norwegian Broadcasting Corporation ( N R K ) and the use by public authorities of Sami place names in documents, records and maps. As regards the Sami language in the N R K , this is regulated by the board of the institution, pursuant to the Broadcasting A c t . 1 0 The board has not committed the N R K to using Sami in broadcasts on the national network, but a Sami district radio has been established which sends programs in the Sami language on the district network for about 50 minutes and for 5 minutes on the national network every day. This radio station is situated in Finnmark, and i t uses mainly the f C Nord-samisk " dialect. is See N O U 1985:14, 189. 16 Act on broadcasting of 10 June 1980, no. 36, § 6 (1).

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Today i t is fully possible to give properties a Sami name when registering them in public records. 17 Local Sami names are also used on maps. As a further step in the protection of Sami names, a public committee proposes 18 that the authorities themselves should take steps to record the traditional Sami names of properties, even if the actual owners do not wish to use these names. d) Proposal for Incorporating Provisions on Protection of the Sami Culture in the Constitution Certain parties in Sami politics have demanded a constitutional provision defining the Sami's legal status, whilst other Sami groups are doubtful as to whether such an enactment would have any sginificance at all. The question of whether the Constitution is the correct place for such a provision has also been raised. Some think that a provisoin like this should rather be given as part of the general legislation. However a majority of the Sami Rights Committee feels that it w i l l be significant for the Sami to have such an amendment to the Constitution made. The Committee chose Sami language and culture as the theme of the new clause. The Majority proposal reads: I t is incumbent upon the State authorities to make it possible for the Sami people to safeguard and develop their language, their culture and their social life.

Such a provision would not give any rights to the individual Sami or to any Sami group. But even though there is no sanction for non-fulfilment, i t would impose some legal obligations upon the State to conduct a policy which safeguards the Sami language, culture and social life. Concerning the Sami language, the Sami Rights Committee says that all the Sami dialects in the country w i l l be protected. As far as culture is concerned, the Committee says that this concept must be interpreted in its broadest sense, and that even the material basis of the Sami culture shall be protected. 19 III. The Right to Land and Water The demand that their right to land be recognized is one of the most v i t a l brought to bear by the indigenous peoples of the world. This question of the right to land was one of the very first legal problems raised by the encounter between the indigenous peoples and the colonialists, and recently this demand has held such a key position in the debate that for many it is synonymous w i t h the work for the protection of indigenous peoples. 20 17

Act on mapping, dividing and registering of land of 23 June 1978, no. 70, § 5 (3). Place names Committee, see N O U 1983:6. 19 See N O U 1984:18, item 10.8. 18

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1.

Eriksen

International

Law

W e h a v e a l r e a d y touched o n A r t . 2 7 o f the U N C o v e n a n t o n C i v i l

and

P o l i t i c a l R i g h t s . T h i s a r t i c l e m a y be used as a basis f o r r e q u i r i n g a c t i v e efforts o n the p a r t o f the State t o safeguard m i n o r i t y cultures. R e c e n t l y there has been a n o t h e r debate i n progress as t o h o w the concept o f " c u l t u r e " i n A r t . 27 is t o be understood. T h e question is w h e t h e r the purpose b e h i n d A r t . 27 is t o safeguard o n l y t h e i d e a l values o f a c u l t u r e , o r w h e t h e r i t also includes p r o t e c t i o n o f the m a t e r i a l basis f o r p r a c t i c i n g i t , f o r e x a m p l e means o f l i v e l i h o o d . Such an i n t e r p r e t a t i o n w o u l d be o f great significance t o the m i n o r i t i e s whose l i v e l i h o o d s are closely l i n k e d t o p a r t i c u l a r l a n d areas. T h e N o r w e g i a n S a m i R i g h t s C o m m i t t e e reviews the legal sources r e l a t i n g t o this area, a n d sums u p : When we attempt to determine whether the material basis for the culture of ethnic minorities is also protected by Art. 27, the legal sources present us with the following situation: There are no definite counter-arguments. There exist some arguments which are open, in the sense that they cannot be taken as evidence either for nor against this conclusion. Finally, there are arguments of varying weight which indicate such an interpretation. Consequently there are good reasons for interpreting the concept of "culture" so widely that the material basis of an ethnic minority's culture is also embraced by the provision. Livelihood-related and other economic factors ought then to be encompassed in as far as this is decisive in order for the group to be able to maintain and develop its own culture. 21 Decisive f o r w h e t h e r a p a r t i c u l a r basis o f l i v e l i h o o d s h o u l d be protected, a c c o r d i n g t o the S a m i R i g h t s C o m m i t t e e , is t h e e x t e n t t o w h i c h this basis o f l i v e l i h o o d is p a r t o f a n d a premise f o r the group's c u l t u r e . W h e t h e r this is the case w i l l v a r y a c c o r d i n g t o the t y p e o f m i n o r i t y g r o u p . W e cite again f r o m the r e p o r t o f the S a m i R i g h t s C o m m i t t e e : I t must be assumed that Art. 27 ought to be subjected to a differentiated interpretation, such that the individual ethnic minority can demand the material basis which is decisive for the cultural practice of this particular culture. The factors will vary with the different ethnic groups. Indigenous peoples are that category of ethnic groups which are particularly in need of protection for their livelihood-related cultural basis, because their culture has particular ties with a traditional form of exploitation of natural resources. 22 2

See, e.g., U N Doc. E/CN. 4/Sub. 2/1983/21/Add. 4 at chap. X V I I (land), Final Report, Study of the problem of discrimination against indigenous populations. 2 * N O U 1984:18, 283. 22 Ibid.

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Protection of the basis of livelihood of minorities is marginal to the core of A r t . 27, i. e. protection of the culture of minorities, and there is no practice from the U N Human Rights Committee on whether this article can be interpreted to protect the basis of livelihood of minorities. 23 The question of the scope and nature of the rights which might be inferred from A r t . 27 in this area is, consequently, largely unanswered today. The previously mentioned I L O Convention N o . 107 on indigenous populations1 which N o r w a y has, as stated, not ratified, takes up the question of the right to land and water in A r t . 11, which reads: The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized.

The article gives indigenous populations the right of ownership to their territories. Whether it shall be an individual or collective ownership w i l l be up to the states to decide, taking the traditional manner of ownership and the special features of the community of the groups into consideration. The condition for recognizing the ownership is that the indigenous population has "occupied" the land for a long time. I t is supposed that the control that a nomadic people, for instance the reindeer-breeding Sami, 24 has maintained, can be sufficent for recognition of ownership. 25

2. Norwegian

Law

There are several alternative legal bases on which a discussion of Sami rights in this aspect could be founded. This has led to a debate in N o r w a y as to which is the correct approach. Firstly, the Sami maintain that their use throughout the generations provides a basis for extensive rights. We shall come back to this basis at section I I I . 2. b. I n contrast to this view is the view of the authorities, which is largely the basis of existing law. According to this view, the Sami's rights are more or less exhaustively regulated in the legislation.

23 The latest annual report of the Human Rights Committee, adopted 26 July 1985 (General Assembly Official Records [GAOR], 40th session, Supplement no. 40), chap. IV, notes that the Committee has had several exchanges of views on a draft general comment concerning Art. 27, and will resume its consideration at a later stage. 24 The reindeer-breeding Sami is a group of Sami characterised by their livelihood which is reindeer-breeding. Today about 10°/o of the Sami population in Norway are connected to the reindeer-breeding livelihood. 2 ® See N O U 1980:53 for more details of ILO Convention No. 107.

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a) Recognized Rights over Land and Water Firstly, we may mention that there are some rules of Norwegian law which confer specific rights upon the local inhabitants. These include the right to pick berries, to hunt and fish, etc. 2* Sami as well as non-Sami inhabitants benefit from these rights. But most of the specific rules which bestow rights on Sami groups benefit the reindeer-breeding Sami. This group's interests are protected not only by positive rights, but also in that the State, out of consideration for these Sami, has placed restrictions on its disposal of the Finnmark highlands. One salient aspect of existing law is that the State is the civil-law owner of 96 °/o of the 48,000 k m 2 Finnmark county. This is taken as a basic premise of the Act concerning the state land in Fnnmark. 2 7 Paragraph 3 reads: As owner of unregistered land, the State is under no obligation to pay for or maintain fences along adjacent land (emphasis added).

Here it is taken for granted that the State is to be considered the owner of unregistered land, i. e. land which has not been taken under private ownership. The Act says further that the state can sell or lease unregistered land. But two interesting exceptions follow. The Act states: Excepted from sale are areas of land which: a) the Government considers necessary as pastureland for reindeer, b) are used, or are expected to be used as routes during the migrations of the nomadic Sami. 2 8

As we see, the State is prevented from making sales which cut off the Sami from access to the necessary pasture areas or migration routes in Finnmark. The possibility of the State leasing the land to others instead is also restricted by rules which put some kinds of leasing on an equal footing w i t h sales. The reindeer-breeding Sami are also granted positive rights to use of pastureland in Finnmark and other parts of N o r w a y , and they actualy have certain privilges under Norwegian law in that the right to breed reindeer in N o r w a y is virtually restricted to Sami. The central body of law on the subject is the Reindeer Husbandry A c t . 2 9 The Act lays down a two-track system. Reindeer husbandry can either proceed i n so-called "reindeer pasture areas" 30 or outside these areas 81. The 26 See The Act concerning state land in Finnmark of 12 March 1965, §§ 4, 5 and 5 a, and the Mountain Act of 6 June 1975, no. 31, §§ 23 and 28. 27 Act concerning state land in Finnmark of 12 March 1965. 28 Act concerning state land in Finnmark, § 2. 2 ® Reindeer Husbandry Act of 9 June 1978, no. 49. 30 Reindeer Husbandry Act, § § 2 and 3. 31 Reindeer Husbandry Act § 5.

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pasture areas have been established by the Ministry of Agriculture, and are divided into reindeer pasture districts. The Sami's privilege of breeding reindeer applies, pursuant to the Act, w i t h i n the reindeer pasture areas. I t is important in this connnection to note that almost the whole of Finnmark is divided up into two reindeer pasture areas, and that we find further four reindeer pasture areas i n the rest of the country. The Act further sets the conditions for practicing reindeer husbandry in the reindeer pasture areas: Only Norwegian citizens of Sami descent have the right to practice reindeer husbandary in reindeer pasture areas . . . 8 2 .

Hence, there are t w o basic conditions: firstly being a Norwegian citizen, and secondly being of Sami descent. For those who were not reindeer breeders when the law came into force, it is also required that they be connected to this livelihood by having parents, grandparents or a spouse who are reindeer breeders. I f these conditions are not satisfied, i t is up to the reindeer pasture area board (see section I V . 2. a.) to decide whether an applicant shall be allowed to start reindeer breeding. The Reindeer Husbandry Act also deals w i t h the effect of fulfilling these conditions by specifying various connected rights. The Act states in general: The right to run reindeer in reindeer pasture areas is a privilege which, without regard for who owns the land, and, as long as nothing else follows from special legal relationships, includes: 1. The right to be present with reindeer and to traffic, migration and migratory routes, 2. the right to pasture for reindeer, 3. the right to set up fixtures required for reindeer husbandry, 4. take firewood and other wood, 5. the right to hunting, trapping and fishing with the detailed content pursuant to the following paragraphs in this chapter . . , 3 3 .

We see that the rights embrace the basic rights to pastureland and traffic w i t h reindeer. The main element here is a right to the use of the highlands for pasture and calving land for reindeer. I n addition, the Sami are conceded other rights associated w i t h these first (see items 4 and 5). A l l in all, the Reindeer Husbandry Act authorizes a composite system of rights which together aim at providing an appropriate framework around reindeer husbandry as a livelihood. 32 Reindeer Husbandry Act § 3. 33 Reindeer Husbandry Act § 9.

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Decisive for the Sami's legal position is not only what rights they have, but also the protection these rights enjoy. H o w is the Sami's right to the land they use protected against other interests? I t is quite evident that, under Norwegian law, the Sami do not have any absolute protection against pastureland being made over to other interests. The question is whether this can be done free of compensation, or whether the Sami can claim compensation when they lose pastureland. The judge speaking for the majority of the Supreme Court in the so-called "Kappfjell Judgement" of 1975 expressed himself as follows: . . . I consider it sufficient to affirm that the Sami must be said to have a right to practice reindeer husbandry, and that this right is in principle protected, such that it is subject to compensation in the event of expropriations . . . 8 4 .

I t is thus fully possible for a Sami group to be considered liable to compensation when i t is deprived of pastureland. This was the case in the so-called "Altevann Judgement" of 1968, 35 whereby Sami were awarded compensation when the damming of a lake led to the loss of pastureland. But we also have examples of Sami being deprived of pastureland and not receiving compensation. One example of this is the "Kappfjell Judgement". Here pastureland was used for roads, installation of power lines, etc., and despite this the reindeer-breeding Sami received no compensation for loss of land, only for financial loss during the construction period. Whether an incursion into pastureland is liable to compensation or not must depend on how critical the incursion is. I f the incursion leads to reindeer husbandry becoming impossible, or seriously obstructs it, the incursion might be liable to compensation, whilst the Sami have had to resign themselves to incursions which are less critical for reindeer husbandry, without compensation for loss of pastureland. I t is evident that this practice w i l l have unfortunate consequences, since i t makes possible the piecemeal takeover of large parts of the Sami's land without compensation. b) The Sami's Claims to Land and Water Based on Ancient Use The Sami claim rights over land and water based on ancient use, both in Finnmark and in other parts of the country. The research on this subject has, however, been especially concentrated on the situation i n Finnmark. We w i l l , therefore, briefly sketch the historical and legal background and future possibilities for the demands of the Sami in this area. 36 84

Norsk Retstidende (Norwegian Law Reports) 1975, 1029. 35 Norsk Retstidende 1968, 429. 36 For further reference, see: Sverre Tannesen , Retten til jorden i Finnmark (The Right to Land in Finnmark), Oslo 1972.

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U n t i l the year 1700, Finnmark was divided into distinct zones. Furthest out on the fjords in the west was Norwegian territory. I t was there that churches, trading centres and legal institutions were to be found. Furthest up the fjords, on the highlands and in the eastern regions were the Sami's lands. Here the Sami's general conceptions of rights prevailed, and in particular the view that the right to land was collective, and held by the siida, i. e. Sami town. The area was thus viewed as Sami country both by the Sami and by the Norwegian administration. During the eighteenth and nineteenth centuries, the natural resources declined while reindeer breeding had become common. I n this way the Sami became dependent on larger areas than the community had previously occupied, and this contributed to eliminating the boundaries between the individual siidas , and between the Sami's lands and the Norwegian areas. Because of the decline in w o r l d trade, there was a decline in commerce and industry in Finnmark, which were heavily dependent on export of fish. The State had to step in and adjust matters for the good of commerce and industry and the local population. Amongst other things, steps were taken to allocate life-long rights to use of land. Later came actual sale of land instead, as an incentive to expanding agriculture. Although i t was the State as regulating authority one encountered here, the idea that the State regulated by virtue of its right of ownership crept in. Although the view of the State as owner was in conflict w i t h the original line of thought, at least in the Sami villages in Finnmark, the conception of the State as owner of the land became more and more fixed. As this description shows, the official view must however be based on an assumed transfer of ownership. The Sami Council of Finnmark (a precursor of the Norwegian Sami Council, see section I V . 2. a.) expressed the following Sami views on the issue in 1956: The Sami are fully convinced that the highlands, peninsulas and islands along the coast which they have had the right to use in time immemorial, have not been ownerless property, but belonged to the Sami. The social group in the Sami community has regarded itself as having sole right to these areas by virtue of the right of ancient use because the Sami have been the main users of and to some extent inhabited these areas from the earliest times up to the present. This right of use is not restricted to Sami who breed reindeer, but extends to those Sami who throughout the ages have derived a living from these areas through hunting, fishing and keeping cattle.

As we see, the Sami have always held to the view that they have more extensive rights to the highlands than those which follow from the written law. Today the authorities are also beginning to change their view on the

12

G Y I L

28

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d o c t r i n e o f the State's rights. Professor a n d legal h i s t o r i a n Gudmund

Sandvik

p u t i t l i k e this at a seminar o n Sami rights i n T r o m s o i n 1979: § 3 of the Act concerning the State's unregistered land in Finnmark of 12 March 1965 reads: "As owner of unregistered land, the State has no obligation to pay for or maintain fences along adjacent land." I n the so-called Varfjell i Stifjell Judgement of 6 April 1979, one premise used by the Supreme Court was that in Finnmark County there are "somewhat unclear rules concerning the extent of the State's right to unregistered land". One does not have to be a lawyer to note the difference between these two statements. I n 1965 there was no doubt: The State's unregistered land was not merely an ordinary genitive. I n the context cited it was specified that the State is the owner of unregistered land. . . . I n 1979 the Supreme Court did not use this expression in any part of the judgment. The Supreme Court distinguished: There is unregistered land in Finnmark. The rules concerning the extent of the State's right to this land are somewhat unclear. 37 I t is accepted i n p r i n c i p l e t h a t use can p r o v i d e a basis f o r rights, also those p e r t a i n i n g t o the Sami's use. W h a t , then, are the possibilities f o r the Sami's v i e w w i n n i n g through in N o r w e g i a n law? I t is Professor Tennesen

w h o has dealt most t h o r o u g h l y w i t h these questions

i n N o r w a y . H e v i e w s the possibilities o f the Sami's demands w i n n i n g t h r o u g h i n a legal a c t i o n as f o l l o w s : I f one could be recognized as the owner, one would prefer also to assume full legal title to the part of the land in question. But one does not necessarily need to go so far. I t is conceivable that as a second choice one might accept that the state continues to retain the right of disposal, until such time as a new law might change this situation; but that one is recognized as the owner at least in the sense that one has the right to the owner's position concerning "remaining rights". Thereby one gains property rights pursuant to the mining legislation and the right to the value of expropriated waterfall rights, etc . I n my view, proceedings can at present only be based on the second conception. 38 c)

Proposals

T h e S a m i rights C o m m i t t e e has n o t i n c l u d e d proposals as t o h o w o w n e r s h i p o n the F i n n m a r k h i g h l a n d s o u g h t t o be o r g a n i z e d i n its first

report,

and

n o t h i n g r e l a t i n g t o this aspect can be i n f e r r e d f r o m its p r o p o s a l t o a m e n d the Constitution. Since the C o m m i t t e e w i l l o n l y s u b m i t proposals f o r legislation concerning the r i g h t t o l a n d i n the n e x t t w o reports, the s i t u a t i o n t o d a y is t h a t w e c a n n o t 37 See Samer — urbefolkning og minoritet (The Sami — Indigenous People and Minority), ed. by Trond Thuen , Oslo 1980.

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say very much about this key issue. The Sami Rights Committee is working on the matter at present, but it is unknown when their next report w i l l be available. IV. Self-Determination and Influence on Decisions 1. International

Law

The right of peoples to self-determination is recognized in several legally binding U N documents. Amongst them are the U N Charter 3 9 and the identical A r t . 1 of the U N Covenant on Social, Economic an Cultural Rights and of the U N Covenant on C i v i l and Political Rights, both of 1966. A r t . 1, paragraph 1 of each of the Covenants of 1966 states: A l l peoples have the right of self-determination. By virtue of this right they freely determine their political status and freely determine their own economic, social and cultural development. There is consequently no doubt that peoples have a right to self-determination in this sense, and this means amongst other things the right to external independence as a separate state (sovereignty, possibly via secession from another state). But the important question concerns the concept of a "people". Does this apply only to established states and populations of colonized areas, or does it also apply to minorities w i t h i n a state? The League of Nations worked for the right of self-determination for minorities. This view, that minorities should have the right of self-determination, fell heavily into disrepute after W o r l d War I I , however. During the work on the U N instruments mentioned, statements were made which went strongly against any interpretation of the concept "peoples" so as to include minorities, and thereby conferring on them the right to self-determination in the sense defined. The fact that A r t . 1 does not give minorities any right of self-determination is also assumed in the theory of human rights. I n a recently published book, Antonio Cassese says of the U N Covenants: The Covenant as a whole, however, and especially the views commonly expressed during its preparation, compel the conclusion that the Covenant does not recognize the rights of "minorities" to self-determination. 40 38 N O U 1978:18 a. 39 See Article 1, Section 2, and Article 55 of the Charter of the United Nations. 40 Antonio Cassese, The Self-Determination of Peoples, in: Louis Henkin (ed.), The International Bill of Rights. The Covenant on Civil and Political Rights, New York 1981, 92—113 (96).

12*

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Hâko

Eriksen

A r t . 27 of the Covenant on C i v i l and Political Rights deals w i t h minorities, however. As we have already seen, i t has been maintained that the article ought to be interpreted in a broad sense on the basis of a knowledge of the needs of minorities. This may indeed also be of importance when i t comes to the right of self-government. Even though i t is clear that it lies beyond the scope of the article to establish full right of self-determination, one can raise the question whether minorities can demand internal autonomy in certain spheres, on the basis of A r t . 27. The question is whether the minorities w i t h i n the bounds of existing states can demand to be allowed to decide for themselves on certain matters which affect them, especially as regards culture, religion and language. For the same reason as mentioned above (section I I I . 1.), we must leave it to future practice to formulate in more detail what concrete rights A r t . 27 w i l l establish. 2. Norwegian

Law

The Sami in N o r w a y as a group do not have rights of self-government today. I t is more correct to raise the question of the extent to which the Sami have the possibility of influencing decisions in questions which concern them. a) Legal Situation The Sami have a rich private organizational life today. There are Sami professional and industrial bodies for many purposes. The most important are the Sami Reindeer Herders' Association in N o r w a y ( N R L ) , the National Association of Norwegian Sami (NSR) and the Sami's National Association (SLF). Many of the organizations operate on both a Norwegian and a Nordic basis. The members are largely Sami and Sami organizations, but most of the organizations are also open to other interested parties. The purpose of the organizations is, of course, to work to strengthen the position of the Sami in their particular area. The most important way i n which many of the organizations promote this task is by being represented in official councils and committees. This applies especially to the big organizations, e. g. NSR, N R L and SLF. H o w effective is this means of supporting Sami demands and opinions? Even though being included in a council does not always mean that one gains support for one's views, i t at least offers one a chance to present them. I n this way, the authorities are made aware of what the Sami groups feel about the matter, and often the Sami's own view w i l l in fact be accorded considerable weight. O n the other hand, this arrangement is evidently inadequate for promoting the Sami's cause. I t is necessary that the Sami be heard in this

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manner, but not sufficient to safeguard the Sami culture and ways of livelihood. I n addition to the private organizations, many public bodies of various kinds are working on matters which affect the Sami. We shall look here at some public bodies characterized by the fact that they are appointed by the Government upon the suggestion of Sami organizations, or by the authorities, alone, and that they have a considerable or predominantly Sami representation. Their job may be to function as advisory, reporting or proposing bodies. A n d as we shall see, they also have a limited degree of administrative authority. The Norwegian Sami Council is the one of these public bodies which is closest in pursuit of these goals. The Council has 18 members appointed by the Government. 41 I t is required of the members that they are professionally and culturally associated w i t h Sami commercial, industrial and social life. The Norwegian Sami Council, in its present form, is the result o f a long process of development starting back in 1953. Its tasks today include being an advisory organ for State, county and municipal authorities. These authorities are under no obligation, but are strongly recommended to present important "Sami affairs" to the Council. The Council can also itself take the initiative to bring matters before the public authorities, and make independent statements. But the Norwegian Sami Council alto has other tasks. The Ministry of Local Government and Labour has imposed upon the Norwegian Sami Council the task of administrating public funds w i t h i n specified frameworks. This applies first and foremost to financial subsidies awarded to Sami commercial and industrial bodies and Sami handicrafts ("duodji *). A n amount of N O K 2,930,000 has been budgeted for the Norwegian Sami Council to distribute amongst these purposes in 1986. We see here that a body consisting very largely of Sami has been given influence and to some extent administrative authority. The Norwegian Sami Council is the most important link today between the Sami population and the authorities. I t has been maintained that the reindeer breeders are a privileged group of Sami, also in the matter of self-determination. I n the context of livelihoods, the reindeer-breeding Sami to a large extent have the possibility of influencing decisions. For research, administrative and consulting activities in connection w i t h reindeer husbandry, a number of specialized bodies have been established. 41

The Norwegian Sami Council is appointed after suggestions from Sami organisations, other professional and industrial organisations, municipalities and county municipalities. The representatives do not have to be Sami, but more than 9 0 % of the representatives are Sami.

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Some of these bodies have a majority of Sami representatives. We shall take a closer look at the bodies established according to the Reindeer Husbandry Act.42 The bodies have a hierarchical structure w i t h the Board of Reindeer Husbandry at the top. Below we find the area boards, one for each reindeer pasture area, and below these again we have local committees of representatives w i t h district chairmen for each reindeer pasture district. The Board of Reindeer Husbandry is appointed by the Ministry of Agriculture. The body has seven representatives, whereof three are Samis. Its competence covers all areas in the country where reindeer breeding is taking place. The Board of Reindeer Husbandry is a consultative body for the Ministry of Agriculture in reindeer husbandry matters, i t has some administrative powers and power to decide in some matters. For instance, it fixes the boundaries of the reindeer pasture areas and sets the maximum number of reindeer in each pasture district. Each area board has seven representatives, the Samis being in the majority. The competence of the area board is limited to the reindeer pasture area in question. Among other duties the area board shall regulate the number of reindeer husbandry units in each reindeer pasture district, and regulate the number of reindeer in each unit. I n some cases i t also decides whether an applicant shall be allowed to start w i t h reindeer breeding. A t present there are about 70 local committees of representatives w i t h district chairmen. The representatives of the body are elected from and by the active reindeer breeding Samis in the district. The committee of representatives shall act on behalf of the reindeer pasture district, and can reach agreements, sue and be sued as representative for the district. Further, the committee of representatives shall maintain a list of the district's reindeer owners and number of reindeer, and see to i t that reindeer husbandry proceeds according to the law. b) Proposals for Regulations for Self-Government The assessment of whether a Sami representative body ought to be established, and election of such a body, is one of the central points in the mandate of the Sami Rights Committee. The Committee has carried out its discussion on a broad basis, and has assembled its conclusions in the " D r a f t for an Act concerning a Sami assembly and other Sami rights (the Sami A c t ) " . 4 3 The proposal says of the purpose of the A c t : 42

Reindeer Husbandry Act, §§ 6, 7 and 8, and implementing regulations. 43 N O U 1984:18, chap. 11.

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The purpose of the Act is to make it possible for the Sami people in Norway to safeguard and develop their language, their culture and their community life. The key provision of the proposed A c t is § 1 (3). I t reads: The Sami people in Norway shall have a separate, country-wide Sami assembly, elected from and by the Sami. It may also be required that separate Sami councils be established in counties and municipalities pursuant to the provisions of this Act. The Committee did not reach agreement on the number of members this Sami assembly should have, nor the number of constituencies there ought to be. I t is proposed that there be 12 to 14 constituencies w i t h three representatives from each. According to the proposal of the Committee, this so-called Sami Parliament shall work in the same areas as the Norwegian Sami Council. However, the system of representation is probably the most important feature of the proposal. The Committee writes in its report: One of the main aims of the potential reforms is that the members of the central body shall be elected in a manner which will make them more representative of the Sami groups they stem from than the members of the Norwegian Sami Council can be said to be today. 44 The desire for more true representativeness raises the question of how election to the Sami Parliament should proceed. Should i t proceed as direct elections based on a Sami population census which w i l l be established in every electoral district, or should i t proceed through indirect election, where special Sami electors appointed by the local authorities elect the representatives for the district? The Committee has weighed the pros and cons of a Sami population census, which they feel w i l l have both positive and negative consequences. The result was that the Committee split into three and presented three different proposals. Eight members propose that direct elections be held. Five members propose that an indirect method of election be employed. The remaining five members propose that the Sami populatoin themselves should determine the form of election through their support of the Sami population census. The members thereby open the way for both alternatives, and we quote from their proposal: Election to the Sami Parliament ought to proceed through direct election in those electoral districts in which at least two hundred names are registered in the Sami population census on the thirtieth of April in the election year. In other districts election should proceed through indirect election.45 44

See N O U 1984:18, 32. « See N O U 1984:18, item 15.2.

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Hâko Eriksen

I n general i t must be said that there is still some w o r k to do before any draft legislation about the Sami Parliament is ready. But i f such an act is passed, i t w i l l mean an important step in the right direction for the Sami people in N o r w a y , perhaps not so much because of the competence i t w i l l confer as because of the manner of election. Election on these premisses w i l l give the Sami a representative organ in a manner quite different from previously. I n the first place i t w i l l give them a firmer grip i n directing the Sami's life situation and in the second place it w i l l have great symbolic unifying value. But the Sami Rights Committee also points out the unfortunate consequences of basing election on a Sami population census. The question of whether individuals should allow themselves to be listed in the population census may create personal identity conflicts and expose the individual's position in Sami politics. Such an arrangements could also draw invisible, but observable divisions through a village community. V . Final Remarks The legal status of the Sami is a field in which much is happening in N o r w a y today. N e w legal material appears constantly in the form of judgements, research, public studies and reports. N o r w a y is the country in the w o r l d which has the most Sami inhabitants. This gives us a special responsibility to the Sami population and to the rest of the world. Our choices w i l l set precedents for emulation in similar cases in the other countries w i t h Sami citizens. Norwegian legislation does not fully safeguard the Samis needs, but today it is possible that this situation w i l l change. The two public committees at work can serve as an example of this. Even though a report is no guarantee that an improvement w i l l really be made, i t could strengthen the Sami's position even i f only some of the proposals are adopted. As regards future Norwegian Sami policy, a number of statements from public authorities emphasize their positive attitude and responsibility for the situation of the Sami. As the Sami's case gains the attention of a greater and greater sector of the Norwegian population, it w i l l also be more difficult for the authorities to retreat from such statements. We shall conclude this article by casting a glance ahead. I n August 1982, when the Prime Minister was interviewed by the Sami Radio, he replied as follows when asked whether he viewed the future of the Sami positively: Yes, I think there must be grounds for doing so. I t is generally agreed that this is an ethnic minority which has the right to support. And with the support one is in the position to provide, and with the Sami's own efforts, which will always be decisive in the final instance, there should be every possible

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reason for looking at this very optimistically. It is clear that both the Sami culture and the Sami language are subject to the laws of change, like every other culture, every other language, but I think there is every possible reason to both hope and believe that we shall be able to preserve something distinctive. 46

4β N O U 1985:18, 350.

Neue australische Verfassungsrechtsprechung zur Rassendiskriminierung von Wilhelm Wengler Der Beitritt Australiens zum Internationalen Übereinkommen zur Beseitigung jeder Form von Rassendiskriminierung vom 7. 3. 1966 und das zur Durchführung erlassene Bundesgesetz von 1975 sind Anlaß zu einer Anzahl wichtiger Verfahren vor dem Obersten Bundesgericht ( H i g h Court) geworden. Die dabei erörterten völkerrechtlichen und verfassungsrechtlichen Fragen dürften auch für die Juristen in der Bundesrepublik Deutschland von erheblichem Interesse sein. Über die Entscheidung im Koowarta-Fall, welche die Zuständigkeit des Bundesgesetzgebers zum Erlaß von Bundesgesetzen zur Durchführung des völkerrechtlichen Abkommens aus der external-affairs-Klausel der australischen Verfassung herleitete, auch wenn die Materie sonst nicht in dem Katalog der konkurrierenden Bundeszuständigkeiten enthalten ist, wurde bereits in diesem Jahrbuch berichtet 1 . M i t der Bekämpfung der rassischen Diskrimination hat sich aber nicht nur der Bundesgesetzgeber befaßt, sondern audi mehrere australische Gliedstaaten haben ihrerseits in den 70er Jahren Gesetze gegen die Rassendiskrimination aufgrund ihrer normalen Restzuständigkeit zur Gesetzgebung (See. 107 der Verfassung) erlassen. So kam es dazu, daß diskriminierende Akte sowohl vom Bundesgesetz als auch von einem Neusüdwales-Gesetz erfaßt und Verfahren in derselben Sache durch Bundesbehörden und Neusüdwales-Behörden betrieben wurden. 1981 entschied der H i g h Court in Viskauskasvs. Niland, 47 Australian Law Reports (ALR) 32, einhellig, daß das Bundesgesetz nach Sinn und Zweck eine abschließende und für ganz Australien einheitliche Regelung der Maßnahmen gegen rassische Diskriminierung sein soll, und Gliedstaatsgesetze zu demselben Zweck nach A r t . 109 2 der australischen Verfassung ungültig seien. Wenige Wochen nach dieser Entscheidung trat jedoch eine Änderung des Bundesgesetzes in Kraft, mit welcher der Bundesgesetzgeber erklärte, das 1 Wilhelm Wengler, Der Begriff der auswärtigen Angelegenheiten im bundesstaatlichen Verfassungsrecht, in: German Yearbook of International Law 25 (1982), 490—497. 2 „When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid."

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Bundesgesetz sei so zu verstehen, daß es niemals die Geltung von Gliedstaatsgesetzen ausgeschlossen habe, welche die Ziele der Konvention von 1966 fördern und neben dem Bundesgesetz wirksam sein könnten. See. 6 A bestimmt: „This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently w i t h this Act." Nach dem Inkrafttreten des Änderungsgesetzes stellte die zuständige Neusüdwales-Behörde eine vorher begangene Verletzung des Neusüdwales-Antidiscrimination Act von 1977 fest; einem Ägypter, der an der Wollongong University studierte, war eine zunächst bewilligte post graduate scholarship entzogen worden; er behauptete, die Entziehung verstoße gegen sec. 50 des Neusüdwales-Gesetzes, wonach eine unzulässige rassische Diskriminierung auch dann vorliegt, wenn jemand nur deshalb benachteiligt worden ist, weil er das Vorliegen einer solchen Diskrimination behauptet, oder gar deswegen ein Verfahren anhängig gemacht hat. I m Rechtsmittel verfahren gegen die zu Gunsten des Klägers ergangene Entscheidung wurde dem H i g h Court die Frage vorgelegt, ob die von dem Änderungsgesetz für das Bundesgesetz vorgesehene Rückwirkung die Durchführung des Verfahrens unter dem gliedstaatlichen Gesetz ermögliche. Dies wurde mit 4 gegen 3 Stimmen vom H i g h Court verneint. 3 Die Richter der Mehrheit argumentierten: Das Neusüdwales-Gesetz sei zunächst einmal aufgrund A r t . 109 der Verfassung, wie i m Viskauskas-Fall festgestellt, gänzlich ungültig gewesen. Die Verfassung selbst ermögliche zwar dem Bundesgesetzgeber, den abschließenden Charakter des Bundesgesetzes aufzuheben, und es bestünden auch keine Bedenken, daß einer solchen A u f hebung rückwirkende K r a f t verliehen würde. Die Verfassung ermächtige aber den Gesetzgeber nicht, die zunächst einmal kraft der Verfassung eingetretene Ungültigkeit des gliedstaatlichen Gesetzes für die Zeit bis zum Inkrafttreten des Änderungsgesetzes zu beseitigen. Die aufgrund des zeitweise ungültigen Gesetzes eingeleiteten Verfahren seien unzulässig und die bereits ergangene Entscheidung sei nichtig. Wie der Richter Murphy ausdrücklich ausführt, wäre es aber möglich, daß auch der Gesetzgeber von Neusüdwales durch ein neues Gesetz seinem A n t i Discrimination Act für die Vergangenheit Gültigkeit verschafft hätte. Murphy rät allerdings dazu, eine solche Gesetzesänderung zu unterlassen und dem Opfer der verfassungsrechtlichen Komplikationen in dem konkreten Fall im Verwaltungswege zu helfen 83 , weil ein neues Gesetz „the potential for further lengthy constitutional litigation" hätte. 3 University v. Metwally , 56 ALR 1. Das scheint aber nicht geschehen zu sein, denn 1985 scheiterte ein Versuch des Ägypters, die Sache mit neuen Argumenten nochmals vor den High Court zu bringen, vgl. 60 ALR 68. 3a

188

Wilhelm Wengler

Die Gefahr, daß es bei einer Rückwirkung des gliedstaatlichen Gesetzes sogar zu einer rückwirkenden Bestrafung kommen könnte, w i r d von einigen Richtern gesehen,4 wäre aber in dem betreffenden Fall nicht aktuell geworden. V o n den Richtern der Minderheit w i r d darauf hingewiesen, daß die Ungültigkeit eines gliedstaatlichen Gesetzes nach sec. 109 der Verfassung während der Geltung eines damit unvereinbaren Bundesgesetzes nach ständiger Rechtsprechung nicht hindere, daß das Gliedstaatsgesetz automatisch wieder wirksam wird, wenn das Bundesgesetz außer K r a f t tritt. Dann wäre aber wohl auch an einen implizierten Rückwirkungswillen des gliedstaatlichen Gesetzes für den Fall zu denken, daß das hinderliche Bundesgesetz m i t Rückwirkung beseitigt wird. Problematisch bleibt, ob der abschließende Charakter des Bundesgesetzes für eine bestimmte Frage, wenn er sich durch objektive Interpretation des Gesetzesinhalts ergibt, — und dies vom Bundesgesetzgeber dadurch anerkannt wird, daß er die Beseitigung des abschließenden Charakters in eine Fiktion kleidet — Gegenstand einer willkürlichen Regelung sein kann, so daß dem Gesetz einfach durch eine entsprechende Anordnung des Bundesgesetzgebers der abschließende Charakter genommen oder gegeben werden kann. Ordnen Bundesgesetze und gliedstaatliche Gesetze evident Widersprüchliches an, so ist die Bestimmung des gliedstaatlichen Gesetzes nicht einfach deshalb gültig, weil der Bundesgesetzgeber erklärt, seine Regelung solle keine abschließende Regelung sein. Die Problematik würde dann vermieden, wenn die Verfassung bestimmen würde, daß der abschließende Charakter einer bundesgesetzlichen Regelung stets von Anfang an, und dann endgültig, in einer Klausel des Bundesgesetzes ausgedrückt werden muß. Daß das Bundesgesetz gegen rassische Diskriminierung audi schon vor der Änderung gewisse Durchbrechungen durch gliedstaatliche Gesetze erlaubte, w i r d in einer weiteren Entscheidung des H i g h Court in Gerhardy vs. Brown, 57 A L R 472, geklärt. H i e r ging es um folgendes: Der Gliedstaat Südaustralien hatte 1981 im Pitjantjatjara Land Rights Act 1 0 % des Staatsgebietes einem Eingeborenenstamm mit 2000 Angehörigen als unveräußerliches Lebensgebiet zugewiesen. Dabei wurde u. a. bestimmt, daß andere Personen als die Stammesangehörigen nur mit schriftlicher Genehmigung eines bestimmten Stammesorgans das Gebiet betreten dürfen, von gewissen i m Gesetz genannten Ausnahmen abgesehen; unerlaubtes Betreten war unter Strafe gestellt. I n einem diesbezüglichen Strafverfahren — das übrigens nicht einen Weißen, sondern einen nicht dem Stamm angehörigen anderen Ureinwohner Australiens betraf — wurde die Frage der verfassungsrechtlichen Zulässigkeit des südaustralischen Gesetzes angesichts des Bundesgesetzes vor den H i g h Court gebracht. 4

Für Australien ist das in der UN-Konvention betreffend bürgerliche und politische Rechte vom 19.12. 1966 enthaltene Verbot rückwirkender Bestrafung völkerrechtlich verbindlich, aber nicht Bestandteil einer bundesgesetzlichen Regelung geworden.

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Die Richter stellen fest, daß die Genehmigungsbedürftigkeit des Zutritts für Nichtstammesangehörige entweder gegen sec. 9 oder gegen sec. 10 des Bundesgesetzes verstoße, wobei sie sich aber nicht einig sind, auf welche Bestimmung es ankommt. Man stellt übereinstimmend fest, daß das gliedstaatliche Gesetz mit seiner Bestimmung über die Genehmigungsbedürftigkeit ja auch jeden einzelnen Stammesangehörigen daran hindere, andere Personen ohne Genehmigung jenes Stammesorgans zu Besuch zu empfangen. Einige Richter meinen, sec. 10 des Bundesgesetzes korrigiere diskriminierende gesetzliche Bestimmungen selbst, indem es bestimmt: If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Die anderen Richter sind der Auffassung, die Verfassung verschaffe dem Bundesgesetzgeber nicht die Befugnis, Vorschriften eines gliedstaatlichen Gesetzes zu korrigieren. D a aber sec. 9 des Bundesgesetzes5 Beschränkungen des Grundrechts auf Bewegungsfreiheit gegenüber Angehörigen einer bestimmten rassischen Gruppe generell mißbillige, erfasse dies nicht nur diesbezügliche Akte von Privatpersonen oder Verwaltungsbehörden, sondern auch gesetzliche Maßnahmen. / . Brennan resümiert seine vorangegangene langwierige Interpretation des Bundesgesetzes wie folgt: Section 9 (1) . . . prohibits all acts involving a distinction, exclusion, restriction or preference based on race that denies formal equality before the law . . . And so, an act done in performance of a duty imposed by a State law which involves a distinction based on race that denies formal equality falls within sec. 9 (1). Such an act must be held to be unlawful and the State law that purports to command the doing of the act is invalid unless it satisfies the description of a special measure.

Hier spielte es offenbar eine erhebliche Rolle, daß man ja sonst auch eine beschränkte Zugänglichkeit eines für Weiße reservierten Gebietes, wie sie das Ziel der südafrikanischen Apartheid-Gesetzgebung ist, für zulässig halten müßte. Unter den z. T. sehr ausführlichen Erwägungen der einzelnen Richter zum Begriff der Diskrimination sei hervorgehoben, daß / . Wilson es ablehnt, 5 „It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

190

Wilhelm Wengler

der von den Vertretern der südaustralischen Regierung (im Gegensatz zur Ansicht der Bundesvertreter) geäußerten Ansicht zu folgen, die Konvention verbiete nur „willkürliche, auf N e i d beruhende oder ungerechtfertigte" Differenzierungen anhand der Rassenzugehörigkeit. Die Rettung der oben erwähnten Bestimmung des südaustralischen Gesetzes w i r d indes bewerkstelligt über sec. 8 (1) des Bundesgesetzes, welche wie folgt lautet: „This Part does not apply to, or in relation to the application of, special measures to which Paragraph 4 of Article 1 of the Convention applies . . . " Sec. 1 (4) der Konvention, auf die Bezug genommen wird, lautet ihrerseits: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. Spezielle Maßnahmen im Sinne der oben erwähnten Bestimmungen können auch von Gliedstaaten getroffen werden. Thus the statement in Viskauskas v. Νiland, . . . that the Commonwealth Act was intended as a complete statement of the law for Australia relating to racial discrimination must, in the present context, be qualified by the observation that it was not intended to preclude the taking of special measures within the meaning of sec. 8 (1) of the Act by the States as well as the Commonwealth.

Während einzelne Richter des H i g h Court ohne weiteres annehmen, das fragliche südaustralische Gesetz falle unter sec. 1 (4) der Konvention, stellen sich andere die naheliegende Frage, inwiefern denn die Abschließung eines Stammes von Kontakten nach außen dazu führen könne, daß die derzeit gegebene Rückständigkeit gegenüber dem, was sonst i m Land gilt, im Laufe der Zeit aufgehoben werden könne. Das führt zu interessanten Erwägungen über die richterliche Kontrolle der Zielgeeignetheit eines Gesetzes, also einer Frage, die auch in der Rechtsprechung des Bundesverfassungsgerichts schon eine Rolle gespielt hat. /. Deane zieht sich wie folgt aus der Affäre: The facts in the present case illustrate that, under sec. 19, not even a group of elders of the Pitjantjatjara people is entitled to invite a non-Pitjantjatjara, be he Aboriginal or not, upon the lands. One is left to speculate about the danger that, particular for the female and the weak, the difference between separate development and segregation might become more theoretical than real . . . I f the matter were solely for my decision, I would incline to the view that the case should be

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remitted to the learned special magistrate to allow the factual material to be supplemented. Sitting as a member of the Full Court, however, I feel it encumbent upon me to deal with the matter on the material presently before the court, inadequate though I consider that material to be. I f the relevant question were whether it had been shown that the rigid formality of sec. 19 of the State Act is necessary to achieve a purpose of the kind referred to in Art. 1 (4) of the Convention, I would be of the view that it had not been shown that it was. As has been seen, however, a finding that a provision was "taken" for a "sole purpose" of that kind will not be precluded unless it appears that the provision is not capable of being reasonably considered to be appropriate and adapted to achieving that purpose. Approaching the matter on that basis, the conclusion to which I have, on balance, come is that the provisions of sec. 19 of the State Act should be accepted as constituting part of the "special measures" of the kind referred to in Art. 1 (4) of the Convention and as therefore enjoying the protection of sec. 8 (1) of the Commonwealth Act.

/. Brennan meint: Whether a measure is needed and is likely to alter the circumstances affecting a disadvantaged racial group in such a way that they will be able to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of society equally with others if they wish to do so is, at least in some respects, a political question. A court is ill-equipped to answer a political question.

Unter Bezugnahme auf Äußerungen seines Namensvetters i m US Supreme Court in der Sache Baker vs. Carr, 369 US 186, w i l l / . Brennan die Prüfung des Gerichts auf die Frage beschränken, could the political assessment inherent in the measure reasonably be made? I f the political assessment could not have been made reasonably, the measure does not bear the character of a special measure and the court must so hold . . . The court does not have to decide a political question; at most it must decide the limits within which a political assessment might reasonably be made. To determine the matter, it is necessary to apply any relevant legal criteria, for example, that the wishes of the beneficiaries for the measure are of great importance in satisfying the element of advancement. I t is also necessary to find, as matters of fact, the circumstances affecting the racial group and the effect which the special measure is likely to have on those circumstances . . . The court must ascertain the statutory facts "as best it can" and it is difficult and undesirable to impose an a priori restraint on the performance of that duty. I n the present case, although no evidence was tendered by either party as to the statutory facts, the Working Party Report and the ministerial speeches in the Parliament were produced to the court, and the court may inform itself from those sources. Moreover, the courts of this country are familar with the existence of traditional Aboriginal affiliations with, and responsibilities in respect of, land . . . There is sufficient material from which the statutory facts required to decide the present case can be ascertained . . . The Working Party's Report . . . shows that the Working Party believed that the Pitjantjatjaras needed protection of the

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kind given them by the Land Rights Act. The known facts are reasonably capable of supporting that assessment.

Der schon i m Koowarta- Fall so heftig umstrittene Gedanke, m i t H i l f e der external affairs-Klausel dem Bundesgesetzgeber die Möglichkeit zu geben, irgendwelche Materien, die sonst der konkurrierenden Gesetzgebung des Bundes nicht zugänglich gewesen wären, zum Gegenstand einer vorrangigen Regelung des Bundesgesetzes zu machen, macht sich erneut bemerkbar, als in Kirmani v. Captain Cook Cruises Pty Ltd., 58 A L R 29, die Frage erörtert — und i m Ergebnis mehrheitlich bejaht — wurde, ob eine Haftungsbeschränkung des Schiffseigentümers, die ursprünglich in einem auf Australien erstreckten Gesetz des britischen Parlaments enthalten war, durch den australischen Bundesgesetzgeber im Zusammenhang mit dem Statute of Westminster aufgehoben werden könnte, obwohl die Materie selbst jedenfalls zum Teil — nämlich bezüglich der Haftung im Rahmen der Binnenschiffahrt — nach dem Zuständigkeitskatalog der australischen Verfassung Sache der gliedstaatlichen Gesetzgebung gewesen wäre. Diejenigen Richter, welche die Unabhängigkeit Australiens als letztlich in einer völkerrechtlichen Entwicklung begründet betrachten, sehen in der external affairs-Klausel der Verfassung die Ermächtigung für den Bundesgesetzgeber, die noch vorhandenen „historischen Bindungen" audi der australischen Einzelstaaten an das alte Mutterland zu beenden. Das w i r d natürlich von denjenigen Richtern abgelehnt, die es schon i m Koowarta-Fall ablehnten, die Zuständigkeit der Einzelstaaten m i t H i l f e der external affairs-Klausel einzuengen. Sie meinen, daß alte Rechtssätze mutterländischen Ursprungs eben schon lange entsprechend der Zuständigkeitsverteilung gemäß der australischen Verfassung australisches Recht, und zwar Bundesrecht bzw. gliedstaatliches Recht, geworden seien, und daß ihre Aufhebung oder Änderung eben Sache des so zuständigen Gesetzgebers sei. Einige Richter (insbesondere / . Brennan) sehen aber i m Text des Statute of Westminster und i m entsprechenden australischen Gesetz eine selbständige Quelle für die Befugnis des Bundesgesetzgebers, alte britische auf Australien erstreckte Gesetze aufzuheben, mit der Folge, daß für neue gesetzliche Bestimmungen die Kompetenzverteilung der Verfassung maßgebend ist 6 . So w i r d 6

Bezeichnend für die Verworrenheit der verfassungsrechtlichen Probleme ist es, daß C. / . Gibbs auch noch darauf hinweist, daß auch ohne das Westminster-Statute die australische Verfassung in sec. 51 ( X X X V I I I ) dem Bundesgesetzgeber ermöglicht hätte, im Einverständnis mit den betroffenen Gliedstaaten alles das zu tun, was im Zeitpunkt des Inkrafttretens der australischen Verfassung nur der britische Gesetzgeber hätte tun können, und dazu gehörte damals eben auch die Aufhebung und Änderung eines auf Australien erstreckten britischen Gesetzes. C. / . Gibbs bemerkt, daß der gliedstaatliche Gesetzgeber von Westaustralien dieselbe Bestimmung des alten britischen Merchant Shipping Acts, die der Bundesgesetzgeber global aufgehoben hat, noch einmal selbst mit Zustimmung der Krone aufgehoben habe, insoweit als sie gliedstaatliches Redit von Westaustralien geworden sei.

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jedenfalls vermieden, aus der external affairs-Klausel auch noch den Schluß zu ziehen, daß der Bundesgesetzgeber i m Zusammenhang mit der Beseitigung einer „internationalen" Bindung des innerstaatlichen Rechts auch die Befugnis habe, die so entstandenen Lücken seinerseits wieder auszufüllen. Die Gefahr des Mißbrauchs der external affairs-Klausel zur Durchsetzung von Dingen, bei denen sich die Parteien auch in den verschiedenen Gliedstaaten uneinig sind, scheint in Australien Bestrebungen zu fördern, diese durch eine Verfassungsänderung auszuschließen; allerdings ist das Verfahren zur Änderung der australischen Verfassung außerordentlich schwerfällig. Andererseits beruht die Zuständigkeit des H i g h Court zur Entscheidung über Verfassungsfragen gar nicht auf der Verfassung selbst, sondern nur auf Bundesgesetzen, und soweit der H i g h Court über eine Frage der australischen Verfassung nur als Inzidentfrage entschieden hat — wie in den meisten der Fälle, über die berichtet wurde — ist es durchaus möglich, daß sich bei einem System begründeter Einzelvoten der Richter des H i g h Court in einem zukünftigen Verfahren auch andere Mehrheiten in Bezug auf eine verfassungsrechtliche Frage bilden. Der Gesetzgeber der Bundesrepublik Deutschland hat dem Abkommen über die Bekämpfung der Rassendiskriminierung zugestimmt 7 , aber keine gesetzlichen Bestimmungen zur Durchführung der Artikel des Abkommens, die größtenteils nicht self-executing sind, erlassen. Würde das versucht werden, so würde jedenfalls i m Kulturbereich die Frage der Zuständigkeit von Bund und Ländern aufgeworfen werden. Es würde sich möglicherweise aber audi die Frage stellen, ob nicht schon in der Handhabung der bisherigen Gesetzgebung einzelne rassisdie oder völkische Gruppierungen bevorzugt oder benachteiligt worden sind. I n der Bundesrepublik Deutschland scheint man allerdings mit Rücksicht auf das Grundgesetz und die detaillierten Vorschriften der Europäischen Menschenrechtskonvention den Erlaß eines Durchführungsgesetzes zur Konvention von 1966 für überflüssig zu halten.

Summary Subsequent to the report on the Koowarta decision of the Australian H i g h Court (see the 1982 volume of this yearbook, p. 490), the article informs about recent decisions rendered by the same court in the following years and dealing w i t h the external affairs clause of the constitution and w i t h Australian legislative enactments against racial discrimination.

7 Bundesgesetz vom 9.5.1969, BGBl. 1969 II, 961.

13

G Y I L

28

The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law by Jost Delbrück and Klaus Dicke Introductory Remarks * The question of war and peace posed in an ethical perspective is much older than international law and thus also much older than international law concerns w i t h and answers to the problem of war and peace, since international law as an inter-state legal order only dates back to the 1 6 t h / 1 7 t h century, when independent territorial entities (states) began to replace the mediaeval feudal order. Questions posed and answers given by peace ethics have, however, always been related to the positive law existing at a given time, as ethics and law cannot be considered independently of each other. The task set for this paper, therefore, is to contribute an analysis of how the Doctrine of Just War is perceived by the international law of today — an analysis which w i l l be based on the historical pronouncements on the problem of war and peace by peace ethics as well as by international law. The task is a formidable one, given the very complex nature of the problems involved. Among others, i t firstly touches upon fundamental questions about the structure of the international order; secondly, it involves the relationship between law and the use of force, or non-violence, in the light of a multitude of grave injustices in the w o r l d while at the same time objective terms and consented criteria of what is just are lacking; and thirdly, it has to focus on an ethical and legal evaluation of the phenomenon of war under the conditions of the nuclear age. The task given is further complicated in view of the abundant material to be covered. 1 I n view of these difficulties, it cannot even be attemp* The following two articles are revised english versions of contributions prepared for the Kieler Woche Kongreß 1984 "Gottes Friede den Völkern The proceedings of this congress have been published by Ulrich Wilckens / Eduard Lohse (eds.)y Gottes Friede den Völkern , Hannover 1984. 1 Out of the plenty of literature the following works shall ba mentioned : Arthur Nussbaum, Just War. A Legal Concept, in: Michigan Law Review 42 (1943), 453—479; Ernst Reibstein , Völkerrecht. Eine Geschichte seiner Ideen in Lehre und Praxis, vol. I, Freiburg/München 1957; Robert W. Tucker , The Just War, Baltimore 1960; Lynn Η. Miller , The Contemporary Significance of the Doctrine of Just War, in: World Politics 16 (1963/64), 254—286; Paul

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ted t o propose a n y final answers. R a t h e r , the p a p e r can o f f e r o n l y some basic c o n t r i b u t i o n s t o a discussion w h i c h is c u r r e n t l y u n d e r t a k e n as an i n t e r n a l one w i t h i n t h e churches a n d w h i c h — as one m a y observe — shows much o f an aporetic character a n d y e t must be c o n t i n u e d . Just as e t h i c a l discussions are characterized b y

sometimes s t r o n g l y

divergent

opinions, i n t e r n a t i o n a l

law

t r e a t m e n t o f the D o c t r i n e o f Just W a r — insofar as i t is u n d e r t a k e n at a l l — shows a b r o a d range o f v i e w s expressed. These range f r o m a l i n e a r p r o j e c t i o n o f the Augustinian-Tloomistic

d o c t r i n e o f bellum

iustum 2

i n t o the present

w o r l d t o the t o t a l rejection o f the d o c t r i n e as i r r e l e v a n t t o i n t e r n a t i o n a l l a w a n d i n c l u d e , e.g.,

the p r o p o s i t i o n t h a t i n t e r n a t i o n a l l a w has overcome

the

doctrine.3 I n a first section o f the paper the d e v e l o p m e n t o f i n t e r n a t i o n a l l a w p r o nouncements o n the bellum

iustum

D o c t r i n e w i l l be sketched o u t ( I ) . I n a

second section, the question w h e t h e r the bellum

iustum

D o c t r i n e is r e l e v a n t t o

present d a y i n t e r n a t i o n a l l a w o r w h e t h e r the d o c t r i n e has been overcome, w i l l be treated i n the l i g h t o f the o u t l a w i n g o f the use o f force ( I I ) .

Finally,

tendencies i n i n t e r n a t i o n a l l a w t o r e v i v e the D o c t r i n e o f Just W a r —

as t h e y

can also be discerned i n the discussion o f peace ethics — a n d the p r o b l e m s Ramsey , The Just War. Force and Political Responsibility, New York 1968; Donald A. Wells , How much can "the Just War" Justify? In: The Journal of Philosophy 66 (1969), 819—829; James Turner Johnson, Just War. The Nixon-Doctrine and the Future Shape of American Military Policy, in: The Year Book of World Affairs 29 (1975), 137—154; Yehudin Melzer , Concepts of Just War, Leyden 1975; Christopher D. Jones, Just Wars and Limited Wars: Restraints on the Use of Soviet Armed Forces, in: World Politics 28 (1975/76), 44—68; Michael Walzer , Just and Unjust Wars. A Moral Argument with Historic Illustrations, New York 1977; Walter Klaassen , The Doctrine of the Just War in the West. A Summary, in: Peace Research Review 7, No. 6 (1978), 1—70; Hedly Bull , Recapturing the Just War for Political Theory, in: World Politics 31 (1979), 588—599; Rainer Steinweg (ed.), Der gerechte Krieg: Christentum, Islam, Marxismus, Frankfurt 1980; William V. O'Brien , The Conduct of Just and Limited War, New York 1981; James Turner Johnson, Just War Tradition and the Restraint of War. A Moral and Historical Inquiry, Princeton 1981; Norbert Glatzel / Ernst Josef Nagel (eds.), Frieden in Sicherheit. Zur Weiterentwicklung der katholischen Friedensethik, Festschrift (Fs.) Martin Gritz , 2nd ed., Freiburg/Basel/Wien 1982; James E. Dougherty , Just War, Nuclear Weapons, and Noncombatant Immunity (Review Article), in: Orbis 26 (1982/83), 765—787; Wolfgang Lienemann , Kernwaffen und die Frage des gerechten Krieges als Problem ökumenischer Friedensethik seit 1945, besonders im Blick auf den Protestantismus in Deutschland, Habilitationsschrift Heidelberg 1983; James Turner Johnson, Can Modern War be Just? New Häven/London 1984; Trutz Rendtorff , Christian Ethics and the Doctrine of Just War. A Re-evaluation in the Nuclear Age, in this volume, 209—228. 2 Inis L. Claude , Just Wars: Doctrines and Institutions, in: Political Science Quarterly 95 (1980), 83—96; for the Augustinian-Thomistic doctrine see: Klaassen (note 1), 12—21; Paulus Engelhardt, Die Lehre vom "gerechten Krieg" in der vorreformatorischen und katholischen Tradition, in: Steinweg (ed.) (note 1), 72—124. 3 Otto Kimminich, Der gerechte Krieg im Spiegel des Völkerrechts, in: Steinweg (ed.) (note 1), 206—223; Stanley Hoff mann, Duties beyond Borders: On the Limits and Possibilities of Ethical International Politics, Syracuse 1981, 45—93.

13*

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and dangers implied in these tendencies for the structure of the international order w i l l be outlined ( I I I ) . I. The Doctrine of Just War in the Development of International Law until the End of World War I International law as an inter-state legal order has been fully in keeping w i t h the Augustinian-Thomistic Doctrine of Just War only in its very beginnings which were shaped by the Spanish Scholastics. When the so-called "fathers of international l a w " — among others, Bartolome de Las Casas (1474—1566), Francisco di Vitoria (1480—1546) and Francisco Suarez (1548—1617) — began to discuss the Spanish colonial expansion in the N e w W o r l d in terms of the Doctrine of Just War, and thereby laid the foundations of international law, the Doctrine of Just War as a combination of Roman political philosophy (Cicero) and Christian ethics (St. Augustine , Thomas Aquinas) and could be summarized as follows: 4 A war is a "just w a r " , i f i t is waged by the legitimate government (auctoritas principis) — be it as an aggressive or a defensive war — ; if secondly, a just cause (iusta causa) can be shown for waging the war — be it for defending against an illegal attack, or for the reason of restoring the law violated by the other party; and finally, i f the war is conducted in the right intention (recta intentio) in the sense, that good shall prevail over evil. The overall aim of the war had to be peace in the sense of a just order or — as it is put in a different version — in the sense of order and harmony 5 . Based on this aim the function of the Doctrine of bellum iustum was to limit war, that is, to limit its initiation as well as its conduct. This limiting function could be performed by the Doctrine of Just War only because it was based on a value system which was recognized universally as objective and which provided the criteria for judging what was to be considered "just", "good" or "bad", and thereby set clear and relatively narrow limits to an arbitrary instrumentalization of war. I n view of the basic consent of the time, i t is not by chance that one spoke of "just w a r " and not of "justified w a r " : the problem was not — in modern legalistic terms — to justify war in a particular case as an otherwise illegal act. Rather, the idea was that war, in meeting the ethical criteria of the Doctrine of Just War, was 4 On the historical roots of just war theory see: Reibstein (note 1); Klaasen (note 1); Kimminich (note 3); Wilhelm Grewe , Epochen der Völkerrechtsgeschichte, Baden-Baden 1984, 131—147; Frederick H. Rüssel , The War in the Middle Ages, Cambridge 1975. 5 The Concept of order and harmony as a concept of peace was developed by Augustine and Thomas Aquinas along the terms of the Aristotelian philosophy of order. See: Hans Buchheim, Aurelius Augustinus* Friedensbegriff als Konzept einer modernen Theorie des Friedens, in: Fs. Wilhelm Grewe, Baden-Baden 1981, 425—444 (428); Max Müller, Der Friede als philosophisches Problem, in: id., Erfahrung und Geschichte. Grundzüge einer Philosophie der Freiheit als transzendentale Erfahrung, Freiburg/München 1971, 357—374.

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per definitionem a just act which could even be ethically mandatory. 8 Legal and moral authority, legal and ethical argument had not been distinguished 7 . Under the impression of reports of the cruel subjugation of the Latin American Indios, the Spanish Scholastics posed critical questions w i t h regard to the traditional Doctrine of Just War. Although not totally denying the right of the Spanish K i n g to conquer the N e w World, they began, however, to make distinctions in applying the criteria of the Just War Doctrine to the war against the Indios. I n doing so, they questioned the existing consensus about the unreflectedly accepted criteria of just war as such. Thus, for instance, Vitoria wanted to have a distinction drawn on the side of the unjust party of a war between an intended injustice for which the party could be held subjectively responsible, and an objective injustice. 8 Different legal consequences were to be accorded to these two sets of circumstances: in case of an objective injustice the unjust opponent could be subjugated only, while in the former case both subjugation and punishment were the proper sanctions. This was an important distinction w i t h regard to the Indios' fate. Withholding punishment meant — at least theoretically — the chance for the subjugated Indios to be integrated into the peace order established after the war ended. On the theoretical level, such distinctions meant that the catalogue of criteria of just war was now open to an ever increasing relativity of the individual criterion. I t was no great step from the distinction between "intended" and "objective" injustice to the consideration whether both parties to a war could have just causes on their side — in their subjective judgement, at first, and later also objectively. The way to an increasing dissociation of peace ethics vested w i t h absolute authority and the relativist juridical outlook was theoretically paved. The Doctrine of bellum iustum lost its formerly effective function to limit war. 6 The mandatory character of a just war is asserted by various concepts of "holy war". See, e. g., Christiane Rajewsky , Der gerechte Krieg im Islam, in: Steinweg (ed.) (note 1), 13—71 (19—21). Johnson (1975) (note 1), 144—148, pointed out that the American tradition of just war theory derives from the intellectual heritage of the holy war doctrine in postreformation England. 7 The emergence of a distinction between legal and moral authority has been one of the most significant developments in legal thought between the 16th and 17th century. See, David Kennedy , Primitive Legal Scholarship, in: Harvard International Law Journal 27 (1986), 1—98. This distinction and its peacekeeping function for any legal system is distorted, when just war theorists refer to the philosophical helium justum tradition and the legal ius in hello norms at the same time without any regard for the difference between moral and legal obligation. 8 Kimminich (note 3), 208/9. To establish such a distinction, Vitoria refers expressively not to objective criteria of just and unjust, instead he is one of the first seeing the upcoming function of public opinion as the legitimate judge in questions of public justice. See Engelhardt (note 2), 91, 94.

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When the mediaeval system faltered politically and spiritually, and the new territorial entities arose, i. e. the modern state system emerged, and when, finally, two separate Churches were established, the new notions of the criteria of just war were applied in practice. Sovereign princes and states of equal standing confronting each other in case of a conflict, acted as their own judges over the justice of their causes.9 The bellum iustum "ex utraque parte " as a new notion was formulated by Vitoria for the first time. 1 0 I t was taken over by Alberico Gentili (1552—1608) 11 and by Hugo Grotius (1583—1645) in his monumental international law treatise "De jure belli ac pads* and was thereby introduced into the teaching of classic international law. 1 2 Soon brought to its extreme, the notion led to the proposition and acceptance of the free right of the sovereign state to go to war (liberum ius ad bellum ). International law and peace ethics from now on went their own ways. While on the part of the Protestant Church the preservation of peace and the settlement of disputes by arbitration were postulated, and defensive war was accepted as a just war only when embarked upon as ultima ratio 13, international law freed itself of the fetters of the Just War Doctrine. The loss of the unity in faith and of a shared trust in true values was intensified in the practice of international law by the influence of Machiavellian thought which did not treat the question of war in ethical terms, but only w i t h regard to the interests of the state. 14 International law during the 18th and 19th centuries was dominated by the notion of liberum ius ad bellum . I t was no longer a question whether a war was just in the mediaeval sense, but whether a war was conducted in conformity w i t h the laws of war (ius in bello). As weaponry became ever more sophisticated, the protection of non-combatants and the observation of the principle of porportionality of means and ends 15 were considered to be part of these laws of war in due course of time. Both criteria also were already recognized in the classic period of the Doctrine of Just War, as for instance 9

Heinrich Kipp, Pax et securitas oder pax et iustitia im Völkerrecht, in: Um Recht und Freiheit, Fs. Friedrich August v. d. Heydte, Berlin 1977, 153—277; Ulrich Scheuner, Krieg als Mittel der Politik im Lichte des Völkerrechts, in: Clausewitz-Gesellschaft e. V. (Hrsg.), Freiheit ohne Krieg? Beiträge zur Strategie-Diskussion der Gegenwart im Spiegel der Theorie von Carl Clausewitz, Bonn 1980, 159—181. 10 Grewe (note 4), 241—244. See also Kennedy (note 7), 32, 65—74. 11 Grewe, op.cit., 244, 247—254; cf. Kimminich (note 3), 210. 12 On Grotius see: Grewe (note 4), 254—259; Peter Hoggenmacher, Grotius et la doctrine de la guerre juste, Paris 1983. 13 Cf. Carl Dietrich Erdmann, Luther über den gerechten und ungerechten Krieg (Berichte aus den Sitzungen der Joachim-Jungius-Gesellschaft der Wissenschaften, Heft 5), Göttingen 1984. 14 For historical illustration, see: Kimminich (note 3), 212. See also: Scheuner (note 9). 15 See: Karl Josef Partsch , Armed Conflict, Fundamental Rules, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), vol. 3, Amsterdam/New York/Oxford 1982, 18—31; Jost Delbrück , Proportionality, in: EPIL, vol. 7, 1984, 396—400 (398).

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by Suarez , but also in the very early times by St. Augustine. Both aggressive and defensive war under the new doctrine were to be considered to be lawful action and needed no substantive, ethical legitimation or justification by positive law. The experience, however, of the devastating wars at the end of the 19th century (inter alia the American War of Secession, the Italian struggle for national unity, the German-French War of 1871) and the two W o r l d Wars in the 20th century have confronted international law again w i t h the problem of the ethical and legal permissibility of war as a means of politics. Yet international law did not seek a solution of this problem by a restauration or the fresh introduction of the Doctrine of Just War. A more radical approach was taken: War, and more precisely, any use of force as a political means was to be rejected as illegal and unethical. Increasing attempts at strengthening the laws of war (ius in hello) at the end of the 19th century were paralleled and — in the eyes of some international lawyers — overtaken by the demand for a general prohibition of war as well as any other k i n d of inter-state and international use of force. A t this point, attention must turn to the question, where modern international law, changed as i t has in conformity w i t h the demands just mentioned, stands w i t h regard to the Doctrine of Just War. Is this doctrine still relevant or — as is contended by some authors —, has it to be considered as inadequate and thereby overcome by new rules because the criteria of just war can no longer be applied today — let alone the question whether they could have ever been applied in international law? II. The bellum iustum Doctrine in the Light of the Prohibition of the Use of Force in Modern International Law A survey of the relevant international law rules has to be undertaken on two levels — not the least because of the nature of the current ethical discussion w i t h i n the churches. 16 O n the one hand, one must look at norms 16 See: Evangelische Kirche in Deutschland, Denkschrift: Frieden wahren, fördern und erneuern, Gütersloh 1981; the pastoral letters of the National Conferences of U.S. and German Catholic Bishops (1983) are reprinted in German in: Hirtenworte zu Krieg und Frieden, Köln 1983, 125—285; 1—93. For some critical and historical analysis Jost Delbrück , Die Auseinandersetzungen über das ethische Problem der atomaren Kriegführung in den Vereinigten Staaten und der Bundesrepublik Deutschland, in: Abschreckung und Entspannung. Fünfundzwanzig Jahre Sicherheitspolitik zwischen bipolarer Konfrontation und begrenzter Kooperation (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel 76), Berlin 1977, 94—147; Franz Böckle I Gert Krell (eds.), Politik und Ethik der Abschreckung. Beiträge zur Herausforderung der Nuklearwaffen, Mainz/München 1984; Heinhard Steiger, Gerechter Friede. Das Zweite Vatikanische Konzil und die Päpste zur Internationalen Friedensordnung, in: Fs. Hans Ulrich Scupin, Berlin 1983, 489—516; Rendtorff (note 1) with further references.

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relating to the general prohibition of war and the rules allowing for certain exceptions (ius ad bellum ). O n the other hand, one has to focus on the level of a "just" — or in modern legal terms — " l a w f u l " conduct of war (ius in bello ). Furthermore, i t w i l l have to be shown that — in considering the problem of nuclear weapons — both levels could merge i n pursuance of a specific line of argument. 1. The Abolishment of the Liberum ius ad bellum in Modern International Law The League of Nations Covenant 1 7 already knew a considerable restriction of the right to go to war (Art. 11—13 of the Covenant). These restrictions were, however, more of a procedural than a substantive nature. Parties to a conflict were under an obligation first to seek a peaceful settlement of the dispute, before they could legally go to war. Furthermore, they had to observe certain cooling off periods after the failure of a peaceful settlement before force could be lawfully used. The Briand-Kellogg-Treaty (Treaty of Paris) of 1928 18 changed these restrictions into an explicit and general prohibition of wars of aggression — a prohibition which according to an overwhelming majority of opinion rapidly developed into a rule of customary international law, thus binding non-treaty states as well. The United Nations Charter 1 9 again broadened the scope of this norm into a general prohibition of the use or the threat of use of force in international relations. Every state in the w o r l d is bound to this rule, either directly or indirectly. However, in consequence of a realistic assessment of human behaviour, whereby i t is realized that prohibitions by themselves do not guarantee that the prohibited act does in fact not occur, states remain entitled to the right of individual and collective selfdefence. Defensive war is still legal. Thereby, international law has legitimized the existence of today's military alliances like the N o r t h Atlantic Treaty Organization ( N A T O ) or the Warsaw Pact, which, indeed, have proven to 17 For the development of international rules concerning the prohibition of war and the use of force in international relations see Karl Ulrich Meyn , Kriegsverbot und Gewaltverbot, in: Jost Delbrück (ed.), Friedensdokumente aus fünf Jahrhunderten. Abrüstung, Kriegsverhütung, Rüstungskontrolle, vol. I, Kehl/Strasbourg/Arlington 1984, 35—47, with related Documents 48—72 (League of Nations Covenant 40—54). is League of Nations Treaty Series (LNTS) 94, 57; Meyn (note 17), 56/57. 1 9 United Nations Conference on International Organization Documents, vol. X V (1945), 335; Meyn (note 17), 58—61. For further discussion on the prohibition of the use of force in international relations by the United Nations Charter see Ian Brownlie , International Law and the Use of Force by States, Oxford 1963; Wilhelm Wengler, Das völkerrechtliche Gewaltverbot. Probleme und Tendenzen, Berlin 1967; Winfried Schaumann (ed.), Völkerrechtliches Gewaltverbot und Friedenssicherung, Baden-Baden 1971; Christian Tomusdvat, Gewalt und Gewaltverbot als Bestimmungsfaktoren der Weltordnung, in: Europa-Archiv (EA) 36 (1981), 325—334.

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be one of the essential regional structures of international order. 20 However, A r t . 51 of the UN-Charter restricts the right to self-defense in that it can be exercised only until the UN-Security Council has taken the necessary steps for the preservation of international peace and security. A further exception from the general prohibition of the use of force is provided for by the UN-Charter in that the Organization may collectively employ force against acts of aggression or breaches of the peace. I t must be stressed at this point that these provisions in the United Nations Charter are strongly opposed to every Just War Doctrine. I t may be possible to recognize the punitive nature of sanctions provided for by the League of Nations Covenant as remnants of the bellum iustum-Doctrine 21. However, the peace-keeping system as provided for by the United Nations Charter is clearly distinguishable in two ways from a theoretical deduction of just reasons for war w i t h i n the framework of Just War Doctrine. Firstly, the Charter's measures of collective security are not established w i t h i n an ontological concept of peace or just order; rather, the Charter as well as modern international law draws a clear distinction between peace-keeping on the one hand and positive norms of enhancing justice among nations or so-called "peaceful change" on the other hand. Thus, the peace-keeping efforts of the Charter are meant to avoid breaches of peace already in the forefield of military conflicts. Secondly, the case of a breach of peace is not defined theoretically. Instead, A r t . 39 of the Charter provides for a political procedure to determine what constitutes a breach of peace w i t h i n the institutionalized framework of the Security Council. I n order to meet the requirements of this procedure, the United Nations after long and frustrating debates in 1974 have adopted a Definition of Aggression 22 which is meant to serve as the basis for decisions on whether an act of aggression has been committed. I t has to be noted, however, that this Definition of Aggression is replete of general clauses and loopholes, thus rendering it of limited practical value. Thus, for instance, an act of aggression is prima facie deemed to have occured if one state fires c the first shot' against another, provided, however, that the Security Council does not determine otherwise. 20 Jost Delbrück, Eine Internationale Friedensordnung als rechtliche und politische Gestaltungsaufgabe. Zum Verständnis rechtlicher und politischer Bedingungen der Friedenssicherung im internationalen System der Gegenwart, in: Frieden politisch fördern: Richtungsimpulse. Sechs Beiträge für die Evangelische Kirche in Deutschland, Gütersloh 1985, 145—172; id ., Peace through Emerging International Law, in : Christian Schmidt / Dieter Senghaas / Raimo Väyrynen (eds.), The Quest for Peace (to be published in 1986). 21 Miller (note 1), 261; Hans Wehberg, Krieg und Eroberung im Wandel des Völkerrechts, Frankfurt/Berlin 1953, 19 et seq. 22 General Assembly (GA) Res. 3314 ( X X I X ) , 14. 12. 1974, in: GA Official Records (GAOR) (1974), suppl. No. 31, 142—144; cf. Thomas Bruha , Die Definition der Aggression. Faktizität und Normativität des UN-Konsensbildungsprozesses der Jahre 1968—1974, zugleich ein Beitrag zur Strukturanalyse des Völkerrechts, Berlin 1980; Meyn (note 17), 69—72.

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Furthermore, wars of liberation waged by peoples under colonial oppression are not considered to be covered by the rules of the Definition of Aggression. There is also disagreement as to whether humanitarian intervention, i. e. the use of force for the protection of fundamental human rights (Entebbe case), is legal under international law. 2 3 2. The ius in hello While the struggle for outlawing war as such is a relatively recent one — a fact which has to be recognized in order to avoid any rash conclusions about the ineffectiveness of the prohibition of war —, endeavours to limit the means of war by positive international law date back much further. I t is impossible here to recall the complete number of rules of ius in hello. O n l y the basic traits and elements of ius in hello as they are contained in the Hague Convention on the Rules of Warfare of 1907 24 and in the Geneva Conventions of 1949 and 1977 25 , may be summarized at this point. Their overriding aims are the protection of civilians and the observation of the principle of proportionality. I n accordance w i t h the latter, weapons are outlawed which cause unnecessary suffering and which have an undiscriminating effect, i. e. cannot be limited to military objectives only. These rules, amied at providing for some degree of protection and restraint in the use of weapons extend to both parties. War — at least in theory — thereby is characterized not as an event outside the realm of law, but as regulated by particular rules of law. A n d war — once it occurs legally — becomes illegal only, when those same laws are violated. This means that a defensive war as well may become illegal once a breach of the ius in hello occurs. I t has to be noted w i t h regard to nuclear weapons, however, that international law so far has tended to outlaw the first use of nuclear weapons only, but does allow for their use in answer to a nuclear attack (response in kind), thereby indicating that the mere possession of nuclear weapons is legal. There is, however, even disagreement on this basic premise in that it is maintained that even the first use of nuclear weapons out of military necessity is legal in cases of an exceptionally grave 23

See: Ulrich Bey erlin, Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht, in: Zeitschrift für ausländisches öffentliches Redit und Völkerrecht (ZaöRV) 37 (1977), 213—242; Helmut Strebel, Nochmals zur Geiselbefreiung in Entebbe, in: op.cit., 691—710. The problem of humanitarian intervention under the condition of Art. 2 (4) of the U N Charter is discussed by Meyn (note 17), 35; Tomuschat (note 19), 327. 24 James Brown Scott , The Hague Conventions and Declarations of 1899 and 1907, 3rd ed., New York 1918. United Nations Treaty Series (UNTS) 75 (1950), 31, 85, 135, 287; International Legal Materials (ILM) 16 (1977), 1391, 1442.

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threat to a state. 26 But even if one considers the first use of nuclear weapons to be a lawful act, its lawfulness cannot be justified in terms of objective and generally applicable criteria provided for by an ethical doctrine. Rather, a state is legally permitted to take measures of self-preservation, including the first use of nuclear weapons 27 . Such legally permitted acts of self-preservation, however, are limited by the rules of warfare and are restricted to the preservation or restoration of the status quo ante. Thus, the defending state is entitled to use only such weapons as are necessary for the achievement of that purpose 28 . 3. International Law Interpretations of the Existing with Regard to the Doctrine of Just War

Law

The law of the prohibition of war has not been explicitly or implicitly developed in terms of the Doctrine of Just War, rather it was intended to overcome this doctrine. Yet neither international law nor ethics can avoid the question as to whether this doctrine still is relevant to international law and its future development. This is not only because the present day discussion of ethics and legal policy poses these questions ever more urgently, but because — as has been stated at the outset — law and ethics are categories closely related to each other. The number of interpretations of the existing law by international lawyers or others in the light of the Doctrine of bellum iustum is limited. I n order not to confuse the picture, only the most important positions may be outlined and discussed here briefly. a) A n interesting interpretation of the prohibition of the use of force w i t h i n the context of its institutional foundation, i. e. the United Nations, has been offered a few years ago by the American political scientist and international lawyer Inis Claude 2Θ. I n the eyes of Claude the establishment of the United Nations and the prohibition of the use of force that went w i t h it, means the restauration of the mediaeval foundations of the Doctrine of bellum iustum , but under secular conditions. The Organization takes the place of Pope 26 See: Dietrich Rauschning , Nuclear Warfare and Weapons, in: EPIL, vol. 4 (1982), 44— 50; Michael Bothe / Karl Josef Partsch / Waldemar Sol /, New Rules for Victims of Armed Conflicts. Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949, The Hague/Boston/London 1982, 188 et seq.; Guy Β. Roberts , The New Rules for Waging War: The Case Against Ratification of Additional Protocol I, in: Virginia Journal of International Law 26 (1985), 109—170 (163—166). 27 Karl Joseph Partsch , Self-Preservation, in: EPIL vol. 4, 1982, 217—220. For the position of the Federal Republic of Germany concerning nuclear weapons and particularly the first use question, see, Gerlinde Raub / Peter Malanczuk , Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahre 1983, in: Zeitschrift für ausländisches öffentliches und Völkerrecht 45 (1985), 714—833 (809 seq.). 28 Delbrück, Proportionality (note 15), 397. 29 Claude (note 2).

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and Emperor as the authoritative judges over the question of whether a war is just or unjust. This parallel seems very convincing at first sight. However, it does not grasp the true problem posed by the Doctrine of Just War today: I t is true, that the United Nations may be viewed theoretically as being vested w i t h the authority to judge upon the justice or injustice of acts of war. They lack, however, the objective criteria — or criteria perceived as being objective — founded on ethics, a prerequisite of the Doctrine of Just War in the Middle Ages. The loss of the universally shared philosophy of true order is not matched by the existence of the Organization of the United Nations and their decision making process. b) The opposite position considers the Doctrine of Just War to be overcome by international law. The views expressed by Otto Kimminich 30 may be cited as an example: "There is, therefore, nothing left of the ius ad bellum of classical international law. War as a means of international politics is outlawed and ethically rejected. There is no justification of war whatsoever, and this also pertains to preventive w a r " . The obligation to preserve the peace has thereby been put side by side w i t h the prohibition o f war. Kimminich continues: "The right of every state to individual and collective self-defense, as i t is enshrined in A r t . 51 of the UN-Charter, is no exception to the prohibition of war. This right . . . is comparable to the right of self-defense as it is recognized in the national legal orders. I t becomes meaningful only when considered against the background of the prohibition of war. For self-defense is allowed only against criminal acts!" Self-defense exercised by a state is not a "just war", but a justified repulsion of a criminal act which, however, as such is subject to the rules of warfare, in order to bring to bear the notion of law and peace even in a situation dominated by the use of force. From a conceptual point of view 3 1 , one has to agree w i t h Kimminich that the acceptance of the right to self-defense by the United Nations was not at all intended to revive the Doctrine of Just War. I n fact, however, i t cannot be denied that the exercise of the right to self-defense amounts to undertaking a defensive war. Thus, the law of the United Nations — in seeming conformity w i t h the Doctrine of Just War (for instance, as interpreted by Luther) — has reduced the right to go to war (ius ad bellum) to one single case, i. e. 30

Kimminich (note 3), 216/17 (translated from the German original). Cf. Jost Delbrück, Peacekeeping by the United Nations and the Rule of Law, in: Robert J. Ackermann / Pieter J. van Krieken / Charles O. Pannenborg (eds.), Declaration on Principles. A Quest for Universal Peace, Fs. Bert V. A. Roeling, Leyden 1977, 73—99; Albrecht Randelzhofer , Der normative Gehalt des Friedensbegriffs im Völkerrecht der Gegenwart — Möglichkeiten und Grenzen seiner Operationalisierung, in: Jost Delbrück (ed.), Völkerrecht und Kriegsverhütung. Zur Entwicklung des Völkerrechts als Recht friedenssichernden Wandels (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel 82), Berlin 1979, 13—39; Wilhelm G. Grewe, Friede durch Redit? Berlin/New York 1985. 31

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the defense against armed aggression after attempts at a peaceful settlement have failed; but this is only in seeming conformity w i t h the Doctrine of Just War because international society is pluralistic, adhering to heterogenous value systems and, therefore, is not in a position to prescribe objective ethical criteria for the embarking on a defensive war. Thus, a defensive war according to the law of the United Nations, is a war justified by positive law as distinguished from an ethically just war: it can, but it need not meet the criteria of an ethically just war. While international law in restricting the right to go to war to one case, i. e. defensive war, did not adopt the Doctrine of Just War in the sense of a doctrine based on objective criteria of justice, i t has, on the other hand, opened itself by the structure of the relevant norms to an ethical interpretation in terms of the Just War Doctrine. I n other words, i t has created conditions for a close relatedness of law and ethics in this field. I n taking up this new perspective in some interpretations of present day international law — based on the traditional Doctrine of Just War —, the problem of a just defensive war including the question of a just preventive war are discussed and, furthermore, the justice of a defensive war is scrutinized under the terms of the ius in bello. Others, departing from the same methodical basis, tend to consider it impossible to undertake defensive wars in the nuclear age legally, since the ius in bello once and for all proscribes the use of nuclear weapons. c) As examples for the first line of argument outlined above, the works of O'Brien , Ramsey and Walzer may be mentioned here. 32 They consider defensive wars, including the use of nuclear weapons as just (and legal) i f these weapons can be applied in conformity w i t h the principle of proportionality and provided that utmost protection can be secured for non-combatants. O'Brien, in weighing the pros and cons in this context, uses the formular of "double effect" 3 3 which says, although loss of civilians cannot be avoided even in restricting the application of weapons to military objectives, that this would not render the use of these weapons illegal, as long as such losses are not intentionally brought about and are as small as possible. O n the other hand, O'Brien's factual argument — the possibility of a controlled use of nuclear weapons — is taken up and answered in the negative: a controlled use of nuclear weapons which would meet the criteria of the ius in bello was impossible. Thereby, at least the defensive war carried out w i t h nuclear weapons is ethically rejected and considered to be illegal, — one could also say, nuclear war can no longer be judged in terms of the Doctrine of Just War. A t this point — as has been mentioned before — the two levels 82

Supra note 1. 33 O'Brien (note 1), 42—55; Melzer (note 1), 158. Delbrück (note 16), 109 seq.

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of arguments — that of the general prohibition of the right to go to war (ius ad bellum) and that of the ius in bello — merge: based on a strict application of the rules of the ius in bello , the general prohibition of war is extended at least to the nuclear defensive war. These attempts at penetrating present day international law as shaped by the U N system w i t h the categories of the classical Doctrine of Just War, either w i t h the consequence of a limited admissibility of nuclear defensive war, or w i t h the consequence of rendering nuclear defensive war altogether illegal thereby coming close to a pacifist stance, have not been generally accepted. This was impossible to achieve because the essential prerequisites for a full scale integration of the Doctrine of Just War into international law are lacking: The representatives of the views outlined, under the conditions of a pluralistic heterogenous international society cannot prove the criteria of just war used by them to be universally valid. However, only i f this condition — universal validity of the criteria — could be met, the Doctrine of Just War could fulfill its war limiting function. As this cannot be proved, adopting the categories of just war would enhance the danger already existing of abusing the doctrine for ideological purposes. A t this point, we may conclude that the recognition by international law of defensive war as justified by positive law is categorically different from the concept of Just War in ethical terms. I n this sense, adoption of the Doctrine of Just War by international law has not yet occured. Furthermore, the Doctrine of Just War has to be considered as overcome by international law, since a lawful defensive war is limited in its aims. I t may be embarked upon only for the restauration of the status quo ante\ but i t may not be undertaken for the punishment of the aggressor or for achieving a new state of order, transcending the mere purpose of defense. On the other hand, i t has to be recognized that on the level of the ius in bello elements of the Doctrine of Just War — i. e. the notion of the protection of non-combatants and the principle of proportionality — have been introduced into international law and shaped its aims and scope. These are being discussed, in their full implications, however, only rather reluctantly. While trusting the effectiveness of the system of nuclear deterrence as the dominant structural element of international order in the post-war era, the legal problems implied in the failure of deterrence are more or less being neglected. I n this respect, there are striking similarities w i t h the current ethical discussion. The result readied so far — no full scale adoption of the Doctrine of Just War by international law — is, however, challenged by new developments arising from very different backgrounds. They w i l l be taken up in the following final section of the paper.

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III. Tendencies towards a Renaissance of the Doctrine of Just War The developments which have to be taken up here, may be exemplified by three political phenomena: the national wars of liberation of peoples under colonial rule, the military intervention of the Warsaw Pakt members in the CSSR in the context of the so-called Breznev doctrine and the US policy towards Central America and the Caribbean (Grenada, Nicaragua). A l l three cases have in common the first use of force or the threat of the use of force without a prior armed attack having occured. While in the case of wars of liberation at first attempts have been made to justify them as acts of selfdefense against an aggression which was seen in the continued existence of colonial rule, this line of argument was later abandoned and wars of liberation as such were regarded as generally justified. 34 I n the two other mentioned cases the justification for the use of force was argued to consist i n the preservation or restauration of a particular regional order in the spheres of influence of the Superpowers. 35 Here we encounter — at times explicitly — the criteria of the classical Just War Doctrine. The "iust'a causa" is found in the achievement of national self-determination or in the preservation of peace in a region by fending off any dangers threatening the existing order. The " recta intentio" is represented by the w i l l to preserve the peace and establish a just order (pax et iustitia). 3e The reasons for these tendencies are obvious. The U N system which has outlawed the active use of force as a means of politics, has utterly failed in its peace preserving function and in its task to bring about peaceful change.37 Thereby, it denied to the member states the necessary substitute for the use of force in cases of conflict. The regional alliances, which from the global perspective have a vital peace preserving function, are by their nature status quo orientated and, therefore, are only in a limited sense suitable for the initiation and realization of peaceful change. I n the Third W o r l d such func34

During the negotiations of the Geneva Protocols Additional of 1977 some delegations argued, "that wars for national liberation against colonial or racist powers were just wars and for this reason had to be treated in the same way as wars between States", BotheJPartschf Solf (note 26), 40. 35 See, e. g., Christopher C. Joyner , The United States Action in Grenada. Reflections on the Lawfulness of Intervention, in: American Journal of International Law (AJIL) 78 (1984), 131—144; John Norton Moore , The United States Action in Grenada. Grenada and the International Double Standard, in: AJIL 78 (1984), 145—168; Boris Meissner , Die Breshnev-Doktrin, Köln 1969. 36 Kipp (note 9); for the associated ideas "pax et iustitia" in the Mediaeval history of law see: Hans Hattenhauer , Pax et iustitia ( = Berichte aus den Sitzungen der JoachimJungius-Gesellsdiaft der Wissenschaften 3), Göttingen 1983. 37 Delbrück, Internationale Friedensordnung (note 20); id ., Völkerrecht und Weltfriedenssicherung, in: Dieter Grimm (ed.), Rechtswissenschaft und Nadibarwissenschaften, vol. 2, München 1976, 179—191.

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tioning regional systems are lacking almost completely. The reversion of some states or people to the attitudes of the epoch before the prohibition of force had become effective was therefore only a question of time. However, these are no more than practices to which legal recognition to date has not been forthcoming, even i f in the case of the wars of liberation a significant number of non-binding resolutions were passed by the General Assembly of the U N , which underline the legality of such wars and call for their support 38 . As a matter of principle, the consolidation of such tendencies from the point of view of international law ought to be strongly opposed; they could lead to a complete erosion of the principle of the prohibition of war, the normativity of which is a precarious one anyway. I n view of the lack of objective criteria shared by the community of states, even an only limited admission of the first use of force for certain iustae causae would rapidly break the dam of the principle of the prohibition of war. For what people, what state would not be able to show sufficiently "just causes"? As already explained regarding the existing law, the community of states lacks the basic requirements for a functioning Doctrine of Just War. Therefore, a solution of these problems must not be sought on the basis of traditional Just War Doctrine, for international law has set as its priority the preservation of peace while at the same time contributing to the establishment of an equitable w o r l d order through the development of rules defining new values. 30 This opens up perspectives for a linkage between law and ethics i n the area of international law, that appear more promising than a renaissance of the bellum iustum Doctrine. This is not meant to say that an ethical discussion of the body of law on the issue of war and peace has become irrelevant. Rather, this discussion ought to be undertaken not on the classical bellum iustum Doctrine but on the level of an ethics of bona fide observance of positive law. I n other words, the ethical foundation of the principle of the prohibition of force is to be found in the ethical imperative whereby those rules of positive law demanding the preservation of peace must be obeyed. I n this sense, international law is dependent upon both theology and philosophy for the development of a universal legal ethic. 38 Beginning with GA Res. 3070 ( X X V I I I ) of November 30, 1973, in: GAOR 28, suppl. No. 30, 78. Henri-Juri Uibopuu , Wars of national liberation, in: EPIL (note 15), vol. 4, 1982, 343—346 with further references. See also, Wil D. Verwey , Decolonialization and lus ad Bellum: A Case Study on the Impact of the United Nations General Assembly on International Law, in: Declarations on Principles (note 31), 121—140. 39 Jost Delbrück, Menschenrechte — Grundlage des Friedens? In: HansThimme / Wilhelm Wöste (eds.), Im Dienst für Entwicklung und Frieden. In memoriam Bischof Heinrich Tenhumberg, Mainz/München 1982, 89—102.

Christian Ethics and the Doctrine of Just War A Re-evaluation in the Nuclear Age by Trutz Rend tor f f I. A New Debate on the Doctrine of Just War? 1. Arguments Concerning a Renewal of the Debate " Christian

Ethics and

the Doctrine

of Just War"

The word "and" in the title may be interpreted in three ways. Firstly, i t could indicate an inextricable link between Christian ethics and the Doctrine of Just War. I f this is the case, i t may be inferred that Christian ethics must always lead on to a Doctrine of Just War. But is this link i n conformance w i t h the traditional teachings of peace ethics by the Church? O n the other hand, the use of "and" could infer that Christian ethics stand in complete opposition to the Doctrine of Just War: Christian ethics instead of a Doctrine of Just War. This premise may lead to a fundamental revision of ethics, the necessary change in thinking for which, i t may be argued, has been apparent for quite some time. The third possibility is that the w o r d "and" could indicate a tension which has only been possible to ease through compromise. Yet the problem of easing this tension still remains today. Some find i t questionable, especially at the present time, even to discuss war, let alone to attempt to justify it. This view reflects the unease felt by many regarding the situation. I share the uneasiness expressed in such opinions. The "Doctrine of Just W a r " would appear to be the key question i n peace ethics today. I t is a difficult subject to discuss because it is a highly emotional issue which, therefore, inevitably leads to personal prejudices. The question is directed towards the necessity for Christian ethics to account for itself and others intellectually and this must be expounded and heard in a field which is as closely sown w i t h confessions and convictions as that of peace ethics. I t is, therefore, necessary to express any uneasiness about and resistance towards accepting the notion and concept of "Just W a r " in an articulate and discriminatory manner. The Doctrine of Just War does not define a final aim for Christian ethics, but rather forms a touchstone for arguments w i t h which Christian ethics can enter the discussion about an international order of peace.

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The question should, perhaps, first be posed as to w h y a new debate about the Doctrine of Just War should and, indeed, must be opened. 1 A good starting point is to analyze the arguments against the Doctrine, as they can be quickly named and are not really controversial. There are arguments of historical experience which urge Germans today in view of our political neighbors to unite in saying, " w a r must never again begin on German soil". This stems from the division of the country as a result of war and the last W o r l d War's indelible imprint on the memory of its people. Therefore, i f the Doctrine of Just War supports a readiness for war, a wish to fight then must be rejected at all costs. A t no point in German protestantism, particularly in protestant ethics since 1945, has there been a serious or weighty voice speaking in favour of resuscitating the Doctrine of Just War. 2 This historical experience is, of course, not limited to Germans. I t is shared by many Christians of many nations. As pars pro toto , the first Assembly of the W o r l d Council of Churches in Amsterdam in 1948 is relevant here. The subtitle of one of the reports of a section which has been quoted time and again 3 is: " W a r is contrary to the w i l l of God". The ecumenical consensus which is expressed in this statement is at the same time a human consensus, not limited to the Christian Churches. Moreover, i t is a political consensus precisely formulated in international law which has often been affirmed. 4 There are no sound arguments in favour of war and no outstanding originality or special insight is required to establish that fact. I n addition to the horrors of war and the guilt of all those involved, a further argument against 1

The ethical problems of Nuclear Deterrence Theory have been the subject of a longrunning debate in the Federal Republic of Germany. There is a partial overview in: Wolfgang Lienemann , Kernwaffen und die Frage des gerechten Krieges als Problem ökumenischer Friedensethik seit 1945, besonders im Blick auf den Protestantismus in Deutschland (unprinted theological "Habilitationsschrift"), Heidelberg 1983. However, the Doctrine has only been touched upon in this debate. On the other hand, in the USA there has been a continuous examination of the Doctrine of Just War and its ethical criteria. For examples of this see: Robert W. Tucker , The Just War: A Study in Contemporary American Doctrine, Baltimore 1960; Paul Ramsey , The Just War: Force and Political Responsibility, New York 1968; Michael Walzer , Just and Unjust Wars — A Moral Argument with Historical Illustration, New York 1977; James Turner Johnson, Just War Tradition and the Restraint of War. A Moral and Historical Inquiry, Princeton 1981; William V. O'Brien , The Conduct of Just and Limited War, New York 1981, and the literature in note 4. For an international perspective of the state of the discussion see: Lothar Waas , Problembereiche einer Ethik der nuklearen Abschreckung. Ein Literaturbericht mit annotierter Bibliographie, in: Zeitschrift für Politik 32 (1985), 46—88. 2 See: Wolf gang Lienemann, Das Problem des gerechten Krieges im deutschen Protestantismus nach dem Zweiten Weltkrieg, in: Reiner Steinweg (ed.), Der gerechte Krieg: Christentum, Islam, Marxismus, Frankfurt am Main 1980, 125—162. 8 Die Kirche und die internationale Unordnung, Geneva 1948, 260. 4 See Jost Delbrück / Klaus Dicke , The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law, in this volume, 194—208.

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war is that in an age in which the means of mass destruction exists, war has ceased to be war in the sense that it is limited and directed towards achieving an aim. A Doctrine of Just War must in this context appear as an impossible euphemism. There is no need to deal in detail w i t h these and other reasons which can be spontaneously adduced against a Doctrine of Just War. Few people today are in need of instruction in this direction. However, it is necessary to reflect on the arguments to be adduced specifically and in particular against an ethical theory of Just War from its development through to its dispersal. The main objection to a Doctrine of Just War as an ethical doctrine or theory is supported by the well-established assumption that w i t h such a theory, whether justified theologically, ethically or otherwise, the justification for the waging of war could once again be deduced. Historical knowledge would have to correct such an objection and put it in perspective. The traditional Doctrine of Just War did not seek to justify war as such, but rather to limit it and give it borderlines. Further discussion on this point w i l l follow later. I t is nevertheless true that in various contexts and w i t h different consequences the Doctrine of Just War has led to just such a justification. A Doctrine of Just War w i t h this as its aim, whether overtly or covertly, should rightly be rejected and should enjoy no kind of renaissance whatsoever. I n order to expand the discussion the above must be clearly stated and recognized. 2. "Justification " of War ? Theological and Ethical Perspectives Does "justification" have any meaning in ethical terms? Spontaneous objections alone are not sufficient arguments. Thus, it is necessary to establish the meaning of "justification" within the framework of ethical theory, if, indeed, it has one at all. The term "justification" needs some clarification before it may be discussed in terms of present peace ethics. I n doing so the pure glorification of war needs only be dealt w i t h briefly. This occurred during a relatively short period of history, not long ago, known as "bellicism" 5 . According to this concept war appeared to be laudable as either a means of progress, as an inevitable part of history, or as a way of developing human abilities which would otherwise remain buried. When discussing the concept of "Just W a r " today, no attempt is being made to justify it in this way. The problem lies elsewhere. Ethical questions are raised as to the ways in which the human act of war waging can be justified. I n this context, even the meaning of "justify" remains doubtful. 5 Concerning the history of "Bellicism" see the references in: Wilhelm Janssen, "Krieg", in: Otto Brunner / Werner Conze ! Reinhard Koselleck (ed.), Geschichtliche Grundbegriffe. Lexikon zur politisch-sozialen Sprache in Deutschland, vol. 3, Stuttgart 1983, 567—615 (600— 604).

1

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The first problem is one of theological communication. For protestant theologians and Christians, the word "justification" bears a very special meaning; i t is directly and strictly connected w i t h man's position before God. Justification is nothing but that which enables man to stand in God's sight. What is morally permissable or impermissable in specific actions is to be judged in the light of that justification which has substance before God. The post1945 rejection of the Doctrine of Just War by German protestant theology is derived not only from actual historical experience, but also from the fundamental theological argument. This criticism draws the line at the point where the Doctrine of Just War could be conceived of as the justification of man waging war. This theological provision is connected w i t h the theological understanding of "justification", which man can receive from God through faith alone. That is, there is no life apart from sin, even for the Christian. Thus, there can be no such justification before God which may be achieved through a series of steps of "greater" or "lesser" sinfulness. 6 A casuistic teaching attempts to lay down conditions for dealing w i t h every conceivable area w i t h respect to outlining which actions are justified and which are not or which are less justifiable. This teaching can never be identified w i t h a theological understanding in its ultimate meaning. This is obviously a case of confusion of terms, in need of a clear distinction. Making this distinction is an important contribution to Christian peace ethics. True faith does not allow, indeed rejects, the waging of war, as i t does every other form of violence. This would justify an ethical motivation, strengthened by the confidence of faith, which would confirm man's belief in the mistaken idea that his own goodness could be put to the test by a demonstration of physical strength, whatever form i t may take. O n the contrary, the consciousness that we are and always remain sinners, even when seeking to do what is good, constitutes an ethic which deserves to be labelled as being Christian. Its driving force is an ethical consciousness of the real good which may be brought about by our actions and deeds for our neighbours and for the common good, whether i t is for the protection of life or for its advancement. This applies generally to all ethical problems. Therefore, a Doctrine of Just War has to be subjected to the strictest limitations (Luther placed great emphasis on this 7 ) because the word "just" here 6 For example see the arguments of: Erwin Wilkens f Der Friede und die Völkergemeinschaft, in: Johannes Christoph von Hampe (ed.), Die Autorität der Freiheit, vol. I I I , München 1967, 455—474 (457—461); and Erwin Wilkens, Theologisches Gespräch über die nuklearen Waffen, in: Günter Howe (ed.), Atomzeitalter, Krieg und Frieden, Witten/Berlin 1959, 108—159. 7 On the subject of Luther , see the study by: Karl Dietnch Erdmann, Luther über den gerechten und ungerechten Krieg (Joachim-Jungius-Gesellschaft der Wissenschaften, vol. 5), Hamburg 1984.

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can neither describe the qualities of those responsible for war and peace nor bestow upon war any privilege. Instead, i t judges and assesses them both according to the good they are meant to effect. Ethical opinions (Gesinnung), even when supported by and filled w i t h the wells of faith, are therefore in themselves no sure guideline for ethical action. They are not "unconditionally" reliable but must be measured by their consequences. The famous theologian, Karl Barth , may be used to illustrate this point. W i t h respect to "Just W a r " , after many preliminary considerations and digressions, Barth concludes8 that war could be "set and given by God's commandment in cases of extreme necessity". I n such cases faith and obedience could no longer be distinguished: "Where i t (war) is ventured upon in obedience (and therefore w i t h a good conscience) then i t w i l l be ventured upon in faith (and so w i t h joyful and unreserved resolution)". According to Barth' s teaching this unreserved spirit of venturing in faith brings the "special Christian emphasis" into the necessity of an unavoidable war. The Church should then teach the faithful that "every effort is demanded unconditionally, i. e. not dependent on the question of the success or failure of an action, and therefore independent of the question of the relationship between one's own and the opposition's strength". I n such a situation the message of the Church is to "call for the acceptance of w a r " as a "strong act of faith" and the message should be "to recognize that before all else and to proclaim that". Such opinions, expressed in the Nineteen Fifties, stand out as an exception due to their bellicose confidence in faith and, furthermore, owe more to the mentality of Swiss defense than to international politics. But they do draw attention to the theological problem of the peace discussion w i t h i n the Church. I t is questionable as to which ethical distinctions faith leads Christians. I t is also doubtful whether unreserved resolution, one way or the other, the unconditional adherence to confession, is the correct method when making a political decision as a result of the misery of human fallibility. Martin Luther 9 is a useful reference here. H e made the distinction between faith, which justifies, and secular service, which arises from faith, whilst still retaining its place in society. Luther referred to the Doctrine of Just War in a much less theological w a y ; he argued for a precise assessment of all factors in such a crisis. I n view of the misuse which could be made of general justi8

The following quotations are from: Karl Barth, Kirchliche Dogmatik, vol. I l l , 4, Die Lehre von der Schöpfung, Zollikon-Ziirich 1951 et seq., 515—538, especially 530. 9 Apart from the investigation by Karl Dietrich Erdmann in note 7 concerning Luther see also the extensive discussion in: Paul Ramsey , Basic Christian Ethics, New York 1952, 171— 184.

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fications he allowed an ethical right solely and exclusively for defense and even then called for a serious consideration of the relationship between the objective and the means of achieving it. According to Luther this review of the position could in certain circumstances require the temporary renunciation of the people's rights. H e deliberately did not seek refuge in theological justification in the ultimate sense of faith. The topical nature of these different emphasises w i t h i n theological ethics, as outlined here, is quite obvious but the linguistic aspect must also be considered. I n the language of ethics and in the legal language derived from it, "justification" means that an action is "justified" or "just" in so far as it can fulfil the criteria of universality. A n action such as "waging w a r " could only then be "just" i f it fulfilled general ethical and legal criteria, which can also be recognized generally in society. War, the settling of conflicts by force, including the taking of human life, is not an action that fulfils the criteria of universal applicability. Therefore, the use of force and war cannot be regarded as a general rule for human or even political action. The ethical and legal Doctrine of Just War, therefore, always intended to create a relationship between war and justice. I f war is inevitable, the Doctrine is intended to limit it, keep it w i t h i n bounds and link it w i t h general rules of ethics w i t h i n a given, existing order. War cannot be justified for its own sake, only for the sake of peace. Justice takes on the task of binding the waging of war to maintaining the order of peace. This was the aim of tradition and this is the significance of the word "just" in the Doctrine of Just War. I n this respect, i t has the characteristics of an ethical compromise. II. The Meaning and Intention of the Doctrine of Just W a r 1 0 1. Its Reception into Christian Ethics The Doctrine of Just War is part of the inheritance which Roman jurisprudence passed on to the Christian world. Unfortunately, only some of the relevant elements may be discussed here. I n adopting this doctrine, the Christian Church had to decide whether, and i f so, in what way, Christians should take an active part in responsibility w i t h i n the secular State. Participating in the waging of war was a crucial question here. The central issue 10 See the extensive historical references in: Janssen (note 5); and Paulus Engelhardt, Die Lehre vom "gerechten Krieg" in der vorreformatorischen und katholischen Tradition. Herkunft — Wandlungen — Krise, in: Steinweg (ed.) (note 2), 72—124; see also Anselm Hertz, Die Lehre vom gerechten Krieg als ethischer Kompromiß, in: Anselm Hertz / Wilhelm Kor ff / Trutz Rendtorff / Hermann Ringeling (eds.), Handbuch der christlichen Ethik, vol. 3, Freiburg 1982, 425—448.

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was (and still is) the relationship between the political responsibility of the State and the demands of Jesus' "Sermon on the M o u n t " w i t h its commandments to love one's enemies and renounce violence. I n fact, for reasons of faith and due to the expectation of the future kingdom of God, there could be no driving force urging participation in the business of the State. Therefore, at the beginning it was a matter of the pastoral caring for conscience and for the Christian way of life which led to the discussion and clarification of these questions. I n view of the coming kingdom of God, the order and tasks of the State as such were no topic for early Christianity. I n the history of Christian ethics it has thus been accepted as fundamental that Christians do not wage war on their own account or for the sake of faith. However, in describing the relationship between Church and State this reservation has become linked to the limiting nature of Just War Doctrine. The critical function of the latter received wider significance and a stronger emphasis beyond the ethical and legal element: the limitation of war should be directed by the knowledge of the unconditional priority of peace. The function of the State as such, although not questioned by the Church, was conceived as ontologically founded in the image of an order of peace in whose service the State exists. The ontological priority of peace forms the theological framework for the reception and content of the Doctrine of Just War in the framework of Christian ethics. Augustine's teaching paved the way for all that came later. Origen had already decided which route was to be taken. I n answer to the reproach that Christians were incapable of sharing in the responsibility of the State, he referred to Jesus' commandment of peace: "We have come, following the admonition of Jesus, to break the swords w i t h which we once defended our opinion and attacked our enemy; and we beat the swords we once used in battle into ploughshares". But, at the same time, this attitude is represented by Origen as a new means of supporting the Emperor: "There is no one who fights for the Emperor better than we do. Admittedly, we do not go to war, but we do fight for him in that we form our own army, an army of devotion through our prayers to G o d " . 1 1 The content of such prayers is above all the prayer for peace. Peace is the criterion for the Doctrine of Just War, not only relating war to justice, but also forming an inner legitimisation of all actions by the State. Its legitimate action must be measured against the priority of peace. This general concept of the order of peace linked w i t h the Doctrine of Just War forms an ethical compromise by the ethical criteria of justice. 11

Origen , Contra Celsum V, 33 and V I I I , 73.

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2. The Profile

of the Doctrine

of Just War

The classical fundamental regulations of this doctrine, therefore, lend on ethical profile to this link. This may be demonstrated by three of the fundamental criteria. a) lus ad bellum I f the State gains internal legitimization by guaranteeing and representing a general order of peace, then the right to wage war (ius ad bellum) is reserved for the State authority alone. Here lies the ancient root of the modern principle of the State's monopoly on the use of force. This monopoly is not derived from unlimited State authority, but rather depends on the State's function for the order of peace. To make a general summary, the Christian peace ethics is neither limited to an ethic of peaceful attitudes and sentiment on the part of the Christians, nor does i t imply an unconditional surrender to the god-given authority of the State. The Christian peace ethics places Christians and the State alike under the authority of peace which must be recognized both by the State and by the individual members of society as well as supported by legal and ethical argument. b) Iusta causa I f the order of peace is the criterion for the realization of peace, then a war is only justified i f the cause is just (iusta causa). But a just cause is only given i f (and there have been repeated attempts to make this more precise) a breach of law and order of peace has taken place. That is to say, there is no just cause to war until an injustice has taken place. The "Just W a r " is, in a nutshell, a war that has been caused by injustice, by a violation of justice. I n the ethical sense a "Just W a r " is not an action, but a reaction. The iusta causa, legitimizing war, is then grounded upon the re-establishment of peace and justice. A Christian peace ethic, generally speaking, looks not at the justification of war, but at the defence of and, where necessary, the re-establishment of peace and a state of justice. Herein lies the root of the concept that only a war of defense, the defense of peace and justice, is ethically justified. c) Intentio recta I f the iusta causa links war as a defense to the order of peace in this way, then the waging of war, during which a state of emergency prevails and where peace and justice are at stake, is not a matter of unlimited arbitrary action according to the motto "the end justifies the means". W i t h regard to the state of emergency in times of war, i. e. for the decision to declare war and for the

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consequences thereof, tradition demands that the waging of war must be supported by the only intention which can justify i t {intentio recta) — that of restoring peace. This rule, difficult to define in legal terms, is a definite contribution to the advising and testing of the Christian conscience. I t tries to link the waging of war itself to the only aim that counts: peace. I t also attempts to prevent the legalizing of war for the purpose of its misuse as a carte-blanche for any k i n d of war. I t is the so-called ethical care of the Doctrine of Just War. As history shows, law in a legal sense may be abused when those responsible for war do not possess such a sense of justice that should become ethically effective in a war situation or state of emergency. Summing up, a Christian peace ethic does not excuse a person from his personal ethical responsibility by way of general legal grounds. The ethical responsibility for peace is also, importantly, an appeal to the attitude and way in which the responsibility is exercised when there is an attempt to solve a conflict by force. This is where "ius in bello " becomes relevant. A n ethical limitation is called for along w i t h a demand to be concerned w i t h the way in which war is waged. The legal formulation of this rule has only been laid down in recent times. I t is particularly important because it is the starting-point for the topical debate about the relationship between the means and ends of war in the age of the capability of mass destruction. I n other words, the intentio recta , the intention of a just war directed towards peace, must do justice to peace, or elements of peace, both during the war itself and regarding the manner in which i t is being waged. I f this is not done then the aim of peace w i l l be denied by the way in which the war is waged. A n y aims of war which are clearly incompatible w i t h the aim of peace are disqualified from enjoying the label of "Just W a r " . 3. The Historical

Relevance of the Theory of " Just War "

I t must be asked whether the Doctrine of Just War has historically played any significant role at all. A sceptical view would indicate that i t has played a far less important role than might be inferred from its general acceptance in ethics and law. I t could be stated that each of the arguments mentioned could be interpreted and abused w i t h discretion. The defense of peace by means of destroying all further possible causes of war (i. e. by conquering the offending territory and expanding sovereignty) could also be interpreted as a just cause for war. 1 2 There is a heavily-debated concept of "double effect" 12 Concerning the unresolved scope for interpretation in the Just War Theory, see the explanation and references in: Jost Delbrück, Die Auseinandersetzung um das ethische Problem der atomaren Kriegführung in den Vereinigten Staaten und der Bundesrepublik Deutschland, in: Abschreckung und Entspannung. Fünfundzwanzig Jahre Sicherheitspolitik

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which could lead to the just intention always being interpreted, so that the unintended but inevitable destructive consequences of war are unscrupulously permitted as a necessary by-product of the good intention. I t is unclear who w i l l decide what is a just or an unjust intention. When the State authority assumes sole responsibility and a monopoly of force, other problems arise. Such monopoly has a peacemaking function as regards internal peace, which is well known from the concept of public peace (Landfrieden). The problem arises w i t h the development of national sovereign states. I t is for the individual sovereign state to determine for itself what may constitute a just cause. That is a necessary consequence of the equal sovereignty of states. A n d should the situation arise where, in a state of war, both the participants have a just cause, the doctrine of iusta causa ex utraque parte arises and the Doctrine of Just War comes to a standstill. A l l these related problems, objections and sceptical comments must be taken into consideration. When dealing w i t h the claims and tasks of ethics, it is a case of "abusus non tollit usum" . I t is the proper use of this doctrine which should be of primary interest today. The question is whether the Doctrine of Just War can stand the test when applied to problems which have arisen in our own age. III. Ethical Problems of the Doctrine of Just War I t is necessary to emphasize two problem areas in particular which prevent a simple readoption and continuation of the Doctrine of Just War in peace ethics today. 1. The Proportionality

of Means and Ends in the Nuclear

Age

The limiting nature of the Doctrine of Just War, as conceived in the notion " ius in bello", was already a problem in the First W o r l d War and much more so in the Second W o r l d War; indeed it was shaken to its foundations. The waging of war w i t h means and strategies of mass destruction is an inexorable feature of the political and ethical discussion of peace. I n the Second W o r l d War the distinction between combatants and noncombatants, important for the concept of "ius in bello n, was effectively undermined. Wars which are waged as wars of mass destruction and which aim at total victory or total defeat do not allow for the assessment of the relativity between means and ends. The empirical description of these historical experiences may differentiate and bring out shades of ambiguity in this judgement. zwischen bipolarer Konfrontation und begrenzter Kooperation (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel 76), Berlin 1977, 95—197.

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The historical lesson has not prevented wars from being fought in other places and in other political and geopolitical conditions up to the present 13 . This, however, is beyond the scope of this discussion. A t the same time, however, the awareness has grown that conflicts and injustices do exist in the world in proportions — or even better in disproportions — which exceed warlike conflicts in their extent, and which cannot be solved by violent solutions. 14 I n such situations the Doctrine of Just War, i t seems, tends towards a means of action which is no longer adequately covered by its end, namely a "just order of peace". The credibility of a "just" war concept is therefore questionable. I n the present debate on nuclear armaments, this problem has become more acute in view of the fact that a nuclear war may one day be waged. The area at which most questions are directed is the problem of proportionality. Destruction by a major nuclear war would destroy friend and foe alike. The long-term consequences for life on earth are both unforeseeable and incalculable. As such they cannot be the subject of a "responsible" balancing out of ends and means. Extending this debate further into the framework of the ethical and legal claims of the Doctrine of Just War, two aspects emerge as being dominant, i. e. having put to one side the many controversial and contradictory estimates of all the empirical factors of weapon technology: the use of weapons and the consequences. As mentioned above, the point in the debate of nuclear deterrence concerns the proportionality of the means to any conceivable aim of war. I n this respect, the discussion is developing in the direction of demands which would make it possible to limit a war and keep i t in bounds. I t is on these criteria that the demand for purely defensive weapons is based, a demand that is orientated towards defense as the only justifiable "iusta causa" . Based on similar criteria is the demand to lessen our dependence on nuclear weapons or to get rid of these completely in favour of the so-called conventional weapons, which would then allow the waging of war according to the old conceptions of "conventional" war. The ethical constraint behind both sets of demands is unmistakable and is based on experience. However, in renewing the old concept of a "just" war, (i. e. the revival of the "ius ad bellum " and "ius in bello " purely by means of a change of weapons) this 13

In the past 35 years there have been more than 140 wars with around 10 million casualties. They have taken place beyond the bounds of nuclear deterrence. See: Michael Quinlan , Thinking deterrence through, in: R. James Woolsey (ed.), Nuclear Arms, Ethics, Strategy, Politics, San Francisco 1984, 62. 14 This applies principally to the problems of developing countries and to the whole problem area of the North-South Conflict. Nowadays it would be more appropiate to talk of the helplessness of war!

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ethical constraint is pointing in the wrong direction — namely, into the past which tried to include war in the calculation for peace. A further point under discussion concerns the relation between a possible use of nuclear weapons in an East-West conflict and the actual deployment of nuclear weapons w i t h i n the framework of the strategy of deterrence, aimed at preventing such a war. The argument to be discussed here, stems from the arsenal of the Doctrine of Just War — namely, that he who deploys nuclear weapons must also be prepared, i f necessary, to use them. This argument, when seen in the context of the Just War Doctrine, touches upon the "intentio recta " which, expressed in the language of moral theory, is the distinction between deployment and morally legitimate use. Although deployment is primarily intended (intentio recta) to prevent war, paradoxically there must always be a readiness to effect their use; this paradox is both unavoidable and inevitable. This argument has been put forward by the American Bishops regarding the Just War Doctrine. 1 5 I t is quite plainly an ethical dilemma. Those Germans who have joined the ranks of those involved in the above-mentioned conflict have referred to and, indeed, are concentrating on this line of argument; although, they express it in a different way. This dilemma has, however, in principle at least, no solution. Furthermore, upon that basis, can an ethical demand for peace be made? The real perplexity here lies in the question of the actual "conditions of peace". I n present-day discussion, talk of merely surviving has come to the fore. This ought to act as a signal for Christian peace ethics, the purpose of which consists of more than the mere amplification of perplexities and fears. Christian peace ethics should t r y and prevent us from giving into the spell which the sight of weapons of war is able to cast over our thinking. 2. The Crisis of the Concept of Peace 16 Behind the ethical dilemma of nuclear deterrence another problem arises which is of even greater importance. The traditional Doctrine of Just War 15 The Challenge of Peace: God's Promise and Our Reponse-Pastoral Letter of the National Conference of U.S. Catholic Bishops (1983), German Translation in: Hirtenworte zu Krieg und Frieden, Köln 1983, 125—285. Concerning the discussions see above all: Albert Wohlstetter , Bishops, Statesmen and other Strategists on the Bombing of Innocents, in: Commentary 75 (1983), 15—35; and Albert Wohlstetter / Bruce M. Russet et al. } Morality and Deterrence, in: Commentary 76 (1983), 4 et seq.; The German Church Statements make very little or no use of the Just War Theory. See: Gerechtigkeit schafft Frieden. Wort der Deutschen Bishofskonferenz zum Frieden, in: Hirtenworte zu Krieg und Frieden, Köln 1983; and the German Protestant Church Memorandum: Frieden wahren, fördern und erneuern, Gütersloh 1981. 16 On the subject of the historical change in the concept of Peace, see: Wilhelm Janssen, "Frieden", in: Brunner et al. (note 5) vol. 2, Stuttgart 1975, 543—591.

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arose from the framework of a "Peace Order Concept", obliging all partners in a conflict and relating them to each other. The criteria of a "just w a r " referred to this concept of peace. The idea of a "peace of God" (the medieval "Gottesfrieden") and the idea of justice, which was equally binding for all parties, served as a fundamental basis, explicitly or implicitly, to all the parties in a conflict. That was also true for the modern community of sovereign states founded on common principles of law as they are. As a result of the modern revolutions of the late 18th century, the content and the efficiency of such a concept of peace has suffered a severe crisis. Most significantly, the previously unknown concept of the " w a r against the state" (i. e. the struggle against a certain form and constitution of the state, which must be overcome) has become a new reason for war. As a result of this development, there is a two-fold consequence for the concept of peace which still exists today. War fought w i t h the aim of setting a different, new political order is then no longer related to a common and universal order of peace which embraces the conflicting parties and so limits the conflict. Such a war seeks to destroy the false, antiquated, unlawful or oppressive political order; i t is no longer regulated by an order of peace which is already given. Rather, the aim of war is to establish afresh the true and new order of peace. However, when the aim of war and the aim of peace are one and the same, then war itself can be construed as a promotor and source of future peace. To this extent, peace looses its normative regulatory power. This leads us to the second consequence, namely, that war in this sense can appear to be absolutely just because it is in principle the " w a r against war", i. e. the war against the real cause of previous wars which lies in the oppressive order to be overthrown. The war to end all wars has then on its side the pathos of the last war. Secular messianic claims to the realm of peace are brought into play and a claim of final peace takes precedence over any idea of an order of peace which embraces the conflicts going on in the world. The consequences of this development are all too easily recognizable: destruction followed by re-creation, but on a different basis. Peace is threatened far less by the weapons held in the hands of men than by the agreement in convictions and unreconciled conceptions of peace which no longer unite, but divide. This leads to the concepts of peace which have war as a necessary pre-requisite before they can be realized. The concept of a uniting and obliging peace has reached a point of crisis and herein lies the future real and decisive threat. Our era w i l l be determined by this crisis and, thus, any intellectual account of peace ethics must address it.

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IV. From the Doctrine of "Just War" to the Doctrine of "Just Peace" 17 1. Thinking

Towards

Peace

What are the peace aims from which the means by which we act should be derived, judged and determined? That is the new question w i t h which the basic ethical intention of the traditional Doctrine of Just War faces us today. Approached constructively, the legal and ethical meaning of this doctrine was to subject war as a violent way of settling conflicts to the concept and the rule of law and justice, which themselves are supposed to be instruments of peace. The fundamental attitude to which the Doctrine of Just War appealed was in short: thinking from the basis of peacel We are living in an era in which this appeal is fundamentally being questioned. That is true in the sharpest and most obtrusive way, especially w i t h respect to the EastWest conflict, which dominates all other conflicts. The crisis of the concept of peace which marks our era did not start w i t h the East-West conflict, nor w i t h nuclear deterrence. The birth of modern pacifism, which has had its advocates in Europe since the last part of the nineteenth century, is itself a reaction to and a reflection of the power politics of rival antagonists which were no longer supported by a convincing concept of peace. The power politics are reaching fruition under the conditions of a consistent ideological determination of the antagonism in the East-West conflict. The profound questioning of the concept of peace itself encompasses the questioning of all the other peace-related criteria and orientation and thus involves political action as well as ethical consciousness in the crisis. The fundamentals of law, justice and responsibility are lacking the perspective to serve as more than a precarious management of a status quo, lacking in peace. To this extent, the role played by weapons in the discussions has been that of a questionable substitute and a representative for the image and concept of peace. Expectations and hopes of peace are being addressed to weapons, though these expectations hardly seem attainable by means of weapons, armament or disarmament. I f one considers the whole spectrum of moral, 17 This section develops the arguments that the Just War Theory can no longer be applied in the Nuclear Age. The decisive turning-point is the fact that there is no convincing ethical justification for a " ius ad bellum" in the event of a Nuclear War. The North American debate has therefore concerned itself merely with "ius in bello " to gain ethical criteria for the use of atomic weapons. This quest for ethical criteria, as justified and necessary as it is, lacks the foundation as expounded in the "ius ad bellum " doctrine. An ethical and political Peace Doctrine must take its place. The avertion of nuclear war (deterrence) can provide an ethical and political foundation from which criteria for the use of nuclear weapons for deterrence or ending of a nuclear war can be developed.

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legal, philosophical and political concern, and if one equally regards the fulness of intellectual and spiritual resources which are put into this debate, then the objective lack of peace perspectives from which this era is suffering stands out all too plainly. Therefore, if there is a task which can be grasped in moral and intellectual categories, then it is: thinking towards peace. 2. The Concept of Peace Nobody today w i l l readily want to don the mantle of a new Augustine. But it might be helpful to discuss the cut and pattern of such a garment. I f we could succeed in diverting even a small part of the moral and intellectual energies, which today are expended on the discussion of weapons and strategies, to this task, we should have achieved a step in the right direction. For Christians and for the Church alike, peace symbolizes, most importantly, the perspective of the peace of God as it appears in the O l d Testament language of prophecy and promise and in the N e w Testament language of fulfilment and expectation. The message that we hear from there, in secular measure, is that we live from peace and not war. The same is also true in an ontological and ethical sense of human political and social life. The ethics of peace w i l l have to ask what is to be gained from the image of universal reconciliation and all-sufficient fulfilment for a w o r l d which is anything but united in its beliefs and expectations, and for whose peace the faith of Christianity cannot be made an enforceable condition. Thus, the question arises as to how the expectation of peace can be translated into a task of peace towards which we can think. A comparison might be helpful at this point. The W o r l d Health Organization has, as is well known, defined health in a way which — mutatis mutandis — might also be characteristic of an exacting peace concept. Following this definition, health is the state of complete physical, mental and social well-being. The formula is an advance in medicine in that it revises the idea that health exists i f one is free from bodily disturbances. Analogously, one can define peace (looking at political peace in particular), as being more than the absence of the immediate violence of war. I n the complete sense, peace is a life which satisfies all, which brings peace in unclouded unanimity w i t h oneself and one's neighbor, w i t h the community of nations as a whole. The logical conclusion from such a concept of peace is only this: there is no peace in the world and, furthermore, i t transcends the possibilities and capabilities of mankind. As purely a demand for what should be, such a concept of peace would tend to have more of a disorienting than an orienting function

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for the ethics of peace. The definition of health by the W o r l d Health Organization also leads us to the conclusion that basically nobody is healthy. Borrowing once again from this concept of health, i t can be maintained that health, rather than the absence of disturbances, is the strength to cope w i t h these disturbances independently and to live w i t h them. 18 Transposed onto the concept of peace, we can say, therefore, that peace is not the complete absence of political conflicts, but the sum of the abilities and instruments for dealing w i t h them in something other than a violent manner. Peace is the ability to deal w i t h conflicts politically. A n active willingness for peace must live up to its political task. Peace is not the possession and exclusive claim of one system above or against another system — and therefore such claims that peace results from the success of the international class struggle, or that peace can only be the victory of democracy 19 , are false. Rather, peace is a condition of the conflict of systems itself and demands a recognition which challenges the antagonistic aims of peace. 3. The Role of Military

Tor ce

Considering peace under this perspective, we must question anew the role of military force. Bernard Brodie had, as early as 1945, (i. e. long before nuclear deterrence had taken shape) formulated the thesis 20 that in the future military armaments could only be used to prevent war. Taking this a step further, we can formulate, using a phrase that is completely apposite in its general direction: "Create peace without using weapons". The renunciation of force in international law, as formulated in the Kellogg Pact, outlawing war as a means of pursuing and attaining political aims, assigns military power basically only a role in the framework of this renunciation of force. The only rational and ethically comprehensible function of military force when raised to the height of nuclear weapons is to make the renunciation of force compelling and to give this renunciation and its ethical, political and legal demands an unavoidable and compelling instrument. A t this point, military force moves into a perspective which steps out of the area of the concept of a "just war". This compelling renunciation of war is the imperative of nuclear deterrence in a w o r l d situation, in which apparently antagonistic peace aims cannot otherwise be prevented from being realized. The existence 18 The argument here follows: Dietrich Rößler, Der Arzt zwischen Technik und Humanität, München 1977, 60—61. 19 See also: Egbert Jahn, Eine Kritik der sowjetisch-marxistisdien Lehre vom "gerechten" Krieg, in: Steinweg (ed.) (note 2), 163—185; and Gottfried Kießling / Wolf gang Scheler, Friedenskampf und politisch-moralische Wertung des Krieges, in: Deutsche Zeitschrift für Philosophie 24 (1976), 37—49. 20 Bernard Brodie et al. (eds.), The Absolute Weapon: Atomic Power and World Order, New York 1946.

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and escalation of nuclear deterrence is not the root, but it is the consequence, of this antagonism. M i l i t a r y force has, therefore, the task compelling an antagonistic partnership of the systems. Nuclear deterrence takes part in the perplexity of peace. I t cannot be expected that the military guarantor of the prevention of war as such w i l l also be the guarantor of a new concept of peace, which changes the antagonism. The discussion about "more" or "fewer" weapons and armaments and their strategic planning is certainly not yet a peace debate. Indeed the movements which owe their existence to this discussion are still not yet adequate peace movements. The weight of the compelling renunciation of force that nuclear weapons have thrown into the scale of peace cannot and must not be reduced until we have succeeded in compensating for the weight of the antagonism of the systems by a concept of peace which embraces this antagonism and is able to change it. U n t i l that has been achieved the function of military force, aimed at the renunciation of force altogether, w i l l not be able to do away w i t h the dilemma which faces us. There are many difficult and delicate questions of varying importance as to how we can be pressured into renouncing force. This process must be thought through well and planned in advance to minimize, limit and keep in bounds the use of force in the case of an outbreak of military conflict. These questions and activities arise as a result of nuclear deterrence. However, not only ethical reasons but also political and military reasons speak out strictly against ascribing to this military planning a leading role as peacemaker. A "just war " is today no longer regarded as a means to a "just peace". The prevention of war is the bond that links military power w i t h the task of peace. 21 4. The Problem of Peace in the Conflict of Systems One must take a good look at the size and the historical roots of the conflict of systems which exist at the present time in order to establish the measure of the task w i t h which we find ourselves confronted. The East-West conflict goes back well into the nineteenth century in its intellectual and spiritual roots. Far from being just a military antagonism, i t touches on almost all questions concerning the political and social constitution, the public estimate of culture and religion and, indeed, also the relation of individual life and its rights to political society. The consideration of these areas afresh and w i t h 21

This point incorporates ideas from: Klaus Ritter, Einige Anmerkungen zur Friedensdiskussion, in: Frieden politisch fördern. Richtungsimpulse. Published by Evangelische Kirche in Deutschland, Gütersloh 1985, 11—32.

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clarity is an important requirement for all who want to extricate themselves from the spell of confrontation. I n addition to the compulsion to renounce force (though we cannot as yet dispense without a military back-up), there emerges the compulsion to co-exist. I n other words, the starting point for a new consideration of international justice is the recognition of interdependence. Justice by virtue of its very nature cannot be one-sidedly defined and realized; i t should provide a form for a relationship of mutual dependence. What is true of economic justice is also true of political justice. Justice is, therefore, the opposite of the concept of domination of one over the other. Peace, as has rightly been stated, is therefore not a state or even a final state, but a process. The questions w i t h which we are faced today and which we must pose to our own discussion of peace is, therefore: what change in the conflict of systems can we accelerate and how indeed can a transformation of the conflict of systems be set in motion or accelerated along lines already started? However, the imperative of change as a process of a new fashioning of peace is a political imperative, the perspective for which is, to a large extent, blocked today by fences made of weapons, but which challenges us to look beyond these fences. The imperative of change cannot halt at a stability guaranteed by military confrontations quite simply because this stability is not an adequate peace aim. One of the greatest and most significant elements of change is the conception of human rights 2 2 , the roots of which are to be found in an image of freedom. This freedom is, however not identical w i t h the boundaries and self-preserving interests of political systems which are a law unto themselves. The concept of human rights is also founded upon the idea of a law that is prior and superior to every state, however politically constituted. As for the perception and realization of human rights, we have no comparable means of compulsion available because they cannot, by their very nature, be based on compulsion. Their development and deployment as an inner yardstick for the change of political structures must therefore claim a freedom of movement, the conditions for which can only be provided by the state's monopoly of force. But human rights do not merely exist as an idea or as a moral consciousness. They are closely connected w i t h the economic, political, legal and cultural organization of societies and systems. A change of system which does not simply negate the maintenance of political systems or underestimate their importance must, therefore, be conceived as a process which makes i t possible 22

See, e.g., Jost Delbrück, Menschenrechte — Grundlage des Friedens? In: HansThimme / Wilhelm Wöste (eds.), Im Dienst für Entwicklung und Frieden. In memoriam Bischof Heinrich Tenhumberg, Mainz/München 1982, 89—102.

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to approach the canon of human rights along material, economic and organisational paths. Thus, the symmetry of a dogmatically-oriented conception of human rights cannot determine the change either. I n this perspective the thought of unilateralism (i. e. steps taken by one side), has the best chance of pointing to the future. Offers by the West to co-operate economically w i t h the East, which are not tied to equally-weighted or symmetrical performances by the other side, but which could help the independent evolution of still underdeveloped possibilities as a condition of more freedom of movement in their life, could under certain circumstances be a suitable investment i n the process of peace-building. The policies of the German Federal Republic towards the East, which have sometimes been criticized because of their unbalanced unilateralism, are a considerable contribution to such a transformation of the conflict of systems. 5. Internal

and External Peace

What is true of the conflict of systems, namely that there is no military solution to i t w i t h a promise for the future, is also true "internally" . I t should never be forgotten that no society can in the long run be set up and established on the foundation of military force alone. Protection from external force does not guarantee a just domestic peace. This aspect hardly plays a part in the tradition underlying the Doctrine of Just War, but is nevertheless of great importance for us today, and rightly so. We are aware nowadays of the dangerous reactions which an external military confrontation taking place over a lengthy period of time — especially during times of peace — has upon the internal, moral and juridical structure of our society. I n principle, however, that is true for all nations. One point which cannot be emphasized enough, is that in a democracy there can indeed be no mandate for self-destruction. Self-preservation of political power, however necessary i t may be, cannot make use of any carteblanche. I n the long run, therefore, the imperative of change must also be recognized as an imperative of political self-preservation. I t is not at all cynical to say that high aims can be achieved only when they are allied w i t h practical political interests. The moral and political pressure on governments and majorities, not to regard the existence of their own electors as hostage in a future war may not and should not be used without regard to constitutionally and legally regulated methods of political expression as to what they desire. This pressure and the movement that has resulted from it have so far produced no perspective which has taken us further in the direction of peace. However, i t can still make the imperative of change in the peace process so compelling that its

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translation into political action does at least, out of the motives of political self-preservation, lead to new actions. Similarly, the unlimited discussion in free societies is a piece of unilateralism, in that possibilities and constraints of one-sided measures emerge, which do not necessarily remain w i t h i n the symmetry of the systems. The burden of freedom carries w i t h it at this point the greater hope. V. The Churches and Peace The Churches which offer the peace discussion a forum today entered this discussion in the fifth century w i t h the Doctrine of Just War. Therefore, they cannot simply extricate themselves from this discussion on the basis that the discussions do not fall w i t h i n Churdi affairs, nor can they do so on the basis that the whole direction of these modern problems in science, technology and the conflict of systems are repugnant to them. We are half way between a Doctrine of Just War and a doctrine of "just peace", and the Churches have the important task of accompanying those along the way. O n l y i f we have reason to hope that the w o r l d has not been abandoned by God and that God's peace holds sway over all that we undertake, can we be encouraged to think towards peace. The Churches cannot lay down a political perspective for peace, but i t is their task to proclaim and assert that it is meaningful and not without hope to become engaged in seeking a new peace perspective in the world.

Military Uses of the Oceans by Elmar Rauch * I. Introduction Back in 1983 the N o r t h Atlantic Treaty Organization ( N A T O ) decided to proceed w i t h the deployment of P E R S H I N G I I and ground-launched cruise missiles ( G L C M ) in Europe in accordance w i t h its dual track decision of 12 December 1979 in order to redress the situation caused by the stationing of the Soviet SS 20, a mobile, mirved and highly accurate missile w i t h a reload capability. This decision and the breakdown of the Geneva Intermediate Range Nuclear Forces ( I N F ) Talks led to increasing public opposition to the deployment of land-based missiles and to a resurgence of interest in the possibility of deploying new systems at sea. O n 24 October 1983 the Study Group on European Security of the Association of German Scientists submitted a memorandum which suggested that the West should make a proposal at the I N F negotiations in Geneva to deploy about 150 sea-launched cruise missiles (SLCM) on submarines instead of the land based P E R S H I N G I I and GLCM's i f the USSR would agree to "drastically reduce" their SS 20's. 1 A t the time the N A T O Long-Range Theater Nuclear Forces ( L R T N F ) modernisation decision was under consideration the H i g h Level Group ( H L G ) gave serious thought to the SLCM's. According to German officials Chancellor Schmidt pressed the H L G to study the possibility of sea-basing as a means of increasing participation of the European Allies. The sea-based option was analysed as part of a possible L R T N F package but was rejected for several reasons. The H L G concluded that there were military and political advantages * The author was a member of the delegation of the Federal Republic of Germany to the Third United Nations Conference on the Law of the Sea. The views expressed herein embody only the author's own personal reflections and should not be taken as the official position of the German government or the Ministry of Defense. 1 Memorandum der Studiengruppe "Europäische Sicherheit" der Vereinigung Deutscher Wissenschaftler, published 24 October 1983; see also Helmut Schmidt's interview with the weekly newspaper "Die Zeit" of 12 June 1981; Carl Friedrich von Weizsäcker, Die neuen Raketen gehören auf See, in: "Die Zeit" of 22 May 1981; idem , Gefahren der Rüstungen in den achtziger Jahren, Europa und das Raketengleichgewicht, in: "Die Zeit" of 16 November 1979; Paul A. Chaldwell, Can the European Theater Nuclear Force be based at Sea?, in: National Defense 76, July/August (1982), 26—29.

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to the G L C M unavailable in the SLCM. 2 I t would transgress the scope of this paper to analyze the military and political considerations in the context of a sea-based option. As a matter of principle, however, as long as weapons and in particular weapons of mass destruction are w i t h us, mankind should make sure that they can be deployed at sea, because this is a means to avoid siting of strategic missiles in densely populated areas, thus alleviating the hostage function of the civilian population and preventing collateral damage, i. e. incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, in the event of a preemtive or retaliatory strike of the adversary against such missiles.3 A t the risk of being misunderstood or maliciously misinterpreted I strongly believe that the participating states of the T h i r d United Nations Conference on the Law of the Sea ( U N C L O S I I I ) were wise and should be commended for having rejected all attempts to demilitarize the oceans or to severely restrict military uses of the sea. From a military point of view the new LOS Convention protects to the fullest extent the security interests of the naval powers. A n d there is no reason to be disquieted about this development. A n effective system of mutual deterrence between the superpowers is in the best interest of mankind as a whole. I t is a widely shared view that "military uses" was one of the neglected issues at U N C L O S I I I . 4 Arvid Pardo , the former ambassador of Malta to the U N whose statement in the General Assembly on 17 August 1967 regarding the establishment of an international regime for the sea-bed and ocean floor beyond the limits of national jurisdiction was one of the events that eventually led to U N C L O S I I P spontaneously picked out problems of military uses of the oceans and polar regions of a list of seven topics as issues that were

2

The reasons are spelled out in the Second Interim Report on Nuclear Weapons in Europe, prepared by the North Aatlantic Assembly's Special Committee on Nuclear Weapons in Europe, Report to the Committee on Foreign Relations, United States Senate, January 1983, US Government Printing Office, 20 et seq. 3 As to the latest development concerning the law of armed conflict in general and the protection of the civilian population in particular, see Art. 35—60 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 10 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflict, Geneva 1974—1977, reprinted in: International Legal Materials (ILM) 16 (1977), 1391—1441; American Journal of International Law (AJIL) 72 (1978), 457—502. 4 See Robert L. Friedhelm / Robert E. Bowen , Neglected Issues at the Third United Nations Law of the Sea Conference, in: John King Gamble , jr. (ed.), Law of the Sea: Neglected Issues, Proceedings, Law of the Sea Institute, University of Hawaii, Twelfth Annual Conference, October 23—26, 1978, The Hague —Hawaii 1979, 6—10. 5 U N Doc. A/6696; A/C. 1/PV 1515, in: General Assembly Official Records (GAOR), 22nd. Session (Sess.), General Committee, 1515th meeting of 1 November 1967.

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neglected at U N C L O S I I I because they were too overtly political or too delicate. 6 For those who participated in the negotiations i t does not come as a surprise that the "general feeling" of the Conference, as far as military uses are concerned, has cum grano salis found no visible fallout in the official records and that the genesis and development of pertinent treaty articles are rather obscure. A l l substantive discussion of questions w i t h security policy or military implications was off the record. We are left w i t h the text of the Convention and have to interpret its provisions in good faith in accordance w i t h the ordinary meaning to be given to the terms in their context and in the light of its object and purpose. 7 The actual drafting of the Convention corroborates this evaluation. I n the more than 400 articles of the Convention and its annexes the term "military activities" appears only once where i t was absolutely unavoidable, namely in the provision listing the optional exceptions from the compulsory third party dispute settlement system.8 Beyond that, specific aspects of military uses are mentioned only in the context of the definition of innocent passage (e. g.y exercise or practice w i t h weapons of any kind, acts aimed at collecting information to the prejudice of the defense or security of the coastal state, launching, landing or taking on board of aircraft or any other military device) 9 or as justification to suspend temporarily innocent passage (weapons exercises). 10 I n general, the Convention avoids such terminology and avails itself of language such as "other internationally lawful uses of the sea" 11 , "other activities in the marine environment" 1 2 , "activities carried out by other states in the exercise of their rights and in pursuance of their duties" 1 3 or "other legitimate uses of the sea" 14 which include military activities. Another device is the famous "inter alia " definition of the freedom of the high seas15 or the distinction between economic purposes and non-economic purposes, the latter comprising, of course, military ones 16 . What has been said about the β Friedhelm / Bowen (note 4), 8. 7 Art. 31 par. 1 Convention on the Law of Treaties, in: I L M 7 (1969), 679—713. 8 Art. 298 (1) (b) (all articles cited without special reference are those of the LOS-Convention). » Art. 19 (2). i® Art. 25 (3). u Art. 58 (1). 12 Art. 147 (3). is Art. 194 (4). 14 Art. 240 (c). 15 Art. 87 LOS Convention; Art. 2 High Seas Convention of 1958, in: United Nations Treaty Series (UNTS) 450 (1964), 11. ie See Art. 60 (1) (b), Art. 80.

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Convention text holds also true for the statements of delegates. W i t h the exception of the heated discussion of the innocent passage of warships and some other incidents, which w i l l be mentioned later, military activities were not expressly mentioned. That does not mean that military uses were neither high on the agenda nor very often the focal point of exacerbated controversy. Quite the opposite is true, as w i l l be shown in detail later. I n the final analysis one can speak of an "intentional neglect" of military uses for the record while in reality this aspect of ocean use played a major role in informal and confidential negotiations. I t should not be overlooked that Arvid Pardo's initiative in 1967 was not restricted to the exploration and exploitation of the common heritage of mankind and that at exactly the same time in a parallel development the t w o superpowers tried independently to get a new LOS Conference under way. Pardo had also called for the demilitarization of the sea-bed beyond the limits of national jurisdiction. A t that stage the issue of exploitation of the mineral resources of the deep sea-bed and the ocean floor, which during U N C L O S I I I occupied the limelight was little more than a side aspect. Upon the insistance of the superpowers the arms-control aspects of the sea-bed problem was later referred to the Disarmament Committee in Geneva where intensive discussions of a sea-bed arms-control treaty started in 1969. 17 The bilateral consultations between the USA and the USSR resulted in a joint draft treaty which they submitted on 7 October 1969 to the Committee and which became the basis for the Seabed Treaty of 11 February 1971 18 . However, this treaty covers only nuclear, chemical, biological, radiological and other weapons of mass destruction i f they are emplanted or emplaced on the ocean floor or in the subsoil thereof beyond a 12 nautical miles coastal zone. Vehicles or other devices, carrying nuclear weapons or any other type of weapon of mass-destruction, that can move only when in contact w i t h the seabed are included in this prohibition, because the term "emplace" in contrast to "emplant" covers mobile installations. 19 A l l other military uses of the oceans, 17 The Committee was renamed in 1970 Conference of the Committee of Disarmament (CCD). 18 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof, in: United States Treaties and other International Agreements (UST) 23 (1972), Part 1, 701; German translation reprinted in: Jost Delbrück (ed.), Friedensdokumente aus fünf Jahrhunderten, Erster Teilband, Kehl — Straßburg — Arlington 1984, 659—662; for an analysis of this development, see: Rüdiger Wolf rum, Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being?, in: German Yearbook of International Law (GYIL) 24 (1981), 200—241 (220—224). 19 For a discussion of such mobile installations and vehicles navigating at a very short distance from the seabed and resting on it from time to time, see: Tullio Treves, Military Installations, Structures, and Devices on the Seabed, in: AJIL 74 (1980), 808—875 (821—822.)

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notably those relating to conventional weaponry, anti-submarine-warfare (ASW) equipment and submarine deployed weapons of mass-destruction in times of peace are regulated by the LOS Convention. The second root of U N C L O S I I I seems to be almost forgotten. After U N C L O S I I in 1960, devoted exclusively to the problem of the legitimate breadth of the territorial sea, failed by one vote to adopt a US-Canadian proposal for a 6 mile territorial sea and a 6 mile contiguous (fisheries) zone, the Soviet Union approached the United States in 1967 to find out whether this question could be solved at a new LOS Conference. Later the USSR circulated a diplomatic note to 60 countries inquiring about the possibility of a new conference on the law of the sea to fix the breadth of the territorial sea at 12 nautical miles. Subsequently, both superpowers circulated draft articles on the territorial sea and straits, one of the most sensitive issues w i t h far reaching security policy and strategic implications 20 . This might suffice to illustrate that the problem of military uses of the oceans was being given high priority already before U N C L O S I I I started. II. Law of the Sea Convention and Naval Missions To be sure, the new Convention constitutes part of the law of peace and is not intended to regulate the law of naval warfare. Nonetheless, the new treaty instrument does have certain ramifications on the law of armed conflict at sea, which, however, w i l l not be addressed in this paper 21 . The Convention is not only of utmost importance to the deterrent, or peacetime, function of naval missions, but also for their combative function, since in time of tension and crisis immediately preceding the outbreak of hostilities navies have to abide by the peacetime law of the sea. This may be decisive for the execution of their wartime missions once an armed conflict has started. There are many different ways to label the navies' missions and there are, of course, overlaps and interdependence. Most commonly a quartet of missions is distinguished: 1. N a v a l presence, 2. Strategic deterrence, 3. Sea control and 4. Projection of power ashore. 22 Sometimes these four are compressed into two basic cate20 Bernard H. Oxman , The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981), in: AJIL 76 (1982), 1—23 (4). 21 As to this aspect of the LOS Convention, see: Elmar Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of he Sea: Repercussins on the Law of Naval Warfare; Report submitted to the Committee for the Protection of Human Life in Armed Conflict of the International Society for Military Law and Law of War, Berlin 1984. 22 S tans field Turner , Missions of the US Navy, in: United States Naval Institute Proceedings (USNIP), December 1974, 19—25; Sergej G. Gorskov , Voennomorskie floty ν vojnach i ν mirnoe vremja (Navies in War and Peace), in: Morskoj sbornik 1973 No. 2, 13—25.

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gories: Sea control and projection of power shore. 23 A t any rate, the two dominant naval powers on the contemporary w o r l d scene, the United States and the Soviet Union, seem to have assigned their navies very similar i f not identical missions. 24 These two powers, the only ones left w i t h true blue water navies, wanted to preserve the legal framework which enabled their navies to execute their mission of naval presence or political presence which is the offspring of the gunboat diplomacy of the 19th century, when maritime powers paraded their naval forces to intimidate other states. The sea presence mission has been defined as "the orchestrated use of naval forces below the level of hostility in support of foreign p o l i c y " 2 5 , and can be accomplished w i t h two tactics: preventive deployments and reactive deployments. The fulfillment of this mission hinges more on perceptions of third states than i t does on the warfighting capabilities of the fleet in question. Therefore, i t is very difficult to determine when this mission becomes coercive diplomacy. Both superpowers have frequently sent their vessels to politically or militarily troubled regions like Central America or the Middle East as a show of support for friendly states or as a counterbalance to the naval presence of the other superpower and w i l l continue to do so. Wherever nowadays ships of one superpower show the flag we can see equally modern and capable units of the other one juxtaposed. Strategic deterrence is by far the most important peacetime mission of the superpowers' navies in the era of nuclear powered submarines. I n modern times the term "sea control" connotes the concept of control in limited areas and for limited periods of time by denying an enemy the possib i l i t y to some seas at some times and asserting one's own capability to use some seas at some times, using four different tactical approaches: sortie control, chokepoint control, open area operations and local defense. 26 I t is rather 23

S tans field Turner , Designing a Modern Navy: A Workshop Discussion, in: Power at Sea II. Super-powers and Navies, in: Adelphi Papers No. 123, 1978, 25—28. 24 Alva M. Bowen , jr., The Anglo-German and Soviet-American Naval Rivalries — Some Comparison, in: Paul J. Murphy (ed.), Naval Power in Soviet Policy, Washington 1978, 57— 107; Claude R. Thorpe, Mission Priorities of the Soviet Navy, in: Murphy, op. cit., 155— 168; Robert Wanng Herrick, The USSR "Blue Belt of Defense" Concept: A Unified Military Plan for Defense Against Seaborne Nuclear Attack by Strike Carriers and Polaris/Poseidon SSBNs, in: Murphy, op. cit., 169—178. 25 S tansfield Turner, The Naval Balance: Not just a Numbers Game, in: Foreign Affairs 55 (1977), 339—354 (344); see also James M. McConnell, Bradford Dismukes, Soviet Diplomacy of Force in the Third World, in: Problems of Communism 28 (1979), 14—27, especially Table 1 at 20: Cases of Coercive Soviet Military Diplomacy; see also Robert G. Weinland, Egypt and Support for the Soviet Mediterranean Squadron 1967—1976, in: Murphy (note 24), 259—274; Albert E. Graham, Soviet Strategy and Policy in the Indian Ocean, in: Murphy (note 24), 275—298. 2 « Turner (note 22), 20—21.

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obvious that the law of the sea is important indeed for this war fighting mission, because the deployment of naval forces w i l l in part take place before the law of armed conflict applies. This is not the case for the fourth-mission, i. e. projection of power ashore, because this mission w i l l be executed under the law of naval warfare. The general area w i t h i n which naval forces have traditionally been permitted to conduct operations include the high seas, the territorial sea and internal waters of the belligerents, the land territory accessible to naval forces and the superjacent airspace over such waters and territory. 2 7 Thus the law of the sea does not constitute an impediment to direct support of ground forces by means of amphibious assault, naval bombardment or tactical air. The United States has a long tradition as a principal maritime power and since Admiral Alfred Thayer Mohan (1840—1914) has considered seapower as an indispensable attribute of great power status. 28 Consequently, i t was only logical that the western superpower did not have the intent to let U N C L O S I I I make any change in the law of the sea which could interfere w i t h the global blue water deployment of its surface and submarine fleet or force upon i t any change in strategic thinking. " M o b i l i t y " and "reaction time" were the key words. N e w sovereignty and jurisdictional zones threatened the capacity for the navies to preposition and project force. M o b i l i t y might have been inhibited and reaction time greatly increased by a consent or notification regime for passage through straits, 12 nautical miles (nm) territorial seas or archipelagic waters. The naval presence mission might have been jeopardized by a 200 nm exclusive economic zone w i t h a legal status and a legal regime close to that of the territorial sea, where presence and counterpresence of naval forces could be selectively promoted or prevented by litoral states. Peacetime activities of warships such as maneuvers, weapons exercises, live shooting, diving and gunnery exercises were at stake. Marine scientific research for military purposes was of great concern and even intelligence gathering, reconnaissance and surveillance might have been restrictd. The strategic interest of the United States in U N C L O S I I I was unambiguous: Global mobility of the naval forces was a matter of national security. But there were other interests too, coastal interests: fisheries, environmental protection, off-shore oil and gas exploration and exploitation. For a foreign observer not the strategic position of the United States was nuclear but only the intensity and the outcome of the struggle between these global strategic and the coastal economic interests. 27 Rauch (note 21), 22. 28 Alfred T. Mahan y The Influence of Sea Power upon History, London 1890.

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As regards the Soviet Union U N C L O S I I I seems to have been the keystone of a breathtaking metamorphosis. The one and only principal mission of the Russian and later Soviet N a v y had been for centuries the defense of the homeland's shores. Today Soviet strategy is no longer the product of a landoriented politico-military hierarchy and the Soviet Union has become a true sea power equal to the United States, challenging the west in all aspects of peacetime ocean activities. The Soviet Mahan who brought about this fundamental change is Admiral Sergej G. Gorskov (born 1910), the chief architect of the Soviet Union's growing naval might. 2 9 Under his decade old leadership the Soviet navy began regular and sustained deployment in non-contiguous seas (Mediterranean, Caribbean, Indian Ocean, Eastern Pacific). Soviet warships regularly patrol off the west coast of Africa and have established a politically significant presence on N A T O ' s northern flank. 3 0 W h y and how the Soviet N a v y strived for a true ocean capability has been explained by Admiral Gorskov in his famous eleven-part series "Navies in War and Peace" 31 and in his book "Sea Power of the State". 3 2 I t is rather difficult to appreciate the magnitude of the epochal change in Soviet naval and legal thinking that occured during the decade of U N C L O S I I I . We have to bear in mind that under Soviet law innocent passage of foreign warships at that times was still subject to prior authorization of the government, to be applied for through diplomatic channels at least one month in advance. 33 A t U N C L O S I I I the Soviet Union, nevertheless, fought back to back w i t h the United States up to the last minute against the efforts of a large group of delegations to subject the innocent passage of warships to a consent or at least notification regime. 2» Elmo R. Zumwalt Jr., 20th century Mahan, in: USNIP, November 1974, 70—73. so Op. cit., 70—71. 31 Voenno-morskie floty ν vojnach i ν mirnoe vremja (Navies in war and peace), in: Morskoj sbornik 1972 No. 2, 20—29; No. 3, 20—32; No. 4, 9—23; No. 5, 12—24; No. 6, 11—21; No. 8, 14—24; No. 9, 14—24; No. 10, 13—21; No. 11, 24—34; No. 12, 14—22; 1973 No. 2, 13—25. This series appeared in identical installments in English in the January through November 1974 issues of the United States Naval Institute Proceedings and was subsequently published by that Institute in a single volume entitled "Red Star Rising at Sea", Annapolis 1974. In both instances the translations were accompanied by commentaries by distinguished senior US officers; see also Robert G. Weinland / Robert W. Herrick / Michael McGuire / James M. McConnell, Admiral Gorskov's 'Navies in War and Peace', in: Survival X V I I I (1975), 54—63; Donald Chipman, Admiral Gorskov and the Soviet Navy, in: Air University Review X X X I I I No. 5 July—August (1982), 28—47; John G. Hibbit, Admiral Gorskov's Writing: Twenty Years of Naval Thought, in: Murphy (note 24), 1—22; William H. Thomson, Sea Power of the State — An Internal Debate? in: Murphy (note 24), 23—36. 32 Morskaja Mose Gosudarstva, Voenno IzdatePstvo Ministerstva Oborony SSSR 1976; an English translation was published under the title: The Sea Power of the State, Annapolis 1979. 33 Polozenie ob odirane gosudarstvennoj granice Sojuza SSSR (Statute on the Protection of the State Boundary of the USSR), Art. 16, Vedomosti Verchovnogo Soveta SSSR 1960, No. 34, item 324.

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The USSR was one of he last states to accept the concept of the Exclusive Economic Zone (EEZ) and even after the United States and other western nations had given up and accepted the "sut generis " legal status of this 200 nm zone kept on fighting for the high seas status. 34 Most important of all in a complete about-face the Soviet Union accepted a definition of the term "peaceful purposes" that did not provide for a complete demilitarization of the areas or activities concerned, thus again illustrating the mutation or metamorphosis from a land power to a sea power. 3 5 A t the same time a new principle — unknown in western international law doctrine — surfaced in Soviet scholarly writings, the "legal principle of equal security of states in military navigation". 8 6 This "fundamental norm of contemporary international law" is based mainly on the bilateral treaties and agreements between the Soviet Union and the United States, concluded in 1972, notably the Agreement on the Prevention of Incidents on and over the H i g h Seas of 25 May 1972 37 . A l l Soviet efforts to catch up w i t h the United States could not change geography; the profound differences between the superpowers' geographical situation remain. I n contrast to the United States the Soviet Union faces three basic constraints: ice, chokepoints and distance. Most of the Soviet naval forces are deployed at high latitudes which was and is the reason for Imperial Russia's and the Soviet Union's desire to acquire warm-water ports. Once the Soviet fleets have gained the open Atlantic or Pacific they have considerable trouble replenishing. 38 84

It is remarkable in this context that the first comprehensive Soviet textbook on the Law of the Sea that has been published after the end of UNCLOS I I I maintains that the water column of the EEZ remains part of the high seas; see Marklen Ivanovic Lazarev, Teoretiieskie voprosy sovremennogo mezdunaroduogo morskogo prava (Theoretical Questions of the Contemporary International Law of the Sea), Moskva 1983, 257; German translation by Elmar Rauch, M. I. Lazarev , Theoretische Fragen des modernen Seevölkerrechts, Berlin 1985, 268. 35 All this will be explained in the following chapters. 38 Sovremennoe mezdunarodnoe morskoe pravo. Naucnye issledovanija. Odirana morskoj sredy. Torgovoe i voennoe moreplavanie (Contemporary International Law of the Sea. Scientific Research. Protection of the Marine Environment. Merchant and Military Navigation), Moskva 1978, 253—260. German translation by Elmar Rauch, Modernes Seevölkerrecht. Wissenschaftliche Forschung. Schutz der Meeresumwelt. Handels- und Kriegsschiffahrt, Frankfurt am Main —Bern 1981, 265—270. 37 UST 23 (1972), Part 1, 1168; see also Protocol to the Agreement of 25 May 1972 on the Prevention of Incidents on and over the High Seas, signed 22 May 1973, in: UST 24 (1973), Part 1, 1063; Treaty on the Limitation of Antiballistic Missile Systems, signed 26 May 1972, in: UST 23 (1972), Part 3, 3435; Interim Agreement on certain Measures with respect to the Limitation of Strategic Offensive Arms with Protocol, signed 26 May 1972, in: UST 23 (1972), Part 3, 3462; Memorandum of Understanding regarding the Establishment of a Standing Consultative Commission, signed 21 December 1972, in: UST 24 (1973), Part 1, 238. 38 Elmar Rauch, Die Sowjetunion und die Entwicklung des Seevölkerrechts, Berlin 1982, 15—18, 51—55, 59—63, 288—294, 459—462.

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These differences between the geographic situation of the two superpowers led some analysts to openly advocate support for "creeping jurisdiction" instead of stemming the tide of coastal state claims. These analysts challenged the validity of claims that US national security is inexorably bound to a right of unimpeded transit through straits. 39 These arguments have, however, never been accepted by US policy makers and the right of unimpeded transit through straits was enshrined as non-negotiable and basic to US acceptance of any LOS treaty. A generally satisfactory LOS treaty including provisions protecting navigation, overflight and mutual security interests was clearly of critical importance to both superpowers alike. I n the aftermath of U N C L O S I I I i t must be stated that the superpowers achieved this goal. The triumphant noises of those who favoured complete demilitarization of the oceans or who counted on new constraints on military activities at sea and a k i n d of de facto arms control negotiated inadvertently as unavoidable side-effect of U N C L O S I I I were premature. 40 III. Analysis of the Treaty Provisions Concerning Military Activities I n the following chapter all pertinent stipulations of the LOS Convention w i l l be scrutinized. 1. Peaceful Uses of the Sea The phrase that the sea may be used for peaceful purposes only seems to be the leitmotiv of the new Convention. The high seas41 as well as the E E Z 4 2 are reserved for peaceful purposes. The same holds true for the so-called Area, the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. 4 8 I n addition, marine scientific research in the Area shall be 39 Charles E. Pirtle , Transit Rights and US Security Interests in International Straits: the "Straits Debate" Revisited, in: Ocean Development and International Law Journal 5 (1978), 477—497. 40 E. g. Elizabeth Young, , New Law for Old Navies : Military Implications of the Law of the Sea, in: Survival X V I (1974), 262—267: " . . . In the new context few of the traditional freedoms of the sea that great navies have always claimed for themselves and sought to establish and maintain are likely to survive long in their recent form . . as to the deep concern of both superpowers about mutual deterrence in general and second strike capability in particular, see: / . R. Hill , Maritime Power and the Law of the Sea, in Survival X V I I (1975), 69—72; see also: Kenneth Booth , The Military Implications of the dianging Law of the Sea, in: Law of the Sea: Neglected Issues (note 4), 328—397 (328); Hedley Bull, Sea Power and Political Influence, in: Power at Sea I. The New Environment, in: Adelphi Papers No. 122, 1978, 8, 9; David L. Larson, Security, disarmament and the law of the sea, in: Marine Policy 3 (1979), 40—58; John Norton Moore, The Regime of Straits and The Third United Nations Conference on the Law of the Sea, in: AJIL 74 (1980), 77—121 (80, 81). Art. 88. « Art. 58 (2), 88. « Art. 141, Art. 1 (1) (1); see also Art. 155 (2).

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carried out 4 4 and installations in the Area shall be used 45 exclusively for peaceful purposes. Marine scientific research in the oceans in general, including all zones of sovereignty and national jurisdiction, shall be conducted exclusively for peaceful purposes. 46 As far as marine scientific research in the EEZ and on the continental shelf of other states is concerned the Convention reiterates this restriction. 47 This peaceful use clause has been the object of a longstanding dispute between scholars and diplomats since i t renders itself subject to two differing interpretations: either as a prohibition of any military activity thus being tantamount to a complete demilitarization of the area or activity concerned or as a prohibition of only aggressive activities w i t h i n the meaning of A r t . 2 par. 4 of the U N Charter. 4 8 U n t i l the early 70s Soviet scholarly writings and diplomatic statements in U N bodies insisted that the term meant a restriction to non-military exclusively civilian purposes. 40 Since the United States interpreted this term as prohibiting only aggressive activities in contravention of the U N Charter, both superpowers soon were at loggerheads in the Ad-hoc Seabed Committee, established in 1967, on the question whether the seabed should be demilitarized or whether only certain types of weapons of mass destruction should be banned. While the US favoured the latter approach 50 , the Soviet Union proposed to completely demilitarize the seabed and ocean floor beyond the limits of the territorial sea.51 44 45 4β 47

Art. 143. Art. 147 (2) (d). Art. 240 (a); Art. 242 (1). Art. 246 (3). 48 See also the definition of the term "aggression" in U N Resolution 3314 ( X X I X ) of 14 December 1974, in: GAOR, Twenty-ninth Session, Supplement No. 31; reprinted in: Jahrbuch für Internationales Recht 18 (1975), 143—145. 49 G. F. Kalinkin , Ob ispol'zovanii morskogo dna iskluju&tel'no v. mirnich celjach (About the use of the seabed exclusively for peaceful purposes), in: Sovetskij Ezegodnik Mezdunarodnogo Prava 1971, 153; G. F. Kalinkin / Ja. A. Ostrovskij, Morskoe dno — komu ono prinadleiit (The Seabed — to whom does it belong?), 164 et seq.; T. M. Melkov , Juridiieskoe znaienie termina "isklju&tel'no ν mirnich celjach" (Juridical meaning of the term "exclusively for peaceful purposes"), in: Sovetskij Ezegodnik Mezdunarodnogo Prava 1971, 153—160; idem , Κ voprosu ο polnoj demilitarizacij morskogo dna (To the problem of a complete demilitarization of the seabed), in: Sovetsjij Ezgodnik Mezdunarodnogo Prava 1973, 216 et seq.; B. M. Klimenko , Aktual'nye problemy sovremennogo mezdunarodnogo morskogo prava (Actual problems of the contemporary international law of the sea), 65; A. L. Kolodkin , Mirovoj okean (The world ocean) 22 et seq.; Jurevic , Nekotorye tendencii ispol'zovanija morskogo dna ν voennych celjach i meidunarodnoe morskoe pravo (Some tendencies of the use of the seabed for military purposes and international law of the sea), in: Morskoj sbornik 1973, No. 1 86—89; see also the interventions by the USSR in U N Doc. A/AC. 135/ SR, 16; A/AC. 135/WG. 1/SR. 8; A/AC. 1/PV 1592; A/AC. 138/SR. 6, 10, 12, 22, 56; A/AC. 138/SC I/SR.9; A/AC. 138/43 — Art. 6 (1), (2) and Art. 12 (4) and A/C. 1/PV 1798; for a detailed analysis see: Rauch (note 33), 29—42. so U N Doc. A/AC. 135/24. 5i U N Doc. A/AC. 135/20.

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N o doubt, the term "peaceful purposes" is ambiguous. Fortunately, as far as the LOS Convention is concerned, there are no longer any difficulties. The Vienna Convention on the Law of Treaties provides that a special meaning shall be given to a term i f it is established that the parties so intended. 52 The LOS Convention defines the term, confirming its content in a way which could have been deducted already from the language of General Assembly Resolution 2340 ( X X I I ) of 18 December 1967. This Resolution declared that the use of the seabed and ocean floor should be conducted " i n accordance w i t h the principles and purposes of the Charter of the United Nations" and named the Committee charged w i t h the pertinent preparations "Ad-hoc Committee to Study the 'Peaceful Uses' of the Seabed and Ocean Floor beyond the Limits of National Jurisdiction". I t was unmistakable that the term was understood as non-aggressive w i t h i n the meaning of the U N Charter. 53 Nonetheless, ideological preconceptions led time and again to heated debates over the content of this clause in the Sea-Bed Committee. 54 A t U N C L O S I I I the issue was debated only during the fourth session in 1976. The delegate of Ecuador stated during a plenary meeting: " I t has already been recognized in many international bodies and agreements that the use of the ocean space for exclusively peaceful purposes must mean complete demilitarization and the exclusion from i t of all military activities". 5 5 The Soviet Union conspicuously kept silent, while the United States countered: The term "peaceful purposes" does not, of course, preclude military activities generally. The United States has consistently held that the conduct of military activities for peaceful purposes is in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. The Conference is not charged with such a purpose and is not prepared for such negotiation. Any attempt to turn the Conference's attention to such a complex task could quickly bring to an end current efforts to negotiate a law of the sea Convention. 56

The definition is contained in A r t . 301 of the Convention under the heading "Peaceful Uses of the Sea" and reads as follows: I n exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial 52 Art. 31 (4). 53 Wolf rum (note 18), 220. 54 See U N Doc. A/AC. 135/SR. 14, 16, 17; and A/AC. 135/20, 24, 26, 27; A/AC. 135/ WG. 1/SR. 8; A/AC. 138/SR. 5, 6, 8, 10, 12 13, 22; The discussion has been summarized in: Edward D. Brown , Arms Control in Hydrospace: Legal Aspects, Woodrow Wilson International Centre for Scholars, Ocean Series 201, vol. 26, Washington 1971, 46—64. 55 Official Records vol. V, 56. 5β Official Records vol. V, 62; see also the US statements in: U N Docs. A/AC. 135/SR. 17; A/C. 1/PV. 1590 and A/AC. 138/SR. 6, 12.

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integrity or political independence of any State or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. A r t . 301 belongs to Part X V I dealing w i t h the "General Provisions" of the Convention. As to preparatory work i t is very scarce. During the N e w Y o r k phase of the N i n t h session from 3 March through 4 A p r i l 1980 Costa Rica, Ecuador, E l Salvador, Pakistan, Peru, Philippines, Portugal, Senegal, Somalia and Uruguay tabled an informal proposal which was couched as follows: " I n exercising their rights and performing their duties in the different zones of the ocean space all States shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent w i t h the purposes of the United Nations"} 1 There was some discussion in the formal Plenary and in order to make i t more acceptable, certain drafting changes were proposed, and afterwards i t found widespread support. But the proposal did not completely dispose of the reservations of certain delegations as they feared that i t had an impact on the package w i t h i n the Second Committee, specifically w i t h regard to transit passage and innocent passage, which were very similar formulations. I t was agreed, therefore, that further time should be given to interested delegations to carry out consultations so as to arrive at a compromise formulation. 5 8 During the resumed ninth session from 28 July through 29 August 1980 in Geneva the President presented a document which consolidated the peaceful use proposal w i t h proposals on good faith and abuse of rights and disclosure of information. 5 9 This package was further discussed informally and after some drafting changes the final version was adopted by consensus.60 One change in the original proposal is important. While the sponsors suggested language making reference to "purposes" of the United Nations A r t . 301 refers to "principles of international l a w " embodied in the Charter of the United Nations. Thus, A r t . 301 does not only include the principles enumerated in Chapter I of the U N Charter, but also the principles of international law found elsewhere in the Charter, notably A r t . 51 which appears in Chapter V I I . A r t . 51 provides: " N o t h i n g in the present Charter shall impair the inherent right of individual or collective self-defence i f an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security". Consequently, all naval activities i n the oceans in preparation for individual 67 58 s» eo

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or collective self-defense are compatible w i t h the LOS Convention and must be considered "peaceful use". 2. Innocent Passage Whether or not the right of innocent passage through the territorial seas in times of peace extended equally to warships of foreign states remained unsettled before U N C L O S I I I . According to the western interpretation of customary international law, warships as well as merchant ships enjoy this right. Innocent passage, of course, did not include overflight for aircraft and submarines had to travel on the surface. 61 The Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958 62 did not succeed in putting to rest this dispute. Its articles 14—23 were subjected to contradicting interpretations. More importantly, this Convention was not even ratified by the majority of the member states of the United Nations 6 3 and several states when ratifying the Convention lodged a reservation. So did the Soviet Union whose government insisted that a coastal state has the right to establish procedures for the authorization of the passage of foreign warships through its territorial waters. 64 The United States, the United Kingdom, Australia, Denmark, Netherlands and Thailand formally objected to this reservation. 65 Under the 1958 Convention passage was considered innocent so long as i t was not prejudicial to the peace, good order or security of the coastal state. I t has to be stressed that there was no further definition of innocence at sea.66 The western concept of innocent passage prevailed at U N C L O S I I I . A n d this only, because of a fundamental change in the dogmatic view of the Soviet Union. The development of the law consists in that the LOS Convention provides for a specific list of twelve activities, which would be considered prejudicial to the peace, good order or security of the coastal state and which have particular bearing on the passage of warships. A r t . 19 lists as prejudicial among others —

any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state, or in any other manner in

61 Daniel Patrick O'Connell , Innocent Passage of Warships, in: Thesaurus Acroasium, vol. V I I I : The Law of the Sea, Thessaloniki 1977, 405—451; Balbir Chauhan, Right of Innocent Passage for Warships through the Territorial Sea, in: op. cit., 511—523. «2 UNTS 516 (1964), 205. 63 See Multilateral Treaties in respect of which the Secretary General performs depository functions, List of Signatures, Ratifications, Accessions etc. as at 31 December 1982, U N Doc. ST/LEG/SER. D/16. 64 UNTS 516 (1964), 227; see note 33. «5 UNTS 516 (1964), 228 et seq. 66 Art. 14 (4).

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violation of the principles of international law embodied in the Charter of the United Nations; any exercise or practice w i t h weapons of any kind;

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any act aimed at collecting information to the prejudice of the defense or security of the coastal state;

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any act or propaganda aimed at affecting the defense or security of the coastal state;

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the launching, landing or taking on board of any aircraft; and

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the launching, landing or taking on board of any military device. 67

This very list provides additional unrefutable proof that innocent passage includes warships, because merchant vessels could never exercise or practice w i t h weapons and only rarely launch or take on board an aircraft. As far the Convention stipulates that submarines and other underwater vehicles are required to navigate on the surface and to show their flag and that the coastal state may take the necessary steps in its territorial sea to prevent passage which is not innocent, i t merely reaffirms the rules of the 1958 Convention which in so far was only declaratory of customary international l a w . 6 8 Further clarification is provided w i t h respect to the laws and regulations that the coastal state may enact w i t h respect to innocent passage. I t is important that national security reasons are not included in this catalogue. 69 T o be sure, there was adamant opposition against these provisions. The N A T O countries and the members of the Warsaw Pact — w i t h the exception of Romania — joined forces and fought off all attempts to change the Draft Convention. 7 0 U n t i l the last negotiating session the Chairman of the Second Committee took the initiative of convening time and again consultation meetings to consider specifically the question of innocent passage of warships through the territorial sea. The Chairman concluded by conveying the impression that these discussions indicated that there was a real consensus on the need to preserve the fundamental elements of the parts of the Convention which were w i t h i n the competence of the Second Committee. 7 1 I t is regrettable that despite the clearcut and unambiguous solution of this thorny problem in the Convention disputes may arise because of untenable statements confusing the agreement actually reached in the Convention text. e? An. 19 (2) (a) through (f). es Art. 20, 25 (1) LOS Convention; Art. 14 (6) and 16 (1) 1958 Convention on the Territorial Sea and the Contiguous Zone, in: UNTS 516 (1964), 205. 60 Art. 21. 70 See U N Doc. A/CONF. 62/SR. 128, 40; SR. 135, 10, 11; SR. 137, 16, 31; SR. 138, 28; SR. 140, 7, in: UNCLOS I I I , vols. Χ — X I V . 71 U N Doc. A/CONF. 62/L.87, 3.

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A t the Law of the Sea symposium at Duke University School of Law 28 — 30 October 1982, Arvid Pardo gave a dinner speech in which he listed a litany of problems in the Convention including what he termed an "ambiguity" in the text concerning whether coastal states possess the competence to impose a notification / authorization regime on warships in the territorial sea. I n the text of this paper, later published, Pardo maintaines that the LOS Convention does not grant a right of innocent passage to foreign ships even i f their passage is not prejudicial to the peace, good order or security of the coastal states and that the right of innocent passage remains subject to the discretion of the coastal state concerned. 72 The next morning, when the President of U N C L O S I I I , Tommy Koh , took the floor on a different issue, he requested the group's indulgence in order that he might make one comment concerning the Pardo speech and I quote: Dr. Pardo said amongst other things, that the Convention is not clear on the rights of warships to enjoy the regime of innocent passage through the territorial sea of coastal states. With all due respect to Dr. Pardo , I think the Convention is quite clear on this point. Warships do, like other ships, have a right of innocent passage through the territorial sea and there is no need for warships to acquire the prior consent or even notification of the coastal state. The reasons w h y this clear and correct statement was deleted from the galleyproof of the proceedings of this symposium are unknown. 7 3 I n archipelagic waters outside archipelagic sea lanes all ships, including warships, enjoy the right of innocent passage without prior notification or authorization in accordance w i t h the provision of innocent passage through the territorial sea.74 3. Transit

Passage

Security policy implications associated w i t h straits transit and in particular the concern for continued effectiveness and credibility of the submarine based element of the nuclear triad made the straits regime one of the key sectors of the U N C L O S I I I negotiations and the new LOS Convention. 7 5 Before U N C L O S I I I the straits regime for peacetime navigation was regulated by the 1958 Convention on the Territorial Sea and the Contiguous Zone, which provided that there shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation. 7 6 According 72 Arvid Pardo , An opportunity lost, in: Law of the Sea. U.S. Policy Dilemma, in: Institute of Contemporary Studies (ICS) Press 1983, 13—25 (19). 73 Journal of Law and Contemporary Problems 46 (1983), No. 2, Duke University School of Law, Durham 1984. ™ Art. 52. 75 See pages 229—238 supra . ™ Art. 16 (4).

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to an unofficial chart of the Office of the Geographer in the US Department of State there are 121 international straits less than 24 miles wide. Which of them are of strategic importance to the two superpowers is a question of debate. 77 A t the outset i t should be mentioned that the transit passage regime is applicable only in straits used for international navigation. 7 8 I n straits used for non-international navigation only unsuspendable innocent passage for merchant vessels and warships applies. 79 There are three exceptions as far as international straits are concerned: The legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits, prevails and is not altered by the Convention. 8 0 I f the strait is formed by an island of a state bordering the strait and its mainland the traditional regime of unsuspendable innocent passage applies if there exists seaward of the island a route through the high seas or through an EEZ of similar convenience w i t h respect to navigational and hydrographical characteristics. 81 And, finally, the regime of unsuspendable innocent passage applies in straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign state. 82 Transit passage means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait. 83 This unsuspendable right is enjoyed by all ships and aircraft, including warships and military aircraft. 8 4 Ships and aircraft, while exercising the right of transit passage shall —

proceed without delay through or over the strait;

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refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

—

refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. 85 Ships during transit passage may not carry

77 See Larsen (note 40), 46—49, 56—58; Friedhelm Krüger-Sprengel , The Role of NATO in the Use of the Sea and the Seabed, Woodrow Wilson International Center for Scholars, Ocean Series No. 304; Robert E. Osgood , U.S. Security Interests in Ocean Law, in: Ann L. Rollick / Robert E. Osgood , New Era of Ocean Politics, Baltimore — London 1974. 90—106. 78 Art. 34, 36, 37. 79 This is the consequence of Art. 34 (1). 80 Art. 35 (c). 81 Art. 38 (1), 45 (1) (a). 82 Art. 45 (1) (b). 83 Art. 38 (2). 84 Art. 38 (1), 44.

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out any research or survey activities without the prior authorization of the States bordering straits. 86 The strait State may adopt carefully limited and circumscribed laws and regulations relating to transit passage in respect of the safety of navigation, prevention, reduction and control of pollution and the prevention of fishing and contravention of the customs, fiscal, immigration or sanitary laws and regulations. 87 This regime represents a carefully balanced compromise between the naval powers' v i t a l interest in the high seas freedom of transit and the legitimate marine safety, pollution and resource interests of the strait state. I t is a device to preserve in such international straits the freedom of navigation and overflight equivalent to a corridor of high seas through isuch straits without in any other respects affecting the legal status of the waters forming the strait. The right of transit passage is patterned after the high seas freedom of navigation and overflight and is juridically distinct from the right of innocent passage under the international law of the sea. I n other words, the right of transit passage is a specific formulation of the high seas freedoms of navigation and overflight. This is corroborated by the negotiating history. The Conference rejected the proposal by a group of states to have innocent passage through the general territorial sea and straits transit treated as synonymous. 88 For those who participated in the LOS negotiations i t is sometimes difficult to understand the furious debate about submerged transit waged amongst members of the US ocean community. 8 9 Even more disturbing are some of the roots for this dispute. There is the widespread impression that the ideological foes of the Convention in the US Administration and certain members of the US deep-seabed mining industry have not been very selective in choosing their means to "prove" that the navigational rights secured in the Convention, in particular transit passage through international straits, are not worth the costs associated w i t h acceptance of the seabed mining part of the Convention. To be sure, the alleged failure of the Convention to provide sufficiently 85 Art. 39 (1). 8β Art. 40. 87 Art. 42 (1). 88 See U N Doc. A/AC. 138/SC. II/L. 18; A/AC. 138/SC. II/SR. 60, 188; Informal Spanish Amendment of 30 March 1976, Art. 41, reprinted in: Renate Platzöder, Dokumente der Dritten Seerechtskonferenz der Vereinten Nationen — New Yorker Sessionen 1976 vol. I I , Ebenhausen 1977, 522; Informal Greek Amendment of 30 March 1976, Art. 39 (3), reprinted in: Platzöder (op. cit.), 530; see also Bernard H. Oxman , The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, in: AJIL 72 (1978), 57—83, (63—64). 8® See in particular W. Michael Reismann , The Regime of Straits and National Security: An Appraisal of International Lawmaking, in: AJIL 74 (1980), 48—76 (especially 71—75).

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assured access to the manganese nodules to US industry would carry more weight w i t h politicians i f the case could be made that the benefits in the field of navigation and overflight are less than projected by the experts. I t is noteworthy that the interpretational challenges of the straits chapter seem to have been initiated by a lettter written by Senator Barry Goldwater to a number of international lawyers in the United States, inquiring as John Norton Moore put i t " i n less than neutral terms" whether the Conference text would "guarantee" submerged transit passage through straits. Rumor has i t that this letter had been inspired by certain circles in the US seabed mining industry. 9 0 Indeed, there is no specific reference to the right of submerged transit in the straits Part. But neither is there such reference in the H i g h Seas or EEZ Parts of the Convention, in the 1958 Convention on the H i g h Seas91 or in the Convention on the Territorial Sea and the Contiguous Zone of the same year. 92 The term "navigation" always includes and included surface and submerged position since the very first "submarine torpedo-boat" took to the sea. Wherever the term of art "navigation" is being used it comprises submarine navigation. The same holds true for the term "passage". I n exceptional circumstances, where this is not the case, such an exception has to be expressly made. Therefore, both the 1958 Convention on the Territorial Sea and the new LOS Convention had to specifically state that the right of innocent passage does not include submerged passage, but that submarines had to travel on the surface. The use of the term "navigation" in the straits chapter thus is a positive confirmation of the right of submerged passage and can by no means be taken as a derogation. This is the clear result of a precise textual analysis of the Convention. This new regime of transit passage through international straits is by no means an onslaught on the sovereignty or the security interests of the strait States. Just the opposite, i t is one of the political advantages of this concept that i t keeps the littoral States bordering straits w i t h great strategic value out of the vicious circle of escalation in times of tension and crisis. I f transit through such straits were subject to the discretion of the coastal States, they would unavoidably become involved, even i f the discretionary power were to be exercised evenhandedly. The Convention restricts the transit passage regime to straits used for international navigation, however, does not define the term "strait". The impression seems to prevail that a strait per definition is overlapped by t w o bands of eo See Moore (note 40), 78 (note 5). UNTS 450 (1964), 11. 82 UNTS 516 (1964), 205.

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water representing areas of coastal State sovereignty, subject to special exceptions. This is a misconception in two ways. Transit passage is a regime of high seas freedoms of navigation and overflight w i t h specific limitations, and not one of innocent passage w i t h specific additions. Secondly, for want of a composite definition one has to extract from a number of discrete treaty articles the meaning of the term "strait". The relevant articles prove beyond doubt that i t no longer holds true that straits in a geographical sense only become straits in a legal sense when the territorial sea of the coastal state or states meet or overlap. 93 The exception from the transit passage regime concerning straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits, has created some controversy. This exception which clearly applies to the Montreux Convention, has the problem of inviting a proliferation of additional claimants seeking exempted status based on far less convincing arguments concerning various historical treaties, and this may lead to significant legal uncertainties in some straits about the appropriate regime of passage. Despite the total silence of the official records concerning these matters, there seem to have been secret negotiations (with mixed reports as to the outcome) between the superpowers and a number of important straits States. I t is revealing that the representative of Denmark at least two times stated for the record that "after negotiations w i t h all interested parties his delegation was satisfied that A r t . 35 (c) applied to the specific regime in the Danish straits" 9 4 . There is no record of these negotiations or of the possible understandings in this regard which may have been reached and we must in any event disregard such corridor consultations since they could never change, in particular not counter the ordinary meaning of the black letter text in its context and in the light of its object and purpose. 95 Passage is "regulated" w i t h i n the meaning of A r t . 35 (c) of the LOS Convention in the Montreux Convention, signed 20 July 1936, concerning the Bosporus and the Dardanelles. 96 I n contrast, the Treaty for the Redemption of the Sound Dues of 14 March 1857 97 whatever might have been claimed by 93

See Art. 34 ("or jurisdiction") and 35 b ("as exclusive economic zone or high seas"). U N Doc. A/CONF. 62/SR. 138, 35; SR. 163, 10. 95 Insofar I am in total agreement with Reismann (note 89), 75: "The idea of an undocumented 'understanding' among all or even most of the more than 150 delegations at the LOS Conference is preposterous and a lawyer who would believe it, advise reliance on it or invoke it before a tribunal would be very naive indeed . . . If the plain and natural meaning of the I C N T is against these understandings then they are unlikely to survice changes of governments". 9 « League of Nations Treaty Series 173 (1936), 213. 97 Perry Clive , The Consolidated Treaty Series, vol. 116, 357.

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the delegations of Sweden, Denmark and Finland, does not "regulate" passage at all, neither in whole nor in part. The treaty merely makes indirect reference to freedom of navigation under customary international law. 9 8 Neither is passage through the straits of Magellan "regulated" by the Boundary Treaty between Argentina and Chile, signed 23 July 1881. Its A r t . V only contains a reference to free navigation of the strait by the ships of all nations. 99 There is nothing more to it. Other would-be claimants to A r t . 35 (c) status simply fail to make a credible case. 4. Archipelagic

Sea Lanes Passage

Archipelagic Sea Lanes Passage means the exercise in accordance w i t h the Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit 1 0 0 . This right may be exercised through the routes normally used for international navigation 1 0 1 unless the archipelagic state designates sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 102 Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and w i t h i n such routes, so far as ships are concerned, all normal navigational channels 103 . Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage.104 W i t h respect to the duties of ships and aircraft and the duties of the archipelagic state, the relevant articles of the straits chapter are applicable mutatis mutandis. 105 As pointed out already, outside these archipelagic sea lanes the regime of innocent passage for warships obtains 106 . I t is obvious that transit passage and archipelagic sea lanes passage are t w o sides of the same coin. What has been said about surface and submerged 98 For a thorough analysis of this treaty, see: Elmar Rauch (note 33), 81—86, 289—293 and 305; see also Wolfgang Graf Vitzthum , The Baltic Straits, in: Choon-ho Park (ed.), The Law of the Sea in the 1980's, Proceedings, Law of the Sea Institute, Fourteenth Annual Conference, October 20 — 23, 1980, Kiel — Hawaii 1983, 537—597; see also the intervention by lb Andreasen , op. cit., 597—602. 99 G. F. Martens , Nouveau Recueil Générale de Traités (NRGT), 2nd series, vol. X I I , 491. 100 Art. 53 (3). ιοί Art. 53 (12). 102 Art. 53 (1). 103 Art. 53 (4), (5). 104 Art. 53 (5). 105 Art. 54. 106 See page 244.

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transit of warships and overflight of military aircraft through international straits applies to archipelagic sea lanes passage of naval forces, in particular w i t h regard to the normal mode concept and submerged passage. Archipelagic sea lanes passage contrasts as clearly w i t h the innocent passage as does transit passage. For the safe passage of merchant ships and civilian airplanes a 50 mile wide sea lane or air corridor is evidently not required. The w i d t h of the sea lanes and corridors is clearly designed to accomodate the military interests of the superpowers. 107 5. Exclusive Economic

Zone

The EEZ is a 200 nautical mile wide belt of water, measured from the baseline from which the territorial sea is measured, beyond and adjacent to the territorial sea. 108 The 200 mile zones of all coastal states combined cover roughly 37,517,000 nautical square miles or 3 6 % of the world ocean. 109 The importance of this part of the seas for the deployment of naval forces and peacetime use is second only to international straits and archipelagic sea lanes. I t has been argued that the new concept of the EEZ is likely to considerably affect the military use of the respective parts of the sea, due to the fact that neither the status of this zone nor the rights exercised therein by other than the coastal states have been clearly defined. 110 We are faced w i t h a legal status sui generis : neither sovereignty of the coastal state nor high sea status. The EEZ is the synthesis of the fisheries zone, epicontinental sea, patrimonial sea and continental shelf concept which started w i t h the Truman proclamation of 1945 1 1 1 and lies not only in terms of space but also as far as its legal status is concerned somewhere between the territorial sea and the high seas. For the military uses of the EEZ it is of paramount importance that A r t . 88—115 in the H i g h Seas Part of the Convention are referred to in the EEZ regime w i t h a compatibility test as balancing feature. 112 The provision in A r t . 89 proscribing against subjecting any part of the high seas to sovereignty 107 Frank L. Frazer , Commentary, in: Law of the Sea: Neglected Issues (note 5), 402. 108 Art. 55, 57. 109 Robert D. Hodgson , National Maritime Limits: The Economic Zone and the Seabed, in: Francis T. Christy , Jr. I Thomas A. Clingan , Jr. / John King Gamble , Jr. / H. Gary Knight / Edward Miles (eds.), Law of the Sea: Caracas and Beyond, Proceedings, Law of the Sea Institute, Ninth Annual Conference, January 6—9, 1975, Cambridge, Mass. 1975, 183—192

(186).

no Wolf rum (note 18), 237. m Winston Conrad Extavour , The Exclusive Economic Zone, Genf 1979, 75 et seq.; Robert B. Krueger / Myron H. Nordquist , The Evolution of the 200 Miles Exclusive Economic Zone: State Practice in the Pacific Basin, in: Report to the 58th Conference of the International Law Association 27 August through 2 September 1978, 248—289. 112 Art. 58 (2).

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meets this test and is, therefore, applicable. This invalidity of all claims of sovereignty both the high seas and the EEZ have in common. Since its status does not permit to draw any final conclusions w i t h respect to military uses of the EEZ, the decisive question is the content of the special legal regime, i. e. how jurisdiction and freedoms are attributed. The coastal state has jurisdiction w i t h regard to —

all activities for the economic exploitation and exploration of the zone, including conservation and management of the natural resources, whether living or non-living;

—

marine scientific research, and

—

the protection and preservation of the marine environment.

The two last mentioned jurisdictions are subject to the provisions in the pertinent Parts of the Convention. 1 1 3 Other states enjoy —

high seas freedom of navigation,

—

high seas freedom of overflight,

—

high seas freedom of laying submarine cables,

—

high seas freedom of laying submarine pipelines, and

—

other internationally lawful uses of the sea related to the above four high seas freedoms. 114

Since the Convention expressly qualifies the first four freedoms w i t h the clause "referred to in article 87" there can be no doubt about the absolute qualitative identity of these freedoms w i t h those enjoyed by all states beyond the EEZ. I t is not only important that the related uses in the fifth freedom make reference to overflight, laying of cables and submarine pipelines in addition to navigation. The Convention illustrates the meaning of this clause by giving an example: "such as those associated w i t h the operation of ships, aircraft and submarine cables and pipelines, and compatible w i t h the other provisions of this Convention" 1 1 5 . This is not an enumerative, but only an illustrative clarification and important in the first place because of the wide scope of application of the term "operation". The Convention uses i t elsewhere to include a wide range of activities and uses.116 This term has also a specific military connotation as "a military action, or the carrying out of a military mission, strategic, tactical, service, training or administrative" 1 1 7 . The fifth freedom us 114 us ne (note 117 Bonn

Art. 56. Art. 58 (1). Art. 58 (1). Art. 1 (5) (b) (i), 60, 96, 98 (2), 101 (b), 145 (a), 195 (3) (b) (d), 237; see Rauch 38), 143—144. NATO-Glossar, AAP-6, September 1964, published by the Federal Ministry of Defence, 1964, 225.

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in A r t . 58 is not restricted to but includes this meaning of the term "operation". Whereas A r t . 46 (1) Revised Single Negotiating T e x t 1 1 7 a ( R S N T [Part I I ] ) was a negotiated ambiguity which invited an interpretation contrary to the interests of military uses of the EEZ, the language agreed to in the Convention does not lend itself to such a construction. As emphazised by the descriptive reference to "operation" of ships and aircraft the Convention permits as internationally lawful military activities naval maneuvers, deployment of naval forces, including submarines, gunnery exercises, live shooting, weapons tests, military training, intelligence gathering, surveillance and even espionage. 118 The first scholarly writing, in which the "freedom of military maneuvers" in the EEZ of other states was mentioned by name is the article "The Economic Zone and its Legal Status" by Felix N. Kovalev from the Soviet Ministry of Foreign Affairs, a senior member of the USSR LOS delegation. 119 Basically the same line of argument can be found in an article written by Pjotr D. Barabolja and Stephan W. Molodcov , both ranking members of the Soviet LOS delegation: "Problems of the exclusive economic zone in contemporary international l a w " , published in June 1977. 120 I t is confusing, therefore, that shortly before the final session of U N C L O S I I I in Montego Bay / Jamaica the official digest of the Soviet N a v y published an article "The Adoption of the N e w Convention on the Law of the Sea", written by the same Major General Pjotr Barabolja and another military member of the Soviet LOS delegation, Captain R. Sorokin , which contradicts the long-standing Soviet position. 1 2 1 Barabolja and Sorokin wrote: "The regime of the economic zone places definite limitations on the activities of foreign ships and vessels w i t h i n the zone's limits. I n particular, without the permission of the litoral state they cannot engage in . . . the test of weapons or technical equipment . . . in the economic zone" 1 2 2 . This flies i n the face of everything Soviet scholars have written and Soviet diplomats have said and have fought for at U N C L O S I I I and what seemed to be an ironclad official "7aA/Conf. 62/WP. 8/Part II, 4 UNCLOS I I I , 137 et seq. 118 Espionage in times of peace as such (without violation of the territory, air space etc. of another country) is not a violation of international law, see: Elmar Rauch, Espionage, in: Rudolph Bernhardt (ed.), Encyclopedia of Public International Law vol. 3, Amsterdam 1982, 171—172. 119 Ekonomicieskaja Zona i ejo Pravovoj Status (The Exclusive Economic Zone and its Legal Status), in: Mezdunarodnaja zizn' No. 1 (1979), 62—69. 120 Op. cit., 68. 121

Problemy ekonomiceskich zon ν sovremennom mezdunarodnom prave (Problems of the economic zones in contemporary international law), in: Morskoj sbornik No. 6 (1977), 77 et seq. 122 Prinjatie novoj konvencii po morskomu pravu (The Adoption of the new convention on the Law of the Sea), in: Morskoj sbornik No. 11 (1982), 82—86.

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ocean policy in Moscow. 1 2 3 One can only speculate, whether anti-Gorskov forces w i t h i n the politico-military hierarchy wielded their influence in order to protect the Soviet 200 nm zone, whether the censor made a mistake or whether something simply fell between the cracks. 6. Installations

on the Continental

Shelf and in the EEZ

The EEZ includes the sea-bed and subsoil of the 200 nm belt, which is dealt w i t h in the Convention by a cross-reference to the legal regime of the continental shelf. 124 The continental shelf of a coastal state, in turn, extends to the outer limit of the EEZ even in those cases where the outer edge of the continental margin does not extend up to that distance. 125 I f the natural prolongation of the coastal state's land territory reaches beyond the 200 nm line, we have a continental shelf w i t h i n the meaning of the 1958 Convention on the Continental Shelf 1 2 6 i. e. a submarine area the superjacent waters of which form part of the high seas.127 The legal regime of military installations on the outer continental shelf and on the sea-bed, subsoil, water column and surface of the EEZ is identical. Thus the Convention avails itself of the technique to spell out this regime in Part V on the E E Z 1 2 8 and to make another crossreference in Part V I on the continental shelf. 129 The 1958 Convention on the Continental Shelf did not address the problem of military uses at all. The coastal state was given exclusive jurisdiction for the purpose of exploring i t and exploiting its natural resources. 130 As a matter of consequence all military uses remained subject to the high seas regime which used to be applicable to the shelf areas beyond the territorial sea before the 1958 Convention entered into force. 1 3 1 There was, however, one exception, concerning marine scientific research undertaken on the shelf and concerning the shelf. This research, whether for civilian or military purposes, was subject to the coastal state's consent. 132 123 See Lazarev (note 34), 215—274, especially 254—264; StepanV. Molodcov / Igor I. Yakovlev, Pravovye problemy ispoPsovanija mirovogo okeana (Legal problems of the Uses of the World's Oceans), in: Mezdunarodnaja zizn* No. 8 (1978), 62—70. 124 Art. 56 (3). 125 Art. 76 (1). 126 UNTS 499 (1965), 311. 127 Art. 3 of the 1958 Convention. 128 Art. 60. 12° Art. 80; there is one exception, however, since Art. 59 applies only to the continental shelf within the 200 nm EEZ and not to the outer continental shelf, see pages 254 et seq. infra. 130 Απ. 2; see Art. 77 (1) of the LOS Convention. 131 UNTS 499 (1965), 311. 132 Art. 5 (8).

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According to the LOS Convention the coastal state has the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands for whatever purposes in its exclusive economic zone and on its continental shelf. 133 Artificial islands for military purposes can, therefore, be built and operated only upon the express consent of the coastal state. From these artificial islands the Convention distinguished "installations and structures". Here the coastal state's jurisdiction is restricted to installations and structures for the purposes provided for in Articles 56 and 77 of the Convention and other economic purposes. 134 A r t . 56 for the EEZ and A r t . 77 for the continental shelf attribute sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources. M i l i t a r y purposes are clearly distinct from resource-related and another economic purposes; they can never be interpreted as falling under the economic purposes clause. Neither do they have anything in common w i t h the jurisdiction granted to the coastal state w i t h respect to marine scientific research or the protection and preservation of the marine environment, listed in article 56. 1 3 5 I n addition to these installations and structures for resource-related and other economic purposes the coastal state has also exclusive jurisdiction regarding all installations and structures which may interfere w i t h the exercise of its rights in the EEZ or on the continental shelf. 136 As in the case of artificial islands this treaty provision includes all purposes, civilian or military ones. I f and when such installations and structures " m a y " interfere w i t h the exercise of the coastal state's resource-oriented jurisdiction, they must not be constructed or used or operated without the consent of the coastal state. I n this conflict situation the interests of the coastal state clearly prevail over e. g. military interests of other states. 137 As far as the outer continental shelf is concerned, that is the end of any interpretation. W i t h respect to the EEZ including the continental shelf up to 200 nm an additional problem has to be dealt with. A r t . 59 of the Convention provides that in cases where the Convention does not attribute rights or jurisdiction to the coastal state or to other states w i t h i n the EEZ, and a conflict arises between the interests of the coastal state and any other state or states, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as iss Art. 60 (1) (a), 80, 134 Art. 60 (b), 80. 135 See pages 260—263 infra. 136 A r t . 60 ( 1 ) (c), 80. 137 See John R. Stevenson i Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session, in: AJIL 69 (1975), 763—797 (777).

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a whole. This treaty provision is a procedural dispute settlement device and has no substantive meaning. Except for the negative repercussions that i t definitely rules out any residual rights of the coastal state 138 , and by implication reaffirms the freedom of all states to emplace and emplant installations and structures not attributed in A r t . 60. For an evaluation whether the solution of the Convention is a viable compromise between coastal states interests and the strategic and military interests of the naval powers, one has to focus attention on the fact that the Convention uses different terms than the 1958 Continental Shelf Convention which speaks of "installations and other devices" 139 . The LOS Convention does not define the terms "installations and structures". Elsewhere it uses "platforms or other man-made structures at sea and their equipment" 1 4 0 , "offshore installations and artificial islands" 1 4 1 , "installations used for carrying out activities in the A r e a " 1 4 2 , "installations and devices" 143 and "installations and equipm e n t " 1 4 4 . I n our context i t is of particular importance that the LOS Convention uses exactly the same terminology as the 1958 Continental Shelf Convention "installations and devices" only in Part X I I on the protection and preservation of the marine environment through pollution from the exploration and exploitation of the natural resources of the continental shelf 145 and not in A r t . 60. The term "structure", therefore, has to carry a different connotation from "device". O f equal importance is the language used in connection w i t h marine scientific research on the continental shelf and in the EEZ. Here the Convention uses "installation and equipment". 1 4 6 For the correct interpretation of the terms "installations and structures" we have to take into consideration the context in which they are used. A r t . 60 of the Convention stipulates that "due notice" must be given of the construction of artificial islands, installations and structures, and permanent means for giving warning of their presence must be maintained. A n y installations or structures which are abandoned or disused shall be removed to ensure safety of navigation. Artificial islands on the one hand and installations and structures on the other, are treated in an identical way — except for the obligation 138 See Willem Ripbagen , La navigation dans le nouveau droit de la mer, in: Revue Générale de Droit International Public 84 (1980), 144—177. 13» Art. 5 (2). 140 Art. 1 (5) (a) and (b). 1« Art. 11. 1« Art. 147 (2). 143 Art. 194 (3) (c) and (d). 144 Art. 258, 259, 261, 262. 1 4 5 See Art. 194 (3) (c); the language "sea-bed and subsoil* is confusing here. It refers to the continental shelf and not to the Area, see Art. 208, 209. 140 See Art, 258 et seq.

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to remove them. Size seems to play an important role here. Small devices cannot impede or endanger navigation, need no safety zone and would never serve as a pretext to claim a territorial sea of their own. Safety zones are possible only around research installations, not around equipment. 147 I f one tries to extract bona fide from these discrete articles of the Convention the meaning of the terms "installations and structures" the first priority should be given to the classification of all the above mentioned termini technici w i t h respect to the w i d t h of their connotation. Beginning w i t h the former the sequence from the outermost circle to the center would run as follows: equipment — device — installation — structure — platform — artificial island. The correct understanding of these terms is the more important since the freedom to construct and operate installations and structures has to be delimitated from the freedom of navigation and the freedom to lay submarine cables. The use of equipment and devices by warships and military aircraft as navigational aids is an element of the freedom of navigation enjoyed by all states in the EEZ and in the waters superjacent to the outer continental shelf. These devices and equipment can be used without any restriction as long as they are compatible w i t h the "due regard" clause. A more difficult question is raised by acoustic array systems on the continental shelf. I t has been contended that the emplacement of such systems, at least in some circumstances, is included in the freedom to lay submarine cables. 148 Hydrophone arrays on the continental shelf in crucial monitoring areas are of military importance in particular in the context of ASW preparation. 1 4 9 Hydrophones can either be deployed as a dispersed array of upward-listening devices, bottom-mounted at different depths over a large area, or can be arranged in a two-dimensional array several hundred meters long. I n both cases the hydrophones are linked to shore-based processing units. Acoustic detection methods employed by the superpowers are either active or passive. Passive methods rely on hydrophones, while active methods use in addition to them a sound generator, e. g. sonar transducers. The United States' network of large fixed acoustic detection devices is known as the Sonar Surveillance System (SOSUS). 150 The Soviet Union has deployed a very 147 Art. 260. 148 Daniel P. O'Connell , Resources Exploitation, The Law of the Sea and Security Implications, in: Christoph Bertram / ]ohan ]. Hoist (eds.), New Strategic Factors in the North Atlantic, Oslo 1977, 160—168 (167). 149 See Osgood (note 78), 106 et seq. i " See Kosta Tsipisy Antisubmarine Warfare, in: World Armaments and Disarmament. Stockholm International Peace Research Institute (SIPRI) Yearbook 1974, 303—325; SIPRIMonograph, Tactical and Strategic Antisubmarine Warfare, Stockholm 1974; Rex J. Zedalis,

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similar fixed surveillance system capable of scanning vast expanses of ocean space as part of the so-called Soviet Ocean Surveillance System (SOSS). 151 I t seems rather difficult to answer the question whether such ASW equipment meets the requirement of a "submarine cable". The LOS Convention treats such cables together w i t h pipelines. 152 To be sure, there is no necessity that both pipeline and cable connect two points on opposite or adjacent coasts, because pipelines from offshore oil-platforms transporting the crude from the rigg to land storage tanks or raffineries are "pipelines" w i t h i n the meaning of the Convention. A solution seems possible only i f one adopts a functional approach. Pipelines and cables are devices which are designed to transport something, oil and gas or electricity, information etc. This corresponds to the view of the International Law Commission (ILC). When working on a draft for U N C L O S I in 1958 the I L C defined the term as follows: "The term "submarine cable' applies not only to telegraph and telephone cables, but also to high voltage power cables" 153 . The salient features of fixed acoustic detection arrays are surveillance, reconnaissance, detection and the communication of the information gathered to a terminal or other receiver. Since such fixed arrays do transmit electronic impulses and the transmittal of information is the most important feature for the functioning of ASW equipment they can be subsumed under the freedom to lay submarine cables. However, this can be decided only on a case by case basis, taking into due account size, operative characteristics and functional attributes of each such system, which are classified information. Certain types of fixed acoustic ASW array systems, certain large floating or moored sonobuoys and weapon systems such as the "Captor" mine are installations w i t h i n the meaning of A r t . 60 of the Convention. They can be lawfully emplaced i f they do not interfere w i t h the exercise of the resource related rights of the coastal state in the EEZ and on the continental shelf. The coastal state has no right to inspect, damage, destroy or remove these military installations. I f a conflict arises because the coastal state wants to commence w i t h an economic activity incompatible w i t h these installations, the coastal state has to enter into good faith negotiations w i t h the "flag state" of Military Uses of Ocean Space and the Developing International Law of the Sea: An Analysis in the Context of Peacetime ASW, in: San Diego Law Review 16 (1979), 575—664, 151 K. TitoVy Ob'ekty i sily razvedki no more (Naval Intelligence Targets and Forces), in: Morskoj sbornik No. 9 (1972), 58—62; / . Kuzmin , Razvedka ν blokadnych dejistviach na more (Intelligence in Blockade Operations at Sea), in: Morskoj sbornik No. 12 (1978), 30—36; B. MakaeVy Slezenie i navedenie ν boevydi dejstvijach na more (Tracking and Guidance in Combat Operations at Sea), in: Morskoy sbornik No. 7 (1980), 16—23. 152 Art. 79. 1 5 3 ILC Commentary on draft Art. 27, comment 4, reprinted in: Marjorie M. Whiteman , Digest of International Law vol. 4, Washington 1965, 542—552 (547—548).

17

G Y I L

28

258

Elmar Rauch

these military installations in order to resolve the conflict of interests on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. 7. Enclosed and Semi-Enclosed Seas The definition and legal regime of enclosed or semi-enclosed seas is contained in Part I X of the Convention. For the purpose of the Convention this terms mean a gulf, basin, or sea surrounded by two or more states and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states. 154 This definition does not only cover the Baltic, Black Sea, Sea of Ochotsk and Sea of Japan, but also the Mediterranean, the Gulf of Mexico and the Caribbean. As to the legal regime the Convention invites — not obliges — the litoral states to cooperate w i t h each other in the exercise of their rights and in the performance of their duties w i t h respect to —

management, conservation, exploration and exploitation of the living resources of the sea;

—

protection and preservation of the marine environment; and

—

scientific research. 155

A n d this enumeration is exhaustive. There is no suggestion to cooperate in the field of military uses of the seas. W i t h respect to third states the Convention expressly mentions that the litoral states may invite other interested states or international organizations to cooperate w i t h them i n the above areas. 156 This invitation to good-neighbourly cooperation of states bordering certain seas is neither new or special. I t is noteworthy only for one element, which i t does not include, namely military uses of such seas. 8. High Seas The 1958 H i g h Seas Convention, which is generally declaratory of established principles of international l a w , 1 5 7 balances the enjoyment of the freedoms of all states in that i t requires these freedoms to be exercised w i t h "reasonable regard" to the interests of other states in their exercise of the freedom of the high seas.158 This reasonable regard clause applies to all activities, civilian as well as military. Based upon this restriction attempts 154

iss is« 157 158

Art. 122. Art. 123 (a) — (c). Art. 123 (d). See the preamble of the Convention. Art. 2.

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have been made to exclude certain military activities. However, it is clear that even extensive, long-term use of the high seas for maneuvers or targeting practice is legal. 159 Another hotly disputed issue at U N C L O S I was the proposal to ban nuclear weapons tests. Fortunately, a compromise suggested by India was accepted, to send the entire question of the legality of nuclear weapons tests to the U N General Assembly. 160 U N C L O S I I I did not have to tackle this difficult question of the legality of nuclear weapons tests on the high seas, because the two superpowers and 106 more states have ratified the Test Ban Treaty of 5 August 1963 161 . I t should be noted that the LOS Convention replaced the "reasonable regard" language by a "due regard" clause. 162 W i t h respect to the military uses of the high seas there seems to be no tangible substantive change. 9. Deep Sea-Bed and Ocean Floor The sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction are called the Area. 1 6 3 Jurisdiction of the coastal state — as far as the sea-bed is concerned — extends to the outer edge of the continental margin as defined in the Convention or to a distance of 200 nm from the baselines from which the breadth of the territorial sea is measured. 164 The Pardo initiative was directed towards a complete demilitarization of that Area. 1 6 5 A n d many a T h i r d W o r l d country favoured this approach. 166 However, none of such proposals were incorporated in the Convention. The deep sea-bed mining regime is strictly limited to "activities" 1 6 7 A n d activities are defined as "activities of exploration for, and exploitation of, the resources of the A r e a " 1 6 8 . I n other words, all military activities on the sea-bed beyond the continental shelf are in no way affected by the new LOS Convention. Activities of exploration and exploitation of the resources of the Area have to be carried out w i t h "reasonable regard" for other activities in the marine environment, including is» U N Doc. A/CONF. 13/C. 2/SR. 21. «ο U N Doc. A/CONF. 13/C. 2/L. 71 and Rev. 1. lei Treaty banning nuclear weapons tests in the atmosphere, in outer space and under water, UNTS 480 (1963), 43; German translation in: Delbrück (note 18), 561—562; China and France have not yet acceded to this treaty. ιβ2 Art. 87 (2). les Art. 1 (1) (1). 164 Art. 76. 165 See Alva Myrdal , No Arms on the Ocean Floor, in: Pacem in Maribus, vol. V I I , Proceedings Pacem in Maribus Convocation, Malta 1971, 11. 166 See U N Doc. A/AC. 138/SR. 7; SR. 8, SR. 34. 167 Art. 134 (2). 168 Art. 1 (1) and (3).

17*

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military activities. 169 By the same token, the military activities along w i t h all other non-resource oriented activities must be conducted w i t h the same "reasonable regard" for the exploration and exploitation of the natural resources of the Area. 1 7 0 10. Protection

of the Marine

Environment

The Convention devotes a whole Part to the protection and preservation of the marine environment which proves the heightened awareness and consciousness of the world community towards these problems. 171 The Convention has struck a delicate compromise between the interests of the coastal states to protect their coasts and the resources in their zones of sovereignty or national jurisdiction and the interests of the international community as a whole in the freedom of navigation. O f particular delicacy were the negotiations concerning national regulatory and enforcement jurisdiction to prevent, reduce and control pollution from vessels.172 I t remains to be seen whether this balance w i l l work out in practice. M i l i t a r y forces at sea are exempted from all these restrictive rules and regulations. They enjoy sovereign immunity. This sweeping substantive immunity is coupled w i t h a state obligation to adopt appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, in order to ensure that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, w i t h the Convention. 1 7 3 A l l these measures are strictly national law of the flag state. A n d the flag state is not required to adopt and promulgate and enforce any rules or regulations which might impair "operations or operational capabilities" of such vessels or aircraft. 11. Marine

Scientific

Research

There is no definition of the term "marine scientific research" in the Convention. Some of the negotiating texts, however, contained such a definition. The R S N T of 6 M a y 1976 defined the term as follows: "For the purpose of this Convention 'marine scientific research' means any study or related experimental work designed to increase mankind's knowledge of the marine environment". 1 7 4 There was a lot of discussion about the usefulness of this ιββ Art. 170 Art. 171 Part 172 Art.

147 (1). 147 (3). X I I , Art. 192—237. 211, 218, 220, 223—233.

173 A r t . 2 3 6 , last sentence.

174 Art. 48 Revised Single Negotiating Text (RSNT) (III), U N Doc. A/CONF. 62/WP. 8/ Rev. 1 (Part III), in UNCLOS I I I , vol. V, 173 et seq.

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definition. Since there is no definition in the Convention we have to carefully establish the meaning of this term through good faith interpretation. As far as the military uses of the oceans are concerned we have to distinguish basically five different categories of activities: navigation, hydrographie survey, surveillance, reconnaissance and intelligence gathering. The traditional freedom of marine scientific research for military purposes has been preserved for the H i g h Seas175 and for the Area, i. e. the seabed and subsoil beyond the limits of national jurisdiction 1 7 6 . That internal waters, the territorial sea and archipelagic waters are closed to any research activity by other states is self-evident. This is in accordance w i t h the traditional principle of coastal state sovereignty. 177 The EEZ and the continental shelf were the big battle ground at the Conference. A n d here science has definitely lost the battle. The legal regime for marine scientific research in the EEZ and on the continental shelf is identical. 1 7 8 The basic feature is the consent of the coastal state. I n the exercise of its jurisdiction the coastal state has the right to regulate, authorize and conduct marine scientific research in the EEZ and on the continental shelf. Such research shall be conducted only w i t h the express consent of and under the conditions set forth by the coastal state. That means the traditional freedom of marine scientific research in roughly 4 0 % of the world oceans has been replaced by a consent regime. 179 Coastal states shall, however, " i n normal circumstances", grant their consent for research projects by other states in order to increase scientific knowledge of the marine environment for the benefit of all mankind. 1 8 0 Here we are faced w i t h the first possibility of abuse. States may t r y to evade the obligation to grant consent by putting forth the argument research for military purposes does not meet the requirement of benefitting all mankind. But even i f coastal states were ready to accept in good faith interpretation of that clause that knowledge of the marine environment is v i t a l also for the balance of deterrence on the oceans, it is the small print that determines the practical value of this obligation. Before analyzing the strings attached to the right of other states to be granted consent it is well to point out the exceptions to this general rule. I t is in the absolute discretion of the coastal state to withhold consent i f the marine scientific research project, apart from cases of outstanding obligations from a prior research project, 175 Art. 87 (1) (f), 257. ne Art. 143, 256. 177 Art. 245, 2 (2) and (3), 8, 49, 50. 178 Art. 246; the only exception concerning the outer continental shelf (Art. 246 [6] ) has no bearing upon research for military purposes. 179 Art. 246 (1). 180 Art. 246 (3).

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—

is of direct significance for the exploration and exploitation of the natural resources;

—

involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment;

—

involves the construction, operation or use of artificial islands, installations and structures; or contains information regarding the nature and objectives of the project which is inaccurate. 181

—

The consent regime requires that the researching state files a request w i t h the coastal state. Such researching state shall, not less than six months in advance of the expected starting date of the project provide the coastal state w i t h a full description of —

the nature and objective of the project;

—

the method and means to be used, including name, tonnage, type and class of vessels and a description of scientific equipment;

—

the precise geographical areas in which the project is to be conducted;

—

the expected date of first appearance and final departure of the research vessels, or deployment of the equipment and its removal, as appropriate; the name of the sponsoring institution, its director and the person in charge of the project; and the extent to which i t is considered that the coastal state should be able to participate or to be represented in the project. 1 8 2

— —

I n addition, the researching state has to comply w i t h numerous conditions. I t has to —

ensure the right of the coastal state, i f i t so desires, to participate or be represented in the project, especially on board research vessels and other craft or installations;

—

provide the coastal state, at its request, w i t h preliminary reports, as soon as practicable, and w i t h the final results and conclusions after the completion of the research; undertake to provide access for the coastal state, at its request, to all data and samples derived from the project and likewise to furnish i t w i t h data which may be copied and samples which may be divided without detriment to their scientific value; i f requested, provide the coastal state w i t h an assessment of such data, samples and research results or provide assistance in their assessment or interpretation;

—

—

181 Art. 246 (5). 182 Art. 248.

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—

ensure, that the research results are made internationally available through appropriate national or international channels, as soon as feasible;

—

inform the coastal state immediately of any major change in the research programme; and unless otherwise agreed, remove the marine scientific installations or equipment once the research is completed. 183

—

There is no need to elaborate on the consequences of these treaty provisions for military research projects. They are very restrictive. The question seems justified, whether this result is compatible w i t h the common heritage of mankind concept. Nature knows no artificial boundaries and ocean phenomena do not stop at the edge of the continental margin or at a 200 nm line. Nonetheless, i t is not marine scientific research for military purposes that suffered most. The Convention contains a general provision in Part X V I which stipulates: Without prejudice to the right of a State Party to resort to the procedures for the settlement of disputes provided for in this Convention nothing in this Convention shall be deemed to require a State Party, in the fulfilment of its obligation under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security 184 . This provision covers all information, whether under a consent regime or under a notification regime or for any other reason. The proposal to include such a provision had been tabled by the United States on 25 March 1980. 185 I t has already been pointed out that the official records of U N C L O S I I I simply state that this proposal was accepted by consensus after i t had been included into a package together w i t h the general provisions on good faith and abuse of rights and peaceful uses of the seas.186 A rather strange statement has to be noted here. The Conference President, in his report dated 22 August 1980 on the work of the informal plenary on general provisions during the resumed ninth session, stated for the record: The article on disclosure of information was understood to mean that it did not detract from the obligations under the present Convention concerning the transfer of technology and marine scientific research and the obligation concerning the settlement of disputes thereon 187 . There was just one delegation that addressed this point in Plenary. The representative of Jamaica, on 27 August 1980, declared: The general provision that a state party is not obliged to supply information the disclosure of which is contrary to the essential interests of security is open 183 Art. 249. 184 Art. 302. 185 U N Doc. GP/3. 186 See page 241 supra. 187 U N Doc. A/CONF. 62/L. 58, 2.

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to abuse. M y delegation wishes to sound a note of caution in that respect, despite the unterstanding that the provision is not intended to detract the obligations under the present convention concerning the transfer of technology 1 8 8 .

The statement of understanding of the Conference President w i t h respect to dispute settlement and transfer of technology makes sense. The same holds true for the declaration of Jamaica, i f it is to be understood as a reference to transfer of technology only. The treaty article itself makes a reservation ("without prejudice") on behalf of the settlement of disputes. A n d according to Annex I I I of the Convention concerning "Basic Conditions of Prospecting, Exploration and Exploitation" any technology, which is not generally available on the open market and which the owner does not, upon the request of the International Seabed Authority, want to make available to the Enterprise under licence or other appropriate arrangements, and on fair and reasonable commercial terms and conditions to the same extent as made available to the contractor, must not be used by the contractor in carrying out activities in the Area. 1 8 9 From a military point of view, i t is important, that the owner of a certain deep seabed technology is not obliged to transfer this technology automatically. H e has a choice or may even be prohibited by national law to transfer a certain technology which might be usable for ASW. I n these cases the penalty has to be paid, that is the technology cannot be used by the contractor. The general provision on non-disclosure of information does not interfere w i t h this penalty. However, as far as the marine scientific research regime of the Convention for the continental shelf and for the EEZ is concerned, the statement of the President is an interpretation contra legem , which is not tenable. There were no objections at the Conference, but they were not necessary, given the clear and unambiguous language of A r t . 301. T o be sure, the tough prerequisites of this general provision have to be met. Whether a marine scientific research project for military purposes qualifies can be decided only on a case by case basis. A n d the decision has to be made on the highest political and military level. I t is safe to say that all military research indispensable for the functioning of the balance of mutual deterrence of the superpowers can be conducted in secret without giving any information to the coastal state on whose continental shelf or in whose EEZ the reasearch project is to be conducted. This includes the use of explosives and of nuclear powered equipment, drilling i n the continental shelf etc . Research of the saline and thermal stratification or of the acoustic conditions w i t h i n the water column in order to enable strategic missile carrying submarines safe navigation, e. g., can not run afoul 188 U N Doc. A/CONF. 62/SR. 139, 29. 109 Art. 5 (3) (b).

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of the marine scientific research regime of the Convention i f non-compliance w i t h the consent regime for the continental shelf and for the EEZ is required by the essential interests of the flag state's security. Needless to mention, that the general provision on non-disclosure of information does not relieve the researching state from the obligation that marine scientific research activities on the continental shelf and in the EEZ of other states must not unjustifiably interfere w i t h activities undertaken by coastal states in the exercise of their sovereign rights and jurisdiction provided for in the Convention. 1 9 0 12. Settlement of Disputes States party to the Convention are free to chose one or more of the following means for the settlement of disputes: the International Law of the Sea Tribunal, the International Court of Justice, an Arbitral Tribunal or a Special Arbitral Tribunal. 1 0 1 As a matter of principle, any dispute concerning the interpretation or application of the Convention shall, where no settlement has been reached by recourse to other peaceful means, be submitted to compulsory procedures entailing binding decisions by one of the above mentioned courts or tribunals. 1 9 2 There are several limitations and optional exceptions from this principle, however. The limitations spelled out in the Convention pertain to the exercise of coastal state jurisdiction in the EEZ and on the continental shelf. 193 The optional exceptions concern sea boundary delimitations, historic bays or titles, military activities and disputes in respect of which the U N Security Council is exercising its functions. 194 The first problem arises w i t h respect to the scope of application of the dispute settlement system. The Convention does not contain any specific provision dealing w i t h disputes in the context of sovereignty of the coastal state. I t has been argued that, since the dispute settlement Part of the Convention deals specifically w i t h disputes relating to the exercise by a coastal state of sovereign rights, exclusive rights and exclusive jurisdiction, disputes involving the exercise of sovereignty of the coastal state are assumed to be exclusively w i t h i n the competence of domestic courts of the coastal state, as in the case of those disputes arising in the land territory of a state. 195 This seems to be quite a misunderstanding of the Convention. The dispute settlement part deals w i t h the zones of national jurisdiction and the exercise of coastal state «ο Art. 246 (8). 191 Art. 287. 102 Art. 286. 193 Art. 297. 194 Art. 298. 195 A. O. Adede , Law of the Sea: The Scope of the Third-Party Compulsory Procedures for Settlement of Disputes, in: AJIL 71 (1977), 307—311 (307).

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competences w i t h i n them as limitations or exceptions from the general rule. Disputes involving the exercise of sovereignty of the coastal state — in the context of innocent passage through the territorial sea or archipelagic waters or the exercise of transit passage through straits or archipelagic sea lanes passage — are subject to compulsory dispute settlement, i f they concern the interpretation or application of the Convention. Textual and systematic interpretation as well as object and purpose of the Convention require this interpretation. This is, by the way, nothing new. The same situation exists under the Statute of the International Court of Justice for all parties that have accepted its jurisdiction. 1 9 6 The domestic courts of a coastal state get involved in all cases because of the exhaustion of local remedies rule in the Convention which applies to all disputes. 197 W i t h respect to coastal state jurisdiction in its EEZ the court or tribunal has to decide in all cases when i t is alleged that —

a coastal state has acted in contravention of the provisions of the Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in A r t . 58; or

—

a state in exercising the aforementioned freedoms, rights or uses has acted in contravention of the Convention or of laws or regulations adopted by the coastal state in conformity w i t h the Convention and other rules of international law not incompatible w i t h the Convention. 1 9 8

I n other words, all interpretational disputes w i t h respect to the five freedoms in the EEZ, including the miliary uses, are subject to judicial review. As far as the coastal state jurisdiction in the EEZ and on the continental shelf i n the context of marine scientific research is concerned, the situation is different. The coastal state is not obliged to accept the submission to obligatory settlement of any dispute arising out of the exercise of its rights or discretion in this area or out of a decision by the coastal state to order suspension or cessation of a research project. Such disputes arising from an allegation by the researching state must be submitted, at the request of either party, to conciliation. 1 9 9 I n contrast to arbitration, conciliation ends w i t h a report by the conciliation commission, which records its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement. This report, including its conclusions or recommendations, is not binding upon the parties, ι·« 187 198 199

Art. Art. Art. Art.

36 (2); Elmar Raudh (note 38), 110—114. 295. 297 (1) (a) (b). 297 (2) (a), (b).

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and under no circumstances may the conciliation commission substitute its discretion for that of the coastal state. 200 The small improvement that could be achieved during the ninth session is that the failure of a party to the dispute to reply to notification or institution of conciliation proceedings or to submit to such proceedings does in the case of marine scientific research disputes not constitute a bar to the proceedings. 201 When signing, ratifying or acceding to the Convention or at any time thereafter a state may declare in writing that i t does not accept any one or more of the dispute settlement procedures w i t h respect to disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service. 202 Such declaration may at any time be withdrawn or the state may nevertheless agree to submit a dispute excluded by such declaration to any dispute settlement procedure. 203 A state which has made use of this optional exception clause is not entitled to submit any dispute falling w i t h i n the excepted category to any settlement procedure as against another state party, without the express consent of that party. 2 0 4 A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal unless the parties otherwise agree. 205 U p until now, no state has deposited such a declaration w i t h the Secretary-General of the United Nations. IV. Conclusions The rapidly expanding coastal-state claims of sovereignty or jurisdiction over ocean space and their repercussions on traditional freedoms of the seas are among the prime reasons why U N C L O S I I I was convened. The traditional system of ocean law has been disintegrating under the onslaught of ever increasing unilateral encroachments on the sea by coastal states. A comprehensive treaty on the law of the sea offers by far the best and may be the only opportunity to establish an universally agreed and conflict-free regime governing the uses of the word's oceans and their resources.

200 Art. 297 (2) (b), Annex V Art. 7, 8, 11—13. 201 Annex V, Art. 12 versus Art. 284 (3); U N Doc. A/CONF. 62/WP. 10/Rev. 3 dated 27 August 1980 Annex V, Art. 11—13. 202 Art. 298 (1) (b). 203 Art. 298 (2). 204 Art. 298 (3). 205 Art. 298 (5).

Special Problems Concerning Deep Seabed Mining in the Event of Non-Participation in UNCLOS: Prospect for a Reciprocating States Régime, Site Certainty, Investment Assurance and Potential Litigation By L. F. E. Goldie I. Introduction The literature on the seabed mining debate, be i t academically objective or politically partisan, has, in the main, proceeded on a largely inarticulate assumption of an inevitable antithesis of the claims of productive efficiency (which some writers and polemicists identify w i t h "greed") w i t h those of distributive equity (which tend to be identified w i t h "justice"). The partisans of this dichotomy stress a contradiction based on a postulated incompatibility of the former interests w i t h the latter. Such reasoning, furthermore, appears to close its authors' minds to any possibility of mutual and creative interplay of the principles which each of the opposing sets of claims articulates. There is a tendency, indeed, to regard a synthetic approach as a sellout of world welfare to the greed of mining entrepreneurs. The argument of this paper, by contrast, w i l l be to illustrate the point that the interplay of the equities, which the opposing interests articulate as the modalities of their respective claims, calls for the kind of a mix of differing equities, each w i t h its own creative function, in terms of world welfare. Ultimately they would function harmoniously to provide the values of a regime (perhaps constituting a common meeting ground of regimes) that is impartial and just in a sense that adequate respect, recognition and participation is denied to none and that ideological commitments should not becloud the claims of fairness. The application, in international law, of equity as an indispensible rectifying factor in the process of decision-making, including decision by negotiating culminating in agreement, w i l l be considered in the first part of this paper. II. Equity as an Instrumental Value (Efficiency) and as Categorical (Justice) — A Preliminary Stipulation International law has long recognized the dual role of equity as mitigating the rigors of the law, or in Aristotle's classic statement, "restoring the balance

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of justice when it has been tilted by the l a w " 1 and as making adjustments and allocations outside, or even contrary to, the law. The distinction is, furthermore, reflected in the generally accepted subsumption of principles and rules of equity under Article 38 (1) (c) of the Statute of the International Court of Justice (I.C.J.) and in the requirement that when paragraph 2 of that Article is invoked (so as to bring about a decision "outside" or "contrary" to the law), the consent of the parties is required. This latter type of "equity", being analogous to conciliation or legislation, cannot assume the consent of the parties; and to deny them the right of giving or withholding their consent to the application of equity in this sense would be an infraction of their national sovereignty, equality and political independence. The meanings of equity as a moral and as a legal idea differ w i t h its uses and w i t h the variety of contexts in which i t may become embedded. Thus, when equity under Article 38, paragraph 2 of the Statute of the International Court of Justice (the "ex aequo et bono" clause) is contrasted w i t h equity as providing a basis of decision under paragraph 1 (c) of the same Article, there are different assumptions regarding its purpose. Before these contrasting equities and the modalities of their interaction and commingling are examined, it may be useful to review some of the evolving ideas about the place of equity in public international law. This process is especially manifested in the course of a number of decisions of the International Court of Justice and its predecessor, the Permanent Court. I n addition, the United Nations Charter contains the seeds of the future development of equity doctrines founded on the Principle of Solidarity. For example, Article 55 programmatically points to the unfolding of an international law of interdependence and of economic development and distributive justice. The equities envisaged in Article 55 are evolving to vindicate universally based (but still nascent and embryonic) categorical values: autonomy; respect; dignity; equality; participation. These equities are not immediately or directly instrumental in wealth-creation. By contrast, the other, the wealth-creating group of equities, which are set in contrast and comparison to those reflecting the categorical values, are instrumental. These latter equities are conducive to a more smoothly operating economic system and advance the security of transaction, and so they include the vindication of: notice; reliance; induce1

Aristotle , Nichomachean Ethics, book V, chapter 10; translated by / . K. K. Thomson , London 1955. For a similar statement with specific reference to international law, see O. Manley Hudson , International Tribunals, Past and Future, Washington 1944, 103, and the Diana (Master Gardner) Case, in: John Β. Moore , International Adjudication, (Modern Series) 4, New York 1931, 333 (342 et seq.).

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ments; expectations and the practice of consistent and articulate business fairness. Their effectiveness primarily is directed (in most but not necessarily all cases) to wealth creation. They are more conducive to wealth creation, to economic efficiency, than they are to the vindication of the irreducible applicable norms of justice to the human person and the vindication of his dignity and right to participate. The importance of these latter equities calls for their recognition as goals in the creation of regimes, and in the formulation of treaty regimes, and they should also be applied in the administration of the regime and in the interpretation of its relevant constituent treaty. As such they are equities which the I.C.J, is called upon to recognize and apply under Article 38 (1) (c) of it's Statute no less than the instrumental equities. III. Equity in International Law 1. Equity and the " General Principles of Law Recognized by Civilized Nations" 2 a) Equity and the "General Principles" Clause This source of rules of decision by the International Court of Justice is, of course, authoritatively provided in Article 38 (1) (c) of the Court's Statute. Typical of such general principles are notions of res judicata , audi alteram partem?, reliance 4 , clean hands, good faith, proportionality 5 and that a tribunal should "look to the substance rather than to the form". 6 To these should be added The Roman law maxim which has been received into international law, namely, inadimplenti non est adimplendum (he who fails to fulfill his part of 2 This is the formulation of aleana c of Article 38, paragraph 1, of the Statute of the International Court of Justice (I.C.J.). It has been quite severely criticized. For example Judge Ammoun has observed that the words "recognized by civilized nations" is inherently based on an assumption of the inequality of the developing countries and has suggested that they be changed to "recognized in national legal systems". North Sea Continental Shelf Cases, I.C.J. Reports 1969, 3 (132—136). » See, e. g., the Nuclear Tests Cases, I.C.J. Reports 1974, 253 (265). 4 See, e. g., the Status of Eastern Greenland Case, (1933) Permanent Court of International Justice (P.C.I.J.), Judgements, Series A/B, No. 53, 36 (69—73); the Nuclear Tests Cases, I.C.J. Reports 1974, 253 (265—271). 5 See, e.g., North Sea Continental Shelf Cases, I.C.J. Reports 1969, 3 (53 et seq.); Case Concerning the Continental Shelf (!Tunisia v. Libyan Arab Jamahiriya ), I.C.J. Reports 1982, 18 (43 etseq.y 75 et seq.). β See, ft g., The Cayuga Indians Arbitration {Great Britain v. United States ), in: American Journal of International Law (AJIL) 20 (1926), 574—594; Nielsen Reports 1926, 203 et seq. (307).

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an agreement cannot enforce that bargain against the other party). 7 These maxims or doctrines constitute bodies of principles and rules collected together in terms of a defining concept and reflecting basic social values. b) The "General Principles of Law "and the "Ex Aequo et Bono" Clause Professor Bin Cheng 8 has argued that the "equity" of Article 38, paragraph 2 includes "pure equity" 9 in all its forms. These comprehend equity "not only secundum legem , and praeter legem , but also, i f necessary, contra legem". 10 The draftsmen's touchstone for distinguishing between the function of equity under Article 38, paragraph 1 (c) and under paragraph 2, he reports, was that between bringing "latent rules of law to l i g h t 1 1 and creating new rules: "for the members of the Committee were in agreement that a judge should not legislate" 12 . This position may be fruitfully compared w i t h that of Judge Anzilotti. H e distinguished between t w o connotations of equity. H e saw it, first, as constituting part of "the general principles of international law recognized by civilized nations" and hence as falling w i t h i n the scope of Article 38 (1) (c), of the Court's Statute. I n the second place, however, he saw decisions which could be rendered under Article 38 (2), of the Statute as properly to be characterized, not as equitable, even in the most general sense, "but as the result of compromise" 13 . Another more descriptive term would be conciliation — that is, a settlement on the basis of what one of the parties may claim, but which is not given, and may even be denied, by existing principles or rules of law and equity. Professor Berber in his work, Rivers in International Law , accepts as settled this characterization of the ex aequo et bono clause.14 7 See, e. g.f Cherry v. Boultbee , 4 Mylue & Craig 442., 41 English Reports 171 (Chancery 1829) and its progeny. The classical statement of this principle's incorporation into international law is that of Judge Anzilotti in the Diversion of Water from the River Meuse case (1937), P.C.I.J. Judgements, Series A/B, No. 70, 50. See, also, Tacna-Arica Arbitration, United Nations Reports of International Arbitral Awards 2, New York 1949, 929 (943 et seq.). 8 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London 1953, 19 et seq. 9 Op. cit. (note 8), 20. See also Shabtai Rosenne, The International Court of Justice, Leyden 2d Printing 1961, 428. ίο Op. cit., 20. 11 Op. cit.y 19 (author's emphasis). 12 Ibid. 1 3 Dionisio Anzilotti , Corso di Diritto Internazional, Rome 1982, 64. See also Max Habicht , Le Pouvoir du Juge International de Statuer "Ex Aequo et Bono", Recueil des Cours (RdC) 49 (1934 III), 281—367 (284—305); Hersch Lauterpacht , Private Law Sources and Analogies of International Law, London 1927, 63—67. 1 4 Friedrich Berber , Rivers in International Law, London 1959, 266—267.

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The general acceptance of the distinction to which writers from Anzilotti and Lauterpacht to Berber attest also has the testimony of courts and arbitral tribunals. 15 2. The International Functions of Equity Under the of programs are estimated to be inventive enough to qualify for protection, Davidson (note 5), 357; Nycum (note 22), 67. 10» Cf. Schulze (note 46), 1006; Fritzemeyer (note 49), 187 et seq. no Betten (note 28), 65; cf. Cornish (note 17), 313 et seq.; Dworkin (note 67), 109.

389

Protection of Computer Software

Accordingly,

the t e r m

"computer

industry"

is

far more common i n

the

discussions t h a n is the t e r m " c r e a t o r " o r " p r o g r a m m e r " . 2.

The Demand

for

Proprietary

Protection

T h e reason c o m m o n l y g i v e n t o j u s t i f y the d e m a n d f o r p r o p r i e t a r y p r o t e c t i o n o f c o m p u t e r s o f t w a r e is the r e l a t i o n b e t w e e n h i g h i n i t i a l research a n d d e v e l o p m e n t ( R & D ) investments a n d the l o w costs o f c o p y i n g c o m p u t e r software, w h i c h is said t o be m i s a p p r o p r i a t e d . 1 1 1 I n the absence o f protection, R & D

legal

investments are feared t o be f r u s t r a t e d b y i m i t a t o r s a n d

m a y discourage i n v e n t i v e activities. O n e m a y oppose this v i e w b y r e f e r r i n g t o the f a c t t h a t this s i t u a t i o n so f a r d i d n o t h i n d e r the d e v e l o p m e n t o f s o f t w a r e business. 1 1 2 I n d e e d , m a r k e t structures i n m a n y cases enable the i n n o v a t o r t o h a v e his R & D expenses r e f u n d e d w i t h o u t legal p r o t e c t i o n , as i m i t a t i o n s are n o t l i k e l y

t o occur i m m e d i a t e l y b u t

innovation and imitation.

rather after

a time lag between

113

Therefore, one has t o t a k e i n t o account the a c t u a l m a r k e t structures a d d i t i o n t o the cost o f R & D

in

a n d c o p y i n g . 1 1 4 I n this regard, h o w e v e r , the

s i t u a t i o n indeed m a y have changed since the e a r l y days o f s o f t w a r e business. 1 1 5 T h e vast dissemination

o f computers w i t h p r o g r a m - c o p y i n g

facilities

and

the size o f the m a r k e t 1 1 6 p r o b a b l y lead t o r a p i d i m i t a t i o n s o f p r o g r a m s 111

by

Cf. Bates (note 59), 475 with further references; Davidson (note 5), 348. Cf. Schmidt (note 14), 354 with further references, pointing out that so far developments in the field have been achieved a . . . not because of but despite the law . . ."; similarly: Bates (note 59), 473. See Fritz Machlup , The Optimum Lag of Imitation behind Innovation, in: Festskrift til Frederik Zeuthen, Kopenhagen 1958, 239—256 (241 et seq.). 114 Stephen Brey er, The Uneasy Case For Copyright: A Study of Copyright in Books, Photocopies and Computer Programs, Harvard Law Review 84 (1970/71), 281—351 (346), expressly pointing out, that a large difference between initial costs of producing and costs of copying "is not alone sufficient to show that copyright protection is desirable . . .", cf. also, text succeeding note 125; Derek Morgan , Cable, Computers and Canadian Culture, in: Journal of Media Law and Practice 6 (1985), 138—156 (150); Michael O'Hare , Copyright and the Protection of Economic Rights, in: Journal of Cultural Economics 6 (1982), 33—48 (39 et seq.). 115 Considering the market structures of 1970, Breyer (note 114), 345 et seq. concluded, that protection was undesirable. The turning point of change is often deemed to be the "unbundling decision" of IBM. In 1969 IBM announced to charge programs and software separately from hardware leases, Ronald P. Wilder , The Electronic Data Processing Industry: Market Structure and Policy Issues, in: The Antitrust Bulletin 20 (1975), 25—47 (29); Brey er (note 114), 344 with note 248. For the patterns of change, see Bates (note 59), 475 with further references. 116 Analysis of market structures, however, has to take into account that the software market itself is not homogeneous, see Harris (note 6), 151 et seq., distinguishing between "Mass Marketed Software", "Software with some Mass Market Aspects", meaning more sophisticated microcomputer programs and "Mainframe Programs", e. g. operational programs of complex data processing units. See also, Wilder (note 115), 31. Considering those aspects 112

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copying 1 1 7 , which then can be marketed w i t h low prices, as the imitator does not bear the R & D costs. One may, however, argue that measures of legal protection other than proprietary protection should be considered prior to relying upon exclusive rights. Trade secrecy, however, being based upon contract, is actionable only in relation to employment contracts 118 or licensing agreements 119 . I n the event of mass-marketing of software, including mail order and o v e r - t h e counter sales 120 , it may be difficult to establish licensing agreements instead of sales contracts. 121 Additionally, programs may cease to be considered a secret i f numerously marketed. 122 Unfair competition remedies, at least under German law, are not a valuable alternative to proprietary protection, but on the contrary, presuppose such protection. 1 2 3 Furthermore, those concepts fail to provide for protection against third parties. 124 Therefore, a properietary type of protection would be the proper measure to prevent imitative copying in the case at hand. This, however, does not at once foreclose any further argument on this point. I n contrast to real goods, immaterials 125 e. g. computer programs can be used theoretically by anyone without reducing any other person's consumption thereof. Conflicts about alternative utilizations as are common to real goods, which are scarce, are therefore not likely to occur. Consequently, immaterials are not in need for proprietary protection i n this regard. 126 The reason to restrict the access to those matters, which could be freely available is to give incentives to the generation of such materials. Excluding others from instant imitation of an innovation may encourage the development and disclosure of innovative matters as i t enables the creator to profit from his in depth, however, is beyond the scope of this article. It therefore focuses on software being at least partly mass marketed. Other aspects of software market are not considered to invalidate the conclusions drawn. 117 Bates (note 59), 475. 118

See, for instance § 17 Sec. 1 and 2 of the German "Gesetz gegen unlauteren Wettbewerb" (UWG); Kolle , Rechtsschutz (note 6), 456. ne § 18 UWG; Kolle , Rechtsschutz (note 6), 457; Harris (note 6), 150. 120 Harris (note 6), 150. 121 Op. cit.y 155 et seq. 122 Kolle, Rechtsschutz (note 6), 457; Harris (note 6), 160 et seq.; Hanemann (note 7), 9 et seq. 123 Kolle, Rechtsschutz (note 6), 457; Schulze (note 46), 1006. ι 2 4 See, Hanemann (note 7), 9. 125 The term "immaterials" is understood to cover inter alia the subject matters of patent and copyright law, cf. Fikentscher (note 17), vol. 1, 261 et seq.: "Immaterialgüterrecht". ΐ2β See, Richard A. Posner , Economic Analysis of Law, 2nd ed., Boston/Toronto 1977, 28. For the different foundation of real property and exclusive rights on immaterials, see also: Gerhard Prosi, ökonomische Theorie des Buches, Düsseldorf 1971, 124 et seq.

Protection of Computer Software

391

developments. 127 Proprietary protection on the other hand, however, causes social costs as the price for the protected matter w i l l rise. I t also may unduly hamper access to the protected item and cause anti-trust issues.128 As the various preconditions of patent and copyright protection may show, only specific kinds of ideas and works qualify for proprietary protection under the law. Consequently, the mere fact that certain materials are expensive to develop but can be copied easily and cheaply, does not justify the assignment of exclusive rights. O n the contrary, proprietary protection is granted only, if the matter in question can be deemed by its very nature to merit to take into the bargain the costs and the adverse effects of proprietary protection for the sake o f their stimulating functions. Patent law and copyright i n this perspective provide for a definition of those matters, which deserve protection. Due to the several shortcomings and misfits of software protection, however, they cannot be deemed to provide for a clear indication in the case of programs as regards the policy level. The question, whether software, and which parts of it merit protection, is therefore difficult to answer. The decision about assigning exclusive rights to programs altogether seems to be a political one 1 2 9 rather than one which can be answered by legal considerations. Referring to the respective policy goals, software protection is highly desirable. 130 3. The Issue of Technology Legal reasoning, as far as computers are concerned, often refers to technology. 1 8 1 Fostering progress of computer tedinology, for instance, is a major policy goal of software protection. Also, tedinology is referred to as an element of delimitation of patent and copyright applicability. The term technology, therefore, has a considerable impact on legal reasoning without being a legal term in itself. Furthermore, it is a rather vague and ambiguous expression which is hardly definable. 127

Posner (note 126), 54; Carl-Christian von Weizsäcker, in: Rechte und Verhältnisse in der modernen Wirtschaftslehre, KYKLOS 34 (1981), 345—376 (353 et passim); Michael Lehmann, Theorie der Property Rights und Schutz des geistigen und gewerblichen Eigentums — Wettbewerbsbeschränkungen zur Förderung des Wettbewerbs, in: Manfred Neumann (ed.), Ansprüche, Eigentums- und Verfügungsrechte (Schriften des Vereins für Socialpolitik, Gesellschaft für Wirtschafts- und Sozialwissenschaften, Neue Folge Bd. 140), Berlin 1984, 519—535 (531); William C. Baumol, Statement given to the National Commission on New Technological Uses of Copyrighted Works (CONTU) (note 44), Fifteenth Meeting July 11—12, 1977, Official Records, 19 —66 (27). 1 2 8 See Prosi (note 126), 105 et seq. (125). 129 Morgan (note 114), 151; a political decision has also been demanded by the U.S. Supreme Court in the Benson case, see above, note 97. 130 A comprehensive setout of policy goals is given by Kay H. Pierce , Copyright Protection of Computer Programs, ASCAP Copyright Law Symposium, No. 30, New York 1983, 1—32 (5 et seq.). 131 See, for example: Bates (note 59), 507; Vandenberghe (note 98), 110.

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Tobias Stoll

One of the rare definite elements of the concept of technology, is its abstract character}* 2 That is to say, that technology is not the apparatus, the machine or a process itself but the underlying concept, the " k n o w h o w " . Patent law refers to this notion of technology as i t provides for concept protection. Due to its novelty requirement, only those matters are protected, which are inventive. Copyright on the other hand, neither referring to concepts nor requiring novelty, does not relate to technology but merely covers the final product in which technology is incorporated, offering protection irrespective of their inventive nature. As regards programs, only the algorithm can be deemed to be part of technology, whereas the subsequent stages of program development, such as the source code and the object code only incorporate it. I f copyright, therefore, is said to relate to computer technology this is true only in that it secures adequate gains from product sales in the computer business by preventing product imitations. A copyright type program protection therefore may promote product innovations, which, however, does not necessarily imply an invention. 1 3 3 A number of steps of different degrees of abstraction, however, may be situated between the highly abstract form of an algorithm clearly qualifying as technology and the object code. For that reason, distinguishing between those parts of software which represent and those who merely incorporate technology is difficult. I f , however, a copyright type protection, would be extendedly applied to the more abstract versions of a program, i t may amount to cover the more basic structures in the end. 1 3 4 Taken to the extreme, this tendency may lead to protection of technology without a novelty requirement , and thereby violate a rather fundamental principle of patent policy. 1 3 5 I t is interesting to note in this regard that iudiciary and legislation have developed legal structures, which may reach effects comparable to those of a novelty requirement, though being less severe. The requirement of originality, for example, as defined by the German Federal Supreme Court, presupposes that the program in question is distinct from previously known programs or designs, which are commonly known. 1 3 6 Similarly, the Semiconductor Chip 132 See von Hellfeld (note 26), 1025 et seq. with further references. 133 Proposals to link protection to inventiveness or novelty have not been successful, see Pierce (note 130), 26 et seq., Kindermann (note 74), passim ; cf., however, text accompanying notes 135 et seq. 134 See above, note 75 and the accompanying text. 135 Kindermann, Special Protection (note 79), 326. 136 Federal Supreme Court, Decision of May 9, 1985 (note 56), 196; Bauer , Rechtsschutz (note 40), 10, note 9, correctly points out, that in view of legal technique, the findings of the German Federal Supreme Court does not really represent a novelty requirement but only is an indication for the requirement of originality. In practice, however, it will reach similar results, see Klaus Ulrich Link, Die Auswirkungen des Urheberrechts auf die vertraglichen Beziehungen bei der Erstellung von Computerprogrammen, in: GRUR 88 (1986), 141—146 (142).

Protection of Computer Software

393

Protection A c t provides for an exemption of designs which are common, familiar or commonstaple. 187 The aspect of technology is also relevant in respect to a proper delimitation of patent and copyright law. A p p l y i n g those legal concepts, as has been shown, causes several difficulties. A main source of difficulty is the ambivalent character of software, which may control hardware operations and at the same time is meaningful to man, too. This problem is closely interrelated to the notion of technology in the law. The relevance of technology is obvious in the case of patent l a w 1 3 8 , which is precisely designated to serve it. Yet, programs fail to be protected as they, frankly speaking, do not directly produce physical effects. 139 I n patent law perspective, they are mere mental steps or orders to the human mind and are thus considered pre- or non-technical. 140 Programs, in their capacity to adress themselves to man, at this point clearly conflict w i t h the notion of technology under patent law. I n contrast to tendencies in the public and among policy makers, patent law still relates to the "brain-machine" 1* 1 dichotomy which corresponds to the separation of the human mind and the outside world, which has been common to European thought for a long time. 1 4 2 A new understanding of technology, though urgently demanded, so far has not been found. 1 4 3 A t the moment, therefore, a fundamental change of patent law in regard to software is not advisable. The impact of technology upon copyright delimitation is not that well definable, as i t is a negative one. I t is, however, frequently stated that copyright is incompatible w i t h technology. Furthermore, issues like " u t i l i t y " and The same probably applies to the Semiconductordiip Protection Act. The proposed reference to patent case law and the use of patent terminology (see Greguras , Siegel, Williams [note 92], 65 et seq.), however, is ample proof of a convergency of patent and copyright law in this regard. 137 See above, text accompanying note 92. 1 3 8 This is well established within the court and academia and also affirmed by legislation, see Sec. 1 of Rule 27 of the Implementing Regulations to the European patent Convention as amended in 1978, which reads: "The descriptions shall . . . (b) specify the technical field to which the invention relates . . . (d) disclose the invention, as claimed, in such terms that the technical problem . . . and its solution . . .", Industrial Property 1974, 90 (Emphasis added). 139 See above text accompanying notes 34 et seq. 140 "Mental steps" have been found to be opposed to patentable "technological arts" on grounds of the so-called "technological arts test", which has been applied by the CCPA in the cases mentioned in note 36, see Davidson (note 5), 349. 141 Nycum ( n o t e 22), 6 6 . 1 4 2 This thought roots back to Descartes and his distinction between the "res cogitans" and the "res extensa ", which today, however, can not be upheld, Hans Sachsse, Anthropologie der Technik, Braunschweig 1978, 87, 247. ι 4 3 See, von Hellfeldt (note 26), 1027 et seq.

394

Tobias Stoll

"machine element" seem to reflect this aspect. 144 The utility argument, as opposed to human communication, points out especially clearly the more vague complaints about copyright covering technical matters. A further attempt 1 4 5 to specify those global objections emphasizes that materials which solely stem from their author's personality qualify for copyright. They are found to be distinct from those matters, which, however ingenious they may be, are predetermined by an "objective reality" 14e in that way that they apply this "reality" in order to solve a problem. I n contrast to copyrightable matters, they are required to have been proven to function in reality to be protected. These proposals of delimitation, therefore, affirm the doubt about program copyright protection. Also, they may be found to reflect a proper notion of technology, which includes programs. Problems occur, however, because those delimitations undertake to define copyright matters in opposition to patent law. They thus conflict w i t h the idea of technology under patent law, which is exactly contrary, as far as programs are concerned. These theoretical considerations bear rather practical consequences as the economic implications of patent and copyright law are different. As already the different duration of rights under patent and copyright law may show 1 4 7 , the rights of a patent holder are far more restricted and therfore less favourable than the rights under copyright. 1 4 8 Whereas the author in copyright perspective seems to enjoy protection because his doing is eo ipso considered to deserve it, the position of the patent holder reflects the legislative intent to primarily secure the technical progress by the encouraging effects of proprietary protection and therefore only grant the minimum extent of right which is indispensable to maintain the desired degree of inventive activities. Altogether, the scope of rights of a patent holder is far more strictly determined by a reconciliation of the interests of the single inventor and the general public. As patent law is the legal concept which is intended to relate to technology, the rationale of patents as described above seems to be the proper policy in regard to technological matters. This conclusion complies w i t h the complaints about the inappropriate economic consequences of copyright program protection. Furthermore, i t offers good reason for the said affinity between software protection and patent law structures and for the subsequent proposals to approach the software entitlements to patent patterns. 144

Cf. above, text accompanying notes 61 et seq. and 32. 145 Wittmer (note 28), 22 et seq.; Betten (note 28), 64 et seq.; Hubmann (note 17), 61. M Betten (note 28), 64. 147 See below, text accompanying note 146 et seq. 148 Cf. above, text accompanying note 104.

Protection of Computer Software

395

The actual practice and the policies of patent and copyright law, therefore, neither provide an adequate not at least a consistent concept of software protection. The notion of tedinology in the law is partially inadequate to properly perceive the nature of software. Additionally, software protection amounts to the legal control of an activity, which so far never had been supposed to be subject of copyright. Furthermore i t is not copyright, but patent law, which provides for the economic rationale which is suitable for technological matters. Bearing in mind the enormous economic impact of computer software, it therefore seems to be advisable to specifically regulate the issue. This can be done by enacting sui generis protection or by amending existing statutory provisions. I t , however, does not suffice to simply add programs to the listed copyrightable works. This neither secures reliable program protection nor does it sufficiently take into account the differences between programs and other copyright materials. 4. Limitations

of Exclusionary

Rights

I n order to properly balance public costs and benefits and to secure adequate incentive effects, intellectual property protection is commonly limited in two ways. First, the utilization of rights are limited in order to secure that their exercise complies w i t h the objectives of protection. This can be done by compulsory licensing or concepts like the fair use doctrine in copyright law. Secondly, the duration of rights is limited. Remarks about compulsory licensing are rare in the area of program protection. 1 4 9 I n patent law, compulsory licensing is an essential legal instrument to prevent a patent holder from abusively withholding the protected technology. As the exclusionary effects of a copyright-type program protection are far less severe, however, compulsory licensing has not much importance. A limited duration of protection is provided for in patent and copyright law, the period however being different as regards its determination and length. Patents expire after about 20 years 150 , whereas the period of copyright protection is determined by a certain number of years, be i t 50 or 70 post mortem auctoris .151 The rather short duration of patents is due to the abovementioned patent policy, which is to grant to the inventor a right to that extent only, which is indispensable to give incentives to further inventive 149 Pierce (note 130), 29; Michael D. Scott , Computer Law, New York, 1984 et seq., loose leaf, at 3—14, reporting that the introduction of a compulsory licensing clause had been proposed during discussions of the 1980 copyright amendment debate in the U.S. is» Germany, 20 years, § 64 Patentgesetz; U.S., 17 years, 35 U.S.C. § 154. 151 Germany, 70 years, § 64 Urheberrechtsgesetz; U.S., 50 years, 17 U.S.C. § 302 (a).

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Tobias Stoll

activities. 152 As an extension of the duration of rights w i l l raise the social costs incurred, the optimum duration is determined by that point, where the additional social costs just accord to the benefits in terms of an increasing encouragement to create new materials. 153 The long-lasting duration of copyright does not invalidate these considerations. To the contrary, it is widely accepted that from the economic point of view the duration of copyright is far too long. 1 5 4 Society, therefore, pays more than i t gains from protection in terms of an intensified production of copyrightable materials. This effect probably is due to the fact that in copyright policy, the creator or author is supposed to deserve a specially favourable position beyond economic u t i l i t y . 1 5 5 I t has to be kept in mind, however, that copyright always has been understood to apply to and to control cultural activities. As has been shown, due to the legal structures the proper policy for technological matters is the rationale of patent law. Therefore, the period of protection of copyright software protection should be much shorter than the actual duration of copyright. This conclusion is sometimes countered by arguing that the duration of copyright is harmless as the economic lifetime of software is much shorter. 158 Thereby, it is assumed that protection should cover the whole lifetime of the protected matter. This argument, therefore, neglects that the interests of society and those of the creator of software are identical only as far as the additional social costs of protection are just balanced by a corresponding surplus of activities in software developments. This balance also can be seen as a means to temporily adjust private and public gains, as during the period of protection the creator benefits from protection, whereas after expiry the matter in question "flows freely to the rest of community" 1 5 7 . I f , however, protection would be extended to the whole lifetime of the matter, this adjusting cut-off would never occur. 1 5 8 I t therefore seems advisable to cut down program protection to 5, 10 or 20 years irrespectively of the life of the author. Accordingly most proposals for change endorse that view. 1 5 9 152

See above, text accompanying notes 147 et seq. Baumöl (note 127), 27 et seq.; Prosi (note 126), 119; Aufrichtig (note 77), 362. 154 Cornish (note 17), 308 et seq.; Baumol (note 127), 28 et seq.; Prosi (note 126), 117. iss Cf. Prosi (note 126), 126. 15® See, for example, Ulmer / Kolle (note 46), 188; Report of the Whitford Commission (note 2), 130. 157 Baumol (note 127), 32. 158 Ibid.; Aufrichtig (note 77), 362 et seq.: " . . . wasteful and a bad bargain on behalf of the American public". 15» See, i. a.y Ministry of International Trade and Industry , Japan, Explanatory Notes on the Interim Report of the Informatics Industries Committee, UNESCO/WIPO/GE/CCS/3, Annex B, Appendix, 4; WIPO , Model Law (note 83), Section 7; Report of the meeting of the Group of Experts on the Copyright Aspects of the Protection of Computer Software (note 48), 6, para. 32 et seq., Fritzemeyer (note 49), 190; Bauer (note 78), 144; Pierce (note 130), 28; Aufrichtig (note 77), 361 et seq.; Baumol (note 127), 32 et seq.

Protection of Computer Software

5. Efficiency

397

of Legal Protection

To a remarkable extent, efficiency of legal protection has been considered as regards computer technology. 160 Although efficiency is a concern of intellectual property as a whole, it is even more relevant to computer technology, especially as the matter is rather complicated. Lawyers, therefore, to a large extent have to rely upon expert advice. 1 6 1 Therefore, the most elaborate legal concept would not be worth while or would even produce adverse effects i f protection would be too expensive to achieve or not obtainable in due time. Efficiency, however, not only depends on the conditions of initial attainment of rights but also relates to their possible prosecution. 162 A rather complex and lengthy 1 6 3 application procedure, for instance, as is required to obtain a patent, may depreciate the legal position finally granted. 164 That, however, is not to say, that any requirement of formalities in relation to the attainment of protection is contrary to efficiency. A requirement of deposit or registration 165 for instance, may facilitate the proof of infringement in an action and therefore reduce litigation costs. Efficiency of legal protection also has to take into account the different size of industry. 1 6 6 I t is asserted that patent law, and to a lesser extent copyright too are mainly used by big companies whereas a "one-man" firm favours trade secrecy and technical measures. 167 Also, the aspect of transieo See Pierce (note 130), 8 et seq.; Aufrichtig (note 77), 363. 161 The lack of expert advise may have a certain influence on legal reasoning as can be derived from Betters remark that future generations growing up with computer technology, could be more easily able to state upon the inventiveness of software in terms of patent law (Betten [note 28], 69). 162 Efficiency also relates to criminal sanctions. In Taiwan, for instance, for a long time, copyright infringers who had been condamned were allowed to pay a fine of some 27 U.S. Cents per day instead of being jailed, the maximum sentence having been 3 years. The legal "loophole", which had been heavily criticised abroad, has been closed by a copyright amendment, see Financial Times, July 1 1985 at 5. A Taiwanese government official reported, that government now takes efforts to ensure compliance with intellectual property rules. To demonstrate changing attitude, an advertisement was presented, reading: "Our company *** gives the undertaking not, repeat not, to manufacture or sell in the future any goods infringing any of IBM's copyrights or other intellectual property rights . . PTCJ 29 (1984), 120. 163 In this regard the rather lengthy application procedure may be an important obstacle to patent protection, as programs are in need of sudden protection because of their rather short economic lifetime. In Brazil, for instance, delays up to 6 years are not uncommon, Aguilar (note 6), 663. 164 pierce (note 130), 28. 165 Compulsory registration is provided for in the U.S. Semiconductor Chip Protection Act. § 908, cf. Hein (note 24), 81. 166 Gaylen A. Duncan, Canadian Business and Economic Implications of Protecting Computer Programs, Computer/Law Journal 1 (1978), 105—184, surveys the situation of small Canadian software firms, their U.S. licensees and patent law implications. ιβ7 Schmidt (note 14), 354; Aufrichtig (note 77), 363.

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ferability is of importance. Moral rights in this regard may cause a severe obstacle as they may empower the author to hinder reverse engineering, for instance. Legal advice necessary to contract out those rights in licensing agreements enlarges transaction costs due to subsequent attorney's fees. 168 VI. International Aspects of Proprietary Protection of Computer Technology As the computer business is largely an international one, international aspects of proprietary protection are fairly important. Similar to national law, traditionl legal concepts which can apply to computer technology exist but often are deemed inappropriate. Therefore, attempts have been made to specifically handle the problem in terms of a specialized international instrument or by unilateral action. Considerations in this field are to a certain extent influenced by the ongoing international debate about technology transfer and by national technology policies. 1. International

Intellectual Property Protection as Applied to Computer Technology

Computer technology protection in terms of patent and copyright law internationally can be obtained by the Paris Convention ( P C ) 1 6 9 as regards patent protection and by the Berne Convention ( B C ) 1 7 0 and the Universal Copyright Convention ( U C C ) 1 7 1 as far as copyright is concerned. The Berne Convention applies mainly to the European countries whereas the U C C , being broader in scope includes the U.S. and the USSR, too. 1 7 2 W i t h the exception of A r t . 52 para. 2 lit. c of the European Patent Convention, which excludes computer programs as such from patent protection, no treaty expressly provides for computer technology. 173 That, however, is not at once to say that the matter in question is one w i t h i n the sole compet e Fritzemeyer (note 49), 186 et seq. ιβθ The Paris Convention for the Protection of Industrial Property of March 20, 1883 as revised at Stockholm on July 14, 1967, reported by Stephen P. Ladas , Patents, Trademarks and Related Rights, 3 vols., Cambridge, Mass. 1975, Vol. I l l , Appendix 2. 170 Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886 as revised at Paris on July 24, 1971, in: UNESCO , Copyrights Laws & Treaties of the World, 3 vols., Paris 1958 et seq., hereinafter referred to as CLTW, Vol. 3, Multilateral Conventions, Item H—1. 171 Universal Copyright Convention as revised at Paris 1971, in: CLTW, op. cit., Β—1, also in: United Nations Treaty Series (UNTS) 943 (1974), 178—207. 1 7 2 See Wilhelm Nordemann, Kai Vinck, Paul W. Hertin, Internationales Urheberrecht, Kommentar, Düsseldorf 1977, 7, Einleitung Rn. 6. 1 7 3 Cf. Birgitt A. Pagenberg , Patentability of Programs at the National and International Level, in: I I C 5 (1974), 1—43 (38).

Protection of Computer Software

399

tence of the national legal orders as those matters may be regulated in international treaty law i n more general legal terms. As the question of proprietary protection of computer technology relates to the subject matter of patent and copyright law, i t would only be provided for internationally, i f the Conventions would state upon a detailed definition of subject matters. As regards the multilateral regulation of patent protection no material stipulations are to be found. Although possible types of patents are listed 1 7 4 , however, and the process of patent application is partly provided for internationally by the Patent Cooperation Treaty ( P C T ) 1 7 5 , the requirements of protection in particular are expressly referred to the national l a w . 1 7 6 The situation, however, is difficult as regards regional rules as laid down in the European Patent Convention and the Arts. 1 to 5 of Decision N o . 85 of the Andean Pact 1 7 7 which list the requirements of patentability in full detail and w i l l be binding upon the member states in this regard. W i t h the exception of certain regional rules, therefore, there is no obligation in international treaty law to either grant or refuse patent software protection. 1 7 8 The Berne Convention, regarding copyright, gives a quite comprehensive list of types of works which are considered to be copyrightable. 179 The Convention however fails to provide for an international standard as regards computer tedinology because similar to the situation in patent law, the definition of what is protected in particular is referred to the national laws. 1 8 0 This 174

Art. 1 para. 3, 4 of the Paris Convention (note 169) states: " . . . the term 'patents* shall include the various kinds of industrial patents recognized by the laws of the Countries of the Union, such as patents of importation, patents of improvement, patents and certificates of addition etc.". 175 Patent Cooperation Treaty of June 19, 1970, in: I L M (1970), 978—994. 176 See the wording " . . . recognized by the Countries of the Union . . . " in the Paris Convention, above, note 174; Art. 27 para. 5 of the Patent Cooperation Treaty reads: "Nothing in this Treaty and the Regulations is intended to be construed as prescribing anything that would limit the freedom of each Contracting State to prescribe such substantive conditions of patentability as it desires". * 7 7 Industrial Property 1974, 437. 178 Cf. WIPO , Measures to Enhance International Cooperation in the Field of Legal Protection of Computer Software, Report by the International Bureau, WIPO Doc. LPCS/1/ 2, 2, para. 7, considering also an obligation of member states to assure effective protection against unfair competition pursuant to Art. 10 bis , 10 ter of the Paris Convention, which oblige the member ^states to prohibit certain business practices. Due to the kinds of prohibited acts, however, this does by no means provide for an adequate protection of software. 179 Art. 2 Berne Convention (note 170) reads: ". . . every production in the literary, scientistic and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings, lectures, addresses . . .". 180 Art. 5 para. 2 Berne Convention (note 170) reads: "Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights shall governed exclusively by the laws of the Country where protection is claimed."

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is true even more as regards the Universal Copyright Convention which only provides for an obligation of the Contracting States "to undertake to provide for the adequate and effective protection of the rights of an author . . . " 1 8 1 . Whereas supporting materials, manuals and outprints of the source code w i l l doubtlessly be covered by this provision, those items of software which are not perceptible to humans due to their incorporation or to their abstract kind of expression can not be deemed to be necessarily covered by that provisions. Their protection, therefore, depends upon the national copyright laws and lies w i t h i n the discretion of the particular state to accordingly rule upon the issue. 182 Furthermore, the extent of protection obtainable under the Conventions is fairly restricted. I n particular, the Conventions fail to state upon the question of program use. Accordingly, in a study undertaken by WIPO, most states indicated, that the copyright Conventions do not, or not sufficiently protect computer software. 183 I n conclusion, the decision about intellectual property protection in view of computer technology is still w i t h i n the competence of national jurisdiction. The aforementioned tendencies to agree upon binding criteria of patentability on the regional level can be neglected because of the minor role which patent law plays in the field of computer technology. Consequently, legal protection of computer technology could be practically excluded on the national level. O n the other hand, i t may be granted to the extent, which states deem appropriate. 2. Options of International

Protection

International protection, that is to say, the obtaining of protection abroad, may be instituted in different ways. I n the absence of an international intellectual or industrial property right, they all have in common, that protection relies upon the respective national laws. They vary, however, as regards the degree and structure of coordination which they undertake to provide for. lei Art. 1 UCC (note 171). ι 8 2 Report of the International Bureau (note 178), 3, para. 8; Cynthia L. Mellema , Copyright Protection for Computer Software: An International View, in: Syracuse Journal of International Law and Commerce 11 (1984), 87—120 (102). 183 This same has been hold by a number of states in replying a questionnaire issued by WIPO, referring to the desirability of a treaty for the protection of software, see: WIPO, Analysis of the Results of the Survey concerning the Desirability and Feasibility of a Treaty for the Protection of Computer Software and Other Possible Measures in the Field of the Protection or Deposit of Computer Software, prepared by the International Bureau, WIPO Doc. LPCS/II/2 of November 30, 1979, 3, para. 8 et seq.; for the use question, see also: Report of the International Bureau (note 178), 3, para. 8, stipulating, that the Berne Convention only protects against reproduction and public performance, Art. 9 and Art. 14; Mellema (note 182), 103.

Protection of Computer Software

401

One option of international protection is to allow the application of the aforementioned existing international instruments. They take effect when programs are offered protection under the respective national copyright law. I f this is the case, a state is obliged by treaty law to grant national treatment to foreigners. This is to say, that the state has to treat nationals of other member countries as favourably as its own nationals. 184 The obligation to grant national treatment is strictly binding upon states, where copyright applies to programs. 185 States therefore do not enjoy any discretion to allow them to deny national treatment to those applicants whose home countries, though being members of the conventions, do not provide for program protection in their own law. This option is pursued by those countries, where copyright program protection has always been, or is made available.18® As some countries still deny copyright program protection and others have not yet concerned themselves w i t h the question, protection under the copyright conventions, however is secured only in a limited number of states. International protection can also be achieved by concluding a new treaty. This option has been considered by the W I P O i n conjunction w i t h the elaboration of the Model Law on Software Protection. 1 8 7 As a revision of existing international instruments was felt to be too difficult 1 8 8 , a Treaty for the Protection of Computer Software was proposed. As replies to a questionnaire issued by W I P O to survey the problem were mainly in favour 1 8 9 of such project a draft Treaty was elaborated. 190 I t contains an obligation of state parties to secure software protection and insures national treatment. Additionally, unlawful acts which constitute infringement are expressly specified similar to the W I P O Model Law. I n June 1983, however the Committee of Experts agreed upon not to pursue the conclusion of a special treaty "for the time being" as "various . . . solutions other than the proposed draft T r e a t y " 1 9 1 had been suggested. This probably signifies that the opinion 184 Art. 2 para. 2 UCC; Art. 5 para. 1 BC. 185 Mellema (note 182), 101. ΐ8β According to the Report of the Second Session of the Committee of Experts on the Legal Protection of Computer Software, in June 1983, WIPO Doc. LPCS/II/6, copyright was said to apply domestically and the protection under the Conventions was favoured by the following countries: U.K., Hungary , para. 18, France , para. 17 (see also above note 81), the Netherlands , para. 15, U.S., para. 13, Germany , para. 11 (see, however, note 56). 187 See, Measures to Enhance International Cooperation . . ., Report by the International Bureau (note 178), 1, para. 1 et seq. 188 Op. cit., 4, para. 11. 180 Analysis of the Results of the Survey concerning the Desirability . . ., prepared by the International Bureau (note 183). i 0 0 Draft Treaty for the Protection of Computer Software, prepared by the International Bureau, WIPO Doc. LPCS/II/3 of February 24, 1983. 191 Conclusions of the Second Session of the Committee of Experts (note 88), 1, para. 4.

2

G Y I L

28

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which prevailed 1 9 2 , was that software protection should be dealt w i t h in the framework of existing international instruments. Additionally, however, this solution is often favoured because it does not necessitate international negotiations in the field of intellectual property protection which are felt to be undesirable because of possible demands for preferential treatment which may be claimed by developing countries. 193 International protection also can be obtained by granting protection to foreigners unilaterally. This option, however, is rather limited in scope i f i t remains an individual act. I f , however, access to national intellectual property protection to foreign applicants is coupled w i t h their country's willingness to insure similar protection and grant it reciprocally a system of international protection can be achieved, provided that a number of other states act in the same way. This type of international protection is aimed at by the U.S. Semiconductorchip Protection A c t . 1 9 4 I t is, however, not limited to this case of the creation of new intellectual property. A draft b i l l which has been recently introduced in the U.S. provided for a similar regulation of software protection. 1 9 5 According to that bill, software protection is granted to foreign applicants only i f their home country provides for similar protection. I t had been expressly intended to prevent Japan from enacting a sui-generis software protection w i t h a considerably lower standard of protection as regards duration and compulsory licensing. 196 Whereas this bill is not likely to be made law, some countries have already reacted upon the Chip Protection Act. I n accordance to the Act, they have filed reports in order to prove their country's compliance w i t h the reciprocity requirement in order to enable their nationals to obtain protection in the U.S. 1 9 7 192 In the same Session, however, a number of countries were still said to prefer a specialized treaty, see Report of the Second Session (note 186), mentioning Japan, para. 14; Denmark , para. 16; Morocco , para. 19; Italy, para. 21, pointing out that it may be appropriate to conclude an additional protocol to the BC; Australia , para. 23, stipulating arguments in favor of a patent law approach, Finland , para. 24, . . . sut generis approach, India , para. 25, favouring the Draft Treaty. i»» Cf. Ulmer, Kolle (note 46), 81. 104 Greguras , Siegel, Williams (note 92), 99.

ιβδ Bill of a "International Computer Software Protection Act", S. 339, in: PTCJ (1985), 380 et seq. ί9β Introductory Remark of Hon. Frank Lautenberg (note 4), 380. Computer technology seems to have been a sensitive issue in the US-Japanese trade relations since a long time. Digital computers, accessories, components and integrated circuits, for instance, were exempted from the 1969 trade liberalisations and therefore remained to be subject to quantitative restrictions, see John H. Jackson , Legal Problems of International Economic Relations, St. Paul, Minn. 1977, 507. I 9 7 See, for example: Semiconductor Integrated Circuit Protection Bill of Japan, in: PTCJ 29 (1984), 593—594; Interim Protection for Mask Works of Swedish Nationals, Domiciliaries and Sovereign Authorities, in: PTCJ 30 (1985), 37—39.

Protection of Computer Software

403

As yet, however, international protection is incomplete as none of the options outlined has been realized to such an extent that universal application is secured. 3. Possible Areas of International

Consensus

Although, there is not much concern about the lack of an international regime w i t h widespread application so far, due to increasing trade in computer technology a more complete protection may be desired in future. Whatever the mode of implementation of such a regime may be, its institution depends upon the consensus of states. Such consensus so far in the field of international industrial and intellectual property protection has been based upon the fact that all participating states considered to benefit from international protection. 1 9 8 As many states deem international protection to be advantageous for the benefit of their own nationals for marketing their products abroad, they agreed upon granting protection to foreign applicants on a reciprocal basis. This argument is still valid today and many support an international consensus. I t is, however, not equally persuasive to all states. The reciprocal basis of international protection has been doubted as regards those countries, which far more often grant protection to foreigners domestically than obtain protection abroad. 199 Especially the granting of patent protection under the national treatment clause, which so far is equally binding upon all member states of the Paris Union has been said to amount to the effect that nationals of one of the abovementioned countries, by purchasing protected matter refund R & D investments and encourage production undertaken in the home countries of the patent holder rather than stimulating domestic facilities. 200 Granting protection to large foreign companies due to their economic weight, is also feared to bar the market entry of small domestic firms. 201 So far, these distoring effects have been discussed mainly w i t h regard to developing countries. Because of the agglomeration of computer industry in only a few of industrialized countries, however, those effects are even said to occur among industrialized countries themselves. 202 The international consensus, therefore, is first and foremost a question of the treatment of foreign applicants rather than one of the advisability of exclusive rights protection in principle. 108 cf. Ulmer (note 17), 80 et seq. 100 Cf. Ladas (note 169), Vol. I I I , 1884 et seq.; Peter Nanyenya Takirambudde, Technology Transfer and International Law, New York 1980, 114 et seq. 200 Cf. for the international patent system: Edith Tilton Penrose, The Economics of the International Patent System, Baltimore 1957, 110 et seq. soi Ulf Anderfeit, International Patent Legislation and Developing Countries, The Hague 1971, 137. 202 See, Duncan (note 166), 164 et seq. (184).

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4. The Technology Transfer

Issue

Participation in international proprietary protection between countries of equal economic strength is largely based upon arguments which are already common to the national level. A fundamental shift of judging the functions of international protection regimes can be observed as regards developing countries. As they often can not await to increase the encouraging effects of their own facilities by adhering to international protection regimes, they mainly emphasize the effects of protection upon the assessment of foreign protectable materials. They therefore focus on the transfer functions of intellectual property. 2 0 3 Facilitated assessment and more favourable terms of trade were thus the major topics of the ongoing revision of international intellectual property regimes. Both, the revision of the two copyright Conventions in a joint Conference in Paris 1971 204 and the continuing process of revising the Paris Convention referred to the transfer of technology. 205 The same has been held in relation to program protection w i t h i n the relevant United Nations bodies when dealing w i t h the issue. 206 I t is not to deny the relevance of those developments in international law, but rather for the sake of conceptual clarity, however, that a few further remarks about technology transfer have to be made. As has been shown above, not the program as a whole but only the algorithm is a matter of technology whereas source and object code are merely means of incorporation. Taken to the extreme, one thus may compare programs w i t h other technical products like cars or electronic devices. N o one, however, would deem the trade in those goods to be a technology transfer. However, the D r a f t Code of Conduct on the Transfer of Technology ( T O T Code) 2 0 7 which actually is elaborated w i t h i n the United Nations Conference of Trade and Development ( U N C T A D ) and often is deemed to be the core chapter of international transfer of technology debates, has been said to apply to all possible program transfers. 208 This is said 203 Anderfelt (note 201), 135 et seq.; see generally, David Ladd , Copyright and the international technologic environment, Copyright Bulletin X V I I (1983), 17—24. 204 Cf. Nordemann, Vinck , Hertin (note 172), 213, Art. V bis WUA Rn. 1; Eugen Ulmer, Die Revision der Urheberrechtsabkommen, in: GRUR Int. 1971, 423—435; Adolf Dietz, Urheberrecht und Entwicklungsländer, Munich 1981, passim. 205 Dietz (note 204), 5. 20β See, for example, Resolution of the General Assembly A/RES/2458 ( X X I I I ) (note 1); The Application of Computer Technology for Development, Report of the Secretary General (note 1); Second Report of the Secretary General, Department of Economic and Social Affairs, U N Doc. St/EC A/176; cf. WIPO Model Law (note 83), 3, Introduction. 207 Draft International Code of Conduct on the Transfer of Technology as of June 5, 1985, United Nations Conference on an International Code of Conduct on the Transfer of Technology, United Nations Conference on Trade and Development (UNCTAD) Document TD/ CODE TOT/47. 208 Reidenberg (note 6), 687 et seq. (688).

405

Protection of Computer Software

to derive from the wording of Chapter 1 of that D r a f t Code defining the so-called technology transfer transactions, which are the subject of the subsequent material regulations. By virtue of Sec. 3 lit. (b) of Chapter 1 of the T O T Code, those transactions may relate to "the provision of know-how and technical expertise in the form of . . . plans, diagrams, models, instructions guides, formulae, basic or detailed engineering designs . . ." By mentioning plans etc . the definition of the Code indeed suggests that i t does cover programs. I f that were to be true, the T O T Code would apply to every computer game and, even more, to all those numerous technical goods, which are fairly common to everyday life and due to progressing application of microelectronics might embody programs in the near future. Consequently, the rather sophisticated rules of the T O T Code would be imposed on parties of an international transaction of any such good. Furthermore, the proper role of the emergent technology transfer regime w i t h i n the framework of the proposed N e w International Economic Order would be left and the specific balance of interest which states so far might have been on the way to accept would than be seriously distorted by being extendedly applicaple to practically all goods of a technical nature. Section 2 of Chapter 1 of the T O T Code, however, could prevent this effects by stating: "transfer of technology under this Code is the transfer of systematic knowledge for the manufacture of a good, the rendering of a service and does not extend to the transaction involving the mere sale or lease of goods." The bulk of questions, which have been posed, therefore may be settled by virtue of the sale or lease of goods exemption of that provison. Problems, however, occur as regards those program transactions which are undertaken by licensing contract. As programs may always be meaningful to man, their transfer could be altogether deemed a "provision of know-how and technical expertise . . ." under Sec. 3 lit. (b) or a "transfer of systematic knowledge" under Sec. 2. A lot of those software transactions, however, though being governed by licensing contract are conluded in order to acquire a program ready for use rather than in the interest of gaining technical knowledge. Again, therefore, the ambivalent character of programs causes difficulties. I f , however, the understanding of a technology transfer would extendedly applied to even normal program ventures, this might well distort the structures of the emerging concept of economic order internationally. 5. Advisability

of Participating

in International

Protection

As regards technology transfer, proprietary protection has been found to have several shortcomings, but some advantages, too. Encouragement of

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innovative activities domestically by exclusive rights, for instance, for the abovementioned reasons is not considered a good argument for participating in international protection. 2 0 9 I f protection, however, is totally denied, trade would be heavily restrained as control of the materials transferred would be completely lost in the course of the transaction. 210 Both arguments, however, are closely interrelated, as it is exactly the expectation from returns from sale under protection, which is supposed to stimulate innovative activities. They thus represent the two ever conflicting interests in renumerative generation and low-price availability of innovative materials. 211 This conflict, which on the national level 2 1 2 arises between those who undertake innovative activities, and the general public on the international level occurs among states of different levels of economic activity. The problem, therefore, is not one which can be answered categorically but rather one of reconciling the conflicting interests by specifically shaping the /extent of protection. Accordingly, the international intellectual property debate is concerned w i t h the proper limits of protection rather than amounting to hostility against the concept as a whole. 2 1 3 Furthermore, criticism of intellectual property often refers to those harmful effects, which do not inevitably correspond to its nature but which are caused by the lack of international control of restrictive business practices. Considerations about the economic implications of the international trade in computer technology focus on that issue 214 rather than complaining about the existence or extent of exclusionary rights. N e w legislation in Brazil 2 1 5 therefore, mainly deals w i t h this issue. The absence of an international antitrust regime, which is very well developed in the industrial countries 216 , however, has been regretted ever since the 1950 failure of the I T O Charter. 2 1 7 200 Cf. Anderfeit (note 201), 219 et seq. As the current technology transfer policy of developing countries is said to be even more critique about contractual protection in terms of trade secrecy than about proprietary protection, in the event of denial of proprietary protection, non-exclusionary types of protection will be of little help only, as they probably will be blocked by national technology transfer regimes, cf. Reidenberg (note 6), 690 et seq., stating, that Brazil "claims that unpatented, technological information should become . . . available . . . as soon as possible . . and therefore attempts to "make" illegal contractual secrecy provisions. 211 See Ladas (note 169), vol. I l l , 1888 et seq. 212 See von Weizsäcker (note 127), 351, 353; Aufrichtig (note 77), 362. 213 Cf. Anderfeit (note 201), 219 et seq. 2ί 4 Paulo Bastos Tigre , Technology and Competition in the Brazilian Computer Industry, London 1983, 126 et seq. and 157 et seq. 2i5 Lei da Informatica, Nr. 7.232, Diario oficial, No. 210 of 30.10.1984, see Astrid Berkemeier, Brasiliens Autarkiepolitik auf dem Gebiet der Elektronik, in: Zeitschrift für vergleichende Rechtswissenschaft 84 (1985), 229—256, passim . 2ίβ The business practices of the International Business Corporation (IBM), for instance, have been subject of extensive antitrust procedures in the U.S. (see Wilder [note 115], 25 et seq.) and in the EEC. 210

Protection of Computer Software

I n conclusion, therefore, participation in international protection granting of program protection to foreigners is advisable. 6. Limitation

407 and

of Rights and the Need for Differentiation

Intellectual property, as has been shown, is limited by restricting the exercise of rights as to prevent abuse and as regards their duration. Compulsory licensing as a means of ensuring proper use of right so 'far has been the central issue of revision of intellectual property regimes. 218 I n order to ensure utilization of rights by means of local production and otherwise to gain facilitated access to the protected matter, developing countries have claimed and partly obtained 2 1 9 the right to resort to compulsory licensing on more favourable terms and conditions as is allowed to other countries under the Conventions. These concessions were granted on a preferential, non-reciprocal basis. As regards program protection, however, compulsory licensing is seldomly considered. 220 The exclusionary effects of protection have probably been deemed to be restricted in such manner, that compulsory licensing would not be of much importante. I t has, however, to be borne in mind that the bodies involved in the elaboration of the D r a f t Treaty envisaged a duration of 20 years 221 , only. Given that period of time, a software producer indeed would be well advised to market and not to withhold a program. I n addition, the absorption of technological innovative matters in developing countries is often delayed. Such duration, therefore, could be easily acceptable even to developing countries. A n y other restrictions of rights, may they be granted preferentially or not, in such a case would not be necessary. A protection w i t h such period of validity could therefore be considered a bottomline. Some industrialized countries, however, heavily persist upon long-term program protection under the copyright Conventions. The U.S.-Japanese controversy about the Japanese 217 See: Fritz Machlup, An Economic Review of the Patent System, Study of the Subcommitte on Patents, Trademarks and Copyrights of the Committee on the Judiciary, U.S. Senate, 85th Congress, 2nd. Sess., Washington 1958, 19. 218 Hans Peter Kunz-Hallstein, Verschärfter Ausübungszwang für Patente, in: GRUR Int. 1981, 347—357 with further references. 219 See, for instance, Art. 5 ter UCC and the Annex to the Berne Convention; Irwin A. Olian , International Copyright and the Needs of Developing Countries: The Awakening at Stockholm and Paris, in: Cornell International Law Journal 7 (1974), 81—112 (104 et seq.). 220 Report of the Expert Group on the Legal Protection of Computer Software, First Session, WIPO Doc. LPCS/I/4 of Nov. 30, 1979, 3, para. 27. 221 Art. 5 of the Draft Treaty for the Protection of Computer Software (note 190).

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plan to enact sui generis legislation providing for a period of 10 years o n l y 2 2 2 and the economic impact of duration may indicate that this issue is likely to become the point at issue. 7. Prospects of a Future International

Protection Scheme

As can be concluded from the aforementioned considerations, consensus may be achieved as regards protection in general, whereas the temporal scope of such protection is likely to be disputed. This, however, is not to say that those findings necessarily w i l l be of any relevance at the policy level. O n the contrary, it has been voiced that consensus between states already has been reached by participating and jointly revising the copyright Conventions. A n y further demand for considering the software issue accordingly appears to question the substance of what once has been agreed upon. 2 2 3 This argument, however, neglects that the Conventions neither stated their views as to software nor ever before had been asked to do so. The revisions which took place in 1971 by no means referred to the subject. This point of view, therefore, is not likely to succeed and to ensure the application of Conventions. Some sort of international negotiation or decision-making process, therefore w i l l be necessary i f a more widespread availability of protection is desired. Lack of protection in the long-run may be contrary to the interests of all states as on the one hand, i t may hamper access to computer technology and on the other hand i t may restrain trade as a exclusionary entitlement is much more reliable than is protection by contract and trade secrecy. Concluding the W I P O D r a f t Treaty could be a rather simple and speedy measure to provide for sufficient protection internationally. A minimum standard of protection could thus be obtained. Furthermore, states would be free to additionally evoke the applicability of copyright Conventions.

222

Cf. Introductory Remark of Hon. Frank Lautenberg ([note 49], 380) and the endorsed letter of the Association of Data Processing Service Organizations (381). 22 3 Cf. Ibid.

Völkerrechtliche Aspekte der Verlängerung des Warschauer Paktes Von Wolfgang Seiffert Der „Warschauer Vertrag über Freundschaft, Zusammenarbeit und gegenseitigen Beistand vom 14. M a i 1955" 1 , mit dem die Militärorganisation des Warschauer Paktes gegründet wurde — daher üblicherweise und i m folgenden auch „Warschauer Pakt" genannt 2 — gehört zu jenen multilateralen völkerrechtlichen Verträgen, die auf Grund entsprechender Vereinbarungen i m Vertrag selbst durch Zeitablauf am Ende der vertraglich vereinbarten Geltungsdauer erlöschen (Art. 54 der Wiener Vertragsrechtskonvention [ W V K ] 3 ) . Der Warschauer Pakt trat nach seinem A r t i k e l 10 am Tag der Hinterlegung der letzten Ratifikationsurkunde in Kraft. Dies war der 4. Juni 1955, als Albanien die Ratifikationsurkunde in Warschau übergab 4 . Nach Artikel 11 blieb der Vertrag 20 Jahre in K r a f t und verlängerte sich um weitere zehn Jahre für jeden Vertragspartner, der nicht ein Jahr vor Ablauf der 20-Jahr-Frist den Vertrag kündigte. Abgesehen von dem Austritt Albaniens am 13. September 1968 aus Protest gegen die Invasion in der Tschechoslowakei5, hat kein Mitgliedstaat von dieser Kündigungsmöglichkeit Gebrauch gemacht. Die in A r t i k e l 11 Absatz 2 vorgesehene Möglichkeit eines automatischen Außerkrafttretens des Vertrages i m Falle des Abschlusses eines „Gesamteuropäischen Vertrages über kollektive Sicherheit" ist nicht eingetreten. Der Warschauer Pakt wäre somit 1 Text in: Boris Meißner (Hrsg.), Der Warschauer Pakt, Köln 1962; in deutscher, russischer, polnischer und tschechischer Sprache, die nach Artikel 11 Absatz 3 gleiche Gültigkeit haben, in: Gesetzblatt der DDR I, Nr. 46 vom 13. Juni 1955, 381—392; auch in: United Nations Treaty Series (UNTS) 219 (1955), 3—33. 2 Vgl. z. B. Gottfried Zieger, Der Warschauer Pakt, Hannover 1974. 3 Eberhard Menzel / Knut I ρ sen, Völkerrecht, 2. Auflage, München 1979, 328; Ignaz SeidlHohenveldern, Völkerrecht, 3. Auflage, Köln 1975, Randnummer (Rdn.) 299; Anatoli Ν. Talalajew, Meshdunarodnije dogowori ν sovremennom mire, Moskau 1973, 170; Herbert Kröger u. a., Völkerrecht, Berlin (Ost) 1973, 252; Stephan Verosta, Die Vertragsrechts-Konferenz der Vereinten Nationen 1968/69 und die Wiener Konvention über das Recht der Verträge, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 29 (1969), 654— 710 (684); der Text der Wiener Vertragsrechtskonvention (WVK) 1st in englischer und französischer Fassung abgedruckt an gleicher Stelle, 711 ff. sowie in englischer Sprache in: International Legal Materials (ILM) 8 (1969), 679—735. 4 Vgl. dazu: Die Organisation des Warschauer Vertrages 1955—1975. Dokumente und Materialien, herausgegeben vom Ministerium für Auswärtige Angelegenheiten der DDR, Berlin (Ost) 1975, 19. s Vgl. Zieger (Anm. 2), 38.

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am 4. Juni 1985 erloschen, hätten seine Mitgliedsstaaten den Vertrag nicht ausdrücklich verlängert. Die Beendigung des Vertrages hätte die Partner des Warschauer Paktes von jeder Verpflichtung befreit, den Vertrag weiter zu erfüllen (Art. 70 W V K ) . A u f völkerrechtliche Verträge, deren Frist abgelaufen ist, können die Partner nicht zurückgreifen wie auf geltende Verträge 6 . Wie zu erwarten 7 , haben die Mitgliedstaaten des Warschauer Paktes den Vertrag vor Ablauf seiner Geltungsdauer verlängert. Eine solche Verlängerung erfolgte am 26. A p r i l 1985 in Warschau durch Unterzeichnung eines entsprechenden „Protokolls" 8 . Dieses „Protokoll" besteht aus zwei Artikeln. Artikel 1 bestimmt: „Der in Warschau am 14. M a i 1955 abgeschlossene Vertrag über Freundschaft, Zusammenarbeit und gegenseitigen Beistand bleibt weitere 20 Jahre in K r a f t " . I m übrigen wiederholt dieser A r t i k e l wörtlich Satz 2 des Artikels 11 des Vertrages: „Für die vertragschließenden Seiten, die ein Jahr vor Ablauf dieser Frist der Regierung der Volksrepublik Polen keine Erklärung über die Kündigung dieses Vertrages übergeben, bleibt er weitere 10 Jahre in K r a f t " . Da Satz 2 A r t i k e l 11 des Warschauer Paktes nicht ausdrücklich aufgehoben wurde, handelt es sich um eine — bei einer anderen Technik der Verlängerung unnötige — Doppelung. Sie ist nur damit zu erklären, daß jede direkte Änderung des bisherigen Vertragstextes unbedingt vermieden werden sollte. Artikel 2 des „Protokolls" bestimmt, daß dieses selbst der Ratifikation bedarf und am Tage der Hinterlegung der letzten Ratifikationsurkunde in K r a f t tritt. V o n der Hinterlegung jeder Ratifikationsurkunde hat die polnische Regierung als Depositar die anderen Teilnehmerstaaten des Vertrages jeweils in Kenntnis zu setzen. M i t dem auf diese Weise gesicherten Inkrafttreten des Verlängerungsprotokolls vor dem 4. Juni 1985 9 besteht der Warschauer Pakt für seine Mitgliedstaaten rechtswirksam bis zum Jahre 2015 fort, soweit nicht ein Mitgliedstaat den Vertrag vor Ablauf der 20 Jahre kündigt oder ein Staat schon früher nach allgemeinem Völkerrecht aus wichtigem Grund aus dem Pakt ausscheidet. I. Form und Gründe für die Form der Verlängerung Das „Kommunique" über das Treffen der Warschauer Paktstaaten am 26. A p r i l 1985 in Warschau 10 und Äußerungen der offiziellen Vertreter dieser 6

So auch die sowjetische völkerrechtliche Literatur, vgl. Talalajew (Anm. 3), 171. Wolfgang Seiffert, Die Moskauer „Revanchismus"-Vorwürfe und die Gültigkeitsdauer des Warschauer Paktes, in: Deutschland Archiv 17 (1984), 900—903. 8 Text des „Protokolls" in: Prawda (Moskau) vom 27. April 1985, 1; Neues Detuschland (Berlin [Ost] ) vom 27./28. April 1985, 1. 9 Laut „Bekanntmachung zum Protokoll über die Verlängerung der Gültigkeitsdauer" des Warschauer Vertrages durch den Sekretär des Staatsrats der DDR ist das Protokoll am 31. Mai 1985 in Kraft getreten; GBl der DDR I I Nr. 4 vom 24. 7.1985, S. 47. 10 Text in: Prawda vom 27. April 1985, 1; Neues Deutschland vom 27./28. April 1985, 1. 7

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Staaten 11 machen deutlich, daß die Vertragsstaaten bei Abschluß des Vertrages am 14. M a i 1955 davon ausgingen, daß eine 30-jährige Dauer des Vertrages für seine Erfüllung absolut ausreichend sei, daß aber die gegenwärtige Situation entgegen solchen Erwartungen eine Verlängerung des Vertrages verlange. Diese offizielle Argumentation legt einerseits den Schluß nahe, daß es dem Willen der Vertragsparteien entsprach, den Vertrag nach 30 Jahren zu beenden. Andererseits könnte die Begründung der nunmehr dennoch erfolgten Verlängerung zu der Vermutung führen, es handle sich bei dieser Verlängerung um einen Fall der clausula rebus sie stantibus. Zweifellos war es bei Vertragsschluß der Wille der Vertragspartner, den Vertrag spätestens nach einer Dauer von 30 Jahren zu beenden. Es steht den Parteien eines multilateralen Vertrages jedoch frei, den Vertrag während seiner Laufzeit jederzeit ganz oder teilweise einvernehmlich zu ändern. Dies gilt audi für die Vertragsbestimmungen über die Dauer des Vertrages. Einer Berufung auf die clausula rebus sie stantibus bedarf es dazu niicht. Ihre Heranziehung ginge zudem am Wesen dieses Rechtsinstituts als einem N o t v e n t i l eines oder mehrerer Vertragspartner, sich von einem geltenden Vertrag ganz oder teilweise i m Gegensatz zu anderen Vertragspartnern zu lösen 12 , vorbei. 13 Auch stellt die Begründung der Verlängerung des Vertrages durch seine Mitgliedsstaaten darauf ab, daß sich ihre bei Abschluß des Vertrages angestellten Erwartungen für die Zukunft nicht erfüllt haben. Es ist in ihrer Sicht eben keine Veränderung der Umstände eingetreten. 11

Michail S. Gorbatschow, Sowjetische Heldentat bewies: Sozialismus ist unbesiegbar, deutsch in: Neues Deutschland vom 9. Mai 1985, 7 f.; Andrei A. Gromyko, Rede vor dem Präsidium des Obersten Sowjets zur Verlängerung des Warschauer Paktes, Text in: Istwestija (Moskau) vom 25. Mai 1985, 1 f.; vgl. auch den Bericht über die „Festversammlung" zum 30. Jahrestag des Warschauer Paktes in: Prawda vom 15. Mai 1985, 4; der DDR-Staatsratsvorsitzende Erich Honecker betonte in einem Interview mit italienischen Journalisten, man habe beim Abschluß des Vertrages 1955 keine Notwendigkeit gesehen, das Bündnis nach 1985 zu erneuern; da aber die internationale Lage heute die Auflösung des Paktes nicht zulasse, müsse die Allianz aufs neue bekräftigt werden (Neues Deutschland vom 20./21. April 1985, 1 f.); ähnlich der rumänische Partei- und Staatschef Nikolai Ceausescu vor dem X I I I . Parteikongreß der rumänischen KP Ende 1984; vgl. Frankfurter Allgemeine Zeitung vom 20. November 1984, 4. Schon der sowjetische Außenminister Wjatscbeslaw Molotow, unter dessen Regie der Warschauer Pakt 1955 zustande kam, sah sich auf dem 20. Parteitag der sowjetischen KP im Februar 1956 widerwillig zu dem Eingeständnis veranlaßt, daß „nach dem Zusammenbruch des Hitlerismus" von Deutschland keine Kriegsgefahr mehr ausgehe. Vgl. Botho Kirsch, Als Molotow keine deutsche Gefahr mehr sah, in: Die Welt vom 13. September 1984, 2. Damit war die offizielle Begründung für die Schaffung des Warschauer Paktes schon knapp ein Jahr später von seinem Initiator selbst ad absurdum geführt worden. 12

Zur clausula rebus sie stantibus vgl. Seidl-Hohenveldern (Anm. 3), Rdn. 281—288. So aber Alexander Uschakow, Eine neue Phase in der Entwicklung des Warschauer Paktes, in: Redit in Ost und West 30 (1986), 7—20, und Dietrich Frenzke, Die Verlängerung des Warschauer Vertrages im Lichte der Beistandsklauseln des osteuropäischen Paktsystems, a.a.O., 21—36. 13

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Für eine daher mögliche und gewollte Vertragsänderung hinsichtlich der Dauer des Vertrages standen grundsätzlich drei Rechtsformen zur Auswahl: a) die stillschweigende Verlängerung; b) die Revision oder Vertragsnovation und c) die vertragliche Vereinbarung der Verlängerung des Vertrages. Zwar w i r d man allgemein davon auszugehen haben, daß eine stillschweigende Verlängerung nur dann in Betracht kommt, wenn dies der Vertrag selbst vorsieht (was beim Warschauer Pakt nicht der Fall ist) und bis zum Zeitablauf des Vertrages kein gegenteiliger Wille geäußert wurde 1 4 . Doch hätten die Warschauer Paktstaaten sich darauf berufen können, daß Verträge über Bündnisse, Nichtangriff und Neutralität allgemein Dauer Verpflichtungen enthalten, die permanent einzuhalten sind 15 . Die Berufung auf ein solches rechtlich begründetes Dauerverhältnis hätte gerade beim Warschauer Pakt besonders nahe gelegen, haben doch — vor allem — sowjetische Militärs die Organisation des Warschauer Paktes politisch, ideologisch und organisatorisch-strukturell längst zu einem „Bündnis für Frieden und Sozialismus" hochstilisiert, dem eine zentrale Rolle als militärischem und außenpolitischem Koordinierungsorgan der sowjetischen Ordnungsmacht in Osteuropa zugewiesen 16 und das insofern als „irreversibel" betrachtet w i r d 1 7 . I m Moskauer „Diplomatischen Wörterbuch", zu dessen Mitherausgebern der sowjetische Außenminister Gromyko gehört, heißt es denn auch (im Widerspruch zum Vertragstext), der Pakt verlängere sich „automatisch um jeweils zehn Jahre", falls er nicht vorher gekündigt werde 18 . Wenn die Warschauer Paktstaaten dennoch diesen Weg nicht beschritten haben, so hat dies seine inneren und äußeren Gründe. Eine Berufung auf eine stillschweigende Verlängerung hätte damit argumentieren müssen, daß sich diese aus der N a t u r des Vertrages selbst ergäbe; sie hätte insofern den Artikel 56 Abs. 1 W V K i m Umkehrschluß aufgreifen müssen. Doch läßt sich eine unbegrenzte Geltung des Vertrages eben gerade nicht aus der N a t u r des Warschauer Paktes ableiten. Weder sein seit 1955 unveränderter Vertragstext noch seine tatsächliche und rechtliche Entwicklung in den 30 Jahren seiner Geltung lassen den Schluß zu, es handle sich bei ihm um ein Bündnis, dessen integrativer Charakter eine Dichte und Festigkeit erreicht habe, aus denen sich ohne 14

Seidl-Hohenveldern (Anm. 3), Rdn. 300. is Op. cit., Rdn. 563—568; so auch der DDR-Grundriß Völkerrecht, Berlin (Ost) 1982, 93, Ziffer 3. 4. 7. 2. 16 Wiktor G. Kulikow, Der Warschauer Vertrag, Moskau 1980. 17 Jens Hacker, Der Warschauer Pakt vor und nach Helsinki, in: Internationales Recht und Diplomatie, 1977—1980, 85—97. ι» Diplomatisches Wörterbuch, Moskau 1960, Bd. I, § 241—244 (russ.).

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weiteres auf seine permanente Dauer schließen ließe. Das Gegenteil ist der Fall. Die innere Entwicklung des Warschauer Paktes verlief derart widerspruchsvoll, daß z. B. der Versuch, die block-interne Funktion des Warschauer Paktes in einem veränderten Vertragstext zum Ausdruck zu bringen, schlicht als aussichtslos erscheint 19 . Ein Abstellen auf „stillschweigende Verlängerung" hätte einerseits Furcht, Mißtrauen und Widerstand bei manchen seiner M i t gliedsstaaten geweckt, auf diese Weise solle dem Pakt ein völkerrechtlicher Charakter verliehen werden, den er nicht hat. Andererseits hätte eine solche „stillschweigende Verlängerung" gerade deshalb berechtigte Zweifel geweckt, ob der Vertrag überhaupt als wirksam verlängert gelten könne. Eine „stillschweigende Verlängerung" schied also schon deshalb aus. Sie wäre aber audi in Widerspruch geraten mit der äußeren Funktion und dem tatsächlichen völkerrechtlichen Charakter des Warschauer Paktes, eine Allianz auf dem gleichen Niveau m i t der N A T O zu begründen, die ausdrücklich auf den Grundsätzen der Satzung der Vereinten Nationen beruht und mit dem erklärten Ziel verbunden ist, einen „Gesamteuropäischen Vertrag über kollektive Sicherheit" anzustreben, m i t dessen Erreichung der Warschauer Pakt sein Ende findet (Art. 11 Abs. 2). Man darf zwar nicht übersehen, daß mit dem inzwischen erreichten, fast lückenlosen System bilateraler Verträge der UdSSR mit den anderen Staaten des Warschauer Paktes das sowjetische Ziel einer auf die Prinzipien des „sozialistischen Internationalismus" verpflichteten Staatengruppe erreicht wurde. Es bleibt aber dennoch von Bedeutung, daß der Warschauer Pakt selbst als völkerrechtlicher Vertrag diesen Charakter nicht hat 2 0 . Der Verzicht auf die Berufung einer „stillschweigenden Verlängerung" des Warschauer Paktes bildet hierfür ein weiteres, in die Zukunft wirkendes Indiz. Den Zweck der Verlängerung des Warschauer Paktes über seine ursprünglich vorgesehene Dauer hinaus hätte eine Revision oder Novation des Vertrages juristisch in besonders präziser Weise erfüllen können. Eine Revision 21 oder N o v a t i o n 2 2 kann bekanntlich nach geltendem Völkerrecht von Zeit zu Zeit vorgenommen werden und bedeutet, daß unter grund19 Jens Hacker, Was wird aus dem Warschauer Pakt?, in: Frankfurter Allgemeine Zeitung vom 7. Dezember 1984, 11. 20 Ebenda. 21 Unter „Revision" wird im Völker-Vertragsrecht allgemein die einvernehmliche Änderung des Vertragstextes verstanden; vgl. H ermann Weber / Henning v. Wedel, Grundkurs Völkerrecht, Frankfurt/Main 1977, V, Ziffer 8; Memell Ipsen (Anm. 3), § 44; Seidl-Hohenveldern (Anm. 3), § 23. 22 Unter „Novation" = Erneuerung (aus dem Lateinischen) oder auch „Novellierung" wird im Völkerrecht allgemein die Ergänzung und/oder Änderung eines Vertrages verstanden, ohne daß eine völlige Neufassung des Vertrages erfolgt; vgl. die oben (Anm. 21) angegebenen Literaturstellen; die sowjetische Völkerrechtsdoktrin scheint allerdings darunter nur die Erneuerung eines bereits abgelaufenen völkerrechtlichen Vertrages zu verstehen; vgl. Talalajew (Anm. 3), 123 f.

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sätzlicher Beibehaltung des Vertrages einzelne seiner Teile einvernehmlich geändert werden, um den Vertrag den veränderten Interessenlagen der Vertragspartner anzupassen (Art. 41 W V K ) . Eine solche Revision oder Novation des Vertrags textes des Warschauer Paktes lag in den 30 Jahren seiner Geltungsdauer schon einmal nahe, als die Anfang der 70er Jahre abgeschlossenen Ostverträge, das Vier-Mächte-Abkommen über Berlin und die Aufnahme beider deutscher Staaten in die Vereinten Nationen eine solche Veränderung der europäischen Situation bewirkt hatten, daß die von Anfang an fragwürdige Begründung des Warschauer Paktes mit der Bedrohung durch eine aggressive Bundesrepublik (Präambel des Vertragstextes des Warschauer Paktes) vollends obsolet wurde 2 3 . Eine solche Novation wäre auch jetzt verständlich gewesen, wenn man entweder mit der Vertragsänderung zugleich dem Verlangen einzelner Mitgliedstaaten des Warschauer Paktes hätte Rechnung tragen wollen, die Struktur des Paktes und seine personelle Besetzung stärker ihren Interessen anzupassen24 oder wenn man das „Prinzip des sozialistischen Internationalismus" als das bestimmende Prinzip der militärischen Zusammenarbeit im Warschauer Pakt 2 5 hätte i m Vertragstext zum Ausdruck bringen wollen. Tatsächlich hat man aus naheliegenden Gründen 2 6 weder in der einen noch in der anderen Richtung den Weg einer Revision oder Novation beschritten. Die Verlängerung des Vertrages wurde vielmehr in der Form einer einfachen Prolongation des unveränderten Vertragstextes vorgenommen, unter der vor allem die sowjetische Völkerrechtsdoktrin eine vertragliche Verlängerung eines völkerrechtlichen Vertrages versteht, die vorzunehmen ist, bevor der Vertrag abgelaufen ist 2 7 . Zweifellos stand es den Vertragspartnern frei, die Rechtsform der Verlängerung des Vertrages zu wählen, die ihnen am zweckmäßigsten erschien. Doch daß sie von allen möglichen die Form der einfachen vertraglichen Prolongation ohne jede Revision oder Novation zur Anpassung des Vertrages an die veränderten Umstände und Interessenlagen der Vertragspartner gewählt haben, gibt unter der gegebenen Situation Aufschluß sowohl über die inneren Verhältnisse in der Region des Warschauer Paktes wie über die unveränderten Ziele, die mit dem Vertrag von jenen verfolgt werden, die ihn begründet haben. II. Die Wirkungen der Verlängerung Die einfache Prolongation bewirkt die in dem „Protokoll" vom 26. A p r i l 1985 vorgesehene und oben näher dargelegte Verlängerung des Vertrages. 23 Zieger (Anm. 2), 111. 24 Vgl. Hacker, Was wird aus dem Warschauer Pakt? (Anm. 19). 2 5 Kulikow (Anm. 16), 153. 2 e Vgl. H acker y Was wird aus dem Warschauer Pakt? (Anm. 19). 2 7 Talalajew (Anm. 3), 121—123.

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Zweifel bleiben allerdings, ob die Verlängerungsdauer von zwanzig bzw. dreißig Jahren tatsächlich dem Vertragswillen aller Partner entspricht, da schon wenige Tage nach der Unterzeichnung des „Protokolls" von einzelnen Vertragspartnern Erklärungen abgegeben wurden, man hätte eine kürzere Vertragsdauer gewünscht 28 . Derartige Äußerungen legen jedenfalls die Vermutung nahe, daß gegenüber solchen Vertragspartnern Druck zum Abschluß des Verlängerungsvertrages auf eine nichtgewünschte Zeitdauer ausgeübt worden ist, was gegebenenfalls nach A r t . 52 W V K und der mit der Wiener Konvention über das Recht der Verträge angenommenen Deklaration 2 9 zu beurteilen wäre. Doch wichtiger noch als diese Problematik ist es, daß mit der Verlängerung des Vertrages in der Rechtsform der Prolongation eine Ausgangssituation und ein Prinzipienkatalog rechtlich fest- und fortgeschrieben wurde, wie er 1955 dem damals abgeschlossenen Vertrag zugrunde lag bzw. vereinbart wurde. Dies ist nicht nur das Eingeständnis, daß auch mit dem Warschauer Pakt in den seit Vertragsabschluß vergangenen 30 Jahren die Lage in Bezug auf Europa und Deutschland nicht wesentlich zugunsten des sowjetischen Herrschaftsbereiches verändert werden konnte 8 0 . Dies bedeutet auch völkerrechtlich, daß alle bei Abschluß und während der Laufzeit des Vertrages abgegebenen Erklärungen weiterhin ihre volle Gültigkeit behalten. Dies gilt insbesondere für den völkerrechtlichen Charakter des Militärbündnisses, die Erklärungen zur Deutschen Frage und die einseitige Erklärung der Regierung der UdSSR vom 30. Oktober 1956 über ihre Beziehungen zu anderen sozialistischen Ländern. Die völkerrechtliche Struktur weist den verlängerten Vertrag vom 14. M a i 1955 unverändert als eine klassische militärpolitische Allianz mit außenpolitischer Koordinierungsfunktion und Anfängen einer organisatorischen Vereinigung von Teilstreitkräften dieses Bündnisses aus. Die gegenseitige Beistandspflicht beschränkt sich (nach A r t i k e l 4 des Vertrages) a) auf den Fall eines bewaffneten nehmerstaaten;

Überfalls

auf einen (oder mehrere) Teil-

b) darauf, daß dieser bewaffnete Uberfall in Europa erfolgt; c) auf Maßnahmen, die zwischen dem betroffenen und den anderen Teilnehmerstaaten vereinbart wurden; d) auf den Zeitraum, bis zu dem der Sicherheitsrat der Vereinten Nationen die Maßnahmen ergreift, „die zur Wiederherstellung und Erhaltung des Weltfriedens und der Sicherheit erforderlich sind". 28 Vgl. den Bericht der Neuen Züricher Zeitung vom 31. Mai 1985, 3: „Rumäniens Sonderposition im Warschaupakt — Erklärungsversuche Ceausescus zur Vertrags Verlängerung." 2 » Text in: ZaöRV 29 (1969), 693. so Vgl. dazu Jens Hacker, Der Ostblock, Baden-Baden 1983, 508—517; vgl. auch Ottfried Hennig, Gedanken zum Jahr 1955, in: Deutschland Archiv 18 (1985), 449—453.

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Die Organe des Vertrages (das Vereinte Kommando der Streitkräfte, der Politische Beratende Ausschuß und seine ad-hoc-Hilfsorgane, das Komitee der Verteidigungsminister, das Komitee der Außenminister, die Konferenzen der Verteidigungsminister bzw. deren Stellvertreter sowie der „Ersten Sekretäre der Zentralkomitees der kommunistischen und Arbeiterparteien und der Regierungschefs") beraten internationale Fragen von gemeinsamem Interesse und ,yergreifen Maßnahmen", die „zur Stärkung ihrer Wehrfähigkeit notwendig sind" (Artikel 5). Für Willensbildung und Entscheidungsprozeß i m Warschauer Pakt ist ausschlaggebend, daß die Prinzipien der Unabhängigkeit und Souveränität sowie der Nichteinmischung in die inneren Angelegenheiten nach A r t . 8 des Vertrages es rechtlich ausschließen, daß die Feststellung des Verteidigungsfalles, das Handeln des Vereinten Kommandos der Streitkräfte oder die Entscheidung über Höhe und A r t der M i t t e l für die Verteidigung aus der Souveränität der Einzelstaaten auf die internationale Organisation des Paktes selbst übergeht 31 . Der völkerrechtliche Charakter des Vertrages als einer klassischen militärpolitischen Allianz 3 2 , die sich zudem weitgehend am Text des NATO-Vertrages orientiert 3 3 , w i r d in dem „Kommunique" über das Treffen der Vertragsparteien zur Verlängerung des Vertrages noch dadurch besonders unterstrichen, daß dort darauf verwiesen wird, die Vertragsparteien seien „niemals Anhänger einer Teilung Europas und der Welt in einander gegenüberstehende Militärblöcke" gewesen. „Sie treten auch jetzt dafür ein, ihr Bündnis und den Nordatlantikvertrag — und als ersten Schritt deren militärische Organisationen — gleichzeitig aufzulösen" 34 . I m Hinblick auf die Deutsche Frage ist vor allem die Erklärung des D D R Vertreters bei Vertragsunterzeichnung zu erwähnen: I m Hinblick auf das Ziel des Vertrages, den Frieden und die Sicherheit in Europa zu gewährleisten, sieht die Regierung der D D R in dem Vertrag eine große Unterstützung des deutschen Volkes in seinem Bestreben nach friedlicher und demokratischer Wiedervereinigung Deutschlands. Die D D R sieht nach wie vor die Wiedervereinigung Deutschlands auf friedlicher und demokratischer Grundlage als ihre und des ganzen deutschen Volkes Hauptaufgabe an und wird alles tun, um die Wiedervereinigung zu beschleunigen. Bei der Unterzeichnung des vorliegenden Vertrages über Freundschaft, Zusammenarbeit und gegenseitigen Beistand geht die Regierung der D D R davon aus, daß das wiedervereinigte Deutschland von den Verpflichtungen frei sein wird, die ein Teil Deutschlands in militärpolitischen 81 Im einzelnen dazu: Wolf gang Seiffert, Studie zu Willensbildung und Entscheidungsprozeß im Warschauer Vertrag und im Rat für Gegenseitige Wirtschaftshilfe (RGW)-Comecon (Manuskript), Kiel 1978, 3—6. 32 Vgl. das von Ludwig Dischler verfaßte Stichwort „Bündnis" in: Karl S tr upρ / HansJürgen Schlochauer, Wörterbuch des Völkerrechts, Bd. I, Berlin 1960, 259 f. 33 Vgl. lieger (Anm. 2), 41. 34 Kommunique (Anm. 10), 1.

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Verträgen und Abkommen, die vor der Wiedervereinigung abgeschlossen wurden, eingegangen ist 35 .

I n seinem Bericht über den Abschluß des Warschauer Paktes vor der D D R Volkskammer am 20. M a i 1955 führte der damalige DDR-Ministerpräsident ausdrücklich aus, daß dieser Standpunkt „unter Zustimmung aller Vertragsschließenden anerkannt" worden sei 36 . Den Zusammenhang zwischen der europäischen Sicherheit und der Lösung der Deutschen Frage stellte auch die erste Deklaration der Warschauer Paktstaaten vom 28. Januar 1956 her 3 7 . Wenn es auch evident ist, daß die politische Haltung der Warschauer Paktstaaten zur Deutschen Frage mehrfachen Modifikationen unterworfen war, so behalten doch alle wesentlichen Aussagen über den Zusammenhang zwischen europäischer Sicherheit und Deutscher Frage und über die Freistellung des wiedervereinigten Deutschland von allen Verpflichtungen aus militärpolitischen Verträgen, die vor der Wiedervereinigung von einem der Teilstaaten Deutschlands abgeschlossen wurden, ihre völkerrechtliche Bedeutung. Dies gilt nicht zuletzt für den einseitigen Rechtsakt 88 , den die „Erklärung der Regierung der UdSSR zur Entwicklung und Festigung der Freundschaft und Zusammenarbeit mit den sozialistischen Staaten vom 30. Oktober 1956" 3 9 darstellt. M i t ihr hat die Sowjetunion das Redit jedes Staates auf seinen eigenen Weg zum Sozialismus anerkannt, das Prinzip der Gleichberechtigung i n den Beziehungen zwischen den „sozialistischen" Staaten hervorgehoben und einen entsprechenden Verhandlungskodex für die Beziehungen der „sozialistischen Staaten" untereinander, vor allem auf wirtschaftlichem und militärischem Gebiet, umrissen. Wenn auch die sowjetische Erklärung nur teilweise eingehalten worden ist (z.B. durch den Abschluß von Verträgen mit einzelnen Warschauer Paktstaaten über Fragen, die mit der Stationierung sowjetischer Truppen zusammenhängen 40 ), und vor allem durch die Interventionen der Sowjetunion i n Ungarn (1956), in der CSSR (1968) und die wiederholten Gewaltdrohungen gegen Polen (1956, 1970, 1980/81) die ausdrückliche Zusage, Truppen eines Staates in einem anderen Staat des Warschauer Paktes nur nach einer Ubereinkunft aller Vertragsteilnehmer und Zustimmung des Stationierungslandes zu stationieren, eindeutig verletzt wurde 4 1 , so unterstreicht 35 Text in: Dokumente zur Außenpolitik der Regierung der Deutschen Demokratischen Republik, Bd. I I , Berlin (Ost) 1955, 239—254 (246). 36 So Ministerpräsident Otto Grotewohl am 20. Mai 1955, Text in: op. cit., 246. 37 Text in: Die Organisation des Warschauer Vertrages (Anm. 4), 26. 38 Zum rechtlichen Charakter einseitiger Akte vgl. Menzel ! Ipsen (Anm. 3), 88 f. 39 Text in: Prawda vom 31. Oktober 1956; deutsch in: Dokumente zur Außenpolitik der Sowjetunion, Bd. 2, Berlin (Ost) 1963, 339—343; Europa-Archiv (EA) 11 (1956), 9388. 40 Vgl. Boris Meißner, Entwicklungsphasen des Ostpakt-Systems in Ost- und Mitteleuropa, in: Recht in Ost und West 25 (1981), 1—10. 41 Zieger (Anm. 2), 69 f.

27

G Y I L

28

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gerade dieser Umstand die Bedeutung der Tatsache, daß mit der Verlängerung des Warschauer Paktes ohne jede Revision und Novation des Vertrages audi dieser einseitige Rechtsakt der UdSSR seine Gültigkeit behält. Schon vor der Verlängerung des Vertrages war übrigens in einem Kommunique über den Besuch des sowjetischen Regierungschefs Ticbonow 1984 in Jugoslawien auf die Erklärung vom 30. Oktober 1956 Bezug genommen. 42 III. Warschauer Pakt und Stationierung sowjetischer Truppen in seinen Mitgliedstaaten Die erwähnte „Erklärung" der Sowjetunion vom 30. Oktober 1956 stellt m i t der Verkündung des Prinzips, eine Dislozierung von Truppen des einen oder anderen Teilnehmerstaates im Gebiet eines anderen Staates dürfe nur nach einer Übereinkunft aller Vertragsstaaten erfolgen 43 , eine unmittelbare Verbindung zwischen Warschauer Pakt und der Stationierung von Truppen anderer Staaten in einzelnen Staaten her. Dieser Zusammenhang gilt rechtlich auch für die Zukunft. Praktisch sind allerdings ausschließlich sowjetische Truppen in anderen Staaten stationiert 44 , und keiner solchen Stationierung ging eine „Ubereinkunft aller Vertragsteilnehmer" voraus. Andererseits bildet der Warschauer Pakt für sich allein keinerlei Rechtsgrundlage für die Stationierung von Truppen des einen Vertragsstaates im Gebiet eines anderen Vertragsstaates. Dies w i r d übrigens auch in der völkerrechtlichen Literatur der UdSSR und der anderen Vertragsstaaten des Warschauer Paktes nirgendwo behauptet. Entgegenstehende Ansichten sind also unzutreffend 45 . Die gemeinsame Intervention von fünf Warschauer Paktstaaten 1968 in der CSSR war daher nicht nur eine Verletzung des allgemeinen Völkerrechts, sondern auch des Warschauer Paktes und der von der Sowjetunion verkündeten Prinzipien der Beziehungen zwischen den sozialistischen Staaten 46 . Die andauernde Stationierung sowjetischer Truppen in der CSSR konnte auch durch den am 16. Oktober 1968 in Prag unterzeichneten bilateralen Stationierungsvertrag 47 weder legitimiert noch für die Zukunft auf eine rechtsgültige Grundlage ge42 Prawda vom 26. März 1984, 1 f. Vgl. den Text der „Erklärung" vom 30. Oktober 1956, (Anm. 39). 44 Gegenwärtig stehen sowjetische Truppen in der CSSR, Ungarn, der DDR und in Polen. 48

45

Vgl. z.B. kurz mezdunardnogo prava, Bd. IV, Moskau 1968, 405 f.; DDR-VölkerrechtLehrbuch, Teil 2, Berlin (Ost) 1973, 128—33. Anders z. B. die Auffassung von Hacker, Der Ostblock (Anm. 30), 588, der Vertrag vom 14. Mai 1955 habe eine „weitere Rechtsgrundlage" für die Stationierung sowjetischer Truppen in Polen, der CSSR, der DDR und Ungarn geschaffen. 46 Zieger (Anm. 2), 95. 47 Text in: Internationales Recht und Diplomatie (1971), 202 ff.; dazu Theodor Schweisfurth, Der sowjetisch-tschechoslowakische Truppenstationierungsvertrag vom 16. Oktober 1968, Berichte des Bundesinstituts Ost, 1969, Nr. 13.

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stellt werden, da er unter Zwang zustande kam. 4 8 Auch dem Stationierungsvertrag vom 27. M a i 1957 mit Ungarn 49 ging keine Übereinkunft aller Vertragsstaaten des Warschauer Paktes voraus, auch er kam unter Zwang zustande. Die Stationierung sowjetischer Truppen in der D D R und Polen aber beruht — entgegen anderen Darstellungen — nicht auf Stationierungsabkommen zwischen der Sowjetunion und der D D R bzw. zwischen der Sowjetunion und Polen. Die entsprechenden bilateralen Verträge 50 regeln nicht die Stationierung sowjetischer Truppen selbst, sondern deren Folgen, den Rechtsstatus der Truppen und mit der Stationierung zusammenhängende Fragen 51 . Die Rechtsgrundlage für die Stationierung sowjetischer Truppen im heutigen Gebiet der D D R und in jenen deutschen Gebieten, die 1945 unter polnische Verwaltung gestellt wurden, bilden unverändert die originären Siegerrechte der UdSSR über Deutschland und ihre entsprechenden Vereinbarungen mit den drei westlichen Alliierten 5 2 . Deutlich für die D D R ausgesprochen w i r d dies in der „Gemeinsamen Erklärung" der Regierungen der UdSSR und der D D R vom 7. Januar 1957, mit der das dann am 11. A p r i l 1957 abgeschlossene Abkommen angekündigt wird. H i e r w i r d davon gesprochen, daß die Stationierung sowjetischer Truppen auf dem Gebiet der D D R „auf bestehenden internationalen Verträgen und Abkommen" beruht 5 3 . Darauf verweist audi die Bezeichnung dieser Truppen als „Gruppe der sowjetischen Streitkräfte in Deutschland — GSSD" 5 4 . Für Polen finden sich die entsprechenden Hinweise einmal in der „Erklärung" der Regierung der UdSSR vom 30. Oktober 1956, in der es heißt: „ I n der Republik Polen befinden sich sowjetische Militäreinheiten gemäß dem Potsdamer Abkommen . . . " 5 5 , und in der „Gemeinsamen Erklärung zu den Verhandlungen zwischen der Delegation des Z K der K P d S U und der Regierung der Sowjetunion und der Delegation des Z K der Polnischen Vereinigten 48 Meißner (Anm. 40), 7. 49 Text bei Meißner (Anm. 1), 71 ff. 50 Abkommen zwischen der Regierung der DDR und der UdSSR über Fragen, die mit der zeitweiligen Stationierung sowjetischer Streitkräfte auf dem Territorium der DDR zusammenhängen, vom 11. April 1957, Text in: Gesetzblatt der DDR I, Nr. 28 vom 20. April 1957, 237—244, UNTS 258 (1958), 105—133; Vertrag zwischen der Regierung der UdSSR und der Regierung der Volksrepublik Polen über den rechtlichen Status der sowjetischen Truppen, die zeitweilig in Polen stationiert bleiben, vom 17. Dezember 1956, Text in: Meißner (Anm. 1), 117—122; UNTS 266 (1957), 179—207. 51 Vgl. dazu Wolfgang Seiffert, Zu den völkerrechtlichen Grundlagen der Stationierung sowjetischer Truppen in der DDR, in: Deutschland-Archiv, 15 (1982), 473—476; derselbe: Warum steht in Polen eine Sowjet-Garnison?, in: Der Spiegel Nr. 20 vom 16. Mai 1983, 130—132. 52 Ebenda. 53 Text in: Dokumente zur Außenpolitik der Regierung der Deutschen Demokratischen Republik, 661—673. 54 Vgl. Seiffert (Anm. 51) und den Bericht der Frankfurter Allgemeinen Zeitung vom 18. April 1985, 6: „General Saizew nimmt es mit Statusfragen genau". 55 Text in Prawda vom 30. Oktober 1956; vgl. audi Anm. 39.

27*

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Arbeiterpartei und der Regierung der Volksrepublik Polen vom 18. November 1956" 5 6 . H i e r w i r d festgestellt, daß der zeitweilige Aufenthalt sowjetischer Truppen auf polnischem Boden „ . . . m i t der Notwendigkeit des Verbleibens sowjetischer Truppen in Deutschland auf Grund internationaler Verträge und Abkommen zusammenhängt" 57 . Die Verlängerung des Warschauer Paktes hat auch an diesen — z. T. mangelhaften bzw. für die CSSR und Ungarn nichtigen — Rechtsgrundlagen für die Stationierung von Truppen des einen Vertragsstaates in einem oder mehreren Staaten des Warschauer Paktes nichts geändert. Die Rechtsgrundlagen, auf die sich die Sowjetunion bei der Stationierung ihrer Truppen in der CSSR und in Ungarn beruft, sind daher nichtig (Art. 52 W V K ) und die verletzten Vertragspartner haben das Recht, die Wiederherstellung der ursprünglichen Lage (Art. 69 Abs. 3 W V K ) zu verlangen und ihre gegenseitigen Beziehungen wieder mit den zwingenden Normen des Völkerrechts in Einklang zu bringen (Art. 71 Abs. 1 W V K ) . IV. Völkerrechtliche Struktur des Warschauer Paktes und machtpolitische Realitäten Gerade die zuletzt beschriebene Situation der mangelhaften oder nichtigen Rechtsgrundlagen der tatsächlich in Ungarn seit 1956, in der CSSR seit 1968 andauernden Stationierung sowjetischer Truppen w i r f t die Frage nach dem Verhältnis der völkerrechtlichen Struktur des Warschauer Paktes einerseits und den machtpolitischen Realitäten in dieser Region andererseits auf. Die Problematik wurde bereits unmittelbar mit der Gründung des Warschauer Paktes 1955 sichtbar und äußerte sich damals in dem Streit darum, ob die Errichtung des Warschauer Paktes lediglich deklamatorische Bedeutung habe und nur als Tauschobjekt gegenüber der N A T O gedacht sei, zumal Präambel und Artikel 11 des Vertrages entsprechende Hinweise enthalten 58 . Die Frage spitzte sich zu, als fünf Staaten des Warschauer Paktes 1968 in der CSSR mit militärischer Gewalt intervenierten und die politischen und rechtlichen Begründungsversuche für diesen Gewaltakt — vor allem von sowjetischer Seite — zur Herausbildung der sogenannten „Breshnew-Doktrin" führten 5 9 . Die Verlängerung des Warschauer Paktes w i r f t diese Problematik erneut auf. Einerseits hat der sowjetische Generalsekretär Gorbatschow den Standpunkt solcher Mitgliedsstaaten wie Ungarn, es handle sich beim Warschauer Pakt um ein Bündnissystem „der konstruktiven Zusammenarbeit freiwillig zusammense Text bei Meißner (Anm. 1), 114—116. 57 Op. cit., 115. 58 Vgl. dazu Hacker (Anm. 30), 511. 5® Vgl. dazu Boris Meißner, Die „Breshnew-Doktrin", Dokumentation, Köln 1969.

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geschlossener souveräner Staaten" 60 , aufgegriffen und bei der Zeremonie zur Unterzeichnung des Verlängerungsprotokolls erklärt, das Bündnis sei „auf völliger Gleichheit" aufgebaut (wobei er allerdings verdächtigerweise ebenso auf „gegenseitige kameradschaftliche H i l f e " hinwies) 61 . Ebenso stellte das „Kommunique" über die Verlängerung des Paktes wie 1955 auf eine gleichzeitige Auflösung von Warschauer Pakt und N A T O ab 8 2 . Dies ist etwas anderes als die in den letzten Jahren in der Sowjetunion üblich gewordene Definition, beim Warschauer Pakt handle es sich „nicht einfach [ u m ] ein militärisches Bündnis, sondern die Kampfgemeinschaft sozialistischer Länder . . . , die auf der Gemeinsamkeit ihrer politischen Ordnung, ihrer Ideologie und ihrer ökonomischen Basis und auf der Einheit ihrer grundlegenden Interessen basiert" 63 . Dies klingt nicht nach Auflösung, sondern nach Dauer, Irreversibilität, und weist dem Pakt den Charakter einer integrativen Militärorganisation der Länder des „real existierenden Sozialismus" zu, die schlechthin für deren Existenz unabdingbar ist. Die Realität in der Region des Warschauer Paktes läßt audi keinen Zweifel daran zu, daß die Armeen der Mitgliedstaaten eine von der sowjetischen Armee dominierte, in den Strukturen aufeinander abgestimmte und weitgehend integrierte Militärorganisation bilden, die einheitlichen Prinzipien, einer koordinierten Führung sowie Einheitlichkeit der Bewaffnung und Ausbildung unterliegen 64 . A u d i i m Zusammenhang mit dem 30. Jahrestag und der Verlängerung des Warschauer Paktes sind von maßgeblichen Repräsentanten seiner Mitgliedsstaaten zahlreiche Erklärungen abgegeben worden, in denen betont wird, der Warschauer Pakt beruhe auf der „zementierenden Grundlage des Prinzips des sozialistischen Internationalismus" 65 , habe den Charakter eines politischen Bündnisses und einer Militärkoalition „neuen T y p s " 6 6 . DDR-Außenminister Fischer meinte sogar, „daß diese Koalition in der heutigen Welt sowie mit dem Blick auf das nächste Jahrtausend für die Bewahrung des Friedens und für die Entwicklung ihrer Teilnehmerstaaten unabdingbar ist" 6 7 . Der Stellvertretende 60

So der stellvertretende ungarische Außenminister in seinem Interview, auszugsweise wiedergegeben in: Neues Deutschland vom 4. 3. 1985, 5. 61 Michail M. Gorbatschow, in: Neues Deutschland vom 27./28. 4. 1985, 3. 62 Text in: Neues Deutschland vom 27./28. 4. 1985, 1. es Kulikow (Anm. 16), 13. 64 Aufschlußreich dazu: Autorenkollektiv unter Leitung von Karl-Heinz Fehlberg, Der Warschauer Vertrag — 30 Jahre Friedenskampf und Schutz des Sozialismus, Berlin (Ost) 1985, 80—101. 65 So der sowjetische Außenminister Andrei Gromyko vor dem Obersten Sowjet (Anm. 11),

2.

ββ So der DDR-Außenminister Oskar Fisdoer, Der Warschauer Vertrag — Instrument konsequenter sozialistischer Friedenspolitik, in: Einheit (Berlin-Ost), 40 (1985), 341. 67 Derselbe, 30 Jahre Warschauer Vertrag — Frieden, Freundschaft, Beistand, in: Neues Deutschland vom 14. Mai 1985, 5.

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Verteidigungsminister der D D R , Heinz Keßler, ging schließlich soweit, die innere Funktion des Warschauer Paktes, das „Recht" auf Einmischung in die inneren Angelegenheiten der Mitgliedsstaaten des Warschauer Paktes, besonders zu betonen: „Erinnert sei auch daran, wie dem Imperialismus durch geeignete Maßnahmen der Vereinigten Streitkräfte wiederholt schon die Grenzen seiner Macht gezeigt wurden. W o immer auch der Gegner angriff, die konterrevolutionären Attacken innerer und äußerer Feinde wurden gestoppt, zerschlagen, und der Frieden wurde gerettet" 68 . Es ist offensichtlich, daß Inhalt und Struktur des Vertrages über den Warschauer Pakt weder solche Charakterisierungen noch die praktische Ausgestaltung dieser Militärorganisation als eines irreversiblen militärpolitischen Bündnisses mit „ v ö l l i g neue[m] politische [ m ] und Klassencharakter" 69 decken. Ebenso ist eindeutig, daß die interventionistische Funktion gegenüber der inneren Entwicklung der einzelnen Pakt-Staaten, die Politiker und Militärs des Warschauer Paktes diesem zuweisen und die gegenüber Ungarn, der CSSR und Polen praktiziert wurde, weder unter Berufung auf den Warschauer Pakt noch auf das „Prinizp des sozialistischen Internationalismus" gerechtfertigt werden kann, sondern in jedem Fall gegen geltendes Völkerrecht verstößt 70 . Dennoch handelt es sich auch heute unverändert um die Realität in der Region des Warschauer Paktes. I n den 50iger und 60iger Jahren wurde in den Arbeiten westlicher Autoren das Spannungsverhältnis zwischen der völkerrechtlichen Struktur des Warschauer Paktes und der davon abweichenden Praxis meist durch Verweis darauf gelöst, der Warschauer Pakt selbst habe neben seiner deklamatorischen Funktion auch echte politische und rechtliche Grundlagen für den Ausbau dieser Militärorganisation entsprechend seiner militärpolitischen Funktion geschaffen 71. Frenzke versuchte das Problem dadurch zu lösen (nicht nur für den Warschauer Pakt, sondern für den Ostblock überhaupt), daß er vom Faktischen auf das Normative schloß 72 . 30 Jahre Praxis des Warschauer Paktes und die Umstände seiner jetzt erfolgten Verlängerung lassen vielleicht den Schluß zu, daß man grundsätzlich differenzieren muß zwischen der völkerrechtlichen Struktur des Warschauer Paktes und der realen Organisation und Tätigkeit der internationalen Militärorganisation seiner Mitgliedstaaten. Für diese — wie für die außenpolitische Koordinierung — setzt die völkerrechtliche Struktur einen gewissen Rahmen einschließlich begrenzter Organisations-, Koordinierungs- und Tätiges In: Neue Berliner Illustrierte — N B I — (Berlin-Ost) Nr. 19/1985, 18 (Hervorhebung W. Seiffert). 69 Autorenkollektiv (Anm. 64), 10. 70 Theodor Schweisfurth, Sozialistisches Völkerrecht?, Berlin, Heidelberg, New York 1979, 369—372, 472. 71 So Hacker (Anm. 30), 511 f. 72 Dietrich Frenzke, Die Rechtsnatur des Sowjetblocks, Berlin 1981; siehe auch die Rezension von Henn-Jiiri Uihopuu in: Osteuropa 32 (1982), 870.

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keitsformen. I m übrigen vollzieht sich die Tätigkeit und Entwicklung der M i l i tärorganisation weitgehend außerhalb der völkerrechtlichen Strukturen des Warschauer Paktes. Vieles w i r d hier bilateral vereinbart, vieles überhaupt auf der Ebene der multilateralen Zusammenarbeit der Armeen und der Verteidigungsminister der Pakt-Staaten. A u f beiden Ebenen — der der völkerrechtlichen Strukturen des Warschauer Paktes und der der unmittelbaren M i l i t ä r organisation — gibt es Aktivitäten, die im Rahmen des Vertrages des Warschauer Paktes bzw. des allgemein geltenden Völkerrechts liegen. A u f beiden Ebenen gab und gibt es aber audi Handlungen, die mit dem Vertrag über die Gründung des Warschauer Paktes oder mit den zwingenden universellen Grundsätzen des geltenden Völkerrechts kollidieren. Hieraus lassen sich vor allem zwei Folgerungen ableiten: Erstens: Es gibt allen Grund, die andauernden Völkerrechtsverletzungen nicht nur in Afghanistan oder anderswo, sondern auch die innerhalb des Warschauer Paktes immer wieder an die Öffentlichkeit zu bringen, um so dahin zu wirken, auch in dieser Region die Lage wieder in Einklang mit den zwingenden Völkerrechtsnormen zu bringen. Zweitens: Die bei Gelegenheit der Verlängerung des Warschauer Paktes erneut von seinen Mitgliedsstaaten betonte „Tauschfunktion" des Warschauer Paktes gegenüber der N A T O muß realistischerweise vor dem Hintergrund gesehen werden, daß eine Auflösung des Warschauer Paktes allein an der Existenz der internationalen Militärorganisation dieser Länder selbst nichts — oder fast nichts — ändern würde. Was wegfiele, wäre allein die im Vertrag enthaltene völkerrechtliche Struktur.

Summary The 1955 treaty creating the Warsaw Pact was extended in Warsaw on A p r i l 26th 1985 in the form of a simple prolongation for another 30 years. By extending the treaty in this manner the conditions set down in 1955 and the principles upon which i t was based were continued and made legally binding. I n terms of international law this means above all that statements made at the time the treaty was signed and up to the present w i l l remain in full force in the future. This is especially true of the character of the military alliance under international law, the statements on the German Question and the unilateral statement made by the government of the USSR on October 30th 1956 regarding its relations to other socialist states. The extension of the treaty raises anew the question of the relation of the structure of the Warsaw Pact

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under international law to the realities of the power politics in the region. The author comes to the conclusion that a fundamental distinction must be made between the legal structure binding the nations of the Warsaw Pact and the organizational and functional realities existing in the member states' military organizations. I n both areas there are activities lying w i t h i n the terms of the treaty or the universally valued principles of international law, but also dealings which conflict w i t h those same compelling principles of international law.

NOTE

AND

COMMENT

International Standards for Automotive Arbitration by Roger D . Billings, Jr. Disputes between automobile owners and the businesses which sell and repair automobiles are among the most numerous in all of commercial law, yet they are often neglected by the legal profession as being unworthy of attention. Many lawyers do not handle this k i n d of automobile case because the client must pay too much for the lawyer's services in relation to the value of the automobile. I n most cases the amount of money in dispute is only a few hundred dollars, and represents the cost of repairs to the automobile. Occasionally, when the buyer asks for the remedy of revocation of acceptance (Wandelung) the amount is the purchase price. O n the surface these cases do not seem important, but neglecting them results in hundreds of thousands of owners going without remedy, and while each individual case is small, the total amount of money in controversy is enormous. General Motors , which sells about half of all the new automobiles in the United States, handles over 100,000 complaints each year through its GM-Better Business Bureau arbitration program. Ford and Chrysler handle thousands more through their own arbitration programs. Most complaints involve defects in the automobile that were not corrected after several repair attempts. I n the Federal Republic of Germany arbitration panels {Schiedsstelle) of the Kraftfahrzeug(Kfz) Handwerk (an automobile garage trade association) handle about ten thousand complaints. The majority of these involve overcharging, followed by incomplete or unworkmanlike repairs, and lastly, unnecessary repairs. Perhaps fewer than ten percent of complaints cannot be mediated and require an arbitration hearing. Arbitration panels for automobile disputes started experimentally in the 1970's and finally came into widespread use in the 1980's. I t is worthwhile to compare the highly developed systems in the United States and Germany to see whether they should be continued and promoted in other countries. First, the similarities of the systems w i l l be examined. Next, examples of how the two systems operate w i l l be presented w i t h attention to the differences between

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the two. Finally, weaknesses w i l l be identified and recommendations made for incorporating the best of both systems. The two arbitration systems that w i l l be used for this study and comparison are the GM-Better Business Bureau (GM-BBB) and the Kfz-Handwerk. I n the United States GM-BBB handles complaints against the manufacturer, bypassing the dealer. N o arbitration system exists for complaints against repair garages, although California offers government assistance to customers of repair garages who have been defrauded. I n contrast, Kfz-Handwerk arbitrates complaints against repair garages and, while a lesser developed system exists for used car buyers, Germany has no arbitration program for buyers of new cars. Nevertheless, the arbitration programs in the U.S.A. and Germany are sufficiently similar in purpose to allow comparison. The U.S.A. and German systems share many characteristics. Both are designed to provide a way for the automobile owner to w i n a monetary award without having to hire a lawyer. Lawyers are permitted in the arbitration hearings, but are not necessary, and when they do appear, courtroom rules of procedure are not followed. Mostly they offer their clients advice during the hearing. The systems are independently financed by General Motors and Kfz-Handwerk , and they are not required to exist by law. Although the industries voluntarily agree to abide by decisions of their arbitration panels, in both countries incentives exist for them to keep their agreements. I n the U.S.A. the Magnuson-Moss Warranty A c t 1 provides the incentive that i f manufactures set up impartial arbitration panels, they may require automobile owners to submit their disputes to the panels before they bring suit under the act in a court of law. I n Germany, repair garages must abide by the decisions of arbitration panels or lose their recognition for excellence as a Meisterbetrieb der Kfz Innung (master garage of the trade organization). The automobile owner is not similarly required to abide by the arbitration decision and may proceed to file a complaint in court. However, courts in both countries may consider the arbitration decision in arriving at their own decisions. I n an extraordinary case a German court in Erlangen ruled that the decision of the arbitration panel was binding on the parties. 2 A motorist on vacation from the N o r t h suffered a breakdown of his car on the Autobahn while on vacation in Bavaria. The car was towed to the nearest garage for repairs but when the owner picked it up, he saw that the repairs were extremely poor. H e decided to pay the 4,000 D M bill under protest because he needed the car for ι 15 United States Code (U.S.C.) §§ 2301—2312 (1975). Amtsgericht Erlangen, Urteil vom 10. 6. 75 — I C 40/75, confirmed by the Landgericht Nürnberg-Fürth, decision of 30.1.1976, reprinted in: Neue Juristische Wochenschrift (NJW) 29 (1976), 972. 2

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the journey bade home, but as soon as he arrived he called the appropriate arbitration panel for Erlangen. I n the subsequent oral hearing the panel, w i t h an expert's opinion (Gutachten) at its disposal and in the absence of the garage owner, awarded the owner 2,508.32 D M which included the owner's costs for the opinion and travel expenses from N o r t h Germany to attend the hearing in Bavaria. I t should be noted that the panel did not require the presence of the owner and was prepared to base its decision on the expert's opinion. After the decision the garage made no payment to the car owner, so the owner filed a complaint in court. I n ruling that the panel's decision must be followed the court relied on the principle that the garage and the owner had entered into a contract for the panel to render an opinion. The garage agreed to the contract by being a member of the trade association which sponsored the panel. Rule 10.2 of the procedures adopted by the panel (Verfahrensordnung) provided that the panel's decision did not preclude use of the courts, but that the panel's findings of fact were binding on the parties. The same provision has been incorporated in the latest revision of the rules 3 but no further cases testing their effect have been discovered. The GM-BBB Rules of Arbitration provide that the arbitration decision, but not necessarily the facts supporting the decision, is admissible in evidence. Thus, in the U.S.A. the manufacturer may introduce the decision in court after the car owner, dissatisfied w i t h the panel's decision, files a legal complaint. N o cases have been found in the U.S.A. where the court upheld an automobile arbitration decision in favor of the owner, as in Erlangen, nor have cases been reported where the manufacturer tried to use the decision as evidence against the owner in a trial de novo. I n Germany and the U.S.A. the danger exists that an arbitration panel w i l l lean toward the industry rather than the automobile owner because the systems are sponsored and financed by the industries involved. As a practical matter care is taken to provide for neutral panels and in the U.S.A. the Magnuson-Moss Warranty Act suggests that they must be neutral. 4 The GM-BBB system uses a single arbitrator chosen from the community w i t h no ties to General Motors . I n fact GM and the car owner choose from a list of five possible arbitrators and the highest choice common to both becomes the arbitrator. Arbitrators are volunteers, receive no payment for handling an arbitration hearing, and usually have no training in automobile mechanics. 3 Rule 7. 3., 1982 model rules. 4 "No member deciding a dispute shall be . . . an employee or agent of a party other than for purposes of deciding disputes." 16 Code of Federal Regulations (C.F.R.) § 703.4 (a) (1) (1977).

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I n Germany the arbitration panel has five members. The chairman is a lawyer named by the local chamber {Kammer) of the repair garage trade association (Kfz-Innung ). The rest represent the Allgemeiner Deutscher Automobil-Club (AD AC y the German Automobile Club), Technischer Überwachungsverein (777V), a technical supervision association which carries out periodic automobile inspections mandated by law for all automobiles, Deutscher Automobil Treuhand {DAT), an organization which provides expert information on automobiles, and finally, the Kfz-Innung. I t is immediately apparent that the skills of the technically expert German panel overwhelm the GM-BBB panel, which consists only of one member who might be a lawyer, a baker, or a housewife. Observations on this difference w i l l follow later in the article; for now i t is enough to observe that both panels are neutral. A few other similarities may be observed. Both systems require the car owner to request arbitration in writing, briefly explaining the problem. The Arbitration case cannot be opened w i t h just a telephone call. The decision of the panel must also be in writing, and contain reasons for the decision. Beyond this, little similarity to judicial process is found. O n l y about ten percent of the complaints received on both sides of the Atlantic actually go before an arbitration panel. Most problems are solved when administrators of the arbitration system try to get the parties to reach a compromise. Here in this mediation process is also found a weakness of the systems. The administrators receive their salaries from the very industry that is accused of wrongdoing. They have been accused of being too forceful in asking the car owner to accept a compromise before scheduling an arbitration hearing. To assure fairness, rules were devloped for the conduct of hearings. The German rules 5 were revised most recently in 1982 under sponsorship of the A D A C and, particularly, Siegfried Mehnle of that organization. The rules for GM-BBB arbitration are essentially those of the American Arbitration Association , a nonprofit organization known primarily for its administration of arbitrations in labor disputes. These rules are administered by Better Business Bureaus located in every large city of the United States under contract w i t h General Motors Corporation , American Motors Corporation (AMC) and practically all import car companies except Mercedes , which alone in the United States provides no arbitration for customers' complaints. These local Better Business Bureaus are independent and financially supported by almost all reputable businesses in the community, and their automobile arbitration program is supervised by a national office in Arlington, Virginia. 5

Muster-, Geschäfts- und Verfahrensordnung der Schiedsstellen des Kraftfahrzeughandwerks, gemeinsam empfohlen vom Allgemeinen Deutschen Automobil-Club e. V. (ADAC) und dem Zentralverband des Kfz-Handwerks (ZVK).

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The rules of GM-BBB and Kfz-Handwerk answer questions such as, how soon must there be a hearing and decision after the owner initiates the process w i t h a proper writing (about two months), how are arbitrators selected, how must the hearing be conducted (informally), and what content must the written decision have. A typical German repair case was described in a publicly-distributed pamphlet of the Federal government.® Mathias Rieger and his family, returning from vacation, were i n the passing lane of the Autobahn when they were startled by a terrible banging noise. The steering wheel shook, the car suddenly slowed, and they coasted to a stop on the shoulter {Standspur). Soon the road patrol of the ADAC (ADAC-Straßenwacht) pulled up behind them and advised that the car would have to be towed to a garage. The master mechanic {Meister) promised to install a new motor in five or six hours. When the car was ready the family was surprised w i t h a b i l l for 4,730 Deutsche Mark ( D M ) . Herr Rieger said that repairs should have cost at most 2,000—3,000 D M , but both the master mechanic and garage owner had gone home, so he paid the bill rather than wait until the next day to discuss the problem w i t h them. The next day at home Herr Rieger drove to the garage where he was a regular customer and asked for advice. The head mechanic was sure that the motor installed was reconditioned rather than new, and advised Herr Rieger that he was lucky the other garage was a Meisterbetrieb des Kraftfahrzeughandwerks (Member of the trade organization) and, as such, was required to participate in arbitration. The head mechanic offered to describe the condition of the motor in writing. Herr Rieger then attached this w r i t i n g to his own written complaint and sent them to the Schiedsstelle (arbitration panel) nearest to the garage that had installed the reconditioned motor. The Schiedsstelle replied that an oral hearing was scheduled and that i t would be good i f Herr Rieger could attend. The travel costs could not be reimbursed but the hearing would otherwise be free of cost. Sitting across from Herr Rieger at the hearing was the owner of the garage. The leader of the arbitration panel advised the garage owner that the 4,730 D M was appropriate for a factory-new motor but under no circumstances could that amount be charged for a reconditioned trade-in motor. H e proposed that Herr Rieger and the garage owner settle for a price of 3,000 D M . After some discussion back and forth the garage owner gave i n and agreed to refund the difference between 4,730 D M and 3,000 D M . 6 Der zu teure Austauschmotor, in: Schlichten ist besser als richten. Beratung und Sdilichtung in Streitfällen, Presse- und Informationsamt der Bundesregierung (ed.), Bonn 1983, 45—46.

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This simplified case illustrates some strengths and weaknesses in the German system. Apparently no law required the repair garage to give an estimate to customers before commencing repairs. I f such a law had been in effect violation of it might have resulted in denial of payment to the garage as courts in California have ruled. 7 I n California the Bureau of Automotive Repair can revoke the garage's license to do business for repeated failure to give estimates. N e w Y o r k has a similar system. Many other states have laws requiring that repair estimates be given automatically or at least upon request, and that repairs not exceed the estimate by more than ten percent, and all states have consumer protection laws. Common violations of consumer protection laws are installing used or rebuilt parts, and making repairs that are not necessary. 8 I f Germany does not have a complex system of laws aimed specifically at automobile repair practices, perhaps it is because the training of mechanics is so highly regulated. The trade organization {Kfz-Innung) administers a legallyauthorized apprentice system. To become a mechanic an apprentice must serve three years, working in a garage and attending school. The schools are excellent and are operated by the same trade organization which administers the arbitration system, the Kfz-Innung . A mechanic may study three years further to earn the title of Meister (master mechanic). Every repair garage is required by law to employ a Meister and therefore, reasonably good mechanical repair work is taken for granted in Germany. I n the United States licensing of automotive mechanics exists only in Michigan and H a w a i i and, thus, in most states almost anybody can pick up a wrench and t r y to be a mechanic. A nonprofit organization called the Institute for Automotive Service Excellence in Washington, D . C., administers sixteen examinations for various automotive skills, but i t requires only t w o years of "hands-on" experience in a garage for certification. The shortage of trained mechanics remains a serious problem and gives rise, in all probability, to a greater percentage of improper repairs than in Germany. The National Automobile Dealers Association has an arbitration system called AUTOCap which can be used for repair complaints, but its panels are composed of fifty percent industry representatives. Furthermore, the panels decide on the basis of written representations without oral presentations by the car owner. O n l y new car dealers are members of AUTOCap and thus the thousands of independent repair shops offer no arbitration system. The most heavily-used arbitration system in the U.S.A. is the GM-BBB system which was set up by General Motors to handle new car warranty 7 Bennett v. Hayes (1975) 125 West's California Reporter (Cal. Rptr.) 825; Schreiber v. Kelsey (1976) 133 Cal. Rptr. 508. 8 See Roger D. Billings , Handling Automobile Warranty and Repossession Cases, Rochester, New York 1984, Chapter 10.

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problems and certain post-warranty complaints. American car owners have long been dissatisfied w i t h so-called "lemon automobiles," that is, cars which have been repaired over and over and seem to be sour so as to earn the title, "lemon." Yet until the GM-BBB arbitration system no inexpensive system existed for owners of "lemons" to get their money back. The legal system was too expensive and court hearings sometimes were delayed for years after owners filed complaints. To get his money back an owner filed a complaint for "revocation of acceptance," 0 similar to the German remedy of "Wandelung, ." The revocation case was fiercely opposed by dealers and manufacturers, sometimes driving court costs almost as high as the value of the car. Legal fees in the United States are not scheduled and predictable as in Germany. A n automobile owner using the GM-BBB system w i l l ask for a "buy-back" (return of the price) i f the difficulties arose during the warranty period; i f the warranty has expired he asks for costs of repair. A n example of a repair arbitration taken from a General Motors brochure is as follows: The owner was driving home from work on the freeway when the engine in his two-year old car made a loud grinding noise and died as he got in on the shoulder. A t the dealer's garage he was informed that he needed a new crankshaft and that the cost would be $ 1,500. When he told the service representative he could not understand w h y a car just beyond the warranty period should experience a major breakdown, the representative advised h i m to ask General Motors for help. The General Motors factory representative said that i t had no legal obligation to help the owner because the warranty expired 5,000 miles before the breakdown, but in the interest of good-will General Motors would pay for parts i f the owner would pay for labor. The owner refused the offer because he felt General Motors should pay all costs, and asked for GM-BBB arbitration. A t the arbitration hearing before a single arbitrator the owner presented receipts showing he had changed the oil at regular intervals. H e showed the arbitrator the old bearing and crankshaft, and could not explain w h y they showed a lack of lubrication. The factory representative said the breakdown was unusual but the type of oil used or how the automobile is operated can contribute to a failure of this type. The decision was then left to the arbitrator who had authority to make an award for cars up to five years old. The brochure did not say what award was given i n this case, but i t should be observed that General Motors had already offered to share costs and that even in "buy-back" cases General Motors tries to settle the case w i t h a money offer rather than go to arbitration. GM-BBB arbitrators often rule that General Motors' offer prior to arbitration is fair enough. 9

See Uniform Commercial Code, section 2—608.

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I n the final analysis, perhaps the most important factor in arbitration is the opportunity for the owner to speak to someone about his frustration. Although arbitrations in the U.S.A and Germany are private, the author was privileged to observe them in Cincinnati, Ohio, and Munich, Bavaria, w i t h permission of the parties. I n a Cincinnati arbitration the owner of a new pickup truck asked for a "buy-back" because the noise in the truck cab was so loud he could not carry on a conversation. The arbitrator took a drive in the truck, and ruled that this noise level was normal for trucks. Accordingly, he denied the buy-back. I n a Munich case, the car and garage owners, sitting side-by-side before the five members of the arbitration panel {Schiedskommission des Kfz-Handwerks München-Oberbayern ), argued vehemently about a 100 D M repair problem. Finally the panel convinced the garage owner to give in. H e pulled a 100 D M note from his wallet, gave i t to the car owner, signed the papers and left. As in the Cincinnati case the money in dispute was not as important as the opportunity to be heard. I n a more serious case the panel found the garage had overcharged on a cylinder head and valve job and ordered a refund of 1,031.72 D M . German arbitration is characterized by the availability of experts before and during the hearing. The car owner can hire an independent mechanic approved by an organization such as DAT, but hiring such an expert can be too expensive unless the amount of money in controversy is rather high. Lacking an expert opinion {Gutachten) written prior to the hearing, the panel itself is composed of several experts who can scrutinize receipts and ask the right questions of both car and garage owners. I n GM-BBB arbitration the single arbitrator is chosen anew by the parties for each arbitration and probably has no expertise in automotive mechanics. The Better Business Bureau w i l l arrange for an independent mechanic's inspection of the car i f i t is requested by the car owner, but an organized system of expert automobile mechanics ready to give opinions for a fee does not exist in the U.S.A. as in Germany. I n most cases, U.S.A. arbitrators use common sense and make surprisingly fair decisions based on arguments of the parties at the hearing. I n comparison the German panel seems overwhelming in its judicial and mechanical experience. The solitary U.S.A. arbitrator, chosen anew for each arbitration, could be influenced by the highly experienced General Motors representative who attends arbitration hearings regularly. Such influence is impossible in German repair arbitration because the repair garage is usually different for each while the U.S.A. panel stays the same. The systems in both countries are working well but w i l l be subject to criticism no matter what they do i f only because the hearings are con-

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ducted privately, without formal procedures, and are sponsored by the very industries that are the subjects of complaint. Probably the U.S.A. arbitrator is undertrained and makes too little use of experts. The German panel, on the other hand, is overstaffed. The same job could be accomplished w i t h one or at most three panelists, and there is no need for a jurist to be head of the panel. A lesson that has emerged from the astonishing informality of the GM-BBB system is that non-jurists can make fair decisions even in the absence of procedural rules. The strength of the German system is that it offers enviable expert opinions when needed. Germany and the United States are not the only countries w i t h highlydeveloped arbitration systems. Great Britain and Sweden have systems that can be interesting for comparison. I n Great Britain a national government agency, the Office of Fair Trading, helped the motor industry develop a Code of Practice. Dealers and manufacturers who agree to follow this Code (Code traders) offer car owners arbitration of complaints through the Chartered Institute of Arbitration. Code traders must agree to go to arbitration unless the trade association considers this would be unreasonable. As in the U.S.A. and Germany, the trade association's staff w i l l do all i t can to settle the dispute before arbitration. The Chartered Institute of Arbitrators 10 asks each party to pay a registration fee which is refunded to the successful party. The President of the Institute appoints a single arbitrator who w i l l base his decision on the written complaint of the car owner, the documentary evidence in the trade association's possession relevant to the case, and any further evidence he asks the parties to produce. Normally none of the parties to the dispute may appear, nor may they be represented by any other person. The arbitrator publishes the award to the parties and to the trade association and it is enforceable in the courts by any party. Sweden, of the four countries considered, is the only one w i t h an arbitration system financed by the government. The Consumer Complaints Board was initiated in 1968 and by 1975 had competence to resolve all disputes between merchants and consumers concerning goods and services. 11 The department for automobiles held meetings in the Stockholm area once a month, and considered cases that the Board staff could not resolve by mediation. The members of the department deciding cases were equally divided between consumers and representatives of a trade organization such as the Association of Motor 10 75 Cannon Street, London EC4N 5BH. Jan Hellner , The Consumer's Access to Justice in Sweden, in: Rabeis Zeitschrift für ausländisches und internationales Privatrecht 40 (1976), 727—-749 (733—734). 11

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Dealers . Their proceedings have the same disadvantage as most of those in Great Britain: they are based purely on written submissions. Evaluation of all these systems produces some principles which can be recommended for new systems in other countries. Above all, the automobile owner must be given an opportunity to be heard. Written complaints may be required to initiate arbitration, but it should be recognized that expressing the problem in writing is a barrier to many persons without a lawyer. Therefore, the system's staff should be willing to assist in the writing of the complaint, even to the point of receiving the complaint by telephone, writing i t in the proper form, and mailing it to the automobile owner for approval. The staff's function to mediate a dispute should cease immediately when an automobile owner says he w i l l not accept any further offer from the manufacturer, dealer, or garage. However, the staff should urge the owner to seek a settlement from the dealer or manufacturer i f the owner has so far made no attempt to settle. Ideally, arbitrators should have no connection w i t h the trade association, manufacturer, dealer, garage, or automobile owner. A single arbitrator is sufficient. Jurists are not desirable for an arbitration panel because their training in procedural niceties could get in the way of the informality of the hearing. Automotive experts are not absolutely required on panels because their expertise is often much more than is needed for resolution of a dispute. Their time is sometimes wasted and the hearing is costly w i t h such expert talent sitting in judgment of relatively minor cases. However, the staff should have available a list of independent mechanics who may inspect the automobile upon request. The fee charged the owner for an expert should be subsidized by the trade organization and the hearing should be free. Decisions of the arbitrator should not only be admissible in court, they should be enforceable by the court. Arbitration of automotive disputes relieves consumer frustration and ultimately helps trade organizations expand their customer base. I t works well in Germany and the U.S.A. and w i l l grow in importance elsewhere i f the systems are designed to operate simply and inexpensively.

The Legal Limits of the Director - General s Discretionary Authority to Renew or not to Renew Fixed Term and Temporary Appointments. A Review of the Cases Decided by the Administrative Tribunal of the ILO by Angela Rapp The staff rule 104.6 (a) and (b) of the United Nations Educational, Scientific and Cultural Organization ( U N E S C O ) 1 concerning fixed term appointments provides that a fixed term appointment ends automatically on a date specified in the Letter of Appointment and that i t is w i t h i n the discretionary power of the Director-General to renew or not to renew this appointment. Construed literally, this rule means that all that is needed for such a contract to come to an end is that the period of the contract should expire. But this does not mean, in the light of certain decisions of the Administrative Tribunal of the International Labour Organization (hereinafter: Tribunal), that an organization is wholly free to decide not renew the contract. The decision not to renew a fixed term contract is subject to review w i t h i n the limits of case law, which means that the Tribunal w i l l set i t aside " i f i t was taken without authority or in breach of a rule of form or of procedure or i f i t was based on a mistake of fact or of law, or i f essential facts were overlooked or i f there was abuse of authority or i f clearly mistaken conclusions were drawn from the facts" (This formula is cited as a general rule for the scope of review, see for example judgements N o 337, 343, 354, 448, 675 etc.). This scope of review can be devided into two parts. Firstly, some aspects of procedure are to be mentioned and secondly, the material facts which lead to the decision of the Director-General are to be considered. 1

The staff rules mentioned in this articles are those of the UNESCO, published in: Chiltarajan F. Amerasinghe , Staff Regulations and Staff Rules of Selected International Organizations, vol. I I (Office of the Executive Secretary World Bank Administrative Tribunal), Washington 1983, 1—78. The analysis presented in this paper refers to the discretionary authority of the Director-General of the UNESCO as an example, but the results are generally applicable to other specialized organizations.

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I. Procedure 1. I n this context, it is considered the procedural right of each staff member to obtain a hearing, especially the personal report to be prepared under staff rule 104.11 (a) on staff members and the provided opportunity to discuss the draft of the report (rule 104.11 [a] ) are regarded as part of this right. Where such a report has not been prepared and the Tribunal is of the opinion that the report could have had influenced the decision of the Director-General, this was considered as an essential procedural flaw and, therefore, the decision concerned was set aside.2 2. As opposed to the literal reading of the staff rule, according to which a contract automatically expires without a special announcement by the DirectorGeneral, the Tribunal held "that staff members in view of the practice would have come to rely on receiving reasonable notice as part of their contractual rights" 3 . Thus practice appears to have modified the staff rules which do not oblige the organizations to give advance notice of their intention not to renew a fixed term contract. The non-observance of this duty is a proper subject of inquiry by the Tribunal. I n the cited judgement, the Tribunal held that the complainant should be awarded compensation for the non-observance of the established rule, whereby the staff should get at least one to t w o months notice that the contract w i l l not be renewed. However, such a procedural flaw w i l l not affect the basic decision not to renew the contract. This was still regarded as valid (see the above cited judgement). II. The Decision not to Renew a Contract The question arising in this context is whether it is necessary to give reasons for the decision of non-renewal of a contract — and, i f no reasons are given, how the Tribunal w i l l review the decision of the Director-General. Staff rule 104.6 (a) does not expressly require any reason to be given for the non-extension of a contract. Nevertheless, the Tribunal reviews every decision impugned in the light of the above-stated formula. H o w this formula is applied w i l l be shown below. As for the scope of review of the Tribunal a distinction can be drawn between earlier cases and subsequent judgements. 1. Earlier Judgements a) General Considerations The earlier judgements of the Tribunal show that the power of review was exercised very restrictively. I t was not considered to be obligatory to give 2

Judgement No 448 Trancoso v. PAHO, 1981.

3 Judgement N o 577 Sadeghian v. I L O , 1983.

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any specific reasons w h y a contract was not renewed. As stated in Judgement N o 448 4 , the Tribunal w i l l " i f no reason is given, exercise the power of review which i t assumes in such cases only in the light of the grounds either given [voluntarily] for the decision and i f those grounds are not clear from the actual decision w i l l seek to determine them from the other written evidence". But it is upon the complainant to give serious proof of his allegations, for example, that the discretionary power was abused. Such pleas succeeded only in few cases. One of them was Judgement N o 268 5 , where the report of the supervisor on which the Director General relied when deciding on non-renewal was clearly carried out in a partial and unfair manner. Another decision of this type is Judgement N o 541 e , where the Director-General relied on an obviously unfounded statement of the Chief Medical Officer as a reason not to extend the contract. N o t the reasons given, but the circumstances which lead to the non-renewal were examined in the following cases: I n N o 359 7 , the conduct of the organization gave evidence that the main purpose of non-renewal was "to get rid of the staff member". Before not extending his contract, the organization transferred the employee in question several times without finding any suitable job so that in the end he occupied a post without even an evaluation. This conduct was held to be an abuse of authority. Further, in N o 354 8 the Tribunal took into consideration that an abuse of authority might be considered established when a non-renewal appears to be a covert disciplinary sanction. But it held lawful to take into consideration for a renewal of a contract that the staff member has been the subject of disciplinary sanctions during his career. Thus, in this case, where the DirectorGeneral had taken account of all factors, whether favourable or adverse for the complainant, the claim was dismissed. The Tribunal w i l l interfere only, i f it is obvious from the facts, or from the conclusions drawn from them, that the decision was clearly false. " I t may neither pass judgement on a policy which falls w i t h i n the sole competence of the organization authorities nor review actions taken in pursuance of that policy" 9 . I t was regarded as a legitimate goal of such a policy not to renew a contract for the purpose of making savings where it seemed that the organi4

s β 7 » •

See note 1 above. Bâ. v. WHO, 1976. Florio v. FAO, 1982. Djoehana v. UNESCO, 1978. Shalev v. UNESCO, 1978. Judgement No 351, Pibouleau v. WHO, 1978.

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zation might have financial difficulties (in this case due to irregularities in the payment of contributions). 10 But even i f no such reasoning is given, as long as no essential facts are overlooked, the Tribunal did not set its discretion at the place of the Director-General's discretionary authority. Further, a fixed term contract does not bear any implication as to its extension; even oral promises give no rights to a staff member to get his contract extended. 11 Also, there exists no duty for the Director-General to renew a staff member's contract, merely because that staff member has served for a long time 1 2 , even i f he has committed no acts of misconduct during his career. 13 b) Certain Pleas which Can Set Limitations on the Director-General's Discretionary Authority The Tribunal w i l l apply lesser standards of review when the complainant has had a series of appointments lasting over a couple of years, as this may constitute the duty for the Director-General to consider — but not neccessarily to find — other possibilities for employment of that staff member w i t h i n the organization. 14 Further, under very specific circumstances the discretion of the DirectorGeneral can be restricted even i f his decision is not clearly wrongful. This is the case when the Tribunal, in weighing the interests of the organization w i t h the interests of the complainant, comes to the result that the interests of the latter are seriously endangered without being justified by the need to safeguard any interests of the organization. £. g., a decision of non-extension was quashed in a case where the complainant, holding a fixed term contract which had been renewed several times had to continue working for only a couple of days more in order to be entitled to benefits from a Pension Fund. 1 5 But, as this has been the only case decided in this manner, this decision should not impugn the general rule according to which the Tribunal interferes as restrictively as possible. O n the other hand, the Tribunal w i l l apply a stricter standard of review i f personal prejudices are claimed. I n these cases, the complainant need not prove that the non-extension was clearly wrongful. I t is sufficient here that "there is enough evidence w i t h i n the case that is being judged to create a suspicion that prejudice is at w o r k " , as, e. g., in a case where "because of serious differences 10 u 12 13 14 is

Judgement No 229, Hrdina v. ILO, 1974. Judgement No 190, Waliullah v. UNESCO, 1972. Judgement No 358, Laudi v. INPS, 1978. Judgement No 516, Nieto Alvarez-Uria v. UNESCO, 1982. See staff rule No 44, Judgement No 415, Halliwell v. OMS, 1980. Judgement No 245, Meyer v. IAEA, 1974.

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between Director-General and Staff-Association i t is likely that the organization follows a policy of penalizing staff members because of their activities in the Staff-Association. 16 I n such a case, the duty lies upon the organization to prove that the decision in doubt was reasonable. O n the other hand, the complainant has to show only that there is a reasonable suspicion that a bias against him was a factor in the decision. This was, for example, held in a case where it appeared from the facts that the complainant's active membership in the Staff-Association displeased the Director-General and that this could have been a reason not to extend the contract. 17 To sum up, apart from the three exceptions described above, the earlier judgements of the Tribunal were very restrictive in interfering w i t h the discretion of the Director-General. The Tribunal declined to burden the Director-General w i t h a duty to give ample reasons for a decision not to extend a contract. 2. Subsequent Judgements Judgements delivered since 1983 allow the conclusion that the Tribunal w i l l now review a decision not to renew a contract more closely. More particularly, i t can be drawn from the judgements, that the Tribunal requires the organization to give a reason for non-renewal. This reason cannot be a general one — like budgetary considerations — but must have reference to the specific case. The first precedent dates from 1983. The contract of the complainant was not extended. Instead of giving reasons for it, the organization relied on the principle that the staff rules do not require the review of a contract at any particular date nor that there need to be a fault on the staff-member's part for his contract not to be renewed. The Tribunal explicitly stated: . . . The organization is disregarding the restrictions on the Director-General's authority. I t believes that the Director-General need provide no justification for not extending a fixed term appointment. N o t only did it fail to inform the complainant, at least in writing, of the reasons for the decision, but it has said nothing whatever about them in the course of the present proceedings. I n short, by this it acts as if the Director-General were free from any review of the exercise of his authority. I t is not so . . .

The decision of the Director-General was quashed as tainted w i t h a mistake of law. 1 8 The same wording was applied in the following holding: "The organization may not get rid of a staff member as it pleases, and without stating reasons, 16 Judgement No 495, Olivarez-Silva v. PAHO, 1982. 17 Judgement No 427, Dricancro v. PAHO, 1980. is Judgement No 544, Bordeaux v. CERN, 1983.

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when the period of appointment expires" 1Θ . I n this case, however, the organization could show that the contract was not renewed because the performance report was not satisfactory, so the claim was dismissed. The last case, dated June 1985, where the Tribunal dealt w i t h this matter, shows that the above-cited holdings did not remain exceptions, but gave a general line as to how to review discretionary decisions of non-renewal. The organization told the complainant that it, firstly, did not see fit to agree to an extension of his appointment and, secondly, that no explanation could be given as to the motives leading the Director-General to his decision, save that it was neither due to unsatisfactory services, nor to cancellation of the post. I t was held by the Tribunal that the failure to give a reason will in many cases lead to the conclusion either that the Director-General mistakenly thought that he held an arbitrary power to do as he liked or that his decision was in fact arbitrary or wrongly motivated. I t is not just that the contract expires, the Director-General has to take a decision to that effect. Moreover, in the conditions in which the organization carries on its work there arises an expectation that normally a contract will be renewed. A n expectation to make a career in the service is only practical and necessary for the functioning of the organization. This principle places upon the organization the obligation to consider whether or not it is in the interest of the organization that expectation should be fulfilled and make a decision accordingly . . . Such decision is discretionary. But there must be a good reason for it and the reason must be given. 20

I n this case i t was suggested that even if the behaviour of the organization was completely lawful and the irregularities — such as informing the complainant at almost the last moment — might have been caused simply by bureaucratic rigidity — for no further explanations were given, the pure silence gave evidence that the decision of the Director-General was an abuse of authority. To sum up: whereas the earlier judgements show that the Tribunal interfered only when the complainant clearly proved a flaw under case law, i t is now considered the obligation of the organization to explain w h y the decision was taken, which means giving good reasons for it. As sufficient cause for example, i t was regarded that the complainant, whose contract expired, had been considered for several alternative posts, which could not be given to him either because the necessary consent of a government did not exist or because he was not qualified for it. "As long as the Director-General gave ι» Judgement No 592, Byrne-Sulton v. ITU, 1983. 20 Judgement No 675, Perez del Castillo v. FAO, 1985.

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reasons each time and the reasons are legitimate and the decision was in the organization's interest 21 , there is no proof of malice" 2 2 . Further there have been cases in which the organization gave budgetary difficulties reasoning to abolish a post before the expiration of the contract. One of them is to be considered now 2 3 . O f course, there are different requirements for abolishing a post and a non-renewal. Whereas an unjustified nonrenewal only breaches expectations, an unjustified abolishing of a contract means a breach of contract. Therefore, the Tribunal reviews a decision to abolish a post more strictly. But the rules underlying the review are the same, namely whether the procedure was fulfilled to determine which contract is abolished or not extended, respectively whether the reason given for this decision was in fact a device to end the time of employment for unjustifiable reasons. The Tribunal did not question the basic decision of an organization to reduce posts because of budgetary considerations, for this is held not to be the function of the Tribunal. I t is only competent to hear complaints alleging non-observance — in substance or in form — of staff rules. Nevertheless^ this implies that it reviews, firstly, the procedure under which the decision to abolish a post is readied and, secondly, whether the reduction of posts is merely a device to effect an unjustifiable removal. I n the case cited above the Tribunal could not consider whether prejudices had been at work in reaching the decision in question; neither the complainant had raised this issue nor showed the organization's conduct any other legal flaws. Unsuccessful attempts had been made to find another suitable vacancy. To conclude, the Tribunal w i l l overturn a non-renewal i f i t appears from the facts that the discretionary power has been used to back what is in fact an arbitrary decision. A short remark is in order concerning the compensation to be paid i f a decision of non-renewal was quashed. As held in the earlier judgements, reinstatement could be a form of relief, which the Tribunal could award 2 4 , but generally a reinstatement is not considered as desirable either because there is no vacant post by the time the judgement is delivered 25 , or because the mutual trust between complainant and organization has disminished to a point where it is unlikely that the complainant can again be usefully employed 26 — as is mostly the case. 21 The Tribunal in considering the kind of interest the organization might have does not rely only on the organization's policy. 22 Judgement No 607, Verron v. UNESCO, 1984. 2 3 Judgement No 581, Gaydar v. PAHO (CEPANZO), 1983. 24 See note 6 above. 25 See note 7 above. 26 See note 1 above.

REPORTS

Die Tätigkeit des Nordischen Rates im Jahre 1984 von W u l f Hermann Die 32. ordentliche Jahrestagung des Nordischen Rates fand vom 27. Februar bis 2. März 1984 in Stockholm statt. 1 Zum ersten M a l tagte der Rat i m traditionsreichen, in mehrjähriger Bauzeit völlig umgestalteten schwedischen Reichstagsgebäude, und zum ersten M a l bestand die Vollversammlung aus 87 gegenüber früher 78 Mitgliedern. Die Erweiterung der Anzahl der gewählten Ratsmitglieder beruhte auf der im Vorjahr beschlossenen Änderung des HelsinkiAbkommens, nach der unter anderem die teilautonomen Inselreiche der Färöer, Grönlands und Alands nunmehr mit je zwei gewählten Mitgliedern im Rat vertreten sind. 2 Die Vollversammlung behandelte auf ihrer 32. Jahrestagung 30 Mitgliedervorschläge (Α-Sachen) und sieben Ministerrats Vorschläge (B-Sachen). Alle Ministerratsvorschläge führten zu Empfehlungen an den Nordischen Ministerrat; dagegen blieben zwölf Mitgliedervorschläge ohne Maßnahmen des N o r dischen Rates.3 Insgesamt verabschiedete der Rat 24 Empfehlungen an den Ministerrat oder an die Regierungen der fünf Mitgliedstaaten. 4 Je sieben ergingen auf Vorschlag des Wirtschafts- sowie des Sozial- und Umweltausschusses, je vier auf Vorschlag des Kultur- und des Rechtsauschusses und zwei auf Vorschlag des Verkehrsausschusses. Außerdem standen im Berichtsjahr sieben Berichte verschiedener nordischer Kooperationsorgane auf der Tagesordnung, darunter an erster Stelle der Bericht des Nordischen Ministerrates über die nordische Zusammenarbeit 5 (C-Sachen). Weiter wurde über 77 M i t teilungen zu früheren Empfehlungen (D-Sachen) beraten, von denen 45 abschließend behandelt werden konnten. Die älteste dieser Empfehlungen ist 1

Die nachfolgenden Ausführungen schließen an den Bericht des Verfassers im German Yearbook of International Law (GYIL) 27 (1984), 483—498 (zitiert: Vorbericht), über die Tätigkeit des Nordischen Rates im Jahre 1983 an. 2 Op. cit., 498. 3 Vgl. hierzu Vorbericht (Anm. 1), 483. 4 Siehe die Protokolle und Materialien der Ratssitzung in den Dokumentenbänden Nordiska Râdet 32:a sessionen 1984 Stockholm (zitiert: NR 1984), Del 1 (S. 3—1371) und Del 2 (S. 1379—2306), insbesondere 2167 ff. und Übersicht 2260 ff. 6 C 1, NR 1984, 863—1207, mit 11 Anlagen, N R 1984, 1208—1371.

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N r . 27/1968, in der die Regierungen Dänemarks, Finnlands, Norwegens und Schwedens aufgefordert wurden, so schnell wie möglich eine gemeinsame Gesetzgebung über den Straßenverkehr einzuführen. I n der Mitteilung des N o r dischen Ministerrates vom 2. Dezember 1983 w i r d zusammenfassend festgestellt, daß das Ziel dieser Empfehlung erreicht sei.6 Die jüngste abschließend behandelte Empfehlung ist N r . 30/1983 zur Erhöhung des Grundkapitals der Nordischen Investitionsbank. 7 Schließlich wurden auf der 32. Jahrestagung 31 Fragen von Ratsmitgliedern an den Ministerrat oder die Regierungen der Mitgliedstaaten (Ε-Sachen) beantwortet. Drei Fragen wurden gemäß der geänderten Geschäftsordnung des Nordischen Rates während der Jahrestagung eingebracht. 8 I. Die Generaldebatte Die in der Begrüßungsrede der Präsidentin der 32. Jahrestagung, der Schwedin Karin Söder, geäußerte Vermutung, daß es während der Generaldebatte zu harten Auseinandersetzungen über das vom Ministerrat vorgelegte Aktionsprogramm für wirtschaftliche Entwicklung und Vollbeschäftigung kommen würde, 9 sollte sich in vollem Umfang bestätigen. I m Vorjahr hatte der Nordische Rat eine entsprechende Empfehlung an den Ministerrat verabschiedet.10 I n seinem Bericht an den Nordischen Rat, der Grundlage für die Generaldebatte, schlug der Ministerrat unter anderem folgende Maßnahmen auf nationaler, regionaler (nordischer) und internationaler Ebene v o r 1 1 : verstärkte Investitionen der gewerblichen Wirtschaft, Umschichtungen in den nationalen Haushalten, eine ausgewogene Finanz- und Geldpolitik, gemeinsames Handeln in internationalen Organen, Informationsaustausch über W i r t schaftspolitik, Rücksichtnahme gegenüber den Interessen anderer nordischer Staaten, Abbau der Handelshindernisse, Begrenzung protektionistischer Tendenzen im Welthandel, Verbesserung der finanziellen Situation der Entwicklungsländer. Diese Maßnahmen sind auch Inhalt eines Ministerratsvorschlages über Richtlinien für die Wirtschaftspolitik und die nordische wirtschaftliche Zusammenarbeit, der der Vollversammlung zur 32. Jahrestagung vorgelegt wurde. 1 2 β D 1984/27/1968/t, NR 1984, 1788; Äußerung des Verkehrsausschusses N R 1984, 1789; Beschluß der Vollversammlung N R 1984, 350. 7 Vorbericht (Anm. 1), 490; D 1984/30/1983/e, N R 1984, 2021 f., 233. 8 § 15 Geschäftsordnung, vgl. Vorbericht (Anm. 1), 484. Eine deutsche Übersetzung der Geschäftsordnung ist in diesem Jahrbuch, 519—527, abgedruckt. » NR 1984, 53. io Empfehlung Nr. 28/1983, Vorbericht (Anm. 1), 487 f. n C 1 (Anm. 5), 870 ff., Zusammenfassung in Nordisk Kontakt (zitiert: NK) 1984, 188— 192. 12 Β 47/e, NR 1984, 689—738.

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Schon unmittelbar nach der Veröffentlichung dieses Berichtes i m Dezember 1983 erfolgte eine erste scharfe K r i t i k des Sozial- und Umweltausschusses: Der Ausschuß vermißte vor dem Hintergrund von über 900.000 Arbeitslosen im Norden kurzfristige Lösungsansätze, Kreativität und neue Ideen. 13 Der W i r t schaftsausschuß stellte auf Grund der Mitteilung des Ministerrates zur Empfehlung N r . 28/1983, in der auf den neuen Vorschlag verwiesen wird, lapidar fest, daß die Intentionen der Empfehlung damit keineswegs erfüllt seien.14 I n der Generaldebatte äußerten sich die Fraktionen einhellig enttäuscht über die Vorlage des Ministerrates. Für die Sozialdemokraten meinte die Norwegerin Gro Harlem Brundtland, daß der Ministerratsbericht in diesem Punkt von Resignation geprägt sei und im Nordischen Rat Frustration verbreite. 15 Der Finne Ilkka Suominen forderte im Namen der konservativen Fraktion als konkrete Maßnahme zur Verbesserung des Wirtschaftswachstums eine Liberalisierung des Kapital- und Aktienmarktes zwischen den nordischen Staaten. 18 Für die Fraktion der Parteien der Mitte bezeichnete Karin Söder das Aktionsprogramm für wirtschaftliche Entwicklung und Vollbeschäftigung als nordisches Sorgenkind und verwahrte sich gegen die „lahmen", unverbindlichen Vorschläge. 17 Die schärfste K r i t i k kam von der Fraktion der sozialistischen und kommunistischen Parteien: Lars Werner hielt die Richtlinen des Ministerrates für ein sinnloses Produkt, das eine Gefahr für den Nordischen Rat und dessen Ansehen darstelle. 18 Der norwegische Regierungschef Kare Willoch und der schwedische Finanzminister Kjell-Olof Feldt verteidigten den Bericht des M i nisterrates. Willoch fand es bemerkenswert, daß die fünf nordischen Regierungen, unabhängig von ihrer parteipolitischen Zusammensetzung, in der Lage gewesen seien, sich auf gemeinsame Richtlinien für die Wirtschaftspolitik zu einigen und eine ähnliche Politik hinsichtlich der Begrenzung der öffentlichen Ausgaben, der Inflationsbekämpfung und der Stärkung der Wettbewerbsfähigkeit zu betreiben. 19 Feldt hielt den Ministerratsvorschlag für besser als nichts, man sei soweit gekommen, wie dies mit zwei konservativen Regierungen möglich gewesen sei. 20 Vertreter der konservativen und sozialdemokratischen Fraktionen warfen sich anschließend gegenseitig vor, einen konkreteren Vorschlag verhindert zu haben. Zur Überraschung der meisten Teilnehmer der Jahrestagung veröffentlichten die Staatsminister der fünf nordischen Länder während der Sitzungsperiode 13 ι4 is ie 17 ie ι» 20

N K 1984, 5. D 1984/28/1983/e, NR 1984, 2017 f. N R 1984, 64. N R 1984, 65. N R 1984, 67. N R 1984, 68. N R 1984, 76. N R 1984, 82.

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eine Pressemeldung über die Gründung einer unabhängigen nordischen Arbeitsgruppe für die wirtschaftliche Zusammenarbeit. Die Initiative hierzu war von dem früheren Parteisekretär der Sozialdemokraten Finnlands, Ulf Sundqvist, und Volvochef Pebr G. Gyllenhammar ausgegangen. Die Staatsminister gaben in der Pressemeldung ihrer Hoffnung Ausdruck, daß diese aus einer begrenzten Zahl führender Unternehmer aus allen fünf Staaten bestehende Arbeitsgruppe der wirtschaftlichen Zusammenarbeit wertvolle Erfahrungen und Impulse geben könne. 21 Ein zweiter Schwerpunkt der Generaldebatte der 32. Jahrestagung des N o r dischen Rates war der Umweltschutz, insbesondere der saure Niederschlag. Dieses Problem behandelte der schwedische Staatsminister Olof Palme sehr eingehend. 22 Nach seiner Uberzeugung haben die in Norwegen und Schweden niedergehenden sauren Schwefel- und Stickstoffverbindungen mindestens zur Hälfte ihren Ursprung in anderen europäischen Staaten. Deshalb begrüßte er die in der EG, vor allem in der Bundesrepublik Deutschland angekündigten Maßnahmen zur Verringerung entsprechender Emissionen. Weniger erfreulich war seiner Meinung nach die Tatsache, daß Großbritannien dieses Problem immer noch nicht ernst genug nehme. Dabei bezog Palme sich auf einen der englischen Regierung vorgelegten Bericht, in dem vorgeschlagen wurde, Maßnahmen zur Verringerung saurer Niederschläge in Erwartung weiterer Forschungsergebnisse mindestens fünf Jahre aufzuschieben. Nach einer Mitteilung der N O R D E L über die nordische Zusammenarbeit auf dem Gebiet der Elektrizität gehen in Norwegen und Finnland jährlich je 350.000 Tonnen Schwefel nieder, in Schweden 600.000 Tonnen. Die Organisation for Economic Cooperation and Development (OECD) geht davon aus, daß der davon aus Großbritannien stammende Anteil in Norwegen 2 4 % und in Schweden 8%> beträgt. 2 3 Palme appellierte an die Vollversammlung, eine nordische Mahnung an die britische Regierung zu richten. Der dänische Umweltminister Christian Christensen sagte spontan seine Unterstützung zu, 2 4 und einen Tag darauf hatten sich alle nordischen Umweltminister auf ein Schreiben an ihren britischen Kollegen geeinigt. I n dem Schreiben heißt es, daß auf Grund umfassender Forschungs- und Gutachtertätigkeit nunmehr Erkenntnisse über die U r sachen des sauren Niederschlages vorlägen, die wegen der dramatischen Veränderungen der Umwelt zu kraftvollen Gegenmaßnahmen führen müßten; das Schreiben endet mit der Aufforderung, sich dem Vorschlag der nordischen Staaten anzuschließen, Schwefelemissionen bis 1993 um 30°/o zu senken. 25 21 N K 22 NR 23 N K 24 N R 25 N K

1984, 1984, 1984, 1984, 1984,

281. 116 f. 510. 118. 283 f.

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Das Schreiben wurde dem britischen Botschafter in Stockholm am 1. März 1984 überreicht. I n seinem Antwortschreiben vom 22. März wies der britische U m weltminister Patrick Jenkin den Protest zurück, sein Stellvertreter William Waidegrave erklärte nordischen Journalisten am selben Tage, daß in einem Land wie Großbritannien mit seiner erheblichen Kohleproduktion Investitionen von 2,5 Milliarden Pfund erforderlich wären, um die Emissionen entsprechend zu senken, daß aber die britische Forschung über Schwefelemissionen in den kommenden Jahren intensiviert werde. 26 I m Dezember des Berichtsjahres wiederholten die nordischen Staatsminister ihren Protest gegenüber der britischen Regierung. 27 Uber die parteipolitische Zusammenarbeit im Nordischen Rat über nationale Grenzen hinweg ist an dieser Stelle mehrfach berichtet worden. 2 8 Nach zaghaften Ansätzen im Jahre 1973 29 ist die Fraktionsarbeit i m Rat nunmehr fest etabliert. Dies folgt unter anderem schon aus dem Programm der 32. Jahrestagung, das für den ersten Sitzungstag von 8.30 bis 9.30 U h r „Beratungen der Parteien" und für 19.30 U h r „Sitzungen der Parteien" vorsah. Vertreten sind die konservative Fraktion, die Fraktion der Parteien der Mitte, die sozialdemokratische sowie die linkssozialistische und kommunistische Fraktion. 3 0 Wenn audi die Zusammenarbeit der bürgerlichen Parteien auf nordischer Ebene seit einer Reihe von Jahren zu beobachten ist, haben die bürgerlichen Fraktionen eine organisierte, durch Richtlinien und Programme 31 festgelegte Arbeit erst im Anschluß an die Vorjahrestagung aufgenommen. Alle Fraktionen haben nunmehr einen oder mehrere Fraktionssekretäre. M i t der Festigung der Fraktionen verbunden war nach der Jahrestagung ein neuer Vorschlag zur Parteienfinanzierung. Wurde im Jahre 1981 lediglich die Reisekostenerstattung angeregt, 32 schlugen jetzt sozialdemokratische und linkssozialistische/kommunistische Ratsmitglieder umfassende Finanzierungshilfen für die Fraktionsarbeit vor. 3 3 Der Nordische Rat w i r d sich voraussichtlich auf seiner nächsten Jahrestagung mit diesem Vorschlag befassen. 26

Britterna avvisar nordisk svavelprotest, N K 1984, 435. ? N K 1984, 1190. 2 ® Zuletzt Wulf Hermann, Die Tätigkeit des Nordischen Rates im Jahre 1982, in: GYIL 26 (1983), 460—473 (463 ff.) mit weiteren Nachweisen. 29 Wulf Hermann, Die Tätigkeit des Nordischen Rates in den Jahren 1972 und 1973, in: Jahrbuch für Internationales Recht (zitiert: JIR) 17 (1974), 406—431 (411 ff.). 30 Zur Zusammensetzung der einzelnen Fraktionen vgl. Partigrupperna, N K 1984, 215. 31 Die Parteivorsitzenden der konservativen Parteien skizzierten am 6. 2.1984 in Stockholm ein gemeinsames Programm für die nordische Zusammenarbeit, N K 1984, 265 f.; siehe auch Lone Dybkjaer, Nordiske partiprogrammer, N K 1984, 97—99, und Ilkka Suominen, Nationer och partigrupper, N K 1984, 433—435. 32 Hermann (Anm. 28), 464. 2

33 Partistöd i Nordiska râdet? Medlemsförslag frân sju „länder", N K 1984, 365 f.

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I m Zusammenhang mit der „Parlamentisierung" des Nordischen Rates ist auch die erneute Forderung nach Direktwahlen 3 4 zu sehen. Unter Hinweis auf die Direktwahlen zum Europaparlament meinte die dänische „Vereinigung Norden", daß auch der Nordische Rat als parlamentarisches Organ durch direkte Wahlen aus seiner Anonymität heraustreten müsse. Der Vorsitzende des Rechtsausschusses, der Däne Bernhardt Tastesen, untertützte dieses Vorbringen und deutete an, daß der Rat diese Frage auf seiner Jahrestagung 1985 prüfen könne. 85 II. Die Fadiaussdiüsse I n ihrem Schlußwort bezeichnete die Präsidentin des Nordischen Rates, Karin Söder, die 32. Jahrestagung als eine vitale Sitzung und verwies in diesem Zusammenhang auf die kontroversen Debatten und die Weiterentwicklung der Parlamentarisierung des Rates. 38 Aus der Sacharbeit des Nordischen Rates ragten die Wünsche nach einem konkretisierten Aktionsprogramm für wirtschaftliche Entwicklung und Vollbeschäftigung, nach einem Datentechnologieprogramm sowie das Programm gegen Drogenmißbrauch und die H a r monisierung der Verkehrs- und Transportpolitik heraus. Die Empfehlungen, die der Nordische Rat i m Berichtsjahr auf Vorschlag der fünf Fachausschüsse verabschiedete, sind im folgenden nach Zuständigkeit des jeweiligen Ausschusses dargestellt. 1. Der Wirtschaftsausschuß A u f der Tagesordnung des Wirtschaftsausschusses standen allein vier der insgesamt sieben Ministerratsvorschläge. Uber den Vorschlag von Richtlinien für Wirtschaftspolitik und wirtschaftliche Zusammenarbeit im Norden und die scharfe K r i t i k gegen ihn ist bereits einleitend berichtet worden. 3 7 I n seiner Stellungnahme 38 zu dem Ministerratsvorschlag bedauert der Wirtschaftsausschuß insbesondere daß der Ministerrat dem akuten Problem der Arbeitslosigkeit in den nordischen Staaten nicht die notwendige Priorität eingeräumt hat. Der Ausschuß hält die Verringerung der Arbeitslosigkeit für genauso wichtig wie die Senkung der Inflationsraten. Zum wesentlichen Inhalt eines annehmbaren Aktionsprogrammes müssen nach Meinung des Ausschusses konkrete Maßnahmen zur Verbesserung der Wettbewerbsfähigkeit und des wirtschaftlichen Wachstums, zur Stärkung der nordischen Zusammenarbeit in den Be34 85 se 37 38

Hermann (Anm. 28), 465. Forslag om direkte valg til Nordisk Rad, N K 1984, 803 f. N R 1984, 386 f. Β 47/e, NR 1984, 689—738; s.. oben S. 443 ff. NR 1984, 739—748.

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reichen Forschung und Entwicklung sowie zur Stimulierung der Investitionstätigkeit gehören. Als Ergebnis seiner Überlegungen schlug der Wirtschaftsausschuß der Vollversammlung vor, dem Ministerrat zu empfehlen, die Richtlinien für Wirtschaftspolitik und wirtschaftliche Zusammenarbeit zu konkretisieren und der 33. Jahrestagung 1985 ein Aktionsprogramm zur wirtschaftlichen Entwicklung und Vollbeschäftigung vorzulegen. I n einer abweichenden Meinung zu dem Ausschußvorschlag teilt der Finne Arvo Kemppainen zwar die Mehrheitsmeinung des Ausschusses hinsichtlich der K r i t i k an den vom Ministerrat vorgelegten Richtlinien und des Verlangens nach Konkretisierung, hält aber die Betonung des Wirtschaftswachstums wegen der damit verbundenen Rationalisierung und Automatisierung und des daraus folgenden rapiden Anwachsens der Arbeitlosenzahlen für falsch; seiner Meinung nach hätte der Wirtschaftsausschuß seinen Vorschlag an die Vollversammlung um ein gesamtnordisches Programm zur Arbeitszeitverkürzung ergänzen müssen.39 Nach ungewöhnlich umfangreicher Debatte i m Plenum mit 31 Diskussionsbeiträgen folgte die Vollversammlung dem Mehrheitsvorschlag des Wirtschaftsausschusses mit 73 Stimmen bei fünf Enthaltungen. 40 Reibungsloser passierte der Ministerratsvorschlag zu einem nordischen Aktionsprogramm auf dem Gebiet der Datentechnologie 41 Wirtschaftsausschuß und Vollversammlung. I m Vorjahr hatte der Ministerrat bereits einen Entwurf vorgelegt, der die grundsätzliche Zustimmung des Nordischen Rates gefunden hatte. 42 I n der endgültigen Ausformung sind in diesem Programm Maßnahmen auf den Gebieten der industriellen Entwicklung, der Daten- und Telekommunikation, Standardisierung, Handelsverfahren, Gesetzgebung, Arbeitswelt, Ausbildung und Grundlagenforschung, des sozialen Bereichs sowie der öffentlichen Verwaltung vorgesehen. I n seiner Stellungnahme 43 rügte der W i r t schaftsausschuß lediglich die verspätete Vorlage des Programmes, das statt im Juni 1983 erst am 24. Februar 1984, also unmittelbar vor Beginn der Jahrestagung, eingegangen war. Ohne Diskussion verabschiedete die Vollversammlung die Empfehlung, das vorgelegte Aktionsprogramm anzunehmen. 44 Die weiteren Ministerratsvorschläge, die der Wirtschaftsausschuß i m Berichtsjahr behandelte, hatten regionalpolitische Inhalte: Zum einen handelte es sich um die Weiterentwicklung der Vergabe von Regionaldarlehen durch die Nordische Investitionsbank, 45 zum anderen um eine Stärkung der nordi39 N R 1984, 748 f. 40 N R 1984, 181—209; Empfehlung Nr. 1/1984, N R 1984, 2167 f. 41 Β 53/e, N R 1984, 850—858. 42 Vorbericht (Anm. 1), 489. 43 N R 1984, 859—862. 44 Empfehlung Nr. 2/1984, N R 1984, 2169 f., 209—215. 45 Β 48/e, NR 1984, 750—773.

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sehen Zusammenarbeit in Nordkalotten, 416 einem strukturschwachen und dünn besiedelten Grenzgebiet i m Norden Norwegens, Schwedens und Finnlands. Durch die Gewährung von Regionaldarlehen durch die Nordische Investitionsbank soll die Möglichkeit geschaffen werden, Vorhaben der gewerblichen W i r t schaft von regionalpolitischem Interesse in bestimmten Gebieten des Nordens zu finanzieren. Konkrete Vorschläge des Ministerrates waren die Verlängerung der Versuchsperiode bis zum 1. A p r i l 1984, die Aufnahme Grönlands in den Kreis der Fördergebiete und die Ausweitung des Kreditrahmens. A u f Vorschlag des Wirtschaftsausschusses nahm die Vollversammlung eine entsprechende Empfehlung an. 4 7 Zur Stärkung des Nordkalottengebietes schlug der Ministerrat eine Weiterentwicklung der Beratungstätigkeit, eine bessere Koordinierung der Forschungsund Ausbildungsressourcen und eine stärkere nordische und nationale Subventionierung vor. Auch hier folgte die Vollversammlung dem Vorschlag des W i r t schaftsausschusses, eine der Vorlage entsprechende Empfehlung zu verabschieden. 48 Ein dem Wirtschaftsausschuß i m Berichtsjahr zugewiesener Mitgliedervorschlag nahm zwar nicht ausdrücklich auf die regionalen Subventionen des Ministerrates Bezug, schloß aber diese doch in seine Forderung nach einer effektiveren Kontrolle nordischer Projekte ein. 49 Dabei ging es den konservativen Initiatoren um eine Beschränkung der Vergabe öffentlicher M i t t e l und um eine über die buchhalterische Revision und Kontrolle hinausgehende Effektivitätsprüfung geförderter Vorhaben. Der Wirtschaftsausschuß übernahm den Mitgliedervorschlag, 50 das Plenum verabschiedete ohne Gegenstimme diese Empfehlung an den Ministerrat. 5 1 Dem wirtschaftspolitischen Ziel eines nordischen Binnenmarktes 52 dienten ein Mitgliedervorschlag zur Liberalisierung des Kapitalmarktes und der monetären Zusammenarbeit 53 sowie ein Mitgliedervorschlag zur Öffnung des nordischen Aktienmarktes. 64 Der Wirtschaftsausschuß behandelte diese Vorschläge zusammen, und die Vollversammlung beschloß die Empfehlung an den M i n i « Β 49/e, N R 1984, 776—784. 4 7 Stellungnahme des Wirtschaftsausschusses N R 1984, 773—775; Empfehlung Nr. 5/1984, NR 1984, 2175 f., 224—226. 48 Stellungnahme des Wirtschaftsausschusses N R 1984, 785 f.; Empfehlung Nr. 6/1984, N R 1984, 2177 f., 227—229. 49 A 677/e, N R 1984, 685 f. so N R 1984, 687 f. 51 Empfehlung Nr. 7/1984, N R 1984, 2179 f., 229 f. 52 Vgl. hierzu Hermann (Anm. 28), 462 f. 53 A 662/e, N R 1984, 569—572. 54 A 673/e, N R 1984, 668—671.

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sterrat, die wirtschaftliche und industrielle Entwicklung im Norden durch Maßnahmen zur Erreichung der vorgeschlagenen Ziele zu fördern. 55 Schließlich verabschiedete der Rat auf Vorschlag des Wirtschaftsausschusses noch die Empfehlung an den Ministerrat, Möglichkeiten zur Vergabe von Investitionskrediten zu nichtkommerziellen Konditionen an Entwicklungsländer zu prüfen, um damit Probleme der Verschuldung vieler dieser Staaten zu mindern. 5 6 2. Der Kulturausschuß Unter Bezugnahme auf die seit vielen Jahren im Nordischen Rat behandelte Zusammenarbeit auf den Gebieten des Hörfunks und des Fernsehens 57 schlugen i m Berichtsjahr sozialistische Mitglieder vor, die Möglichkeiten für ein gemeinsames Verbot von Reklamesendungen im Kabel- und Satellitenfernsehen zu untersuchen. 58 I n einem weiteren Mitgliedervorschlag wiesen die Initiatoren darauf hin, daß wegen der schnellen technischen Entwicklung im Medienbereich Erfahrungen durch eigene Entwicklungen zum Empfang von orbitaltest-satellite-Sendungen für die nordische Zusammenarbeit erforderlich seien. Der Vorschlag sah vor, Maßnahmen für eine technische Zusammenarbeit zum Empfang von außernordischen Fernsehsendungen via Satellit zu ergreifen und die Rolle der Werbung in der neuen medientechnischen Situation zu bewerten. 59 Der Kulturausschuß verfolgte den Vorschlag, Werbesendungen zu verbieten, wegen der mangelnden Durchsetzbarkeit eines solchen Verbotes nicht weiter. 6 0 Auch Maßnahmen für eine technische Zusammenarbeit wollte der Ausschuß nicht fordern, da eine Anhörung zuständiger Ministerien, Fernmeldeämter und Rundfunkanstalten ergeben hatte, daß eine solche Zusammenarbeit bereits stattfindet. 61 Zur weiteren Anregung der Diskussion insbesondere in Dänemark, Norwegen und Schweden, wo weder im Hörfunk noch i m Fernsehen Werbesendungen ausgestrahlt werden, schlug der Ausschuß jedoch die Empfehlung an die Regierungen der fünf Mitgliedstaaten vor, über Werbung in elektronischen Massenmedien gemeinsam zu beraten und eine Stellungnahme abzugeben. Die Vollversammlung nahm diese Empfehlung ohne Gegenstimme an. 62 55 Stellungnahme des Wirtschaftsausschusses NR 1984, 573—579; Empfehlung Nr. 3/1984, N R 1984, 2171 f., 215—223. 56 Mitgliedervorschlag A 664/e, N R 1984, 591 f.; Stellungnahme des Wirtschaftsausschusses NR 1984, 593—603; Empfehlung Nr. 4/1984, N R 1984, 2173 f., 223 f. 57 Vgl. Hermann (Anm. 28), 467 ff. mit weiteren Nachweisen. 58 A 668/k, N R 1984, 624 f. 59 A 635/k, N R 1984, 422 f. 60 N R 1984, 626 f. ei N R 1984, 424 f. 02 Empfehlung Nr. 21/1984, N R 1984, 2207 f., 366—369.

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Außerdem verabschiedete der Nordische Rat auf Vorschlag des Kulturausschusses die Empfehlungen, den Bedarf für die Weiterbildung von Lehrern in der Montessori-Pädagogik zu ermitteln, 6 3 finanzielle Hilfen für Wanderausstellungen zu schaffen 64 und die Voraussetzungen für den nordischen Sportaustausch zu verbessern. 65 3. Der Sozial- und Umweltausschuß Der Nordische Ministerrat legte im Berichtsjahr eine revidierte Fassung des nordischen Programms für die Zusammenarbeit auf dem Gebiet der Sicherheit am Arbeitsplatz vor. 6 6 Der Entwurf bezieht sich auf ein Aktionsprogramm aus dem Jahre 1977 67 und ein Kooperationsprogramm aus dem Jahre 1981. 68 Ziel des Ministerratsvorschlages ist es, dieses Kooperationsabkommen weiterzuentwickeln und die nordische Zusammenarbeit auf diesem Gebiet effektiver zu gestalten. I m einzelnen werden dabei die Bereiche Unfallrisiken, chemische, biologische sowie physikalische Einwirkungen auf den Arbeitsplatz, physische sowie psychosoziale Belastungen, Arbeitszeitregelungen, Mitbestimmung und Gleichstellung der Geschlechter angesprochen. Der Sozial- und Umweltausschuß schloß sich in seiner Stellungnahme dem Ministervorschlag i m wesentlichen an, hielt die vorgeschlagenen Maßnahmen jedoch für zu sehr industriebezogen und vermißte die Berücksichtigung der Tatsache, daß nach 1970 der Anteil der berufstätigen Frauen in den nordischen Staaten erheblich zugenommen hat. 6 9 Die Vollversammlung verabschiedete die Empfehlung an den Ministerrat, unter Beachtung der vom Sozial- und Umweltausschuß vorgetragenen Gesichtspunkte ein revidiertes Kooperationsprogramm anzunehmen und das Programm in engem Kontakt mit dem Nordischen Rat und den Tarifparteien weiter auszubauen. 70 Der zweite Ministervorschlag, den der Sozial- und Umweltausschuß i m Berichtsjahr beriet, galt der Verbesserung der staatlichen Arbeitslosenunterstützung. 71 Grundlage hierfür sind ein Ubereinkommen zwischen den M i t 63 Mitgliedervorschlag A 643/k, N R 1984, 465 f.; Stellungnahme des Kulutrausschusses N R 1984, 467—473; Empfehlung Nr. 23/1984, N R 1984, 2211 f., 370 f. e4 Mitgliedervorschlag A 642/k, N R 1984, 452 f.; Stellungnahme des Kulturausschusses NR 1984, 454—464; Empfehlung Nr. 22/1984, NR 1984, 2209 f., 370. 65 Mitgliedervorschlag A 670/k, N R 1984, 641 f.; Stellungnahme des Kulturausschusses NR 1984, 643—650; Empfehlung Nr. 24/1984, N R 1984, 2213 f., 379 f. ββ Β 51/s, NR 1984, 797—815. β7 Wulf Hermann, Die Tätigkeit des Nordischen Rates im Jahre 1977, in: GYIL 21 (1978), 516—529 (527). es Ders. y Die Tätigkeit des Nordischen Rates im Jahre 1981, in: GYIL 25 (1982), 663—681 (677). e« N R 1984, 816—827. 70 Empfehlung Nr. 13/1984, N R 1984, 2191 f., 265—269. 71 Β 52/s, N R 1984, 828—846.

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gliedstaaten aus dem Jahre 1976 und die am 1. 1. 1982 in K r a f t getretene neue Konvention über soziale Sicherheit. 72 M i t der bemerkenswerten Begründung, daß der Konventionstext über die Arbeitslosenunterstützung mit seinen komplizierten Verweisungen nahezu unverständlich sei und das Ubereinkommen so formuliert werden müsse, daß alle Inhalt und Ziel verstehen und die Bestimmungen der Konvention in die Praxis umsetzen können, unterstützte der Ausschuß den Ministerratsvorschlag. 73 Das Plenum folgte dieser Meinung und empfahl dem Ministerrat die Annahme eines revidierten Übereinkommens über Arbeitslosenunterstützung. 74 Mehrfach hat sich der Nordische Rat mit dem Drogenmißbrauch befaßt; allein auf der 29. Jahrestagung im Jahre 1981 betrafen fünf Empfehlungen diesen Bereich. 75 I m Berichtsjahr verabschiedete der Rat die Empfehlung an den Ministerrat, ein nordisches Aktionsprogramm gegen Narkotika zu erarbeiten und die Voraussetzungen für ein gemeinsames Daten- und Informationssystem zu prüfen, um dadurch bessere Entscheidungsgrundlagen zur Bekämpfung des Drogenmißbrauchs zu erlangen. 76 A u f Vorschlag des Sozial- und Umweltausschusses beschloß der Nordische Rat darüber hinaus die Empfehlung zur Verbesserung der Stellung der durch Verkehrsunfälle Hirngeschädigten, 77 die Empfehlung zur Errichtung eines Systems zur Katalogisierung von Naturressourcen™ die Empfehlung, ein Aktionsprogramm zur Arzneimittelregistrierung zu erarbeiten 79 und die Empfehlung zur Verbesserung der sozialmedizinischen Ausbildung. 80 4. Der Verkehrsausschuß Der Verkehrsausschuß hatte im Berichstjahr einen Mitgliedervorschlag zu behandeln, der eine weitere Harmonisierung der Verkehrspolitik in den nordischen Staaten zum Inhalt hatte. 8 1 Die Initiatoren nahmen darin auf die Ein72 Hermann (Anm. 68), 674 f. 73 N R 1984, 847—849. 74 Empfehlung Nr. 14/1984, 2193 f., 270—272. 75 Hermann (Anm. 68), 677. 7® Mitgliedervorschlag A 652/s, N R 1984, 487 f.; Stellungnahme des Sozial- und Umweltausschusses N R 1984, 489—504; Empfehlung Nr. 9/1984, N R 1984, 2183 f., 252—260. 77 Mitgliedervorschlag A 632/s, N R 1984, 404 f., Stellungnahme des Sozial- und Umweltausschusses N R 1984, 406—421; Empfehlung Nr. 8/1984, N R 1984, 2181 f., 251 f. 78 Mitgliedervorschlag A 657/s, N R 1984, 513 f.; Stellungnahme des Sozial- und Umweltausschusses N R 1984, 515—529; Empfehlung Nr. 10/1984, N R 1984, 2185 f., 260 f. 7ö Mitgliedervorschlag A 671/s, N R 1984, 651—653; Stellungnahme des Sozial- und Umweltausschusses NR 1984, 654—660; Empfehlung Nr. 12/1984, N R 1984, 2189 f., 263 f. 80 Mitgliedervorschlag A 669/s, N R 1984, 628 f.; Stellungnahme des Sozial- und Umweltausschusses N R 1984, 630—640; Empfehlung Nr. 11/1984, N R 1984, 2187 f., 261—263. si A 638/t, N R 1984, 426—428.

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leitung des Nordischen Transport- und Kommunikationsabkommens 82 Bezug, in welchem die Regierungen Dänemarks, Finnlands, Islands, Norwegens und Schwedens erklären, sich der Bedeutung bewußt zu sein, die rationelle und effektive Transportmöglichkeiten für die Wirtschaft der nordischen Staaten und für die nordische industrielle Zusammenarbeit und den Warenaustausch haben. Nach Meinung der Initiatoren ist außer dieser Erklärung nichts konkretes geschehen. Sie vermißten vor allem Bemühungen um eine einheitliche Auffassung bei der Abwägung zwischen Schienen- und Straßentransporten sowie zwischen Kollektiv- und Individualverkehr mit dem Ziel, eine optimale Ausnutzung der Transportressourcen im Norden zu erreichen. Es erschien den Vorschlagenden auf der Grundlage der allgemeinen Bestimmungen des Transportabkommens daher gerechtfertigt, unter Einbeziehung aller Verkehrssektoren und Verkehrsmittel eine Harmonisierung der verkehrspolitischen Richtlinien in den Mitgliedstaaten mit dem Ziel anzustreben, eine größere Einheitlichkeit in den Verkehrssystemen sowie eine größere grenzüberschreitende M o bilität zu erreichen. Unter Hinweis auf frühere Überlegungen hielt der Verkehrsausschuß in seiner Stellungnahme zunächst eine Auflistung der geltenden Richtlinien über die Verkehrs- und Transportpolitik in den einzelnen Staaten für erforderlich, bevor Überlegungen zu weiteren Harmonisierungsmaßnahmen angestellt werden. 83 Eine entsprechende Empfehlung an den Ministerrat wurde von der Vollversammlung ohne Gegenstimme angenommen. 84 A u f Vorschlag des Verkehrsausschusses verabschiedete das Plenum darüber hinaus die Empfehlung zur einheitlichen Ausbildung von Fremdenführern. 85 5. Der Rechtsausschuß I m Jahre 1980 hatte der Nordische Rat auf Vorschlag des Wirtschaftsausschusses dem Ministerrat empfohlen, ein nordisches Kooperationsprogramm für den Verbraucherschutz anzunehmen. 86 Der Ministerratsvorschlag über eine Revision dieses Programms 87 war i m Berichtsjahr dem Rechtsausschuß zugewiesen worden. Der Ministerrat begründete seinen Vorschlag mit der zunehmenden Internationalisierung von Produkten und Werbung sowie m i t sinkenden Realeinkommen der Haushalte durch Inflation und wirtschaftliche Entwick82

överenskommelse mellan Danmark, Finland, Island, Norge och Sverige om samarbete pä transport- och kommunikationsomradet vom 6.11.1973 in der Fassung vom 15.6.1983, in: Nordiska samarbetsavtal, Stockholm 1984, 37—42. 83 N R 1984, 429—437. 84 Empfehlung Nr. 19/1984, N R 1984, 2203 f., 337 f. 85 Mitgliedervorschlag A 667/t, N R 1984, 615—618; Stellungnahme des Verkehrsausschusses N R 1984, 619—623; Empfehlung Nr. 20/1984, NR 1984, 2205 f., 338 f. 86 Wulf Hermann, Die Tätigkeit des Nordischen Rates im Jahre 1980, in: GYIL 24 (1981), 486—499 (492). 87 Β 50/j, NR 1984, 787—793.

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lung, die seiner Meinung nach eine höhere Priorität der verbraucherpolitischen Maßnahmen erforderlich machen. Der überarbeitete Programmentwurf nennt Produktsicherheit und Produkthaftung, Information über Waren und Dienstleistungen, Verbraucherinformation, Verbraucherschutzrechte, Zusammenarbeit mit Verbraucherschutzorganisationen und Wirtschaft sowie internationale Zusammenarbeit als Bereiche für gemeinsame Maßnahmen. Der Rechtsausschuß präzisierte in seiner Stellungnahme einige Punkte des Entwurfs, 8 8 und auf seinen Vorschlag empfahl die Vollversammlung die Annahme des revidierten Verbraucherschutzprogramms. 80 Die unterschiedliche Gesetzgebung in den Mitgliedstaaten über Homosexuelle und homosexuelle Betätigung veranlaßte Ratsmitglieder aus Dänemark, Finnland, Norwegen und Schweden, gemeinsame Maßnahmen gegen die Diskriminierung Homosexueller vorzuschlagen. 90 I n Finnland ist die öffentliche Aufforderung zur Unzucht zwischen Personen gleichen Geschlechts unter Strafe gestellt, Dänemark, Norwegen und Schweden haben die strafrechtliche Verfolgung gleichgeschlechtlicher Beziehungen abgeschafft; Norwegen hat 1981 als einziges Land der Welt eine strafrechtliche Bestimmung zum Schutz von Homosexuellen erlassen. Unter anderem verweisen die Initiatoren auch auf eine Empfehlung des Europarates aus dem Jahre 1981 zur Gleichstellung der Homosexuellen mit Heterosexuellen. 91 A u f Vorschlag des Rechtsausschusses92 verabschiedete die Vollversammlung zwei Empfehlungen, nämlich zum einen an den Ministerrat, Möglichkeiten zur Aufhebung diskriminierender Gesetze auf diesem Gebiet zu prüfen 9 3 und zum anderen an die Regierungen, in internationalen Organisationen hinsichtlich der Verwirklichung der Menschenrechte dieser Minderheit zusammenzuarbeiten. 94 Schließlich behandelte der Rechtsausschuß im Berichtsjahr einen für die zukünftige Arbeit des Nordischen Rates sehr bedeutsamen Mitgliedervorschlag über die Arbeitsformen der nordischen Zusammenarbeit, 95 Initiatoren waren die Präsidiumsmitglieder der 31. Jahrestagung i m Jahre 1983. Grundlage des Vorschlages war ein i m Jahre 1982 vorgelegter Bericht des sogenannten Fünferkomitees über Organisation und Arbeitsformen des Nordischen Rates und des Nordischen Ministerrats, der in der Generaldebatte der Vorjahres88 N R 1984, 794—796. 8β Empfehlung Nr. 16/1984, N R 1984, 2197 f., 317—320. oo A 655/j, N R 1984, 505—507. Siehe Peter Rawert, Die Tätigkeit des Europarates im Jahre 1981, in: GYIL 25 (1982), 639—662 (651). Θ2 N R 1984, 508—512. 03 Empfehlung Nr. 17/1984, N R 1984, 2199 f., 320—326. 04 Empfehlung Nr. 18/1984, N R 1984, 2201 f., 320—326. os A 676/j, NR 1984, 679—681.

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sitzung bereits ausführlich diskutiert wurde. 9 6 Der Mitgliedervorschlag enthielt noch keine Einzelheiten über konkrete Neuregelungen, sondern verwies auf den Bericht des Fünferkomitees und dessen Hauptpunkte, die Stärkung der Stellung des Präsidiums und der nordischen Kooperationsminister, gemeinsamer Haushalt, Konzentration auf Schwerpunktfragen und Einzelmaßnahmen zur Steigerung der Effektivität der Ratsarbeit. Die Initiatoren schlagen vor, dem Nordischen Ministerrat und Präsidium des Nordischen Rates zu empfehlen, spätestens zur 33. Jahrestagung konkrete Vorschläge auf der Grundlage des Berichts des Fünferkomitees zu unterbreiten. Der Rechtsausschuß würdigte in seiner Stellungnahme die gründliche Analyse des Fünferkomitees, enthielt sich aber ausdrücklich einer Bewertung der Komiteeanregungen. Seinerseits verkürzte er lediglich die i m Mitgliedervorschlag genannte Vorlagefrist auf den 1. September 1984. 97 Nach ausführlicher Diskussion verabschiedete die Vollversammlung die dem Mitglieder- und Ausschußvorschlag entsprechende Empfehlung an den Ministerrat und den an das Ratspräsidium gerichteten internen Beschluß zur Vorlage eines konkreten Maßnahmekatalogs. 98 I m Herbst 1984 veröffentlichte das Präsidium des Nordischen Rates seinen Vorschlag, 99 der zusammen mit dem Vorschlag des Ministerrates den N o r d i schen Rat auf der 33. Jahrestagung im Jahre 1985 beschäftigen und voraussichtlich die Grundlagen der Ratsarbeit nicht unerheblich verändern wird.

M Vorbericht (Anm. 1), 487. 07 N R 1984, 682—684. 98 Empfehlung Nr. 15/1984, N R 1984, 2195 f., 292—310. 99 Nordiska samarbetets former — Stärkt politikerroll skall ge ökad effektivitet i arbetet, N K 1984, 864—867.

Die Europäischen Gemeinschaften im Jahre 1984 von Michael Pehlke I. Überblick 1. I m Berichtszeitraum 1 hat sich die wirtschaftliche Lage der Europäischen Gemeinschaften (EG) deutlich günstiger entwickelt als i n den Vorjahren. 2 Kräftige Wachstumsimpulse gingen vor allem von der raschen Ausweitung des Welthandels 3 und der dynamischen Entwicklung der Wirtschaft in den Vereinigten Staaten 4 aus. Der Rückgang der Inflationsraten 5 und die Verbesserung der Leistungsbilanzen 6 förderten die Konvergenz der wirtschaftlichen Ergebnisse in der Gemeinschaft. Trotz der günstigen wirtschaftlichen Entwicklung ist die Arbeitslosenquote weiter auf 11,5% angestiegen.7 Arbeitslosigkeit beeinflußt damit das Leben von 13 Millionen Europäern entscheidend. Insbesondere die Langzeit- und Jugendarbeitslosigkeit bleibt ein zentrales Problem für die Gemeinschaft. 8 Die Kommission rechnet für 1985 allenfalls m i t einer Stabilisierung der Arbeitslosenquote in Dänemark, der Bundesrepublik Deutschland und dem Vereinigten Königreich sowie mit einem sicheren Anstieg in anderen Ländern. 9 1

Der Bericht schließt an den Bericht von Dietmar Bachmann und Hans-Heinrich Gronau, in: German Yearbook of International Law (GYIL) 27 (1984), S. 499—524 (im folgenden: Vorbericht), an. 2 Realer Zuwachs des Bruttoinlandprodukts (BIP) der EG 1982: 0,6%, 1983: 0,9 °/o, 1984: 2,2 °/o; siehe Jahreswirtschaftsberidit 1984—1985, in: Amtsblatt der Europäischen Gemeinschaften (ABl.) L 45 vom 14.02.1985, Tabelle 1. 3 Ausweitung der Welteinfuhren 1984: real 9,3 %, 18. Gesamtbericht über die Tätigkeit der Europäischen Gemeinschaften 1984, hrsg. von der Kommission der EG, Brüssel / Luxemburg 1985 (im folgenden: 18. Gesamtbericht), Ziff. 110; Jahreswirtschaftsbericht 1984—1985 (Anm. 2), Tabelle 4. 4 18. Gesamtbericht (Anm. 3), Ziff. 110; BIP der USA 1. Quartal 1984: 10,1 % , 2. Quartal 1984: 7,1 % ; siehe Jahreswirtschaftsbericht 1984—1985 (Anm. 2), Tabelle 2. 5 Durchschnittliche Inflationsrate in der EG 1980; 11,1% (Standardabweichung 5,9 %); 1984: 5,1 % (Standardabweichung 4,3%), Jahreswirtschaftsberidit 1984—1985 (Anm. 2), Tabelle 6. 6 Leistungsbilanzverbesserung im Durchschnitt der EG 2 % des BIP, Jahreswirtschaftsbericht 1984—1985, Ziff. 2.2. Leistungsbilanz der EG in Milliarden Dollar: 1982: —14, 1984: — 1, a.a.O., Tabelle 7. 7 Jahreswirtschaftsberidit 1984—1985 (Anm. 2), Tabelle 1. 8 18. Gesamtbericht (Anm. 3), Überblick, S. 19. » Jahreswirtschaftsbericht 1984—1985 (Anm. 2), Ziff. 2.3.

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2. Herausragendes Ereignis i m Rahmen des inneren Aushaus der Gemeinschaft ist die Annahme des Vertragsentwurfs zur Gründung der Europäischen Union durch das Europäische Parlament am 14. Februar 1984. 10 Die Beratungen, die mit der Einsetzung des Institutionellen Ausschusses i m Juli 1981 eingeleitet worden waren 1 1 , fanden damit ein vorläufiges Ende. Der Europäische Rat hat in Fontainebleau einen Ad-hoc Ausschuß eingesetzt, der Maßnahmen vorbereiten und koordinieren soll, durch die die Identität der Gemeinschaft gegenüber dem europäischen Bürger und der Welt gestärkt und gefördert w i r d . 1 2 I m November hat der Ausschuß einen Zwischenbericht vorgelegt. 13 Ein weiterer, in Fontainebleau eingesetzter Ad-hoc Ausschuß hat nach dem Vorbild des „Spaak Ausschusses"14 die Aufgabe, Vorschläge für eine bessere europäische Zusammenarbeit zu erarbeiten. 15 Das Europäische Parlament hat im Juli eine Entschließung angenommen, in der es seine Beteiligung an dem Ausschuß fordert und den Ausschuß ersucht, den Vertragsentwurf zur Europäischen Union als Grundlage für seine Arbeit heranzuziehen. 16 Dem Europäischen Rat in Dublin hat der Ausschuß seinen Zwischenbericht vorgelegt, in dem er die Einberufung einer zwischenstaatlichen Konferenz empfiehlt. Bis März 1985 soll er auf Ersuchen des Rates seine Arbeit abschließen, damit sein Bericht Hauptthema der Ratssitzung i m Juni 1985 sein kann. 1 7 3. Die Beitrittsverhandlungen mit Spanien und Portugal gingen gut voran. I m Vordergrund standen die Kapitel Landwirtschaft und Fischerei sowie die institutionellen Aspekte. 18 Die Gemeinschaft und die zwei Bewerberländer legten im Oktober den 1. Januar 1986 als Termin für den Beitritt fest. 19 Die Verhandlungen über die zukünftigen Beziehungen zwischen Grönland und der Gemeinschaft konnten abgeschlossen werden. Der Rat hat sich mit der Dänischen Regierung und der Regierung von Grönland auf den Austritt Grönlands aus der Gemeinschaft am 1. Januar 1985 geeinigt. Grönland erhält dann 10 Bulletin der Europäischen Gemeinschaften (Bull. EG) 2-1984, Ziff. 1; vgl. Hans-Joachim Seeler, Vertrag zur Gründung der Europäischen Union, in: Europarecht (EuR) 19 (1984), S. 41—53, Wolfgang Wessels, Der Vertragsentwurf des Europäischen Parlaments für eine Europäische Union. Kristallisationspunkt einer neuen Europa-Debatte, in: Europa-Archiv (EA) 39 (1984) S. 239—248; Ingolf Pernice, Vertragsentwurf für eine Europäische Union, in: EuR 19 (1984), S. 126—142. 11 Bull. EG 7/8-1981, Ziff. 2.3.4. 12 Bull. EG 6-1984, Ziff. 1.1.9.; vgl. Werner Ungerer, Europäische Perspektiven nach Fontainebleau, in: Aussenpolitik 35 (1984), S. 394—408. 13 Bull. EG 11-1984, Ziff. 2.4.8. 1 4 Der „Spaak-Ausschuß" wurde 1955 auf der Konferenz von Messina gegründet und hat unter dem belgischen Außenminister Paul-Henri Spaak die Römischen Verträge ausgearbeitet. 15 Siehe Anm. 12. ι« ABl. C 239 vom 10. 09.1984 u. Bull. EG 7/8-1984, Ziff. 2. 4. 16. 17 18. Gesamtbericht (Anm. 3), Ziff. 4 . 18 18. Gesamtbericht (Anm. 3), Ziff. 600, 607, 614. ι» Bull. EG 10-1984, Ziff. 1.2.1.

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den Status der mit der Gemeinschaft assoziierten überseeischen Länder und Gebiete (ÜLG) mit einigen Sonderregelungen. Ein Fischereiabkommen sichert die Fangrechte der Gemeinschaft in grönländischen Gewässern. Grönländische Fischereierzeugnisse sollen freien Zugang zum M a r k t der Gemeinschaft haben. Da die Bestimmungen über die Statusänderung Grönlands Änderungen in den Verträgen erfordern, werden sie den Mitgliedstaaten zur Ratifizierung vorgelegt. 20 4. I m Bereich der Außenbeziehungen der Gemeinschaft war das Verhältnis zur Türkei gekennzeichnet zum einen durch den Wunsch der türkischen Regierung nach Normalisierung der Beziehungen, zum anderen durch den Hinweis der Kommission, daß sie dabei weiteren Fortschritten bei der Rückkehr zur parlamentarischen Demokratie und der Beachtung der Menschenrechte in der Türkei erhebliche Bedeutung beimißt. 2 1 Hauptthemen der Europäischen Politischen Zusammenarbeit (EPZ) waren die Ost-West Beziehungen, der Nahe Osten, Lateinamerika und das südliche Afrika. 22 I m Rahmen der Entwicklungszusammenarbeit konnte die E G am 8. Dezember 1984 mit 65 afrikanischen, karibischen und pazifischen Staaten ( A K P Staaten) das Lomé I I I - A b k o m m e n schließen. Es beinhaltet i m Vergleich zu den vorausgehenden Abkommen zahlreiche Verbesserungen, insbesondere wurden eine entwicklungspolitische Prinzipienerklärung sowie Bestimmungen zur Wahrung der Menschenrechte aufgenommen. 28 — Die Gemeinschaft bemühte sich i n verschiedenen Sonderaktionen um die Bekämpfung des Hungers in der Welt. 2 4 Sie führte daneben ihre Entwicklungshilfepolitik mit Programmen zur Nahrungsmittelhilfe 2 5 und durch Kooperationsabkommen 26 fort. II. Institutionelle Entwicklung 1. A m 14. und 17. Juni fand die zweite Direktwahl des Europäischen Parlaments statt. 2 7 Das Parlament wählte Pierre Pflimlin zu seinem Präsi20 Bull. EG 2-1984, Ziff. 1.4. 1.—1.4. 5.; vgl. Werner Ungerer, Der „Austritt" Grönlands aus der Europäischen Gemeinschaft, in: EA 39 (1984), S. 345—352. 21 18. Gesamtbericht (Anm. 3), Ziff. 2.2.22.; vgl. Heinz Kramer, Die Türkei und die Süderweiterung der EG, in: Aussenpolitik 35 (1984), S. 100—116. 22 Vgl. unten V. 23 Vgl. unten V. 4.; vgl. Dieter Frisch, Lomé I I I — Das neue Abkommen zwischen der Europäischen Gemeinschaft und den AKP-Staaten, in: EA 40 (1985), S. 57—68; Jürgen Nötzold und Klaus Frhr. von der Ropp, Lomé I I I : Neubeginn der Kooperation EWG/AKP, in: Aussenpolitik 36 (1985), S. 173—188. 24 18. Gesamtbericht (Anm. 3), Ziff. 726—730. 25 18. Gesamtbericht (Anm. 3), Ziff. 731—734; Otto Matzke, Pro und Contra der Nahrungsmittelhilfe, in: Aussenpolitik 35 (1984), S. 87—99. 2β 18. Gesamtbericht (Anm. 3), Ziff. 736—751. 27 Das Wahlergebnis im einzelnen in: Bull. EG 6-1984, Ziff. 1 . 2 . 1 . - 1 . 2 . 4 . ; zur Sitzver-

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denten 28 und setzte 18 parlamentarische Ausschüsse ein. 29 I m Jahre 1984 hielt das Parlament 12 Plenartagungen ab. Wichtigste Themen der Parlamentsdebatten waren Haushaltsprobleme 30 , die Situation der Frau 3 1 , die EG-Agrarp o l i t i k 3 2 , die Beziehungen der E G zu den Vereinigten Staaten 33 und die Hungersnot in Äthiopien und i m Sahel 34 . Das Parlament verabschiedete den Vertragsentwurf zur Gründung der Europäischen U n i o n 3 5 und einen Plan für den wirtschaftlichen Wiederaufschwung in der E G 3 6 . Z u Fragen der Menschenrechte gab es Entschließungen u. a. zur Lage des Ehepaares Sacharow 37, zu Menschenrechtsverletzungen in der Türkei 3 8 und zur Ermordung des polnischen Priesters Popieluszko 39. 2. Der Europäische Rat hat am 19./20. März in Brüssel 40 , am 25./26. Juni in Fontainebleau 41 und am 3./4. Dezember in D u b l i n 4 2 getagt. Die in Brüssel getroffenen Vereinbarungen scheiterten letztlich am Streit über eine Korrektur des Britischen Beitrages zum Gemeinschaftshaushalt. Nachdem dieser beigelegt war, konnten die Brüsseler Vereinbarungen in Fontainebleau wirksam beschlossen werden. Entscheidendes Ergebnis war vor allem die Beilegung des Streits über die gesamte Haushaltspolitik, der die E G in ihrer Handlungsfähigkeit mehr und mehr gelähmt hatte. I n Dublin gab es u. a. Beschlüsse zur Marktorganisation für Wein, die den Fortgang der Verhandlungen mit Spanien und Portugal ermöglichten, zum Ausbau des Europäischen Währungssystems und über zusätzliche Nahrungsmittelhilfe an Äthiopien und den Sahel. 3. Der Rat hielt i m Berichtszeitraum 84 Tagungen ab; den Vorsitz hatte i m ersten Halbjahr Frankreich und dann Irland inne. 4 3 Seine Arbeitsschwerteilung siehe: 18. Gesamtbericht (Anm. 3), Ziff. 12 u. 13; vgl. Thomas Läufer, Das Europäische Parlament vor seiner zweiten Wahl. Neue Perspektiven für Europa?, in: EA 39 (1984), S. 289—296; David Allen, Die Direktwahlen zum Europäischen Parlament im Juni 1984, in: EA 39 (1984), S. 685—694. 28 Bull. EG 7/8-1984, Ziff. 2. 4. 9.—2. 4.11. 2» 18. Gesamtbericht (Anm. 3), Ziff. 13, zu den Ausschüssen im einzelnen siehe dort Anm. 2. 30 Bull. EG 4-1984, Ziff. 2. 4. 9., Bull. EG 9-1984, Ziff. 2. 4. 7., Bull. EG 10-1984, Ziff. 2.4.4. und 2.4.9., Bull. EG 11-1984, Ziff. 2. 4.11.—2. 4.13., Bull. EG 12-1984, Ziff. 2.4.9. 31 Bull. EG 1-1984, Ziff. 2. 4. 6. 32 Bull. EG 3-1984, Ziff. 2. 4.14. 33 Bull. EG 4-1984, Ziff. 2.4. 7. 34 Bull. EG 11-1984, Ziff. 2.4.11. 35 Siehe oben I. 2. und Anm. 10. 3β Bull. EG 3-1984, Ziff. 2. 4.19. und 2. 4. 20. 37 Bull. EG 5-1984, Ziff. 2. 4.16., Bull. EG 7/8-1984, Ziff. 2. 4.17. 38 Bull. EG 5-1984, Ziff. 2. 4.16. 3β Bull. EG 11-1984, Ziff. 2. 4.16. 40 Bull. EG 3-1984, Ziff. 1. 1. 1. ff.; vgl. Gaston Ε . Thorn , Die Europäische Gemeinschaft — war es ein Irrtum? In: EA 39 (1984), S. 229—238. 41 Bull. EG 6-1984, Ziff. 1.1.1. ff. 42 Bull. EG 12-1984, Ziff. 1.2.1. ff. 43 18. Gesamtbericht (Anm. 3), Ziff. 18. und 19.; vgl. Heinz Stadlmann, Die Europäische Gemeinschaft nach der französischen Ratspräsidentschaft, in: EA 39 (1984), S. 447—454.

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punkte lagen auf dem Gebiet der Finanz- und Wirtschaftspolitik, der Agrarund Fischereipolitik und bei den Auswärtigen Beziehungen der EG. 4 4 4. Die Besetzung eines der Vizepräsidentenämter in der Kommission änderte sich im Jahre 1984 zweimal. 4 5 A m 4. Dezember wurden die 14 Mitglieder der neuen Kommission und Jacques Delors als Kommissionspräsident vom Europäischen Rat benannt. 46 5. Zum Richter am Europäischen Gerichtshof (EuGH) wurde am 26. März als Nachfolger des zurückgetretenen Präsidenten Mertens de Wilmars Herr René Joliet ernannt. 47 Lord Mackenzie Stuart wählte der E u G H zu seinem neuen Präsidenten. 48 A m 31. Dezember folgte Herr T. F. O'Higgins Herrn A. O'Caoimh als Richter nach. 49 A m 7. Februar trat Herr Marco Darmon als Generalanwalt an die Stelle von Frau Simone Rozès.50 6. Die ursprünglich im Haushaltsplan für 1984 aufgestellten M i t t e l mußten über den Nachtragshaushalt 1—1984 um 1,887 Milliarden European Currency U n i t (ECU) aufgestockt werden. Der Anteil an der Mehrwertsteuer wurde i m Nachtragshaushalt auf 1 % festgelegt. Die danach noch fehlenden 1,003 M i l l i arden E C U wurden durch die Mitgliedstaaten über rückzahlbare Vorschüsse finanziert. I m wesentlichen waren höhere Ausgaben i m Agrarbereich die U r sache für die Finanzierungsprobleme der Gemeinschaft. 51 — Der Haushaltsentw u r f für 1985 wurde vom Parlament in 2. Lesung abgelehnt. Die Finanzierung der E G erfolgt damit zunächst über monatliche Zahlungen bis zur Höhe eines Zwölftels der nach dem letztgültigen Haushaltsplan, also dem Nachtragshaushalt 1—1984, ausgewiesenen Mittel. 5 2 44

Im einzelnen siehe unten I V und V. F. X. Ortoli folgte am 12. Nov. E. Pisani und diesem am 17. Dez. R. Burke nach, dessen Mandat bis zum 5.1. 1985 läuft, 18. Gesamtbericht (Anm. 3), Ziff. 24. 46 Das Mandat von Delors läuft vom 6.1. 1985 bis 5.1.1987, Mandate vom 6. 1.1985 bis 5.1.1989 erhielten F.H.J.J. Andriesen, C. Cheysson, H. Christophersen, Lord Cockfield, S. L. Davis, W. De Clerq, N. Mosar, K.*-H. Narjes, L. Natali, A. i.Pfeiffer, C. Ripa di Meana, P. Sutherland , G. Varfis, ABl. L 341 vom 29.12.1984; zur Aufteilung der Zuständigkeiten siehe auch Bull. EG 12-1984, Ziff. 1. 1. l.ff. 47 ABl. L 87 vom 30. 3.1984. 4 ® 18. Gesamtbericht (Anm. 3), Ziff. 38. 4 » ABl. L 341 vom 29. 12.1984. so ABl. L 40 vom 11.2.1984; die Besetzung des EuGH bis 31.12.1984 ergibt sich laut 18. Gesamtbericht (Anm. 3), Ziff. 40, wie folgt: 1. Kammer: T. Koopmanns, Präsident; G. Bosco und R. Joliet, Richter; 2. Kammer: K. Bahlmann, Präsident; P. Pescatore und O. Due, Richter; 3. Kammer: Y. Galmor, Präsident; U. Everling und C. Kakouris, Richter; 4. Kammer: T. Koopmanns, Präsident; K. Bahlmann, P. Pescatore, A. O'Keefe und G. Bosco, Richter; 5. Kammer: Y. Galmor, Präsident; O. Due, U. Everling, C. Kakouris und R. Joliet, Richter; Generalanwälte: VerLoren van Themaat, Sir Gordon Slynn, G. F. Mancini, C. O. Lenz und M. Darmon. 51 Bull. EG 10-1984, Ziff. 1.1.1. ff. 52 18. Gesamtbericht (Anm. 3), Ziff. 76; Bull. EG 12-1984, Ziff. 1.4.1. bis 1.4.7. 45

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III. Ausbau des Gemeinsamen Marktes 1. Wie sehr die Zollunion auch in diesem Jahr 5 3 durch administrative Hemmnisse in Frage gestellt war, machte die Blockade verschiedener Grenzübergänge in den Alpen aus Protest gegen die Beschränkungen des freien Warenverkehrs einer breiten Öffentlichkeit deutlich. I m Dezember hat der Rat der Einführung des Einheitspapiers zugestimmt, das, indem es etwa 100 verschiedene Dokumente ersetzt, den innergemeinschaftlichen Warenverkehr erleichtern soll. Die Liste der erforderlichen Angaben konnte gegenüber der 1983 beschlossenen54 weiter verkürzt werden. Die Einführung des Einheitspapiers ist auf den 1. Januar 1988 festgesetzt. 55 I m November genehmigte der Rat die ab 1.1. 1985 geltende neue Fassung des Gemeinsamen Zolltarifs ( G Z T ) . 5 e Die Arbeiten zur Einfächerung des G Z T und des Warenverzeichnisses für die Handelsstatistik in das weltweit geltende System zur Bezeichnung und Codierung der Waren 5 7 waren Ende 1984 nahezu abgeschlossen; das Ergebnis soll 1985 i m G A T T vorgelegt werden. 58 Eine Verordnung des Rates zum Zollgebiet der EG, insbesondere die Hoheitsgewässer der Mitgliedstaaten betreffend, konnte zur Harmonisierung der allgemeinen Zollregelungen beitragen. 59 2. I m Bereich des freien Warenverkehrs trat in diesem Jahr die Richtlinie des Rates vom 28. 03. 1983 über ein Informationsverfahren auf dem Gebiet der Normen und technischen Vorschriften in K r a f t . 6 0 A m 16. Juli formulierte der Rat in seinen Schlußfolgerungen die Grundlagen einer europäischen N o r mungspolitik. 6 1 Die Festlegung technischer Merkmale von Erzeugnissen soll danach weitgehend über Normen erfolgen, gewährleistet durch die Ausweitung der europäischen Normungskapazität. Die Kommission bemühte sich, diese Grundsätze praktisch zu verwirklichen und hat zur Ausweitung der Normungskapazität allgemeine Leitlinien über ihre Zusammenarbeit m i t den europäischen Normungsinstituten festgelegt. 62 Weiter berichtete die Kommission dem Parlament in einem Jahresbericht 63 über ihre Bemühungen, außertarifliche Hemmnisse, die mit den Artikeln 30 bis 36 EWG-Vertrag nicht vereinbar sind, zu beseitigen. 53 Vgl. Vorbericht, I I I . 1. 54 Vgl. Vorbericht, I I I . 1. 55 18. Gesamtbericht (Anm. 3), Ziff. 180. 5β ABl. L 320 vom 10.12.1984 und Bull. EG 11-1984, Ziff. 2.1. 28. 57 Vgl. Vorbericht, I I I . 1. 58 18. Gesamtbericht (Anm. 3), Ziff. 160. 5» Bull. EG 7/8-1984, Ziff. 2.1. 44. «ο Bull. EG 4-1984, Ziff. 2.1.10. ei Bull. EG 7/8-1984, Ziff. 2.1.12. 62 18. Gesamtbericht (Anm. 3), Ziff. 139. es Bull. EG 4-1984, Ziff. 3. 3.1.

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3. U m die Wettbewerbsfähigkeit der europäischen Industrie und die U m strukturierung i n einzelnen Wirtschaftsbereichen zu unterstützen, waren trotz eines leichten Wirtschaftswachstums sektorale Aktionen der Gemeinschaft notwendig. I m Stahlbereich wurde die Überwachung der Erzeugungsquoten bis zum 31. 12. 1985 verlängert. 84 Wegen der leichten Verbrauchssteigerung konnten die Quoten i m Laufe des Jahres mehrfach angepaßt werden. 65 Die Rohstahlproduktion in der E G stieg von 109,5 Millionen Tonnen ( M i l l , t.) i m Jahr 1983 auf etwa 120 M i l l . t. i m Jahr 1984. Der Verbrauch erhöhte sich um 10°/o. 66 I n der Umstrukturierung der Stahlindustrie wurden Fortschritte erreicht. Der Abbau der Produktionskapazität um 26,7 M i l l , t., den die Kommission 1983 als Gegenleistung für Beihilfen gefordert hatte 6 7 , ist größtenteils verwirklicht. 6 8 Die meisten Mitgliedstaaten haben ihre endgültigen Umstrukturierungspläne vorgelegt 60 , in denen teilweise Kapazitätsverringerungen vorgesehen sind, die über die Kommissionsforderungen hinausgehen. 70 Die Kommission genehmigte nach Rentabilitätsprüfungen die Pläne zahlreicher Unternehmen und zahlte die vorgesehenen Beihilfen. 71 Zugunsten der Automobilindustrie hat die Kommission die Maßnahmen weiterverfolgt, die sie in ihrer Mitteilung von 1983 72 aufgelistet hatte. Das Parlament hat die Kommission aufgefordert, ein kohärentes Konzept zu entwickeln, das die Wettbewerbsfähigkeit und Effizienz in der Automobilindustrie verbessert. 73 Die Lage i m Schiffbau hat sich weiter verschlechtert. Der sinkende Marktanteil der europäischen Schiffbauindustrie ist vor allem auf den Wettbewerbsdruck durch Japan und Südkorea zurückzuführen. 74 Die Kommission hat zur internen Stützung des Sektors dem Rat weitere Beihilfen und besondere Zuschüsse für von der Umstrukturierung stark betroffene Zonen vorgeschlagen. 75 Nach außen versuchte sie, die Krisenlast mit Unterstützung durch Japan und Südkorea möglichst gleichmäßig zu verteilen. 76 β4 ABl. L 29 vom 1. 2.1984, Bull. EG 1-1984, Ziff. 1. 2.1. ff. 18. Gesamtbericht (Anm. 3), Ziff. 187 mit weiteren Nachweisen (m.w.N.). ββ Zum Vergleich: Verbrauchssteigerung in den USA: 19%; in Japan: 12%; 18. Gesamtbericht (Anm. 3), Ziff. 188. β7 Vgl. Vorbericht, I I I . 3. β» Bull. EG 6-1984, Ziff. 2.1.13., Bull. EG 11-1984, Ziff. 2.1.19. β» Bull EG 2-1984, Ziff. 2.1.46. 70 Bull. EG 2-1984, Ziff. 2.1.21., Bull. EG 3-1984, Ziff. 2.1.24., Bull. EG 5-1984, Ziff. 2.1.26. 71 18. Gesamtbericht (Anm. 3), Ziff. 228. 72 17. Gesamtbericht über die Tätigkeit der Europäischen Gemeinschaften 1983, hrsg. von der Kommission der EG, Brüssel/Luxemburg 1984 (im folgenden: 17. Gesamtbericht). Ziff. 129; Bull. EG 12-1983, Ziff. 2.1.21., vgl. auch Vorbericht, I I I . 3. 73 ABl. C 117 vom 30.4.1984 und Bull. EG 3-1984, Ziff. 2.4.22. 74 Verringerung des EG-Marktanteils von 1 7 % auf 11%, Marktanteil von Japan und Südkorea: 65%, Bull. EG 10-1984, Ziff. 2.1.26. 75 18. Gesamtbericht (Anm. 3), Ziff. 226 und 349. 7β 18. Gesamtbericht (Anm. 3), Ziff. 193.

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4. I m Bereich des Wettbewerbs erließ die Kommission i m Juli eine Verordnung über die Gruppenfreistellung von Patentlizenz- und Know-how Vereinbarungen. 77 Die Verordnung soll die Verbreitung neuer Technologien in der E G fördern, indem sie das Alleinrecht für die Lizenznehmer vom Kartellverbot des Artikels 85 I des EWG-Vertrages freistellt. Sie ermöglicht den Lizenznehmern, sich für die Gültigkeitsdauer der Patente gegenseitig vor aktivem wie passivem Wettbewerb zu schützen. 5 Jahre gilt dieser Schutz auch für die Lizenznehmer untereinander, danach sind sie nur noch vor aktivem Wettbewerb geschützt. Eine am 12. Dezember von der Kommission erlassene Verordnung über die Freistellung bestimmter Gruppen von Vertriebs- und K u n dendienstvereinbarungen im Automobilsektor soll am 1. Juni 1985 für die Dauer von 10 Jahren in K r a f t treten. 78 Auch die schon 1983 beratene 79 Verordnung über Gruppenfreistellungen von Vereinbarungen über die Zusammenarbeit in Forschung und Entwicklung wurde verabschiedet. 80 Die Kommission änderte ihre Verordnung zur Freistellung bestimmter Gruppen von Spezialisierungsvereinbarungen 81 und unter Berücksichtigung von Anregungen des Parlaments 82 sowie des Wirtschafts- und Sozialausschusses83 ihren Verordnungsvorschlag über die Kontrolle von Unternehmenszusammenschlüssen. 84 Weiter richtete sie an den Rat ein Memorandum über die Z i v i l l u f t f a h r t 8 5 und nahm Änderungen ihres Verordnungsvorschlags zur Anwendung der Wettbewerbsregeln i m Luftverkehr 8 6 vor. Das Parlament gab zum Vorschlag für eine Verordnung über die Seeschiffahrt eine Stellungnahme ab, in der es Wettbewerbsregeln in diesem Sektor grundsätzlich befürwortet. 8 7 I m Berichtszeitraum erließ die Kommission 20 Entscheidungen zu A r t i k e l 85 und 86 EWG-Vertrag, 5 Entscheidungen zu A r t i k e l 65 und 66 EGKSVertrag und ablehnende Entscheidungen zu 3 Beschwerden in derselben 77 ABl. L 219 vom 16.8.1984 und Bull. EG 7/8-1984, Ziff. 2.1.50. siehe im einzelnen Vierzehnter Bericht über die Wettbewerbspolitik (im folgenden: 14. Wettbewerbsbericht), hrsg. von der Kommission der EG, Brüssel/Luxemburg 1985, Ziff. 31—35. 78 ABl. L 15 vom 18.1.1985 und Bull. EG 12-1984, Ziff. 2.1.50.; zum Verordnungsentwurf vgl. Vorbericht, I I I . 4., 14. Wettbewerbsbericht, Ziff. 36—41. 79 17. Gesamtbericht, Ziff. 230 und Vorbericht, I I I . 4. so Bull. EG 12-1984, Ziff. 2.1.51., 14. Wettbewerbsbericht, Ziff. 28—30. ei Bull. EG 12-1982, Ziff. 2.1.34., Bull. EG 12-1984, Ziff. 52., 14. Wettbewerbsbericht, Ziff. 42. 82 ABl. C 322 vom 28. 11. 1983. 83 ABl. C 252 vom 27. 9.1982. 84 ABl. C 51 vom 23.2.1984 und Bull. EG 2-1984, Ziff. 2.1.42., 14. Wettbewerbsbericht, Ziff. 43. 85 ABl. C 182 vom 9.7.1984, Bull. EG 2-1984, Ziff. 2.1.149., 14. Wettbewerbsbericht, Ziff. 44. 8β ABl. C 317 vom 3.12.1982. 87 ABl. C 172 vom 2. 7. 1984 und Bull. EG 5-1984, Ziff. 2.1.172.

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Sache.88 Dabei ahndete die Kommission gem. A r t i k e l 85 I EWG-Vertrag „klassische" Verstöße gegen das Kartellrecht durch Geldbußen bei 5 Chemieunternehmen 89 , Unternehmen der Flachglasbranche 90 und 6 Zinkherstellern 91 . Dem deutschen Milchförderungsfonds wurden private Zuschüsse untersagt. 92 Schließlich verurteilte die Kommission ein Aluminium- und ein Zellstoffkartell. 9 3 Die Politik der Kommission, daß selektiver Vertrieb nur nach objektiven Kriterien zulässig ist, wurde in einigen Entscheidungen deutlich. 94 Zwei Entscheidungen sanktionierten Marktabschottungen im Bereich des Alleinvertriebs. 95 I m Interesse des Verbrauchers ließ man die Schaffung eines gemeinsamen Automobilmarktes zu 9 6 und beseitigte zu strenge Wettbewerbsbeschränkungen i m Möbelvertrieb. 97 Es gab Freistellungen vom Kartellverbot bei Vereinbarungen im Kunstfaser- 98 , Petrochemie- 99 , Bank- 1 0 0 , Industrieversicherungs- 101 und Brauereisektor 102 . Unter Anwendung des Artikels 86 EWG-Vertrag verhängte die Kommission in einem Fall eine Geldbuße wegen Ausnutzung einer marktbeherrschenden Stellung. 103 I V . Politiken der Gemeinschaft 1. Der Rat hat wie üblich dreimal zur Wirtschaftslage der Gemeinschaft beraten, um eine hohe Konvergenz der Wirtschaftspolitiken zu erreichen. A n 104 läßlich seiner ersten Beratung i m M ä r z konnte er feststellen, daß eine A n passung der i m Dezember 1983 beschlossenen wirtschaftspolitischen Leitlinien für 1984 nicht erforderlich war. Das blieb auch bei der zweiten vierteljährlichen Beratung i m J u l i 1 0 5 so, auf der ihm die Kommission die quantitativen Orien88 18. Gesamtbericht (Anm. 3), Ziff. 217. 8» Entscheidung vom 26.11.1984 (Peroxid), Bull. EG 11-1984, Ziff. 2.1.36. Zu den Entscheidungen vgl. ausführlich 14. Wettbewerbsbericht, II. § 1—9. 00 Entscheidung vom 23.7.1984 (Flachglas), Bull. EG 7/8-1984, Ziff. 2.1.53. 01 Entscheidung vom 6. 8.1984 (link Producer Group), Bull. EG 7/8-1984, Ziff. 2.1. 52. 92 Entscheidung vom 7.12.1984, Bull. EG 12-1984, Ziff. 2.1. 56. 9» Entscheidung vom 19.12.1984 (Aluminium, lellstoff), Bull. EG 12-1984, Ziff. 2.1.53., 2.1.54. 94 Entscheidung vom 18.4.1984 (IBM), Bull. EG 4-1984, Ziff. 2.1.47., Entscheidung vom 10.12. 1984 (Grohe, Ideal-Standard), Bull. EG 12-1984, Ziff. 2.1. 60. 95 Entscheidung vom 16. 5.1984 (Polistil / Arbois), Bull. EG 5-1984, Ziff. 2.1. 48., Entscheidung vom 14.12.1984 (John Deere), Bull. EG 12-1984, Ziff. 2.1. 59. 9® Bull. EG 5-1984, Ziff. 2. 1. 49., Bull. EG 11-1984, Ziff. 2.1. 38. (Fiat, Alfa Romeo). 97 Bull. EG 1-1984, Ziff. 2.1. 33. 98 Entscheidung vom 4. 7.1984, Bull. EG 7/8-1984, Ziff. 2.1. 54. 99 Entscheidung vom 19.7.1984 (BPCL-ICI), Bull. EG 7/8-1984, Ziff. 2.1.55. 100 Entscheidung vom 10. 12.1984 (Euroschecks), Bull. EG 12-1984, Ziff. 2.1. 58. ιοί Entscheidung vom 30. 3.1984 (Nuovo Cegam), Bull. EG 3-1984, Ziff. 2.1. 44. 102 Entscheidung vom 12.7.1984 (Carlsberg), Bull. EG 7/8-1984, Ziff. 2.1.56. 103 Entscheidung vom 2. 7.1984 (British Leyland), Bull. EG 7/8-1984, Ziff. 2.1. 59. 104 Bull. EG 3-1984, Ziff. 2.1.1. 105 Bull. EG 7/8-1984, Ziff. 2.1.2.

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tierungsdaten für die Staatshaushalte der Mitgliedstaaten 1985 vorlegte. I n dieser Mitteilung empfiehlt die Kommission für die ihrer Ansicht nach weiter gültige Orientierung über 1984 hinaus die Verringerung des Finanzbedarfs im öffentlichen Sektor, Flexibilität und Umstrukturierungen der öffentlichen Ausgaben zugunsten produktiverer Sektoren. 106 I m Dezember 107 hat der Rat nach der dritten Prüfung der Wirtschaftslage auf Vorschlag der Kommission 1 0 8 den Jahresbericht über die Wirtschaftslage der Gemeinschaft verabschiedet und die wirtschaftspolitischen Leitlinien für 1985 1 0 9 festgelegt. Die Kommission hat im Juni dem Rat eine Mitteilung zugeleitet, in der sie die Erfahrungen mit den Fünfjahresprogrammen zur mittelfristigen Wirtschaftspolitik als nicht zufriedenstellend bezeichnet. Sie befürwortet statt dessen künftig konkretere und effizientere Aktionen von begrenztem Umfang in Zusammenarbeit mit dem Ausschuß für Wirtschaftspolitik. 1 1 0 Aufgrund der 1983 festgesetzten Höchstgrenze von 3 Milliarden E C U für Anleihen des Neuen Gemeinschaftsinstruments ( N G I ) , von denen 1,218 Milliarden ausgeschöpft worden waren 1 1 1 , hat der Rat in diesem Jahr eine zweite Tranche von 1,4 Milliarden E C U bewilligt, die von der Kommission durch Darlehen in Höhe von 1,182 Milliarden E C U in Anspruch genommen wurde 1 1 2 . 2. I m Europäischen Währungssystem (EWS) konnten der stabilen Wechselkurse wegen die im März 1983 festgesetzten Leitkurse 1 1 8 beibehalten werden. Die Kommission leitete dem Rat eine Mitteilung zu, in der das fünfjährige Funktionieren des EWS bewertet wird. Der Rat „Wirtschaft und Finanzen" sah die Vorgabe des Europäischen Rates von Bremen 114 , eine engere währungspolitische Zusammenarbeit solle zu einer stabilen Währungszone in Europa führen, danach als erreicht an. Er betonte, wie wichtig Ausbau und Weiterentwicklung des EWS auch als Beitrag zur Stabilisierung des internationalen Währungssystems seien. 115 3. I m Rahmen der Regionalpolitik verabschiedete der Rat i m Juni auf der Grundlage der Kommissionsvorschläge von 1981 1 1 6 und 1983 1 1 7 die Verordne Bull. EG 6-1984, Ziff. 2.1. 3. η? Bull. EG 12-1984, Ziff. 2.1. 3. 108 Bull. EG 10-1984, Ziff. 2.1. 2. 109 Jahreswirtschaftsbericht 1984—1985 (Anm. 2), S. 17 ff. no Bull. EG 6-1984, Ziff. 2.1. 4. m Siehe Vorbericht, IV. 1. us 18. Gesamtbericht, Ziff. 93 und 94. us 17. Gesamtbericht (Anm. 72), Ziff. 135; vgl. Vorbericht, IV. 2. 114 Bull. EG 6-1978, Ziff. 1.5.1. bis 1.5.8. us Bull. EG 3-1984, Ziff. 1.3.1. ff.; vgl. Helmut Schmidt, Vorschläge-für eine Weiterentwicklung des Europäischen Währungssystems, in: EA 40 (1985), S. 223—232. ne Bull. EG 10-1981, Ziff. 1. 2. 1. bis 1. 2. 9. 117 Bull. EG 11-1983, Ziff. 1.1.1. bis 1.1. 8.

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nung zur Reform des Europäischen Fonds für regionale Entwicklung (EFRE). 1 1 8 Sie t r i t t am 1. Januar 1985 in Kraft. Die EFRE-Verordnung enthält als Neuerungen Vorschriften über die Koordinierung der Regionalpolitiken, die Analyse der regionalen Auswirkungen und dem periodischen Bericht, Ersatz der nationalen Quoten durch Richtspannen, Finanzierung nach Programmen, Anhebung und Vereinfachung der Sätze, Erweiterung der Möglichkeiten für eine Beteiligung zugunsten von Klein- und Mittelbetrieben sowie die Einführung eines Systems von Vorschüssen und über die integrierten Maßnahmen. 1 1 9 I m Jahr 1984 erhielten 4394 Investitionsvorhaben Beihilfen aus der quotengebundenen Abteilung des EFRE von insgesamt 2,322 Milliarden E C U . 1 2 0 Der inzwischen geänderte Verordnungsvorschlag der Kommission zu den Integrierten Mittelmeerprogrammen ( I M P ) 1 2 1 konnte der Vorbehalte Griechenlands wegen vom Rat noch nicht gebilligt werden. Das Problem wurde vom Europäischen Rat in Dublin erörtert. 1 2 2 Pilotaktionen zum I M P sind, wie 1983 beschlossen123, weiter verfolgt worden. 1 2 4 4. Vorrangiges Problem in der Sozialpolitik bildete weiter die Arbeitslosigkeit von nunmehr 13 Millionen Europäern. 125 Der Rat befaßte sich in Entschließungen mit den Besonderheiten der Frauen- 126 und Langzeitarbeitslosigkeit 1 2 7 . Er wies gegenüber den Mitgliedstaaten auf die Bedeutung örtlicher Beschäftigungsinitiativen bei der Bekämpfung der Arbeitslosigkeit hin. 1 2 8 I m Jahre 1984 wurde die neue Regelung über die Aufgaben des Europäischen Sozialfonds (ESF) 1 2 9 erstmals angewendet. Die Verpflichtungsermächtigungen des ESF erreichten in diesem Jahr eine Höhe von 1,902 Milliarden E C U . Der größte Teil dieses Geldes wurde für Maßnahmen zugunsten Jugendlicher unter 25 Jahren eingesetzt. Das Gesamtvolumen der zuschußfähigen Anträge erreichte 3,27 Milliarden E C U und die im Haushaltsplan 1984 eingesetzten Zahlungsermächtigungen betrugen 1,211 Milliarden E C U . 1 3 0 I m Rahmen der sozialen Flankierungsmaßnahmen zur Umstrukturierung hat der Rat für den Kohlesektor 1 3 1 60 M i l l . E C U und für die Eisen- und Stahlindustrie 182 62,5 M i l l . E C U bewilligt. H8 ABl. L 169 vom 28. 6.1984. ne Vgl. zum Inhalt der Verordnung Bull. EG 6-1984, Ziff. 1. 1. 3. bis 1. 3. 11. 120 18. Gesamtbericht (Anm. 3), Ziff. 352. 121 18. Gesamtbericht (Anm. 3), Ziff. 357. 122 Bull. EG 12-1984, Ziff. 1.2. 1. 123 17. Gesamtbericht (Anm. 72), Ziff. 370. 124 18. Gesamtbericht (Anm. 3), Ziff. 358. 125 Vgl. oben S. 456. 126 ABl. C 161 vom 21. 6.1984 und Bull. EG 6-1984, Ziff. 2.1. 57. 127 ABl. C 2 vom 4.1.1985 und Bull. EG 12-1984, Ziff. 2.1. 82. 128 ABl. C 161 vom 21. 6.1984 und Bull. EG 6-1984, Ziff. 2.1. 45. 129 Siehe Vorbericht, IV. 4. 130 18. Gesamtbericht (Anm. 3), Ziff. 285—290 und Tabelle 8. 131 ABl. L 208 vom 3.8.1984 und Bull. EG 7/8-1984, Ziff. 2.1.173.

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5. A u f dem Weg zu einer gemeinsamen Verkehrspolitik konnten Fortschritte erzielt werden. Der Rat verabschiedete Ende des Jahres Richtlinien über Gewichte und Abmessungen bei Nutzfahrzeugen und die Verwendung von Mietfahrzeugen im Güterkraftverkehr, die Verordnung über die Aufstockung des Gemeinschaftskontingents und eine Empfehlung zur kommerziellen Zusammenarbeit der Eisenbahnunternehmen. 133 Die Kommission war generell bemüht, pragmatische Lösungsvorschläge zu einzelnen Fragen zu erarbeiten. Dies zeigte sich exemplarisch in ihren Mitteilungen zum See- 134 und Luftverkehr 1 3 5 . Die Gemeinschaft hat mit Spanien ein Abkommen zum grenzüberschreitenden kombinierten Güterverkehr Schiene / Straße geschlossen, das vorsieht, den Vor- und Nachlauf auf der Straße von jeder Genehmigungspflicht und Kontingentierung zu befreien. 136 Obgleich die Kommission bei schweizerischen Behörden ihr ganzes Gewicht eingesetzt hat, konnte die Einführung der neuen Straßenverkehrssteuern, die Fahrzeuge aus der Gemeinschaft diskriminieren, nicht verhindert werden. R a t 1 3 7 und Parlament 1 3 8 haben ihre Besorgnis gegen diese Maßnahmen zum Ausdruck gebracht und forderten die Kommission auf, weiter zu verhandeln, um eine baldige Abschaffung der Steuern zu erreichen. Der Rat beschloß eine dritte Richtlinie zur Regelung der Sommerzeit in den Jahren 1986, 1987 und 1988. 139 Der E u G H hat sich in diesem Jahr mit der Untätigkeitsklage 1 4 0 des Parlaments gegen den Rat befaßt. Sein Urteil w i r d für 1985 erwartet. 6. Die Inlandsnachfrage i m Energiebereich ist seit 1973 um 6 % gesunken, während das BIP um 20 %> stieg. Die Verringerung der Abhängigkeit von Erdöleinfuhren in diesem Zeitraum um die Hälfte unterstreicht die Verbesserung der Energiesituation in der E G zusätzlich. 141 Die Kommission legte eine ausführliche Analyse zu den Energiepolitiken der Mitgliedstaaten vor, in der sie die Ubereinstimmung mit den Zielen der Gemeinschaft prüft und auf die Probleme der Zukunft hinweist. Zwar betont die Kommission, daß es Fortschritte auf dem Weg zu den Zielen der Gemeinschaft für 1990 gebe, weist jedoch darauf hin, daß sich die Unterschiede zwischen den Mitgliedstaaten in ihrer Abhängigkeit von Erdöleinfuhren noch verstärken werden. I n einer 132 ABl. L 291 vom 8.11.1984, Bull. EG 7/8-1984, Ziff. 2.1.34., Bull. EG 10-1984, Ziff. 2. 1.25. 133 Bull. EG 12-1984, Ziff. 2.1.198. ff. 134 ABl. L 2 vom 3.1.1985. 135 ABl. C 182 vom 9. 7.1984. ΐ3β Bull. EG 1-1984, Ziff. 2.1.103., Bull. EG 12-1984, Ziff. 2.1.209. 137 Bull. EG 12-1984, Ziff. 2.1. 210. 138 ABl. C 12 vom 14.1.1985, Bull. EG 12-1984, Ziff. 2. 4.13. 139 ABl. L 331 vom 19.12.1984. 140 V g l . V o r b e r i c h t , I V . 5 .

ι « 18. Gesamtbericht (Anm. 3), Ziff. 506.

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zweiten Mitteilung stellte sie die vorrangigen Aufgaben der EG bei der Bemühung um den Strukturwandel im Energiesektor heraus. 142 I n einem Arbeitsdokument für den Rat prognostiziert die Kommission Angebot und Nachfrage für Energie in der Gemeinschaft bis zum Jahr 2000. 1 4 3 I m Rahmen der Bemühungen um die rationellere Energienutzung unterstützte die Kommission 68 Vorhaben zur Energieeinsparung mit 26,2 M i l l . E C U und 131 Vorhaben auf dem Gebiet der alternativen Energiequellen mit 30,4 M i l l . E C U . Es wurden außerdem M i t t e l für Vorhaben zur Substitution von Kohlenwasserstoffen und zur Verflüssigung und Vergasung fester Brennstoffe zur Verfügung gestellt. 144 Der Verordnungsvorschlag der Kommission 1 4 5 zur Modernisierung und U m stukturierung der Kohleindustrie fand beim Rat keine Zustimmung. 1 4 6 Angesichts der in diesem Jahr gestiegenen Stromnachfrage wies die Kommission den Rat darauf hin, daß die Anstrengungen, 70—75°/o des Primärenergiebedarfs für die Stromerzeugung über die Kernenergie und feste Brennstoffe zu decken, fortzusetzen seien und der gewonnene Strom verstärkt zur Substitution von Erdöl eingesetzt werden müsse. 147 7. Wie es das dritte Aktionsprogramm 1 4 8 zum Umweltschutz vorschreibt, bemühte sich die Kommission, den Belangen des Umweltschutzes in allen Politiken der Gemeinschaft den angemessenen Stellenwert zukommen zu lassen. Rat und Kommission verfolgten den Kampf gegen die Gewässerverschmutzung als eine Hauptaufgabe der E G in diesem Sektor durch Maßnahmen gegen die Einleitung verschiedener chemischer Gifte in Gewässer und gegen die Ölverschmutzung des Meeres. 149 Die Kommission nahm an der Internationalen Konferenz zum Schutz der Nordsee vor Verunreinigung in Bremen 150 und an der multilateralen Konferenz über das Waldsterben in München 1 5 1 teil. Sie schlug dem Rat eine neue Gemeinschaftsregelung zur Einführung bleifreien Benzins und zur Verringerung der Kfz-Schadstoffemissionen 152 sowie Aktionen zum Schutz des Waldes vor Bränden und „Saurem Regen" vor. 1 5 3 Der Rat erließ Richtlinien gegen die verunreinigenden Emissionen 142 Bull. EG 2-1984, Ziff. 2.1.152. 143 Bull. EG 12-1984, Ziff. 2.1.211. 144 18. Gesamtbericht (Anm. 3), Ziff. 515. 145 Vgl. Vorbericht, IV. 6. 146 18. Gesamtbericht (Anm. 3), Ziff. 523. 147 Siehe Anm. 142. 148 Vgl. Vorbericht, IV. 7. m.w.N. 149 18. Gesamtbericht (Anm. 3), Ziff. 360—364. 150 Bull. EG 9-1984, Ziff. 2.1.65., Bull. EG 11-1984, Ziff. 2.1.86. 151 Bull. EG 6-1984, Ziff. 2.1. 79. 152 Bull. EG 5-1984, Ziff. 1.2.1. ff.; spätere Ergänzungen: Bull. EG 9-1984, Ziff. 2.1.67., Bull. EG 10-1984, Ziff. 2.1. 77. 153 ABl. C 208 vom 8. 8.1984 und Bull. EG 7/8-1984, Ziff. 2.1. 112.

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großer Industrieanlagen 154 , zu Luftqualitätsnormen für N O 1 5 5 und zur Uberwachung grenzüberschreitender Verbringung von gefährlichen Abfällen 1 5 6 . 8. Trotz der Haushaltsschwierigkeiten in der E G wurde 1984 an den Leitlinien und Zielen des Rahmenprogramms 1984—1987 157 zur Forschungspolitik festgehalten. I n diesem Zusammenhang beschloß der Rat das Mehrjahresprogramm der Gemeinsamen Forschungsstelle (GFS) 1984—1987 158 , ausgestattet mit 700 M i l l . ECU, und das Programm Esprit 1 5 9 für den gleichen Zeitraum mit einem Etat von 750 M i l l . ECU. Erst zum Jahresende gelang dem Rat eine Einigung auf 6 weitere Forschungsprogramme mit einem Gesamtvolumen von 1,225 Milliarden E C U . 1 6 0 Allein 690 M i l l . E C U wurden für das Programm zur kontrollierten Kernfusion veranschlagt, in dessen Rahmen i m A p r i l in Culham der JET (Joint European Torus) eingeweiht w u r d e 1 6 1 und Forschung zum N E T (Next European Torus) mit dem Ziel betrieben wird, die technische Durchführbarkeit der Fusion nachzuweisen. 162 Hervorzuheben ist auch das Programm Biotechnologie, von dem eine Förderung von Industrie und Landwirtschaft in der E G erwartet werden darf. 1 6 3 9. Dem Rat gelang es i m März, zu einer Globaleinigung 164 über die Revision der gemeinsamen Agrarpolitik und zur Festsetzung der Agrarpreise für das Wirtschaftsjahr 1984/85 zu kommen. Die Globaleinigung beinhaltet eine realistische Preispolitik, den Abbau der Währungsausgleichsbeträge, eine Quotenregelung bei der Milcherzeugung, die Ausdehnung des Instruments der Garantieschwellen auf weitere Erzeugnisse, die Rationalisierung der Beihilfen und Prämien und die Wahrung der Gemeinschaftspräferenz. Die durchschnittliche Anhebung der Agrarpreise beträgt in diesem Wirtschaftsjahr 3,3 °/o. 165 I m Rahmen der Neugestaltung der Agrarstrukturpolitik hat der Rat eine Verordnung verabschiedet, die die Maßnahmen der Verordnung 355/77 zur Verbesserung der Verarbeitungs- und Vermarktungsbedingungen ab 1.1.1985 auf 10 Jahre verlängert und einige Neuerungen enthält. 1 6 6 Das Jahr 1984 zeich154 ABl. L 188 vom 16. 7.1984 und Bull. EG 3-1984, Ziff. 2.1.104. iss Bull. EG 12-1984, Ziff. 12.1.125. 156 ABl. L 362 vom 13.12.1984, Bull. EG 12-1984, Ziff. 2.1.132. 157 17. Gesamtbericht (Anm. 72), Ziff. 568. 158 ABl. L 3 vom 5.1.1984 und Bull. EG 12-1983, Ziff. 2.1. 225. 159 ABl. L 67 vom 9.3.1984 und Bull. EG 2-1984, Ziff. 1.3.1. ff. 160 Zu den Programmen und der Mittelverteilung Bull. EG 12-1984, Ziff. 1. 7. 1. und 1. 7. 2. 161 Bull. EG 4-1984, Ziff. 1.4.1. ff. 162 Bull. EG 5-1984, Ziff. 2.1.195. 163 Bull EG 4-1984, Ziff. 2.1. 25. 164 Bull. EG 3-1984, Ziff. 1. 2.1. bis 1. 2. 8., 2.1.113. bis 2.1.119., 2. 1.122. bis 2.1. 125. 165 Zu den Preisen vgl. Tabelle 8 in: Bull. EG 3-1984, Ziff. 2.1.114. 166 Bull. EG 6-1984, Ziff. 2.1. 99.

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nete sich insgesamt durch einen starken Anstieg der Agrarerzeugung aus. 167 Es gab Probleme bei der Vermarktung verschiedener Erzeugnisse, die sich audi i m Haushalt niederschlugen. Die immer schwierigere Finanzierung der gemeinsamen Agrarpolitik konnte 1984, bei fehlenden Eigenmitteln, nur über einen Nachtragshaushalt erreicht werden. 1 6 8 10. I n der Fischereipolitik konnte sich der Rat 1984 erstmals schon zum Jahresbeginn auf die Gesamtfangmengen ( T A C ) und die Fangquoten einigen. 169 Die T A C und die Quoten für 1985 konnten bereits festgelegt werden. 1 7 0 Damit zeichnet sich eine Stabilisierung der jetzt zweijährigen gemeinsamen Fischereipolitik ab. I m Bereich der Erhaltung von Fischbeständen wurden verschiedene technische Maßnahmen erlassen. 171 Nationale Dringlichkeitsmaßnahmen zum Schutz eines Bestandes waren 1984 nicht nötig. 1 7 2 Die Kommission bemühte sich, durch gezielte Kontrollen und andere Uberwachungsmaßnahmen die Einhaltung der Gemeinschaftsregelungen auf diesem Sektor zu erwirken. 1 7 3 Die Umstrukturierung, Modernisierung und Entwicklung der Fischerei W i r t s c h a f t und Aquakultur wurden über Beihilfen zu einzelnen Projekten mit insgesamt etwa 64 M i l l . E C U gefördert. 174 Diverse Abkommen mit Drittländern sichern der E G Fischereirechte auf den Weltmeeren. 175 V. Die Außenbeziehungen der Gemeinschaft 1. A u f dem diesjährigen Weltwirtschaftsgipfel der wichtigsten westlichen Industrienationen vom 7.—9. 6.1984 in London war die Gemeinschaft durch Präsident Thorn und Vizepräsident Ortoli vertreten. Hauptthemen des Gipfels waren, wie in der Schlußerklärung zum Ausdruck kommt, die Festigung der sich erholenden Weltwirtschaft, die Verschuldung der Entwicklungsländer und das Problem allgemeiner protektionistischer Tendenzen. 176 2. I m Rahmen der Europäischen Politischen Zusammenarbeit (EPZ) appellierte die Gemeinschaft an die Sowjetunion, im Geiste der Schlußakte von Helsinki auf wirkliche Entspannung hinzuarbeiten. 177 I n einem zweiten Appell 167 Vgl. Bericht 1984 zur Lage der Landwirtschaft in der Gemeinschaft in Zusammenhang mit dem 18. Gesamtbericht über die Tätigkeit der Europäischen Gemeinschaften, hrsg. von der Kommission der EG Brüssel / Luxemburg 1985. 168 Siehe oben II. 6. 169 ABl. L 37 vom 8. 2.1984 und Bull. EG 1-1984, Ziff. 2.1. 84 und 2.1. 85. 170 ABl. L 1 vom 1.1.1985, Bull. EG 12-1984, Ziff. 2.1.174, Tabelle 7. 171 18. Gesamtbericht (Anm. 3), Ziff. 462. 172 18. Gesamtbericht (Anm. 3), Ziff. 463. 173 18. Gesamtbericht (Anm. 3), Ziff. 464. 174 ABl. L 46 vom 16. 2.1984 und Bull. EG 2-1984, Ziff. 2.1.139. 175 18. Gesamtbericht (Anm. 3), Ziff. 465—469. ΐ7β Bull. EG 6-1984, Ziff. 3. 4.1. 177 Bull. EG 3-1984, Ziff. 2.4. 2.

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forderte sie erneut den Rückzug der sowjetischen Truppen aus Afghanistan. 1 7 8 Die Gemeinschaft begrüßte eine Amnestie für politische Gefangene in Polen. 1 7 9 Es gab eine Verpflichtung der E G zur Unterstützung konstruktiver Verhandlungsinitiativen i m Nahostkonflikt 1 8 0 und die zweimalige Forderung nach Beendigung aller Kampfhandlungen i m Libanon. 1 8 1 Ebenso rief man erneut zu einer friedlichen Lösung des Konflikts zwischen dem Iran und dem Irak auf und verurteilte den Einsatz chemischer Waffen i m Golfkrieg. 1 8 2 Die Unterstützung der Gemeinschaft bei Bemühungen um Frieden und Sicherheit in Mittelamerika wurde auf einer Ministertagung in San José (Costa Rica) zugesagt. 183 Es wurden Erklärungen zu den Zwangsmaßnahmen der Behörden in Chile gegen demokratische Bestrebungen 184 und zu der besorgniserregenden Lage in Bolivien 1 8 5 verabschiedet. Die E G rief nach erneuten Unruhen in Südafrika zur Beendigung der Apartheid auf. 1 8 6 A n die Regierung der Türkei wurde appelliert, die Anerkennung der „Türkischen Republik Nordzypern" zurückzunehmen. 187 3. I m Bereich der multilateralen Handelspolitik unterstützte der Beschluß des OECD-Ministerrates 1 8 8 , Zollsenkungen i m Rahmen der Tokio-Runde um ein Jahr vorzuverlegen, die Bemühungen der E G zur Uberwindung protektionistischer Tendenzen. Der Rat verabschiedete eine Verordnung über das i m letzten Jahr durch die Kommission vorgeschlagene 189 neue handelspolitische Instrument zum Schutz gegen unlautere Handelspraktiken 1 9 0 , das die bisherigen Schutzmaßnahmen 191 ergänzt. Die Handelsbeziehungen mit den Vereinigten Staaten litten unter dem wachsenden Protektionismus in den USA. Wie auch im V o r j a h r 1 9 2 ergaben sich die meisten Probleme auf dem Stahlsektor. Ständige Schwierigkeiten bei der Einigung über den Export von Stahlröhren nach den USA konnten erst über langwierige Verhandlungen und eine Sondersitzung des 178 Bull. EG 5-1984, Ziff. 2.4.1.; vgl. Anthony Hyman, Afghanistan unter sowjetischer Besetzung, in EA 39 (1984), S. 741—752. 17Θ Bull. EG 7/8-1984, Ziff. 2.4.1. 180 Bull. EG 3-1984, Ziff. 2. 4. 3. 181 Bull. EG 2-1984, Ziff. 2. 4.1., Bull. EG 3-1984, Ziff. 2. 4. 3. 182 Bull. EG 3-1984, Ziff. 2. 4. 3. 183 Bull. EG 9-1984, Ziff. 1. 3.1. ff. 184 Bull. EG 4-1984, Ziff. 2.4.1., Bull. EG 9-1984, Ziff. 2.4.2., Bull EG 11-1984, Ziff. 2. 4.1. 185 Bull. EG 11-1984, Ziff. 2.4.5. 186 Bull. EG 9-1984, Ziff. 2. 4.1. 187 Bull. EG 3-1984, Ziff. 2. 4. 3. 188 Bull. EG 5-1984, Ziff. 2. 2. 65. 18® Siehe Vorbericht V. 3. 100 ABl. L 252 vom 20. 9.1984, Bull. EG 9-1984, Ziff. 2. 2. 5. 191 ABl. C 201 vom 30. 7.1984, Bull. EG 7/8-1984, Ziff. 2. 2. 7. 192 Siehe Vorbericht, V. 3.

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GATT-Rates beigelegt werden. 193 Deutlich zeigte sich der wachsende amerikanische Protektionismus auch auf dem Weinsektor und belastete damit die Handelsbeziehungen im Agrarbereich. 194 Das Handelsbilanzdefizit der Gemeinschaft gegenüber Japan belief sich 1984 auf rund 13 Milliarden E C U . 1 9 5 Obwohl Japan seine Öffnung zur Außenwelt durch wirtschaftspolitische Maßnahmen fortsetzte 196 und versicherte, es werde sich bei den Ausfuhren in die E G 1985 Mäßigung auferlegen 197 , w i r d das doch nicht zu einer spürbaren Korrektur des Ungleichgewichts im Handel führen. Positiv entwickelte sich die Zusammenarbeit auf industriellem Gebiet durch Konsultationen zu Investitionsfragen und Technologietransfer sowie die Zusammenarbeit in Forschung, Technologie und auf dem Entwicklungshilfesektor. 198 Die Außenminister der Europäischen Freihandelsassoziation (EFTA) und der EG-Mitgliedstaaten konferierten erstmals seit Unterzeichnung des Freihandelsabkommens zwischen E G und E F T A i m Jahre 1972. Sie bilanzierten das bisherige Funktionieren des Abkommens und setzten Orientierungspunkte für eine Fortsetzung und Vertiefung der Zusammenarbeit. 199 4. Das dritte Abkommen von Lomé zwischen der E G und den A K P Staaten wurde nach einjährigen, teilweise schwierigen Verhandlungen am 8. Dezember 1984 unterzeichnet. 200 Es enthält als wichtige Neuerungen in der Präambel einen ausdrücklichen Hinweis auf Menschenrechte und eine Erklärung zur Menschenwürde, in der sich die Unterzeichnerstaaten u. a. zur Bekämpfung der Apartheid verpflichten. Das Lome-Iii-Abkommen hat insofern eine neue Struktur, als die Ziele und Grundsätze der Zusammenarbeit A K P - E W G nunmehr deutlich hervorgehoben werden. Die Mittelausstattung des Abkommens beläuft sich auf insgesamt 8,5 Milliarden E C U . 2 0 1 5. Zum letzten M a l wurden in diesem Jahr die Zollpräferenzen der Gemeinschaft im Rahmen des Allgemeinen Präferenzsystems (APS) für 1981— 1985 festgelegt. 202 Die Präferenzspanne wurde für 35 Agrarwaren verbessert; 3 Waren wurden neu aufgenommen. Die Präferenzbeträge für Halbfertigund Fertigwaren sind in den einzelnen Ländern unterschiedlich erhöht worden. 193 18. Gesamtbericht (Anm. 3), Ziff. 661. 194 18. Gesamtbericht (Anm. 3), Ziff. 662—664. 195 18. Gesamtbericht (Anm. 3), Ziff. 673. 19« Bull. EG 5-1984, Ziff. 2. 2.14. 197 Bull. EG 12-1984, Ziff. 2. 2.17. 198 18. Gesamtbericht (Anm. 3), Ziff. 675; vgl. Hans W. Maull, Möglichkeiten und Grenzen der europäisch-japanischen Zusammenarbeit, in: EA 39 (1984), S. 575—582. 199 Bull. EG 4-1984, Ziff. 1.2.1. ff. 200 Bull. EG 12-1984, Ziff. 1.5.1. bis 1.5.4. 201 Bull. EG 11-1984, Ziff. 1.1.1. und 1.1.2. 202 ABl. L 338 vom 27.12.84, Bull. EG 11-1984, Ziff. 2.2.36., Bull. EG 12-1984, Ziff. 2. 2. 37.

Die Europäischen Gemeinschaften 1984

Für unter das Multifaserabkommen fallende Textilien stiegen die Plafonds nach Maßgabe des Entwicklungstrends von 1977—1981 um den gleichen Satz wie im Vorjahr. 2 0 3 6. Seit der Belgrader Konferenz 2 0 4 der United Nations Conference on Trade and Development ( U N C T A D ) im Jahre 1983 gab es in dieser Organisation nur sehr geringe Fortschritte. Die EG beteiligte sich in diesem Jahr an Diskussionen der Industrieländer über eine Verbesserung der Arbeitsweise der U N C T A D . Es gab informelle Treffen mit dem Generalsekretär der U N C T A D und zahlreichen Entwicklungsländern. 205 Auch 1984 konnte ein gemeinsamer Rohstoff fonds nicht eingerichtet werden. 2 0 6 I m Kaffeeübereinkommen mußte einer Kaffeeknappheit entgegengewirkt werden. 2 0 7 Das dritte Kakaoabkommen wurde bis zum 30. 09. 1985 verlängert. Die E G beteiligt sich an der Aushandlung eines vierten Abkommens. 2 0 8 I m Juni unterzeichnete die Gemeinschaft ein erstes Ubereinkommen zu tropischen Hölzern. 200 Bei der Aushandlung des neuen Zuckerübereinkommens konnte man sich lediglich auf Verwaltungsbestimmungen zum 1. 1. 1985 einigen. 210 Das Olivenölübereinkommen konnte 211 verlängert werden und das Juteabkommen am 9. 1. 1984 vorläufig in K r a f t treten. 212 7. Das Kooperationsabkommen EG - ASEAN-Staaten wurde auf Brunei erweitert. 2 1 3 Ein anderes Kooperationsabkommen wurde mit der Arabischen Republik Jemen geschlossen.214 I m M a i trat das zweite Finanzprotokoll E W G Zypern in Kraft, das bis 1988 eine H i l f e von 44 M i l l . E C U vorsieht. 215 M i t Jugoslawien fanden Sondierungsgespräche zu einem zweiten Finanzprotokoll statt. 2 1 6 8. I m Rahmen der Beziehungen zu den Staatshandelsländern wurde ein Kooperationsabkommen m i t der Volksrepublik China paraphiert, das i m Juni 1985 in K r a f t treten soll. 2 1 7 Es gab zahlreiche Begegnungen zwischen Reprä203 18. Gesamtbericht (Anm. 3), Ziff. 715. 204 Vgl. Vorbericht (Anm. 3), V. 6. 205 ig. Gesamtbericht (Anm. 3), Ziff. 758, 760. 206 18. Gesamtbericht (Anm. 3), Ziff. 717; vgl. Vorbericht, V. 6. 207 Bull. EG 6-1984, Ziff. 2.2.47.; Bull. EG 10-1984, Ziff. 2.2.40. 208 18. Gesamtbericht (Anm. 3), Ziff. 719. 209 Bull. EG 6-1984, Ziff. 2. 2. 45. 210 Bull. EG 10-1984, Ziff. 2.2.39. 211 18. Gesamtbericht (Anm. 3), Ziff. 723. 212 Bull. EG 1-1984, Ziff. 2.2.30 und 2.2.31., Bull. EG 5-1984, Ziff. 2.2.47. 213 Bull. EG 9-1984, Ziff. 2.2.24.; vgl. Hans Christian Reichel, Die Europäische Gemeinschaft und ASEAN, in: Aussenpolitik 36 (1985), S. 189—196. 214 Bull. EG 3-1984, Ziff. 2. 2. 29. 215 18. Gesamtbericht (Anm. 3), Ziff. 685. 216 Bull. EG 10-1984, Ziff. 2. 2. 24. 217 Bull. EG 7/8-1984, Ziff. 2. 2. 30., Bull. EG 9-1984, Ziff. 2. 2. 26.

474

Michael Pehlke

sentanten der E G und der Volksrepublik China. 2 1 8 Polen gewährte die Gemeinschaft eine humanitäre H i l f e in Höhe von 14 M i l l . ECU, die dort über die Kirche und andere nichtstaatlichc Organisationen an die ärmsten Bevölkerungsgruppen verteilt wurde. 2 1 9 Die Beziehungen zu Rumänien waren von einem zunehmenden Ungleichgewicht i m Handel zuungunsten der E G gekennzeichnet. Die Kommission wies die rumänischen Partner darauf hin, daß die Vertiefung der bilateralen Beziehungen in hohem Maße von der Belebung der Gemeinschaftsausfuhren nach Rumänien abhänge. 220 VI. Rechtsprechung zum Gemeinsdiaftsrecht 1. Der E u G H hatte in einer zweiten Rechtssache Luxemburg gegen Europäisches Parlament über den Tagungsort des Parlaments und den Standort seines Personals ein Urteil zu fällen. 2 2 1 Das Parlament hatte aufgrund seiner Entschließung von 1981, 222 in der es die Plenartagungen auf Straßburg und die Ausschußsitzungen auf Brüssel beschränkt hatte, 1983 beschlossen, das Personal des Generalsekretariats aus Luxemburg nach Brüssel und Straßburg zu verlegen. 223 Die Entschließung von 1981 hatte der E u G H bestätigt, jedoch darauf hingewiesen, daß sich das Generalsekretariat außerhalb von Luxemburg lediglich eine Infrastruktur schaffen dürfe. 2 2 4 Darum hat der E u G H die Entschließung von 1983 auf die Klage des Großherzogtums Luxemburg hin mit der Begründung aufgehoben, das Parlament überschreite damit seine Zuständigkeit, indem es die im ersten Urteil unter Hinweis auf A r t . 4 des Beschlusses der Mitgliedstaaten von 1965 zum Sitz bestimmter Organe und Dienststellen 225 gesetzten Grenzen mißachte. 2. I m Rahmen seiner Rechtsprechung zur Zollunion und zum freien Warenverkehr entschied der E u G H , daß der Ausschluß teurer Arzneimittel aus einem nationalen Pflichtversicherungssystem, soweit er nach objektiven Gesichtspunkten erfolge, m i t dem Gemeinschaftsrecht vereinbar sei. Er wies darauf hin, daß rein haushaltspolitische Maßnahmen nicht unter die Ausnahmen des A r t . 36 EWG-Vertrag fallen. 2 2 6 Der Gerichtshof hat der Bundesrepublik Deutschland untersagt, die Einfuhr italienischer Weine in bocksbeutelähnlichen Flaschen, 218 18. Gesamtbericht (Anm. 3), Ziff. 710. 21® 18. Gesamtbericht (Anm. 3), Ziff. 711. 220 Bull. EG 11-1984, Ziff. 2.2.32. 221 EuGH 10. 4.1984 Großherzogtum Luxemburg / Europäisches Parlament, Rechtsache (RS) 108/83, Sammlung der Rechtsprechung des EuGH (Slg.) 1984, 1945. 222 ABl. C 234 vom 14. 9.1981, vgl. Vorbericht, V I . 1. 223 ABl. C 161 vom 20. 6.1983. 224 E U G H 1 0 . 2 . 1 9 8 3 Großherzogtum Luxemburg / Europäisches Parlament, R S 2 3 0 / 8 1 (Slg.) 1983, 255; vgl. Vorbericht, V I . 1. 225 ABl. Nr. 152 vom 13.7. 1967. 22Β E U G H 7. 2 . 1 9 8 4 , Duphor BV / Niederländischer Staat, RS 2 3 8 / 8 3 (Slg.) 1 9 8 4 , 5 2 3 .

Die Europäischen Gemeinschaften 1984

die national fränkischem Wein vorbehalten sind, zu verbieten. 227 Erstmals äußerte sich der E u G H anläßlich einer Entscheidung zu Mineralölimporten zur Auslegung des Begriffes der öffentlichen Sicherheit in A r t . 36 EWG-Vertrag. 2 2 8 Zum Begriff der öffentlichen Ordnung in A r t . 36 EWG-Vertrag stellte er fest, daß der Schutz des Verbrauchers allgemein nicht darunter falle. 2 2 9 Zum gemeinschaftlichen Versandverfahren führte der Gerichtshof aus, daß Zölle oder andere Abgaben, die wegen eines Verstoßes gegen das Versandverfahren zu zahlen sind, von dem Mitgliedstaat einzutreiben sind, auf dessen Gebiet der Verstoß stattfand, unabhängig davon, ob eine Zollschuld entstanden ist. 2 3 0 3. I m Wettbewerbsrecht klärte der Gerichtshof Fragen, die zur Auslegung der Verordnung über Gruppenfreistellungen 231 wichtig sind. 2 3 2 I n einer anderen Rechtssache stellte er klar, daß Kapitaleinlagen öffentlicher Instanzen in Unternehmen Beihilfen darstellen, die mit A r t . 92 EWG-Vertrag unvereinbar sind. 2 3 3 4. Der Gerichtshof hat erstmals für den freien Dienstleistungsverkehr gemäß A r t . 59 EWG-Vertrag anerkannt, daß die Inanspruchnahme von Dienstleistungen in anderen Mitgliedstaaten ohne jede Beschränkung erfolgen kann. Darin schloß er auch das Mitführen von Zahlungsmitteln für Dienstleistungen ein, die er von anderen Kapitalverkehrsvorgängen unterschied. 234 I m Rahmen der Niederlassungsfreiheit in der E G entschied der E u G H , daß einem Staatsangehörigen eines anderen Mitgliedstaates der Zugang zum Rechtsanwaltsberuf nicht allein deshalb verwehrt werden dürfe, weil er in dem anderen Mitgliedsstaat eine zweite Kanzlei betreibt. 2 3 5 5. I n einem Urteil zur Gleichberechtigung von Mann und Frau erklärte der E u G H A r t . 74 des Statuts der Beamten der EG, der die Hinterbliebenenversorgung nach Geschlecht unterschiedlich regelte, für nichtig. 2 3 6 I n anderen Rechtssachen legte er fest, daß die nationalen Gesetzgeber gemäß der E G Richtlinie 76/207 237 gegen Verstöße des Gleichbehandlungsgrundsatzes beim 227 E U G H 1 3 . 3 . 1 9 8 4 , 228 E U G H

10. 7 . 1 9 8 4 ,

229 E U G H 6 . 1 1 . 1 9 8 4 , RS

177/83.

230 E U G H RS

Strafverfahren gegen Karl Prantl, RS 1 6 / 8 3 (Slg.) 1 9 8 4 , 1 2 9 9 . Campus Oil Ltd. u. a. / Industrieminister u. a., R S 7 2 / 8 3 . Kohl / Ringelhan & Rennett SA und Ringelhan Einrichtungs GmbH,

27.11.1984,

Claudio

Fioravanti

/ Amministrazione

delle Finanze dello Stato,

99/83.

231 ABl. L 173 vom 30. 6.1983. 1 2 . 7 . 1 9 8 4 , Hydrotherm Gerätebau GmbH / Firma Compact, R S 1 7 0 / 8 3 . 233 E U G H 1 4 . 1 1 . 1 9 8 4 , SA Intermills / Kommission, R S 3 2 3 / 8 2 . 234 EuGH 31.1.1984, Luisi / Ministero del Tesoro und Carbone l Ministero dèl Tesore, RS 286/82; 26/83 (Slg.) 1984, 377. 235 E U G H 1 2 . 7 . 1 9 8 4 , Ordre des avocats au Burreau de Paris / Rechtsanwalt Onno Klopp, Mitglied der Rechtsanwaltskammer Düsseldorf, R S 1 0 7 / 8 3 . 23« E U G H 2 0 . 3 . 1 9 8 4 , Rassouk / Kommission, verbundene RS 7 5 und 1 1 7 / 8 2 (Slg.) 1 9 8 4 , 232 E U G H

1509. 237 A B l . L 3 9 v o m 1 4 . 2 . 1 9 7 6 .

476

Michael Pehlke

Zugang zur Beschäftigung und bei den Arbeitsbedingungen wirksame, nicht nur symbolische Sanktionen vorsehen sollen. Die nationale Regelung eines zusätzlichen Urlaubs i m Anschluß an den Mutterschaftsurlaub nur für Mütter verstößt nach Ansicht des E u G H nicht gegen den Gleichbehandlungsgrundsatz i n der oben genannten Richtlinie; dies u. a. schon deshalb nicht, weil die Richtlinie eine Verpflichtung der Mitgliedstaaten, die Vergünstigungen auch Vätern zu gewähren, nicht enthalte. 238 6. Nach einer Entscheidung des E u G H im Agrarbereicb ist A r t . 46 EWGVertrag nach Ablauf der Übergangszeit ausschließlich auf Erzeugnisse anwendbar, die noch keiner gemeinsamen Marktorganisation unterliegen. 239 Eine andere wichtige Entscheidung hatte die Prüfung der Zuständigkeit der Gemeinschaft und die Restzuständigkeit der Mitgliedstaaten in den von einer M a r k t organisation erfaßten Bereichen zum Gegenstand. I m vorliegenden Fall hat der E u G H entschieden, daß, wenn Gemeinschaftsregelungen nicht erfolgt sind, die Mitgliedstaaten weitgehend eigene Regelungen zur Käseproduktion treffen können, soweit sie der Marktorganisation für Milch und Milcherzeugnisse nicht zuwiderlaufen. 2 4 0 Der E u G H setzte in einem Urteil nationale Einfuhrbeschränkungen aufgrund mikrobiologischer Anforderungen an die Produkte mit Maßnahmen nach A r t . 30 EWG-Vertrag gleich, erkannte aber Vorschriften bzgl. Bakterien in pasteurisierter Milch zum Gesundheitsschutz des Verbrauchers als Ausnahme gemäß A r t . 36 EWG-Vertrag an. 2 4 1 Die Schadensersatzklage eines belgischen Unternehmers, dessen Futtermittelverkauf wegen billigen Magermilchpulvers aus Interventionsbeständen zurückging, wies der E u G H zurück. Er betrachtete die besondere Maßnahme der Kommission der hohen Überschüsse wegen als gerechtfertigt und wertete den Schaden des Unternehmers als Aufluß seines wirtschaftlichen Risikos beim Betreiben eines Gewerbe· und Handelsbetriebs. 242 7. Zum A r t . 17 des Brüsseler Übereinkommens vom 27.9. 1968 über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Z i v i l - und Handelssachen änderte der E u G H seine Auslegung. Nachdem er, was die schriftliche Bestätigung mündlicher Gerichtsvereinbarungen nach A r t . 7 I betrifft, früher Zweiseitigkeit der Annahme gefordert hatte 2 4 3 , hält er es 238 E U G H 1 2 . 7 . 1 9 8 4 , Hoffmann / Barmer Ersatzkasse, R S 1 8 4 / 8 3 . 239 EuGH 21.2.1984, St. Nikolaus-Brennerei / Hauptzollamt Krefeld, RS 337/82 (Slg.) 1984, 1051. 240 E U G H 7 . 2 . 1 9 8 4 , Jongenael Kaus BV u. a. f 1. Niederländischer Staat, 2 . Stichting Centraal Orgaan Zuivelcontrole, RS 2 3 7 / 8 2 (Slg.) 1 9 8 4 , 4 8 3 . 241 EuGH 6. 6. 1984, Strafverfahren gegen CMC Melkunie BV y jetzt Melkunie Holland BV, RS 97/83. 242 E U G H 6 . 1 2 . 1 9 8 4 , SA Biovilac / Kommission, R S 5 9 / 8 3 . 243 E U G H 1 4 . 1 2 . 1 9 7 6 , Galeries Segour a Sprl / Fa. Rahim Bonakdarian, R S 2 5 / 7 6 .

Die Europäischen Gemeinschaften 1984

47

nunmehr für ausreichend, daß nur die Partei, die sich auf die Klausel beruft, unterzeichnet hat. 2 4 4 Z u den Rechtshängigkeitsvoraussetzungen entschied der Gerichtshof, daß sie für jedes betroffene Gericht nach dessen nationalen Vorschriften zu beurteilen sind und zuerst angerufenes Gericht dasjenige ist, bei dem die Voraussetzungen für die Rechtshängigkeit erfüllt sind. 2 4 5

244 EuGH 19.6.1984, Partenreederei Tilly Russ / Haven & Vervoerbedrijf Goeminne Hout, RS 71/83. 2« EuGH 7. 6. 1984, Siegfried Zeiger / Sebastian Salinitri, RS 129/83.

Nova und SA

Die Tätigkeit des Europarates im Jahre 19841 von Regine Ludwig I. Organisatorische Fragen; Allgemeines Das Ministerkomitee ( M K ) des Europarates (EuR) trat im Berichtszeitraum 1984 zweimal zusammen. Die 74. Sitzung fand am 10. M a i 1984 unter Vorsitz des dänischen Außenministers Uffe Ellemann-Jansen in Straßburg statt. 2 V o m 21.—22. November 1984 traten die Minister zur 75. Sitzung in Straßburg unter der Leitung des französischen Außenministers Roland Dumas zusammen.3 Die Parlamentarische Versammlung (PV) beendete die X X X V . Sitzungsperiode mit der dritten Tagung vom 31. Januar bis zum 3. Februar 1984. Dieses Treffen wurde von dem deutschen Sozialdemokraten Karl Ahrens geleitet. Es ging aufgrund eines Dolmetscherstreiks ohne Schlufikommuniqué und einen Tag früher als geplant zu Ende. 4 Die X X X V I . ordentliche Sitzungsperiode der P V wurde mit der vom 7.—11. M a i 1984 dauernden Tagung eröffnet. 5 Karl Ahrens wurde als Präsident der P V bestätigt.® Z u neuen Vizepräsidenten wurden gewählt: Amalie Fleming (Griechenland), Pierre Lagorce (Frankreich), Anna-Maria van derWerf-Terpstra (Niederlande), Edouard Debétaz (Schweiz), Sir Frederic Bennett (Vereinigtes Königreich), Thorvaldur Gardar Kristjansson (Island), Oliver/. Flanagan (Irland, Nora Staels-Dampas (Belgien), Bruno Giust (Italien), Josep Verde (Spanien), Manuel Alegre (Portugal), Anders Björck (Schweden) und Kâmran Inan (Türkei). 7 1 Die folgenden Ausführungen schließen sich an den Bericht von Hendrik Escher, Die Tätigkeit des Europarates im Jahre 1983, in: German Yearbook of International Law (GYIL) 27 (1984), 525—553, an. 2 Council of Europe, Parliamentary Assembly, Documents, Working Papers (Doc.), 5272, 5—7; Europa Archiv (EA) 39 (1984), 2 84; Forum Europarat (Forum) 2/1984, 16; Schlußkommunique abgedruckt in: Council of Europe, Press Release (Press Release) C (84) 26; deutsche Fassung in: EA 39 (1984), D 341 f.; Archiv der Gegenwart (AdG) 1984, 27848 A/44. 3 EA 39 (1984), 2 187 f.; AdG 1984, 28265/28266 A; Schlußkommunique abgedruckt in: Press Release C (84) 85; Doc. 5338, 14—16. 4 Forum 1/1984, 4; vgl. auch Council of Europe, Parliamentary Assembly, Official Records of Debates (Debates), 35th ord. sess., Vol. I l l , 623—815. 5 Debates, 36th ord. sess., Vol. I, 1—262; Press Release C (84) 36; Forum 2/1984, 2 f. 6 Debates, 36th ord. sess., Vol. I, 3. 7 Debates, 36th ord. sess., Vol. I, 5, 114.

Der Europarat 1984

Die Herbsttagung der P V wurde vom 26. September bis 4. Oktober ebenfalls in Straßburg abgehalten.8 Der Ständige Ausschuß der P V tagte vom 21.—22. März in Straßburg 9 , am 28. Juni in Oslo 1 0 und am 21. November 1984 in Straßburg 11 . I m Berichtszeitraum besuchten drei Staatsmänner die P V : Der spanische Ministerpräsident Felipe Gonzalez sprach auf der dritten Tagung der X X X V . Sitzung vor der P V zum Thema Terrorismus 12 ; während der Frühjahrssitzung hielt der portugiesische Staatspräsident Antonio Ramalho Eanes vor den Delegierten eine Rede 13 , und im Rahmen eines Besuches beim Europarat vom 1.—2. Oktober ergriff der irische Staatspräsident Patrick J. Hillery vor dem Plenum das Wort.14 II. Behandlung allgemeinpolitisdier Themen im Europarat Wie in den vorangegangenen Jahren standen auch 1984 weltpolitische Probleme im Vordergrund der Diskussionen und Aktivitäten des Europarates. Er befaßte sich erneut mit der politischen Entwicklung in der Türkei. Der internationale Terrorismus, die Beschäftigungslage in Europa, der Nord-SüdDialog sowie der Drogenhandel und -mißbrauch, der Umweltschutz und die Lage i m Nahen Osten bildeten Schwerpunkte der Beratungen. 1. I m Berichtszeitraum 1984 beschäftigte sich das Ministerkomitee auf beiden Treffen 1 5 vorrangig mit allgemeinpolitischen Themen, während die Ministerdelegierten wiederum Fragen der Wirtschafts- und Sozialpolitik behandelten. a) Sowohl auf der Frühjahrs- wie auch auf der Herbsttagung erinnerten die Minister abermals an den KSZE-Prozeß. 16 Sie befürworteten einen konstruktiven Dialog zwischen Ost und West. I m Hinblick auf die Stockholmer KVAE-Konferenz 1 7 gaben sie ihrem Wunsch Ausdruck, daß diese Konferenz 8 Forum 4/1984, 2; Debates, 36th ord. sess., Vol. II, 263—631. » Doc. 5207; vgl. Debates, 36th ord. sess., Vol. I, 8. Doc. 5282; vgl. Debates, 36th ord. sess., Vol. I I , 273—279. 11 Doc. 5341; vgl. Debates, 36th ord. sess., Vol. I I I , 638—641. 12 Forum 1/1984, 5 f.; vgl. Debates, 35th ord. sess., Vol. I I I , 659—672. is Press Release C (84) 36. 14 Debates, 36th ord. sess., Vol. I I , 515—520. is Doc. 5272, 5—7 und 5338, 14—16; vgl. Press Release C (84) 26 und C (84) 85. io Hans-Joachim Schütz, Militärische vertrauensbildende Maßnahmen aus völkerrechtlicher Sicht, Berlin 1984; vgl. Escher (Anm. 1), 526—527; zur KSZE: Volker Rühe, Das Für und Wider eines Gewaltverzichtsvertrages im Rahmen der KSZE, in: EA 39 (1984), 163—170. 17 Zur Stockholmer KVAE-Konferenz: EA 39 (1984), Ζ 84, 114; vgl. AdG 1984, 27339 A, 27568 A/47, 27659 A, 27843 A/38, 27872 A, 28052 B, 28137 A, 28215 A, 28302 A; Franz Joseph Schenke, Sicherheitspolitische und militärische strategisdie Rahmenbedingungen der Verteidigung Europas, in: EA 39 (1984), 327—334.

480

Regine Ludwig

eine Reihe von verbindlichen und nachprüfbaren Vertrauens- und sicherheitsbildenden Maßnahmen beschließen möge, die Geltung für das gesamte Europa entfalten sollten. I m Rahmen der 74. und 75. Tagung fiel das Augenmerk des M K erneut auf die Situation i n Polen 1 8 und auf die neuen Entwicklungen in Afghanistan 1 9 . Die Minister begrüßten die Abschaffung der letzten Zollbarrieren zwischen der E G und der E F T A (European Free Trade Association) 20 , m i t der das größte Freihandelssystem der Welt entstanden ist. Sie werteten dieses Ereignis als weiteren Fortschritt hin zu einem europäischen Wirtschaftsraum. Hinsichtlich der Situation i m Libanon 2 1 hoffen die Minister auf eine starke Regierung, die einen dauerhaften Frieden sichern w i r d . Sie unterstrichen die Notwendigkeit eines endgültigen Abzuges aller ausländischen Streitkräfte aus dem libanesischen Hoheitsgebiet. Die Lage in Lateinamerika 22 betreffend unterstrichen die Minister auf beiden Treffen ihre Unterstützung für die Contadora-Gruppe, die sich für den Frieden, für Demokratie wie für wirtschaftliche und soziale Entwicklung i n Zentralamerika einsetzt. Unter Hinweis auf die Resolution (83) 29 des M K , die sich mit der Lage in Argentinien befaßt, äußerten sie den Wunsch, daß noch weitere Staaten die friedliche Rückkehr zur Demokratie finden und daß die Menschenrechtsverstöße beendet werden. Insbesondere drängten sie auf baldige Wiederaufnahme des Dialogs zwischen dem M K und den demokratischen Kräften Chiles. 23 Sie plädierten für baldige freie Wahlen und die Wiederherstellung der Bürgerrechte. Die Minister akzeptierten den Vorschlag einer Ministerkonferenz über Menschenrechte in Wien für 1985. Angeregt von der Rede des spanischen Regierungschefs über den Terrorismus bestätigten sie das Bedürfnis nach gemeinsamem Vorgehen gegen den Terrorismus. 24 Die Minister befaßten sich anläßlich der von der P V abgehaltenen Konferenz über Europas Rolle i m Nord-Süd-Dialog m i t den von dieser Konferenz 18 Zur politischen Lage in Polen vgl. AdG 1984, 27435 A/8, 27775 A/3, 27775/A 7 27442 A, 27770 Β, 28210 A; vgl. Escher (Anm. 1), 527. ι« Zur Entwicklung in Afghanistan vgl. AdG 1984, 28027 C, 28229 C; vgl. audi Anthony Hyman, Afghanistan unter sowjetischer Besetzung, in: EA 39 (1984), 741—752 sowie den Afghanistan-Bericht des Wirtschafts- und Sozialrates der Vereinten Nationen, UN-Doc. Ε/ CN. 4/1985/21, abgedruckt in: Europäische Grundrechte-Zeitschrift (EuGRZ) 12 (1985), 249— 276. so Vgl. AdG 1984, 27927 B/2, 27588 A. si Vgl. AdG 1984, 27849 A, 28074 A. 22 Zur Lage in Lateinamerika: Esperanza Dur an, Der Beitrag der Contadora-Gruppe zum Frieden in Mittelamerika, in: EA 39 (1984), 483—492. 23 Zur Lage in Chile vgl. AdG 1984, 27403 A / l , 28203 A, 28245 A. 24 Forum 1/1985, 5 und 3/1984, 3.

Der Europarat 1984

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ausgehenden Impulsen. Sie gaben ihrer Überzeugung Ausdruck, daß der Europarat einen Beitrag zur Förderung der Nord-Süd-Beziehung leisten solle. 25 Die Herbsttagung begann m i t dem demonstrativen Auszug des türkischen Außenministers Vahit Halefogen aus der Versammlung. D a m i t protestierte er gegen die Weigerung, der Türkei den Vorsitz i m Ministerkomitee ab M a i 1985 zu übertragen. 26 A u f der 75. Tagung verabschiedete das Ministerkomitee eine Entschließung 27 über die Rolle des Europarates i m politischen Bereich. Ziel der Resolution ist die Absprache internationaler Probleme und — wo möglich — das Herbeiführen einer gemeinsamen Haltung bei ihren Lösungen. U m den Prozeß zur europäischen Einheit voranzubringen, soll der Dialog sowohl zwischen Ausschuß und P V wie auch zwischen EuR und E G intensiviert werden. M i t Zufriedenheit stellten die Minister eine verbesserte Zusammenarbeit zwischen M K und P V fest. b) I m Berichtszeitraum widmeten sich die Ministerdelegierten schwerpunktmäßig Fragen der Wirtschafts- und Sozialpolitik. Sie befaßten sich m i t der Vermeidung der Übertragung von Malaria durch Bluttransfusionen 28 , mit dem Beitrag der Sozialversicherung zu Vorbeugemaßnahmen 29 , m i t Gastarbeiterproblemen i m allgemeinen sowie m i t ihrer kulturellen Bindung an die H e r kunftsländer 30 i m speziellen und mit dem Thema „Gastarbeiter der zweiten Generation" 31 . Weiterhin wurde eine Entschließung über Verpackungserläuterungen pharmazeutischer Markenartikel 3 2 verabschiedet. I m Bereich der Bildung beschäftigten sie sich m i t der Lage ausländischer Studenten. 33 Der entsprechenden Empfehlung ist ergänzend eine Anlage beigefügt worden, die Grundsätze für ein Studium ausländischer Studenten festlegt. Aus Anlaß sich häufender Gewalttätigkeiten und zunehmender DopingFälle i m Sport beschlossen die Ministerdelegierten eine Empfehlung über Gewalttätigkeiten i m Sport 3 4 und eine Europäische Charta gegen Doping 3 5 . I m Bereich des Umweltschutzes setzten sich die Delegierten mit der Einführung 25 Forum 2/1984, 12; vgl. Escher (Anm. 1), 527. 26 AdG 1984, 28265/A (28266), EA 39 (1984), Ζ 187 (188). 27 Doc. 5338, 17; vgl. auch Resolution (84) 21. 28 Empfehlung R (84) 6. 29 Empfehlung R (84) 24. so Empfehlung R (84) 7. 31 Empfehlung R (84) 9. 32 Entschließung AP (84) 2; angenommen am 21. Juni 1984 von den sieben Teilnehmerstaaten am Teilabkommen und den Regierungen Österreichs, Dänemarks, Irlands und der Schweiz. 33 Empfehlung R (84) 3. 34 Empfehlung R (84) 8; vgl. dazu den Bericht in: Forum 1/1984, 12—14. 35 Empfehlung R (84) 19; vgl. dazu den Bericht in: Forum 3/1984, 7 f.

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fremder Pflanzen- und Tierarten 3 6 auseinander. Darüber hinaus gab es Entschließungen über die Verleihung des Europäischen Diploms an das erbliche Küstengebiet von Purbeck (Vereinigtes Königreich) 37 und die Erneuerung des Europäischen Diploms für das Naturschutzgebiet von Minsmere (Vereinigtes Königreich) 38 . 2. Den Mittelpunkt auf den Sitzungen der Parlamentarischen Versammlung i m Jahre 1984 bildeten die Situation in der Türkei 3 9 und der internationale Terrorismus. 40 Trotz der sehr unterschiedlichen Problembereiche durchzogen Fragen des Menschenrechtsschutzes in seinen mannigfaltigen Ausgestaltungen fast alle Debatten. Das zentrale Thema der dritten Tagung der X X X V . Sitzung war die Zwangsmitgliedschaft in den Gewerkschaften. 41 Die Berichterstatter, Joop Worrell (Niederlande) und Georges Margues (Luxemburg), unterstrichen in ihrem Bericht das Recht jedes Arbeiters, sich in Gewerkschaften zu organisieren, verteidigten jedoch auch vehement die negative Koalitionsfreiheit. Ihre Gegner im Forum sahen darin einen eindeutigen A n g r i f f gegen die Gewerkschaften und unterstrichen unter Hinweis auf die gegenwärtige Beschäftigungslage in Europa die Notwendigkeit von Gewerkschaften, da sie zur Stärkung der Arbeitnehmer in der aktuellen Krise beitragen. Die eindringliche Verteidigung der negativen Koalitionsfreiheit war im Grunde gegen das System des „Closed Shop" gerichtet, das besonders im Druckereigewerbe, Schiffbau und in der Automobilindustrie des Vereinigten Königreichs, Irlands, Schwedens und Dänemarks vorherrscht. Dabei ist die Mitgliedschaft in diesen Gewerkschaften Voraussetzung für eine Einstellung. Die Annahme einer Resolution wurde mit einer Stimme Mehrheit verworfen. I m Verlauf der ausführlichen Beratung über die Waldschäden in Europa gaben die Redner als Ursache für die noch nicht überschaubaren Umweltschäden den sauren Regen an. Die die Aussprache abschließende Resolution 42 richtete 3β Empfehlung R (84) 14. 37 Entschließung R (84) 7. 38 Entschließung R (84) 6. 30 Entschließung 882, abgedruckt im vollen Wortlaut in: EuGRZ 11 (1984), 483 f.; Debates, 36th ord. sess., Vol. I, 161—179, 185—209, 212—221; vgl. schon Escher (Anm. 1), 529—530; Wulf Damkowski, Die türkische Verfassung — „Fahrplan zur Demokratie?", in: EuGRZ 11 (1984), 1—6; Christian Rumpf, Zur neuen türkischen Verfassung, Erwiderung auf Damkowski, in: EuGRZ 11 (1984), 256—259. 40 Empfehlung 982, abgedruckt im vollen Wortlaut in: EuGRZ 11 (1984), 454—455; Doc. 5187 und 5199; vgl. Empfehlung 941 und Direktive 408, Doc. 478; Debates, 36th ord. sess., Vol. I, 98—110, 114—127, 132—140, 143—144; Josef Augstein, Terrorismus contra Rechtsstaat, Darmstadt 1976. 41 Debates, 35th ord. sess., Vol. I I I , 630—642, 676—685, 689—700; Forum 1/1984, 4. 42 Resolution 978; Debates, 35th ord. sess., Vol. I I I , 700—714, 717—738, 772—794; vgl. Doc. 5148, Forum 1/1984, 2/3 und 3/4.

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sich sowohl an die Mitgliedstaaten, gezielte Maßnahmen zur Bekämpfung der bereits eingetretenen Schäden zu ergreifen, als auch an das M K , die Ausarbeitung einer Konvention zu veranlassen, die der Ergänzung und der Erweiterung des Ubereinkommens der Wirtschaftskommission der Vereinten Nationen für Europa (ECE) über weiträumige grenzüberschreitende Luftverunreinigung 4 3 dienen sollte. Weniger erfreulich verlief die Debatte über die Wiederzulassung türkischer Abgeordneter. Ihre Mandate waren auf der ersten Tagung der X X X I I I . Sitzungsperiode der P V für erloschen erklärt worden. 4 4 Seither konnten sich die Parlamentarier nicht über eine Wiederzulassung verständigen. 45 Wegen des vorzeitigen Abbruchs der Abschlußsitzung der X X X V . Sitzungsperiode kam es wiederum nicht zu einer endgültigen Entscheidung. — Das gleiche Schicksal traf die Debatte über die Mandate der Delegierten Zyperns. 46 M i t Eröffnung der Frühjahrssitzung griff das Plenum diese vertagten Fragen wieder auf. Trotz weiterhin bestehender Bedenken billigten die Abgeordneten auf Empfehlung des Geschäftsordnungsausschusses 47 in nicht namentlicher Abstimmung die Anerkennung der zypriotischen Mandate und in namentlicher Abstimmung die der türkischen Mandate. Damit wurde ein Schlußstrich unter die mehrere Jahre andauernden Beratungen der P V gesetzt. Die Türkei kehrt somit offiziell in die Reihen der 21 demokratischen Mitgliedstaaten zurück. Die Anerkennung der türkisdien Mandate bedeutet jedoch nicht, daß die P V sich in Zukunft nicht mehr mit der Lage der Türkei beschäftigen wird. Die aktuelle Situation in der Türkei stimme nicht mit den Anforderungen der Satzung des Europarates überein, wie der Berichterstatter des politischen Ausschusses, Ludwig Steiner (Österreich), zur Einleitung seines Berichtes deutlich machte. I n der Debatte waren trotz der Fortschritte in der demokratischen Entwicklung der Türkei, wie z. B. bei den Gemeindewahlen, die kritischen Stimmen unüberhörbar. Insbesondere der Berichterstatter des Rechtsausschusses, Dieter Stoffelen (Niederlande) 48 ,wies auf das noch in weiten Teilen bestehende Kriegsrecht, auf die schlechten Haftbedingungen und die hohe Anzahl politischer Gefangener hin. Diese die Probleme der Türkei eingehend beleuchtende Aussprache wurde mit der Annahme einer Entschließung 49 43 BGBl 1982 II, 374. Dazu Rüdiger Wolf rum, Die grenzüberschreitende Luftverschmutzung im Schnittpunkt von nationalem Recht und Völkerrecht, in: Deutsches Verwaltungsblatt 99 (1984), 493—501. 44 Vgl. ausführlich dazu Peter Rawert, Die Tätigkeit des Europarates im Jahre 1981, in: GYIL 25 (1982), 643—644. 45 Vgl. dazu zuletzt Escher (Anm. 1), 529—530. 4 6 Debates, 35th ord. sess., Vol. I I I , 794—795, 803—804. 4 ? Doc. 5214. 4 ® Doc. 5216. 4 » Entschließung 882 (Anm. 39); Debates, 36th ord. sess., Vol. I, 161—179, 185—209, 212— 221.

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beendet, in der die Regierung in Ankara aufgefordert wird, die demokratische Normalisierung des Landes voranzutreiben. Während der ersten Tagung der X X X V I . Sitzungsperiode führte die P V eine Terrorismusdebatte. Nach Ansicht der Parlamentarier bedroht der internationale Terrorismus die Demokratie im höchsten Maße und stellt zugleich eine eklatante Mißachtung fundamentaler Menschenrechte dar. 5 0 Beunruhigt äußerten sich die Abgeordneten über die ansteigende Bereitschaft, terroristische Vereinigungen zu stützen, und über die zunehmende Tendenz von Terroranschlägen in Form von Entführungen, Morden und Massakern. Daher wurde an alle Mitgliedstaaten appelliert, in den Bereichen des Justizwesens, der Polizei und der Nachrichtendienste noch enger zusammenzuarbeiten. Die Forderung nach Bekämpfung des Terrorismus auf internationaler Ebene wurde vehement vom spanischen Regierungschef, Felipe Gonzalez, unterstützt, als dieser auf der Abschlußtagung der X X X V . Sitzungsperiode in einer Rede vor dem Plenum der P V zu diesem Problem unter besonderer Berücksichtigung der spanischen Situation Stellung nahm. 5 1 Nach seiner Auffassung sollte eine Konferenz der Staats- und Regierungschefs zu dieser Thematik einberufen werden. Die P V forderte ihre Mitgliedstaaten auf, dieser Anregung nachzukommen. 52 I m Verlauf der Debatte wies der Abgeordiete Giuseppe Amadei (Italien), darauf hin, daß zwei Mitgliedstaaten (Malta und Irland) die Konvention zur Bekämpfung des Terrorismus 53 nicht unterzeichnet und sieben Staaten die Konvention noch nicht ratifiziert hätten. Abschließend wurde positiv vermerkt, daß das Schlußkommunique der KSZE-Konferenz in M a d r i d 5 4 die Verpflichtung aller Teilnehmerstaaten beinhalte, alle Ausprägungen des internationalen Terrorismus zu verurteilen. Der zentrale Tagesordnungspunkt im Bereich der Wirtschafts- und Sozialfragen war die Beschäftigungslage in Europa. 55 Alarmierend ist die Zahl der Arbeitslosen in Europa, die Ende 1983 bei ca. 19 Millionen lag und seither permanent steigt. Die Hauptbetroffenen sind Jugendliche, Frauen und Behinderte. so Empfehlung 982; Doc. 5187 und 5199; Debates, 36th ord. sess., Vol. I, 98—110, 114—127, 132—140, 143 f.; vgl. Empfehlung 941 und Direktive 408; Doc. 4878; Council of Europe, Information on Legal Activities within the Council of Europe and in Member States (Leg. Act. Bull.) Nr. 20 (März 1985), 22; Alfred P. Rubin , Terrorism and the Law of War, in: Denver Journal of International Law and Policy 12 (1983), 219—235, Symposium: Terror in the Modern Age, in: Human Rights Quarterly 5 (1983), 225 f. si Vgl. Bericht über die Rede in: Forum 1/1984, 5 f. 52 Mit diesem Thema befaßte sich auch die 14. Konferenz der Justizminister aller Mitgliedstaaten vom 29.—31. Mai in Madrid, vgl. Bericht in: Forum 3/1984, 3. 53 European Convention on the Suppression of Terrorism vom 21.01.1977, in: European Treaty Series (ETS), No. 90. 54 Das abschließende Dokument des KSZE-Folgetreffens in Madrid vom 06. 09.1983 ist abgedruckt in: EA 38 (1983), D 537—D 554. 55 Empfehlung 981; Doc. 5197 und 5201; Debates, 36th ord. sess., Vol. I, 55—67, 78—97.

Der Europarat 1984

Da dieses Problem ganz Europa betrifft, sind nach Ansicht der P V sowohl die Mitgliedstaaten des Europarates wie auch die Europäische Gemeinschaft aufgerufen, ihre Politik und Maßnahmen aufeinander abzustimmen. Nach Auffassung der P V w i r d ein Programm für eine bessere Beschäftigungslage eine A r beitsteilung und eine Arbeitszeitverkürzung nicht umgehen können. Es soll weiterhin eine verbesserte Berufsausbildung wie auch die Bekämpfung der Schwarzarbeit umfassen. Eindringlich wurde darauf hingewiesen, daß ein solches Programm nicht den Abbau sozialer Leistungen bedeuten dürfe; auch müsse ein Weg hin zum Protektionismus oder zur Fremdenfeindlichkeit vermieden werden. Erneut wurde von der P V die Forderung nach stärkerer wirtschaftlicher Zusammenarbeit erhoben, um einen dauerhaften Wirtschaftsaufschwung in Europa zu sichern, als das Plenum den Jahresbericht der E F T A für den Zeitraum Juli 1981 bis Dezember 1983 annahm. 56 M i t größter Zufriedenheit wurde die vollständige Abschaffung der Zölle auf Industrieerzeugnisse zwischen den EFTA-Ländern und der E G festgestellt. Die Herbsttagung der X X X V I . Sitzungsperiode wurde mit der Rede des neuen Generalsekretärs Marcelino Oreja Aguirre (Spanien) vor dem Plenum eröffnet. 57 Das beherrschende Thema dieser Sitzung war die Aussprache über die Bekämpfung des Drogenmißbrauchs und des Drogenhandels. Diese von Einigkeit gekennzeichnete Debatte wurde mit der Annahme einer Empfehlung 5 8 an das Ministerkomitee abgeschlossen. Die Berichterstatter äußerten sich bestürzt über die kontinuierliche Zunahme des Drogenkonsums in den europäischen Staaten, über den ständigen Zuwachs neuer Rauschmittel auf den Märkten und über das geringe Durchschnittsalter gefährdeter Jugendlicher trotz der Bemühungen der Mitgliedstaaten um eine umfassende Aufklärung. Zur Lösung dieser mehrschichtigen Problematik w i r d eine Intensivierung der bis jetzt bestehenden Zusammenarbeit zwischen den Behörden auf internationaler Ebene angestrebt. Dieses Ziel soll durch die Verbesserung i m Informationsaustausch über den internationalen Kapitalfluß, der in Verbindung mit dem Drogenhandel steht, sowie durch das Aufdecken und durch die Beschlagnahme des Vermögens der Drogenhändler erreicht werden. A u f diesem Wege der Zusammenarbeit müssen dann auch die immer noch bestehenden Lücken in der Rechtsangleichung gefüllt werden. Für eine weitreichende Lösung dieses Problems müssen die Bemühungen um Gefährdete und um die Wiedereingliederung ehe5β Entschließung 821; Press Release C (84) 36; Debates, 36th ord. sess., Vol. I, 40—55; Doc. 4984 und 5193. 57 Deutscher Bundestag, 10. Wahlperiode, Drucksache 10/3170, 2; Press Release C (84) 69, vgl. Forum 2/1984, 1; EuGRZ 11 (1984), 384. 58 Empfehlung 989; Debates, 36th ord. sess., Vol. II, 292—317, 320—338; vgl. Forum 4/1984, 5 f.

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maliger Drogenabhängiger in die Gesellschaft weiterhin intensiviert werden. Darüber hinaus muß auf die Anbau- und Herstellungsländer der Drogenmittel eingewirkt werden, sich an der Zusammenarbeit zur Bekämpfung des Drogenmißbrauchs zu beteiligen. Die zunächst geplante umfassende Aussprache über Lateinamerika 59 beschränkte sich aufgrund von Unstimmigkeiten ausschließlich auf ökonomische Aspekte. Trotz der Bemühungen 60 , die Wirtschaft beispielsweise durch Vertragsabschlüsse mit europäischen Ländern wieder zu beleben, sind ein jährliches Abnehmen des Bruttosozialprodukts und eine Verringerung von ausländischen Investitionen in den Ländern Lateinamerikas zu beobachten. Der Agrarbericht hob auf die zunehmende Verarmung der Landbevölkerung (insbesondere der Familienbetriebe) ab. Abschließend wurde auf die unübersehbaren Folgen des rücksichtslosen Abholzens der Wälder in dieser Region hingewiesen. Aus Anlaß der Konferenz „Nord-Süd-Verhältnis — Europas R o l l e " 6 1 griff die P V diese Thematik auf. Die Versammlung 62 begrüßte die Ergebnisse dieser Tagung und forderte das M K auf, das Nord-Süd-Gespräch und die Anstrengungen auf dem Gebiet der Entwicklungshilfe zu intensivieren. Die Konferenz bot erstmals die Gelegenheit, in Anwesenheit von Ministern und Parlamentariern aus den Mitgliedstaaten des Europarates über die Verantwortung Europas gegenüber der Dritten Welt zu diskutieren. Die Grundlage für die Aussprache bildeten die Ansichten führender Persönlichkeiten aus den Entwicklungsländern. Während der Aussprache über die Zukunft der europäischen Zusammenarbeit 6 3 wurde mit Zufriedenheit der Wille zur gemeinsamen Zusammenarbeit von E G und Europarat hervorgehoben. Die E G zeige sich trotz mannigfaltiger Rückschläge als ein „dynamischer Faktor" in der europäischen Entwicklung. Weitere Themen parlamentarischer Beratungen umfaßten die kulturellen Beziehungen zwischen Europa und Lateinamerika 64 , die europäische kulturelle Zusammenarbeit 65 , den Jahresbericht der Europäischen Konferenz der Minister s» Doc. 5269, 5277 und 5278; Debates, 36th ord. sess., Vol. I I , 355—370, 373—382, 386— 409. «o Empfehlung 991; vgl. Forum 4/1984, 16 f. 61 Diese Konferenz fand auf Veranlassung des Europarates vom 9.—11. April 1984 in Lissabon statt. «2 Empfehlung 992; Doc. 5271, 5274, 5285, 5286 und 5294; Debates, 36th ord. sess., Vol. II, 414—437, 442—451; Council of Europe, Directorate of Press and Information (Directorate) Β (84) 5, 3. es Doc. 5268; vgl. dazu Esther (Anm. 1), 531. β4 Doc. 5161. es Empfehlung 995; Doc. 5288.

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für Transport ( E C M T ) 6 6 , das Verhältnis der nationalen Parlamente zu den Medien 6 7 , die Medienpolitik 6 8 , die Umwelt und die Beschäftigung 69 , die dritte Konferenz der europäischen Außenminister 70 , die ökologische Bewegung i n Europa 7 1 , die Raumordnung und den Umweltschutz in europäischen Küstenregionen 72 , die Informatik in der Landwirtschaft 7 3 , den Erwerb und die Verwendung menschlichen Blutes und seiner Derivate 7 4 , illegale Wanderbewegungen in Europa 7 5 , die europäischen Wallfahrtswege 76 . Eingehend beschäftigte sich die P V 7 7 mit der Tätigkeit der U N E S C O 7 8 , deren Krise mit dem Austritt der Vereinigten Staaten aus der Organisation einen vorläufigen Höhepunkt erreichte. 3. V o m 9.—11. A p r i l 1984 fand die erste Nord-Süd-Konferenz in Lissabon statt. 79 Die 4. Konferenz der Umweltminister vom 25.—27. A p r i l 1984 in Athen forderte eine verstärkte Zusammenarbeit auf internationaler Ebene im Bereich des Küsten-, Fluß- und Seeuferschutzes. Darüber hinaus sollte der Umweltschutz ein wesentlicher Bestandteil der Wirtschaftspolitik sein. 80 A m 12. und 13. September 1984 bestritt die Gruppe Pompidou ihre 7. Konferenz in Paris. 81 Die Hauptaufgabe dieser seit 1971 existierenden M i n i sterrunde dient dem internationalen K a m p f gegen Drogenhandel und -mißbrauch. I m Jahr 1984 wurde der 35. Jahrestag der Gründung des Europarates gefeiert. I m Rahmen des „Europatages" 1984 wurden am 4. und 5. M a i 600 Schüler und Studenten aus 15 Ländern nach Straßburg eingeladen. Ihnen wurde die Gelegenheit geboten, mit Politikern über ihre Vorstellung von Demokratie und Gesellschaft zu diskutieren 82 , nicht zuletzt um ihr Interesse an der europäischen Zusammenarbeit zu wecken. ββ Doc. 5164; Debates, 35th ord. sess., Vol. I I I , 753—772. 67 Entschließung 820; Doc. 5084; Debates, 35 ord. sess., Vol. I, 13—23. «β Empfehlung 996. β» Empfehlung 998; Doc. 5257. 70 Empfehlung 980; Doc. 5191. 71 Entschließung 817. 72 Empfehlung 997; Doc. 5280. 73 Entschließung 818; Doc. 5159. 74 Empfehlung 985; Doc. 5204. 75 Empfehlung 990; Doc. 5265. 76 Empfehlung 987; Doc. 5196. 77 Entschließung 831; Doc. 5274; Debates, 36th ord. sess., Vol. II, 464—475, 480—512. 78 Vgl. Barthold C. Witte, Krise und Reform der UNESCO, in: Außenpolitik 35 (1984), 265—275. 79 Vgl. Anm. 21 und 22; außerdem Berichte in: Forum 1/1984, 8 f. und 2/1984, 12. so Forum 2/1984, 8. 81 Vgl. Directorate I (84) 52, 54, 59; Forum 4/1984, 5 f. 82 Vgl. Directorate Β (84) 5; Forum 2/1984, 4 f.

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III. Rechtsvereinheitlichung und Zusammenarbeit unter den Mitgliedstaaten; Konventionen und Übereinkommen 1. I m Berichtszeitraum kam es zum Abschluß der 117. Konvention des Europarates. 83 Das 7. Zusatzprotokoll zur Europäischen Menschenrechtskonvention ( E M R K ) , das seit dem 22. 11. 1984, also seit Beginn der 75. Sitzung des M K , zur Zeichnung aufliegt, ist das jüngste Produkt i m Rahmen der Bemühungen um eine Rechtsvereinheitlichung in Europa, die der Europarat in Erfüllung seiner satzungsmäßigen Verpflichtungen (Art. 1 lit. b) als eine vorrangige Aufgabe im Zuge der Integration der Mitgliedstaaten betrachtet. 84 Dieses Protokoll, ein weiterer Schritt zum verbesserten Schutz der Menschenrechte, beinhaltet folgende Rechte: es verleiht Ausländern prozessualen Schutz im Falle der Ausweisung (Art. 1), einem Verurteilten das Recht auf Wiederaufnahme seines Verfahrens durch eine höhere Instanz (Art. 2), es begründet das Recht auf Entschädigung im Falle eines Justizfehlers (Art. 3), das Verbot der doppelten Verurteilung (Art. 4) und eine Regelung i m Hinblick auf Gleichberechtigung und Verantwortlichkeit der Ehepartner in der Ehe (Art. 5). Das 7. Zusatzprotokoll wurde noch am 22. November 1984, also am ersten Tag der Zeichnungsmöglichkeit, von zehn Mitgliedstaaten unterzeichnet. 85 I m Vorbereitungsstadium befanden sich 1984 die Konvention über die A n erkennung der Rechtspersönlichkeit von internationalen nicht-staatlichen Organisationen 86 , eine Konvention zum Tierschutz 87 sowie die Ausarbeitung einer Empfehlung über rechtliche Möglichkeiten zur Ausübung des Wahlrechts bei im Ausland lebenden Staatsbürgern. 88 I m Berichtszeitraum trat nach Vorlage der erforderlichen Anzahl von Ratifikationen 89 am 1. November 1984 das Protokoll zur Abänderung des Europäischen Abkommens über die Begrenzung der Verwendung bestimmter Detergenzien in Wasch- und Reinigungsmitteln in K r a f t . 9 0 2. Das M K befaßte sich im Berichtszeitraum mit folgenden Rechtsfragen: Es gab Empfehlungen zur elterlichen Verantwortlichkeit 9 1 , zum Strafregister 83 ETS No. 117; vgl. Directorate I (84) 81. 84 Vgl. dazu die Ausführung von Hans-]oachim Prie β, Die Tätigkeit des Europarates im Jahre 1980, in: GYIL 24 (1981), Anm. 88 m.w.H. 85 Unterzeichnet haben Dänemark, Frankreich, Griechenland, Italien, Luxemburg, die Niederlande, Norwegen, Portugal, Spanien und die Schweiz. Damit das Protokoll in Kraft tritt, muß es von sieben Mitgliedstaaten ratifiziert werden; vgl. Directorate I (84) 81. 8 β Leg. Act. Bull. Nr. 20 (März 1985), 24. S7 Leg. Act. Bull. Nr. 18 (Juni 1984), 20. 88 Leg. Act. Bull. Nr. 20 (März 1985), 24. 89 Vgl. dazu Council of Europe, Legal Affairs, Chart Showing Signatures and Ratifications of Council of Europe Conventions and Agreements, 1. Dezember 1984. 00 ETS No. 115. »ι Empfehlung R (84) 4.

Der Europarat 1984

und zur Rehabilitierung von Verurteilten 9 2 , zur Konvention über den Transport verurteilter Personen 93 , zu ausländischen Strafgefangenen 94 und zu Richtlinien der öffentlichen Verwaltung für rechtswidriges staatliches Handeln 9 5 ab. Die Minister äußerten sich über die Anmeldepflicht von Forschungsarbeiten mit rekombinierter Desoxyribonucleinsäure ( D N A ) 9 6 und wiesen auf die biologischen Risiken der Genforschung hin. Die Empfehlungen des M K befaßten sich darüber hinaus mit der Gleichheit von Mann und Frau in den Medien 9 7 , mit den Grundsätzen über die Werbung im Fernsehen, insbesondere bei der Satellitenübertragung 98 , mit dem Schutz für Personen, die nach der Genfer Konvention als Flüchtlinge zu betrachten sind 99 , mit den Prinzipien der Z i v i l prozeßordnung 100 sowie mit der Angleichung der nationalen Gesetzgebung über Feuerwaffen. 101 3. Die P V behandelte im Rahmen ihrer rechtspolitischen Aktivitäten zwei Themen: I n einer ausführlichen Diskussion beschäftigte sich das Plenum aus aktuellem Anlaß mit der Seerechtskonvention der Vereinten Nationen 1 0 2 , die bis zum 9. Dezember 1984 zur Unterzeichnung auflag. Die Berichterstatter hoben insbesondere die Bedeutung der Konvention für eine internationale Rechtsordnung der Weltmeere hervor und wiesen auf die mit der Zeichnung verbundene Teilnahme an den Vorbereitungssitzungen für die Internationale Meeresbodenbehörde und den Internationalen Seegerichtshof hin. I n der Empfehlung werden die Mitgliedstaaten aufgefordert, trotz bestehender Meinungs02 Empfehlung R (84) 10. 03 Empfehlung R (84) 11. 04 Empfehlung R (84) 15; vgl. Forum 4/1984, 17. 05 Schweden betrachtet die Empfehlung als nicht verbindlich. Dänemark und Norwegen haben Vorbehalte gegen Grundsatz I I (Fall einer Maßnahme im allgemeinen Interesse und/ oder Schadensfall einer oder mehrerer Personen) erklärt. 06 Empfehlung R (84) 23. 07 Empfehlung R (84) 17. 08 Empfehlung R (84) 3; vgl. Forum 1/1984, 10; vgl. dazu Rawert (Anm. 41), 650, Anm. 101 m.w.H.; Achim Theis, Die Tätigkeit des Europarates im Jahre 1982, in: GYIL 26 (1983), 435, Anm. 17 m.w.H. oo Empfehlung R (84) 1. loo Leg. Act. Bull. Nr. 20 (März 1985), 23. ιοί Empfehlung R (84) 16. 102 Empfehlung 983; Doc. 5194, 5198, 5202, 5217, 5221; Debates, 36th ord. sess., Vol. I, 221—239, 244—254; Leg. Act. Bull. Nr. 20 (März 1985), 22; Günther Jaenicke, Die dritte Seerechtskonferenz der Vereinten Nationen, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 38 (1978), 438—500; Rolf Herber, Das Seerechtsübereinkommen der Vereinten Nationen — Ansatz zu einer neuen Weltwirtschaftsordnung, in: Recht der Internationalen Wirtschaft (RIW) / Außenwirtschaftsdienst des Betriebsberaters (AWD) 30 (1984), 337 ff.; Rüdiger Wolf rum. Die UN-Seerechtskonvention in der Perspektive der Neuen Weltwirtschaftsordnung, in: Jost Delbrück (Hrsg.), Das neue Seerecht, Berlin 1984, 97—118; Luke T. Leey The Law of the Sea Convention and Third States, in: American Journal of International Law (AJIL) 77 (1983), 541—568.

490

Regine Ludwig

Verschiedenheiten und gegensätzlicher Interessen die Konvention zu unterzeichnen, um eine aktive Rolle im Vorbereitungsausschuß spielen zu können. Der zweite Themenkreis umschloß Rechtsfragen bei der Einbürgerung von Flüchtlingen. 103 Die P V 1 0 4 empfiehlt den Mitgliedstaaten, vorhandene gesetzliche Regelungen flexibler anzuwenden; insbesondere solle die von den Eltern erworbene Staatsangehörigkeit auch bei ihren minderjährigen Kindern anerkannt werden. 4. Die schwerpunktmäßig mit der Durchführung rechtlicher Aktivitäten des EuR befaßten europäischen Ausschüsse, namentlich das Europäische Komitee für rechtliche Zusammenarbeit ( C D C J ) 1 0 5 und das Europäische Komitee für Strafrechtsprobleme ( C D P C ) 1 0 6 sowie ihre Unterausschüsse beschäftigten sich im wesentlichen mit den gleichen Themen wie im Berichtszeitraum 1983 1 0 7 ; dazu gehören u. a. Anerkennung der Rechtspersönlichkeit von N G O ' s (NonGovernmental Organizations), Anmeldung von Arbeiten mit rekombinierter Desoxyribonucleinsäure ( D N A ) , Privilegien und Immunitäten von Angehörigen internationaler Organisationen, Datenverarbeitung und -schütz, Personalausweise, Asyl- und Flüchtlingsfragen, rechtliche Probleme auf dem Gebiet der Medizin, Verwaltungsrecht, Schutz der Unterwasserkulturschätze, Tierschutz, Fragen des Familienrechts, des Steuer- und Konkursrechts, Diskriminierung der Geschlechter, Gewaltkriminalität, Fragen der Vereinfachung von Strafverfahren, Gefängnisorganisation und Haftentlassung, Wirtschaftskriminalität, kriminalpolitische Prävention und internationale Zusammenkünfte auf dem Gebiet der Verbrechensbekämpfung im Zusammenhang mit Kunstwerken. 1 0 8 5. I m Berichtszeitraum 1984 gab es folgende erwähnenswerte juristische Tagungen: Die jährliche Konferenz der Justizminister 109 fand vom 29.—31. M a i 1984 in Madrid statt. I m Mittelpunkt stand die Bekämpfung des internationalen Terrorismus. Das X I V . Kolloquium über Europarecht wurde vom 26.—28. September 1984 in Lissabon veranstaltet. 110 Eine Konferenz über kriminologische Forschung tagte vom 26.—29. November in Straßburg. 111 103 Debates, 36th ord. sess., Vol. I, 254—261; Doc. 5215. 104 Empfehlung 984; Leg. Act. Bull. Nr. 20 (März 1985), 22. 105 CDCJ: Comité européen de coopération juridique; European Committee on Legal Cooperation. ίο« CDPC: Comité européen pour les problèmes criminels, European Committee on Crime Problems. ίο? Vgl. Escher (Anm. 1), 536 f., Anm. 115. 108 Leg. Act. Bull. Nr. 18 (Juni 1984), 20—22, Nr. 20 (März 1985), 24—28. loo Leg. Act. Bull. Nr. 20 (März 1985), 27—28; Directorate I (84) 32, 35. no Directorate Β (84) 34. m Directorate Β (84) 47.

Der Europarat

984

I V . Schutz der Menschenrechte Das Kerngebiet der Arbeit des Europarates bildete audi in diesem Berichtszeitraum der Schutz der Menschenrechte. Obwohl sowohl das M K wie auch die P V die menschenrechtlichen Bezüge der von ihnen debattierten politischen Fragen immer wieder hervorhoben, hatte bislang noch keine ausschließlich dem Menschenrechtsschutz gewidmete Ministerkonferenz stattgefunden. Dieses Versäumnis wurde nun mit der Einberufung einer Regierungskonferenz über Menschenrechte zum 19. und 20. März 1985 nach Wien nachgeholt. 112 1. Aufgrund des Erlöschens mehrerer Mandate von Mitgliedern der Europäischen Menschenrechtskommission wählte das Ministerkomitee auf Vorschlag des Präsidiums der P V am 17. M a i 1984 vier neue Mitglieder 1 1 3 : Gro Hillestad Thune (Norwegen), Hugo Vandenberghe (Belgien), Jorge Campinos (Portugal) und Alexander Anton (Vereinigtes Königreich). Alle anderen Mitglieder blieben i m A m t . Die am 5. Juli 1984 erfolgte Präsidentschaftswahl erneuerte die Mandate des Präsidenten der Kommission, Carl Aage Norgaard (Dänemark), des ersten Vizepräsidenten, Giuseppe Sperduii (Italien) und des zweiten Vizepräsidenten, Jochen A. Fr owein (Bundesrepublik Deutschland). 2. I m Jahre 1984 trat die Europäische Kommission für Menschenrechte sechsmal zusammen. 114 Dabei wurde über fünf Staatenbeschwerden weiterberaten. Keine genauen Angaben können über die Gesamtzahl der Individualbeschwerden gemacht werden, da über die 165. Sitzung der Kommission kein Kommunique veröffentlicht wurde. Insgesamt wurden 54 Individualbeschwerden und 5 Staatenbeschwerden für zulässig erklärt. 1 1 5 Die überwiegende Anzahl der neu eingebrachten Beschwerden betrafen auch in diesem Berichtszeitraum Verstöße gegen A r t . 5 und 6 der Europäischen Menschenrechtskonvention. 116 a) Individualbeschwerden

nach Art. 25 EMRK

aa) Recht auf Freiheit und Sicherheit (1) Ν gegen Italien

(Art. 5 Abs. 1, 4 und 5 E M R K ) 1 1 7

112 Bericht in: Human Rights Law Journal 6 (1985), 97—142. us Forum 3/1984, 15. 114 165. Sitzung (16.—20. Januar), 166. Sitzung (5.—16. März), 167. Sitzung (7.—18. Mai), 168. Sitzung (2.—13. Juli), 169. Sitzung (1.—12. Okt.), 170. Sitzung (3.—14. Dezember). 115 Eine detaillierte Aufstellung der zulässigen Beschwerden für das Jahr 1984 in: EuGRZ 12 (1985), 319 f. ne Wilfried Ludwig Weh, Für und Wider den „cautious approadi w/civil rights und strafrechtliche Anklage (Art. 6 EMRK) in der Rechtsprechung der Straßburger Organe, in: EuGRZ 12 (1985), 469—477. 117 Beschwerde Nr. 9920/82; Press Release Note d'Information No. 52; Forum 2/1984, 17.

492

Regine Ludwig

Der Beschwerdeführer (Bf) sieht durch eine Inhaftierung vor seiner Verurteilung A r t . 5 E M R K verletzt. (2) Bozzano gegen Frankreich (Art. 5 E M R K und A r t . 2 des Vierten Zusatzprotokolls) 1 1 8 Bf. rügt seine Festnahme und H a f t in Frankreich und die anschließende Auslieferung an die Schweiz. (3) S und W gegen die Niederlande

(Art. 5 E M R K ) 1 1 9

Die Bf. rügen ihre Einlieferung in psychiatrische Anstalten. (4) Herbert Eggs gegen die Schweiz (Art. 5 Abs. 5, A r t . 6 Abs. 2 E M R K ) 1 2 0 Bf. hatte schon früher eine Beschwerde erhoben, die sich gegen eine strenge Haftstrafe während des Militärdienstes richtet. Während die Kommisson A r t . 5 Abs. 1 E M R K als verletzt ansah, wurde diese Frage vom M K in seiner Entschließung vom 19. Oktober 1979 nicht behandelt. Der Bf. wendet sich nun gegen die Ablehnung seines Antrages auf Wiedergutmachung durch die Schweizer Behörden. (5) G gegen das Vereinigte Königreich (Art. 5 Abs. 1 und 4 E M R K ) 1 2 1 Gegenstand der Beschwerde ist die Einweisung des Bf. in eine psychiatrische K l i n i k in Schottland. (6) Bazona gegen die Schweiz (Art. 5 Abs. 4 E M R K ) 1 2 2 Die Beschwerde richtet sich gegen die Inhaftnahme des Bf. mit dem Ziel der Ausweisung. (7) Dobbertin

gegen Frankreich

(Art. 5 Abs. 3 E M R K ) 1 2 3

Bf. rügt die Dauer seiner Überwachung und seiner Untersuchungshaft. (8) A gegen das Vereinigte Königreich (Art. 5 Abs. 1 [a] und 4 E M R K ) 1 2 4 Dem Bf., der zu lebenslanger H a f t verurteilt war, wurde eine bedingte Haftentlassung zugesprochen. Seine Beschwerde richtet sich gegen die ministerielle Anordnung zur Einlieferung ins Gefängnis zwecks Verbüßung seiner Reststrafe. (9) Tespinar gegen die Niederlande

(Art. 3, 8 und 12 E M R K ) 1 2 5

Es handelt sich um die Ausweisung eines Kindes in die Türkei. H8 Beschwerde ne Beschwerde 120 Beschwerde 121 Beschwerde 122 Beschwerde 123 Beschwerde 1985, 19. 124 Beschwerde 125 Beschwerde

Nr. Nr. Nr. Nr. Nr. Nr.

9990/82; Press Release Β (84) 33 und C (84) 29; Forum 3/1984, 15. 10518/83, 10535/83; Press Release Β (84) 33; Forum 3/1984, 15. 10313/83; Press Release Β (84) 36 und C (77) 26; Forum 4/1984, 16. 10213/82; Press Release Β (84) 50; Forum 4/1984, 16. 9009/80; Press Release Β (85) 4; Forum 1/1985, 19. 9863/82, 10924/84; Press Release Β (85) 4 und C (84) 91; Forum 1/

Nr. 9787/82; Press Release C (84) 3. Nr. 10518/83, 10535/83; Press Release Β (84) 33; Forum 3/1984, 15.

Der Europarat 1984

(10)Abdulmassik Bulus gegen Schweden (Art. 3, 8, 13 E M R K ) 1 2 6 Der Bf. beklagt seine Ausweisung. bb) Recht auf faires Verfahren (1) Β M und VM gegen das Vereinigte Königreich (Art. 5, 6 u. 14 E M R K ) 1 2 7 Nach einer rechtskräftigen erstinstanzlichen Verurteilung legten die Bf. Berufung ein. Ihre Beschwerden wenden sich gegen das Berufungsurteil, welches bei der Strafzumessung die bereits verbüßte Haftzeit unberücksichtigt ließ. (2) I und C gegen die Schweiz (Art. 6 Abs. 2 E M R K ) 1 2 8 Gegenstand der Beschwerde ist die Frage nach der Unschuldsvermutung i m verjährten Verfahren. (3) Acht belgische Ärzte gegen Belgien (Art. 6 Abs. 1 E M R K ) 1 2 9 Sie wenden sich gegen den nicht-öffentlichen Charakter von Disziplinarverfahren. (4) Englert und Nolckenbockhoff Abs. 2 E M R K ) 1 3 0

gegen die Bundesrepublik Deutschland (Art. 6

Bf. rügen, daß die gerichtlichen Entscheidungsgründe über die Kosten des ohne Verurteilung beendeten Strafverfahrens die Unschuldsvermutung unberücksichtigt ließen. (5) Ρ gegen Österreich (Art. 6, 7 E M R K ) 1 3 1 Die Beschwerde richtet sich gegen ein Strafverfahren, welches gegen den Bf. nach dem Lebensmittelgesetz angestrengt wurde. (6) Β und R gegen das Vereinigte Königreich (Art. 6, 8, 13 E M R K ) 1 3 2 Es handelt sich in beiden Fällen um Fragen der Berufungsmöglichkeiten für die Bf., denen ihr Besuchsrecht für ihre in öffentlicher Obhut befindlichen Kinder entzogen wurde. 126 Beschwerde Nr. 9330/81; Press Release C (84) 6. 127 Beschwerde Nr. 9562/81, 9818/82; Press Release C (84) 5. 128 Beschwerde Nr. 10107/82; Press Release Β (84) 36; Forum 4/1984, 16. 129 Beschwerde Nr. 8642/79, 8781/79, 8835/79, 8837/79, 9070/80, 9357/81, 9358/81, 9359/81; Press Release Β (85) 4; Forum 1/1985, 19; EuGRZ 12 (1985), 319 f. 130 Beschwerde Nr. 10282/83, 10300/83; Press Release Β (85) 4; Forum 1/1985, 19; EuGRZ 12 (1985), 48, 80. 131 Beschwerde Nr. 10498/83; Press Release Β (85) 4; Forum 1/1985, 19. 132 Beschwerde Nr. 9840/82, 10496/83; Press Release Β (84) 33, C (83) 78, > 9 ; Forum 3/1984, 15

494

Regine Ludwig

(7) H gegen Belgien (Art. 6 E M R K ) 1 3 3 Gegenstand der Beschwerde ist die Behandlung eines Antrages des Bf. auf Zulassung als Rechtsanwalt in Belgien. (8) Pudas gegen Schweden (Art. 6, 13 E M R K ) 1 3 4 Dem Bf., einem Taxiunternehmer, war eine Konzession für den Linienverkehr auf bestimmten Strecken erteilt worden. Gegen den Entzug der Konzession legte er Widerspruch ein. M i t der Beschwerde wendet er sich gegen das Widerspruchsverfahren selbst, welches sein Recht auf gerichtsförmiges Verfahren gem. A r t . 6 Abs. 1 E M R K sowie sein Recht aus A r t . 13 E M R K verletzt habe. cc) Dauer des Verfahrens (1) D gegen Belgien (Art. 3, 5 Abs. 4 E M R K ) 1 3 5 Gegenstand der Beschwerde ist die Dauer der H a f t entsprechend dem Gesetz über Sozialschutz für Geisteskranke und Gewohnheitstäter. Der Bf. ist seit 1962 inhaftiert. Die H a f t w i r d damit begründet, daß er ein Geisteskranker mit kriminellen Neigungen sei. (2) Frau H und Kind A gegen das Vereinigte Königreich EMRK)136

(Art. 6, 8, 13

I m wesentlichen w i l l die erstgenannte Bf. einen Verstoß gegen das Besuchsrecht zu ihrem K i n d , welches bei Dritten zur Pflege ist und mittlerweile von diesen adoptiert wurde, rügen. Nach Ansicht der Kommission sind aber nur diejenigen Klagen zulässig, die sich auf die Dauer und auf die Wirksamkeit der der Mutter zugänglichen Berufungsmöglichkeiten und den Umfang beziehen, in dem sie die Beachtung des Familienlebens garantieren. Die Kommission hat die darüber hinausgehenden Klagen zurückgewiesen. (3) V gegen Portugal

(Art. 6 Abs. 1 E M R K ) 1 3 7

Die Beschwerde ist gegen die Dauer eines Verfahrens vor dem Arbeitsgericht gerichtet. 133 Beschwerde 12 (1985), 320. 134 Beschwerde 362—364. 135 Beschwerde 136 Beschwerde 16 f. 137 Beschwerde

Nr. 8950/80; Press Release Β (84) 33, C (84) 32; Forum 3/1984, 15; EuGRZ Nr. 10426/83; Press Release Β (85) 4; Forum 1/1985, 19; EuGRZ 12 (1985), Nr. 10448/83; Press Release Β (84) 36; Forum 4/1984, 16. Nr. 9580/81; Press Release Note d'Information No. 52; Forum 2/1984, Nr. 10303/83; Press Release Note d'Information No. 52; Forum 2/1984, 17.

Der Europarat 1984

(4) Β gegen Italien (Art. 6 Abs. 1 E M R K ) 1 8 8 Geklagt w i r d über die Dauer des gegen Bf. angestrengten Strafverfahrens. (5) Ρ gegen die Schweiz (Art. 6 Abs. 1 E M R K ) 1 3 9 Gegenstand der Beschwerde ist die Dauer eines gegen den Bf. gerichteten Strafverfahrens. (6) Joaquim Baraona gegen Portugal (Art. 6 Abs. 1 E M R K ) 1 4 0 Die Beschwerde betrifft die Dauer eines Verfahrens vor dem Verwaltungsgericht und die Gleichbehandlung der Prozeßteilnehmer. (7) / gegen Österreich (Art. 6 Abs. 1 E M R K ) 1 4 1 Gegenstand der Klage ist die Dauer eines Zivilverfahrens. (8) B} S, R gegen Italien

(Art. 6 Abs. 1 E M R K ) 1 4 2

Die Beschwerden sind gegen die Dauer eines Strafverfahrens gerichtet. (9) G gegen Belgien (Art. 6 Abs. 1 E M R K ) 1 4 3 Der Bf., ein Architekt, rügt die Dauer und den nichtöffentlichen Charakter eines gegen ihn gerichteten Disziplinarverfahrens. (10)Christian Farragut gegen Frankreich (Art. 6 Abs. 1 E M R K ) 1 4 4 Dieser Fall betrifft die Dauer eines Z i v i l - und Strafverfahrens. {\\)Lechner

und andere gegen Österreich (Art. 6 Abs. 1 E M R K ) 1 4 5

Der Bf. beklagt die Dauer eines Zivilverfahrens. dd)

Respektierung des Rechts auf Eigentum

(1) Eftl u. α., Erkner und Poiss gegen Österreich (Art. 6 Abs. 1 und in zwei Fällen A r t . 1 des Ersten Zusatzprotokolls) 1 4 6 Die Bf. sind Landwirte. Ausgangspunkt des Rechtsstreits ist in allen Fällen ein Zusammenlegungsverfahren. Danach sollen Grundstücksumlegungen erfolgen, denen sich die Bf. widersetzen. 138 Beschwerde Nr. 10256/83; Press Release Β (84) 36; Forum 4/1984, 16. 139 Beschwerde Nr. 9299/81; Press Release Note d'Information No. 52 und C (84) 32; Forum 2/1984, 16. 140 Beschwerde Nr. 10092/82; Press Release Β (84) 50, C (84) 70; Forum 4/1984, 16. ι « Beschwerde Nr. 9315/81; Press Release Β (84) 50; Forum 4/1984, 16. 142 Beschwerde Nr. 8143/78, 8467/79, 8498/79; Press Release Β (85) 4; Forum 1/1985, 19. 143 Beschwerde Nr. 10027/82; Press Release Β (85) 4; Forum 1/1985, 19; EuGRZ 12 (1985), 320. 144 Beschwerde Nr. 10103/82; Press Release Β (84) 36, C (84) 49; Forum 3/1984, 15. 145 Beschwerde Nr. 9316/81; Press Release Β (84) 50; Forum 4/1984, 16. 146 Beschwerde Nr. 9273/81, 9616/81, 9816/82; Press Release Note d'Information No. 52, C (84) 18, 19, 20; Forum 2/1984, 16; EuGRZ 11 (1984), 455 f.; 12 (19&5), 364.

496

Regine Ludwig

(2) M. Marinucci

gegen Italien (Art. 1 des Ersten Zusatzprotokolls) 1 4 7

Gegenstand der Beschwerde ist eine gemäß dem Landwirtschaftsgesetz vorgenommene angeblich ungerechtfertigte Enteignung. ee) Verbot von Folter und unmenschlicher Behandlung oder Strafe (1) Frau und Fräulein X gegen das Vereinigte Königreich und A r t . 2 des Ersten Zusatzprotokolls) 1 4 8

(Art. 3, 13 E M R K

Die Bf. rügen die körperliche Züchtigung in einer englischen Schule. (2) Ds Β und D gegen das Vereinigte Königreich protokolls) 1 4 9

(Art. 2 des Ersten Zusatz-

Bf. wenden sich gegen die körperliche Züchtigung in einer englischen Schule. ff)

Recht auf Privatleben

Familie M gegen das Vereinigte Königreich (Art. 8 E M R K ) 1 5 0 Die drei Bf. rügen die Weigerung der Einwanderungsbehörde, dem Vater und dem Sohn die Genehmigung zu erteilen, mit der Mutter die Zeit bis zum Ablauf von deren befristetem Arbeitsvertrag in Großbritannien zu verbringen. gg)

Haftbedingungen

S gegen das Vereinigte Königreich (Art. 8 E M R K ) 1 5 1 Dieser Fall betrifft die Besuche der Familie des Bf. i n der Strafanstalt und das Festhalten ihrer Briefe durch die Gefängnisverwaltung. hh) Verbot der Diskriminierung (1) L gegen Österreich

(Art. 14 E M R K , A r t . 1 des Ersten Zusatzprotokolls) 1 5 2

Bf. beklagt die Situation der nichtehelichen Kinder nach dem Erbhöfegesetz. (2) X gegen das Vereinigte Königreich

(Art. 3, 8 und 12 E M R K ) 1 5 3

Der Bf., ein Transvestit, beklagt einen Verstoß gegen A r t . 3, 8 und 12 E M R K durch die Behörden, die eine Änderung seiner Geburtsurkunde mit 147 Beschwerde Nr. 9625/81; Press Release Β (84) 33; Forum 3/1984, 15. ι « Beschwerde Nr. 9471/81; Press Release Note d'Information No. 52 und C (84) Forum 2/1984, 16. 149 Beschwerde Nr. 9114/83; Press Release Β (84) 50; Forum 4/1984, 16. 150 Beschwerde Nr. 10204/82; Press Release Note d'Information No. 52; Forum 2/1984, 151 Beschwerde Nr. 9466/81; Press Release Note d'Information No. 52; Forum 2/1984, 152 Beschwerde Nr. 8695/79; Press Release Β (84) 4; Forum 1/1985, 19. 153 Beschwerde Nr. 9532/81; Press Release Note d'Information No. 52; Forum 2/1984, EuGRZ 11 (1984), 308.

19; 17. 16. 16;

497

Der Europarat 1984

dem Ziel einer vollen Anerkennung seiner Geschlechtsumwandlung verweigern. ii)

Redit auf freie Meinungsäußerung

Hamann gegen das Vereinigte Königreich (Art. 7, 10 und 14 E M R K ) 1 5 4 Die Bf. hatte während eines Gerichtsverfahrens einem Journalisten Zugang zu Dokumenten verschafft. Aufgrund dieses Verhaltens ist sie für schuldig befunden worden, das Ansehen der Justiz geschmälert zu haben. b) Staatenbeschwerde

nach Art. 24 EMRK

Dänemark, Frankreich y die Niederlande y Norwegen die Türkei (Art. 3, 5, 6, 9, 10, 11 und 15 E M R K ) 1 5 5

und Schweden gegen

Auch in diesem Berichtszeitraum wurde über die fünf i m Kern gleichlautenden Beschwerden gegen die Türkei weiterberaten. 156 Sie wenden sich vornehmlich gegen die Verletzung des Folterverbots, der Freiheit der Person, des Rechts auf ein faires Verfahren sowie gegen Verletzungen der Gedanken-, Religions-, Meinungs- und Versammlungsfreiheit. 3. Der Europäische Gerichtshof für Menschenrechte ( E u G H M R ) fällte im i m Berichtszeitraum 1984 17 Urteile. a) öztürk

gegen die Bundesrepublik

Deutschland 157

Der Bf., wohnhaft in der Bundesrepublik Deutschland, ist türkischer Staatsangehöriger. Aufgrund eines von ihm verursachten Verkehrsunfalls wurde ihm ein Bußgeld von D M 60,- auferlegt. Gegen den Bußgeldbescheid erhob er Einspruch. I n dem sich anschließenden Verfahren benötigte er einen Dolmetscher, für dessen Kosten er nach Ansicht des Gerichts selbst aufzukommen habe. Der Bf. sieht darin eine Verletzung des A r t . 6 Abs. 3 (e) E M R K . Während die Vertreter der Bundesregierung die Auffassung vertraten, daß A r t . 6 Abs. 3 (e) E M R K auf ein Bußgeldverfahren, welches nur eine Ordnungswidrigkeit zum Gegenstand habe, nicht anwendbar sei, vertrat der Gerichtshof mit dreizehn gegen fünf Stimmen die Ansicht, daß audi ein Bußgeldverfahren von dem Schutzbereich des A r t . 6 Abs. 3 (e) E M R K erfaßt werde. 1 5 8 Des wei154 Beschwerde Nr. 10038/82; Press Release Β (84) 33 und C (84) 35; Forum 3/1984, 15. 155 Beschwerde Nr. 9940/82, 9941/82, 9942/82, 9943/82 u. 9944/82; Press Release Β (84) 6; Forum 1/1984, 19; EuGRZ 10 (1983), 659; voller Wortlaut der Zulässigkeitsentscheidung, in: Human Rights Law Journal 4 (1983), 534—557. 15« Vgl. Escher (Anm. 1), 542; vgl. EuGRZ 12 (1985), 164. 157 Urteil vom 21. Februar 1984; Publication of the European Court of Human Rights, Series A: Judgments and Decisions, Köln/Berlin/Bonn/München (Judgments), Vol. 73; Press Release C (84) 8, 12; Forum 1/1984, 20; 2/1983, 18; EuGRZ 12 (1985), 62—74; European Law Review (ELR) 9 (1984), 288—290. 158 Vgl. dazu Urteil vom 28. November 1978; Judgments Vol. 29; Joachim König, Die Tätigkeit des Europarates im Jahre 1978, in: GYIL 22 (1979), 453.

32

G Y I L

28

498

Regine Ludwig

teren erkannten die Richter die Eigenschaft des Bf. als Angeklagter i.S.d. A r t . 6 Abs. 1 E M R K an. Der Gerichtshof stützt seine Auffassung auf seine ständige Rechtsprechung 159 , wonach der Begriff „Angeklagter" in A r t . 6 E M R K weit auszulegen ist. Der Antrag auf Entscheidung nach A r t . 50 E M R K wurde mangels Entscheidungsreife bis Oktober 1984 zurückgestellt. I n einer gesonderten Entscheidung 1 6 0 vom 23. Oktober 1984 wies der Gerichtshof einstimmig die Forderungen des Bf. zurück. Die Kosten des Bf. wurden von einer Versicherungsgesellschaft getragen; insofern waren die Voraussetzungen des A r t . 50 E M R K nicht erfüllt. b) Sutter gegen die Schweiz 161 Der Bf., ein Schweizer Bürger, wurde als Teilnehmer an einem im Rahmen der normalen Militärpflicht abzuleistenden „Wiederholungslehrgang" zu einer Arreststrafe wegen wiederholten Ungehorsams und wegen Nichtachtung der Vorschriften über den Haarschnitt verurteilt. Das zuständige Berufungsgericht hat seine Beschwerde ohne vorherige Verhandlung abgewiesen. Dieses Urteil wurde nicht veröffentlicht, sondern den beteiligten Parteien per Post zugestellt. Sutter rügt eine Verletzung des A r t . 6 Abs. 1 E M R K . Nach Ansicht des Gerichtshofes ist A r t . 6 Abs. 1 E M R K durch das Verfahren vor dem Berufungsgericht nicht verletzt worden. Eine öffentliche Verhandlung konnte demnach entfallen, da das Berufungsgericht sich nicht m i t der Sache selbst, sondern nur mit der Auslegung der anzuwendenden Bestimmungen befaßte. Das Schweizer Gericht hatte weder über die Schuld noch über die in der vorherigen Instanz verhängten Strafen entschieden. Insoweit hätte eine öffentliche Verhandlung die Garantien aus A r t . 6 Abs. 1 E M R K nicht weiter verstärken können. I m vorliegenden Fall könne ohne Interessenkollision von einer wörtlichen Auslegung des A r t . 6 Abs. 1 E M R K abgesehen werden. Die Rüge des Bf. sei daher unbegründet. c) Luberti gegen Italien

162

Dieser Fall geht auf die Beschwerde des Italieners Luberti zurück, der trotz keinerlei geistiger Beschwerden immer noch in ein psychiatrisches Krankenhaus 159

Vgl. Urteile vom 10. Dezember 1982; Judgments Vol. 56, 57; vgl. Theis (Anm. 98), 457 u. Anm. 171, 172. ιβο Urteil vom 23. Oktober 1984; Judgments Vol. 85; Press Release C (84) 75; Forum 4/1984, 15; EuGRZ 12 (1985), 144/145. 161 Urteil vom 22. Februar 1984; Judgments Vol. 74; Beschwerde Nr. 8209/78; Press Release C (84) 13; Forum 1/1984, 20; 2/1983, 18; EuGRZ 12 (1985), 229—234; ELR 9 (1984), 136 f. i«2 Urteil vom 23. Februar 1984; Judgments Vol. 75; Press Release C (84) 14; Forum 1/1984, 20.

Der Europarat 1984

499

eingewiesen ist. Des weiteren rügt er, daß die italienischen Gerichte nicht innerhalb einer angemessenen Frist über seinen Antrag auf Aufhebung der Internierung entschieden hätten. Er stützt seine Rüge auf A r t . 5 Abs. 1 und A r t . 5 Abs. 4 E M R K . D a die Anträge von Luberti erst 18 Monate bzw. 9 Monate nach Eingabe beantwortet wurden, hält der E u G H M R zwar nicht A r t . 5 Abs. 1, wohl aber A r t . 5 Abs. 4 E M R K für verletzt. I m Rahmen des Verfahrens nach A r t . 50 E M R K sahen die Richter die Anerkennung der Verletzung des A r t . 5 Abs. 4 E M R K als ausreichend an; eine Entschädigung wurde nicht zuerkannt. d) Goddi gegen

Italien

168

Francesco Goddi, italienischer Staatsbürger, klagt, weil ihm im Verlauf eines Verfahrens vor dem Berufungsgericht in Bologna weder die Gelegenheit der persönlichen Teilnahme noch die Bestellung eines Wahlverteidigers gewährt wurde. Der bestellte Pflichtverteidiger, so der Bf., habe ihm keinen wirksamen Beistand geleistet. Er rügt eine Verletzung des A r t . 6 Abs. 3 (c) E M R K . Die Richter hatten zu beurteilen, ob durch das Verfahren vor dem Berufungsgericht in Bologna das in A r t . 6 Abs. 3 (c) E M R K niedergelegte Gebot der umfassenden Verteidigung verletzt wurde. Nach ständiger Rechtsprechung des E u G H M R 1 6 4 müßte dem Bf. eine „konkrete und wirkliche" Verteidigung ermöglicht worden sein. Der vom Bf. beauftragte Verteidiger hatte mangels Ladung nicht an der Verhandlung teilgenommen. Der Bf. selbst befand sich zu dieser Zeit in H a f t ; für seine Teilnahme an der Verhandlung trugen weder die Gefängnisbehörde noch die Staatsanwaltschaft Sorge. Das Gericht hatte Goddi in der Verhandlung einen Pflichtverteidiger bestellt, der weder den Mandanten kannte noch Kenntnis von dessen augenblicklicher Inhaftierung hatte. Dem Pflichtverteidiger war die notwendige Vorbereitungszeit verweigert worden, denn die beantragte Vertagung wurde abgelehnt, und der Bf. war am selben Tag zu einer höheren Strafe als in erster Instanz verurteilt worden. Nach Würdigung dieser Fakten stellte der Gerichtshof wie auch schon die Kommission eine Verletzung des A r t . 6 Abs. 3 (c) E M R K fest. I n dem sich anschließenden Entschädigungsverfahren nach A r t . 50 E M R K sprach das Gericht dem Bf. 5 Millionen Lire Schadensersatz zu.

163 Urteil vom 9. April 1984; Judgments Vol. 76; Press Release C (84) 23; Forum 2/1984, 15; EuGRZ 12 (1985), 234—237; ELR 9 (1984), 290 f. 164 Urteil vom 13. Mai 1980; Judgments Vol. 37; vgl. Prieß (Anm. 84), 482; EuGRZ 7 (1980), 662 (664).

32*

500

Regine Ludwig

e) De Jong, Baijet und van den Brink gegen die Niederlande van der Sluijs y Zuiderveld und Klappe gegen die Niederlande Duinhof und Duijf gegen die Niederlande 165 I n allen drei Fällen sind die Bf. Zeitsoldaten der niederländischen Armee. Aus Gewissensgründen widersetzten sie sich Anordnungen ihrer Vorgesetzten. Aufgrund von Lücken i m niederländischen Militärrecht seien sie, so die Behauptungen der Bf., nicht unverzüglich einem Richter oder einem anderen gesetzlich zur Ausübung richterlicher Funktionen ermächtigten Beamten vorgeführt worden. Die Straßburger Richter sahen darin eine Verletzung des A r t . 5 Abs. 3 E M R K . I m Fall der Bf. de Jong, Baijet und van der Brink stellten sie darüber hinaus einen Verstoß gegen A r t . 5 Abs. 4 E M R K fest. I m Verfahren nach A r t . 50 E M R K wurde jedem Bf. eine Entschädigung in Höhe von 300 niederländischen Gulden zugesprochen. f)

Campbell und Fell gegen das Vereinigte

Königreich

166

Die Entscheidung geht auf zwei gegen das Vereinigte Königreich gerichtete Beschwerden zurück. Die Bf., Insassen des Gefängnisses von Albany, waren bei einem von ihnen nicht verschuldeten Zwischenfall verwundet worden. Aufgrund dieses Vorfalls verurteilte das Kontrollkomitee (board of visitors) des Gefängnisses die Bf. wegen schwerer disziplinärer Vergehen. Dadurch büßten sie den bei guter Führung üblicherweise gewährten Strafnachlaß ein. Wegen der Unmöglichkeit der Beratung oder gar Vertretung durch einen Rechtsanwalt in dem Verfahren vor dem Kontrollkomitee sei, so John J. Campbell, sein Recht aus A r t . 6 E M R K verletzt. Des weiteren sah er in der Nichtveröffentlichung der Entscheidung ebenfalls einen Verstoß gegen A r t . 6 E M R K . Neben der Verletzung des A r t . 6 E M R K wegen der Beschränkung der Rechtsanwaltsbesuche beklagte Fell einen Eingriff i n A r t . 8 E M R K , da audi seine persönliche Korrespondenz eingeschränkt wurde. I n der Entscheidung erkannte der E u G H M R auf Verletzung der A r t . 6 und 8 E M R K . I m Entschädigungsverfahren verurteilte das Gericht das Vereinigte Königreich zur Zahlung von 13.000 Pfund Sterling an die Bf. Urteile vom 22. Mai 1984; Judgments Vol. 77, 78, 79; Press Release C (84) 28; Forum 3/1984, 14; zu den Problemen der Wehrdienstverweigerung siehe Forum 4/1984, 9 f.; das Bundes Verfassungsgerichtsurteil des 2. Senats vom 24. 04.1985 — 2 BvF 2/83 u. a. über das Kriegsdienstverweigerungs-Neuordnungsgesetz ist im Wortlaut vollständig abgedruckt in: EuGRZ 12 (1985), 193—217; dazu Friedrich K. Schoch, Das Urteil des BVerfG zum neuen Kriegsdienstverweigerungsrecht, in: Jura 7 (1985), 465—478. i«6 Urteil vom 28. Juni 1984; Judgments Vol. 80; Press Release C (84) 42; Forum 3/1984, 14 f.

Der Europarat 1984

g) Guincho gegen Portugal

167

Das Gericht erkannte auf Verletzung des A r t . 6 Abs. 1 E M R K . Das Urteil stellt fest, daß die Dauer des vom Bf., einem portugiesischen Staatsangehörigen, angestrengten Zivilverfahrens die nach der E M R K als angemessen geltende Frist überschritten hatte. Manuel Guincho erhielt einen Betrag von 150.000 Escudos gem. A r t . 50 E M R K als Entschädigung zugesprochen. h) Malone gegen das Vereinigte

Königreich

168

Der Bf., James Malone, war der Hehlerei in mehreren Fällen angeklagt, wurde jedoch freigesprochen. I m Laufe des Verfahrens stellte sich heraus, daß eines seiner Telefongespräche abgehört worden war. Malone behauptete, daß über einen längeren Zeitraum sowohl sein Telefon als auch sein Briefverkehr überwacht worden seien, da seine Briefe ihn vielfach verspätet und unverschlossen bzw. nur provisorisch verschlossen erreicht hätten. Hinsichtlich des Telefonverkehrs führte er aus, daß ihm ungewöhnliche Geräusche in der Leitung aufgefallen seien und daß die Polizei über Informationen verfügt habe, zu denen sie nur aufgrund des Abhörens gelangen konnte. Der Bf. behauptete weiter, daß sein Telefonanschluß mit einer Vorrichtung verbunden worden sei, die automatisch alle gewählten Nummern aufzeichnete. Während des Gerichtsverfahrens bestätigte die Polizei bzw. Staatsanwaltschaft diese Vorwürfe partiell, wies jedoch auf einen Beschluß des Innenministers hin, der als hinreichende Rechtsgrundlage für diese Eingriffe gelte. Ein Antrag zur Überprüfung der Rechtmäßigkeit dieser Maßnahmen vor dem H i g h Court in London wurde als unzulässig zurückgewiesen. Der Bf. stützt seine Klage auf die Verletzung des Rechtes auf Achtung des Privatlebens und des Briefwechsels gem. A r t . 8 Abs. 1 E M R K und des Rechtes auf wirksame Beschwerde bei einer nationalen Instanz gem. A r t . 13 E M R K . Der Gerichtshof mußte zunächst klären, ob die gerügten Maßnahmen den Schutzbereich des A r t . 8 Abs. 1 E M R K tangierten. Einstimmig gelangten die Richter zu der Auffassung, daß sowohl wegen der Kommunikationsüberwachung (Telefon und Post) wie auch wegen der Hingabe der Registrierungsverzeichnisse an die Polizei in den Schutzbereich des A r t . 8 Abs. 1 E M R K eingegriffen wurde. Der Hauptgegenstand des Streites war jedoch, festzustellen, ob der Eingriff den Erfordernissen des A r t . 8 Abs. 2 E M R K entsprochen habe, insbesondere, ob er auf gesetzlicher Grundlage erfolgt sei. Nach dem E u G H M R 167 Urteil vom 10. Juli 1984; Judgments Vol. 81; Press Release C (84) 48; Forum 3/1984, 15. 168 Urteil vom 2. August 1984; Judgments Vol. 82; Press Release C (84) 57; Forum 4/1984, 15; EuGRZ 12 (1985), 17—27; zur Problematik des Abhörens von Telefonen Forum 3/1984, 2 f.

502

Regine Ludwig

war der Eingriff nach innerstaatlichem Recht nur aufgrund der bestehenden Praxis erlaubt. Der Beschluß des Innenministers sei jedoch nicht als ausreichende Ermächtigungsgrundlage i.S.d. A r t . 8 Abs. 2 E M R K anzusehen. Daher ist A r t . 8 E M R K nach Ansicht des Gerichtes verletzt. 1 6 9 Aufgrund ihrer Entscheidung hielten die Richter die Prüfung einer Verletzung des A r t . 13 E M R K nicht für notwendig. Der Antrag des Bf. auf Erstattung einer Entschädigung und der Kosten wurde mangels Entscheidungsreife zurückgestellt. i) Skoogström gegen Schweden 170 Der Fall geht auf eine Beschwerde vom Oktober 1978 1 7 1 zurück, die Owe Skoogström, ein schwedischer Bürger, wegen einer Verletzung des A r t . 5 Abs. 3 E M R K erhob. I m Laufe des Verfahrens kam es zu einer gütlichen Einigung zwischen dem Bf. und der schwedischen Regierung, so daß die Richter entschieden, den Fall aus dem Register zu streichen. j)

McGoff

gegen Schweden 172

Der irische Bf. war im Juli 1979 in den Niederlanden festgenommen und i m Januar 1980 an Schweden ausgeliefert worden. I h m wurde ein Verstoß gegen das schwedische Rauschmittelgesetz zur Last gelegt. Die Beschwerde richtet sich gegen das Verbot der Gefängnisleitung, sich an die Europäische Menschenrechtskommission zu wenden, obwohl Schweden die Individualbeschwerde nach A r t . 25 E M R K anerkannt hat. Des weiteren beklagt Bf., daß er nicht unverzüglich nach seiner Inhaftierung einem Richter vorgeführt worden sei und die Rechtmäßigkeit seiner H a f t nicht vor einem Gericht hätte überprüfen lassen können (gem. A r t . 5 Abs. 3 und 4 E M R K ) . Die Richter verneinten einstimmig eine Verletzung des A r t . 25 sowie des A r t . 5 Abs. 4 E M R K . Die Klage war nur hinsichtlich A r t . 5 Abs. 3 E M R K begründet. I m Rahmen des Verfahrens nach A r t . 50 E M R K wurde Schweden verurteilt, dem Kläger 2.070,25 irische Pfund für seine Kosten und Auslagen zu erstatten. k)

Sramek gegen Österreich

178

Unter Hinweis auf A r t . 6 Abs. 1 E M R K macht die in der Bundesrepublik Deutschland lebende Bf., eine amerikanische Staatsbürgerin, geltend, daß ihr 169

Eine ausführliche Darstellung der Entscheidung, in: EuGRZ 12 (1985), 17—27. 170 Urteil vom 2. Oktober 1984; Judgments Vol. 83; Forum 4/1984, 16. 171 Beschwerde Nr. 8582/79. 172 Urteil vom 26. Oktober 1984; Judgments Vol. 83; Press Release C (84) 76; Forum 4/1984, 15. 173 Urteil vom 22. Oktober 1984; Judgments Vol. 84; Press Release C (84) 73; Forum 4/1984, 15; EuGRZ 12 (1985), 336—343.

Der Europarat 1984

Fall nicht öffentlich von einem gesetzlich vorgesehenen, unabhängigen und unparteiischen Gericht gehört worden sei. Frau Sramek beabsichtigte, ein Grundstück in Hopfgarten/Tirol zu erwerben. Der endgültige Kaufvertrag kam 1977 zustande und wurde zunächst von der Grundverkehrsbehörde genehmigt. Diese Genehmigung wurde jedoch von der übergeordneten Landesgrundverkehrsbehörde wegen Überfremdungsgefahr unter Hinweis auf Untersuchungen in der Gemeinde aufgehoben. Nach Ansicht der Bf. ist die Landesgrundverkehrsbehörde kein Gericht i.S.d. A r t . 6 Abs. 1 E M R K . Der Gerichtshof entschied mit 13 gegen 2 Stimmen auf Verletzung des A r t . 6 Abs. 1 E M R K . Obwohl diese Behörde ein „auf Gesetz beruhendes" Gericht sei, fehlt einer solchen Regionalbehörde nach Ansicht des Gerichtshofes die nach A r t . 6 Abs. 1 E M R K erforderliche Unabhängigkeit. Der Antrag auf Entschädigung für materielle Schäden in Höhe von 1.000.000 Schilling wurde zurückgewiesen, jedoch wurde die Erstattung der Verfahrenskosten einstimmig bewilligt. 1) Piersack gegen Belgien 174 Es handelt sich um ein Entschädigungsverfahren nach A r t . 50 E M R K , welches an ein Urteil des E u G H M R vom 1. Oktober 1982 175 anschließt. Das nun vorliegende Urteil verpflichtet Belgien, die geforderten Gerichtskosten in Höhe von 51.978 belgischen Franken gegen den Bf. nicht mehr zu erheben und an Piersack die Anwaltskosten von 275.000 belgischen Franken abzüglich 3.500 französische Franken auszuzahlen. m)

De Cubber gegen Belgien 176

Das Verfahren geht auf eine Beschwerde aus dem Jahre 1980 zurück. Der Bf. rügt einen Verstoß gegen das in A r t . 6 Abs. 1 E M R K festgeschriebene Gebot der Unparteilichkeit der Gerichte. Denn das Gericht, welches gegen ihn wegen Urkundenfälschung verhandelte, wäre u. a. mit einem Richter besetzt gewesen, der schon als Untersuchungsrichter in dieser Angelegenheit tätig geworden sei. Nach Ansicht des Gerichtshofes war die Unparteilichkeit der in Frage stehenden Strafkammer nicht hinreichend bewiesen worden. Die Richter entschieden daher auf Verletzung des A r t . 6 Abs. 1 E M R K . 174 Urteil vom 26. Oktober 1984; Judgments Vol. 85; Press Release C (84) 78; Forum 4/1984, 15; EuGRZ 12 (1985), 304—306. 175 Urteil vom 1. Oktober 1982; Judgments Vol. 53; vgl. Theis (Anm. 98), 455 u. Anm. 164 m.w.H.; EuGRZ 12 (1985), 301—304. ΐ7β Urteil vom 26. Oktober 1984; Judgments Vol. 86; Press Release C (84) 77; Forum 4/1984, 15.

504

Regine Ludwig

Mangels Spruchreife wurde der Antrag auf Entschädigung für materielle und moralische Schäden zurückgestellt. n)

Rasmussen gegen Dänemark 177

Der Bf. begehrte nach seiner Scheidung die gerichtliche Feststellung seiner Vaterschaft an seiner ältesten Tochter. Die dänischen Gerichte hatten sein Begehren mehrfach abgelehnt, da sein Anspruch auf Anfechtung der Ehelichkeit zeitlich beschränkt wäre. Er habe sein Recht verwirkt. Der Bf. sieht darin eine ungerechtfertigte Diskriminierung des Mannes, da es einer Frau nach dänischem Recht zeitlich unbegrenzt möglich ist, die Vaterschaft feststellen zu lassen. Er wendet sich gegen die Beeinträchtigung seiner Rechte aus A r t . 14 i.V.m. A r t . 6 und 8 E M R K . Das Gericht hielt A r t . 6 und 8 E M R K zwar für anwendbar, hielt es aber zugleich für zulässig, daß die dänische Regierung Gesetze schafft, aus denen sich Ansprüche ergeben, die Männer nur zeitlich begrenzt geltend machen können. Gegen das Prinzip der Verhältnismäßigkeit werde damit nicht verstoßen. Die Richter verneinten somit eine Verletzung des A r t . 14 i.V.m. A r t . 6 und 8 E M R K . o) Sporrong und Lönnroth

gegen Schweden 178

Die Bf. sind eine Erbengemeinschaft und in dieser Eigenschaft Grundstückseigentümer. Sie hatten bereits 1982 ein obsiegendes Urteil des E u G H M R 1 7 9 erstritten, wodurch die von ihnen als Grundstückseigentümer gerügten Belastungen, die durch das lang andauernde Verfahren und durch ein damit verbundenes Bauverbot hervorgerufen wurden, bestätigt wurden. Der Gerichtshof stellte die Verletzung des A r t . 1 des Ersten Zusatzprotokolls und des A r t . 6 Abs. 1 E M R K fest. Durch die nun ergangene Entscheidung im Verfahren nach A r t . 50 E M R K ist Schweden verurteilt worden, an die Erben Sporrong 800.000 schwedische Kronen und an Lönnroth 200.000 schwedische Kronen zum Ausgleich des erlittenen Schadens zu zahlen. Des weiteren w i r d Schweden verpflichtet, an Sporrong und Lönnroth insgesamt 723.865 schwedische Kronen abzüglich 24.103 französische Franken für Kosten und Auslagen zu erstatten. 4. I m Rahmen seiner Tätigkeit nach A r t . 54 E M R K erklärte das M K nach eingehender Prüfung sieben Fälle für erledigt: 177 Urteil vom 28. November 1984; Judgments Vol. 87; Press Release C (84) 86. 178 Urteil vom 18. Dezember 1984; Judgments Vol. 88; Press Release C (84) 90; Forum 1/1985, 19; EuGRZ 12 (1985), 445—450. 179 Urteil vom 23. September 1982; Judgments Vol. 52; Press Release C (82) 47; vgl. Theis (Anm. 98), 454—455.

Der Europarat 1984

Pakeiii gegen die Bundesrepublik Deutschland 180; Foti u. andere gegen Italien 181 ; Eckle gegen die Bundesrepublik Deutschland 182; Goddi gegen Italien 183; De Jong, B al jet und van der Brink gegen die Niederlande 184 ; Duinhof und Duijf gegen die Niederlande 185 ; Bramelid und Malmström gegen Schweden 18θ. 5. A u f der Herbsttagung der X X X V I . ordentlichen Sitzungsperiode beschäftigte sich die P V mit Fragen der Menschenrechte. Ausgangspunkt der Diskussion über die Verschleppung von Menschen 187 war der Protest von Müttern in Argentinien gegen die Verschleppung ihrer Kinder unter der Herrschaft des Militärregimes. Das Verschwinden von Menschen ist kein Problem einzelner Staaten, sondern geht die Staatengemeinschaft insgesamt an. Die P V verurteilte das Verhalten der Verantwortlichen als eklatante Menschenrechtsverletzung und rief die Mitgliedstaaten auf, innerhalb der U N O auf eine Ausarbeitung und Verabschiedung einer Erklärung zu drängen, die die Zwangsverschleppung als Verbrechen gegen die Menschheit und nicht nur als politisches Verbrechen deklariert. Weiterhin befaßte sich das Plenum mit der Lage der Minderheiten in Rumänien 1 8 8 . Die Sprecher rügten die Mißachtung von Rechten der ethnischen, religiösen und sprachlichen Minoritäten, die durch die Schlußakte von Helsinki garantiert werden. Die rumänische Regierung wurde aufgerufen, den Minderheiten die Achtung und die ungestörte Ausübung ihrer durch die rumänische Verfassung niedergelegten Rechte zu sichern sowie in Rumänien Verhältnisse zu schaffen, die ein Leben ohne Diskriminierung ermöglichen. 189

180 Entschließung D H (84) 1; Forum 1/1984, 20; vgl. Escher (Anm. 1), 546—547. 181 Entschließung D H (83) 3; Forum 3/1984, 12—13; vgl. Esdher (Anm. 1), 548—549 u. Theis (Anm. 98), 457. 182 Entschließung D H (84) 5; Forum 1/1985, 19; vgl. Escher (Anm. 1), 453—454 u. Theis (Anm. 98), 547—548. 183 Entschließung D H (84) 6; Forum 1/1985, 19; vgl. oben 3 d). 184 Entschließung D H (84) 7; Forum 1/1985, 19; vgl. 3 e). 185 Entschließung D H (84) 8; Forum 1/1985, 19; vgl. 3 e). 186 Entschließung D H (84) vom November 1984; Forum 1/1985, 19. 187 Doc. 5273; Entschließung 828; abgedruckt in: EuGRZ 12 (1985), 79; zur Entwicklung des internationalen Menschenrechtsschutzes in Südamerika vgl. Η ans-Jürgen Bartsch, Die Entwicklung des internationalen Menschenrechtsschutzes im Jahre 1982, in: Neue Juristische Wochenzeitschrift (NJW) 36 (1983), 473—482 (478—480) m.w.N.; Jost Delbrück, Menschenrechte — Grundlage des Friedens?, in: Im Dienst für Entwicklung und Frieden. Festschrift Bischof Heinrich Teuhumberg Mainz/München 1982, 89—102; Eduard Schumacher, Argentina and Democracy, in: Foreign Äff airs 1984, 1070—1095. 188 Debates, 36th ord. sess., Vol. I I , 394—409. 18® Entschließung 830; abgedruckt im vollen Wortlaut in EuGRZ 12 (1985), 79—80.

D O C U M E N T A T I O N Nordischer Rat : Übereinkommen über die Zusammenarbeit zwischen Dänemark, Finnland, Island, Norwegen und Schweden (Helsinki-Abkommen) unterzeichnet zu Helsinki am 23. März 1962, in Kraft getreten am 1. Juli 1962, abgeändert durch Übereinkommen vom 13. Februar 1971, 11. März 1974 und 15. Juni 1983; Inkrafttreten der letzten Änderungen am 28. Januar 1984* Präambel zum Übereinkommen vom 23. März 1962 Die Regierungen Dänemarks, Finnlands, Islands, Norwegens und Schwedens, die die zwischen den nordischen Völkern bestehende enge Gemeinschaft in der Kultur sowie der Rechts- und Gesellschaftsauffassung weiter fördern und die Zusammenarbeit zwischen den nordischen Ländern weiterentwickeln wollen; die in so vielen Beziehungen wie möglich nach einheitlichen Regeln in den nordischen Ländern streben; die auf allen Gebieten, in denen die Voraussetzungen dafür bestehen, eine zweckmäßige Arbeitsteilung zwischen den Ländern erreichen wollen; die die für die Länder bedeutungsvolle Zusammenarbeit im Rahmen des Nordischen Rates und der übrigen Kooperationsorgane fortzusetzen beabsichtigen; haben folgende Bestimmungen vereinbart. Präambel zum Übereinkommen vom 13. Februar 1971 Die Regierungen Dänemarks, Finnlands, Islands, Norwegens und Schwedens, die die institutionellen Grundlagen der Zusammenarbeit zwischen den nordischen Ländern stärken und weiter ausbauen wollen, die es zweckmäßig finden, das Zusammenarbeitsübereinkommen vom 23. März 1962 zwischen den nordischen Ländern in diesem Sinne abzuändern, die daher beschlossen haben, die grundlegenden Bestimmungen über den Nordischen Rat in das Übereinkommen über die Zusammenarbeit aufzunehmen, die zugleich beschlossen haben, Bestimmungen über einen Nordischen Ministerrat mit der Zuständigkeit für das gesamte nordische Zusammenarbeitsgebiet in das Übereinkommen über die Zusammenarbeit aufzunehmen, haben folgendes vereinbart. * Die deutsche Übersetzung wurde von Wulf Hermann angefertigt. Das Original ist abgedruckt in: Nordiska samarbetsavtal, utgiven av Nordiska Râdets presidiesekretariat, Stockholm 1984.

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Präambel zum Übereinkommen vom 11. März 1974 Die Regierungen Dänemarks, Finnlands, Islands, Norwegens und Schwedens, die durch Ubereinkommen vom 13. Februar 1971 das Übereinkommen über die Zusammenarbeit zwischen den nordischen Ländern vom 23. März 1962 geändert haben, die es zweckmäßig finden, bestimmte weitere Änderungen in und Ergänzungen zu dem Übereinkommen vorzunehmen, haben folgendes vereinbart. Präambel zum Übereinkommen vom 15. Juni 1983 Die Regierungen Dänemarks, Finnlands, Islands, Norwegens und Schwedens, die durch Übereinkommen vom 13. Februar 1971 und vom 11. März 1974 das Übereinkommen über die Zusammenarbeit vom 23. März 1962 zwischen den nordischen Ländern geändert haben, die es zweckmäßig finden, bestimmte Änderungen in dem Übereinkommen vorzunehmen, um den Färöern und Aland eine erweiterte Repräsentation im Nordischen Rat und Nordischen Ministerrat sowie Grönland eine entsprechende Repräsentation in diesen Organen zu geben, haben folgendes vereinbart: Einleitende

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Artikel I i Die vertragschließenden Parteien sollen danach streben, die Zusammenarbeit zwischen den Ländern in rechtlicher, kultureller, sozialer und wirtschaftlicher Beziehung sowie hinsichtlich des Verkehrs und des Umweltschutzes zu erhalten und weiterzuentwickeln. Rechtliche

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Artikel 2 Die vertragschließenden Parteien sollen ihre Bemühungen fortsetzen, die größtmögliche rechtliche Gleichstellung zwischen Staatsangehörigen eines nordischen Landes, die sich in einem anderen nordischen Land als dem eigenen aufhalten, und den Staatsangehörigen des Aufenthaltslandes zu erreichen. Artikel 3 Die vertragschließenden Parteien sollen es Staatsbürgern eines nordischen Landes erleichtern, die Staatsbürgerschaft in einem anderen nordischen Land zu erwerben. Artikel 4 Die vertragschließenden Parteien sollen ihre Zusammenarbeit auf rechtlichem Gebiet fortsetzen, um die größtmögliche Übereinstimmung auf dem Gebiete des Privatrechts zu erreichen. Artikel 5 Die vertragschließenden Parteien sollen danach trachten, einheitliche Bestimmungen über Vergehen und Verbrechen sowie über Straffolgen zu schaffen. ι Geändert durch Übereinkommen von 1974.

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Hinsichtlich eines in einem nordischen Land begangenen Vergehens oder Verbrechens sollen die Ermittlungen und das Gerichtsverfahren in größtmöglichem Umfange auch in einem anderen nordischen Land stattfinden können. Artikel 6 Die vertragschließenden Parteien sollen danach streben, ihre Gesetzgebung auf anderen als den bereits erwähnten Gebieten, in denen dies zweckmäßig erscheint, zu koordinieren. Artikel 7 Jede vertragschließende Partei soll Regelungen treffen, wonach Entscheidungen von Gerichten oder anderen Behörden eines anderen nordischen Landes auch im Zuständigkeitsbereich der Partei vollstreckt werden können. Kulturelle

Zusammenarbeit

Artikel 82 In den Schulen der nordischen Länder soll der Unterricht und die Ausbildung in geeignetem Umfang den Unterricht in der Sprache, Kultur und den allgemeinen Gesellschaftsverhältnissen der übrigen nordischen Länder einschließlich der Färöer, Grönlands und Alands umfassen. Artikel 9 Jede vertragschließende Partei soll die für in einem anderen nordischen Land beheimatete Studenten bestehenden Möglichkeiten, an ihren Bildungsanstalten zu studieren und Prüfungen abzulegen, erhalten und ausweiten. In größtmöglichem Umfang soll dabei auch ein in einem nordischen Land bestandenes Teilexamen für das Abschlußexamen in einem anderen nordischen Land anerkannt werden. Finanzielle Unterstützung des Heimatlandes soll gewährt werden können, ungeachtet dessen, in welches Land die Studien verlegt werden. Artikel 10 Die vertragschließenden Parteien sollen die öffentliche Ausbildung, die zur Zulassung der Ausübung bestimmter Berufe führt, koordinieren. Eine solche Ausbildung soll soweit wie möglich in allen nordischen Ländern zur gleichen Berufsausübung befähigen. Eine Zusatzausbildung, die im Hinblick auf die nationalen Verhältnisse geboten ist, kann jedoch gefordert werden. Artikel 11 In Bereichen, in denen eine Zusammenarbeit zweckmäßig erscheint, soll der Ausbau der Bildungsanstalten durch ständige Zusammenarbeit hinsichtlich der Ausbauplanung und ihrer Durchführung koordiniert werden. Artikel 12 Die Zusammenarbeit auf dem Gebiete der Forschung soll so geartet sein, daß für Forschungszwecke zur Verfügung stehende Beträge und andere Mittel koordiniert sowie auf bestmögliche Art verwendet werden, unter anderem durch Errichtung gemeinsamer Institutionen. e n e t

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Artikel 13 Zur Stützung und Stärkung der kulturellen Entwicklung sollen die vertragschließenden Parteien die freie nordische Volksbildungsarbeit und den Austausch auf den Gebieten der Literatur, der Kunst, der Musik, des Theaters, des Films und der übrigen kulturellen Bereiche fördern und dabei unter anderem die Möglichkeiten nutzen, die Hörfunk und Fernsehen bieten. Soziale Zusammenarbeit Artikel 14 Die vertragschließenden Parteien sollen danach streben, den gemeinsamen nordischen Arbeitsmarkt im Sinne der in früheren Übereinkommen entworfenen Richtlinien zu erhalten und weiterzuentwickeln. Die Arbeitsvermittlung und die Berufsberatung sollen koordiniert werden. Der freie Austausch von Praktikanten soll gewährleistet sein. Die Übereinstimmung nationaler Bestimmungen über Arbeitnehmerschutz und ähnliche Fragen ist anzustreben. Artikel 15 Die vertragschließenden Parteien sollen sich dafür einsetzen, daß Staatsangehörige eines nordischen Landes während ihres Aufenthaltes in einem anderen nordischen Land im größtmöglichen Maße in den Genuß der sozialen Vergünstigungen kommen, die den eigenen Staatsangehörigen des Aufenthaltslandes gewährt werden. Artikel 16 Die vertragschließenden Parteien sollen die Zusammenarbeit auf dem Gebiet der Gesundheits- und Krankenpflege, der Alkoholikerbetreuung sowie der Kinder- und Jugendpflege weiterentwickeln. Artikel 17 Jede vertragschließende Partei soll sich dafür einsetzen, daß medizinische, technische oder ähnliche Sicherheitskontrollen so durchgeführt werden, daß Atteste oder Bescheinigungen darüber auch in den übrigen nordischen Ländern Geltung haben. Wirtschaftliche

Zusammenarbeit

Artikel 18 Die vertragschließenden Parteien sollen in dem Bestreben, die nordische wirtschaftliche Zusammenarbeit auf verschiedenen Gebieten zu fördern, wirtschaftspolitische Fragen miteinander beraten. Dabei ist den Möglichkeiten zur Koordinierung von Maßnahmen zum Ausgleich konjunktureller Entwicklungen Aufmerksamkeit zu schenken. Artikel 19 Die vertragschließenden Parteien beabsichtigen, die Zusammenarbeit auf den Gebieten von Produktion und Investitionen zwischen ihren Ländern soweit wie möglich zu fördern und dabei zu versuchen, Voraussetzungen für eine direkte Zusammenarbeit zwischen Unternehmen in zwei oder mehreren nordischen Ländern zu schaffen. Die vertragschließenden Parteien sollen im Rahmen einer umfassendereren internationalen Zusammenarbeit danach streben, hinsichtlich der Produktion und Investitionen eine zweckmäßige Arbeitsteilung zwischen den Ländern zu erreichen.

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Artikel 20 Die vertragschließenden Parteien sollen sich für die größtmögliche Freiheit bei Kapitalbewegungen zwischen den nordischen Ländern einsetzen. Hinsichtlich anderer Zahlungs- und Währungsfragen gemeinsamen Interesses sollen gemeinsame Lösungen angestrebt werden. Artikel 21 Die vertragschließenden Parteien sollen danach streben, die begonnene Zusammenarbeit zum Abbau von Handelshindernissen zwischen den nordischen Ländern zu festigen sowie diese Zusammenarbeit soweit wie möglich weiter zu stärken und zu entwickeln. Artikel 22 Die vertragschließenden Parteien sollen in internationalen handelspolitischen Fragen sowohl für sich als auch gemeinsam versuchen, nordische Interessen zu fördern und zu diesem Zwecke miteinander zu beraten. Artikel 23 Die vertragschließenden Parteien sollen sich für eine Koordinierung der zolltechnischen und zolladministrativen Bestimmungen sowie für solche Vereinfachungen in Zollangelegenheiten einsetzen, die geeignet sind, den Handelsverkehr zwischen den Ländern zu erleichtern. Artikel 24 Die Bestimmungen für den nordischen Grenzhandel sollen so gestaltet werden, daß den Bewohnern der Grenzgebiete so geringe Nachteile wie möglich entstehen. Artikel 25 Wenn Erfordernisse und Voraussetzungen für einen gemeinsamen wirtschaftlichen Ausbau von Regionen auf aneinandergrenzenden Territorien zweier oder mehrerer vertragschließender Parteien vorliegen, sollen diese Parteien gemeinsam versuchen, einen solchen Ausbau zu fördern. Zusammenarbeit auf dem Verkehrsgebiet Artikel 26 Die vertragschließenden Parteien sollen danach streben, die früher begonnene Zusammenarbeit auf dem Gebiet des Verkehrs zu festigen sowie zu versuchen, diese Zusammenarbeit zum Zwecke der Verbesserung der Verbindungen und der Erleichterung des Warenaustausches zwischen den Ländern zu entwickeln und zweckmäßige Lösungen der in diesem Bereich entstehenden Probleme zu finden. Artikel 27 Der Bau von Verkehrsadern, die das Gebiet zweier oder mehrerer vertragschließender Parteien berühren, soll im Einvernehmen der betroffenen Parteien erfolgen. Artikel 28 Die vertragschließenden Parteien sollen danach streben, die Zusammenarbeit, die zu einem einheitlichen Paßkontrollgebiet ihrer Territorien geführt hat, aufrechtzuerhalten und weiterzuentwickeln. Die Kontrolle der Reisenden, die eine Grenze zwischen nordischen Ländern passieren, soll auch im übrigen vereinfacht und vereinheitlicht werden.

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Artikel 29 Die vertragschließenden Parteien sollen die Arbeit zur Schaffung einer erhöhten Verkehrssicherheit koordinieren. Zusammenarbeit auf dem Gebiet des Umweltschutzes

3

Artikel 30 Die vertragschließenden Parteien sollen in der nationalen Gesetzgebung und ihrer Anwendung die Umweltschutzinteressen der übrigen vertragschließenden Parteien mit denen des eigenen Landes gleichstellen. Artikel 31 Die vertragschließenden Parteien sollen nach einer Harmonisierung ihrer Umweltschutzbestimmungen zum Zwecke einer größtmöglichen Ubereinstimmung der Normen und Richtlinien für Emmissionen von Verunreinigungen, Gebrauch von Umweltgiften und andere Beeinträchtigungen der Umwelt streben. Artikel 32 Die vertragschließenden Parteien sollen nach einer Koordinierung der Einrichtung von Naturschutz- und Freizeitgebieten sowie der Maßnahmen zum Schutze von Pflanzen und Tieren streben. Übrige Zusammenarbeit Artikel 33 Die vertragschließenden Parteien sollen, soweit dies möglich und angebracht ist, in Fragen von gemeinsamem Interesse, die in internationalen Organisationen oder auf internationalen Kongressen behandelt werden, miteinander beraten. Artikel 34 Beamte, die dem auswärtigen Dienst einer vertragschließenden Partei angehören und ihren Dienst außerhalb der nordischen Länder ausüben, sollen, soweit dies mit ihren Dienstpflichten vereinbar ist und Hindernisse seitens des eigenen Landes nicht bestehen, auch Staatsangehörigen eines anderen nordischen Landes Beistand leisten, wenn dieses am betreffenden Ort keine Vertretung hat. Artikel 35 Die vertragschließenden Parteien sollen, wann immer dies möglich und zweckmäßig ist, ihre Hilfe für und ihre Zusammenarbeit mit Entwicklungsländern koordinieren. Artikel 36 Maßnahmen zur Verbreitung von Kenntnissen über die nordischen Länder und über die nordische Zusammenarbeit sollen in engem Zusammenwirken zwischen den vertragschließenden Parteien und deren Organen für Auslandsinformationen getroffen werden. Falls es angebracht ist, kann auch ein gemeinsames Vorgehen in Frage kommen. 8

Artikel 30 bis 32 eingefügt durch Übereinkommen von 1974.

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Artikel 37 Die vertragschließenden Parteien sollen danach trachten, die verschiedenen Zweige der öffentlichen Statistik zu koordinieren. Besondere Übereinkommen* Artikel 38 Nähere Bestimmungen über die Zusammenarbeit auf den genannten Gebieten können in besonderen Übereinkommen getroffen werden. Formen der nordischen Zusammenarbeit Artikel 395 Zur Durchführung und Weiterentwicklung der nordischen Zusammenarbeit nach diesem und anderen Übereinkommen sollen sich die nordischen Länder regelmäßig beraten und im Bedarfsfall koordinierende Maßnahmen ergreifen. Artikel 4Q5 Die Zusammenarbeit zwischen den nordischen Ländern erfolgt im Nordischen Rat, im Nordischen Ministerrat sowie auf anderen Ministerkonferenzen, in besonderen Zusammenarbeitsorganen und zwischen Fachbehörden. Artikel 41 Beschlüsse, die als Ergebnis der Zusammenarbeit zweier oder mehrerer vertragschließender Parteien zustande kommen, dürfen nicht von einer Partei geändert werden, ohne daß die übrigen Parteien darüber unterrichtet werden. Die Unterrichtung ist jedoch in dingenden Fällen oder bei weniger wichtigen Angelegenheiten nicht erforderlich. Artikel 42 Behörden der nordischen Länder sind zu direktem Schriftwechsel miteinander in allen Angelegenheiten befugt, die ihrer Natur nach oder aus anderen Gründen nicht durch den auswärtigen Dienst zu erledigen sind. Artikel 43« Die nordische Zusammenarbeit hat soweit wie möglich öffentlich stattzufinden. Der Nordische Rat 7 Artikel 448 Im Nordischen Rat arbeiten die Volksvertretungen der nordischen Länder sowie der Färöer, Grönlands und Alands, die Regierungen der Länder sowie die Landsstyre der Färöer und Grönlands und die Landskapsstyrelse Alands zusammen. Der Rat hat das Initiativrecht und 4 5 6 7 8

Artikel 38 eingefügt durch Übereinkommen von 1974. Geändert durch Übereinkommen von 1971. Artikel 43 eingefügt durch Übereinkommen von 1974. Artikel 44 bis 59 eingefügt durch Übereinkommen von 1971. Geändert durch Übereinkommen von 1983.

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beratende Funktion in Fragen, die das Zusammenwirken zwischen allen oder einigen dieser Länder und der Färöer, Grönlands und Alands betreffen und hat im übrigen die Aufgaben wahrzunehmen, die sich aus diesem oder anderen Übereinkommen ergeben. Artikel 45 Der Rat kann Empfehlungen an eine oder mehrere Regierungen der nordischen Länder oder an den Ministerrat beschließen, an diese andere Anträge stellen oder Stellungnahmen abgeben. Artikel 46 Dem Rat soll vorbehaltlich besonderer Übereinkommen Gelegenheit geboten werden, sich zu Fragen der nordischen Zusammenarbeit von größerer Bedeutung zu äußern, wenn dies nicht aus Zeitgründen untunlich ist. Artikel 479 Der Rat besteht aus 87 gewählten Mitgliedern, Regierungsvertretern und Vertretern der Landsstyre der Färöer und Grönlands sowie der Landskapsstyrelse Älands. Das Folketing Dänemarks wählt sechzehn, der Reichstag Finnlands achtzehn, das Alting Islands sieben, das Storting Norwegens und der Reichstag Schwedens je zwanzig sowie das Lagting der Färöer und das Landsting Grönlands je zwei und das Landsting Älands zwei Mitglieder. Außerdem wählt jede Volksvertretung eine entsprechende Anzahl von Stellvertretern. Die Wahl der Mitglieder und Stellvertreter erfolgt jährlich und gilt für die Zeit bis zur nächsten Wahl. Bei der Wahl soll den verschiedenen politischen Richtungen eine Vertretung im Rat eingeräumt werden. Nur ein Mitglied der Volksvertretung, die die Wahl vorgenommen hat, kann gewähltes Mitglied oder Stellvertreter im Rat sein. Die Regierungen, Landsstyre und Landskapsstyrelse bestellen aus den Reihen ihrer Mitglieder eine beliebige Anzahl Repräsentanten. Artikel 489 Die Delegation Dänemarks besteht aus den vom Folketing gewählten Mitgliedern und den von der Regierung bestellten Vertretern sowie aus den im Absatz 2 genannten Delegationen der Färöer und Grönlands. Die Delegation Finnlands besteht aus den vom Reichstag gewählten Mitgliedern und den von der Regierung bestellten Repräsentanten sowie aus der in Absatz 2 genannten Delegation Älands. Die Delegationen der übrigen Länder bestehen aus den von den Volksvertretungen gewählten Mitgliedern und den von den Regierungen bestellten Vertretern. Die Delegation der Färöer besteht aus den vom Lagting gewählten Mitgliedern und den vom Landsstyre bestellten Vertretern. Die Delegation Grönlands besteht aus den vom Landsting gewählten Mitgliedern und den von der Landsstyre bestellten Vertretern. Die Delegation Älands besteht aus den vom Landsting gewählten Mitgliedern und den von der Landskapsstyrelse bestellten Vertretern. „Delegation" im Sinne der Artikel 52, 53, 54 Abs. 1 und 58 Abs. 2 ist die Delegation des Landes. 9

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Artikel 49» Die Regierungsvertreter sowie die Vertreter der Landsstyre und der Landskapsstyrelse haben kein Stimmrecht im Rat. In Angelegenheiten, die die Anwendung von Ubereinkommen zwischen bestimmten Ländern betreffen, haben nur Mitglieder dieser Länder Stimmrecht. Artikel 50 Die Organe des Rates sind die Vollversammlung, das Präsidium und die Ausschüsse. Artikel 51 Die Vollversammlung besteht aus allen Mitgliedern des Rates. Die Vollversammlung hält einmal jährlich eine ordentliche Sitzung ab. Außerordentliche Sitzungen finden auf Beschluß der Vollversammlung oder des Präsidiums oder auf Antrag von mindestens zwei Regierungen oder mindestens 25 gewählten Mitgliedern statt. Die Befugnisse des Rates werden von der Vollversammlung ausgeübt, soweit nichts anderes bestimmt ist. Die Verhandlungen der Vollversammlung sind öffentlich, soweit die Vollversammlung nichts anderes beschließt. Artikel 52 Die Vollversammlung bestellt in einer ordentlichen Sitzung ein Präsidium, das aus einem Präsidenten und vier Vizepräsidenten besteht. Für jedes Präsidiumsmitglied wird ein Stellvertreter bestellt. Alle Delegationen sollen im Präsidium und unter den Stellvertretern vertreten sein. Soweit möglich sollen die verschiedenen politischen Richtungen im Präsidium und unter den Stellvertretern repräsentiert werden. Präsidiumsmitglieder und deren Vertreter müssen gewählte Mitglieder des Rates sein. Wird der Platz eines Präsidiumsmitglieds oder eines Stellvertreters zwischen zwei ordentlichen Sitzungen frei, hat die Delegation, der das ausscheidende Mitglied oder der Stellvertreter angehört hat, für die Zeit bis zur nächsten ordentlichen Sitzung ein neues Mitglied oder einen neuen Stellvertreter zu bestellen. Das Präsidium erledigt die laufenden Angelegenheiten des Rates und vertritt im übrigen den Rat gemäß den Bestimmungen dieses Ubereinkommens und der Geschäftsordnung des Rates. Artikel 53 Die Vollversammlung bestimmt die Anzahl und den Tätigkeitsbereich der Ausschüsse. Für jeden Ausschuß legt die Vollversammlung die Anzahl der Mitglieder jeder Delegation, die dem Ausschuß angehören sollen, fest. In Übereinstimmung hiermit verteilt jede Delegation ihre gewählten Mitglieder auf die Ausschüsse. Aufgabe der Ausschüsse ist es, die Behandlung der Angelegenheiten im Rate vorzubereiten. Artikel 54 Der Rat wird bei seiner Tätigkeit von einem Sekretariat unterstützt, das aus einem vom Präsidium bestellten Sekretär sowie aus fünf von jeder Delegation bestellten Sekretären besteht.

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Das Präsidium bestellt die Sekretäre der Ausschüsse sowie das übrige Personal, das für die Erledigung der gemeinsamen Sekretariatsaufgaben des Rates erforderlich ist. Jede Delegation bestellt das Sekretariatspersonal zur Unterstützung der Delegationen. Artikel 55» Regierungen, die Landsstyre der Färöer und Grönlands, die Landskapsstyrelse Älands, der Ministerrat und Mitglieder sind berechtigt, im Rat Anträge zu stellen. Anträge sind von den Ausschüssen vorzubereiten, bevor über sie vom Rat entschieden wird. Artikel 56 Empfehlungen werden von der Vollversammlung auf der Grundlage gestellter Anträge angenommen. Wenn es untunlich ist, die Behandlung in der Vollversammlung abzuwarten oder andere Gründe vorliegen, kann statt einer Empfehlung der Vollversammlung vom Präsidium eine andere Anregung gemacht werden. Stellungnahmen werden von der Vollversammlung oder unter den im Absatz 2 genannten Voraussetzungen vom Präsidium abgegeben. Das Präsidium hat der Vollversammlung über die Maßnahmen zu berichten, die es aufgrund der Absätze 2 oder 3 getroffen hat. Artikel 57 Jedes gewählte Mitglied ist berechtigt, in der Vollversammlung an eine Regierung oder den Ministerrat aufgrund der dem Rat vorgelegten Berichte oder Mitteilungen oder in anderen Angelegenheiten, die die nordische Zusammenarbeit betreffen, Anfragen zu richten. Artikel 58» Jede Delegation trägt die Kosten ihrer Teilnahme im Rat. Die Vollversammlung oder, nach Genehmigung der Vollversammlung, das Präsidium beschließt für jedes Haushaltsjahr über die Verteilung der gemeinsamen Kosten auf die Delegationen. In besonderen Fällen kann das Präsidium eine andere Verteilung beschließen. Artikel 59 Die Vollversammlung beschließt die Geschäftsordnung des Rates. Für die Annahme oder die Änderung der Geschäftsordnung ist eine Zwei-Drittel-Mehrheit der gewählten Mitglieder erforderlich. Der Nordische

Ministerrat

10

Artikel 60" Im Nordischen Ministerrat arbeiten die Regierungen der nordischen Länder zusammen. Die Landsstyre der Färöer und Grönlands sowie die Landskapsstyrelse Älands nehmen an der Arbeit des Ministerrates teil. Der Ministerrat faßt Beschlüsse im Rahmen dieses oder anderer zwischen den nordischen Ländern getroffenen Abkommen. Auch in anderen Fragen der Zusammenarbeit ist der 10 11

33*

Artikel 60 bis 67 eingefügt durch Übereinkommen von 1971. Geändert durch Ubereinkommen von 1983.

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Ministerrat für die Zusammenarbeit zwischen den Regierungen der nordischen Länder und zwischen den Regierungen und dem Nordischen Rat verantwortlich. Artikel 6112 Ein Mitglied einer Regierung, Landsstyre oder Landskapsstyrelse kann im Ausnahmefall bei Zusammenkünften durch einen Bevollmächtigten vertreten werden; jedoch müssen mindestens drei Länder durch ein Regierungsmitglied vertreten sein. Jedes Land bestellt ein Regierungsmitglied, das mit Unterstützung eines Beamten für die Koordinierung der nordischen Zusammenarbeitsfragen verantwortlich ist. Der Ministerrat wird in seiner Tätigkeit von Beamtenkomitees und vom Sekretariat des Ministerrates unterstützt. Artikel 62 Der Ministerrat ist beschlußfähig, wenn alle Länder im Ministerrat vertreten sind. In Fragen, die ausschließlich bestimmte Länder betreffen, brauchen jedoch nur diese Länder vertreten zu sein. Jedes Land hat eine Stimme im Ministerrat. Entscheidungen des Ministerrates sind einstimmig zu treffen. Verfahrensfragen werden jedoch mit der einfachen Mehrheit der abgegebenen Stimmen entschieden und bei Stimmengleichheit entscheidet die Stimme des Vorsitzenden. Stimmenthaltung ist kein Beschlußhindernis. Artikel 6313 Beschlüsse des Ministerrates sind für die einzelnen Länder bindend. Beschlüsse in Fragen, die nach der Verfassung eines Landes die Zustimmung der Volksvertretung erfordern, sind jedoch für dieses Land erst verbindlich, wenn die Volksvertretung dem Beschluß zugestimmt hat. Wenn eine solche Zustimmung erforderlich ist, ist der Ministerrat hierüber vor der Beschlußfassung zu unterrichten. Vor der Zustimmung der Volksvertretung ist auch kein anderes Land an den Beschluß gebunden. Vom Ministerrat gefaßte Beschlüsse sind für die Färöer, Grönland und Aland in dem Umfang bindend, in dem diese sich gemäß ihrer Selbstverwaltungsbestimmungen diesen Beschlüssen anschließen. Artikel 64 Der Ministerrat soll vor jeder ordentlichen Sitzung der Vollversammlung des Nordischen Rates dem Rat einen Bericht über die nordische Zusammenarbeit erstatten. In diesem soll der Ministerrat insbesondere über die Zusammenarbeit während des vergangenen Jahres und über die Pläne für die weitere Zusammenarbeit berichten. Artikel 65 Der Ministerrat soll vor jeder ordentlichen Sitzung der Vollversammlung des Nordischen Rates dem Rat über die Maßnahmen Mitteilung machen, die aufgrund der Empfehlungen und anderen Anregungen des Rates getroffen worden sind. Sind Empfehlungen oder Anregungen 12 13

Geändert durch Übereinkommen von 1974 und 1983. Geändert durch Übereinkommen von 1983.

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an eine oder mehrere Regierungen gerichtet, können solche Mitteilungen statt dessen von der oder den Regierungen gemacht werden, an die die Empfehlung oder Anregung gerichtet worden sind. Artikel 66 Der Ministerrat beschließt seine Geschäftsordnung. Artikel 67 Beratungen zwischen den Regierungen der nordischen Länder können außer im Ministerrat auf nordischen Ministerkonferenzen erfolgen. Änderungen des Abkommens Artikel 68** Bevor die Länder eine Änderung dieses Abkommens beschließen, soll dem Nordischen Rat Gelegenheit zur Äußerung gegeben werden. Scblu ßbestimmungen Artikel 69 Dieses Abkommen bedarf der Ratifizierung, und die Ratifikationsurkunden sind sobald wie möglich im Ministerium für auswärtige Angelegenheiten in Finnland zu hinterlegen. Das Abkommen tritt am ersten Tag des Monats in Kraft, der dem Tag folgt, an dem die Ratifikationsurkunden sämtlicher Parteien hinterlegt worden sind. Artikel 70 Beabsichtigt eine der vertragschließenden Parteien, das Abkommen zu kündigen, ist dies schriftlich derfinnischen Regierung mitzuteilen, die die übrigen vertragschließenden Parteien unverzüglich hierüber und über den Tag des Zugangs der Kündigung zu unterrichten hat. Die Kündigung gilt nur für das kündigende Land, und zwar vom ersten Tag des Monats, der sechs Monate auf den Zeitpunkt folgt, an dem derfinnischen Regierung die Kündigung zugegangen ist. Das Abkommen ist im Ministerium für auswärtige Angelegenheiten in Finnland zu hinterlegen, und dasfinnische Ministerium hat jeder der vertragschließenden Parteien eine beglaubigte Abschrift zuzustellen. Zur Urkund dessen haben die unterzeichnenden bevollmächtigten Vertreter dieses Abkommen unterzeichnet. Geschehen zu Helsinki am 23. März 1962 in je einem Exemplar in dänischer, finnischer, isländischer, norwegischer und schwedischer Sprache, wobei sämtliche Texte in gleicher Weise authentisch sind. Viggo Kampmann, Martti Miettunen, Bjarni Benediktsson, Helge Sivertsen, Herman Kling

14

Artikel 68 eingefügt durch Ubereinkommen von 1971.

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Schlußbestimmungen des Abkommens von 1983 Dieses Abkommen bedarf der Ratifizierung, und die Ratifikationsurkunden sind so schnell wie möglich im Ministerium für auswärtige Angelegenheiten in Finnland zu hinterlegen, das beglaubigte Kopien des Abkommens den übrigen vertragschließenden Parteien zustellt. Das Ubereinkommen tritt dreißig Tage nach dem Tag in Kraft, an welchem die Ratifikationsurkunden sämtlicher vertragschließenden Parteien hinterlegt worden sind. Zur Urkund dessen haben die unterzeichnenden bevollmächtigten Vertreter in Reykjavik am 15. Juni 1983 dieses Abkommen in je einem Exemplar in dänischer,finnischer, isländischer, norwegischer und schwedischer Sprache unterzeichnet, wobei sämtliche Texte in gleicher Weise authentisch sind. Für die Regierung Dänemarks: Christian

Christensen

Für die Regierung Finnlands:

Gustav Björkstrand

Für die Regierung Islands:

Matthias A. Mathiesen

Für die Regierung Norwegens: Asbjern Haugstvedt Für die Regierung Schwedens: Svante Lundkvist

Geschäftsordnung des Nordischen Rates Die Geschäftsordnung wurde von der Vollversammlung des Nordischen Rates am 17. Februar 1971 verabschiedet. Sie trat am 1. Juli 1971 im Zusammenhang mit der Novellierung des Helsinkiabkommens in Kraft. Änderungen erfolgten 1976, 1977, 1982 und 1983. Die Änderungen vom 23. Februar 1983 traten am 28. Januar 1984 gleichzeitig mit dem am 15. Juni 1983 unterzeichneten Übereinkommen über Änderungen des Helsinkiabkommens in Kraft.* Die Vollversammlung § 1 Die Vollversammlung beschließt auf jeder ordentlichen Sitzung, wo die folgende ordentliche Sitzung abgehalten werden soll. Die Vollversammlung, oder in ihrem Auftrag das Präsidium, beschließt über den Zeitpunkt der Sitzung. Wenn besondere Umstände vorliegen, kann das Präsidium entgegen dem Beschluß der Vollversammlung eine andere Zeit und einen anderen Ort der Sitzung festlegen. S2 Wenn mindestens zwei Regierungen oder mindestens 25 gewählte Mitglieder eine außerordentliche Sitzung wünschen, ist dies beim Präsidium schriftlich zu beantragen. Zeit und Ort einer außerordentlichen Sitzung werden vom Präsidium bestimmt, soweit hierüber nicht die Vollversammlung beschließt. S3 Die Regierungen, der Ministerrat, die Landsstyre der Färöer und Grönlands, die Landskapsstyrelse Älands, die gewählten Mitglieder und die Stellvertreter sind spätestens drei Monate vor Beginn der Sitzung über Zeit und Ort der Sitzung zu unterrichten. Wenn eine außerordentliche Sitzung abgehalten werden soll, kann die Unterrichtung später erfolgen. Ein vom Präsidium erstellter Vorschlag zur Tagesordnung ist zwei Wochen vor Beginn der Sitzung kundzutun. § 4 Aufgrund von Anmeldungen, die dem Präsidium spätestens eine Woche vor Beginn der Sitzung zugegangen sein müssen, ist eine Liste über die Mitglieder, die an der Sitzung teilnehmen werden, zu erstellen. Die Mitgliederliste ist von der Vollversammlung zu Beginn der Sitzung zu genehmigen. Auch Änderungen der Mitgliederliste, die während der Sitzung vorgenommen werden, sind von der Vollversammlung zu genehmigen. * Die deutsche Ubersetzung wurde von Wulf Hermann angefertigt. Das Original ist abgedruckt in: Nordiska samarbetsavtal, utgiven av Nordiska Râdets presidiesekretariat, Stockholm 1984.

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Auf der Liste werden in alphabetischer Ordnung zuerst die Vertreter der Regierungen der Landsstyre und der Landskapsstyrelse und danach die gewählten Mitglieder aufgeführt. In derselben Ordnung nehmen die Mitglieder ihre Plätze im Sitzungssaal ein. § 5 Der Präsident leitet die Verhandlungen der Vollversammlung. Bei Verhinderung des Präsidenten werden die Verhandlungen von einem Vizepräsidenten des Rates geleitet. Der Präsident kann auch die Leitung der Verhandlungen auf einen Vizepräsidenten übertragen. S6 Der Hauptsekretär während der Sitzung ist der Sekretär der Delegation des Landes, in welchem die Sitzung stattfindet. S 7 Während der ersten Zusammenkunft einer Sitzung wird die Tagesordnung für die Sitzung festgestellt. Auf der Tagesordnung werden alle Angelegenheiten aufgeführt, die während der Sitzung behandelt werden sollen. S8 Die Zusammenkünfte der Vollversammlung finden zu den Zeiten statt, die die Vollversammlung bestimmt. Der Zeitpunkt für die erste Zusammenkunft einer Sitzung wird jedoch vom Präsidium bestimmt. Eine Unterrichtung über eine Zusammenkunft hat durch Anschlag oder auf andere Weise zu erfolgen, bevor die vorhergehende Zusammenkunft endet. Jedoch können Mitglieder auch danach zu einer Zusammenkunft gerufen werden, wenn dafür besondere Gründe vorliegen. Unter Beachtung dessen, was die Vollversammlung über die Behandlung der Angelegenheiten bestimmt hat, legt der Präsident die Tagesordnung für jede Zusammenkunft fest. Jedoch bestimmt das Präsidium die Tagesordnung für die erste Zusammenkunft einer Sitzung. Die Vollversammlung darf auf einer Zusammenkunft keine Angelegenheiten behandeln, die nicht auf der Tagesordnung für die Zusammenkunft genannt sind. S 9 Während der Zusammenkünfte der Vollversammlung erhalten die Mitglieder das Wort in der Reihenfolge, in der sie sich angemeldet haben. Jedoch ist einem Mitglied, das eine Replik abzugeben wünscht, hierzu im Anschluß an den Beitrag, dem die Replik gilt, Gelegenheit zu geben. Im Einvernehmen mit der Vollversammlung kann der Präsident auch im übrigen von der normalen Reihenfolge abweichen. Der Präsident darf an der Debatte nicht teilnehmen. Derjenige, der an einer Sachdebatte teilgenommen hat, darf danach nicht in dieser Angelegenheit die Verhandlung führen. Auf Vorschlag des Präsidenten kann die Vollversammlung beschließen, daß für eine bestimmte Debatte die Zeit der Beiträge begrenzt ist. Auf Vorschlag des Präsidenten oder auf Vorschlag von 5 gewählten Mitgliedern kann die Vollversammlung mit Zwei-Drittel-Mehrheit beschließen, daß die Debatte über eine bestimmte Angelegenheit beendet ist. Uber einen solchen Vorschlag findet eine Debatte nicht statt.

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S 10 Die Vollversammlung ist beschlußfähig, wenn mindestens die Hälfte der gewählten Mitglieder anwesend ist. In Angelegenheiten, in denen nur Mitglieder bestimmter Länder Stimmrecht haben, ist die Vollversammlung beschlußfähig, wenn mindstens die Hälfte der gewählten Mitglieder dieser Länder anwesend ist. § 11 In der Vollversammlung werden Abstimmungen auf folgende Weise vogenommen: durch Namensaufruf oder durch Abstimmungsmaschinen, durch verschlossene Stimmzettel, durch Aufstehen der Mitglieder. Abgesehen von der Stimmenabgabe bei Wahlen kann ein Mitglied mit ja oder nein stimmen oder sich der Stimme enthalten. Liegen in einer Angelegenheit unvereinbare Anträge vor, bestimmt der Präsident, in welcher Reihenfolge die Abstimmung vorgenommen wird. Der Präsident hat die Vollversammlung über diese Reihenfolge zu unterrichten.

§ 12 Abstimmungen über Empfehlungen oder Stellungnahmen erfolgen namentlich oder mit einer Abstimmungsmaschine. Zur Annahme einer Empfehlung oder einer Stellungnahme ist es erforderlich, daß mehr als die Hälfte der Anwesenden, in der Sache stimmberechtigten Mitglieder mit ja stimmen. In Angelegenheiten, bei denen sämtliche gewählten Mitglieder stimmberechtigt sind, ist es erforderlich, daß mindestens dreißig Mitglieder mit ja stimmen. § 13 Wahlen werden durch Abstimmungen mit geschlossenen Stimmzetteln vorgenommen, wenn ein gewähltes Mitglied dies beantragt. Bei gleicher Stimmenzahl entscheidet das Los. § 14 In anderen als den in § 12 Abs. 1 und § 13 genannten Fällen erfolgt die Abstimmung durch Aufstehen der Mitglieder, wenn mehr als ein Antrag gestellt ist oder wenn ein gewähltes Mitglied dies beantragt. Für die Annahme eines Beschlusses ist es erforderlich, daß die mit ja stimmende Anzahl der Mitglieder die mit nein stimmende Anzahl der Mitglieder übersteigt. Auf Antrag eines gewählten Mitgliedes ist statt der Abstimmung durch Aufstehen eine namentliche Abstimmung oder eine Abstimmung mittels Abstimmungsmaschine vorzunehmen. § 15 Eine Anfrage, die ein gewähltes Mitglied an eine Regierung oder an den Ministerrat zu richten wünscht, ist dem Präsidium spätestens drei Wochen vor Beginn der Sitzung einzureichen. Die Anfrage kann auch während einer laufenden Sitzung eingebracht werden, jedoch spätestens vierundzwanzig Stunden vor dem Beginn der Zusammenkunft, in der die Vollversammlung Angelegenheiten des für die Anfrage aktuellen Sachgebiets behandelt. Die Anfrage soll kurz begründet sein.

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Das Präsidium unterrichtet unverzüglich die betreffende Regierung oder den Ministerrat über die Anfrage. Die Antwort wird mündlich in der Zusammenkunft gegeben, in der die Anfrage auf der Tagesordnung steht. Die Anfrage kann von dem Anfragendem höchstens drei Minuten lang mündlich begründet werden. Für die Beantwortung einer Anfrage stehen jedem Regierungsvertreter fünf Minuten zur Verfügung. Danach können der Anfragende oder andere Mitglieder des Rates das Wort für je drei Minuten erhalten. Für weitere Beiträge ist die Zustimmung der Vollversammlung erforderlich.

S 16 Während der Zusammenkünfte der Vollversammlung wird ein Protokoll geführt, daß die getroffenen Beschlüsse und die Diskussionsbeiträge enthält. Das Protokoll wird vom Präsidium genehmigt und veröffentlicht, soweit es sich nicht um Verhandlungen hinter verschlossenen Türen handelt. S 17 Empfehlungen und Stellungnahmen werden vom Präsidenten und dem Präsidiumssekretär unterzeichnet. Das Abstimmungsergebnis wird den Regierungen und dem Ministerrat mitgeteilt. Das Präsidium

§ 18 Das Präsidium bestimmt Zeit und Ort seiner Zusammenkünfte. An den Zusammenkünften des Präsidiums nehmen die fünf Präsidiumsmitglieder teil. Bei Verhinderung eines Mitglieds nimmt an seiner Stelle ein Stellvertreter teil. Auch wenn ein Mitglied anwesend ist, kann das Präsidium seinem Stellvertreter die Teilnahme an den Überlegungen des Präsidiums, jedoch ohne Stimmrecht, gestatten. § 19 In Angelegenheiten, in denen das Präsidium einen Antrag stellen oder eine Stellungnahme abgeben will, ist das Präsidium beschlußfähig, wenn seine fünf Mitglieder oder Stellvertreter anwesend sind. In Angelegenheiten, in denen nur Mitglieder bestimmter Länder Stimmrecht haben, ist das Präsidium beschlußfähig, wenn diese Länder vertreten sind. In übrigen Fragen ist das Präsidium beschlußfähig, wenn mindestens vier Mitglieder oder ihre Stellvertreter anwesend sind.

§ 20 Bei gleichzeitiger Verhinderung eines Mitglieds des Präsidiums und seines Stellvertreters hat die Delegation des Landes, der sie angehören, soweit wie möglich ein anderes Delegationsmitglied als außerordentliches Präsidiumsmitglied zu bestimmen.

§ 21 Wenn das Präsidium Anträge stellt oder Stellungnahmen abgibt, ist auch eine abweichende Meinung innerhalb des Präsidiums darzustellen. Anträge und Stellungnahmen werden vom Präsidenten und vom Präsidiumssekretär unterschrieben.

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S 22 Das Präsidium hat auf einer ordentlichen Sitzung der Vollversammlung einen Beritht über seine Tätigkeit seit der letzten ordentlichen Sitzung zu erstatten. § 23 Bevor das Präsidium einen Ausschußsekretär bestellt, ist dem Ausschuß die Möglichkeit zur Stellungnahme zu geben. Die Ausschüsse § 24 Der Rat hat einen Rechtsausschuß, einen Kulturausschuß, einen Sozial- und Umweltausschuß, einen Verkehrsausschuß und einen Wirtschaftsausschuß. Der Rechtsausschuß besteht aus dreizehn Mitgliedern, von denen die Delegationen Dänemarks, Finnlands, Norwegens und Schwedens je drei und die Delegation Islands eines bestellt. Der Kulturausschuß besteht aus zweiundzwanzig Mitgliedern, von denen die Delegationen Dänemarks, Finnlands, Norwegens und Schwedens je fünf und die Delegation Islands zwei bestellt. Der Sozial- und Umweltausschuß besteht aus dreizehn Mitgliedern, von denen die Delegationen Dänemarks, Finnlands, Norwegens und Schwedens je drei und die Delegation Islands eines bestellt. Der Verkehrsausschuß besteht aus dreizehn Mitgliedern, von denen die Delegationen Dänemarks, Finnlands, Norwegens und Schwedens je drei und die Delegation Islands eines bestellt. Der Wirtschaftsausschuß besteht aus sechsundzwanzig Mitgliedern, von denen die Delegationen Dänemarks, Finnlands, Norwegens und Schwedens je sechs und die Delegation Islands zwei bestellt. S 25 Anläßlich einer ordentlichen Sitzung der Vollversammlung wählt jeder Ausschuß unter seinen Mitgliedern einen Vorsitzenden und einen stellvertretenden Vorsitzenden. Die Wahl erfolgt unter der Leitung des Ausschußmitgliedes, das auf der Mitgliederliste für die Sitzung zuerst aufgeführt ist.

S 26 Bei Verhinderung eines Ausschußmitgliedes bestimmt die Delegation, der das Mitglied angehört, ein anderes Mitglied der Delegation oder einen Stellvertreter des Mitglieds als außerordentliches Ausschußmitglied. S 27 Der Ausschuß bestimmt Zeit und Ort seiner Zusammenkünfte. Ausschußsitzungen sind nicht öffentlich. Gehört kein gewähltes Mitglied der Färöer, Grönlands oder Alands einem Ausschuß an, darf ein solches Mitglied an der Ausschußarbeit teilnehmen. Mitgliedern der Regierungen sowie der Landsstyre der Färöer und Grönlands und der Landskapsstyrelse Älands ist Gelegenheit zu geben, an der Ausschußarbeit teilzunehmen. Ein Ausschuß kann auch im übrigen Mitglieder des Rates, Stellvertreter sowie Sachverständige oder andere Personen, die nicht Mitglieder oder Stellvertreter sind, einladen, an den Beratungen des Ausschusses teilzunehmen und sich zu äußern. Die Mitgliedeer des Sekretariats und der Ausschußsekretär sind berechtigt, an den Beratungen des Ausschusses teilzunehmen und sich zu äußern.

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S 28 Ein Ausschuß ist beschlußfähig, wenn mindestens die Hälfte seiner Mitglieder anwesend ist. In Angelegenheiten, in denen nur Mitglieder bestimmter Länder Stimmrecht haben, ist ein Ausschuß beschlußfähig, wenn mindestens die Hälfte der Mitglieder dieser Länder anwesend ist. § 29 In Ausschüssen werden Beschlüsse mit der einfachen Mehrheit der anwesenden Mitglieder gefaßt. Bei gleicher Stimmenzahl entscheidet die Stimme des Vorsitzenden. Ein gewähltes Mitglied der Färöer, Grönlands oder Älands, das an einer Ausschußsitzung gemäß § 27 Abs. 2 teilnimmt, darf im Einvernehmen mit den dänischen oder finnischen Ausschußmitgliedern anstelle eines dieser an der Beschlußfassung mitwirken. § 30 In jeder Angelegenheit kann ein Ausschuß einen Sprecher wählen, der die Aufgabe hat, in der Angelegenheit der Vollversammlung Bericht zu erstatten. Auch eine Ausschußminorität kann einen Sprecher wählen. Die ständigen Komitees § 31 Das Budgetkomitee des Nordischen Rates hat die Aufgabe, die Budget- und Kontrollfunktionen wahrzunehmen, die sich aus einer besonderen Geschäftsordnung ergeben oder die dem Komitee von der Vollversammlung des Rates oder vom Präsidium auferlegt sind. Das Budgetkomitee besteht aus zehn Mitgliedern, einem Vorsitzenden und einem anderen Mitglied aus jedem der fünf Ausschüsse des Rates. Die Mitglieder, zwei von jeder Landesdelegation, werden von der Vollversammlung auf Vorschlag des Arbeitsausschusses gewählt. Bei Verhinderung eines Mitglieds des Budgetkomitees kann die Delegation des Landes, der das Mitglied angehört, einen Stellvertreter für das Mitglied als außerordentliches Komiteemitglied bestimmen. Das Präsidium beschließt die Geschäftsordnung des Budgetkomitees. S 32 Das Informationskomitee des Nordischen Rates hat die Aufgabe, als beratendes Organ des Präsidiums in Informationsfragen und als Redaktionskomitee für die Zeitschrift Nordisk Kontakt zu fungieren. Das Informationskomitee besteht aus zehn Mitgliedern, zwei aus jeder Landesdelegation, die von der Vollversammlung bestimmt werden. Bei Verhinderung eines Mitglieds des Informationskomitees kann die Delegation des Landes, der das Mitglied angehört, einen Stellvertreter für das Mitglied als außerordentliches Komiteemitglied bestimmen. Das Präsidium beschließt die Geschäftsordnung des Informationskomitees. Die Delegationen § 33 Jede Delegation eines Landes wählt einen Vorsitzenden und einen stellvertretenden Vorsitzenden unter seinen gewählten Mitgliedern. Nur die gewählten Mitglieder haben in der Delegation Stimmrecht.

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§ 34 Jede Delegation eines Landes wählt einen Arbeitsausschuß, der mit dem Präsidium und den übrigen Arbeitsausschüssen Fragen der Organisation der Ratstätigkeit berät. Der Arbeitsausschuß hat Vorschläge für die Wahlen zu unterbreiten, die von der Vollversammlung und dem Ausschuß vorzunehmen sind. Das Sekretariat S 35 In Angelegenheiten von größerer Bedeutung oder von besonderem Interesse für die Delegationen wird das Präsidium vom Sekretariat unterstützt. In übrigen Angelegenheiten wird das Präsidium von seinem Sekretär (dem Präsidiumssekretär) unterstützt. § 36 Das Präsidium trifft nähere Bestimmungen über die Befugnisse und Tätigkeiten des Sekretariats. § 37 Das Präsidium bestimmt den Dienstort des Präsidiumssekretärs und bestimmt einen Staatsangehörigen eines anderen nordischen Landes als dem, in dem der Dienstort gelegen ist, zum Präsidiumssekretär. Geschäftsverfahren § 38 Regierungsvorschläge, Vorschläge der Landsstyre der Färöer und Grönlands und der Landskapsstyrelse Alands sowie Ministerratsvorschläge haben entweder einen Antrag auf einen Beschluß des Rates oder ein Ersuchen um eine Stellungnahme des Rates zu enthalten. Ein Mitgliedervorschlag hat einen Antrag auf einen Beschluß des Rates zu enthalten. § 39 In Angelegenheiten, die durch Regierungsvorschlag, Vorschlag der Landsstyre der Färöer und Grönlands und der Landskapsstyrelse Alands, Ministerratsvorschlag oder Mitgliedervorschlag eingebracht wurden, kann eine Regierung, eine Landsstyre, die Landskapsstyrelse, der Ministerrat oder ein Mitglied einen Vorschlag (Änderungsvorschlag) spätestens am ersten Tag der Sitzung, auf der die Angelegenheit behandelt werden soll, machen. § 40 Ein Stellvertreter kann gemeinsam mit einem gewählten Mitglied einen Mitgliedervorschlag oder Änderungsvorschlag einbringen. § 41 Regierungsvorschläge, Vorschläge der Landsstyre der Färöer und Grönlands und der Landskapsstyrelse Alands, Ministerratsvorschläge, Mitgliedervorschläge oder Änderungsvorschläge sind dem Sekretariat schriftlich vorzulegen.

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Ein Vorschlag, der gemäß den Bestimmungen des Abs. 1 eingebracht ist, ist unverzüglich den Regierungen, dem Ministerrat, der Landsstyre der Färöer und Grönlands, der Landskapsstyrelse Älands, den gewählten Mitgliedern des Rates und den Stellvertretern zuzusenden. § 42 Eine Rücknahme eines Vorschlages erfolgt in der Weise, wie § 39 Abs. 1 bestimmt. Wird ein Vorschlag zurückgenommen, kann ein Mitglied des Rates den Vorschlag auf der Zusammenkunft der Vollversammlung, auf der Rücknahme angemeldet wird, wieder aufnehmen. § 43 Berichte und Mitteilungen sind dem Sekretariat spätestens am 10. Dezember des Jahres vor Beginn der ordentlichen Sitzung der Vollversammlung einzureichen, falls dies nicht untunlich ist. § 44 Das Präsidium verweist Vorschläge, Berichte und Mitteilungen nach ihrem Eingang beim Rat an einen Ausschuß. Das Präsidium kann beschließen, über eingebrachte Vorschläge Gutachten einzuziehen. § 45 Wenn erforderliche Ermittlungen in einer Angelegenheit vorgenommen worden sind, gibt der Ausschuß eine Stellungnahme zu der Angelegenheit ab, die einen begründeten Vorschlag zu einem Beschluß oder einer Stellungnahme enthält. In die Stellungnahme sind gegebenenfalls Minderheitenmeinungen innerhalb des Ausschusses einzubeziehen. Die Stellungnahme ist der Vollversammlung gegenüber abzugeben. In Fällen, in denen der Ausschuß vorschlägt, daß das Präsidium einen Antrag stellen oder eine Stellungnahme abgeben soll, ist die Stellungnahme dem Präsidium gegenüber abzugeben. § 46 Die Vorschläge, die von der Vollversammlung auf einer Sitzung behandelt werden sollen, sind nebst der Ausschußstellungnahme spätestens zwei Wochen vor Sitzungsbeginn an die Regierungen, den Ministerrat, die Landsstyre der Färöer und Grönlands, der Landskapsstyrelse Älands, den gewählten Mitgliedern und den Stellvertretern zuzusenden. Dies gilt auch für Berichte und Mitteilungen, die auf der Sitzung behandelt werden sollen sowie für Anmeldungen des Präsidiums über gestellte Anträge und abgegebene Stellungnahmen. Wenn besondere Umstände vorliegen, kann die Versendung später als zwei Wochen vor Beginn der Sitzung erfolgen. § 47 Vom Ausschuß behandelte Angelegenheiten dürfen von der Vollversammlung erst nach dem Tag behandelt werden, an dem die Stellungnahme des Ausschusses in der Angelegenheit den Mitgliedern zugänglich gemacht wurde. Die Vollversammlung kann beschließen, daß die Angelegenheit früher behandelt wird. S 48 Eine Empfehlung kann in einer Angelegenheit, die auf der Tagesordnung steht, nur im Rahmen eines eingebrachten Vorschlages beschlossen werden.

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527

§ 49 Soweit erforderlich kann die Vollversammlung oder in ihrem Auftrag das Präsidium Komitees zur Begutachtung besonderer Angelegenheiten einsetzen. Als Komiteemitglied kann nur in besonderen Fällen ernannt werden, wer nicht Mitglied oder Stellvertreter im Rat ist. Ein Komitee hat zur ordentlichen Sitzung der Vollversammlung einen Tätigkeitsbericht abzugeben. Allgemeine Bestimmung § 50 In besonderen Fällen kann die Vollversammlung mit Zwei-Drittel-Mehrheit eine Abweichung von den Bestimmungen dieser Geschäftsordnung beschließen.

Book Reviews Internationales

Redit

in

europäischen

Festschriften.

als Prozeß u n d Gefüge. Festschrift für Hans Huber zum 80. Geburtstag. Stämpfli und Co., Bern 1981, 699 S., D M 154,—.

Recht

Verlag

u n d Rechtsphilosophie. Internationale Festschrift für Stefan Verosta zum 70. Geburtstag. Hrsg. von Peter Fischer, Heribert Franz Köck, Alfred Verdroß, Verlag Dundter & Humblot, Berlin 1980, 523 S., D M 126,—.

Völkerrecht

I m

D i e n s t e D e u t s c h l a n d s u n d d e s R e c h t e s . Festschrift für Wilhelm G. Grewe zum 70. Geburtstag am 16. Oktober 1981. Hrsg. von Friedrich J. Kroneck und Thomas Oppermann, Nomos-Verlagsgesellschaft, Baden-Baden 1981, 660 S., D M 189,—.

Es ist häufig beklagt worden, daß ein wesentlicher Teil der juristischen Diskussion in kaum erschwinglichen Festschriften stattfindet und daher so gut wie nicht zur Kenntnis genommen wird. Mag diese Bewertung schon für das innerstaatliche Recht allzu pauschal klingen, so trifft sie jedenfalls auf das internationale Recht, insbesondere das Völkerrecht, nicht in dieser Allgemeinheit zu. Angesichts einer gewissen publizistischen und universitären Vernachlässigung des Völkerrechts, das auch unter dem Etikett als Wahlfachmaterie leiden muß, bieten Festschriften häufig eine willkommene Möglichkeit, um aktuelle Strömungen des internationalen Rechts aufzudecken und vor allem die vielfältigen Verklammerungen mit anderen Rechtsbereichen zu dokumentieren. Der Dienst, der auf diese Weise der Völkerrechtswissenschaft geleistet wird, ist daher nicht zu unterschätzen. Manche Festschriften tragen zudem fast enzyklopädischen Charakter und ziehen eine Art Zwischenbilanz der Entwicklung der gesamten Forschungsrichtung. Herausragende Beispiele in diesem Sinne liefern etwa die Festschriften für Mosler (Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, 1983) und Schlochauer (Staatsrecht, Völkerrecht, Europarecht, 1981), deren Einwirkungen auf die deutsche Völkerrechtswissenschaft bereits heute deutlich spürbar ist. Ähnliche Auswirkungen dürften von den hier zu besprechenden Festschriften ausgehen, allerdings in den durch die Persönlichkeit des Geehrten jeweils geprägten Schwerpunkten. Die Festschrift für Hans Huber orientiert sich thematisch an dem breiten Arbeitsfeld des Jubilars, der in seltener Weise Verfassungsrecht und Internationales Recht verband und zu zahlreichen rechtstheoretischen Fragen Stellung nahm (vgl. die Aufsatzsammlung „Rechtstheorie — Verfassungsrecht — Völkerrecht", 1970). Die Eigenart dieses Werkes, das sich stets von modischen Einflüssen fernhielt, wird einfühlsam von Jörg Paul Müller im Überblick gewürdigt („Hans Huber: Der Mensch im Redit", S. 1 ff.). Dabei wird, ebenso wie durch die glücklich gewählte Gesamtthematik der Festschrift, der das Werk Hans Hubers durchziehende Grundzug, die Orientierung an einem bestimmten Menschenbild, herausgearbeitet. In einem gesonderten völkerrechtlichen Abschnitt (S. 533 ff.) finden sich Beiträge zum allgemeinen Völkerrecht, zum Kriegsvölkerrecht und zu verschiedenen speziellen Fragestellungen, insbesondere im Bereich der Menschenrechte. Bindschedler widmet seine Abhandlung den

Book Reviews

529

„Obligatorischen Verhandlungen und Konsultationen" (S. 533 ff.). Er knüpft dabei an Fragen des Verfahrens und der Methode im Zusammenhang mit den Verhandlungen im Rahmen der KSZE über ein System der friedlichen Streiterledigung an. Gegenstand der Ausführungen ist einerseits ein Arbeitspapier der Schweiz vom 31. 10. 1978 über die weitere Gestaltung des künftigen Verfahrens, andererseits ein von der Sowjetunion und verschiedenen Ostblockstaaten eingereichter Vorschlag. Beide Vorschläge gehen von obligatorischen Verhandlungen und Konsultationen aus, jeweils auf der Grundlage des Prinzips der freien Wahl der Mittel zur friedlichen Streitbeilegung. Die kritische Würdigung insbesondere der Vorschläge der östlichen Seite führt den Autor zu verschiedenen höchst aufschlußreichen, nach wie vor aktuellen völkerrechtlichen Ausführungen, etwa in Bezug auf das Verhältnis zwischen Konsultationsverpflichtung und möglicher Umgehung des Interventionsverbotes (S. 537). Dominic é behandelt die rechtlichen Berührungspunkte zwischen der Repressalie und dem besonderen Schutz, den das Gesandtschaftsrecht dem Personal der diplomatischen Vertretungen zukommen läßt („Représailles et droit diplomatique", S. 541 ff.). Er fragt insbesondere nach den Anstößen, die von den Ausführungen des I G H im Falle der amerikanischen Geiseln im Iran ausgehen können, etwa in Bezug auf das humanitäre Kriegsvölkerrecht. Die Rolle der Schweiz bei der Entwicklung gerade dieses Rechtsbereiches wird von Haug bewertet, der auch die Aktivitäten in verschiedenen internationalen Organisationen einbezieht („Die Schweiz, das humanitäre Kriegsvölkerrecht und die Konvention über Menschenrechte", S. 377 ff.). Das Verhältnis zwischen universellem und regionalem Völkerrecht ist Gegenstand einer grundsätzlichen Abhandlung von Dietrich Schindler („Universelles und regionales Völkerrecht", S. 609 ff). Er widerlegt in überzeugender Weise die pauschale Entgegensetzung beider Entwicklungslinien und! weist, in Übereinstimmung etwa mit Tunkin, darauf hin, daß das universelle Völkerrecht durch die Regionalisierung nicht schwächer geworden sei, sondern sich im Gegenteil fortentwickelt habe (S. 620). Wichtig erscheint auch die Einschätzung der Europäischen Gemeinschaften, deren Rechtsordnung keine Abweichung vom allgemeinen Völkerrecht bedeute (S. 619 f.). Bereits in den großen Bereich der Menschenrechtsdiskussion reicht das Plädoyer Froweins für eine stärkere Beachtung der Unschuldsvermutung in Art. 6 Abs. 2 der Europäischen Menschenrechtskonvention (S. 553 ff.); Walter Haller weist in seiner Abhandlung über „Polizeigesetzgebung und Europäische Menschenrechtskommission" (S. 563 ff.) auf notwendige Folgerungen aus der EMRK für die nationale, insbesondere schweizerische Gesetzgebung hin. Der große Anteil des Grundrechtsschutzes durch die Judikative wird von Mosler in seiner Abhandlung über den „Europäischen Gerichtshof für Menschenrechte nach 20 Jahren" (S. 595 ff.) dargelegt. Die Schwerpunkte der Rechtsprechung werden ebenso behandelt wie die besonderen Probleme, die sich, etwa in der Kompetenzabgrenzung zur nationalen Rechtsphäre, zeigen. Dogmatisch aufschlußreich ist u. a. die Feststellung über die fortbestehende Aktualität des status negativus im internationalen Bereich. Mit dem Auslieferungsrecht befassen sich "Bemerkungen zum politischen Delikt im Auslieferungsrecht" von Hans Schultz (S. 623 ff.). Er tritt, um nur einen Punkt herauszugreifen, für die Beibehaltung des Grundsatzes ein, daß politische Delikte der Auslieferung entzogen sein sollen, selbst wenn es um Staaten mit derselben politischen Auffassung und Organisation geht (S. 628). Die speziell dem Völkerrecht zugeordneten Beiträge machen deutlich, wie schwierig eine exakte Abgrenzung des Internationalen Rechts im Grunde bleiben muß. Denn es kann nicht ausbleiben, daß manche Abhandlungen zu den Grundrechten (S. 353 ff.) ebenfalls den internationalen rechtlichen Aspekt aufgreifen. Auch in dem Abschnitt über „Verfassungslehre, Verfassungsrecht" (S. 155 ff.) tauchen übergreifende Fragestellungen auf, wie etwa in dem Beitrag von Klaus Vogel über die „Anwendung des Völkerrechts zur Ausfüllung einer Lücke im Bundesstaatsrecht: Art. 106 Abs. 3, Nr. 1 GG" (S. 333 ff.). Auch dies mag als äußeres Zeichen für das fortschreitende Ineinandergreifen der einzelnen Rechtsgebiete gewertet werden,

34

G Y I L

28

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aber auch für das wissenschaftliche Format des Geehrten, dessen geistiger Einfluß sich in allen Beiträgen, nicht zuletzt auch in denjenigen zu den „Grundfragen des Redits und der Gesetzgebung" (S. 15 ff.), widerspiegelt. Die Festschrift für Verosta konzentriert sich auf zwei Schwerpunkte seines Werkes, auf das Völkerrecht und die Rechtsphilosophie, welche allerdings nur in geringem Umfang in den Beiträgen zur Geltung kommt (S. 459 ff.). Die Herausgeber haben sich bemüht, die Vielzahl der völkerrechtlichen Beiträge übersichtlich zu gliedern. Dabei wird deutlich, daß die aus dem einzelstaatlichen Blickwinkel häufig in den Vordergrund gerückte Menschenrechtsproblematik nur einen Teil der weit umfangreicheren völkerrechtlichen Gesamtthematik ausmacht. Unter den drei Beiträgen zum Thema „Menschenrechte" findet sich auch eine Abhandlung von Ulrich Scheuner über „Die Schlußakte von Helsinki und der Schutz der Menschenrechte" (S. 163 ff.). Sie verdient angesichts einer Vielzahl mehr euphorisch-politischer Publikationen zu diesem Thema besondere Beachtung, weil sie den juristischen Kern der KSZE einzugrenzen sucht, der in den späteren Diskussionen häufig vernachlässigt wurde. Scheuner rechnet die Schlußakte „jenem vielfach getönten Gebiet außerrechtlicher internationaler Abmachungen (agreements)" zu, „das in verschiedener Form ein Feld internationaler Abreden und Zusagen der Staaten, wenn auch unterhalb der Linie rechtlicher Verbindlichkeit, darstellt" (S. 172). Die auf dem Grundsatz von Treu und Glauben ruhende außerrechtliche Bindung enthält die Verpflichtung der beteiligten Staaten, das eigene Verhalten nach den Grundsätzen der Akte auszurichten. Damit bleibt Scheuner hinter weitergehenden Deutungen zurück und beschränkt sich auf das Verständnis als Einigung über Grundsätze des Verhaltens mit lediglich moralischen und politischen Folgen und ohne eine pauschale Gleichsetzung mit Akten der Vereinten Nationen (S. 171 ff.). In dem anders gelagerten Wunsch, zu einer klaren Abgrenzung zwischen universalen und regionalen Verfahren zu gelangen (S. 169), zeigt sich eine Gemeinsamkeit mit Ermacora, der sich ausführlich mit dem „Kumulationsverbot in Menschenrechtsverfahren" befaßt (S. 187 ff.) und mit überzeugenden Gründen gegen die zeitliche Verfahrenshäufung in Menschenrechtssachen argumentiert. Von den zahlreichen und herausragenden Beiträgen können nur wenige genannt werden. So etwa die Ausführungen Tunkins über „Soviet Theory of Sources of International Law" (S. 67 ff.) mit einer Erinnerung daran, daß „the change in factual relations does not automatically bring about the change in international law" (S. 70 f.). Herauszuheben ist auch sein — politisch durchaus deutbares — Plädoyer gegen eine Vermengung von ideologischen und normativen Aspekten und die damit erreichbare Übereinstimmung von Staaten und Wissenschaftlern. Besonders aktuelle Fragen werden von Clive Parry („The Question of Sovereignty over Air-Space", S. 113 ff.) und Haraszti („Outer Space and Sovereignty", S. 127 ff.) behandelt. Paul Reuter äußert sich zur Staatenimmunität im Völkerrecht (S. 147 ff.). Umfangreich zeigt sich der Abschnitt über völkerrechtliches Unrecht und Streiterledigung (S. 227 ff.) mit Beiträgen von Dominicê , Mosler, Degan, Ihler, Matscher mit einem Schwerpunkt auf prozessualen Fragen. Einen grundsätzlichen Artikel steuert Bindschedler über „Ständige Neutralität und Neutralismus (Blockfreiheit)" bei (S. 313 ff.), damit zugleich eine Forschungsrichtung Verostas aufnehmend. Mit knappen und klaren Worten werden die Voraussetzungen Ständiger Neutralität aufgelistet: Kleinheit des Staates, Erfordernis der Bewaffnung, fehlende Eigenschaft als „Hauptobjekt der Politik", außenpolitische Saturiertheit und innere Konsolidierung. Die österreichische Neutralität ist Gegenstand einer Abhandlung von Kaminiski, allerdings in ihrer Bewertung durch die Volksrepublik China (S. 323 f.). Das Recht der Vereinten Nationen wird speziell von Manfred Lachs und Leo Gross repräsentiert. Lachs behandelt vor dem Hintergrund seiner langjährigen Erfahrung „The Decision-Making Powers and the Judiciary

Book Reviews

531

within the United Nations" (S. 389 ff.). Erheblichen Raum nimmt dabei die Eingrenzung der Kompetenzen des I G H in bezug auf die (einheitliche) Interpretation der UN-Charta durch ihre Organe und Gremien ein, insbesondere die Erörterung von Advisory Opinions (S. 394 ff.). Leo Gross liefert in seinem kritischen Rückblick („The United Nations and the United States", S. 403 ff.) ein Stück Geschichte der Vereinten Nationen. Die Position des Autors wird am besten charakterisiert durch den Schlußsatz: „the Charter called into life a being, the development of which could not have been foreseen by the most gifted of its American founders" (S. 424). Hiermit korrespondiert die Einschätzung der Resolutionen der Generalversammlung: sie hätten von ihrem jeweiligen Adressaten die Beurteilung erfahren, die sie verdienten (S. 407). Auf andere Themen der Festschrift kann lediglich allgemein hingewiesen werden. So auf das Internationale Wirtschaftsrecht (Peter Fischer, Endro Ustor, S. 345 ff.) und auf Fragen der Europäischen Sicherheit (.Liedermann, Rotter, S. 427 ff.). Insgesamt vermittelt die Festschrift nicht nur einen Einblick in den wissenschaftlichen Arbeits- und Einflußbereich des Geehrten, sondern in die Nachwirkungen seiner umfangreichen diplomatischen Tätigkeit für Österreich. Ein entsprechender Grundzug der Persönlichkeit des Geehrten zeigt sich auch in den Beiträgen der Festschrift für Grewe, der lange Jahre im Auswärtigen Dienst der Bundesrepublik Deutschland an führender Position stand. Die Beiträge orientieren sich, anders als in der Festschrift für Verosta, in erster Linie an dieser überaus verdienstvollen Tätigkeit Grewes, während die Arbeiten zum Thema „Recht und Staat" umfangmäßig eher im Hintergrund bleiben (S. 425 ff.). Die Anerkennung, die sich der Geehrte im diplomatischen Dienst erwarb, spiegelt sich in zahlreichen Beiträgen von deutschen Botschaftern und Angehörigen des Auswärtigen Dienstes im ersten Teil wieder, der überschrieben ist mit „Diplomatie, Politik und Zeitgeschichte" (S. 17 ff.). Daneben finden sich Beiträge von Historikern, wie etwa von Eberhard Jäckel („Die deutsche Kriegserklärung an die Vereinigten Staaten von 1941", S. 117 ff.), Arnulf Baring , der über Walter Scheel referiert (S. 17 ff.) und Hans-Peter Schwarz, der über „Adenauer und Rußland" schreibt (S. 365 ff.). Ein thematisch nahestehendes Thema behandelt Hans-Heinrich Mahnke, der die Rolle des Völkerrechts in den faktischen zwischenstaatlichen Beziehungen zutreffend hervorhebt und diese — rechtliche — Seite der außenpolitischen Realität würdigt („Verhandeln mit östlichen Vertragspartnern", S. 207 ff.). Die juristische Seite historischer Ereignisse wird insbesondere von Roman Schnur in seinem Beitrag über das Vichy-Regime in den Vordergrund gerückt („Das Ende einer Republik — 10. Juli 1940 in Vichy", S. 337 ff.). Hier werden die oft vernachlässigten Probleme materialreich aufbereitet, die politische Umstürze für die Rechtswissenschaft nach sich ziehen. Wer die französische Literatur zu diesem Thema verfolgt, wird die Akribie, mit der Schnur vorgeht, besonders zu schätzen wissen. Der stark rechtswissenschaftlich geformte Teil der Festschrift (S. 425 ff.) enthält Beiträge ganz unterschiedlichen thematischen Zuschnitts. Die Themen reichen von historischen Anknüpfungen (Hans Buchheim über den Friedensbegriff des Aurelius Augustinus, S. 425 ff.; Franz Wieacker über die Verfassungsstruktur des Augusteischen Prinzipats, S. 639 ff.; Ernst Rudolf Huber über „Kanzlerregime, Militärgewalt und Parteienmacht in Weltkrieg und Revolution", S. 473 ff.) bis zu speziellen Fragen des Internationalen Rechts (Joseph H. Kaiser, Thomas Oppermann, Ivo Schwartz , Wolfgang Graf Vitzthum). Gerade der Beitrag über „Weltnuklearordnung und Staatengleichheit" (S. 609 ff.) zeigt das oft vergebliche Bemühen um globale Ordnungssysteme mit ihren „eingebauten Antinomien". Ebenso aktuell wie umstritten blieb die „transnationale Grundrechtsausstrahlung", die Oppermann zum Gegenstand seiner Ausführungen am Beispiel des Umweltschutzes macht (S. 521 ff.). Man wird ihm darin voll beipflichten können, auch heute noch stärker die Grenzen als die Möglichkeiten einer entsprechenden Grundrechtsausstrahlung zu betonen. Ein weiteres „offenes" Thema sei zum

34*

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Book Reviews

Schluß erwähnt, das Verhältnis zwischen Völkerrecht und Gemeinschaftsrecht bei Übereinkommen zwischen EG-Staaten (Ivo Schwartz , S. 551 ff.). Hier, wie in den Beiträgen der Festschrift für Hans Huber und Stefan Verosta, werden Bedeutung und fortdauernde Aktualität vieler Bereiche des Internationalen Rechts in eindrucksvoller Weise deutlich. Wilfried Fiedler

Seeredit

und

Antarktis

Alexandra Merle Post: D e e p s e a M i n i n g a n d t h e L a w o f t h e S e a f Martinus Nijhoff Publishers, The Hague / Boston / Lancaster 1983, xxiii + 358 pp., Dfl. 152,—. Ram P. Anand: L a w

Origin

Revisited,

and

Development

of

the

L a w

of

the Sea, History

of

International

Martinus Nijhoff Publishers, The Hague/Boston/London 1982, χ + 249 pp.,

Dfl. 115,—. Philip W. Quigg: A P o l e A p a r t , T h e E m e r g i n g Hill Book Company 1983, xvii + 299 pp., $ 23.

Issue

of

Antarctica.

New Press McGraw-

Das Werk von Post bildet Band 8 der von Shigeru Oda betreuten Serie „Publications on Ocean Development"; sein Ansatz ist interdisziplinär. Teil I widmet sich den naturwissenschaftlichen Vorgaben des Tiefseebergbaus, der Geologie (Kapitel 1), der Technologie (Kapitel 2), dem wirtschaftlichen Hintergrund (Kapitel 3) sowie dem Umweltschutz (Kapitel 4). Insgesamt kommt die Verfasserin mit der herrschenden Meinung zu dem Ergebnis, daß Tiefseebergbau (vor allem die Gewinnung von polymetallischen Knollen) nur langfristig wirtschaftlich vertretbar sein wird. Dabei geht die Verfasserin davon aus, daß die Metallmärkte zur Zeit nicht in der Lage sind, eine entsprechende Meeresbodenproduktion aufzunehmen, vor allem aber vom Tiefseeboden gewonnene Mineralien nicht konkurrenzfähig erscheinen. Dies ist zwar zweifelsohne zutreffend, aber nicht nur neuer Bedarf könnte den Tiefseebergbau konkurrenzfähig machen (die Verfasserin nennt Krieg und den Aufbau von Industrie in Entwicklungsländern), sondern audi die Erschöpfung oder Verteuerung von terrestrischen Ressourcen. Nicht ohne Grund konzentriert sich die Industrie zur Zeit auf die Vorkommen in den Wirtschaftszonen. Dies ist nicht nur ein Beleg dafür, daß der Erschließung neuer Rohstoffquellen durchaus wirtschaftliche Bedeutung beigemessen wird, sondern beweist vor allem, daß eine derartige Erschließung einen gesicherten Rechtsrahmen voraussetzt. Gerade dieser fehlt aber für den Tiefseebergbau. In dem 5. Kapitel des 1. Teils wird die geänderte Einstellung gegenüber der Nutzung der See beschrieben. Haben früher Schiffahrt und Fischfang dominiert und diese Nutzungsformen das Seerecht geprägt, so erfaßt nunmehr das Interesse an der See ein ganzes Bündel verschiedenster wirtschaftlicher Interessen. Hand in Hand damit geht eine Verfeinerung des Rechtsrahmens. Diesem Befund ist durchaus zuzustimmen. Ein 6. Kapitel zeichnet die Evolution der das Seerecht prägenden Prinzipien nach. Angesprochen werden die Vorstellungen des römischen Rechts, die Prinzipien von Grotius und deren Weiterentwicklung sowie schließlich das common-heritage-Prinzip. Die Interpretation von letzterem ist eigenwillig und wird der Seerechtskonvention nicht voll gerecht. Der Autorin ist zwar in ihrer Aussage zuzustimmen, daß sich das common-heritage-Prinzip in seiner Stoßrichtung gegen das laissez-faire-Prinzip des Genfer Seerechts wende und daher nicht notwendigerweise mit „Eigentum" gleichzusetzen ist. Verkannt wird dabei jedoch, daß sich mit dem common-heritage-Prinzip eine Zuordnung

Book Reviews

nicht nur hinsichtlich der Gewinnverteilung verbindet. Außerdem ist zu berücksichtigen, daß die Meeresbodenbehörde hinsichtlich der Meeresbodenressourcen eine dem Eigentümer ähnliche Stellung inne hat (vgl. vor allem Art. 153 der Seerechtskonvention). Wenig ergiebig ist die Skizze über die Verhandlungen der 3. Seerechtskonferenz (7. Kapitel). Die Interessenlage war viel heterogener und entspricht nicht dem üblichen Nord/Süd- bzw. Ost/West-Gegensatzschema. Aufschlußreich ist dagegen der zweite Teil, der die Kapitel 8—15 enthält (S. 137—230). Hier werden einige der früheren Vorschläge der 3. UN-Seerechtskonferenz, wenn auch sehr kursorisch, vorgestellt. Genannt wird der Vorschlag der Gruppe der 77 (A/Conf. 62/C. 1/L. 7), der USA (A/Conf. 62/C. 1/L. 6), von Japan (A/Conf. 62/C. 1/L. 9) und der UdSSR (A/Conf. 62/C. 1/L. 12). Bedauerlich ist dabei allerdings der Verzicht auf die Präsentation der Vorschläge im Meeresbodenausschuß. Sie lassen die Positionen der einzelnen Staatengruppen deutlicher werden, da sie noch nicht, wie die Initiativen auf der Konferenz, Kompromißelemente enthalten. Zu den folgenden Kapiteln werden der ISNT, der RSNT sowie der I C N T kurz vorgestellt. Hieran schließt sich eine wirtschaftswissenschaftliche Bewertung von Teil X I der Seerechtskonvention unter den Stichpunkten: Ausbeutungsrechte, Rohstoffpolitik, Finanzierung des Meeresbergbaus an, die durchgängig negativ ausfällt. Dabei vertritt die Verfasserin praktisch den derzeitigen US-Standpunkt. Ihr Vorschlag für eine Strukturverbesserung des Enterprise läuft auf dessen Umbildung in eine Aktiengesellschaft hinaus. Vorbild dafür ist INTELSAT. Dieses Konzept läßt sich nicht einmal mit dem commonheritage-Konzept, wie es die Autorin selbst versteht, vereinbaren. Chancen für eine Realisierung des Vorschlags gibt es nicht. Das Werk von Anand konzentriert sich auf die Freiheit der Schiffahrt, wobei die historische Entwicklung der entsprechenden Prinzipien im Vordergrund steht. Anliegen des Werkes ist es dabei auch, den Nachweis zu erbringen, daß Völkerrechtsentwicklungen in den heutigen Entwicklungsländern durch das „eurozentrische Völkerrecht" der Neuzeit verschüttet wurden. Besonders bemerkenswert ist das 2. Kapitel, das den Einfluß asiatischer Rechtsvorstellungen auf die Entwicklung des mediterranen Seerechts nachzuweisen versucht. In seinem 3. Kapitel geht Anand auf die Entdeckungsfahrten vor allem von Portugal ein. Er zeichnet die dahinter stehenden wirtschaftlichen Interessen nach (Gewürzhandel), die Grund für die Versuche Spaniens und Portugals waren, den überseeischen Handel zu monopolisieren. Völlig zutreffend ist die Feststellung, daß auch die von den Niederlanden her einsetzende Gegenbewegung wirtschaftlich motiviert war (4. Kapitel). Das Prinzip der Freiheit der See war nichts anderes als der Versuch der damaligen aufstrebenden Staaten, das Seehandelsmonopol Spaniens und Portugals zu brechen. Dieses Prinzip ist nach Meinung des Autors im 19. Jahrhundert unter dem Einfluß der britischen Seemacht umformuliert worden, so daß es nur noch wenigen westlichen Industriestaaten diente. Worin dieser Wandel eigentlich lag, wird letztlich nicht deutlich. Ohne Zweifel führte die industrielle Revolution zur Notwendigkeit der europäischen Staaten, sich Absatz- wie auch Rohstoffmärkte zu erschließen (S. 128 ff.). Dies hat jedoch mit dem Prinzip der Freiheit der See wenig Berührungspunkte. Abgesehen davon, schildert Anand die historische Entwicklung der Küstengewässer (S. 137—141), der Anschlußzone (S. 141—144), von Sicherheits- (S. 144—145) und Fischereizonen (S. 145—149) korrekt. Offenbar werden dabei diese Zonen als funktionale Ausgliederungen aus dem Küstengewässerprinzip verstanden. Es ist dies die von den Entwicklungsländern vielfach vertretene Ansicht. Hinsichtlich der Hohe See geht Anand von einem Rechtsvakuum aus. Für ihn ist Freiheit gleichzusetzen mit Regelungslosigkeit oder gar dem Recht der Ubernutzung. Damit wird der Autor dem Prinzip der Freiheit der See in keiner Weise gerecht, sondern wiederholt nur Positionen der Entwicklungsländer auf der 3. UN-Seerechtskonferenz. — Die Hohe See war nie ein rechtsfreier Raum, lediglich der Geltungsgrund von Rechtsregeln ist anders geartet als bei Staatsgebieten.

534

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Anlaß des Werkes von Quigg ist das wachsende Interesse an der Antarktis, wie es sich in der letzten Zeit, vor allem audi in den Debatten der Vereinten Nationen, manifestiert. Dabei kann man sich gelegentlich des Eindruckes nicht erwehren, daß nach Abschluß der 3. U N Seerechtskonferenz für die Vereinten Nationen ein entsprechendes neues Betätigungsfeld gesucht wird. In seinem Werk geht es dem Autor weniger darum, den Antarktisvertrag bzw. insgesamt das Rechtsregime für die Antarktis zu analysieren, als die politische Interessenkonstellationen in Bezug auf diesen Bereich aufzuzeigen. Das Buch hat historische, politische wie auch völkerrechtliche Komponenten. Es zeichnet sich durch ein reiches Informationsmaterial aus, ist jedoch auch nicht frei von einer gewissen Voreingenommenheit. Auf den Seiten 5—39 schildert der Autor die Entdeckungsgeschichte der Antarktis in kurzen, populär formulierten Worten. Gut gelungen sind die Ausführungen zu den bisherigen Forschungen in der Antarktis, die unter dem Titel stehen „Commonwealth of Science". Besondere Aufmerksamkeit widmet der Verfasser dabei dem Internationalen Geophysikalischen Jahr, dessen Bedeutung für den späteren Antarktisvertrag allerdings verkannt wird. Besonders aufschlußreich sind in diesem Zusammenhang die Ausführungen über die Kompetenzverteilung innerhalb der Vereinigten Staaten. Insgesamt enthält dieses Kapitel außerordentlich viele Detailinformationen auch zu einzelnen Forschungsprojekten, die bisher dem nicht mit der geophysikalischen Forschung der Antarktis Beschäftigten verschlossen waren. Kapitel 3 widmet sich den Ressourcen, wobei zunächst der Krill im Mittelpunkt steht. Mit den mineralischen Ressourcen beschäftigt sich der Verfasser auf den Seiten 87 f. Hier kommt auch die Gondwanaland-Theorie ins Spiel, die die Basis für alle Vermutungen über Rohstoff vorkommen in der Antarktis ist. Als weitere mögliche Nutzungsformen werden behandelt: Tourismus, Süßwassergewinnung aus Eisbergen, Verklappung von radioaktiven Schadstoffen und Lagerung von Lebensmitteln. Kapitel 4 widmet sich den Territorialansprüchen, die im einzelnen und schulmäßig abgehandelt werden. Die Ausführungen hierzu sind außerordentlich knapp und schöpfen den Komplex nicht aus. Besonderes Augenmerk wird den Konflikten zwischen Großbritannien und Argentinien gewidmet. Insgesamt hält der Autor Gebietsansprüche für möglich, die sich auf Tätigkeiten seit dem Internationalen Geophysikalischen Jahr stützen (S. 125). Diese Aussage muß erstaunen, denn gerade die Aktivitäten im Internationalen Geophysikalischen Jahr und danach können nicht zur Grundlage eines Gebietsanspruches gemacht werden. Für das Internationale Geophysikalische Jahr existerte ein dem Art. I V des Antarktisvertrages entsprechendes Gentleman's Agreement. Ausführlich wird die Haltung der Vereinigten Staaten zu dieser Frage beschrieben (S.126—133). Einen besonderen Abschnitt widmet der Autor den Versuchen der USA, die Antarktis zu internationalisieren. Die Ausführungen dazu sind allerdings enttäuschend; hier hätte der Autor auf die schon vorliegende Literatur, vor allem den Aufsatz von Hanessian, zurückgreifen können. Das 5. Kapitel ist dem Antarktis-Vertrag gewidmet, dabei rügt der Autor dessen Exklusivität ebenso wie die Geheimhaltung der Verhandlungen. Seiner Ansicht nach kann der Vertrag nur Bestand haben, weil er den Interessen der beteiligten Staaten am besten dient. Diese Aussage bleibt an der Oberfläche. Die Antarktis hat bislang lediglich Bedeutung für die wissenschaftliche Forschung und für die Demilitarisierung. Nutzen haben die beteiligten Staaten bislang aus der Antarktis nicht zu ziehen vermocht. In einem 6. Kapitel beschäftigt sich der Verfasser mit den Interessen der nicht an dem Vertragswerk Beteiligten, insbesondere mit den Initiativen im Rahmen der Vereinten Nationen. Wenig überzeugend ist dabei der Versuch, eine Parallelität zum Seerecht und zum Mondvertrag zu ziehen. Offenbar verficht der Autor die Anwendung des common heritage-Prinzips auf die Antarktis, ohne allerdings dessen Gehalt offenzulegen. Dem ist entgegenzuhalten, daß es sich bei beiden Gebieten um extraterritoriale Bereiche handelt, wohingegen für die Antarktis Gebietsansprüche bestehen. Abgesehen davon liegt für die Antarktis ein funktionsfähiges Rechtsregime vor, das von der Staatenwelt

Book Reviews

über 20 Jahre toleriert wurde (Prinzip der acquiescence). Diese Fakten haben auch für die Vereinten Nationen ihre Relevanz. Ein weiteres Kapitel beschäftigt sich mit den lebenden Ressourcen wie auch mit den Verhandlungen über die nichtlebenden Ressourcen. Nach Ansicht des Verfassers wird sich aus den Verhandlungen ein Kondominium entwickeln. Politisch hält der Autor diese Lösung allerdings für nicht möglich. Kein Staat, auch keine Gruppe von Staaten, könne exklusive Nutzungsrechte in der Antarktis etablieren (S. 208). Dem entspricht die in den Vereinten Nationen neuerdings von den Entwicklungsländern eingenommene Position. Rüdiger Wolfrum

Ulrich

J. Nussbaum:

der Nutzung

Rohstoffgewinnung

nichtlebender

Ressourcen,

in

der

Antarktis.

Völkerrechtliche

Grundlagen

Springer-Verlag, Berlin / Heidelberg / New York /

Tokyo 1985, 236 S., D M 98,—. Bei dem Werk handelt es sich um eine Dissertation aus Saarbrücken, die es sich zum Ziel gesetzt hat, der Frage nachzugehen, » . . . woher sich die Befugnis der Vertragsparteien zur gegenüber Dritten rechtsverbindlichen Regelung der nichtlebenden Ressourcen des antarktischen Kontinents und des ihm vorgelagerten Festlandsockels dogmatisch ableiten läßt . . ." (S. 5). Dabei konstatiert der Autor, daß die bisher in der Literatur entwickelten Denkansätze mit spezifischen Schwächen belastet seien. Dies lasse es angebracht erscheinen, eine davon abweichende dogmatische Konzeption zu entwickeln und damit zugleich die völkerrechtlichen Grundlagen der für die Antarktis geschaffenen Ordnung und der Befugnisse zur Regelung der antarktischen Ressourcen neu zu bestimmen. Apodiktisch wird gleichzeitig festgestellt, daß der Antarktisvertrag in die Kategorie der Statusverträge einzuordnen sei (S. 6). Diese Arbeitshypothese geht von zwei Prämissen aus, nämlich erstens, daß das Institut des Statusvertrages völkerrechtlich anerkannt ist, und zweitens die Vertragsparteien des Antarktisvertrages (gemeint sind wohl die Konsultativparteien) für sich in Anspruch nehmen, erga omnes Recht in Bezug auf die wirtschaftliche Nutzung mineralischer Ressourcen zu setzen. Hinsichtlich des erstgenannten Punktes hat sich der Verfasser eng an die Untersuchungen von Klein angelehnt, der übrigens bereits den Antarktisvertrag unter dem Gesichtspunkt untersucht, ob dieser unter die Statusverträge einzuordnen ist (vgl. S. 67 f., 118 f., 251), ebenso Dupuy, Guyer und van der Essen. Der von dem Verf. gewählte Ansatz ist also so neu nicht. Methodisch unbefriedigend ist hingegen die nur oberflächliche Auseinandersetzung mit der Frage, ob die Konsultativstaaten überhaupt für sich in Anspruch nehmen, Recht gegenüber Nichtvertragsstaaten zu setzen (S. 122—126). Die Bezugnahme auf Art. X Antarktisvertrag trägt diese These nicht. Diese Regel formuliert gerade nicht eine Bindung des Antarktisvertrages für Drittstaaten insgesamt, sondern er verweist nur auf dessen Ziele und Grundsätze. Dabei liest sich diese Vorschrift nicht so sehr als eine Verpflichtung von Drittstaaten; näherliegend ist es, in ihr eine Berechtigung für die Konsultativstaaten zu sehen. Auf keinen Fall aber kann diese Vorschrift herangezogen werden, um eine Bindung dritter Staaten an ein zukünftiges Rechtsregime über die wirtschaftliche Nutzung der Antarktis zu begründen. Noch weniger kann in diesem Zusammenhang auf Art. V der „Convention on the Conservation of Antarctic Marine Living Resources" verwiesen werden. Denn diese Konvention ergänzt den Antarktisvertrag, obwohl sich der Mitgliederkreis beider Vertragsinstrumente nicht decken muß. Es ist dann nur selbstverständlich, aber für den Nachweis des Statusvertrages nicht relevant, wenn Art. V „Convention on the Conservation of Antarctic Marine Living Resources" eine substantielle Normenharmonie zu gewährleisten sucht. Ebensowenig vermögen

536

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die Ausführungen zur Akzeptanz des Statusvertrages zu überzeugen. Hier wäre es übrigens notwendig gewesen, auch auf die UN-Debatten über die Antarktis einzugehen. Das Problem des Verhältnisses Antarktisvertrag — Drittstaaten stellt sich viel differenzierter dar, als dies in der vorliegenden Arbeit gezeigt wird. Drei Fragen gilt es auf dem Hintergrund der Debatten in den Vereinten Nationen zu beantworten: Haben die Konsultativparteien das Recht, einen Vertrag über die wirtschaftliche Nutzung der Antarktis zu schließen, selbst wenn dessen Wirkungen auf Vertragsmitglieder beschränkt bleibt? Welche Möglichkeiten bestehen für die Vertragsmitglieder, Interventionen seitens der Vereinten Nationen oder Dritter Staaten in den durch die Verträge geschaffenen Rechtszustand abzuwehren? Erst an dritter und letzter Stelle kann man sich fragen, ob und für welche Staaten außerhalb des Mitgliederkreises der Antarktisvertrag bzw. dessen Fortentwicklungen unmittelbare Rechtswirkungen erzeugen. Diese Kritik an der verkürzten und vor allem nicht aufbereiteten Fragestellung soll nicht verdecken, daß die Dissertation eine lesenswerte Zusammenstellung der Literaturmeinungen über die systematische Einordnung des Antarktisvertrages enthält. Beschrieben und gewürdigt werden die Lehre von der Regelungsbefugnis der Konsultativstaaten erga omnes kraft qualifizierten Stillschweigens (S. 39—55), auf Grund der Territorialansprüche der Anspruchstaaten (S. 55—85) und wegen einer Treuhänderschaft der Konsultativstaaten (S. 85—103). Den Schwerpunkt der Arbeit bildet konsequent die Darstellung der statusvertraglichen Begründung der Regelungsbefugnis erga omnes (S. 104—178). Ein Kapitel über den Rechtsstatus des antarktischen Festlandsockels schließt die Arbeit ab. Hinsichtlich der ersten Lehre kommt der Verf. zu dem sicher zutreffenden Ergebnis, daß vielleicht der Antarktisvertrag als solcher und das mit ihm begründete Rechtsregime von dritten Staaten akzeptiert worden seien, nicht jedoch die Regelung der Nutzung lebender und auch nicht die Kompetenz zur Regelung der Nutzung mineralischer Ressourcen. Damit nicht völlig in Einklang stehen einige Ausführungen zum Statusvertrag, denn auch dessen Wirksamkeit verlangt eine entsprechende Akzeptanz (S. 140). Ebenso zuzustimmen ist der Kritik an allen Versuchen, den Antarktis vertrag unter die Begriffe „Kondominium" oder „Koimperium" einzuordnen. Dagegen leiden die Ausführungen zu dem Treuhandkonzept daran, daß sie zu sehr — vor allem institutionell — in Zusammenhang mit dem Treuhandsystem der Vereinten Nationen gebracht werden. Befürwortet wird in der Literatur nicht, die Zuständigkeit des Treuhandrates zu begründen, sondern anzuerkennen, daß die Konsultativstaaten in Bezug auf die Antarktis treuhänderisch handeln. Gerade dieser Gedanke entwickelt sich — wenn auch vorsichtig — vor allem im völkerrechtlichen Umweltrecht. Rüdiger Wolfrum

Markiert Ivanovic Lazarev: T h e o r e t i s c h e F r a g e n d e s m o d e r n e n S e e v ö l k e r r e c h t s . Aus dem Russischen übersetzt von Elmar Rauch (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel, Band 91), Duncker und Humblot, Berlin 1985, 294 S., D M 68,—. Das vorliegende Werk ist die völkerrechts-theoretische Abrundung der in den Jahren 1974— 84 erschienenen dreibändigen sowjetischen Gesamtdarstellung unter dem Titel „Modernes Seevölkerrecht", die Elmar Rauch ebenfalls übersetze. M. I. Lazarev war verantwortlicher Redakteur dieser drei Bände, die die Rechtsordnung der einzelnen Meeereszonen und Nutzungsarten zum Gegenstand haben. Wegen dieser und zahlreicher weiterer seerechtlicher Arbeiten ist Lazarev als langjähriger Leiter der Abteilung für See-, Luft- und Weltraumrecht des Instituts für Staat und Recht der Akademie der Wissenschaften der UdSSR der „geborene"

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Autor für eine wissenschafts-theoretische Darstellung des internationalen Seerechts aus sowjetischer Sicht. Das Buch behandelt in zwei großen Teilen einerseits theoretische Grundlagen des Seevölkerrechts, andererseits Konsequenzen in Form von Konzeptionen für den Umgang mit konkreten Seerechtsproblemen. Der theoretische Teil von ca. 150 Seiten arbeitet das Seerecht in seinen Besonderheiten und in seinen rasch wachsenden Untergliederungen als Teil des allgemeinen Völkerrechts heraus und vergleicht es mit verwandten Bereichen, wie z. B. dem Luft- und Weltraumrecht. Der westliche Leser wird diesen Teil mit dankbarem Interesse und gelegentlichem Erstaunen zur Kenntnis nehmen. Lazarev definiert das Seevölkerrecht als Zweig des allgemeinen Völkerrechts, wobei das System der Grundprinzipien (z. B. Meeresfreiheit, Souveränität der Staaten, Verbot der Gewaltanwendung) auch für das Seerecht gilt. Wenn gelegentlich der Kreis der „Prinzipien" recht weit gezogen wird, etwa wenn der Verfasser vom „Prinzip der technischen Sicherheit künstlicher Vorrichtungen" spricht, so mag man dies als Einstieg in schärfere Haftungs- und Umweltschutzregeln noch begrüßen. Auch das Wort vom „Klassencharakter" des Seevölkerrechts — in dem die Normen von jeder Klasse in ihrem Interesse interpretiert werden — trifft einen wahren Kern: „Recht des Siegers" und „Kanonenbootpolitik" sind hierfür Stichworte des Verfassers. Lazarev bietet jedoch noch ein weiteres Beispiel für den Klassencharakter, wenn er in einem Atemzug das mangelnde Interesse der westlichen Wirtschaft am Umweltschutz und Versuche westlicher Regierungen, die Bürde des Umweltschutzes auf andere Staaten abzuwälzen, beklagt und andererseits das Fehlen einer Ausbeuterklasse in den sozialistischen Staaten als Grund dafür angibt, daß dort der Umweltschutz gewährleistet sei und man kapitalistischen Staaten sogar uneigennützig Hilfe leisten könne (S. 30 f.). Hier sei dem Verfasser ein Spaziergang in den Wäldern des Erzgebirges und ein Bad in der Bucht von Leningrad oder Danzig empfohlen. Im Abschnitt über die Besonderheiten des Seevölkerrechts schimmern viele sowjetische Seerechtsziele und Vorbehalte auf, die in ihrer Gesamtheit die sowjetische Seerechtspolitik während der 3. UN-Seerechtskonferenz diarakterisierten, als die Sowjetunion ständig im Spannungsfeld zwischen Verteidigung der Meeresfreiheiten (von der sowjetischen Seemacht geboten) und der Nationalisierung der Meere (taktisches Zusammengehen mit den Entwicklungsländern) Kompromisse machen mußte. Der Gemeingebrauch von Kanälen, die freie Zirkulation von Wasser, Fauna und Flora, der „menschenfreundliche" Grundsatz des Rechtes auf friedliche Durchfahrt durch das Küstenmeer — sogar für Kriegsschiffe —, die berechtigten Interessen der 53 geographisch benachteiligten Staaten und die Bedeutung von Geographie und Kartenmaterial für das neue Seerecht sind Ausdruck des hohen Praxisbezugs, den das Seerecht in der Sowjetunion genießt. Wie der Übersetzer im Vorwort klarstellt, darf das Seevölkerrecht den jeweiligen Erfordernissen der sowjetischen Außenpolitik und der seerechtspolitischen Strategie der KPdSU auf der Grundlage des Marxismus-Leninismus nicht entgegenstehen. So ist es aus der Sicht des Verfassers nur logisch, daß den Seekriegskräften der imperialistischen Mächte mit ihrer ungeheueren Vernichtungskraft die friedliche Politik der Sowjetunion gegenübersteht, die das „Banner der atomaren Abrüstung" trägt. Auch die alte sowjetische Lehre von der Beschränkung der Kriegsschiffahrt von Nichtanliegerstaaten in „umschlossenen Meeren" taucht in diesem Zusammenhang wieder auf — ein durchaus zweischneidiges Schwert, denn wer die US-Marine aus der Ostsee verweisen will, darf sich nicht wundern, wenn der Abzug der sowjetischen Flotte aus dem Mittelmeer gefordert wird. Abgesehen von derartigem ideologischem Ballast bietet das Werk im zweiten Hauptteil eine außerordentlich interessante erste sowjetische Gesamtbeurteilung des neuen Seerechts. Der Verfasser diskutiert — insofern dem bürgerlichen Seerecht folgend — sieben „mondialistische", d. h. internationale und zwölf „nationalistische", d. h. nationale, Konzeptionen des neuen

538

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Seerechts. Er verwirft dabei bürgerlich-kapitalistische Auffassungen ebenso wie zentrale Forderungen der Dritten Welt. Die Aufrechterhaltung der Freiheit der Hohen See und die Ablehnung überstaatlicher Strukturen bilden dabei das Koordinatensystem. Lazarev wendet sich gegen die — auch in der westlichen Welt verbreitete — Auffassung, das neue Seerecht hätte das alte abgelöst und verteidigt stattdessen die Fortgeltung des demokratisch legitimierten Prinzips der Freiheit der Hohen See auch in den neuen hoheitlichen Meereszonen. So stellt er insbesondere fest, daß die Wassersäule der Ausschließlichen Wirtschaftszone eindeutig Hohe See ist. Er verwirft die nationalistische Auslegung der Wirtschaftszonen- und Festlandsockelrechte und plädiert für freie Verkehrsrechte, für Transitpassage durch Meerengen und für möglichst viel Forschungsfreiheit. Während er einerseits den Grundsatz des „Gemeinsamen Erbes der Menschheit" und der „Ausschließlichen Wirtschaftszone" anerkannt und andererseits freizügigen Interpretationen der neuen Konvention das Wort redet, zeigt er einen Weg auf, wie meeresabhängige Industriestaaten mit dem neuen Seerecht leben können (und müssen). Dem aufmerksamen Leser wird dabei der große Vorrat an Gemeinsamkeiten in Grundsatzfragen zwischen deutschen und sowjetischen Seerechtsinteressen deutlich, die von der Geographie diktiert werden. Das Werk vermittelt Denkanstöße und ist zugleich Ausdruck des hohen Standes und der Eigenständigkeit der sowjetischen Seerechtswissenschaft, die für die Weiterentwicklung des internationalen Seerechts auf der Grundlage von Völkergewohnheitsrecht wachsende Bedeutung hat. Uwe Jenisch

Lothar Gündling:

Die

200-Seemeilen-Wirtschaftszone.

Entstehung

eines

neuen

Regimes

(Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Band 83), Springer-Verlag, Berlin/Heidelberg/New York/Tokyo 1983, 370 S., D M 98,—. des

Meeresvölkerrechts,

Die vorliegende Frankfurter Dissertation gehört zu den durch die 3. Seerechtskonferenz der Vereinten Nationen inspirierten völkerrechtlichen Schriften. Insofern wird, konsequenterweise, der Darstellung und Analyse der Arbeiten der 3. Seerechtskonferenz ein besonders breiter Raum gewidmet. Damit kommt diesem Werk eine besondere Bedeutung zu, sind doch die Beratungen der Konferenz nur unvollständig dokumentiert. Jede Aufarbeitung des Verhandlungsverlaufs ist ein Gewinn. Die Arbeit ist in vier Kapitel gegliedert: Ausdehnung der küstenstaatlichen Jurisdiktion seit 1945, Entwicklung des Wirtschaftszonenkonzepts (vor und in der Konferenz), Rechtsordnung der Wirtschaftszone nach der neuen Seerechtskonvention und Wirtschaftszone und das allgemeine Völkerrecht. Vorausgeschickt ist diesen vier Kapiteln eine kurze Einleitung. Sie umschreibt die Hintergründe für die seerechtlichen Aktivitäten der Vereinten Nationen, die letztlich in die Seerechtskonferenz einmündeten. Gündling nennt zutreffend folgende Gründe für die Revision des Seerechts: Die Intensivierung der Nutzung der See vor allem auf dem Gebiet des Fischfangs, wobei mit ausschlaggebend die Ungleichheit der Nutzungschancen von Küsten- und Fernfischfangnationen waren. Als weiteren Grund nennt er die gesteigerte Bedeutung des Meeresbergbaus bzw. die gestiegenen Erwartungshaltungen. Schließlich wird zu Recht auf die Regelungsbedürftigkeit im Bereich Umweltschutz verwiesen. Insgesamt wird festgehalten, daß das traditionelle Seerecht sowohl Regelungsdefizite aufwies als auch eine Ungleichheit bei der wirtschaftlichen Nutzung der See förderte. Mit in die Einleitung gehört eine kurze Skizze über die Aufgabe der Konferenz (Reform des gesamten Seerechts) und ihre Arbeitsweise. An dieser Stelle wäre ein Hinweis darauf angebracht gewesen, daß die Küstenstaaten anfangs versucht haben, das Mandat der Konferenz einzuschränken. Gündling ist der Ansicht, die Konferenz sei eine Reform-, nicht eine Kodifi-

Book Reviews

kationskonferenz gewesen. Diese Aussage orientiert sich zu stark an bestimmten Teilen der Konvention, kann jedoch nicht durchgängig gelten (wobei der Begriff der „Reformkonferenz" einer dogmatischen Aufhellung bedurft hätte). Richtig ist zwar, daß sich die 3. Seerechtskonferenz von ihren beiden Vorgängern, was Arbeitsweise und Selbstverständnis betrifft, deutlich unterschied. Dennoch hat auch diese Konferenz im engen Sinne kodifikatorisch gewirkt. Eine Trennung von „progressive development of international law" und Kodifikation läßt sich eben nicht strikt durchführen. Kapitel 1 enthält eine Skizze (die hierin liegende Selbstbeschränkung ist zu begrüßen) über die historische Entwicklung der küstenstaatlichen Jurisdiktion, soweit sie ressourcenbezogen ist. Verwiesen wird dabei auf die Trum^w-Proklamation von 1945, die der Ausgangspunkt für das Festlandsockel- wie auch das Wirtschaftszonenkonzept ist. Letztgenannter Zusammenhang wird allerdings nicht betont, wie auch der wirtschaftliche Hintergrund für die Errichtung der lateinamerikanischen Wirtschaftszonen nicht ausgeleuchtet wird. Insoweit ist vor allem auf die Ausführungen von Ann Hollick zu verweisen. Das zweite Kapitel — in ihm wird die Diskussion auf der 3. Seerechtskonferenz über das Wirtschaftszonenkonzept einschließlich der Diskussion des Meeresbodenausschusses dargestellt — geht historisch-deskriptiv vor. Völlig zu Recht sieht Gündling die in der Regel nicht hinreichend beachtete Parallele zu der Forderung nach der ständigen Souveränität über die natürlichen Ressourcen (S. 38) und belegt damit die Verbindung Neue Weltwirtschaftsordnung und Seerechtskonvention auch in diesem Bereich. Bedauerlich ist, daß dem Vorschlag von Jaunde (S. 45 f.) nicht größere Beachtung geschenkt wurde, denn hier hat man versucht, ein Nutzungssrecht aller afrikanischen Staaten an den Wirtschaftszonen bzw. dem afrikanischen Festlandsockel festzuschreiben. Man ging also nicht von einem kûstenstaatlichèn, sondern einem Kontinentalbezug aus. Dieses — nicht erfolgreiche — Konzept hätte durchaus in der Bewertung Berücksichtigung finden können. Ab S. 77 wird — völlig zu Recht — die bis dahin verfolgte Darstellungsform verlassen; an die Stelle der Beschreibung einzelstaatlicher Vorschläge tritt die Vorstellung der einzelnen Verhandlungstexte, gegliedert nach den Punkten: Natur und Tragweite der küstenstaatlichen Rechte, Beteiligung der Binnen- und geographisch benachteiligten Staaten, Abgrenzung der Wirtschaftszone, Rechtsnatur der Wirtschaftszone, Meeresforschung. Warum der letzte Punkt gesondert ausgewiesen wird, ist nicht ganz einsichtig. Wenn Gündling damit hervorheben wollte, daß es sich bei den Kompetenzen der Küstenstaaten in Bezug auf die Meeresforschung um deren an sich systemwidrige Erweiterung handelt, wird er dem Ansatz der Entwicklungsländer nicht gerecht. Abgesehen davon hätte es dann auch einer Sonderbehandlung zumindest des Umweltschutzes bedurft. Insgesamt liegt der Wert des 2. Kapitels (S. 38—113) darin, daß die Verhandlungen der 3. Seerechtskonferenz in ihrer chronologischen Abfolge vollständig dargestellt werden. Das 3. Kapitel ist analytischer Natur. Es beginnt mit den küstenstaatlichen Rechten und Kompetenzen und leitet dann über zu den Rechten von Drittstaaten. Dabei greift Gündling erneut den wichtigen Bezug Wirtschaftszonenkonzept und Neue Weltwirtschaftsordnung auf (besonders deutlich S. 144 ff.). Letztlich hält Gündling zu Recht fest, daß es bei der Errichtung von Wirtschaftszonen um eine Umverteilung, nicht so sehr um Bestandsschutz hinsichtlich der lebenden Ressourcen, gegangen ist (S. 195 f.). Dem ist sicher zuzustimmen. Zu berücksichtigen ist allerdings, daß die Begründung von „property rights" auch positive Auswirkungen auf den Bestandsschutz hat. Die Analyse der Wirtschaftszonenregelungen der Seerechtskonvention hinsichtlich der nichtlebenden Ressourcen (S. 196 ff.) gliedert sich in folgende Unterpunkte: Rechte der Küstenstaaten hinsichtlich der Ressourcen, der künstlichen Inseln und Anlagen, der Meeresforschung und des Umweltschutzes. Dem folgen Ausführungen zu den Rechten dritter

540

Book Reviews

Staaten, zur Reditsnatur der Wirtschaftszone und den Besonderheiten bei der Streitbeilegung. Damit werden alle aufgeworfenen Problembereiche abgedeckt. In dem 4. Kapitel geht Gündling der Frage nach, inwieweit das Wirtschaftszonenkonzept bereits Bestandteil des Völkergewohnheitsrechts ist. Die Antwort ist verhältnismäßig restriktiv (S. 326 — Zulässigkeit von Fischreizonen). Insgesamt handelt es sich bei dem Werk Gündlings um eine vorzüglich recherchierte und dokumentierte Dissertation, deren Erkenntniswert weit über dem normaler Dissertationen liegt. Rüdiger Wolfrum

Benjamin B. Ferencz: mentary

History

and

Enforcing Analysis,

International

Law

—

A

W a y

to

W o r l d

Peace.

A

Docu-

2 vols., Oceana Publ. Inc., London etal. 1983, cloth,

xix + 891 pp., set $ 90. The documentation under review traces the way doctrine and state practice have had to go from the ideas of Plato and Socrates to the Final Act of Helsinki in their endeavours to solve the problem of enforcing international law. More than eighty selected historical documents, each of them introduced by a brief comment, provide an enlightening survey both of the changing attitudes towards the means of enforcement and the differing grades of acceptance of the rule of international law in inter-state relations through the centuries. A publication on this subject deserves a lot of attention in a time which is characterized by vast codification of international law on the one hand, and a small but growing number of states turning away from institutionalized peaceful dispute settlement on the other. Apparently due to the quantity of sources available for research, the study mainly focuses on the period between the foundation of the League of Nations and today, to which 10 out of 14 chapters of the two volumes are devoted. Chapters 1 to 4 bear the character of an introductory history of ideas on international law enforcement: Here can be found the views of the classical scholars from Vitoria to Vattel , confining themselves to a description of the conditions under which the sovereign could lawfully resort to war. Another, very fascinating chapter presents the concepts of the philosophers of the 17th and 18th century, drafting a peaceful world order which would empower the community of states to enforce law peacefully against an aggressor state (Penn t Rousseau, Kant, Bentham et al., chapter 3). Ferencz underlines his optimistic attitudes towards the development of the peaceful enforcement of international law (Introduction, p. xix). However, a comparison between those "Grand Designs" and the prevailing inefficiency of the instutionalized state community in the 20th century might rather cause a pessimistic view of the future. Twice in this century, the states, with the experience of a global war, set out to achieve the high goal of avoiding force in interstate relations through a universal world order. In both cases, similarities of development are obvious: With the horrifying impression of the war just ended still fresh in their minds, and vested with a written "world constitution" based on common understanding, states proved a high readiness to accept the rule of international law and its enforcement by agreed procedures. A considerable number of conflicts thus solved originate in the aftermath of war itself, as for instance several boundary disputes after the First World War (chapter 7) or the Greek and Netherlands-Indonesian conflicts after the Second World War (chapter 11). However, both the League of Nations and — at least in part — the United Nations soon had to face a weakening of their organs' role as peaceful mediators between sovereign interests (chapters 8 and 12). Whereas for the League, this development leads to the outbreak of another global war, the United Nations are in a

Book Reviews

permanent struggle to end the vicious circle by fostering arms control projects, codification of international law and the institution and perfection of dispute settlement mechanisms. The 1982 Convention on the Law of the Sea, the Manila Declaration on the Peaceful Settlement of Disputes and the Final Act of Helsinki are to be considered milestones in this field (chapter 14). This documentation is a treasury for every scientist who prefers doing research with original sources to obtaining second-hand information from the widespread digests. Every single document is a facsimile reprint from the original, the older ones taken partly from the "Classics of International Law". The introductions to the documents which comprise about 100 pages at the beginning of each of the two volumes, provide a lot of extra information in footnotes. Although some of the comments could have been more exhaustive, this in no way diminishes the high value of the documentation as a comprehensive survey on the historical development of methods and means to enforce international law. Rüdiger Wolf rum

Richard B. Lillich (ed.): T h e I r a n — U n i t e d S t a t e s C l a i m s T r i b u n a l 1 9 8 1 — 1 9 8 3 . Seventh Sokol Colloquium, University Press of Virginia, Charlottesville 1985, viii + 173 pp., clothbound, $ 25. The Iranian hostage crisis was the final chapter of the rapidly deteriorating relations between the United States and Iran after the Shah's resignation into exile. Its settlement by the Algiers Accords of 1981 triggered jurisdictional activities which were outdated and oldfashioned: dispute settlement by way of mixed arbitral tribunals. Almost extinct since the decades after the First World War institutionalized and permanent arbitration seemed to be the only means to cope with an enormous case load: almost 4,000 debt, contract, and nationalization claims which had arisen out of the Iranian revolution. Once established the Iran — United States Claims Tribunal startet its work fairly quickly and its decisions have already initiated a constant flow of legal articles and lectures. The Tribunal and its activities have even become permanent agenda items at the annual meeting of the American Society of International Law. The book under review undertakes to present an interim appraisal of the first two years of the Tribunal's work. Surprisingly, it is the first comprehensive attempt to evaluate the results of the difficult and slow adjudicatory procedure set up by the accords of 1981. The seven papers which the small volume contains were presented at the Seventh Sokol Colloquium on Private International Law at the University of Virginia School of Law held in early 1983. They deal with a wide variety of subjects concerning the Tribunal itself as well as related fields. This diversity corresponds to the different areas the authors of the papers come from. David P. Stewart and Laura B. Sherman of the U.S. Department of State are the authors of the introductory article entitled "Developments at the Iran — United States Claims Tribunal : 1981—1983". They present a succinct overview of the Tribunal's history, followed by an outline of the jurisdictional and substantive decisions rendered in the period under review. They do not deal with each and every judgement, interlocutory award or interpretative decision but rather concentrate on the leading and trend-setting ones. The main features of the Tribunal's emerging jurisprudence concerning such basic questions as choice-of-forum, proof of nationality, interests, costs, contract issues (formation and frustration of contracts, amount of damages), and evidentiary standards are described and commented upon. Of course the limited space did not permit a detailed and extensive evaluation; nontheless the chapter is a sufficiently complete, well written intro-

542

Book Reviews

duction and assessment of the Tribunal's jurisdictional achievements. All in all it is a scholarlyarticle in the best tradition. The same applies to the second paper. David Lloyd Jones of Downing College, Cambridge, deals with "Private Rights and State Responsibility". His article primarily addresses the Tribunal as such and investigates its institutional aspects, i. e. its nature and its functions. The question he undertakes to answer is, whether it is a private arbitral body, set up to resolve private law disputes arising under different systems of law and to hear private law claims against both states concerned, or an international or interstate tribunal, ruling on state responsibility under public international law. Carefully construing the relevant parts of the Claims Settlement Agreement as well as the practice and the rare decisions of the Tribunal which deal with this problem, Jones reaches the correct conclusion: that the Tribunal is indeed a hybrid. Subsequently he addresses a number of problems which derive from this fact, e. g. the unresolved question of the relationship between the Tribunal and municipal courts and of the applicable legal standards. He then indicates where one might wish for additional guidance by the Tribunals decisions. The third paper, "An Interim Appraisal" by Professor Andreas F. Lowenfeld , deals almost entirely with forum selection clauses, certainly one of the crucial procedural thresholds to establish the Tribunal's jurisdiction. The test cases decided by the plenary Tribunal and in the particular chambers are analyzed and commented upon. Indeed, Lowenfeld is right in stating that the decisions are once more a clear demonstration of how the rush to close a deal often leads to illformulated choice-of-forum-clauses. One can only caution businessmen not to underestimate the repercussions of badly drafted contracts; the Iran — United States Claims Tribunal's decisions provide sometimes drastic examples of how one single word can make the difference between a successful and a lost suit. Professor Louis B. Sohn also addresses the forum selection clauses in the broader context of "Jurisprudential Contributions to the Development of International Law". His article, however, is somewhat disappointing since Lowenfeld covers this subject more in detail. The same applies to Sohn' s remarks concerning nationality questions, which the first paper discusses extensively. Professor Thomas E. Carbonneau's article entitled "The Elaboration of Substantive Legal Norms and Arbitral Adjudication" surprises the reader by its subjects which have not yet played any major role in the Tribunal's jurisprudence: the concept of force majeure and of mitigation of damages. He gives a scholarly description of both doctrines, their development and foundations in the European legal systems and finally admits that both "have not been addressed by the Tribunal"! Brice M. Clagett , a partner with Covington & Burling , one of the major law firms in Washington, D. C., then presents "A Practioner's Perspective". His paper briefly provides a succinct inside view of the practical legal work before the Tribunal and out of court. One interesting detail is his description of the establishment and functions of the United States — Iran Claimants Committee in New York, a selfhelp organization set up by the claimants. The last paper by Michael F. Hertz of the U.S. Department of Justice concerns the municipal legal problems which the severance of economic and political ties between the United States and Iran has caused. It is entitled "The Hostage Crisis and Domestic Litigation" and describes the proceedings before U.S. courts from the time the hostages were held until after the transfer of the domestic assets in execution of the Algiers agreement. His article includes inter alia a detailed analysis of the Supreme Court decision in Dames & Moore v. Regan, another landmark case concerning the President's inherent power to conduct foreign affairs. Unfortunately not all the seven papers are of the same quality but this is certainly an inherent feature of every colloquium or symposium. Nevertheless, the book is a unique and very comprehensive source for everyone seeking information on the Iran — United States

Book Reviews

Claims Tribunal and its jurisprudence during its initial stage. The annotations are exhaustive, a table of cases and an index facilitate the access to the information the book contains. One might have wished, however, that the Tribunal's decisons would have been cited according to the Iran — U.S. Claims Tribunal Reports, which are certainly more easily accessible than the original decisions. Hans-Joachim Prieß

Klaus-Peter meinschaft

Kißler:

Die

gegenüber

Zulässigkeit

Drittstaaten,

von

Wirtsdiaftssanktionen

der

Europäischen

Ge-

Verlag Peter Lang, Frankfurt am Main/Bem/New

York/Nancy 1984, 352 S., Sfr. 69,—. Mit der Diskussion um die Verhängung von Wirtschaftssanktionen gegenüber der Republik Südafrika, die seit der Verhängung des Ausnahmezustandes in diesem Land in vielen Staaten der Erde verstärkt geführt wird, gewinnt erneut die Frage nach der Kompetenz der Europäischen Gemeinschaften zum Ergreifen solcher Handelsbeschränkungen an Gewicht. Diese bisher nicht eindeutig gelöste Problematik ist dadurch gekennzeichnet, daß bei der Verhängung von außenpolitisch motivierten Handelsbeschränkungen die Kompetenzverteilung zwischen der EG und den Mitgliedstaaten „mitten durch dieses Instrument geht" (Nicolay sen). Es wird ein handelspolitisches Instrument verwendet, dessen Gebrauch „an sich" der Gemeinschaft zusteht (cf. Art. 113 EWG-Vertrag), während das zugrundeliegende, in der außenpolitischen Zielsetzung liegende Motiv von dieser Kompetenz nicht erfaßt wird. Nach dem derzeitig gültigen Text der Römischen Verträge ist die Regelung der Außenpolitik bei den Mitgliedstaaten verblieben. In der über die im Titel angezeigten Sachverhalte hinausgehenden, recht breit angelegten Untersuchung betrachtet der Autor neben Kompetenzfragen auch die Funktion und völkerrechtliche Beurteilung von Wirtsdiaftssanktionen generell sowie die Frage der Anwendbarkeit allgemeiner völkerrechtlicher Regelungen auf die EG. Der Autor kommt in diesen ersten beiden Teilen nicht zu neuen Ergebnissen. In dem eigentlichen Hauptteil der Arbeit beschäftigt sich der Autor mit der Kompetenz der EG zur Verhängung von Handelssanktionen. Hier lehnt er in Ubereinstimmung mit Bruha (DVBl. 1982, S. 674—682) und einer Reihe französischer und niederländischer Autoren eine solche Kompetenz der EG ab. Dem ist aus Sicht des Rezensenten jedenfalls insoweit zu folgen, als damit eine direkte Kompetenz der EG angesprochen wird. Eine Kompetenz der EG, die auch außenpolitische Entscheidungen umfaßt, ist in dem derzeitigen Text der Römischen Verträge nicht vorgesehen, sondern allenfalls für die Zukunft wünschenswert. Es ist ein Verdienst dieses Teiles der Arbeit von Kißler, anders als ein großer Teil der sehr integrationsfreundlichen Literatur den derzeitigen Integrationszustand nicht zu verwischen und aus instrumenteilen Möglichkeiten sowie sachlichen Notwendigkeiten nicht auf rechtliche Kompetenzen zu schließen. Es ist der Arbeit zu wünschen, daß sie die weiterhin konträr geführte Diskussion befruchtet und zu einer Betrachtung beiträgt, die bei aller Integrationsfreundlichkeit die in den Römischen Verträgen niederglegte Basis nicht verläßt. Eine europäische Gemeinschaft, die auch die Außenpolitik der Mitgliedstaaten umfaßt, wäre eine neue Gemeinschaft. Zu ihrer Schaffung bedürfte es eines zusätzlichen Integrationswillens aller Mitgliedsstaaten, der seinen Ausdruck in einem neuen Vertrag finden müßte. Inwieweit dieser Integrationswille besteht, wird die Zukunft zeigen. Klaus Bockslaff

544

Book Reviews

Jürgen Rettberg: Weltwährungsfonds mit Weltbankgruppe und UNCTAD (Band 69 der Studien zum Internationalen Wirtschaftsrecht und Atomenergierecht), Carl Heymann Verlag, Köln/Berlin/Bonn/München 1983, X L I V + 930 S., D M 150,—. Das vom Verfasser gewählte Thema — gerichtet auf „die Untersuchung des Zustandekommens der bisherigen Entwicklung, sowie der Empfehlungen und/oder Forderungen der drei zur UN-Familie gehörenden Wirtschaftsinstitutionen" (Einführung, S. X L I V ) — ist nicht knapp bemessen. Selbst die wissenschaftliche Abhandlung nur einer der drei genannten UNO-Organisationen könnte — ohne zusätzliche Eingrenzung des Untersuchungsgegenstandes — den Rahmen eines einzelnen Werks leicht sprengen. Per Verfasser will denn auch offensichtlich sein Hauptaugenmerk auf einen besonderen Aspekt der Materie richten, nämlich das Problem der Weltwirtschaftsordnung unter besonderer Berücksichtigung der Interessen der Entwicklungsländer. Dabei will er allerdings — um ihn selbst zu Worte kommen zu lassen — „. . . keine Antwort auf die Frage geben, welches denn nun die essentiellen Elemente einer auch den berechtigten Interessen der Entwicklungsländer entsprechenden Weltwirtschaftsordnung sein sollen . . . Die Arbeit beschränkt sich vielmehr auf eine Darstellung der vorhandenen internationalen Institutionen zur Weltwirtschaftsregelung, wobei in Anerkennung der Interdependenz von Handel und Währung der Weltwährungsfonds, Weltbankgruppe und U N C T A D Berücksichtigung finden. Auf eine gesonderte Behandlung des GATT wird verzichtet, da es sich hier um ein multilaterales Vertragswerk handelt, das als Rudiment des weitergehenden Versuchs zur Gründung einer Internationalen Handelsorganisation (ITO) aus dem Jahre 1947 zur Selbstständigkeit gelangte. Auch erscheint angesichts des psychologisch bedingten Widerstandes der Dritten Welt gegen Ursprung und Grundstrukturen des von den Industrienationen zur Wahrung ihrer handelspolitischen Eigeninteressen geschaffenen GATT mehr als fraglich, ob diese „Handelsorganisation" eine bedeutende Rolle bei der Umsetzung der unter dem Motto „Neue Weltwirtschaftsordnung" aufgestellten handelspolitischen Motto-Forderungen der Entwicklungsländer zukommen wird . . ." (S. X L I I I f.). Die Arbeit gliedert sich in zwei Hauptteile, wovon der erste den Währungsfonds und dann die Weltbankgruppe (als „finanzielle Pfeiler der Internationalen Handels- und Entwicklungspolitik"), und der zweite die Konferenz der Vereinten Nationen über Handel und Entwicklung (UNCTAD) „als weiteres Element der Internationalen Handels- und Entwicklungspolitik" zum Gegenstand hat. Diese Haupt- und Unterteile sind in sich historisch aufgebaut und beziehen nicht nur juristische, sondern auch ökonomische und politologische Aspekte in die Untersuchung ein. Wo liegen nun die Stärken, aber auch die Schwächen einer thematisch und methodisch so komplexen Fragestellung? Zweifellos ist es dem Verfasser gelungen, maßgebliche institutionelle Grundlagen der gegen Ende des Zweiten Weltkriegs konzipierten Weltwirtschaftsordnung in ihrem historischen Zusammenhang zu verdeutlichen und spätere Entwicklungen nachzuzeichnen. Der historische Ansatz und die Wahl des Mittels der „Rechtstatsachenforschung" zur Erhellung des ebenso komplexen wie schillernden Begriffs der Weltwirtschaftsordnung haben zweifellos erhebliche Vorteile. Die detaillierte Recherierung der historischen Entwicklungslinien gibt dem Werk denn auch seine Substanz und läßt es als Referenzdokument oder als eine zügige, und doch nicht oberflächliche Einführung in diese schwierige Materie nützlich erscheinen. Die Kehrseite einer thematisch und methodisch so breit angelegten Arbeit liegt allerdings darin, daß ihre Aussagen — im Vergleich zu thematisch präziser eingegrenzten Arbeiten — im allgemeinen zu bleiben drohen. Der Völkerrechtler wird etwa in den Werken des langjährigen leitenden IWF-Rechtsberaters Sir Joseph Gold (vgl. u. a. Legal and Institutional Aspects of the International Monetary System: Selected Essays, Washington 1979) oft eine

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545

eingehendere Behandlung rechtlicher Einzelaspekte des Währungsfonds finden können, während die wirtschaftlichen Elemente der Entwicklung z. B. in Robert Solomon's kürzlich erschienenem Werk (The International Monetary System 1945—1981, London 1982) vorzüglich analysiert worden sind; (vgl. auch A. W. Hooke, The International Monetary Fund. Its evolution, organization, and activities, IMF, Pamphlet Series n° 37, Washington 1982; oder Brian Tew , The Evolution of the International Monetary System 1945—77, London 1977). Audi die Weltbankgruppe und die multilateralen Handelsorganisationen GATT und U N C T A D sind bereits Gegenstand eingehender Sonderuntersuchungen gewesen (für die Weltbank vgl. z. B. Aaron Broches , International Legal Aspects of the Operations of the World Bank, in: RdC vol. 98 (1959 III), sowie Edward S. Mason und Robert Asher , The World Bank since Bretton Woods, Washington 1973). Deshalb hätte der Verfasser vielleicht seinen komparativen Vorteil stärker nutzen können, indem er seine Untersuchung auf eine die Grenzen der einzelnen Organisationen überschreitende Gesamtaussage ausgerichtet hätte, wozu er in seiner Zusammenfassung der historischen Entwiddungslinien im Schlußteil der Arbeit (S. 904—917) nur relativ kurz ansetzt. Auch hätte sich aus der Sicht völkerrechtlich interessierter Leser, an die sich das in der Reihe „Studien zum Internationalen Wirtschaftsrecht und Atomenergierecht" vom Göttinger Institut für Völkerrecht herausgegebene Werk ja in erster Linie wendet, eine stärkere Betonung einzelner rechtlicher Aspekte empfehlen können. Die beiden Satzungsreformen des IWF nach dem Zusammenbruch des Systems der festen Wechselkurse und die zunehmende Ausrichtung des Fonds auf die Entwicklungsländer — oder die Ergänzung der IBRD durch die IFC und IDA, oder die Ergänzung und Kontrastierung des GATT durch U N C T A D — sind vom Verfasser zwar dargestellt, aber doch in erster Linie als historische und politische Phänomene erfaßt worden. Eine noch stärkere Herausstellung des Mechanismen des rechtlichen Wandels der gegen Ende des Zweiten Weltkriegs weitgehend von und für die Industriestaaten geschaffenen wirtschaftsrechtlidien Organisationsstatuten, und ihrer rechtlichen Anpassung an die 1944 noch gar nicht vorauszusehende Entstehung einer Majorität souveräner Entwicklungsländer, wäre sicherlich von Interesse gewesen. Doch handelt es sich hier um Randbemerkungen, die das grundsätzliche Verdienst des Verfassers um die gründlich fundierte Erschließung einer so komplexen Materie in keiner Weise mindern sollen. Hans. G. Petersmann

Thorsten Stein: Die Auslieferungsausnahme bei politischen Delikten. Normative Grenzen, Anwendung in der Praxis und Versuch einer Neuformulierung. The Political Offence Exeption to Extradition (English Summary) (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht Bd. 82) Springer Verlag, Berlin/Heidelberg/New York/Tokyo 1983, xii + 401 pp., clothbound, D M 116,—. The extradition of politically motivated perpetrators presents a wide variety of legal problems. Accordingly it has constantly kept courts busy in many countries. Many fold attempts have been made to cope with these problems and manyfold have the failures been to precisely define and delimit what is an accepted doctrine of international law since the late 19th century: the political offence exeption to extradition. Nevertheless, as ancient as the doctrine might seem to be as unsolved are many of the questions related to the practical application of this "general principle of international law". Even today the evaluation of Rivier of 1896 can only by shared: "Peu de règles ont fait naître -plus de doutes , plus de discussions et d'erreurs que celle qui exclut de l'extradition les infractions politiques " (cited by Stein at p. 51).

3

G Y I L

28

546

Book Reviews

The detailed study by Stein endeavours to shed some light upon the central issue which he identifies to be the difficulty to develop a workable definition of the political offence. He starts out by expounding in the first chapter the concept of extradition as it is presently perceived in national and international legal systems (p. 1—48). The second chapter (p. 49— 85) then introduces the subject of the book, the political offence exeption, and presents a broad overview of the motives which led to its establishment. The author's paramount concern, however, are the attempts to define and to delimit the exeption and that is what he adresses next. Surveying the different proposals put forward by his various predecessors he concludes that these efforts have proved futile since the hitherto suggested general formulas have not become accepted standards by way of implementation into bi- and/or multilateral extradition treaties. Thus Stein now turns to state practice: chapters four (p. 86—179) and five (p. 180—337) contain a detailed discription and analysis of the statutory law of the political offence exeption and of the case law of various European and North American countries (United Kingdom, Ireland, United States, Canada, France, Belgium, Netherlands, Switzerland, Germany). Therefrom Stein tries to derive a consensus as to what the "exeptions to the exeption" are. As far as international treaties and national legislation are concerned the result is certainly disappointing: there are no generally recognized standards which represent a common conviction as to who deserves to bounty of exemption from criminal prosecution in the country where the crime was committed. The scrutiny of court decisions, however, does at least show some very basic principles which seem to prevail in the practice of western industrialized countries. There is a trend to make the recognition of a political crime dependant on proportionality factors, the most important of which is the seriousness of the offence. Such specific aspects like means, aims and the consequences of the acts committed are also taken into consideration. In addition recent judicial decisions portrayed in the book now tend to emphasize the motives behind the exeption. Originally it was viewed as the recognition of a citizen's right to revolt against a tyrannical and oppressive political regime. Accordingly, Stein notes, courts have begun to decide cases with specific reference to whether the fugitive was regarded to be worthy and in need of asylum. The same rationale is applied in qualifying offences as political ones. The author shares this view and founded on his belief develops an alternative conception of the political offence exeption. It consists of a humanitarian and a political element. The first one is intended to prevent any racially, religiously, or politically motivated prosecution of the offendor. The second one is the mere recognition of national interests as the ultimate barrier to extradition. Stein's concept is a fascinating one and it is certainly right to stress the idea that the underlying motives and values have to be at the core of any attempt to find a workable definition and delimitation of the political offence. His suggestion, however, is far from convincing. "National interest" and "punishment and prosecution on account of race, religion, nationality and political opinion" cannot be considered as a workable alternative. These formulas are far from solving the present inadequacies related to the qualification of an offence as political. Stein's suggestion is no whit more usable than any of the existing ones and it certainly does not facilitate the application of the political offence exeption. Yet apart from this shortcoming the book remains valuable as a unique source of information. Stein has meticulously compiled and analyzed the statutory and jurisdictional basis of the political offence exeption. Hans-Joachim Prieß

Books Received (Inclusion in this list neither assures nor precludes later review) Académie de Droit International (ed.): Recueil des Cours, Collected Courses of the Hague Academy of International Law, 1985 I, Vol. 190. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1986, 400 pp. US $ 62,50. Académie de Droit International (ed.): Recueil des Cours, Collected Courses of the Hague Academy of International Law, 1985 II, Vol. 191. Martinus Nijhoff Publishers,, Dordrecht, Boston, Lancester 1986 413 pp. US $ 62,50. Académie de Droit International (ed.): Recueil des Cours, Collected Courses of the Hague Academy of International Law, 1985 I I I , Vol. 192. Martinus Nijhoff, Publishers, Dordrecht, Boston, Lancester 1986, 475 pp. US $ 62,50. Albert Bleckmann\ Europarecht. Das Recht der Europäischen Wirtschaftsgemeinschaft. Carl Heymanns Verlag, Köln, Berlin, Bonn, München, 4. Aufl. 1985, 519 pp., D M 43,—. Bodo Börner: Studien zum deutschen und europäischen Wirtschaftsrecht, Bd. I V (Kölner Schriften zum Europarecht, Bd. 33). Carl Heymanns Verlag, Köln, Berlin, Bonn, München 1985, 603 pp., D M 130,—. Bodo Börner / Konrad Neundörfer (eds.) : Recht und Praxis der Beihilfen im gemeinsamen Markt (Kölner Schriften zum Europarecht, Institut für das Recht der Europäischen Gemeinschaften der Universität Köln, Bd. 32). Carl Heymanns Verlag, Köln, Berlin, Bonn, München 1984, 1979 pp., D M 33,—. Michael Bothe / Raul R.Vinuesa: International Law and Municipal Law, Droit international et droit interne, Völkerrecht und Landesrecht, Derecho internacional y derecho interno (Schriften zum Völkerrecht 73). Duncker & Humblot, Berlin 1982, 322 pp., D M 116,—. Lunda-Bululu: La conclusion des traités en droit constitutionnel Zaïrois, Étude de droit international et de droit interne (Collection de Droit International, Vol. 12) Bruylant, Éditions Juridiques, Bruxelles 1984, 460 pp., FFr 1800,—. Gabriella Carella : La Responsabilité dello Stato par Crimini Internazionali, Éditore Jovene, Napoli 1985, X X + 278 pp. Léontin-Jean Constantinesco : Rechtsvergleichung Bd. I I I , Die rechtsvergleichende Wissenschaft (Schriftenreihe Annales Universitatis Saraviensis, Rechts- und Wirtschaftswissenschaftliche Abteilung Bd. 106). Carl Heymanns Verlag KG, Köln, Berlin, Bonn, München 1983, 567 pp., D M 150,—.

*

548

Books Received

D. S. Constantinopoulos (ed.): Helenic Review of International Relations, Vols. 3, 4, 1983— 1984, Special focus of this issue: International Security Questions and Greece. The Institute of Public International Law and International Relations, Thessaloniki, in collaboration with the Thessaloniki Bar Association, 929 pp., US $ 90,—. Council of Europe (ed.): Collected Edition of the "Travaux Préparatoires" of the European Convention on Human Rights, Vol. VI. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1985, X V I I I + 298 pp., US $ 66,50, £ 48,50. Council of Europe (ed.): Collected Edition of the "Travaux Préparatoires" of the European Convention on Human Rights, Vol. VI. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1985, X X X + 347 pp., US $ 75,00, £ 62,50 Council of Europe (ed.): Collected Edition of the "Travaux Préparatoires" of the European Convention on Human Rights, Vol. V I I I . Martinus Nijhoff Publishers, Dodrecht, Boston, Lancester 1985, X X V I I I + 221 pp., US $ 60,00, £ 48,50. Council of Europe Directorate of Human Rights (ed.): Human Rights of Aliens in Europe. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1985, X + 474 pp., £ 62,50. Alfred Dufour / Peter Haggenmacher / Jiri Toman (eds.) : Grotius et l'Ordre Juridique International, Travaux du colloque Hugo Grotius, Genève, 10—11 Novembre 1983. Collection Juridique Romande Payot, Lausanne 1985, 146 pp. European Broadcasting Union: E.B.U. Review, Vol. X X X V no. 4/July 1984, Brussels, 41 pp., BF 220,—, SFr. 8,—. European Broadcasting Union: E.B.U. Review, Vol. X X X V I no. 2/March 1985, Brussels 47 pp., BF 220,—, SFr. 8,—. European Broadcasting Union: E.B.U. Review, Vol. X X X V I no. 5 / September 1985, Brussels, 51 pp., BF 220,—, SFr. 8,— European Broadcasting Union: E.B.U. Review no. 209 (Technical), February 1985, Technical Centre of the E.B.U., Brussels, 48 pp., FB 220,—, SFr 8,—. European Broadcasting Union: E.B.U. Review no. 211 (Technical), June 1985, Technical Centre of the E.B.U., Brussels, 50 pp., BF 220,—, SFr. 8,—. European Broadcasting Union: E.B.U. Review no. 212 (Technical), August 1985, Technical Centre of the E.B.U., Brussels, 50 pp., BF 220,—, SFr. 8.—. European Broadcasting Union: E.B.U. Review no. 223 (Technical), October 1985, Technical Centre of the E.B.U., Brussels, 58 pp., BF 220,—, SFr. 8,—. European Broadcasting Union: E.B.U. Review no. 210 (Technical), December 1985, Technical Centre of the E.B.U., Brussels, 47 pp., BF 220,—, SFr. 8,—.

Books Received

Raymond Ferre tti: La coordination de l'action des organisations internationales au niveau européen (Organisation Internationale et Relations Internationales, Vol. 13). Établissements Émile Bruylant, Bruxelles 1984, xiv + 326 pp., FFr. 2040,—. Robert H. Floyd / Clive S. Gray / R. P. Short: Public Enterprise in Mixed Economics. Some Macroeconomic Aspects. International Monetary Fund, Washington, D. C. 1984, 196 pp., US $ 12,—. Col. Pier Giorgio Franzosi (ed.): Rivista Militaire, Journal of the Italian Army, Founded in 1856. Tipografiia Regionale, Rome 1985, 96 pp., D M 15,—. Gerhart Fürnrohr: Das Devisenrecht im deutsch-italienischen Wirtschaftsverkehr (Augsburger Schriften zum Internationalen Recht und Europarecht). Karsten Hoch Verlag, Augsburg 1984, X X X I I + 304 pp., D M 68,—. Joseph Gold-. Prior Consultation in International Law (Review Article). Reprinted from: Virginia Journal of International Law, Vol. 24, no. 3, 1984, 729—753. Julio D.Gonzales / Luis I. Sanchez Rodriguez / Andres Sâenz de Santa Mariai Materiales de Practicas de Derecho international publico, 3rd ed. Universidad de Oviedo, Servicio Publicaciones, Oviedo 1984, 844 pp. Helmuth Hecker (ed.): Materialien zum Staatsangehörigkeitsrecht in Deutschland 1970—1985 (Institut für Internationale Angelegenheiten der Universität Hamburg, Werkhefte 39). Nomos Verlagsgesellschaft, Baden-Baden 1985, X I V + 84 p., D M 33,—. Wolf gang Humbart-Droz: Das Ehescheidungsrecht in Japan. Carl Heymanns Verlag, Köln, Berlin, München, Bonn 1985, 131 pp., D M 38,—. Elisabeth Back Impallomeni: Spazio Cosmico e Corpi Celesti nell'Ordinamento Internazionale (Publicazione délia Facoltà di Scienze Politiche dell'Università di Padova, Vol. VI). Instituto di Studi internazionali, Cedam-Casa Editrice Dott. Antonio Milani, Padova 1983, 228 pp., L 30.000,—. Internationale Court of Justice: Yearbook No. 39 (1984—1985). The Hague 1985, X I I 217 pp. Das japanische BGB in deutscher Sprache. Willi Laumen / /otfc&im Strieder müller / Boris Meissner / Dietrich Berlin, Bonn, München 1985, 189 pp.,

+

Translated by Akira Ishikawa / Ingo Leetsch / Hans(Japanisches Recht, Gottfried Baumgärtel / Ernst KlingOehler [eds.], Vol. 15). Carl Heymanns Verlag KG, Köln, D M 48,—.

Raimund Kubasek : Forschungsreise nach Palästina und Ägypten (Kurzfassung), An Expedition to Palestine and Egypt (abridged version). Voyage d'Études en Palestine et Égypte (résumé), compiled by Helene Mirtl sen. Bethania Verlag, Vienna 1985, 31 pp., ÖS 240,—. Philip Kunig / Wolfgang Benedek / Costa R. Mahalu (eds.) : Regional Protection of Human Rights by International Law: The Emerging African System (Verfassung und Recht in Übersee, Beiheft 12). Nomos Verlagsgesellschaft, Baden-Baden 1985, I X + 156 pp., D M 29,—.

550

Books Received

Jean-Pierre Laviec : Protection et promotion des investments. Étude de droit international économique (Publications de l'Institut universitaire de Hautes Études Internationales, Genève). Presse Universitaires de France 1985, 331 pp., FFr. 180,—. Les États Fédéraux dans les Relations Internationales, Actes du colloque de Bruxelles Institut de Sociologie 26—27 février 1982 (Collection de Droit International, Vol. 13). Bruylant, Éditions Jurisdiques, Bruxelles 1984, 594 pp., FFr. 1.590,—. Richard B. Lillich: The Human Rights of Aliens in Contemporary International Law (Melland Sdiill Monographs in International Law, Gillian M. White [ed.] ). Manchester University Press, Manchester 1984, 177 pp., £ 27,50. Hassanali Mehran (ed.): External Debt Management. Papers presented at a seminar organized by the IMF Institute and the Central Banking Department of the International Monetary Fund, held in Washington in December 1984. International Monetary Fund, Washington, D. C. 1985, 322 pp. Luigi Migliorino : I I Recupero Degli Oggetti Storici Ed Archeologici Internazionale, Dott. A. Giuffré, Milano 1984, X + 237 pp.

Sommersi Nel Diritto

Dietmar Möhler: Völkerrechtliche Probleme östlicher Beteiligungen an internationalen Veranstaltungen in West-Berlin. Berlin Verlag, Berlin 1985, 163 pp., D M 28,—. Hiroo Mukooyama / Kameo Akuzawa / Peter Hanau (eds.) : Studien zum japanischen Arbeitsrecht. (Japanisches Recht, Gottfried Baumgärtel / Peter Hanau / Ernst Klingmüller / Boris Meissner / Dietrido Oehler [eds.], Vol. 17). Carl Heymanns Verlag KG, Köln, Berlin, Bonn, München 1984, 254 pp., D M 48,—. Ingo von Münch / Andreas Büske (eds.) : International Law, The Essential Treaties and Other Relevant Documents. Walter de Gruyter, Berlin, New York 1985, 702 pp., D M 178,—. Bruno Nascimhene : Il Trattamento dello Straniero nel Diritto Internazionale ed Europeo (Universita di Milano, Pubblicazioni délia Facoltà di Giurisprudenza, Serie II, Studi di Diritto Internazonale, no. 6). Dott. A. Giuffré Editore, Milano 1984, 590 pp., L 30.000,—. Netherlands Yearbook of International Law, vol. X V (1984). Interuniversity Institute for International Law, T.M.C. Asser Institute (ed.). Martinus Nijhoff Publishers, The Hague 1984, 585 pp., Dil. 120,—. Amos J. Peaslee: Constitutions of Nations, Vol. II, Asia, Australia and Oceania, 4th ed. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1985, 2 vols., 1810 pp., Dfl. 600,—, US $ 235.50. Roger Pinto : Au Service Du Droit. Réfixions et Positions 1936—1982. Publications de la Sorbonne, Paris 1985, X V I + 529 pp., 225 FF. Roman Schnur: Einflüsse des deutschen und des österreichischen Rechts in Polen (Schriftenreihe der Juristischen Gesellschaft zu Berlin 45). Walter de Gruyter, Berlin, New York 1985, 25 pp., D M 18,—.

Books Received

South African Yearbook of International Law, Vol. 10 (1984), Verloren van Themaat Centre for International Law, University of South Africa, 358 pp. Björn Stormorken : HURIDOCS Standard Formats for the Recording and Exchange of Information on Human Rights. Martinus Nijhoff Publishers, Dordrecht, Boston, Lancester 1985, X I I + 175 pp., Dfl. 80.00, US $ 26,00. Yuichi Takano : Einführung in das Völkerrecht, Vol. 2 (Japanisches Recht, Gottfried Baumgärtel / Ernst Klingmüller / Boris Meissner / Dietrich Οehler [eds.], Vol. 16). Carl Heymanns Verlag KG, Köln, Berlin, Bonn, München 1984, 362 pp., D M 78,—. Vito Tanzt (ed.): Taxation, Inflation and Interest Rates. International Monetary Fund, Washington, D.C. 1984, 247 pp., US $ 15,—. Thesaurus Acroasium, Vol. X I V (1985), National and International Boundaries. Institute of International Public Law and International Relations of Thessaloniki, Thessaloniki 1985, X V I I I + 905 pp. Raymond Van der Eist / Martha Weser (eds.) : Droit international privé Belge et droit conventionel international, Tome Deuxième, Conflits de Jurisdictions par M. Weser / Paul Jenard. Bruylant, Bruxelles 1985, 656 pp., BF 3.283,—.

PAUL-GUGGENHEIM-STIFTUNG

INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES THE GRADUATE INSTITUTE OF INTERNATIONAL STUDIES

PAUL-GUGGENHEIM-PREIS

Der dritte Paul-Guggenheim-Preis ist im Monat November 1985 an Jean-Pierre LAVIEC

für sein Werk „Promotion et protection

des investissements. Etude de droit international

économique"

verliehen worden. Der Stiftungsrat der Paul-Guggenheim-Stiftung hat beschlossen, einen vierten Preis in der Höhe von Sfr. 12 000.— für das Jahr 1987 auszusetzen. Der Paul-Guggenheim-Preis w i r d in regelmäßigen Abständen dem Verfasser einer völkerrechtlichen Arbeit verliehen, die sich durch ihre Bedeutung und Qualität auszeichnet und das erste wichtige Werk ihres Verfassers darstellt. Es kann sich um ein bereits veröffentlichtes Buch oder um ein zur Veröffentlichung bestimmtes Manuskript handeln, abgefaßt in englischer, französischer, deutscher, italienischer oder spanischer Sprache. Arbeiten, die bereits mit einem ähnlichen Preis bedacht wurden, sind ausgeschlossen. Werke müssen vor dem 31. Januar 1987 bei folgender Adresse eingereicht werden: Institut universitaire de hautes études internationales 132, rue de Lausanne 1202 Genève Das Wettbewerbsreglement kann an derselben Adresse bezogen werden.

List of Contributors BILLINGS, R O G E R D .

JR.

Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University, Kentucky.

BLECKMANN, A L B E R T

Prof. Dr. Dr., Lehrstuhl für öffentliches Recht einschließlich Völkerrecht, Universität Münster.

BOCKSLAFF, K L A U S

Dr. iur., LL.M. (Indiana), Assessor, Kiel.

BOGUSLAVSKY, M A R K

M.

Professor of Law, Member of the Programme Committee and the Executive Committee of the International Association for the Protection of the Industrial Property, Vice President, Soviet National Group of IAPIP.

BULLINGER, M A R T I N

Prof. Dr., Institut für öffentliches Recht, Universität Freiburg, Board of Directors, German National Committee of Comparative Law.

D E L B R Ü C K , JOST

Prof. Dr. iur., LL.M. (Indiana), Präsident der Universität Kiel, Direktor des Instituts für Internationales Recht an der Universität Kiel.

DICKE, KLAUS

Dr. rer. soz., Akademischer Rat am Institut für Internationales Recht an der Universität Kiel.

ERIKSEN,

Research Assistant, Department of Public and International Law, Sub-Department of Human Rights, University of Oslo.

HÂKON

FIEDLER, W I L F R I E D

Prof. Dr. iur., Lehrstuhl für Staatsrecht, Verwaltungsrecht und Völkerrecht, Universität des Saarlandes, Saarbrücken.

GOLDIE, L . F . E .

Professor of Law, Director, International Legal Studies Program, Syracuse University College of Law.

HERMANN,

Assessor, Syndikus der Industrie- und Handelskammer zu Lübeck.

WULF

JENISCH, U W E

Dr. iur., Wirtschaftsministerium des Landes Schleswig-Holstein.

LUDWIG, REGINE

Cand. iur., Universität Kiel.

List of Contributors

555

M Ö L L E R , JACOB T H .

Cand. iur. (Reykjavik), formerly district judge in Iceland, Senior Human Rights Officer at the United Nations Center for Human Rights, Geneva.

OPSAHL, TORKEL

Dr. iur. (Oslo), Professor of Law, University of Oslo, Member European Commission of Human Rights 1970— 1984; Member Human Rights Committee 1977—1986.

PEHLKE, M I C H A E L

Cand. iur., Universität Kiel/München.

PETERSMANN, H A N S G .

Dr. iur., The World Bank (IBRD), European Office, Paris.

PRIESS, H A N S - J O A C H I M

Rechtsreferendar, Universität Kiel.

RAPP, A N G E L A

Cand. iur., Universität Kiel.

R A U C H , ELMAR

Dr. iur., LL.M. (New York University), Counsellor, Federal Ministry of Defense, Bonn. Formerly member of the delegation of the Federal Republic of Germany to UNCLOS III.

RENDTORFF, T R U T Z

Prof. Dr. theol., Institut für Systematische Theologie, Universität München.

SEIFFERT, W O L F G A N G

Prof. Dr. sc. iur., Universität Kiel.

SEPIJLVEDA, CÉSAR

Prof. Dr., Ambassador of Mexico before the Federal Republic of Germany, President of the Inter-American Commission on Human Rights of the OAS, former Professor and Dean of Public International Law of the National Autonomouos University of Mexico.

STOLL, TOBIAS

Rechtsreferendar, Universität Kiel.

WELSCH,

Dr. iur., wiss. Assistent, Universität Göttingen.

HUBERTUS

WENGLER, W I L H E L M

Prof. Dr. Dr. Dres. h.c., Berlin.

WOLFRUM,

Prof. Dr. iur., Direktor des Instituts für Internationales Recht an der Universität Kiel.

RÜDIGER

DE ZAYAS, ALFRED-MAURICE

J. D. (Harvard), Dr. phil., Member New York Bar, Florida Bar, Human Rights Officer at the United Nations Center for Human Rights, Geneva.