German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 36 (1993) [1 ed.] 9783428479436, 9783428079438

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G E R M A N YEARBOOK OF I N T E R N A T I O N A L LAW

V O L U M E 36 • 1993

D U N C K E R

& H U M B L O T

• BERLIN

GERMAN YEARBOOK OF INTERNATIONAL Volume 36 • 1993

LAW

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 36 (1993)

Communications should be addressed to: The Editors German Yearbook of International Law Institut für Internationales Recht an der Universität Kiel Olshausenstrasse 40 D-24098 Kiel

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 36 • 1993

DUNCKER & HUMBLOT / BERLIN

Founders: Rudolf Laun • Hermann von Mangoldt Editors: Jost Delbrück and Rüdiger Wolfrum Assistant Editors: Maureen A. Convery and Stephan Hobe Institut für Internationales Recht an der Universität Kiel

A d v i s o r y B o a r d of the I n s t i t u t e : Daniel Bardonnet rUniversite de Paris I I Rudolf Bernhardt Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg Lucius Caflisch Institut Universitaire de Hautes fitudes Internationales, Geneve

John Norton Moore University of Virginia, Charlottesville Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Warsaw

Antonius Eitel Bonn Luigi Ferrari Bravo Universitä di Roma

Christian Tomuschat Universität Bonn

Louis Henkin Columbia University, New York

Grigorij Tunkin f Moscow State University

Tommy T. B. Koh Singapore

Sir Arthur Watts London

All rights reserved © 1994 Duncker & Humblot GmbH, Berlin 41 Printed by Berliner Buchdruckerei Union GmbH, Berlin ISSN 0344-3094 ISBN 3-428-07943-4

Contents I n memoriam Professor Dr. Wilhelm A. Kewenig Karl M. Meessen: Legal Craftsmanship and Political Vision: Wilhelm A. Kewenigs Contributions to the Doctrine of International Law

9

13

Articles Sir Arthur

Watts : The International Rule of Law

15

Yoram Dinstein : Some Reflections on Extradition

46

Stephan Hobe: Law of Asylum — a Solution to the Migration Problem? A Study Concerning Aspects of Public International and European Law w i t h Regard to Aliens and Asylum under Special Consideration of the Law of the European States and the United States of America

60

Maja Kirilova Eriksson : The Legal Position of the Unborn Child in International Law Maria

Clara Maffei:

86

Evolving Trends in the International Protection of Species

131

Davor Vidas: Antarctic Tourism: A Challenge to the Legitimacy of the Antarctic Treaty System?

187

Barbara Kwiatkowska : Judge Shigeru Oda's Opinions in Law-of-the-Sea Cases: Equitable Maritime Boundary Delimitation

225

I. D. Hendry : The Third Pillar of Maastricht: Cooperation in the Fields of Justice and Home Affairs

295

Michael Newcity : Russian Intellectual Property Reform: Towards a Market Paradigm

328

Current German Legal Developments and International Law Frank Elbe : Resolving the External Aspects of German Unification. The "two-plusfour" process

371

6

Contents

Susanne Walther : Thou shalt not (but thou mayest): Abortion after the German Constitutional Court's 1993 Landmark Decision 385

Reports Ursula Heinz : Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1991 und 1992

405

Johannes Niewerth: Die Tätigkeit der International Law Commission in den Jahren 1991 und 1992

444

Daniela Krantz: Bericht über die Tätigkeit des Europarates im Jahre 1992

461

Tomas H. Sveinsson: Activities of the Nordic Council 1990 - 1992

495

Karl Josef Partsch : New Findings on the Right of Self- Determination for Tibet? . . .

524

Book Reviews Berrisch : Der völkerrechtliche Status der Europäischen Wirtschaftsgemeinschaft im G A T T (Prieß) Bokatola: L'Organisation des Nations Unies et la Protection des Minorites (Partsch)

530 531

Cassese (ed.): The International Fight Against Torture (Delbrück)

534

Schepers: Le Droit federal en Europe (Delbrück)

535

Blanke: Föderalismus und Integrationsgewalt (Delbrück)

536

Staatsrechtliche Auswirkungen der Mitgliedschaft in den Europäischen Gemeinschaften (Delbrück) Wildenmann

538 (Hrsg.): Staatswerdung Europas? — Optionen für eine Europäische

Union (Delbrück)

539

Die E G und die jungen Demokratien in Europa (Delbrück)

540

Deubner (Hrsg.): Die Europäische Gemeinschaft in einem neuen Europa (Delbrück)

541

Contents Dinstein/Tabory

(eds.): The Protection of Minorities and Human Rights (Partscb)

541

Melanges Rene-Jean Dupuy: Humanité et Droit International (Plesmann)

547

The Earth Summit: The United Nations Conference on Environment and Development (Berrisch)

549

Menon: The Succession of States in Respect to Treaties, State Property, Archives and Debts (Titschen)

550

von der Groeben / Thiesing / Ehlermann : Kommentar zum EWG-Vertrag (Prieß) . . Clesse/Vernon

551

(eds.): The European Community after 1992: A New Role in World

Politics? (Hempel) Seidl-Hohenveldern

(Hrsg.): Lexikon des Rechts, Völkerrecht (Hobe)

553 553

Reijnen: The United Nations Base Treaty Analysed (Hobe)

554

Hurwitz: State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects (Hobe)

557

Böckstiegel/Benkö:

Space Law (Hobe)

558

Kugelmann'. Der Rundfunk und die Dienstleistungsfreiheit des EWG-Vertrages (Hobe)

559

Geiger: EG-Vertrag (Hobe)

561

International Boundary Cases: The Continental Shelf (Wolfrum)

562

Mbaye: Les Droits de l'Homme en Afrique (Plesmann)

563

Müller: The Reform of the United Nations (Wolfrum)

564

Petersmann/Jaenicke (eds.): Adjudication of International Trade Disputes in International and National Economic Law (Titschen) 565 Subsidiarity: The Challenge of Change — Proceedings of the Jacques Delors Colloquium 1991 (Schmitz) 570 Scoles/Hay : Conflict of Laws (Bracher)

571

8

Contents

Taylor : The Anatomy of the Nuremberg Trials (de Zayas)

573

Velu/Ergec:

577

La Convention Europeenne des Droits de l'Homme (Partsch)

Books Received

List of Contributors

580

584

I n memoriam PROFESSOR D R . W I L H E L M A. K E W E N I G * 20. 6 . 1 9 3 4 —

t

18. 6 . 1 9 9 3

O n 18 June 1993, Professor Dr. Wilhelm A. Kewenig, L L . M . (Harvard), former director of the Institute of International Law at the University of Kiel, suddenly passed away shortly before his 59th birthday. Wilhelm Kewenig was born on 20 June 1934 in Cologne. He studied law at the University of Bonn and at the American University of Beirut, Lebanon. He received a doctorate in law at the University of Cologne in 1962. His dissertation on „Die Koexistenz der Religionsgemeinschaften im Libanon" (The coexistence of the religious communities in Lebanon) was the outcome of his previous stay and research at the American University. During the following years, Kewenig worked as a research assistant to Professor Ulrich Scheuner at the University of Bonn. The Bonn years, which had a decisive impact on his personal and scholarly development and which resulted in long lasting and close friendships, were considered by Kewenig as a particularly happy and rewarding period of his life. W i t h the help of a research grant from the Deutsche Forschungsgemeinschaft (the German Research Council), Kewenig spent two years at Harvard Law School, where he not only received the L L . M . degree, but also prepared his post-doctoral thesis (Habilitationsschrift) on „Der Grundsatz der Nichtdiskriminierung im Völkerrecht der internationalen Handelsbeziehungen" (the principle of non-discrimination in the law of international trade relations). Under the academic guidance of Ulrich Scheuner, Kewenig received his post-doctoral degree (Habilitation), and shortly thereafter (in 1971) he was appointed to the second chair at the Institute of International Law at Kiel University. He joined Eberhard Menzel in the directorship of the Institute which he had to carry on alone after Menzel fell seriously ill little more than a year later. As co-editor of the Jahrbuch für Internationales Recht he reshaped the Yearbook into what it has become, widely known and recognized as the German Yearbook of International Law. He also continued the series of biennial symposia which had been initiated by Eberhard Menzel and which have brought together German and international law scholars and practitioners ever since. I n a few years time, Kewenig had become an integral part not only of the Institute of International Law but also of Kiel University. In a politically turbulent

10

In memoriam Wilhelm A. Kewenig

time, he was willing to stand for election as Rector of Christiana Albertina, his second academic home after Bonn University. He performed his duties w i t h energy and courage and gained high recognition within and outside the University, and the respect of those who did not share his vision of the role of the university in a time of rapid social change. It was to no small extent his successful performance as Rector which determined much of his future professional life. After he had stepped down as Rector, Kewenig was called to serve on the Wissenschaftsrat (Federal Science Council), a deliberative body advising the government on science policies) and soon was elected to the chair of the Council. I n 1979 he returned to the Institute of International Law and resumed his research and teaching tasks. During this period, he published several important writings on domestic broadcasting law, a field which formed a major research interest, as did international and constitutional law problems of the divided Germany, international economic law, and the legal relationship between Church and State. Kewenigs return to his Institute and chair did not last for long. As early as the 1970s, Kewenig had joined the Christian Democratic Party. He did so out of a sincere sense of the scholar's responsibility to participate in the practical political process of his country. His service in important positions in a number of scientific-political organizations such as the Deutsche Gesellschaft für Auswärtige Politik (German Society for Foreign Policy) and Deutsche Gesellschaft für die Vereinten Nationen (German Society for the United Nations) was indicative of this sense of responsibility. I n addition, he gained important experience in combining scholarly expertise w i t h practical politics when he served in the party platform commission of the Christian Democrats and in the enquete task force of the Deutsche Bundestag regarding a reform of the Basic Law. Thus, already being involved in rebus publicis , it was, in a way, a logical step to agree to serve as a Senator for Science and Culture in the Berlin State Government under Regierender Bürgermeister (Mayor) of Berlin, Richard von Weizsäcker , in May 1981. This first appointment to a high political office was followed by two further appointments to the office of Senator for Science and Research and that of the Senator of the Interior of Berlin. When his party lost the state elections in Berlin at the turn of the year 1989/1990, Kewenig left politics altogether after eight years of actice service. Yet he did not return to academia. Following the example of his long standing friend, F. A. Mann, he decided to become a lawyer. He joined the well known law firm of Hengeler, Mueller, Weitzel, Wirtz in Frankfurt / M., but remained in touch w i t h academic life. He taught courses at Frankfurt University and in the years 1990 —1992 he published several impressive articles in leading law journals on such topical issues as the future of the European Community, the International T i n Council, and legal issues related to the unification of Germany. Thus, Kewenig did not consider his new start in Frankfurt as a clear cut break w i t h his professional past. Rather he saw it as challenge to weave together the different threads of experience, unfolding his rich intellectual and

In memoriam Wilhelm A. Kewenig

personal capabilities in a new way. His sudden death has torn him away from his unfinished work. He w i l l be sorely missed among his friends and colleagues. Jost Delbrück

Legal Craftsmanship and Political Vision: Wilhelm A. Kewenig's Contributions to the Doctrine of International Law By Karl M . Meessen

Wilhelm A. Kewenig (1934-1993) had not been given much time, and some of the time he had been given was absorbed by public office. He served as chair of the German Council of Sciences and as senator in charge first of cultural and then interior affairs in the government of the city state of Berlin. A n d yet Kewenig' s doctrinal contributions to international law, though less numerous than those to constitutional law, are worth remembering. They combine legal craftmanship w i t h political vision. The takeover of the Portuguese overseas province of Goa by India in 1961 is today a nearly forgotten episode in the process of decolonization. Yet it gave Kewenig occasion for a first publication in which he discussed the need to institutionalize the process of peaceful change in situations that, perfectly legal at the time, are bound to change.1 When he wrote that paper, he had largely finished but not yet published his dissertation on the religious communities in Lebanon. 2 His dissertation is an empirical study. To prepare it he spent a year at the American University in Beirut. The book reflects a profound understanding of the delicate balance of power between those independent communities that continue to make up the structure of a unique nation State. I n his opinion, a study of the interaction of the religious communities in Lebanon also sheds light upon the then widely discussed principle of peaceful coexistence in the larger context of the East-West conflict. Another early study, co-authored by Thomas Buergenthal, addresses a linguistic problem resulting from the wording of Article 6 of the European Convention on Human Rights. 3 The unofficial German translation of the term "civil rights", as contained in the official English version, referred to "claims of private law". Kewenig and Buergenthal rightly defended the breadth of the English text and 1

Goa und die Problematik des Peaceful Change, Europa-Archiv 17, 1962, 119. Die Koexistenz der Religionsgemeinschaften im Libanon, 1965. 3 (with Thomas Buergenthal) Zum Begriff der Civil Rights in Artikel 6 Absatz 1 der Europäischen Menschenrechtskonvention, Archiv des Völkerrechts 13, 1966-67, 393. 2

14

Karl M. Meessen

found the equally authentic French text "droits et obligations de caractere civile" not necessarily to be to the contrary. Major portions of his thorough study of intervention and the prohibition of the use of force presented at a symposium in 1971 were later confirmed by the Nicaragua judgment of the International Court of Justice in 1986.4 Some issues, such as the legality of humanitarian intervention, are still open and much debated today. A decade later he returned to that subject, this time concentrating on economic coercion. 5 For a procedural corollary, one might mention his cautious examination of the Security Council's right to adopt binding decisions on a basis outside Chapter V I I of the Charter. 6 His Habilitationsschrift , a second thesis to be presented in Germany to qualify for an academic career, was devoted to the principle of non-discrimination in the international law of trade relations. 7 Regrettably, only volume one was published. It focuses on matters of terminology and structure, and also explains the nonexistence of the principle as a rule of customary international law. The manuscript of volume two, which was to deal with applications of the principle in the G A T T and other treaty law, was never completed. A more recent publication on nondiscrimination in European community law gives an idea of how fruitful a followup would have been.8 A number of symposia initiated, organized and published by Kewenig bear witness to the wide range of his interests in international law. 9 Yet, at least to a German observer, Kewenig is best known for his contributions to the analysis and discussion of the legal status of Germany. 10 I n that discussion, which peaked in the early 1970s, issues of international law and constitutional law were closely interrelated. The events of 1989 and 1990 have now put most of his findings into the realm of legal history. Legal history, however, is of importance, and Kewenig' s studies w i l l prove a reliable guide — easy to read and reflecting sound judgment. 4

Gewaltverbot und noch zulässige Machteinwirkung und Interventionsmittel, in: Völkerrechtliches Gewaltverbot und Friedenssicherung, 1971, 175. 5 Die Anwendung wirtschaftlicher Zwangsmaßnahmen im Völkerrecht, Berichte der Deutschen Gesellschaft für Völkerrecht 22, 1982, 7. 6 Die Problematik der Bindungswirkung von Entscheidungen des Sicherheitsrates, in: Festschrift für Ulrich Scheuner zum 70. Geburtstag, 1973, 259. 7 Der Grundsatz der Nichtdiskriminierung im Völkerrecht der internationalen Handelsbeziehungen, vol. 1: Der Begriff der Diskriminierung, 1972. 8 Niederlassungsfreiheit, Freiheit des Dienstleistungsverkehrs und Inländerdiskriminierung, Juristenzeitung 45, 1990, 20. 9 C / , e. g., Die Vereinten Nationen im Wandel, 1975; Völkerrecht und internationale wirtschaftliche Zusammenarbeit, 1978. 10 Cf., e. g.y K. Doehring / W. Kewenig / G. Ress, Staats- und völkerrechtliche Aspekte der Deutschland- und Ostpolitik, 1971; Auf der Suche nach einer neuen Deutschland-Theorie, Die Öffentliche Verwaltung 26,1973, 797; and numerous papers published in the influential political periodical Europa-Archiv, co-edited by Kewenig for many years.

ARTICLES The International Rule of Law By Sir Arthur Watts

I. Introduction There is a little comfort to be derived from international crises, especially those involving resort to violence. However, some reassurance may be found in the readiness of international statesmen and politicians, in times of such crisis, to acknowledge the importance of the rule of law in international relations and to give it the emphasis which it merits but which, in more peaceful times, it often does not get. Yet the rule of law is more easily invoked than understood. While its fundamental importance is acknowledged and usually taken for granted, it is not a concept w i t h any readily identifiable content — which, of course, contributes to the ease w i t h which it may be invoked, since doing so involves no commitment to any specific consequences. The idea of "law", like that of "justice", is so entrenched in modern political consciousness, internationally as well as internally, that "the rule of law" cannot be other than generally acknowledged as a desirable element of any community's structure: the ambiguity of the concept does nothing to lessen the force of that general acknowledgment. The present purpose is to give some consideration to the possible specific content of the rule of law in the international community, and some evaluation of the extent to which it can be said that an international rule of law exists.

II. Two Preliminary Distinctions 1. " Rules of Law * and " the Rule of Law" The notion of the international rule of law needs to be distinguished from two associated ideas. First, "the rule of law" is something different from "rules of law". A rule of law is a statement of what the law prescribes on some particular matter; and, collectively, the rules of law connote the body of particular rules comprising a legal system as a whole.

16

Arthur Watts

I n contrast to such general body of rules of law, the concept of the rule of law signifies the regulation of the community in accordance w i t h considerations of law and justice; it "connotes a climate of legality and of legal order". 1 It relates more to the underlying characteristics of the community's legal system as a whole than to the content of the rules themselves. While the particular rules of law may be, and often are, changed from time to time, the rule of law involves fundamental principles which may be regarded as characteristic of a legally ordered community. While these characteristics too may change over time, they do so relatively slowly; they thus provide the longterm framework within which such particular rules of law — which may be shortlived — operate. The rule of law thus has a status which may in some cases be expressly constitutional, and which in others is at least quasi-constitutional. This distinction between the rules of law and the rule of law is often blurred by those who, in responding to some international incident by calling for the rule of law to be upheld, are in reality often doing no more than calling for compliance w i t h international law. Compliance w i t h the law, although desirable, is not the same as compliance w i t h the rule of law. 2. International Rule of Law Distinguished from Municipal Rule of Law The second preliminary distinction to be made is between the international rule of law and the rule of law as it exists in national legal systems. It is in the national context that the concept of the rule of law has been most fully developed, at least in certain States. But for at least two reasons these national notions of the rule of law cannot be directly transposed to the international level. First, the purposes which the rule of law serves at the national level — usually involving the protection of the rights of the individual as against an otherwise all-powerful governing authority — are quite different from those which it might be called upon to serve internationally; and second, the more specific requirements of the rule of law often reflect a State's particular historical and constitutional evolution, and differ from State to State. The international rule of law cannot be identified w i t h any one national meaning of the concept, and in this, as in other areas of public international law, 2 principles, concepts and rules of national legal systems are at best an approximate guide to the content of their international analogue.

1

E. C. S. Wade (ed.) in his editorial Introduction to Dicey , Introduction to the Law of the Constitution, 10th ed., London 1960, ex. 2 See generally Oppenheim 7 s International Law, vol. I, 9th ed., Sir Robert Jennings and Sir Arthur Watts (eds.), Harlow 1992, 83, n. 4. See also below, notes 68 - 69 and accompanying text.

The International

Rule of Law

17

That said, however, a brief consideration of two national notions which bear on the general concept of the rule of law is not out of place. For an English lawyer the concept of the rule of law, although originating many centuries earlier, is inseparably linked w i t h the treatment of that concept by A. V. Dicey, in his Introduction to the Study of the Law of the Constitution, first published in 1885.3 He saw the rule of law as one of two features characterising English political institutions — the other, w i t h which the rule of law was "closely connected", being "the omnipotence or undisputed supremacy throughout the whole country of the central government". 4 Under the one expression of "the rule of law", he identified three particular distinct though kindred conceptions. The first was that "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. I n this sense the rule of law is contrasted w i t h every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint". 5 Later, by way of summary, this component was stated as involving "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government". 6 The second component was that "no man is above the law, b u t . . . every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". 7 This too was later summarised as involving "equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts". 8 The third component of the rule of law was that "the general principles of the constitution (as for example the right to personal liberty, or the right to public meeting) are w i t h us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts", 9 and this final component was summarised as involving "the constitution [being] the result of the ordinary law of the land". 1 0 Dicey was, of course, writing about the rule of law as he saw it characterised within the United Kingdom's constitutional structure, and was not offering any 3

See note 1.

4

Id., Id. , Id., Id. , Id. ,

5 6 7 8 9 10

183. 188. 202. 193. 202.

Id. , 195. Id. , 203.

2 GYIL 36

Arthur Watts

18

analysis of universal application, let alone an analysis which might be relevant to the international legal system. Furthermore, even at the time he was writing, his analysis of the rule of law as a fundamental principle of the British constitution was flawed, and developments since 1885 have made it even less accurate. 11 Yet his authority has been such that his treatment of the matter is still regarded as the locus classicus — and not unreasonably so, for although in detail his argumentation and conclusions might be suspect, his emphasis in particular on the rule of law as comprising — put broadly — the absence of arbitrary power, and the subjection of all equally to the ordinary law of the land, is of lasting value. A n analogue of that concept of the rule of law in the English legal system may be seen in the notion developed in Germany's legal tradition that that country constitutes a Rechtsstaat ,12 by which is meant that the State comprises an autonomous legal structure, independent of any particular form or political complexion of its government which applies to all aspects of life within the State and which the government is obliged to support. One of the principal elements of this Rechtsstaat was equality of treatment under the law, requiring that " i n the administration of the law no citizen could be treated differently or bear a greater burden than a fellow citizen", 1 3 and this was matched by a system of administrative courts concerned w i t h the legal relations between citizens and the State and "having the duty to uphold the law as laid down by the legislature and to ensure that all State activity was conducted according to law". 1 4 This underlying concept of the Rechtsstaat predated Germany's current Constitution, the Grundgesetz (or Basic Law) promulgated in 1949. It is, however, expressly reflected in certain provisions of that Constitution, 1 5 particularly Article 20(3) (providing that "[legislation shall be subject to the constitutional order" and that "the executive and the judiciary shall be bound by the law"). The supremacy of the Basic Law as law (and not just, for example, as a political expression of Germany's statehood) is clearly accepted, and the enforcement of that Law is expressly 16 subject to the authority of the Federal Constitutional Court, the role of which in the German constitutional framework has been referred to as "the highest institutional expression of the rule of law". 1 7 11

See E. C. S. Wade's Introduction, id., cxiii ff. See Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Durham / London 1989, 42-43; Richard B'dumlin ,"Rechtsstaat", Evangelisches Staatslexikon, (Eds. Roman Herzog, Hermann Kunst, Klaus Schiaich, Wilhelm Schneemelcher), 3rd Ed., Stuttgart 1987, 2806-2818. 12

13

"

See Kommers, id., 42.

Id. 15 References to the English text of the Basic Law are to the text as published in Amos J. Peaselee, Constitutions of Nations, vol. I l l (revised 3rd ed.), The Hague 1968, 357. 16 See Basic Law, Art. 93, id. 17 Kommers (note 12), 43.

The International

Rule of Law

19

I n fact, many States have in treaties or other international instruments acknowledged their commitment to the rule of law, at least as a feature of their domestic legal systems. 18 This is particularly true of European States. Thus, in the preamble to the Statute of the Council of Europe 1949 19 the signatory Governments acknowledge the rule of law as one of the principles forming the basis of democracy, and Article 3 provides that "every Member of the Council of Europe must accept the principles of the rule of law". The preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 20 records that the signatory Governments "have a common heritage of political traditions, ideals, freedoms and the rule of law" — a reference which the European Court of Human Rights, in the Golder Case (1975), 21 characterised as pointing to the rule of law as "one of the features of the common spiritual heritage of the member States of the Council of Europe" and as showing "their profound belief in the rule of law". 2 2 This widely proclaimed consideration influenced the Court in interpreting the substantive provision in issue before it. 2 3 A similar concern for the rule of law permeates the relationships between European States within the framework of the Conference on Security and Cooperation in Europe (CSCE). Explicit references to the rule of law seem to have appeared for the first time in a major CSCE document resulting from one of the periodic "summit" meetings in the Charter of Paris for a N e w Europe 1990. 24 I n their opening dedication to the building, consolidation and strengthening of democracy in their respective nations, the Heads of State or Government of the States participating in the CSCE process affirmed that democracy "has as its foundation respect for the human person and the rule of law"; 2 5 they also undertook to cooperate "to promote the application of the rule of law", 2 6 and based their need for new institutional structures of the CSCE process in part on their "common

18

Although some of these references to the rule of law may have an international relevance, they remain predominantly relevant to the domestic legal systems of the States concerned. 19 United Nations Treaty Series (UNTS), vol. 87, 103; United Kingdom Treaty Series (UKTS) N o . 51 (1949). 20 UNTS, vol. 213, 221; UKTS No. 71 (1953). 21

International Law Reports (ILR), vol. 57, 201. Id. , 217. 23 See below, notes 76 - 79 and accompanying text. 24 International Legal Materials (ILM), vol. 30,1991, 190. It is to be noted that the CSCE Charter for a New Europe is regarded by the CSCE States as not being a treaty or international agreement eligible for registration under Art. 102 of the U N Charter; see 208. 22

25

Id 194. Id., 199. The "important contribution of the Council of Europe to the . . . principles of democracy and the rule of law" was also recognized, id., 200. 26

2*

20

Arthur Watts

efforts to consolidate respect for human rights, democracy and the rule of law". 2 7 The Declaration adopted on the occasion of the Helsinki Summit 1992 28 reinforced these provisions, the Heads of State or Government including the rule of law as part of their "common aims" 2 9 and in the associated Helsinki Decisions recording their "strong determination . . . to abide by the rule of l a w " . 3 0 Five months before the adoption of the Charter of Paris representatives of the CSCE States had, in the Document of the Copenhagen Conference on the Human Dimension 1990, 31 committed themselves in some detail to observe the rule of law. They recognized the rule of law as an essential element for ensuring respect for human rights, and welcomed "the common determination [of all participating States] to build democratic societies based on free elections and the rule of law". 3 2 They expressed their determination "to support and advance those principles of justice which form the basis of the rule of law", and went on to express the view that "the rule of law does not mean merely a formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression"; 33 they further reaffirmed that "democracy is an inherent element of the rule of l a w " . 3 4 The context of the Copenhagen Conference, 35 and the Document generally, indicate clearly that the rule of law was being addressed as a component of the internal legal order of the participating States, w i t h a view primarily to the enhanced protection of the human rights and fundamental freedoms of individuals within their States, and the development of democratic forms of government. I n the CSCE context it is particularly noteworthy that the rule of law is seen as closely connected w i t h the existence of democracy. This seems to be an expression of the clear policy of the States concerned to do what they can to foster the growth of democratic forms of government, which, given the international (and 27 28

Id. , 206. I L M , vol. 31, 1992, 1385.

29

Paragraph 6, at id., 1390. Id., 1409. 31 I L M , vol. 29, 1990, 1306. See also the Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE 1991, I L M , vol. 30, 1991, 1670. 30

32

I L M , vol. 29, 1990, 1307. Id. , 1307. 34 Id., 1308. 35 The timing of the Conference, coming as it did in the midst of the great political changes taking place in the Soviet Union and in Eastern Europe generally, associated w i t h the demise of the former communist regimes in those States, was a significant part of the background to its deliberations and conclusions. Also to be noted is the reference, in paragraph 5,20 of the Document, to certain contributions having been made "to the rule of law at a national level", at id., 1309. 33

The International

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21

particularly European) political background in the late 1980s and early 1990s, is entirely understandable. But, however legitimate the strengthening of democracy within States may be as a goal of foreign policy, to be secured by whatever lawful means are available, and however much democracy may be a condition conducive to the existence of the rule of law within .States practising that political system, (and its non-existence unhelpful to its full realisation), it must be doubtful whether democracy is itself a requirement of the rule of law within States, and even less so whether it has any such role to play as an element in the international rule of law. Certainly, in the light of the International Court of Justice's assertion that "[e]very State possesses a fundamental right to choose and implement its own political, economic and social systems", 36 the existence of an international requirement that a particular political system, namely democracy, should be adopted is difficult to establish. Apart from such European instruments as those referred to, it should also be noted that much of the general international concern expressed in relation to the protection of human rights is, in essence even if not expressly, a concern w i t h the rule of law, which underlies and informs much of the law relating to human rights. Even though that concern finds expression in numerous international instruments w i t h a wide spread of States parties, their subject matter is essentially a matter of municipal law, since the protection of the human rights of individuals is primarily a matter of the relationships between them and the authorities of the State in question within the framework of municipal law. The rule of law in the human rights context is thus not directly relevant to the rule of law as a factor in relations between States,37 although its persuasive quality and influence is considerable. 38

I I I . International Relevance of the Rule of Law While much consideration has been given to the meaning of the 'rule of law' as a characteristic of the relations between a State and those subject to its jurisdic36

Military and Paramilitary Activities Case, ICJ Rep. 1986, 131. See also to the same effect the third principle of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, G A res. 2625 ( X X V ) of 24 October 1970, G A O R 25th sess., Suppl. 28, 121. Also see Thomas Franck, "The Emerging Right to Democratic Government", American Journal of International Law (AJIL), vol. 86, 1992, 46-91. 37 But as the status of individuals as subjects on international law increases, the rule of law in its application to the position of individuals may be expected to have an increasingly direct bearing on the rule of law in its purely international sense. 38 Also to be noted is the degree to which international concern w i t h the rule of law, in its municipal law context, may underlie the rules of international law relating to the responsibility of a State for "denial of justice" suffered by aliens in its judicial processes.

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tion, particularly in the context of human rights, much less attention has been paid to it as a characteristic of relations between States39 as members of the international community. 4 0 It is therefore necessary to explore a little more closely what the rule of law is about, and whether it is relevant internationally at all. Although some of the requirements of the rule of law may themselves constitute particular rules of law, the rule of law relates less to the substantive content of particular rules of law than to fundamental principles which are characteristic of a legally ordered community and which provide a long-term quasi-constitutional framework within which particular rules of law operate. This structural aspect of the rule of law has an important side-effect in that, being largely disassociated from the substantive content of the law, it is relatively neutral so far as concerns what that content ought to be, and may thus be able more readily to attract a wide range of support within the international community. There is, of course, more to the rule of law than such a structural view of it; yet its substantive meaning is elusive. Dicey more than once referred to the rule of law and the supremacy of the law as meaning the same thing; 4 1 he also referred to "the rule, predominance, or supremacy of law", 4 2 and later used the phrase "the predominance of the legal spirit" as a synonym for the rule of law; 4 3 just over a hundred years later President Mikhail Gorbachev of the Soviet Union referred to "the primacy of international law in politics". 4 4 Both capture the essence of the concept, w i t h its emphasis on the inherent significance of law and legal principles as the regulator of political action; or, as even more succinctly put by a former United Kingdom Foreign Secretary, Sir Geoffrey (now Lord) Howe, "rules rule" 4 5 . 39 As States are the primary and predominant subjects of international law, it is not inappropriate to refer in these pages to relations between States only: while this is convenient for purposes of exposition, it is not to be taken to suggest that other entities (particularly international organisations) are not also subjects of international law, and within the scope of the international rule of law. 40

Among works concerned expressly with the international rule of law see Julius Stone, The International Court and World Crisis, Geneva 1962, Chap. 1; Wilfred Jenks, The Prospects of International Adjudication, London 1964, Chap. 14 ("The rule of Law in World Affairs"); Sir Hersch Lauterpacht, The Function of Law in the International Community, Hamden 1966, Ch. X X ("The 'Specific* Character of International Law and the Rule of Law"); Ann Van Wynen Thomas / A. J. Thomas, A World Rule of Law; Prospects and Problems, Dallas 1975. 41

E. g. Wade (note 1), 184, 187. Id, 187. 43 Id. , 195. 44 Pravda, 17 September 1987. See also the speech by the Soviet Union's Foreign Minister, Edvard Shervardnadze, on 27 September 1988 at the 43rd session of the U N G A , U N Doc. A / 4 3 / P V . 6 , 68, and the speech of President Mikhail Gorbachev, on 7 December 1988 during' the same session, U N Doc. A / 43 / PV.72, 22. 42

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Yet the supremacy of the law is not, by itself, a sufficient indication of what the rule of law involves, since the law which is to enjoy supremacy may itself be unjust and oppressive; the supremacy of such a law is not what is meant by the rule of law. It is necessary to add to the notion of the rule of law the need for the law itself to be consistent with fundamental notions of justice. Although when considering the rule of law in its municipal law context that element may often be taken for granted, it is important in the international context, where common ground as to the proper role for the law is less evident, to acknowledge, explicitly or implicitly, that the need for the law to be just is an essential part of the rule of law. Seen in that light, the concept of the rule of law can be placed in a much broader historical and political perspective. It is part of the much wider problem of establishing limits to the potentially absolute power of those who exercise authority within a community, w i t h roots going back to medieval (and earlier) notions of natural law. The rule of law is the counterweight to political power; together they establish a balance in which the exercise of power is subject to legal constraints which ensure that power is not abused. The rule of law is thus at the crossroads of law and politics: "[n]o legal system operates, or can operate, in a political vacuum; no political system can provide good government, ensure justice, or preserve freedom except on the basis of respect for law". 4 6 I n municipal law the balance has to be struck between, on the one hand, the rule of law and, on the other, the sovereignty of the political authority of the State, be it Monarch, or President, or Parliament, or whatever other body possess that supreme authority under the State's constitution. The international community has no equivalent legally established superior authority, neither any State or group of States, nor yet any international organisation. The sovereignty of a "sovereign State" is descriptive of its internal status: internationally it is essentially a negative quality, in that it signifies that the State does not have sovereignty or authority over other States, and is not legally subject to the sovereignty or authority of any other State or other source of external power but is independent of them. This rejection by States, derived from their sovereign independence, of any superior external authority formerly encouraged assertions that the legal authority of States in relation to the outside world was essentially unrestricted; and it is thus the sovereign independence of States which needs to be balanced by the international rule of law.

45

Sir Geoffrey (now Lord) Howe , "The Role of International Law in World Affairs", International and Comparative Law Quarterly (ICLQ), vol. 33, 1984, 739; and "The Role of International Law in the Conduct of Foreign Affairs", International Law Association, Report of the Sixty-Fourth Conference, 1990, 120. 46

Wilfred

Jenks, The Prospects of International Adjudication, London 1964, 757.

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Acceptance of the need for significant restraints upon the freedom of action of States may prove to be one of the twentieth century's more valuable achievements. These restraints, which are as much political as legal, have been particularly notable in two areas: resort to armed force for the settlement of international issues has come to be no longer an internationally acceptable option for States, and increased world-wide concern w i t h human rights has eroded the "domestic jurisdiction" shield behind which States used to be able to shelter. The ever-growing interdependence of States increasingly makes it impossible for States to be wholly unaffected by the consequences, either political or economic, of actions by or confrontations between other States. To the extent that the primary concern of States is w i t h increasing their own prosperity and safeguarding their own security, the preservation of international peace and security is not just altruistically desirable, or a moral imperative, but is in the direct national interest of each State. O n l y in such conditions of stability can the conditions be established for increased prosperity and security, whether of individual States or of the international community as a whole. While stability might be thought to be attainable through the imposition of sufficient force — some dictatorships have been notably stable, at least for a time — it does not appear to be an option which offers any satisfactory long term prospect of success (as the ultimate fate of oppressive dictatorships has tended to show). I n the modern world the kind of overwhelming military power which could in earlier centuries, and at least at a regional level, have been brought to bear to achieve a large measure of international stability (in the interests, of course, of the States wielding that overwhelming power) is no longer available; 47 nor is its use politically acceptable to the international community of States. The rule of force is ultimately a recipe for anarchy, which is the antithesis of stability. The rule of force also affords States no basis for securing their interests. This is particularly true of weaker States, who would be especially vulnerable in a world ruled by force alone and who by contrast, have a particular interest in the safeguards offered by an effective international legal order; but it is also true of medium-sized States, and even, ultimately, of the very small number of most powerful States. Since few States are strong and many are weak, and since none 47 Those States w i t h nuclear weapons do in a sense possess overwhelming military superiority, at least against other States which are not so armed, but in most practical respects those weapons are unusable because of both the likely unpredictability and seriousness of the consequences of their use. Apart from those weapons, the apparent military superiority of certain States has to be balanced against the much greater material damage which can now in response be inflicted on them militarily even by States which may seem militarily insignificant; and since militarily powerful States w i l l also be commercially powerful, w i t h probably world-wide interests, they have that much greater exposure to risks of non-military countermeasures.

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is strong at all times (the power of even the greatest States and empires has waxed and then waned) the self-interest of all States cannot find long term comfort in the rule of force. The creation of international stability, the avoidance of international anarchy, and the protection over time of the interests of all States, the strong as much as the weak, require that their relations w i t h each other be subject not to the rule of force, but to a long-term framework which ensures that the international community is so ordered that the rules of international law are applied (to borrow the language of the United Nations Charter) " i n conformity w i t h the principles of justice". 48 It is this framework which the international rule of law seeks to

I V . Requirements for the International Rule of Law The international community thus stands in need of the rule of law in much the same way as do national communities. Although it is not mentioned expressly in the Charter of the United Nations, which gets no closer to that concept than references to "justice", 4 9 the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance w i t h the Charter of the United Nations, which was adopted by the General Assembly in 1970, referred to "the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations". 5 0 To identify the rule of law as requiring a particular legal ordering of affairs within a community, and in particular the international community, leaves unanswered the question as to the conditions which have to be met for the rule of law to exist. Quite what the international rule of law requires is far from clearly established; it remains, perhaps to an even greater extent than in the context of municipal law, a concept w i t h no clearly defined content. 51 Certain elements of an acceptable international rule of law may nevertheless be suggested with some 48

U N Charter, Art. 1 para. 1, Documents of the U N Conference on International Organization San Francisco, 1945, vol. 15, London 1945, 335. 49 Preamble; Art. 1 para. 1; Art. 2 para. 3, id. 50 G A Res. 2625 (note 36). 51 I n addition to such content as may be derived from translating on to the international plane the kind of municipal law understandings of the concept referred to above (notes 3 17 and accompanying text), note also the definition given by Ann Van Wynen Thomas / A. J. Thomas (note 40), 8: "These then are the attributes of a true rule of law: a society or community consensus seeking to secure justice — that which is felt to be right, reasonable, and proportionate for a particular time and place; and order, which requires continuity, certainty, consistency — a balance between rights and restraint on power, plus the ability to meet changing conditions". The authors emphasised that the twin goals of order and justice both needed promoting, with neither being given priority over the other.

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confidence that they are generally acknowledged by the States members of the international community as necessary elements in any acceptable system for regulating international relations by the application of legal rules. T w o prerequisites for the rule of law should however be noted at the outset, being not so much elements of it as factors which, if lacking, make discussion of the rule of law somewhat beside the point. The first is the existence of a sufficiently cohesive group of putative subjects of the rule of law to justify them being regarded as constituting a community. The second is the existence of a body of rules acknowledged as law governing the conduct of the members of that community and forming the legal basis for relations between them. For present purposes the 200 or so States of the world can be taken as constituting a sufficiently cohesive international community, and there need be no doubting the existence of a body of rules of public international law providing the legal basis for the conduct of international relations between those States. Turning to the elements which are necessary if the rule of law is to obtain in the international community, several may be suggested. Certain of them, however, are more fundamental than others, and it is these which are considered further below. 1. Completeness and Certainty of the Law There are certain characteristics which the law itself should possess, namely completeness and certainty. That there is a body of rules of law is an assumption which underlies any discussion of the rule of law. The question arises, however, as to how extensive the scope of those rules must be, and whether it is sufficient for the existence of the rule of law for rules to exist covering only certain limited matters or whether legal rules must exist which govern all situations. There seems little room for doubting that before the rule of law can be said to apply fully within a community, the law must be capable of governing all situations which might arise within it, and that accordingly the courts must be able to decide on the basis of applicable law all cases brought before them. As the I L O Administrative Tribunal expressed it in Desgranges v. International Labour Organisation , " [o]ne of the fundamental tenets of all legal systems is that no court may refrain from giving judgment on the grounds that the law is silent or obscure". 52 To allow that there may be areas from which the law is excluded is to allow that such "no law" areas w i l l be left to be regulated in other ways — which could perhaps include the arbitrary dictates of an absolute ruler, or the exercise of force; whenever social order is maintained in such a way, it cannot be said to derive from the rule of law. 52

ILR, vol. 20, 1953, 523, 530.

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Whether international law possesses the necessary quality of completeness is a question which is easier to answer now than was once the case. There was at one time a disposition to maintain that rules of international law only covered those matters where State practice or treaties had led to the development of particular rules, and that beyond those matters no applicable rule of international law existed. O n this view a court faced w i t h an issue which in its view international law simply did not regulate could, and indeed had no alternative but to, declare a non liquet. While the matter is not wholly beyond argument, and involves several difficult questions, international law has come increasingly to be regarded as a complete legel system in which "every international situation is capable of being determined as a matter of law , either by the application of specific legal rules where they already exist, or by the application of legal rules derived, by the use of known legal techniques, from other legal rules or principles". 53 Acknowledgment of the completeness of international law owes much to the recognition of general principles of law among its sources, and to the influence of equity upon its development. There is another aspect to completeness which must not be overlooked. N o t only must the law be capable of governing all situations which might arise within a community, it must also apply to all members of that community: indeed, this latter requirement is probably inherent in the former since "all situations" w i l l include those involving any of the community's members. The universality of international law is, like its completeness in the sense first discussed, easier to assert now than it was in the past. Although the international community within which modern international law developed consisted of the old Christian States of Western Europe and international law in its origins was confined to those States, the community has now become universal in scope and so has the reach of international law. Although particular rules of international law are sometimes limited by their terms or context to certain States only (thus rules about the rights of land-locked States are almost entirely applicable only to such States and those en route to their maritime outlets), many particular rules, especially of customary international law, are of world-wide application; but it is the international legal order whose universality is important and unquestioned, rather than that of particular rules. The completeness of the law is not by itself sufficient if the law, however complete in the senses discussed, is so undeveloped and uncertain as to make recourse to it something of a lottery (and 'recourse', it may be noted, is not just

53 Sir Robert Jennings / Sir Arthur Watts (note 2), 12 -13, and works cited there, particularly Sir Hersch Lauterpacht, The Function of Law in the International Community, 1933, 51135, and Collected Papers, vol. I, 1970, 94-98; see also Hugh Thirlway, "The Law and Procedure of the International Court of Justice 1960 -1989", British Yearbook of International Law (BYBIL), vol. L X , 1989, 76-92.

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a matter of a State seeking vindication of its rights before a tribunal, but also includes its reliance on the law in deciding upon its international actions, and in discussion and negotiation w i t h other States). The rule of law thus also requires that the general body of the law should have attained a sufficient degree of development to be certain. A n important consequence of certainty of the law is that the outcome of reliance upon the law is to a large degree predictable, which it cannot be if the law is uncertain (or if arbitrary power is not excluded). This in turn is an important factor in establishing confidence in the law, and also in encouraging that stability in the affairs of the community which it is part of the function of the rule of law to create. Neither certainty nor predictability can be absolute. A n y legal rules are (if they are rules of law properly so called) drawn up so as to apply to situations generally, and inevitably allow room for argument when it comes to applying them to particular situations. Furthermore, deficiencies of language, and the imperfections of foresight, are likely to create the possibility of ambiguity in most legal texts, when they come to be measured against the infinitely variable circumstances of life. International law suffers from such uncertainties like any other legal system. But it must be said w i t h international law that there are added reasons w h y its rules can aspire to only a relative degree of certainty. Those rules are, first, to a considerable extent based upon inferences drawn from the conduct of States; customary law, while in general terms clear enough, is notoriously imprecise at the level of detail which is needed to dispose of particular problems. The same may be said for those "general principles of law recognized by civilized nations" which form another of the sources of international law. Second, international law has no central legislator, nor any legislative process in the normal (municipal) sense of the term; its norm-creating process is essentially decentralised, and so far as international conferences or meetings within international organisations may produce quasi-legislative texts the outcome represents "legislation" by negotiation and compromise, which is not a process calculated to produce precision and clarity. Third, while certainty and predictability are greatly assisted by a general body of law being available in an up-to-date and readily accessible form, international law is considerably deficient in this respect. While collections of State practice are increasing, it is still only the practice of a relatively few States which is available in this way; in any event it is the distillation of this practice, and that of States generally, into authoritative statements of customary law which is needed, but which is lacking. The content of the "general principles of law" is similarly far from being established in any authoritative compilation. Many States publish collections of their own treaties, usually in annual volumes, but these are often

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a less than complete collection of the written texts giving rise to those States' international rights and obligations, and not all States publish such collections; the international collections of treaties, such as the many volumes of the United Nations Treaty series, are not a complete collection of all treaties, and are seldom up-to-date. Similarly, reports of judicial decisions of national courts bearing on issues of international law are not available from all States, although collections of judicial decisions (such as the over-90 volumes of the International Law Reports and its predecessors covering the period since 1919) have steadily increased the scope of their coverage. The role of writers on international law may, for want of anything better, accordingly be greater in the presentation of the overall content of international law than is the case w i t h other systems of law; but whatever the reputation of such writers, their works inevitably lack that degree of true authority which, in municipal law, is possessed by official, or officially approved, statements of the law and collections of legislative texts and law reports. Certainty, and w i t h it predictability, do not imply that the law has to be static and unchanging. Indeed, from the point of view of the international rule of law it is important that there be a generally acceptable process whereby international law may evolve to meet the changing circumstances faced by the international community. The general body of the law must also be acceptable to the generality of the international community, and the possibility must accordingly exist of change so that the law may properly represent the interests of all sectors of the international community. Undoubtedly, international law does change, in detail as well as in general direction. Comparison of major areas of the law as they are generally regarded as standing today and as they were considered to stand twenty or thirty years ago amply demonstrates the extent to which change has taken place. However, the processes by which such changes take place are neither reliable nor straightfoward. N o truly legislative changes are possible, given the absence of any legislator: and even so-called "law-making" treaties w i l l usually lack universality, and are frequently slow to enter into force. Customary international law is generally an unsatisfactory instrument of change, since it tends to be slow and unresponsive to all but the most pressing needs (and even then may be inadequate), and is often influenced by the practice of a relatively small number of States rather than that of the totality of the international community. Some evolution of the law takes place through the impact of decisions of international judicial tribunals, particularly the International Court of Justice, but this mechanism for change suffers from the relative infrequency w i t h which disputes are submitted for judicial settlement, the haphazard choice of subject matter of such disputes which are submitted, and the uniqueness of the facts of most international disputes which may make the ensuing judicial decision less compelling as a contribution to the general development of the law.

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Whatever change may be possible in international law, an important aspect of the certainty and predictability of the law is that States should be able to rely on the law which was the basis for their action remaining the same when the lawfulness or legal consequences of those actions comes later to be in question. While the law may change, changes should be prospective rather than retrospective; the non-retroactivity of laws is an important element of the rule of law. W i t h few exceptions 54 , international law incorporates safeguards against the retroactive application of new rules of international law. This is easier to achieve in the case of treaties, where express provision to that effect can be, and frequently is, included in the treaty, than in the case of developments in customary law; but these are generally so slow in coming about that States have plenty of time in which to adjust their legal positions to take account of the changed law. I n relation to situations which are already completed and then become the subject of legal dispute, the concepts of the 'inter-temporal law' and, in judicial proceedings, the 'critical date', help to isolate past events from the legal impact of subsequent changes in the law. 2. Equality before the Law The requirement that, for the rule of law to exist, all subjects of the law must stand as equals in the eyes of the law has a fair claim to being of primordial importance. 55 It is difficult to conceive of a community being regarded as observing the rule of law but in which it was accepted that certain categories of its members had, in the application of the law, a lesser or greater standing than others. Equality itself, in any absolute sense, is not of course here the issue. The circumstances of history and geography and economics combine to make any true all-embracing equality of States an unrealistic ideal w i t h no reflection in the real world. They are, and are inherently, unequal in political and economic wealth and power, in military strength, in population, in natural resources, in climatic characteristics, and so on: indeed, it may be said that one of the distinguishing characteristics of States is not so much their equality as the uniqueness of each of them in their differences from one another.

54

These include the overriding effects of the U N Charter as a result of Art. 103, and the application of new rules of ius cogens to preexisting situations. 55 Equality before the law is firmly established as a requirement in the context of the human rights of individuals within States. See e. g.y Universal Declaration of Human Rights, (Art. 7 and Art. 10) G A res. 217 (III) of 10 December 1948, U N Doc. A / 810 (1948) at 71; International Covenant on Civil and Political Rights, (Art. 14 (1) and (3) and Art. 26) G A res. 2200 ( X X I ) of 16 December 1966, U N G A O R 21st sess., Suppl. 16 at 52, U N Doc. A / 6316 (1966), U N T S vol. 999, 171; American Convention on Human Rights 1969, (Art. 24) I L M , vol. 9, 1970, 673.

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Such differences and inequalities need not, however, extend to the standing of States in the eyes if the law, and in the application to them of particular rules of law. However large and powerful, or however small and powerless, each State — if the rule of law is to prevail — must in that one respect at least be treated equally w i t h all others. That equality of States is reflected in the principle of the sovereign equality of all States. This does not mean that all States are in all respects equal — manifestly they are not, and cannot be. What it does mean is that since all States are sovereign, they are thus neither subject to any external authority nor themselves the possessors of authority or pre-eminence over other States, and are accordingly in those respects in principle legally equal w i t h one another as members of the international community. The sovereign equality of all of the Members of the United Nations is one of the Principles of the United Nations, set out in Article 2 para. 1 of the Charter. Broadened so as to apply to all States even if not Members of the United Nations, that principle was one of the seven principles of the Charter established as "basic principles of international law" by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance w i t h the Charter of the United Nations, which was adopted by the United Nations General Assembly in 1970. 56 The elaboration of that principle stipulated, inter alia that " A l l States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. I n particular, sovereign equality includes the following elements: (a) States are juridically equal . . . " . Earlier, in 1949, the International Law Commission had provided, in Article 5 of its Draft Declaration on Rights and Duties of States, that "Every State has the right to equality in law w i t h every other State". 57 Equality of States in the application to them of rules of law does not require that all rules must apply in the same way to all States. It is not inconsistent w i t h the rule of law that some rules may only apply to States w i t h certain qualifications or within certain categories: thus some rules only apply to States w i t h a maritime coastline, others apply only to States engaged in an armed conflict, and so on. It is the application to all States equally of rules of law according to their terms which must be achieved: all States which come within the scope of a rule of law must be treated equally in the application of that rule to them. There must, in other words, be uniformity of application of international law and no discrimination between States in their subjection tb rules of law which in principle apply to them. 56

See G A res. 2625 (XXV) of 24 October 1970 (note 36).

57

Yearbook of International Law Commission (YBILC), 1949, 288.

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Apart from its significance for the application of international law, the sovereign equality of States has a number of other siginificant consequences for the international legal order. Thus it suggests that States are not only equal in the application of the law to them, but also that they should have equal standing in the formulation of rules of international law, including the making of changes to the law — a consideration which is less easy to satisfy in relation to customary international law (where the practice of those States w i t h a direct practical interest in the subject matter is likely to have a predominant influence) than it is in relation to treaties (where the one-State-one-vote rule generally applies to major international treatymaking conferences). While there are exceptions to the formal equality of States in the international political process (as shown, for example, by departures from the requirement of unanimity in many voting procedures, and by the weighted votes given to some States in certain contexts), the general application of the principle of sovereign equality of States can be seen as the legal basis for the international community's analogue of the democracy which characterises many national political systems. A final general consequence of the sovereign equality of States which may be noted is that since it excludes the existence of any external legal power over States, international law has to be essentially consensual; even the authority apparently exercised over States by the Security Council by virtue of the mandatory quality which certain of its decisions have even for States not participating in (or even voting against) those decisions is, on analysis, the result of consent given by States when becoming members of the United Nations. 5 8 3. Absence of Arbitrary

Power

Central to the rule of law is the absence of arbitrary power. There is indeed a sense in which other elements comprised within the general concept of the rule of law serve primarily to establish the conditions in which this central element can be realised. Apart from a brusque rejection of any such notion as law in international relations, the possibility of broadly based arbitrary powers comes primarily from one view of the significance of the sovereign independence of States. Since that legal concept involves the absence of external authority over a State, 59 so it may seem to follow as a matter of law that the State is not subject to any external 58 The same is true of other international bodies with apparently "supra-national" powers. Yet it would be wrong to be excessively formal in this matter. International constitutional instruments are not arid texts, but are capable of evolution. The gradual growth, in some instances, of international powers substantially divorced, save for perhaps the barest residual formal token of some original consent, from the current consent of the States in respect of which they are exercised is not to be excluded. The basis' for the authority of international law may in time move from consent to compulsion. 59 See above notes 46-47 and accompanying text.

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(i. e. international) legal constraints, and therefore that it is legally free to act arbitrarily if it chooses. I n a more limited way, two other lawful possibilities of arbitrary power could arise from lacunae in the law, or from legal rules which themselves allow arbitrary (or at least discretionary) action in certain fields. The first two of these possibilities may be dismissed. The sovereign independence of States operates within, and not outside, a legal framework; there is no doubt that States are subject to international law and that all States accept that that is so. O n l y if that law itself allows for arbitrary action can such action be considered lawful. It does not do so by way of there being lacunae in the law; as has been seen,60 international law is a complete legal system which admits no 'no law* areas. International law, however, still acknowledges that a State may engage in some acts which are legally unchallengeable; examples include refusal to grant agrement to a person proposed as an ambassador by a foreign State, 61 and the declaration that a foreign State's ambassador or member of its embassy's diplomatic staff is persona non grata. 62 There may, however, be a discernible trend to limit areas in which international law allows a State to act at its pleasure without having to account for its actions internationally. This has been particularly evident, for example, in relation to a State's treatment of aliens, where its former freedom of action to refuse admission to aliens, and to expel them, has become greatly constrained by the acknowledgment of State responsibility for arbitrary expulsions and by the impact of human rights law. It is, of course, the case that States on occasion act in breach of the law, and perhaps even sometimes in complete and wilful disregard of the law. However, just as the rule of law has to be distinguished from observance of the law, so the rule of law cannot require that States never break the law; nor do breaches of the law necessarily involve arbitrary action. What the rule of law requires is that in their international relations States conduct themselves within an essentially legal framework; it is action which is despotic, capricious, or otherwise unresponsive to legal regulation which is incompatible w i t h the international rule of law. The exclusion of arbitrary State conduct is not straightforward, and, like other components of the rule of law, is not one which can be insisted on in absolute terms. It is inevitable, if only to allow for some flexibility in applying the law to particular circumstances, that some rules of law must in some circumstances allow for the exercise by States of choices of action determined by considerations of policy and judgment alone, rather than by the application of legal rules or compliance w i t h legal requirements. Such liberty to act at pleasure is often referred 60

See above notes 52 - 53 and accompanying text. See Vienna Convention on Diplomatic Relations 1961, Article 4, UNTS, vol. 500, 95; UKTS N o . 19 (1965). 61

62

Id., Art. 9.

3 GYIL 36

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to as a discretion, and the line between discretion and arbitrariness is not sharp: "wherever there is discretion there is room for arbitrariness , \ 63 Normally the principal distinction between them is that while an arbitrary power is one exercised outside the scope of any legal restraint at all, a discretion must normally be exercised within limits established by the law itself and, in the last resort, enforceable through the law. Nevertheless, while such a distinction is in principle clear enough, the borderline between discretion and arbitrariness can in practice become very blurred, particularly if the limits within which discretion may be exercised are wide. A further distinction between discretion and arbitrariness is that the latter has overtones of conduct carried to extremes; arbitrary action is not just action which is not subject to rules but is also action which has about it a flavour of despotism or the exercise of absolute power. This question arose (in the context of the law of Italy) before the International Court of Justice in the Case Concerning Elettronica Sicula S.p.A. (ELSI), 64 where the Court needed to consider whether a requisition measure taken by the relevant Italian authorities was arbitrary within the meaning of a bilateral treaty provision that the "nationals, corporations and associations of either H i g h Contracting Party shall not be subject to arbitrary or discriminatory treatment". 65 The Court found that arbitrariness "is a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety". 6 6 The facts found by the Court showed that the requisition order made by a local authority "was consciously made in the context of an operating system of law and of appropriate remedies of appeal, and treated as such by the superior administrative authority and the local courts. These are not at all the marks of an "arbitrary" act." 6 7 The Court also noted two important distinctions which need to be drawn in this context. The first is that between action in breach of the law and action which is arbitrary; while the unlawfulness of an act may well be relevant to an argument that it was also arbitrary, "by itself, and without more, unlawfulness cannot be said to amount to arbitrariness ... To identify arbitrariness w i t h mere unlawfulness would be to deprive it of any useful meaning in its own right". 6 8 The second 63

Dicey (note 1), 188. ICJ Reports, 1989, 15. 65 See text at id. y 72. 66 Id., 76. I n the De Wilde , Ooms and Versyp Cases ( The {Belgian Vagrancy Cases') — Merits (1971), ILR, vol. 56, 351, the Collective Separate Opinion of five of the Judges of the European Court of Human Rights said that an "act is arbitrary when it violates in a serious and obvious way a legal rule or again when it is devoid of all serious justification", at 413-414. 64

67 68

ICJ Reports, 1989, 77. Id., 74.

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distinction is that between the meaning of terms in municipal law and their meaning in international law, and in particular the meaning of "arbitrary". Referring to the possibility that an act might be found by a municipal court to be unjustified, or unreasonable, or arbitrary, the Court noted that it does "not follow from [such] a finding . . . that that act is necessarily to be classed as arbitrary in international law, though the qualification given to the impugned act by a municipal authority may be a valuable indication". 6 9 The Court not only defined what was meant by arbitrary action, but also made clear the antithesis between such action and the rule of law. As the Court put it, "[arbitrariness is not so much something opposed to a rule of law, as something opposed to the rule of law". 7 0 I n saying this, the Court referred back to its earlier decision in the Asylum case, where the Court had spoken of "arbitrary action" being "substituted for the rule of law". 7 1 The Court was in that case noting that although normally the grant of diplomatic asylum cannot be opposed to the operation of justice, there could be an exception to that rule only if, in the guise of justice, arbitrary action was substituted for the rule of law, as would be the case if the administration of justice were corrupted by measures clearly prompted by political aims: "asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents"; 72 the grant of safety to political offenders "means that the refugee is protected against arbitrary action by the government, and that he enjoys the benefits of the law", but "cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals". 73 4. Effective

Application of the Law

Completeness and certainty of the law as between States which are equal before the law, and the exclusion of arbitrary power, are not of themselves sufficient to establish the rule of law. When the occasion arises the law has to be effectively applied — itself a powerful inhibitor of arbitrary action and breaches of the law. It is in this area that the difference between the international and municipal legal systems is perhaps most marked; in the latter one is accustomed to a situation in which "remedies . . . follow smoothly from the exercise of compulsory jurisdiction", 7 4 but the international legal system has neither true compulsory jurisdiction nor 'smoothly flowing' consequential remedies. 69 70 71 72 73

*

Id. See also note 2 above. Id. , 76. ICJ Reports, 1950, 284. Id. Id.

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It is perhaps convenient to distinguish between three different aspects of 'effective application' of international law. First there is the ability of a State which finds itself w i t h a legal difference w i t h another State to have recourse to a judicial tribunal to have that difference resolved. Second is the ability of the international community to ensure that if a State refuses to comply w i t h the law, the law can nevertheless be enforced against it. Finally, and in practice in many ways the most important, is the regular application of the law by States in their day-to-day dealings w i t h each other as part of the regular pattern of their international relations. a) Judicial Settlement The ability of a State to have recourse to an impartial and independent 75 judicial tribunal openly applying known legal rules in order to determine what the law is and so resolve its legal disputes w i t h another State is fundamental to the existence of the international rule of law. Such disputes, involving States each of which is pursuing its own legal interests, are analogous to civil litigation in municipal law. While making due allowance for the dangers of translating the position in municipal law into that in international law, the observations of the European Court of Human Rights in the Golder Case76 are relevant. There the Court found that " i n civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts" 7 7 : the "principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally "recognised" fundamental principles of law". 7 8 Were it to be assumed that a State had the right to abolish its courts or deprive them of jurisdiction to determine certain classes of civil actions, such assumptions were seen by the Court as having serious consequences which were "repugnant" to those principles, as well as being "indissociable from a danger of arbitrary power". 7 9 Those remarks, mutatis mutandis , carry weight at the international level.

74 Sir Geoffrey (now Lord) Howe , "The role of International Law in the Conduct of Foreign Affairs", International Law Association, Report of the Sixty-Fourth Conference, 1990, 111. 75 The practice of ensuring, if necessary by ad hoc appointments, that international tribunals (including the International Court of Justice) include members having the nationalities of the States in dispute detracts from the ideal of justice independently and impartially administered, and being seen to be so administered. 76

ILR, vol. 57, 201. Id. , 217. 78 Id. The Court's reference to principles which were "recognised" appears from the context to be a reference to that term in the phrase "general principles of law recognized by civilized nations" in Art. 38, 1 (c) of the Statute of the ICJ. 77

79

A t 218. The Court was concerned with an argument that although Article 6 of the European Convention described procedural guarantees to be afforded the parties in a pending

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The existence of an international judicial structure capable of dealing w i t h all legal disputes between States is not in doubt. Apart from ad hoc tribunals, and tribunals established under particular bilateral or multilateral treaties to deal w i t h disputes in accordance w i t h the terms of those treaties, there is at the international judicial summit the International Court of Justice at The Hague. So far as States are concerned, the Court's contentious jurisdiction is plenary: under Article 36 (1) of the Court's Statute its jurisdiction "comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force". Access to the Court is similarly, in practice, open to all States — and, in contentious cases, only to States (Statute, Article 34 (1)). The Court is open to the States which are parties to the Court's Statute (Statute, Article 35 (1)), and this includes all States which are members of the United Nations ( U N Charter, Article 93 para. 1), as well as certain non-member States on conditions determined in each case by the General Assembly upon the recommendation of the Security Council ( U N Charter, Article 93 para. 2); the Court is also open even to States which are not parties to the Court's Statute, on conditions laid down by the Security Council (Statute, Article 35 (2)). It is not, however, the potentially comprehensive scope of the Court's competence either as to subject matter or as to States as parties which is in question, but the compulsory nature of its jurisdiction. As is well-known, the Court's contentious jurisdiction in all cases requires the consent of the States whose dispute is to go before the Court; in effect, this requires in particular the consent of the putative defendant State, since the putative plaintiff State's consent is evident from its wish to take the matter to the Court. A reluctant defendant State can, therefore, prevent a dispute being referred to the Court — or indeed to any other form of judicial or arbitral settlement, for example by an ad hoc tribunal, since any such reference is similarly subject to the defendant State's consent. Such a purely consensual basis for the judicial settlement of legal disputes cannot be satisfactory in terms of the rule of law. The position is to some extent mitigated by the State's consent not necessarily having to be given in relation to the particular dispute which has arisen w i t h another State; it may sometimes be given in advance in relation to future disputes falling within certain categories. This possibility is, in particular, open in relation to the International Court of Justice under the so-called 'optional clause' embodied in Article 36 (2) of the Court's Statute. Under this provision, States may "declare that they recognize as compulsory ipso facto and without special agreement, in lawsuit, it did not say in terms that an individual had to have a right of access to a court. The Court rejected this argument, holding that a "right to a court" was inherent in the right stated in Article 6.

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relation to any other State accepting the same obligation, the jurisdiction of the court in all legal disputes" concerning certain matters which, taken together, are virtually all-embracing. The need for the other State to have "accept[ed] the same obligation" is, in addition to the possible condition of reciprocity imposed under Article 36 (3), a significant limitation upon the effectiveness of this provision, and even more so has been the practice of many States which have made the required declaration under Article 36 (2) to qualify its scope w i t h various, and sometimes quite extensive, reservations. Similar commitments, given in advance, to submit certain disputes to the International Court of Justice or to some other judicial or arbitral tribunal are included in many treaties, both bilateral and multilateral, but usually limited to disputes arising from the subject matter of the treaty. I n some cases the obligation under such dispute settlement provisions is optional and States party to the treaty may choose whether or not to accept it, while in other cases it is an integral and unavoidable part of the treaty; but even in this latter case the dispute settlement obligation does not create a truly compulsory jurisdiction, since it depends on the consent of the State given by its consent to be bound by the treaty. The problem, in short, w i t h the judicial settlement of international disputes lies less w i t h the lack of appropriate international judicial machinery, than w i t h its only partial acceptance by States. The consensual nature of the international judicial settlement process is coupled w i t h the general reluctance of States to make use of the ample judicial machinery available, and in particular to commit themselves in advance to the judicial settlement of their international disputes. b) Enforcement Turning to the enforcement of the law against States which refuse to comply w i t h their international legal obligations, one is at the borderline between 'private' and 'public' aspects of the international legal order. Although there is no accepted use of those concepts in international law, they can be helpful in order to distinguish between those aspects of the law, and its enforcement, which primarily affect the private interests of the parties and those aspects which primarily touch the interests of the international community as a whole. Thus, where a State which refuses to comply w i t h its legal obligations concerning the immunities enjoyed by its embassies or diplomats in some other State, the matter w i l l be primarily of concern to those two States.80 It w i l l accordingly be for the State whose rights have been violated to determine how the other State may be brought to comply 80

The international community as a whole may, however, have an interest, for example because of the effects upon the general institution of diplomacy or because the particular circumstances, such as misuse of diplomatic status for terrorist-connected purposes, raise a serious issue of general international concern.

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w i t h its obligations. O n the other hand, where one State launches an extensive armed attack on another in order to seize territory, the matter, while clearly of direct concern to the two States involved in the conflict, also raises issues of international peace and security which engage the interests and responsibilities of the international community as a whole. Such a distinction between 'private' and 'public' issues is not at all clear cut, and the one may easily merge into the other, as where, for example, the measures to be taken by a wronged State against the wrongdoing State to enforce compliance w i t h an essentially 'private' aspect of the law threaten to spill over into action w i t h a more widespread impact upon the international community. Enforcement of the law in what is primarily a bilateral context between the two States involved is left to them to arrange within the limits permitted by international law, most notably the prohibition upon resort to armed force. Other, less compulsive, forms of pressure may, however, be resorted to and can, at least over time, prove effective to secure the wrongdoing State's compliance w i t h its legal obligations; because so much of international relations relies on a considerable degree of reciprocity, alternative forms of persuasive pressure are seldom lacking and reciprocity virtually becomes the basis of an informal enforcement process. Nevertheless, in terms of the rule of law, it cannot in principle be satisfactory that enforcement of the law, even in relation to 'private' matters, has in practice to be left to action by the wronged State taken outside any international judicial procedures. Self-help for the enforcement of the law is an unattractive process, both because it can so easily be abused and because its efficacy — and at times even its availability in practice — can be so uneven, depending on the relative strengths of the States involved. The rule of law would seem to require not only that the law should be of universal application, 81 but also that its enforcement should be similarly universal, that is that it should be capable of being enforced equally in respect of all members of the community. I n one respect, however, the enforcement of the law in an essentially 'private' context is recognised to be of substantial concern to the international community in general. Judgments of the International Court of Justice are binding on the parties to the case in question, 82 and members of the United Nations are under a Charter obligation to comply w i t h decisions of the Court in cases in which they are parties. 83 If a party nevertheless fails to comply w i t h a judgment, these provisions are supported by the possibility of the other party having recourse to the Security Council, which "may", " i f it deems necessary", make "recommendations" or "decide upon measures" to be taken to give effect to the judgment. 84 81 82 83 84

See above, note 53 and subsequent text. Statute of the ICJ, Art. 59, (note 48) 355. U N Charter Art. 94, para. 1, (note 38). U N Charter, Art. 94, para. 2, id.

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While these provisions reflect the importance properly attached, at least in principle, to the international judicial process, in practice they have proved of limited value. 85 I n relation to the enforcement of international law in those circumstances which are of direct 'public' concern to the international community as a whole, the international community has moved away from its former acquiescence in the role of Great Powers as international peacemakers and enforcers of the law; the self-appointed 'policeman' State is no longer acceptable.86 International, community procedures are now available instead, at least where international peace and security are concerned 87 — and these are, of course, by definition matters of 'public' concern. The United Nations Charter gives the Security Council special responsibilities for such matters and puts at its disposal a wide range of measures, including where necessary the use of armed force, to secure the enforcement of its decisions for the maintenance or restoration of international peace and security. The use of such measures against the wrongdoing State, w i t h the authority of the international organ to which States have entrusted the necessary powers is, of course, an acceptable use of police or enforcement powers on behalf of the community as a whole. I n the context of the enforcement of international law, however, those powers are not as effective or satisfactory as they might appear. I n the first place they are not vested in the Security Council directly for the purpose of enforcing international law, although it needs to be recognised that, however varied the causes of threats to international peace and security may be, it is likely that noncompliance w i t h international legal obligations w i l l be at the root of many of them. Second, the Security Council is, of course, a political organ, and decisions on the need for enforcement measures are thus matters for political judgment in the Council, and are subject to the constraints implicit in the need to secure adequate majorities for any votes on resolutions deciding on such measures. Lastly, the essentially political nature of the Security Council tends to impair its quality as an independent and impartial community process for the enforcement of the law.

85

As with Albania's refusal to comply with the judgment of the Court in the Corfu Channel Case, ICJ Rep., 1949, 4, and the United States of America's refusal to accept the Court's judgment in the Military and Paramilitary Activities Case, ICJ Rep., 1986, 3. 86

See below. Although the role of the Security Council is pre-eminent in the taking of international enforcement action, the powers of other international organisations to take action of various kinds (but not including the use of armed force) in order to secure compliance w i t h obligations arising in those organisations' more limited fields must not be overlooked. 87

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c) Application in Practice Although occasions for considering resort to enforcement action are often of major political importance, those occasions are relatively few, as are occasions on which States have recourse to the judicial settlement of their differences. Both are somewhat extreme situations, and do not represent the normal state of affairs within the international community. I n practice, the overwhelming tendency of States in their day-to-day dealings w i t h other States is to apply and abide by international law as a normal part of the regular pattern of international affairs. Against the background of the relatively limited scope for the judicial settlement of differences between States and for coercive action against them, such regular practical compliance w i t h the law is particularly noteworthy. That States do so to such an extent probably has much to do w i t h their own self-interest in securing a stable, safe and predictable world in which they can better pursue their broad political and economic goals, but is none the less welcome for that. Even so, the moral factor in observing the law should not be underrated. Law is generally perceived as being good, and compliance w i t h it as desirable. States are reluctant to be seen to be flouting their legal obligations, and even when acting in flagrant violation of the law w i l l usually seek to present some legal justification for what they have done. The international community w i l l usually exact a political and diplomatic price for unconscionable international conduct. While such observance of international law in the practice of States is reassuring, and does much to establish that States believe themselves to be bound by a system of international law, it does not itself greatly assist the enquiry into the existence of an international rule of law. It does not, for example, constitute an independent third party process whereby the law can be independently determined, applied and enforced — although the moral factor referred to may be seen as a limited form of external influence on States, having the effect of securing compliance w i t h the law, as may peer pressure of the membership of the international community as a whole. The fact that States overwhelmingly comply w i t h international law may also be some, indirect, evidence for the existence of an international rule of law, for it shows a degree of confidence in the law which one would only expect if the rules of international law were indeed rooted in an international rule of law.

V. The International Rule of Law: the Present and the Future The survey in the preceding pages has suggested that the primary requirements for an international rule of law are that a complete and certain system of international law, which treats all States as equal in the eyes of the law and which excludes arbitrary power, should be effectively applied and enforced. The extent to which

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such an international rule of law is a present actuality or no more than a hope for the future has to be seen in the context of certain features of the contemporary international community. The importance of law in international relations should neither be underestimated nor overestimated, lest expectations of what may be possible be unduly lowered or raised. A century ago there could have been some justification for seeing international law as little more than the expression of the structure of power in the international community and as not so much regulating it as following it. The leading States to some extent fashioned the law so as to reflect their own interests and to maintain that balance in the structure of world power politics which suited them. They were able to do so because of the formative phase through which international law was still passing. The result was the achievement of a degree of international order, although based more on power than the rule of law. Indeed, the debate about whether there really was any true system of international law at all was in no way unreal. Such a debate is nowadays of little more than theoretical and historical interest. States accept the reality of international law and its immediate relevance to the conduct of their international relations. The fact that many aspects of international relations now find a focus in international groupings, or more formal organisations, has reduced the scope for powerful States to fashion a world order and its accompanying rules of law in their own interests. The universality — in practice as well as principle — of the international community and of international law has led to a degree of international democracy which has been increasingly conducive to the development of the international rule of law. Although it is scarcely questionable that the international community now operates within a legal framework, that is not the exclusive framework for international relations; and although the scope for powerful States to determine the international community's legal order is now reduced, it has not disappeared. International power — political, economic or military — remains very influential, and the role of law in international affairs is, though real, correspondingly modest. While States still overwhelmingly comply w i t h their international legal obligations, violations still occur, both in essentially 'private' and bilateral matters as well as those of a more 'public' kind involving the interests of the international community as a whole. Violations of international law are not, however, a denial of the international rule of law, unless they involve a general breakdown in law and order in the international community as a whole. This is an unlikely outcome of those violations which occur in a 'private' or bilateral context, but the risks, and associated problems, are greater w i t h major violations which raise 'public', community, issues. But even the serious international incidents in recent years (such as the conflict between Iraq and Iran; Iraq's invasion of Kuwait; Cambodia;

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Somalia; and the fighting in the territory of the former State of Yugoslavia) have not threatened a general breakdown of international law and order. Outbreaks of localised lawlessness do, however, carry the risk of undermining or eroding the international rule of law. They are increasingly seen as posing a threat to the international community as a whole, and action to contain the spread of lawlessness and secure a return to lawful ways are accordingly seen as legitimate, and politically appropriate, responses. It is at this point that concern to uphold the law, and the rule of law, meets the frustrations flowing from the largely inadequate (in practice) means for applying and enforcing the law which are at present at the international community's disposal. The role formerly exercised by major Powers, if necessary by the use of force, in securing a degree of international order is no longer acceptable and w i l l often — particularly if it involves resort to armed force otherwise than in self-defence — be unlawful, but no generally effective alternative has yet been put in place. The use of State power is now filtered through a network of consultative processes and, ultimately, the United Nations. If that machinery works successfully the resultant use of power w i l l have added authority and legitimacy; but it is likely at least to involve delay, and may well fail. Where the wrongfulness of the situation seems clear cut, and the need for action to enforce and uphold the law evident and urgent, the temptation for more powerful States to react to such delay or failure by acting unilaterally (or w i t h allies) to enforce and uphold the law in what they see as the general community interest may be strong. I n those circumstances the balance between international order and the international rule of law can be difficult to maintain. The former may call for a State to take unilateral action, but the latter cannot condone it. A self-appointed 'policeman' State, acting to uphold its own assessment of the law and of the interests of the community (especially where the community, as represented in the United Nations, has itself failed to agree on what the community interest requires), is a dangerous instrument for upholding international law and is in principle antithetical to the international rule of law. 8 8 It is no longer acceptable to the international community as a whole. The danger of abuse is manifest, and w i t h it the danger of encouraging arbitrary action; and States believing that they act to protect the interests of the international community cannot always be relied on to be truly 88 The English Court of Appeal had occasion in 1993 to consider a case in which the two accused took the law into their own hands because of dissatisfaction w i t h progress being made by the police. I n language as relevant internationally as it is domestically, the Court said, in part: " I t might seem a trite observation, but it had to be said that civilised society could not tolerate individuals taking the law into their own hands. That applied to exacting revenge for any perceived wrong, even if the perpetrator of the wrong was clearly established . . . Their Lordships fully understood the frustration felt when a crime was committed and the offender not traced or brought to justice. Such frustration would never justify self-help." R. v. Chapman / R. v. Bond, The Times (London) Law Report, 29 June 1993.

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altruistic. However firm may be the conviction of the 'policeman' State that its actions are politically right and legally justifiable, that assessment may not necessarily be widely shared. A self-assumed enforcement role is a prerogative of powerful States, seldom capable of being used against them; yet the rule of law must apply to all States, and may even be more important vis a vis powerful States than in relation to those which are small and weak. Such a self-assumed role may be an understandable response to the absence of other effective international action within the prevailing international legal framework, but impatience, and even outrage, have more to do w i t h the springs of policy than w i t h the rule of law. The general unacceptability of unilateral action to uphold the law has been balanced by increasing acceptance of the United Nations, and particularly the Security Council, as the appropriate forum in which action for that purpose should be pursued and ultimately authorised, if international peace and security are involved. Considerations of legality and the rule of law are as relevant in that context as they are for the conduct of States. The Security Council is no more above the law than are States; and since its conduct is directly constrained by the terms of the United Nations Charter it is perhaps even more susceptible to legal controls than they are. Given that in those situations which involve international peace and security action through the Security Council is increasingly seen as the only lawful basis for action to enforce and uphold international law, the frustrations which that course may involve and which tempt States to embark on unilateral action are equally potent in tempting them to strain the language of the Charter to the limits of, and sometimes beyond, the meaning which that language may reasonably bear. "Self-defence", as the most important (and some might say, the only) lawful basis under the Charter on which States may unilaterally have recourse to armed force, is particularly at risk of being distorted in this way. While the objective of upholding the law cannot be faulted, securing it by means of doubtful legality does nothing to strengthen the international rule of law and much to undermine it. It is evident that it is in this general area of the enforcement of international law, particularly where questions of peace and security are in issue, that the international rule of law is at its weakest. Paradoxically, it is this weakness which, when coupled w i t h the growing concern of States that international law should be properly applied and enforced, can lead to action which while intended to strengthen the international rule of law in practice may weaken it further. The international community has still to solve the problem of enforcement. U n t i l it does so, the international rule of law is bound to be a less effective counterweight to international political power and the sovereign independence of States than it could, and should, be. The transition from the establishment of international order by the hegemonic power of one State, or a few States, to the full establishment of the international rule of law is a still-continuing process.

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Pending its completion, the needs of international order probably make inevitable the continuing reliance by the international community on the exercise by a few States of the effective power which only they possess. So long as those States are mindful of the value of the international rule of law the international community can continue its gradual progress towards a fully effective rule of law, which must remain one of its ultimate objectives.

Some Reflections on Extradition 1 By Yoram Dinstein*

I. The Nature of Extradition To understand the phenomenon of extradition better, it is advisable to start from the five basic questions that every cub reporter is trained to ask: "What?", "Why?", "When?", "Where?", and " H o w ? " . What is extradition? — The surrender of an alleged offender to stand trial or (if he is a convicted fugitive from justice) to serve sentence in the requesting country. Why ? — As a rule, because the requested State is legally bound by treaty to assist law enforcement in the requesting State. While extradition "sometimes takes place as a matter of comity in the absence of an extradition treaty", there is no international legal duty of extradition except on the ground of a (bilateral or multilateral) treaty. 2 When ? — Once certain conditions are fulfilled. These range from procedural requirements to the rule of double criminality (denoting that "the acts which form the basis for the extradition request constitute a crime under the laws of both the requesting and the requested States" 3 ). Where ? — Legal action is taken both in the requesting and in the requested States. Proceedings in the latter are, however, restricted to the issue of surrender of the alleged offender (as distinct from his conviction or acquittal). How ? — Through recourse to various procedures (e. g., provisional arrest) of a judicial and / or an administrative nature.

* M . Jur., LL.M., Dr. Jur.; Yanowicz Professor and President, Tel-Aviv University (Israel). 1 This paper is based in part on a General Report submitted by the author to an International Seminar on Extradition, International Review of Penal Law, vol. 62, 1991, 31 -43. Cf. also Remarks by the author on Major Contemporary Issues in Extradition Law, Proceedings of the American Society of International Law, vol. 84, 1990, 389 et seq404-407. 2 L. Oppenheim, International Law, vol. 1, England 1992 (9th ed., by Sir Robert Jennings / Sir Arthur Watts), 948-952. 3 Marjorie M. Whiteman (ed.), Digest of International Law, vol. 6, 1968, 773.

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It is essential to stress the cardinal point emerging from these brief responses to simple questions. Extradition proceedings in the requested State have "decidedly criminal consequences", although they are not criminal proceedings in the technical sense.4 Such proceedings must not be confused w i t h a trial culminating w i t h a verdict as to whether the alleged offender is guilty or not guilty. The sole issue is whether or not the alleged offender should be surrendered to the requesting State for trial and / or punishment there. When the nature of extradition is taken into account, it should not be hard to grasp that — if the process takes too long, is too cumbersome or proves too costly — friendly Governments are likely to find ways and means that would circumvent juridical obstacles to the rapid removal of an alleged offender from the requested State (especially when he is not its national) for trial and / or punishment in the requesting State. Since the administration of penal justice is the goal, the Governments concerned may feel vindicated in bending some rigid "technical" strictures and resorting to informal means of rendition. 5 When the alleged offender is a serial killer, a trafficker in narcotics, and the like, a no-questions-asked type of administrative rendition may meet w i t h almost universal approval. II. The Sources of Extradition Law The complexity of extradition law is due, in large part, to the fact that it is derived from several sources. These can be any or all of the following: (i) Domestic legislation, like the modern United Kingdom Extradition Act of 1989.6 O f course, such legislation may be uniform in several countries having been patterned after agreed models. 7 (ii) A multilateral international convention, like the 1957 European Convention on Extradition. 8 (iii) A bilateral extradition treaty, which can govern relations between the parties either by itself or as a supplement to a multilateral convention. 9 (iv) Customary international law. 4

John G. Kester s Some Myths of United States Extradition Law, Georgetown Law Journal, vol. 76, 1987-1988, 1441 et seq., 1443-1446. 5 O n "informal rendition", see M. Cherif Bassiouni, Unlawful Seizures and Irregular Rendition Devices as Alternatives to Extradition, Vanderbilt Journal of Transnational Law, vol. 7, 1973-1974, 25 et seq., 33-34. 6 Extradition Act 1989, Current Law Statutes Annotated, 1989, c. 3, 33. 7 See Torsten Stein , Extradition, Encyclopedia of Public International Law, vol. 8, 1985, 222 et seq.y 223. 8 European Conventions and Agreements, vol. 1, 173. 9

Most countries are contracting parties to a large number of bilateral extradition treaties. "The U.S. alone has over 100 treaties in force." M. Cherif Bassiouni y International Extradition,

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There is no need to belabour here the inherent potential tension between the domestic legislation of a State and its international obligations. This is a problem affecting all branches of international law. Actually, within the purview of extradition the tension is perhaps milder than usual, because (a) domestic extradition statutes often explicitly refer — and sometimes defer — to treaties; 10 and (b) it is common practice to allude in extradition treaties to procedures ordained by domestic legislation. 11 O n the other hand, the relationship between customary and conventional international law of extradition does deserve an explanation. As indicated, when a State incurs a duty of extradition under international law, it does so only by treaty (whether bilateral or multilateral). Customary international law may be said to assume a "neutral attitude" towards extradition: it does not impose an obligation on one State to surrender to another State persons charged w i t h or convicted of crimes. 12 Hence, inasmuch as rules pertaining to extradition have developed over the years in customary international law — e. g., double criminality or specialty (the latter to be discussed below) — they are "abstracted from existing treaties and municipal provisions". 13 Moreover, these rules are conditional and presumptive in character. That is to say, first, they apply on a complementary basis if — and only if — there exists an extradition treaty between the parties. Secondly, they are not mandatory. Their application is merely presumed in the absence of a contrary provision in the treaty. The presumption is that the rules can be read into the treaty as if they were incorporated therein by the contracting parties. Yet, the drafters of the treaty retain their full freedom to rebut the presumption. Customary international law does not prevent the contracting parties to extradition treaties from excluding (or qualifying) the operation of rules like double criminality or specialty, should they desire to do so.

I I I . Fair Trial as the Crux of the Issue of Extradition Bearing in mind that extradition equals surrender to trial and / or punishment, there should be no wonder that the crux of the issue in practice is who the requesting party is. This is true, first and foremost, as far as the extraditee himself is concerned. Let us take, as an hypothetical example, an extradition between London / Rome / New York 1987 (2nd ed.), 507. For a detailed enumeration, see ibid., 933948. 10

For a striking example, see Sections 22-25 of the U K Extradition Act of 1989 (note 6). For instance, Article 22 of the European Convention on Extradition sets forth: "Except where this Convention otherwise provides, the procedure w i t h regard to extradition and provisional arrest shall be governed solely by the law of the requested Party". (Note 8), 182. 11

12 13

J. G. Strarke , Introduction to International Law, London 1989, (10th ed.), 352-353. Ian Brownlie , Principles of International Law, Oxford 1990, (4th ed.), 316.

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Saddam Hussein's Iraq and the Federal Republic of Germany. The outlook of the alleged offender would almost certainly be determined by the question whether Iraq is the requesting or the requested State. I f it is the requested State, he would be strongly disposed to waive formal proceedings and agree to "simplified extradition", 1 4 in order to face legal charges or even imprisonment i n Germany. Conversely, if Iraq is the requesting State, he would be inclined to use all the judicial means available to him in order to fight the request. The position of the requested State, too, would be considerably affected by the identity of the requesting State. A key question is whether the competent authorities i n the requested State trust the requesting State, viz. have confidence i n the latter's observance of due process of law. Indeed, the Institut de Droit International went so far as to proclaim in 1983 as follows: In cases where there is a well-founded fear of the violation of the fundamental human rights of an accused in the territory of the requesting State, extradition may be refused, whosoever the individual whose extradition is requested and whatever the nature of the offence of which he is accused.15

A similar stand was taken by the International Law Association i n 1988. 16 I t is no accident that most extraditions granted today seem to be based on the 1957 European Convention on Extradition. Reciprocal trust is the key to the huge success of the European system. The readiness of the members of the Council of Europe to assist one another in law enforcement cannot be explained merely i n terms of cultural affinity. I t must be perceived against the background of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. 17 I n light of the 1950 Convention, and the supervisory machinery created in Strasbourg, each member knows for sure that the surrender of an alleged offender for trial under the 1957 Convention means surrender for fair trial. Reciprocal trust lies also at the root of the growing w i l l among members of the Council of Europe to dispense inter se w i t h the political offences clause. 18 Once more, this is linked to the functioning of the Human Rights Convention. The members of the Council of Europe take it for granted that — w i t h i n their o w n closed circle — the extraditee w i l l benefit from all the guarantees of fair trial in the requesting State, even if his crime can be labelled as political. 1 9 14

O n "simplified extradition", see Stein (note 7), 227. Resolution: "New Problems of Extradition", Annuaire de Plnstitut de Droit International, vol. 60 (2), 1983 (Session de Cambridge), 304 et seq., 306 (Article IV). 16 Draft Articles on Extradition in Relation to Terrorist Offences, International Law Association Report, vol. 63, 1988 (Warsaw), 1034 et seq.y 1040 (Article V). 17 European Conventions and Agreements, vol. 1, 21. 18 Seey especially, Article 1 of the Additional Protocol to the European Convention on Extradition, 1977, European Conventions and Agreements, vol. 4, 15 et seq.y 16; and the European Convention on the Suppression of Terrorism, 1977, ibid., 41. 15

4 GYIL 36

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I V . Extradition and Human Rights A n extradition process can be influenced by legal norms protecting human rights and fundamental freedoms. Human rights law has several sources of its own, namely — (i) The national Constitution, a Bill of Rights, a Basic Law, and so forth. (ii) Multiple multilateral conventions of a general nature, like the 1966 International Covenant on Civil and Political Rights. 20 (iii) Regional conventions epitomized by the 1950 European Convention. (iv) Customary international law. I n the realm of human rights, unlike that of extradition, customary international law — far from being conditional and presumptive — is obligatory and, at times, even peremptory. I n other words, international respect for the fundamental freedoms of the individual is not a matter of choice: States are bound to recognize and ensure human rights. Furthermore, insofar as some human rights are concerned, customary international law has the standing of jus cogens. I n that case, any attempt at contracting out from its obligations — by bilateral or regional treaty — w i l l be vitiated. Under Article 53 of the 1969 Vienna Convention on the Law of Treaties, a treaty (and that includes, of course, an extradition treaty) is void if it conflicts w i t h a peremptory norm of general international law. 2 1 Admittedly, there is no binding list of norms constituting jus cogens in contemporary international law. There is also no unanimity of opinion as to which human rights (if any) are already vested w i t h a peremptory nature. Nonetheless, it appears to be quite certain that some human rights — preeminently, freedom from slavery and freedom from torture — have acquired the rank of jus cogens. 22 What is the extent of the impact that human rights law has on extradition law? The question arose in the 1989 Judgment of the European Court of Human Rights in the Soering Case. 23 Here the Court held unanimously that extradition of a German national by the United Kingdom to the United States, to face trial in Virginia on a capital change of murder, would be a violation of Article 3 of the 1950 European Convention ( " N o one shall be subjected to torture or to inhuman

19 See Ekkehart Müller-Rappard , The European Response to International Terrorism, in: M. Cherif Bassiouni (ed.), Legal Responses to International Terrorism: U.S. Procedural Aspects, Dordrecht / Boston / London 1988, 385 et seq., 399. 20 21

United Nations Juridical Yearbook, 1966, 178. United Nations Juridical Yearbook, 1969, 140 et seq., 154.

22 See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, Manchester 1984 (2nd ed.), 215-216. 23 International Legal Materials, vol. 28, 1989, 1063.

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or degrading treatment or punishment." 2 4 ). 2 5 The Court's reasoning was that the long delay between the imposition and the execution of capital punishment in Virginia (averaging 6 to 8 years) — as a result of appeal and review procedures — would expose the applicant to the "death row phenomenon" going beyond the threshold set by Article 3 (although not, strictly speaking, torture). 26 Diverse views have been expressed in the legal literature as to the significance of the Judgment. This must not, however, be overrated. The impression of the present writer is that the Court could not say what it wished to have said, and did not wish to say what it could have said. The Court could have insisted on a rigid application of a clause in the U K - U S Extradition Treaty, whereby *[i]f the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty w i l l not be carried o u t " . 2 7 Perhaps the Court might even have proceeded to hold that such assurances ought to meet an objective standard and are subject to judicial review. The fact that the United States is a federal State, and that the competent local authorities (in Virginia) were unwilling to issue satisfactory assurances, 28 need not alter the legal position. The federal government in Washington was capable of producing the necessary guarantee — in a form that would be binding on the United States both externally and internally — notwithstanding the reluctance of the state of Virginia to commit itself in this fashion. I n fact, this is exactly what happened subsequent to the Judgment. 29 Regrettably, the Court did not follow the line proposed here. What the Court apparently wished to say, but could not, was that capital punishment is no longer consistent w i t h the human right to life. 30 The Court was unable to say that, inasmuch as the implication would be that Protocol N o . 6 to the European Human Rights Convention 3 1 (concluded only in 1983), and Optional Protocol N o . 2 to the International Covenant on Civil and Political Rights 3 2 (adopted by the General 24 25 26 27 28 29

European Convention on Human Rights and Fundamental Freedoms (note 17), 23. Soering Case (note 23), 1105. Ibid., 1096-1101. Ibid., 1078. Ibid., 1073, 1095.

See Richard B. Lillich, The Soering Case, American Journal of International Law, vol. 85, 1991, 128 et seq., 141. 30 Cf. John Quigley / S. Adele Shank, Death Row as a Violation of Human Rights: Is It Illegal to Extradite to Virginia?, Virginia Journal of International Law, vol. 30, 1990, 241 et seq., 259. 31 European Conventions and Agreements, vol. 5, 31. 32 International Legal Materials, vol. 29, 1990, 1464. 4*

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Assembly in 1989) — both abolishing the death penalty — are declaratory of general international law. This is plainly not the case.33 What the Court ultimately did was hinge its decision on the "death row phenomenon" in the United States, namely, the fact that felons convicted of capital crimes are languishing in jail for long periods of time while awaiting execution. The Court pronounced that the "death row phenomenon", entailing life for many years " i n the ever-present shadow of death", gives rise to a breach of Article 3 of the European Human Rights Convention. 3 4 According to the Court, extradition in such circumstances would be contrary to the prohibition " b y reason of its foreseeable consequences in the requesting country". 3 5 The Court's line of reasoning is singularly unpersuasive. After all, the "death row phenomenon" is self-inflicted. As the Court frankly conceded, delays between the imposition and execution of capital punishment in Virginia "are primarily due to a strategy by convicted prisoners to prolong the appeal proceedings as much as possible". 36 It follows that, if the convicted prisoner did not avail himself of all avenues of appeals and collateral applications open to him, he would not be in "death r o w " — he would be dead. The Court, consequently, faulted the American legal system for being too lenient in permitting numerous post-sentence proceedings delaying the execution. The incongruous moral of the story is that the United States should execute without procrastination all prisoners convicted of capital crimes, and then it would not run afoul of human rights. Is it really better to abandon appeal rights and hasten the execution, in order not to endure the "death row phenomenon"? 37 The Soering Case also raises intricate problems relating to the law of treaties. After all, the United States is entitled to certain rights pursuant to the bilateral extradition treaty w i t h the United Kingdom, whereas it is not bound by the obligations emanating from the European Human Rights Convention. The Court conceded the rudimentary point that "the [European] Convention does not govern the actions of States not party to i t " . 3 8 O f the two parties to the U S - U K extradition treaty, only the United Kingdom is subject to the European Convention. Given the Court's interpretation of the Convention, there is an apparent conflict between the obligation imposed on the United Kingdom under the Convention (vis-a-vis other European countries) to avoid extradition likely to lead to inhuman treatment, 33

See Sharon A. Williams , Extradition to a State that Imposes the Death Penalty, Canadian Yearbook of International Law, vol. 28, 1990, 117 et seq., 152. 34

Soering Case (note 23), 1098, 1100. Ibid., 1093. 36 Ibid., 1084. 37 Michael P. Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases after Soering, Yale Journal of International Law, vol. 17, 1992, 85 et seq., 111. 38 Soering Case (note 23), 1091. 35

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and its duty to grant extradition by virtue of the bilateral treaty w i t h the United States. Is the United Kingdom compelled to violate its bilateral treaty w i t h the United States, and if so why? Under Article 30 (4) of the Vienna Convention on the Law of Treaties, when there is an incompatibility between two treaties — and the contracting parties to one treaty do not include all the parties to the other — both instruments continue to be equally in force. 39 Although some commentators assert that the European Convention should take precedence over the U K US extradition treaty, 40 it is by no means clear that such is necessarily the case.41 Possibly the Court, which did not go into the question, was of the opinion that there was a conflict here between a bilateral treaty and peremptory norm of human rights. If that were the case, the bilateral treaty would have to yield to the jus cogens. Granted, jus cogens cannot be created in regional international law. 4 2 As the aforementioned Article 53 of the Vienna Convention proclaims, a peremptory norm has to be a "norm of general international law" and it must be "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted". However, as suggested above, freedom from torture may be deemed to constitute jus cogens on the ground of general international law. It is noteworthy that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — adopted by the General Assembly of the United Nations in 1984 — enunciates in Article 3 that no State shall extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 4 3 While there is a problem of reconciling this provision w i t h Article 16 (2) of the same Convention, 44 and the travaux preparatories of Article 3 are not entirely lucid, 4 5 one may find here support for the view that freedom from torture (as jus cogens) prevails over any inconsistent extradition treaty. Nevertheless, it must be recalled that, in the Soering Case, the European Court did not classify the "death row phenomenon" as torture but only as lower-threshold inhuman or degrading treatment or punishment. It 39

Vienna Convention on the Law of Treaties (note 21), 148. See Gerhard von Glahn, Law Among Nations, New York / Toronto 1992, (6th ed.), 292. 41 See Christine Van den Wyngaert, Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?, International and Comparative Law Quarterly, vol. 39, 1990, 757 et seq., 762. 42 See Fania Domb, Jus Cogens and Human Rights, Israel Yearbook on Human Rights, vol. 6, 1976, 104 et seq., 108-110. 40

43

United Nations Juridical Yearbook, 1984, 135 et seq., 136. Ibid., 138 ("The provisions of this Convention are without prejudice to the provisions of any other international instrument . . . which relates to extradition"). See Laura Leigh Blackston, The Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?, Washington and Lee Law Review, vol. 48, 1991, 1477 et seq., 1495 n. 139. 44

45

J. Herman Burgers / Hans Danelius, The United Nations Convention against Torture, Dordrecht / Boston / London 1988, 126-127.

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is questionable whether the peremptory nature of the norm of general international law prohibiting torture extends to lower threshold treatment or punishment. Moreover, the Court could not issue a valid ruling pertaining to the interpretation of general international law in a manner adversely affecting the rights of the United States (a country not party to the proceedings before the Court and not subject to its jurisdiction). Conceivably, the Court did not wrestle w i t h the thorny issues that the Judgment raises because it was clear that at the end of the day Soering would be extradited by the United Kingdom to the United States, albeit only for a non-capital offence, so that he would be tried in the United States without facing the death penalty. This, as pointed out, is what actually happened.

V . The Standing of the Individual in Extradition Proceedings and the Rule of Specialty The question is often raised whether the individual whose extradition is sought is the mere object or the very subject of rights in extradition proceedings. 46 The correct approach is that the individual whose extradition is sought is both the subject and the object of rights. O n the one hand, as the Soering Case demonstrates, the alleged offender — like every other human being — is entitled to human rights. A scenario much more simple (and less controversial) than the factual setting in the Soering Case would be that of a person consenting under duress to "simplified extradition". Nobody can deny that any coercive measures used would be in violation of human rights of which the victim is the subject. O n the other hand, the alleged offender is only the object of surrender proceedings, conducted between two States, as long as no issue of human rights interposes. I t is entirely wrong either to gloss over human rights altogether or to construe specific extradition rules as if they created human rights. Double criminality, specialty, etc., are pure rules of extradition law. N o human right is involved, and the alleged offender is only the beneficiary of State rights. Consequently, he is truly the mere object rather than the subject of the rights in question. To elucidate this point, it may be worthwhile to dissect more carefully one of the undiluted rules of extradition, i. e. specialty. The gist of the specialty rule is that the requesting State is not allowed to prosecute or sentence the extraditee for an offence (committed prior to his surrender) other than that for which he was extradited, unless it is an extraditable offence based on the same set of facts disclosed in the extradition request. 47 What is the intrinsic nature of specialty? 46 See Stephan Breitenmoser / Gunter E. Wilms , Human Rights v. Extradition: The Soering Case, 11 Michigan Journal of International Law, vol. 11, 1989-1990, 845 et seq., 880-881. 47 See American Law Institute, Restatement of the Law Third, The Foreign Relations Law of the United States, vol. 1, St. Paul 1986, 578-579.

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(i) The specialty rule is a conditional and presumptive norm of customary international law. I n other words, the rule is not mandatory and it can be dispensed within an extradition treaty (the dispensation can be general or it can relate to specific circumstances). (ii) The rationale of the specialty rule is good faith in the application of the extradition treaty. 48 "The requirement of good faith is essential in all actions governed by international law and in the performance of any obligation." 4 9 Indeed, the Vienna Convention on the Law of Treaties deems the requirement of performing treaties in good faith to be a constitutive element of the basic principle pacta sunt servanda (Article 26). 50 When the requested State surrenders an alleged offender for trial in the requesting State, it is acting in response to a formal extradition request and supportive documentation referring to a specific extraditable offence. Should the requesting State then proceed to prosecute the extraditee for an altogether different offence — particularly if the new offence is not extraditable under the treaty — good faith in the application of the extradition treaty is breached. (iii) The rule of specialty "is designed to protect the rights of the requested state, not those of the extradited person". 51 That is to say, the rule creates not a human right but a right vested in the requested State (by dint of the principle of good faith in treaty implementation). The absence of a human right predicated on the rule of specialty is conspicuous when waiver is exercised. The requested State is entitled to waive the application of the specialty rule in a given trial in the requesting State, and this waiver is not contingent on the consent of the extraditee. 52 By contrast, the consent of the extraditee is irrelevant when the rule of specialty is invoked by the requested State.53 (iv) Ostensibly, in a certain factual situation, waiver is implied from the conduct of the extraditee. The case in point relates to the release of the extraditee by the requesting State without trial (usually, this w i l l be done for lack of evidence beyond reasonable doubt that he had committed the offence for which he was extradited). If the extraditee is free to leave the territory of the requesting State and does not avail himself of that opportunity, the requesting State is released from the bonds of specialty after a lapse of time (45 days under Article 14 (1) (b) 48

See Jose Francisco Rezek, Reciprocity as a Basis of Extradition, British Year Book of International Law, vol. 52, 1981, 171 et seq., 195-196. 49 Paul Reuter, Introduction to the Law of Treaties, London / N e w York 1989, (Jose Mico / Peter Haggenmacher trans.), 114. 50

Vienna Convention on the Law of Treaties (note 21), 148.

51

Theo Vogler, The Rule of Specialty in Extradition Law, International Review of Penal Law, vol. 62, 1991, 231 et seq., 238. 52 53

See American Law Institute (note 47), 579. See ibid.

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of the European Convention on Extradition 5 4 ). Here is plainly an instance of implicit waiver of specialty. But an implicit waiver on whose part? Usually, the implicit waiver is grasped as effected by the extraditee himself, having failed to leave the territory of the requesting State within reasonable time. Yet, the correct way of looking at the implicit waiver is that it is effected by the requested State, having foregone the opportunity to readmit the extraditee within its jurisdiction. Some further observations about specialty may be called for. While the nucleus of the rule is beyond dispute, there are still ambiguities relating to several peripheral questions: (i) A greater degree of precision is called for insofar as the requesting State is allowed — without benefit of waiver by the requested State — to prosecute the extraditee for another extraditable offence disclosed by the same set of facts. Clearly, when the charge (pursuant to the extradition papers) is murder, the accused can be convicted merely of an aggravated assault against the victim. But can the extraditee be convicted only of theft (assuming that he was caught w i t h certain personal effects belonging to the deceased)? (ii) Can the alleged offender invoke the specialty rule in the course of the extradition proceedings in the requested State — in order to bar surrender to trial in the requesting State — or must he wait until the extradition is carried out, and bring up the question only when the requesting State actually proceeds to prosecute him in contravention of the rule? Surely, the competent authorities of the requested State must ordinarily presuppose good faith on the part of the requesting State.55 But are there exceptional circumstances in which the good faith of the requesting State can be impugned in advance? (iii) Is it sufficient for the extraditee himself to invoke specialty as an objection to penal proceedings in the requesting State, or should the Court try to establish — through channels — how the competent authorities of the requested State (whose right is being infringed) view the matter? Does lack of protest on the part of the requested State indicate implied waiver or, alternatively, can the extraditee act "as a proxy" of the requested State in challenging the proceedings in the requesting State?56 Another way of putting the alternative approach is to presume that the requested State objects to the proceedings even if it keeps silent. 57 Evidently, this would be a rebuttable presumption. 54

European Convention on Extradition (note 8), 179. See R. v. Governor of Pentonville Prison , ex parte Endlong and another , A l l England Law Reports, 1980 (1), 701 et seq., 714 (Griffiths, J., per curiam). 55

56 David Runtz , The Principle of Specialty: A Bifurcated Analysis of the Rights of the Accused, Columbia Journal of Transnational Law, vol. 29, 1991, 407 et seq., 429. 57 See Kenneth E. Levitt, International Extradition, the Principle of Specialty, and Effective Treaty Enforcement, Minnesota Law Review, vol. 76, 1991-1992, 1017 et seq., 1034.

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(iv) H o w is an explicit waiver by the requested State effected? Assuming that extradition was granted by a court of law in the requested State, is the executive branch of that State free to issue the waiver by itself or is it obligated to go back to the judiciary in order to obtain its approval?

V I . International and Domestic Offences For the purposes of extradition, it is necessary to distinguish between international and domestic offences. International offences are those acts which are defined as such by customary or (as is more often the case nowadays) conventional international law. 5 8 Domestic offences may be common to most or all national legal sytems, but still they are not directly criminalized by international law. This is the difference between theft and hostage-taking. The former is merely a domestic offence. The latter is an international offence under the 1979 International Convention against the Taking of Hostages. 59 The current scope of international offences leaves a lot to be desired. Nowhere is the unsatisfactory stage of development of contemporary international law more glaring than in the field of terrorism. The response of the international community to the problem of terrorism has been fragmented: it covers some aspects (including aircraft hijacking and sabotage, acts against the safety of maritime navigation, attacks against internationally protected persons, hostage-taking, and unlawful possession of nuclear materials) but not others. Thus, the assassination on land (outside an airport) of a person who is not internationally protected does not yet constitute an international offence, if it is not embroiled in hostage-taking. 60 International offences are different from domestic offences in several important respects. First, the establishment of universal jurisdiction is linked to international offences. 61 The international criminalization of an act does not automatically imply universality of jurisdiction. For example, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide envisages (in Article V I ) trial either by an international penal tribunal or by a domestic court of the State " i n the territory of which the act was committed , \ 6 2 Yet, other international offences do entail universal jurisdiction. 63 Such a possibility does not exist when 58

For a list of international offences, see Yoram Dinstein , International Criminal Law, Israel Law Review, vol. 20, 1985, 206 et seq., 207-221. 59 United Nations Juridical Yearbook, 1979, 124. 60 See Yoram Dinstein , The Right of Self-Defence against Armed Attacks, in: Magnus D. Sandbu / Peter Nordbeck (eds.), International Terrorism, Lund 1989, 57 et seq., 59-60. 61 See Malcolm N. Shaw , International Law, Cambridge 1991 (3rd ed.), 411. 62 United Nations Treaty Series, vol. 78, 277 et seq., 280-281. 63

See Kenneth C. Randall, Universal Jurisdiction under International Law, Texas Law Review, vol. 66, 1987-1988, 785-841.

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the offence involved is merely domestic. The universality principle is simply inapplicable to domestic offences. Secondly, there is a growing trend to remove international offences (and, occasionally, certain domestic offences) from the ambit of operation of the political offences exception to extradition. Some commentators even maintain that there is eo ipso an "exception to the exception" (of the political offences clause in extradition treaties) in the case of all international offences. 64 Whereas this sweeping generalization is debatable, the fact is that — insofar as specific international offences are concerned — the exemption now ensues from explicit exclusionary provisions in treaty form (for instance, the 1977 European Convention on the Suppression of Terrorism 65 ). Thirdly, the celebrated principle of aut dedere aut judicare can only be fully operative as regards international offences (assuming that they are incorporated into domestic penal codes). 66 Ordinarily, the dedere side of the question is accentuated. But a good look should be taken at the judicare part. Is the requested State genuinely capable of bringing to trial before its own courts a person charged in the requesting State w i t h a domestic offence committed in the latter's territory? Apart from obvious practical difficulties (summoning witnesses, etc.), there are two major juridical impediments to the extra-territorial trial of the offender: (i) Probable absence of jurisdiction. O n l y in exceptional circumstances w i l l the requested State be possessed w i t h legitimate jurisdiction over an offence committed in the territory of the requesting State (e. g.y on the ground of the nationality of the offender or of the victim). As pointed out, the universality principle is limited to international offences. (ii) Non-existence of double criminality. The rule of double criminality is discussed at length in the literature in the context of the duty of rendition (dedere). 6 7 However, it must be underscored that prosecution (judicare) is out of the question if the alleged offender has not committed any crime in the requested State. 64

See Bassiouni (note 9), 438, 450. European Convention for the Suppression of Terrorism (note 18), 42. Whereas Article 1 of the Convention (chiefly relating to international offences) employs the unequivocal language: "none of the following offences shall be regarded as a political offence", Article 2 (dealing with serious offences involving violence in general, i. e. domestic offences) gives contracting parties merely an option not to regard them as political offences. See MüllerRappard (note 19), 400-401. 66 O n the principle aut dedere aut judicare and the problems arising in its application, see Joseph J. Lambert , Terrorism and Hostages in International Law, Cambridge 1990,187203. 65

67

See, e. g.y Geoff Gilbert , Aspects of Extradition Law, Dordrecht / Boston / London 1991, 47-54.

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V I I . Concluding Comments Extradition law is like a tapestry. While it takes countless threads to weave the embroidery, the tapestry must be looked at as a whole for the pictorial design to emerge. Thus, the rule of double criminality cannot be divorced from the rule of specialty, and the political offences clause cannot be separated from the fair trial requirement. When the multiple strands forming extradition law are considered together, it becomes much easier to discern the reasons for the peculiarities of the Europeancontinental and the Anglo-American legal systems. I n the continent, only foreigners are extraditable 68 and — perhaps not coincidentally — it is virtually enough to have a warrant of arrest from the requesting State; 69 since not much is required, a provisional arrest in the requested State is limited to a short interval: 18 to 40 days. 70 Contrastingly, in Anglo-American countries, nationals are also extraditable, 71 but the requesting State must produce prima facie evidence of guilt 7 2 (or show a "probable cause" 73 ); inasmuch as the preparation of evidence sufficient to meet this standard is time-consuming, provisional arrest is extended for a period of up to 60 days. 74 The suggestion that "[ejxtradition is of declining importance throughout the w o r l d " 7 5 is empirically untenable. Notwithstanding the increase in instances of "irregular" extradition, issues of proper extradition continue to arise — and to demand the attention of legislators, treaty-makers, judges and scholars — in almost every country. Some countries (primarily Switzerland 76 ) are more frequently affected by these issues than others, but no country can be totally oblivious to extradition. W i t h the growing incidence of international offences like terrorism, on the one hand, and the expansion of the international protection of human rights, on the other, the continued study of extradition in all its manifestations is justified now more than ever.

68

See I. A. Shearer , Extradition in International Law, Manchester 1971, 102-110. Cf. Article 6 of the European Convention on Extradition (note 8), 176. 69 See Article 12 (2) of the European Convention on Extradition, ibid., 178. 70 See Article 17 (4) of the European Convention on Extradition, ibid., 180. 71 See Shearer (note 68), 97-102, 110-114. 72 See ibid., 150. 73 See Bassiouni (note 9), 507. 74 See ibid. , 530. 75 Michael Akehurst, A Modern Introduction to International Law, London / Boston / Sydney/Wellington 1987 (6th ed.), 109. 76 See H. P. Wissmann, Provisional Arrest, Release and Bail in Switzerland, International Review of Penal Law, vol. 62, 1991, 377 et seq., id.

Law of Asylum — A Solution to the Migration Problem? A Study Concerning Aspects of Public International and European Law with Regard to Aliens and Asylum under Special Consideration of the Law of the European States and the United States of America By Stephan H o b e *

I. Introduction Besides the global challenge of environmental destruction, the world community and the European States in particular face another problem of a dimension which cannot yet be precisely estimated. I n the last couple of years migration has become a problem which is increasing rapidly. 1 Especially concerning is the number of persons seeking asylum. The actual figure of refugees for 1991 was estimated at 17 million, 90 per cent of whom come from developing countries. 2 For the Federal Republic of Germany the figure for 1991 was about 250,000,3 and for the whole European Community approximately 450,000.4 I n 1992 there were about 430,000 applicants in Germany, and 550,000 in all EEC countries. 5 Although the whole 20th century has been called "the century of refugees", 6 the dimension of the problem due to the diversification and multiplication of the streams of refugees and migrants has been considerably enlarged during this century, and in particular since 1950.7 A t first, i. e. after World War I I , there was mostly an East/West * Status of manuscript: 30 September 1993. 1 Migration can be defined as the permanent voluntary change of residence of single persons or groups of people into a different region or country, see Annette Treibe I, Migration in modernen Gesellschaften, Weinheim / München 1990. 2 Yearbook of the United Nations 1991, 701. 3 Bulletin of the government of the Federal Republic of Germany Nr. 5 of 15 January 1993; see also Hans Ingo v. Pollern, Die Entwicklung der Asylbewerberzahlen im Jahre 1992, in: Zeitschrift für Ausländerrecht 1993, 26. 4

According to U N H C R , cited by Olaf Reermann, Landesbericht, in: Kay Hailbronner (ed.), Asyl und Einwanderung im europäischen Vergleich, 1992, 17. 5 Information gathered from the Ministry of Interior Affairs, Kiel, Schleswig-Holstein. 6 Otto Kimminich, Grundprobleme des Asylrechts, Darmstadt 1983, 46. 7 O n the general migration problem and its diverse facets see Peter J. Opitz , Das Weltflüchtlingsproblem im 20.Jahrhundert, in: Aus Politik und Zeitgeschichte 1987, B 26, 25 which

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migration movement whereas in the 1960s migration from developing countries mostly in Africa and Asia became more apparent. Today, after the end of the East / West conflict and the decline of communism, the international community in general and Europe in particular is confronted w i t h two big streams of migrants: one from the Eastern European States8 and another from developing countries in the Southern hemisphere. 9 Besides these two, another factor constantly contributing to the migration movement are persons coming from areas of natural disasters or of ethnic or political conflicts like former Yugoslavia. Because of its relative economic, political and social stability, Western Europe is one of the most likely target areas for refugees and migrants and Germany one of the preferred countries. According to estimates of the International Committee of the Red Cross, 500 million persons in the world are actually in the process of migrating, a figure which could double by the year 2000. 10 Therefore, in almost every European State a discussion has started on how to deal w i t h this movement. Since many seek political asylum, changes in the respective laws of asylum are under consideration in many States, and, from a European perspective, the start of the Common Market on 1 January 1993 drastically demands for a harmonized European solution to the problem. Against this background it seems necessary and useful to distinguish between different sorts of migrants and, consequently, different layers of law applicable to them. Roughly speaking, there are four groups: the alien who comes as a tourist to another country, the political refugee seeking asylum, the person seeking protection from civil wars and natural disasters, and, the person coming for economic or social reasons. 11 As w i l l be made apparent in the following discussion, the applicable law actually does not always distinguish between these different sorts of foreigners. It is an underlying hypothesis of this study that many problems arise because of the current equal legal treatment of profoundly different sorts of aliens. By its very nature the whole issue concerning the status of aliens in general and refugees in particular involves an international, a European and a describes the historical context of the great streams of refugees in the 20th century; see also Peter J. Opitz, Welten im Aufbruch: Flüchtlings- und Migrationsbewegungen, in: Außenpolitik 1991, 261; Ludger Kühnhardt, Die Flüchtlingsfrage als Weltordnungsproblem. Massenzwangswanderungen in Geschichte und Politik, Wien 1984; Franz Nuscheier, Nirgendwo zu Hause. Menschen auf der Flucht, Baden-Baden 1984; Weltbevölkerungsbericht 1992, ed. by Deutsche Gesellschaft für die Vereinten Nationen, Bonn 1992, 22 et seq. 8 According to estimates 13 million people of the former Soviet Union are considering going to the West, see Albert Mühlum, Armutswanderung, Asyl und Abwehrverhalten. Globale und nationale Dilemmata, in: Aus Politik und Zeitgeschichte 1993, 3 (7). 9

For an overview see Kimminich (note 6), 42 - 46. Cited by Stiftung Entwicklung und Frieden (ed.), Globale Trends, Daten zur Weltentwicklung, Düsseldorf 1991, 94 et seq. 10

11

See Rüdiger Wolfrum, Bürger unterschiedlichen Rechts, aber nicht rechtlos, in: Das Parlament N r . 2-3, 8./ 15. January 1993, 7.

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national legal perspective. Therefore, the following analysis w i l l first investigate the international law framework, second highlight the European perspective which provides special legal treatment to EEC aliens at the regional level, third describe the legal situation in selected European countries which shall allow for a comparative analysis of the different legal standards and the necessity of harmonization, and fourth, draw some conclusions from this comparative analysis w i t h a view to examining possible approaches in the law of aliens to dealing w i t h the overall migration problem. It thereby in no way negates the fact that legal regulation is only a small contribution to the overall problems which involve economic, social, sociological and demographic aspects.12

II. The Framework of Public International Law According to international law, immigration and the legal status of aliens is regulated primarily by the host State. International law provides only a limited regulatory framework by granting a minimum standard of treatment to aliens in the respective territory. I n ancient times 13 aliens did not possess legal rights nor did they belong to communities other than their own and were as such treated as outcasts and enemies. It was a combination of common personal elements such as birth, language and creed that constituted a community. If an alien was recognized as a fugitive, he / she received more favourable treatment and was granted asylum and hospitality. Hospitality was seen as a duty provided for partly by law. 1 4 Treaties also provided foreigners w i t h some protection such as the Roman Hospitium Publicum agreements, which operated in favour of several or indeed all the inhabitants of other countries, and the Isopolity treaties of ancient Greece, according to which citizenship was granted on a mutual basis. The law of hospitality developed further during the Middle Ages and the alien's status was transformed into a legal position subject to certain restrictions such

12

See for a similar view Otto Kimminich, Asylgewährung als Rechtsproblem, in: Aus Politik und Zeitgeschichte 1992, 3. 13 See generally on the law of aliens V. Arnold, Aliens, in: Bernhardt (ed.), Encyclopedia of Public International Law (EPIL) 8, Amsterdam / New Y o r k / O x f o r d , 1985, 6, Jan H. W. Verzijl, International Law in Historical Perspective, vol. V, Leiden 1972, 402 et seq.; specifically on the law of asylum Kimminich (note 6), 7-41. 14

See Kimminich (note 6), 12 on asylum. The term asylum, meaning "without capture or violation" originated in ancient Greece. It had two sources, a legal one derived from the law of aliens and a religious one, providing protection from the Gods. See United Nations High Commissioner for Refugees ( U N H C R ) , Quaderni: A n Instrument of Peace, Rome 1991, 34 et seq. See ibid, for a comprehensive overview of the Hebrew, Muslim and Christian tradition of asylum.

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as time and region. This improvement in the. alien's position was a consequence of the growth of trade which occurred in the Middle Ages. I n the 17th century aliens were treated like nationals according to the provisions of the commercial treaties of the time. States were sometimes under a duty to admit aliens as a result of trade agreements and likewise aliens were allowed to leave the country at the outbreak of war. It was, however, after the influence of the natural law period and later the French Revolution and the American Constitution in the 18th century, that an international standard for the treatment of aliens developed. Around the same time the international law of asylum came into existence as a consequence of the emergence of the modern sovereign nation State after the Westphalian Peace of 1648. 15 The right of a State to grant diplomatic protection for its citizens abroad was founded on the responsibility of States for their citizens. Once an alien was admitted into a State he / she was treated according to a minimum standard which was determined by international custom. This concept was derived from customary international law during the 19th century where a number of legal rights were contained in treaties, comparable to the minimum standard applied in the past. 16 The protection of minority groups followed that of individuals, and after World War I the level of protection for such groups reached its peak. 17 I n the subsequent years there was a failure to recognize individual human rights for members of minorities on an international level. The historical development of rights, in conclusion, does reveal a trend in States to legalize the status of foreigners and observe at least a minimum standard of treatment. When considering the current international situation, it should first be noted that international treaty law w i t h regard to foreigners does not contain any legal obligation for States to grant immigration to foreigners. 18 Each successive attempt to lay a basis for such a right in international treaty law has been unsuccessful. Although Article 14 of the Universal Declaration of Human Rights of 1948 has provided the guarantee of asylum from persecution, this legally non-binding provision has not been included in the two Human Rights Covenants, nor in

15

See Kimminich (note 6), 18. See Atle Grahl-Madsen , The Status of Refugees in International Law, vol. 1, Leyden 1966, 9. 17 See for a list of instruments contained in the League of Nations system U N Doc. E / CN.4 / Sub.2 /214 / Rev. 1; U N Doc. E / C N . 4 / S u b . 2 / 2 2 1 / R e v . l ; see also for texts before 1927 on the Protection of Linguistic, Racial and Religious Minorities by the League of Nations, Provisions Contained in the Various International Instruments A t Present in Force, Geneva, August 1927, League of Nations Publications I B Minorite 1927, I I B 2. For an overview see also Patrick Thornberry , International Law and the Rights of Minorities, Oxford 1991, 38 et seq. 16

18 See Christian Tomusch at, A Right to Asylum in Europe, Human Rights Law Journal, vol. 13, 1992, 257.

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regional conventions o n h u m a n r i g h t s . 1 9 Such a r i g h t cannot be derived f r o m a so-called " i u s c o m m u n i c a t i o n i s " 2 0 o b l i g i n g States t o participate i n international relations, n o r is such a r i g h t contained i n Basket I I I o f the H e l s i n k i A c c o r d o f the 1975 Conference o n Security and C o o p e r a t i o n i n E u r o p e 2 1 , w h i c h o n l y asks f o r the facilitation o f the i m m i g r a t i o n process. M o r e o v e r , l i k e i n treaty law, n o r i g h t t o a s y l u m has evolved yet i n c u s t o m a r y law, a l t h o u g h there is a m i n i m u m standard o f treatment for aliens. 2 2 I n principle, all foreigners are subject o n l y t o the rules and regulations of the host State. 2 3 T h u s , general international l a w does n o t p r o v i d e foreigners w i t h the identical treatment and status enjoyed b y citizens. 2 4 O n the other hand, internat i o n a l l a w puts some l i m i t s o n the treatment o f foreigners b y the host State. 2 5 T h u s , the host State has t o grant a m i n i m u m standard o f rights as s o o n as a foreigner is inside the t e r r i t o r y o f the host State. T h i s m i n i m u m standard includes respect f o r the legal personality o f the foreigner, his / her r i g h t t o life, the safety o f his / her person and the i n v i o l a b i l i t y o f his / her b o d y . 2 6 T h e host State also 19 This, however, does not mean that a State is absolutely free to expel or return foreigners, see below notes 25 - 34 and accompanying text. 20

For a dogmatic description of this right see Jost Delbrück, International Communications and national sovereignty-Means and scope of National Control over International Communications (Sea, Land and A i r Traffic, Telecommunications), in: Thesaurus Acroasium X V , Thessaloniki 1987, 81, 84-94. 21 Reprinted in International Legal Materials (ILM), vol. 14, 1975, 1292-1325; German source: Bulletin des Presse- und Informationsamtes der Bundesregierung, Bonn 15.08.1975. See for a legal classification of the declaration of the CSCE as "declaration of political intent" Alfred Verdross/Bruno Simma, Universelles Völkerrecht, 2. Aufl., Berlin 1981, 274; Horst Fischer, in: Knut Ipsen, Völkerrecht, München 1990, § 59, Rz. 46. 22

Ian Brownlie, Principles of Public International Law, 4th ed. Oxford 1990, 559; Kimminich (note 6), 47; Albrecht Randelzhofer, Rz. 14, 15 to Article 16 paragraph 2 Grundgesetz, in: Theodor Maunz / Günter Dürig / Roman Herzog / Rupert Scholz, Kommentar zum Grundgesetz, loseleaf, status 1985. Authors who consider the Universal Declaration of Human Rights to be customary international law must consequently claim the customary nature of a law to asylum; see for a discussion of problems of such an interpretation Christoph Gusy, Asylrecht und Asylverfahren in der Bundesrepublik Deutschland, Königstein 1980, 44; Theodor Veiter, Menschenrechte, Menschenrechtskonvention und Flüchtlingsrecht im Weltjahr der Menschenrechte, in: Theodor Veiter (ed.), Asylrecht als Menschenrecht, Wien 1969, 52, 53 and especially note 84. 23 See Judge Read's Dissenting opinion in the Nottebohm Case, ICJ Reports 1955, 46; Richard Plender, International Migration Law, Leiden 1972, 94. 24 To the problem of equal treatment see Karl Doehring, Die allgemeinen Regeln des völkerrechtlichen Fremdenrechts und das deutsche Verfassungsrecht, Köln / Berlin 1963, 16 et seq. 25 Karl Doehring, Die staatsrechtliche Stellung der Ausländer in der Bundesrepublik Deutschland, quoting BVerfGE 23, 316 points out correctly that the minimum standard has no fixed contents but is subject to the change of customary international law. 26 See Andreas H. Roth, The Minimum Standard of International Law Applied to Aliens, La Haye 1949, 81 seq.

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has a legal duty to protect foreigners against any aggressive act. 27 Moreover, foreigners have to receive equal treatment w i t h regard to aspects of fair trial, especially during the asylum and extradition procedures. Neither the Geneva Convention on the Status of Refugees 28 nor the European Convention on Human Rights 2 9 require, however, a procedure before a court as long as the decisionmaking authority is independent of the authority responsible for foreigners and can make binding decisions as well as grant the right to a hearing to a possible claimant. The Geneva Convention Relating to the Status of Refugees of 1951 is the Magna Charta for refugees, guaranteeing certain minimum rights to refugees. According to the definition contained in Article 1, paragraph A(2) and Article I of the 1967 Protocol to the Convention 3 0 , a refugee is a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Thus the objective criteria of persecution is linked to the subjective criteria of personal fear. 31 Accordingly, the applicant for asylum has to prove that, because of the concrete situation in his / her home country, his / her return is an unreasonable demand. 32 Moreover, according to the principle of non-refoulement of Article 33 of the 1951 Convention, the contracting parties are prohibited from expelling a refugee to territories or countries in which his / her life or liberty (freedom) would be threatened because of the existence of any of the reasons provided in the Convention. Non-refoulement, however, applies only to persons who, lawfully or unlawfully, have crossed the border into a host State.33 The principle is not yet part of customary international law. 3 4 27

Verdross/ Simma (note 21), 586; see also Draft Convention on the Responsibility of States for Injuries to Aliens, American Journal of International Law (AJIL), vol. 55, 1961, 548 et seq. 28

Source: 189 U.N.T.S. 137, [hereinafter 1951 Convention]. Source: Europ. T.S. No. 5, 213, 213 U.N.T.S. 221. 30 Source: 606 U.N.T.S. 267, [hereinafter 1967 Protocol]. 31 Wolfrum (note 11), 7; Jochen A. Frowein / A. Zimmermann, Der völkerrechtliche Rahmen für die Reform des deutschen Asylrechts, Köln 1993, 2 et seq. 32 Wolfrum, id.; Frowein / Zimmermann, id., 2; implicitly also Gusy (note 22), 54 et seq. 33 Kay Hailbronner, Non-refoulement and Humanitarian Refugees: Customary International Law or Wishful Political Thinking?, Virginia Journal of International Law, vol. 27, 1986, 857 et seq. 29

5 GYIL 36

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The legal status of aliens as well as of refugees is such that they must not be discriminated against from an economic perspective but may be denied certain political rights, and accordingly may not receive the same treatment as nationals. More generally, in many areas of life there is a duty of the host State to provide equal treatment, i. e. to grant aliens the same protection of human rights and to allow equal participation in economic, social and cultural life. I n this respect public international law does not provide any limitation for such equal treatment. The only exception exists in the sphere of certain rights which are, in practice, derived from nationality as such. The legal distinction between alien and national becomes, however, less important the more an alien is integrated into the host society. Here law can make an important contribution to the process of assimilating aliens into the host society by improving the alien's legal status and thereby encouraging aliens to cut old bonds and thus diminish the importance of the former countries of origin. 3 5 It is therefore an important task of domestic legislation w i t h regard to aliens to clearly indicate the point in time when the foreigner shall receive additional rights.

I I I . The European Law Perspective There is special legislation, especially for inhabitants of the European Community, laid down mainly in the EEC Treaty and European Secondary Law which effectively awards a privileged status to EEC nationals in other States of the Community. 3 6 34

See Gilbert H. Gornig y Das Refoulement Verbot im Völkerrecht, Wien 1987, 72; Atle Grahl-Madsen y Territorial Asylum, Stockholm 1980, 42; Randelzhofer (note 22), Rz. 14; Frowein / Zimmermann (note 31), 17-29 with reference to State practice, who designate "non-refoulement" as a norm "in statu nascendidissenting Kay Hailbronner , in: W. G. Beitz / M. Wollenschläger (eds.), Handbuch des Asylrechts, Baden-Baden 1981, 90; Hans Ingo v. Pollern y Das moderne Asylrecht, Berlin 1980, 127. One might conclude that because of the inclusion of the non-refoulement principle in international instruments and treaties including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, G A res. 39/46 of 10 December 1984, in: G A O R 39th Sess., Suppl. 51,197; the Declaration on Territorial Asylum, Article 3, G A res. 2312 ( X X I I ) of 14 December 1967, in: G A O R 22nd Sess., Suppl. 16, 81, the Human Rights Committee's Comment which states that the Covenant on Civil and Political Rights may protect an alien seeking entry where concern for the prohibition of inhuman treatment arises, see General Comment 15, Report of the Human Rights Committee, in: G A O R 41st Sess., Suppl. 40, 117; and State practice this principle is about to become customary international law and thus can best be described as a norm of customary international law "in statu nascendi 35

Thus correctly Georg Bartels / Jost Delbrück / Klaus Wiegel y Vorschläge zur Reform des Ausländerrechts, in: D. Grunow / H. Harback / F. Hegner (ed.), Integration ausländischer Arbeitnehmer, Bonn 1976, 200, 234. 36

See for an overview on European aliens and asylum legislation Friedrich und Ausländerrecht in der Europäischen Gemeinschaft, in: DVBl. 1992, 525.

Schoch y Asyl-

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According to Article 48 of the EEC Treaty, workers have the free right to enter a country, but only for the purpose of working. 3 7 The same freedom of establishment for self-employed workers is granted in Article 52. Both freedoms have been expanded by directives w i t h regard to the status of the family of the worker 3 8 and of retired people 39 , as well as by the jurisprudence of the European Court of Justice. 40 I n 1990, the EEC enacted three directives aiming at a complete freedom of movement for workers in Europe. 41 Moreover, since 1 January 1993, according to Article 3 of the EEC Treaty, the Free Internal Market in Europe has abandoned, in principle, border controls at the frontiers between EEC member States. This tendency toward free movement for all European citizens regardless of the reason, w i l l be strengthened further if the Maastricht Treaty of 7 February 1992 which amends the EEC Treaty enters into force. According to Article 8 of this Treaty, European citizenship w i l l be introduced which grants the right of free movement to each "European citizen" regardless of the motive of the stay abroad and, moreover, even grants political rights like the active and passive right of election to the European Parliament and at the municipal level in the country in which the respective citizen lives. 42 However, all provisions in the present or future EEC treaties are only concerned w i t h EEC citizens. The EEC, acting according to the principle of individual authorization (Einz eiermäch tigung) 43, does not have any-competence yet to regulate the entry and residence of non-EEC citizens; this competence still remains w i t h the States.44 The new Maastricht Treaty, however, which could have awarded a competence in the field of asylum policy and law to the EEC, w i t h the Council being enabled to make regulations under observation of the principle of subsidiarity (Article 100 c and d as well as Article k — k9), deals extensively w i t h asylum, and makes it clear that this area, in principle, pertains to the field of intergovernmental cooperation, "without prejudice to the powers of the European countries"

37

See for an extensive interpretation of the notion of worker Case 139/85, Decisions ot the ECJ 1986, 1741 et seq. 38 Council Regulation No. 1612/68 of 15 October 1968 (Art. 10-12), Official Journal of the European Communities (OJ), 1968 L 257/2. 39

See directive 90/365 of 1990. Case 293/83, Gravier, Decisions of the ECJ 1985, 606 (concerning students as persons not yet working); see also directive 90/364. 40

41

Directives 90/364, 90/365 and 90/366, OJ 1990, L 180, 26 et seq. For a general assessment of the legal problems see Stephan Hobe, Die Unionsbürgerschaft nach dem Vertrag von Maastricht. A u f dem Weg zum europäischen Bundesstaat?, in: Der Staat 1993, 245. 42

43 44

*

Thomas Oppermann, Europarecht, München 1991, 432 et seq. Tomuschat (note 18), 260.

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(Article K l ) . This non-authorization of the EC prompted a declaration of intergovernmental communication for a harmonization of the relevant policies. 45 Within the framework of the existing law, regulation 1408 / 71 regulates the social security of working people and their families residing in the EEC. This provision is enlarged to include "refugees in the territory of a member state and their families", who are entitled to certain social benefits and in this respect to the same legal status as EEC citizens. 46 Due to the lack of a common European regulation on the migration of citizens from non-EEC States, some member States (Germany, France, Belgium, the Netherlands and Luxemburg, w i t h Italy, Spain and Portugal later acceding) have concluded the Schengen Agreement of 14 June 1985 (Schengen I), which was amended by a Protocol of 19 June 1990 (Schengen I I ) . 4 7 These agreements attempt to harmonize the law of asylum in light of the falling of frontiers between these States. They succede more or less only in harmonizing the respective procedural provisions like, e. g., giving only one country the competence to deal w i t h an application of asylum. 48 Like the Schengen Agreements, the Dublin Agreement of 1990 49 , which was signed by all EEC member States, is another attempt at harmonization. It promotes the principle that each person should apply for asylum in the country where he / she first entered the E E C . 5 0 Moreover, each applicant for asylum has the individual right to have his / her application investigated and decided upon. Unfortunately, European efforts to harmonize the law of asylum by regulating some procedural questions have had only marginal results.

I V . Legal Regulations in Different European States and the US As briefly mentioned in the previous section, the situation in Europe since the start of the Common Market requires a uniform substantive and procedural regulation concerning the law of asylum, but the factual as well as the legal situation differs considerably among the EC member States.

45

See Tomuschat, id. , 260; Schoch (note 36), 529. Source: Journal Officiel 1971, L 149, 2 et seq. and new version 2001/83, OJ 1983, L. 230/6 et seq. as well as directive 574/72, OJ 1972 L. 74/1 et seq. 47 Schengen I of 14 June 1985 and Schengen I I of 19 June 1990, German Source: Bundesanzeiger N r . 217a of 23 November 1990. 46

48 49 50

See especially Articles 28-38 of the Schengen I I Agreement. Source: EC Bulletin 6, 1990, 155. The Dublin Agreement, Articles 5-9.

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1. Germany Germany's entire legal regulation of aliens is based upon the fact that the country still considers itself a non-immigration country. Consequently the law of aliens in general, and the law of asylum in particular, provide the regulatory framework for the treatment of aliens. The situation in the Federal Republic of Germany is characterized by a dramatic increase in the number of people seeking asylum. Between 1982 and 1991 the number of asylum seekers, has increased from 37,423 in 1982, to 256,112 in 1991 and 430,191 in 1992. 51 I n contrast, the number of those who have been recognized as refugees is relatively low, varying in the years of 1988 to 1991 between 8.6 per cent and 6.9 per cent. 52 W i t h this number of asylum seekers Germany receives approximately 60 per cent of those seeking asylum in the EC. The high number of asylum seekers has heavily burdened the administrative authorities; 114,194 cases were pending before the authority in charge, the Federal Bureau for the Recognition of Foreign Refugees (the Bundesamt für die Anerkennung ausländischer Flüchtlinge), and some 57,471 court cases were lodged w i t h the courts in 1991. 53 This has led to an intensive political discussion on adminstrative and legal changes in the asylum provisions in Germany. The Federal Republic of Germany, which has been a Party to the 1951 Convention as well as the 1967 Protocol since 1969 54 , had until 1 July 1993 a constitutional guarantee in Article 16 paragraph 2 s. 2 of the German Basic Law to an individual right to asylum for refugees. 55 Moreover, Article 19 paragraph 4 of the Basic Law guarantees the right for everyone to seek judicial protection before the courts. 56 The administrative procedure for the recognition of political refugees is laid down in a federal law concerning the asylum procedure (Asylverfahrensgesetz) of 15 July 1982, 57 as amended on 1 January 1991. The constitutional provision of Article 16 paragraph 2 guaranteed the right for those seeking political asylum to stay in the country temporarily until the application is turned down, or the respective person has been recognized as a refugee. This right was only denied when the application had no chance of success whatso51 52

See, e. g., Reermann (note 4), 17. And 4.25 % in 1992, see v. Pollern (note 3), 31 (quoting German official sources).

53

See Reermann (note 4), 18. Sources: BGBl. 1953 II559 (Convention) and BGBl. 1969II1294,170II194 (Protocol). 55 See for a general description of this previous German legal situation Kimminich (note 6), 95 et seq.; v. Pollern (note 34), 266 et seq. and Randelzhofer (note 22). 54

56

See Eberhard Schmidt-Aßmann, in: Maunz / Dürig / Herzog / Scholz, (note 22), Art. 19 para. 4. 57 O f 16 July 1982, BGBl. I, 946, as amended by 12 October 1990, BGBl. I, 2170.

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Hoe

ever, 58 but the standard for deciding this, that an application \s prima facie unfounded, was very high due to constitutional jurisprudence. 59 Applications had to be submitted to the authority dealing with aliens (Ausländerbehörde) which heard the alien's case and then sent the matter to the Federal Authority (Bundesamt) which investigated the case, and, again, took evidence from the alien. The alien could appeal against the decision of the Bundesamt before the administrative court. I n certain cases, it was also possible to appeal against the decision of the administrative court. The rapidly increasing number of applicants for political asylum in recent years has prompted numerous efforts to reshape the German law of asylum, mostly in order to facilitate quicker decisions on refugee status. I n 1992, the Asylverfahrensgesetz fects:

was changed 60 again, w i t h the following ef-

— creation of central refugee camps in the German states (Länder), — creation of one central authority competent to receive applications and hear applicants (Bundesamt), — centralization of decisions on a likely threat of exposure to torture or degrading and inhuman treatment or threat of the death penalty in the Bundesamt, — institution of new procedures including a shorter period of time to appeal before the courts against the decision of the Bundesamt, new preclusion rules and the limitation to one instead of three judges on the bench. Moreover, a change in the Constitution was decided upon 26 May 1993 by the Bundestag, and is effective as of 1 July 1993. 61 As any change of the Constitution requires a two-third majority, long negotiations between the governing coalition and the opposition have been necessary. This led to the following new Article 16 a of the Basic Law: the guarantee of political asylum still exists in paragraph 1 of this new article, according to which "persons persecuted on political grounds shall enjoy the right of asylum." But the following paragraphs of the provision limit this general guarantee by stating that — refugees from States (of the EEC or third countries) where the application of the Geneva Convention is assured cannot invoke this right (paragraph 2). 58 59 60

BVerfGE 56, 216, 236. BVerfGE 67, 43, 57 et seq.

See BGBl. 1992 I, 1126. See for an assessment of the conformity of the constitutional changes w i t h international law Andreas Zimmermann, Asylum Law in the Federal Republic of Germany in the Context of International Law, in: ZaöRV 1993, 49. 61

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Moreover, — federal law is to determine those countries in which no grave political persecution or degrading punishment takes place. People coming from such countries, so-called safe third States, are not considered as refugees unless they provide evidence that they do not fall into this category (paragraph 3). Finally, w i t h regard to the procedural side of the law of asylum one finds the new regulation that — the execution of the termination of the stay in the country (expulsion) in these cases and in cases where the request for asylum is obviously unfounded, shall only be suspended if there are serious doubts as to the legality of the measure. 62 Accompanying this constitutional change, there was a general understanding that due to bilateral agreements of the Federal Republic of Germany w i t h Poland and the Czech Republic, — both recognized as safe third States — special conditions as to the treatment of refugees as well as German financial support to these countries enabling them to master the situation of people seeking asylum in their country should be negotiated. Such an agreement w i t h the Polish Republic was concluded on 7 May 1993 providing Poland w i t h financial aid in the amount of 120 million Deutsche Mark to enable Poland to provide facilities to host refugees which, according to Schengen, are being transferred back to Poland. 63 The agreement and the constitutional change have been criticized for several reasons, but in summary it can be said, that, regardless of political arguments on the necessity for such restrictions, they are neither unconstitutional, leaving the "untouchable core" of the constitution (Article 79 paragraph 3 and Articles 1 and 20 of the Basic Law) intact, nor do they violate international law or the principle of non-refoulement. 64 Moreover, the inter-party agreement includes the understanding that the law of nationality shall be reviewed w i t h a view to facilitating the acquisition of German citizenship on the one hand, and restricting the possibility of acquiring German nationality in cases where no clear connection to the German territory 62

The text for this constitutional change can be found in BGBl. 1993 I, 1002. See Frankfurter Allgemeine Zeitung N r . 106 of 8 May 1993, 3. Negotiations with the Czech and Slovac Republic are still pending. 64 See Zimmermann (note 61), 86 et seq. for a similar assessment as to the conformity w i t h international law. For a constitutional assessment of the changes of the former guarantee of art. 16 para. 2 s. 2 of the Basic Law see Albert Bleckmann , Verfassungsrechtliche Probleme einer Beschränkung des Asylrechts, Köln et al. 1992, 40-65 and Kay Hailbronner , Advisory opinion for the Committee of Interior Affairs on the Draft of the Federal Law Changing Article 16 of the Basic Law (Konstanz, 26 February 1993, unpublished; manuscript with the author). The constitutionality of the new law has been, however, put into question by several claims which have been brought to the Bundesverfassungsgericht after its entry into force. 63

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exists on the other hand. 65 It should be mentioned in this respect that until now, Germany has stuck to the principle that dual nationality should be avoided in all cases. However, provisions of the federal Aliens Act of 1990, in force since 1 January 1991 (§§ 85 — 87 Ausländergesetz), try to facilitate the acquisition of German nationality, particularly for migrant workers and their children who have either already lived in Germany for a long time, or were even born in Germany. These provisions are, however, still based on the principle of avoiding dual nationality. 6 6 2. France France which has a long tradition w i t h respect to refugees has recently changed its nationality law. Particular emphasis is put on some restrictions dealing w i t h the acquisition of nationality by children of aliens born in France. These children cannot automatically acquire the French citizenship any longer but must now specifically apply for it. Moreover, "third generation" children of parents born in the former French colonies or in the overseas territories can acquire the French nationality only if their mother or father live in France for at least five years. Dual nationality is, however, still accepted in France. These developments make evident a clear shift away from the principle of ius soli 67 Moreover, recent attempts of the French Government to restrict the law of asylum which were partly stopped by the Court Constitutional™ are still ongoing and might eventually lead to constitutional changes. I n France the right to asylum has two sources: 69 it is contained in the Preamble of the Constitution of 1946, paragraph 4, and in the Preamble of the 1958 Constitution which states that "everybody persecuted due to an activity in pursuance of liberty enjoys asylum in the whole republic." France has, moreover, ratified the 1951 Convention and the 1967 Protocol. The relevance of the constitutional 65

See Frankfurter Allgemeine Zeitung (note 63). See § 5.3 of the Naturalization Guidelines (Einbürgerungsrichtlinie) of 15 December 1977, 1978 GMBl. 16, reprinted in: Alexander N. Makarov / Hans v. Mangoldt, Deutsches Staatsangehörigkeitsrecht, 3rd ed. Frankfurt a. M . 1981, loseleaf, 9th installment 1987. 67 See for this tendency e. g. articles 4, 5, 9, 11 and 12 of the L o i n° 93-933 du 22 juillet 1993 reformant le droit de la nationality, in: Journal Officiel de la Republique Fran^aise of 23 juillet 1993, 10342 et seq. 68 See Conseil Constitutionnel, decision n° 99-325 D C du 13 aoüt 1993 sur la loi ä la maitrise de Pimmigration et aux conditions d'entree, d'accueil et de sejour des etrangers en France, Journal Officiel de la Republique Fran^aise, 18 aoüt 1993, 11722 et seq. 69 See for a general description of the law of aliens Jean Y. Vincent, Le regime juridique des etrangers en droit fran^ais, in: Jochen A. Frowein / Torsten Stein (eds.), Die Rechtsstellung von Ausländern nach staatlichem Recht und Völkerrecht, Berlin et al. 1987, 433-500, and especially on the law of asylum 485 et seq. See also Nicole Guimezanes, La situation en France des etrangers non communitaires ä Taube de Pannee 1993, Journal de Droit International 1993, 5. 66

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provisions is, however, unclear; until recently neither the Conseil d'Etat nor the Conseil Constitutionnel have explicitly applied these provisions in their judgements. 70 It seems, however, that the Court Constitutionnel in its most recent judgment has interpreted the constitution, including its preambular provisions to grant an individual right to asylum in France. 71 Moreover, France enacted some administrative rules during the 1950s which were consolidated in the 1980s and early 1990s.72 The procedure is centralized at the Office Frangais de Protection des Refugies et Apatrides (OFPRA), an authority under the supervision of the Foreign Office, and the Commission de Recours des Refugies, a special chamber of administrative courts for appeals against decisions of the OFPRA. The decision of the latter can be appealed before the Conseil d'Etat. As in Germany, the status of an applicant for asylum is that of an alien staying legally in France, w i t h the exception that such persons, unlike in Germany, could work in France until a final decision had been taken on their status. If someone was recognized as a refugee he / she received permission to stay in France for ten years and received the same treatment as nationals during this period of time. If the application by the commission was rejected, the applicant could appeal against the decision at the Commission de Recours; this appeal, however, had no suspending effect, w i t h the consequence that foreigners could be expelled while the appeal was still pending. Such an expulsion, however, has never been executed in practice. 7 3 I n 1991, the Conseil d'Etat ruled that according to the 1951 Geneva Convention, any refugee has the right to stay in France until the application has finally been decided upon. 7 4 I n France, like in Germany, the procedure takes a very long time, on average five years, until the final decision is made. 75 I n order to react to the rapidly increasing number of applications for political asylum in France, the right to work w i t h permission was practically eliminated in 1991, and subsidies for immigrants were reduced to a very low level. Moreover, by law in 1991, so-called transit areas were introduced, representing territory which does not belong to France and where French law does not apply, but where French authorities can still arrest persons who obviously do not have any right to immigrate. To a certain extent this was a legalization of a practice 70

See Karin Oellers-Frahm, Report on France, in: Hailbronner (note 4), 29. See Court Constitutionnel (note 68), 11723. 72 E. g. law concerning asylum of 25 July 1952 and implementing provisions of 2 May 1953 as well as regulation of 29 June 1989 and law of 1990, regulation of 12 November 1991 and law of 31 December 1991 against illegal immigration and work in France. 71

73 74 75

Oellers-Frahm (note 70), 33. Cited from id. Id.

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which had been exercised previously. 76 The Conseil Constitutionnel has declared the law legal in principle w i t h some exceptions as to the competence of the relevant judges. 77 3. United Kingdom Although the United Kingdom traditionally has not been an immigration country, it enacted specific legislation to control immigration as early as 1793. This law was fundamentally restructured w i t h the Immigration Act of 1971 and, for the first time in the history of the United Kingdom, distinguished aliens from Commonwealth citizens. The British Nationality Act of 1981 aims at controlling the "immigration" of "British subjects" from the Commonwealth who are not aliens under British nationality law. 7 8 Although the United Kingdom is Party to the 1951 Convention and the 1967 Protocol, neither are part of United Kingdom law. The applicability of these international legal norms is, however, explicitly recognized by the "statement of changes in immigration" of 1990. 79 Moreover, the Conventions can influence the interpretation of national law, for example in the Immigration Rules laid down by the Health Secretary as a practice to be followed in the administration of the Immigration Act of 1971. Paragraph 21 of the Immigration Act of 1971 says that: [w]here a person is a refugee full account is to be taken of the provisions of the convention and protocol relating to the status of refugees. Nothing in these rules is to be construed as requiring action contrary to the U K obligations under these instruments. Requests for asylum are normally made either at the port of entry (65 per cent in 1989) or after admission to the United Kingdom, and are decided by the Home Office (Immigration Department). 80 The United Kingdom does not grant asylum in cases of political persecution if the asylum seeker has the opportunity to receive asylum in a safe third State or if he / she has already been in a safe third State. 81 If the applicant files a request at the moment of immigration into the United Kingdom, appeal against a negative decision by the Home Office can be taken 76

Id 35 et seq. Decision of 25 February 1992, cited at id. 78 See Peter Malanczuk , Ausländerrecht und Einwanderungskontrolle in Großbritannien, in: Jochen A. Frowein / Joachim Wolf (eds.), Ausländerrecht im internationalen Vergleich, Heidelberg 1985, 63, 65 et seq. for a description of the development of the United Kingdom's law of aliens. 77

79 80

House of Commons paper 251 of 23 March 1990.

David O'Keefe , Asylum Law and Practice in the United Kingdom, in: Hailbronner (note 4), 38, 45. 81 Id., 48 et seq.; Richard Plender, The Legal Position of Aliens in National and International Law in the U K , in: Frowein / Stein (note 69), 1675, 1715.

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to a settlement tribunal composed of civil servants from the Home Office. Appeal against this decision can be made within two weeks to the Immigration Appeal Tribunal or to the H i g h Court. If an applicant files the request only after immigration into the United Kingdom, appeals to the settlement tribunal and the Immigration Appeal Tribunal and, eventually, to the H i g h Court are also possible. Applicants for political asylum have no right to work, but receive social welfare. 4. The Netherlands I n the Netherlands, as one of the smaller European countries w i t h approximately 21,000 applications for asylum in 1991, 82 both the 1951 Convention and the 1967 Protocol are in force. Moreover the Federal Code Concerning the Status of Aliens of 1965 (Vreemdelingenwet) as well as some administrative procedures, determine the Dutch law of asylum. The definition of refugee laid down in the Dutch Law of Aliens does not differ from the 1951 Convention. However, individuals who are hindered from returning to their home country due to the current political situation may be recognized as refugees for humanitarian reasons. 83 Moreover in cooperation w i t h the United Nations H i g h Commissioner for Refugees ( U N H C R ) the Netherlands accepts an annual quota of 500 refugees mostly from South East Asian countries. Applications for asylum are filed w i t h the municipal authorities and decided upon by the Ministry of Justice within a six-month period; if no decision has been taken within this period an application is deemed to be declined. Manifestly unfounded applications can be decided within one week; the same procedure is applied to applications at Amsterdam-Schiphol international airport. Negative decisions can be appealed at the Ministry of Justice within one month; its decision in turn can be appealed at the State Council. Whereas the former appeal has suspensory effect, the latter normally does not. I n January 1992 the law of asylum was reformed. Two new provisions in the Dutch Aliens Code introduced the obligation of asylum seekers to keep themselves available for the processing of the request, and the restriction of their freedom of movement after the application has been rejected. This is to accelerate the procedure w i t h the aim of reaching a decision within one month after the asylum application has been submitted. The second new element concerns those asylum seekers who, although their request has been denied, are not expelled for humanitarian reasons. They can ask for a so-called temporary expulsion waiver which gives them temporary residence for one year, but does not entitle them to social welfare but rather to services not open to asylum seekers; after three years they 82 I n 1988 there were 7,500, in 1989 14,000 and in 1990 21,000 asylum seekers, see Ruud Luiks, Country Report on the Netherlands, in: Hailbronner (note 4), 63; see also A. H. J. Swart, The Legal Position of Aliens in Dutch Law, in: Frowein / Stein (note 69), 869. 83

See Swart, id., 909 et seq.

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can receive a permanent residence permit. 8 4 As in other European States discussions on restructuring the law of asylum are currently taking place in the Netherlands. 5. Denmark Denmark, w i t h a relatively low number of refugees, 85 has ratified the 1951 Convention as well as the 1967 Protocol. The law regarding aliens is regulated by Law N r . 226 of 8 June 1983 as amended in 1986. According to this law, refugees have the right to stay in Denmark until the final decision on their application has been made. This right has however been restricted by the latest amendment in 1986, which allows the expulsion of refugees who come from safe third States without valid papers. Safe third States are States where a refugee is factually safe; it is not decisive, however, whether they have a safe legal position there. Unsuccessful applicants can pursue their requests from abroad, but a close connection to Denmark as target country must be made evident. Due to a restrictive practice only a small percentage of such requests from abroad are successful. The authority dealing w i t h requests is the Directorate for Aliens, an authority under the supervision of the Ministry of Justice. Appeals against decisions of this Directorate have to be made before the Authority of Refugees; they have a suspensory effect. The decisions of this authority are final and binding and therefore cannot be appealed before any court. 8 6

6. A Comparison of European Countries W i t h Germany, France, and the United Kingdom having received in 1991 more than 70 per cent of all asylum seekers in the EEC, their individual regulations are important; however, one must also consider the asylum laws and regulations in a broader European context. 87 The following comparison can be made between the asylum laws of EC and non-EC States: all EC member States and Austria, Sweden, and Switzerland have ratified both the 1951 Convention and the 1967 Protocol. Some of the States, namely Germany, France, Italy and Spain have a right to asylum explicitly contained in their constitutions, and only the German Constitution, until the recent changes, exceded the international legal standard, granting an individual right to asylum for refugees. Indeed the Federal Republic 84

For details see Luiks (note 82), 63 et seq. 4,416 in 1988, 4,588 in 1989, 5,300 in 1990 and 4,600 in 1991; see Reermann (note 4), 21. For further information see Lars Langkjaer / Dieter Stummel , Review of the Principle Features of the Legal Position of Aliens in Denmark, in: Frowein / Stein (note 69), 237 et seq. 85

86

See § 47 Danish Aliens Act, Act No. 226 of 8 June 1983. For reports on the legal situation of 31 EEC and non-EEC countries see Frowein/ Stein (note 69). 87

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of Germany —: until the most recent reforms — was the only country where this right was practically unrestricted. A l l other States have special legislation on the status of aliens, refugees, and asylum seekers with the exception of Ireland and Luxemburg. However, the standards as to legal protection by courts, the determination of "safe" third States and the standards of proof for political persecution are different, the latter legal term being interpreted differently from country to country. Moreover the standard for the examination of individual cases and the right to appeal varies. Lastly, social subsidies for asylum seekers and the possibility of working before being recognized as a refugee are subject to different legal regulations. 7. USA The immigration and nationality laws in the United States are of interest for this study because they can demonstrate how the problems under consideration are treated by a typical immigration country. United States immigration law makes several distinctions between persons seeking admission to the United States. First, it distinguishes non-immigrants like temporary visitors, students and diplomats, from persons who are seeking more permanent residence, e. g. to join close family or to take up a position of employment. Second, it distinguishes among persons seeking admission as refugees, dividing them into three groups: persons who have arrived in the United States and seek asylum, persons who apply for asylum from abroad, and persons entitled to temporary protection because of special circumstances in their home country, i. e. civil unrest. 88 Generally speaking, the American immigration and naturalization system is based on the principle of preferences. 89 The annual quota for immigrants admitted into the United States, w i t h the exception of asylum-seekers, is fixed by law and relates to certain family, employment and diversity considerations. 90 For example, in 1987 the annual quota for immigrants was 270,000 people, and admission was based on a system of preferences which fell into six categories: single children of US citizens (category 1, maximum 20 %), husbands, wives or children of aliens w i t h permanent residence permits for the United States (category 2, maximum 26 %), persons w i t h academic qualifications or extraordinary capabilities in arts 88 For general terminological remarks see Alexander T. Aleinikoff United States Immigration, Nationality and Refugee Law, in: Frowein / Stein (note 69), 1545, 1550. See also David A. Martin , National Report, United States of America, in: Hailbronner (note 4), 91. 89 See the Immigration and Nationality Act, 8 U.S.C.A. §§ 1101 et seq., § 1182 (West Supp. 1993). 90 See 8 U.S.C.A. § 1151, id. For an overview of the system of preferences see Aleinikoff (note 88), 1157.

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or sciences, if they have a concrete job offer, (category 3, maximum 10 %), married sons and daughters of US citizens (category 4, maximum 10 %), brothers and sisters of US citizens, when the US citizen sponsoring the application has reached the age of 21 (category 5, maximum 24 %), skilled and unskilled workers in professions needed in the United States (category 6, maximum 10 % ) . 9 1 Once an immigrant has received a residence permit, he / she is not automatically granted citizenship; this requires residence in the United States for at least five years w i t h an unlimited residence permit, a good moral character, sufficient knowledge of the English language and a basic knowledge of American history and the political system. Certain immigrants who may otherwise qualify for admission may be excluded for reasons of public health or security, e. g. insanity, a manifest psychopathic personality, sexual deviation or mental defect, drug addiction, contagious disease or conviction for certain criminal offences. The immigration laws relating to asylum are as complex. The most important domestic law relating to asylum is the Refugee Act of 1980, 92 as amended in 1990. The Refugee Act incorporates much of the 1951 Convention 9 3 including the definition of a refugee. 94 Applicants for asylum have the right to obtain a working permit and asylum may be denied if the applicant has firmly settled in a safe third State before entering the United States. De facto refugees, i. e. victims of civil wars, natural disasters, etc. do not enjoy the right to asylum. The decision on political asylum is taken by the Immigration and Naturalization Service (INS). The request for asylum can be made either by filing an application w i t h the INS or by raising it as a defense to deportation. 95 If the request is made to the INS, the decision is taken by an INS officer after a hearing w i t h the asylum seeker. If granted, the refugee may stay for one year w i t h the possibility of extension. If denied, the asylum-seeker is placed in deportation proceedings and can again raise the claim as a defense to deportation. If in these proceedings asylum is denied, the asylum-seeker may appeal to the Board of Immigration. This body belongs to the Justice Department but is independent from the INS and has a court-like character. If this decision is denied, an appeal can be made to the Federal District Court and the US Circuit Court respectively and in rare cases, to the Supreme Court of the United States. 91

Aleinikoff id., 1573-74. Publ. L. N o . 96-212, 84 Stat. 102. 93 Aleinikoff (note 88), 1629. The United States has ratified only the 1967 Protocol to the 1951 Convention, however, the Convention is considered binding by its incorporation in the Protocol. See David Weissbrodt, International Human Rights: Law, Policy and Process, Cincinnati 1990, 592. 94 8 U.S.C.A. § 1101(a)(42) (note 89). 95 For a description of the administrative and judicial procedure see Martin (note 88), 91, 92 et seq. 92

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The Refugee Act also provides for application for asylum from persons outside the United States. Although the same definition of refugee is used to determine whether a person qualifies, the admission process differs from that used for asylum-seekers applying from within the United States. The decision in each individual case is taken by the Attorney-General on the basis of lists from diplomatic missions of the United States from all over the world, and an interview w i t h the applicant by the INS in the foreign mission. I n the event of rejection, no judicial appeal takes place. The decision is only examined by the next level of administration within the INS hierarchy. Immigrants get their papers at the embassy, and can then enter the United States. The number of refugees permitted to enter the United States is determined by the President of the United States, mostly under humanitarian considerations w i t h special respect for national interests of the United States.96 Persons who may not fulfil the definition of refugee, for example persons fleeing armed conflict, natural disasters, or other extraordinary conditions in their homeland, may be allowed to enter the United States under what is known as Temporary Protected Status (TPS). Under TPS, the United States recognizes certain countries where such extraordinary circumstances exist and permits persons from those countries to reside in the United States for a specified period of time and to receive authorization to work. If at the end of the period, it is determined that the circumstances in the home country persist, the stay may be extended for up to 18 months. 9 7

V . The Contribution of the Law of Aliens and Asylum to the Migration Problem Besides addressing economic development and human rights issues in the countries producing migrants and refugees to discourage migration, 98 the European migration problem requires a fundamental reassessment of European migration law and policy that makes asylum policy an integral part of an all-encompassing migration policy and addresses the needs of people who are migrating for economic reasons and people who are seeking protection from persecution. 99 Although 96 97

See 8 U.S.C.A. § 1157 (note 89). 8 U.S.C.A. § 1254(a), id.

98

See Communique of the Conference of Ministers on Migration of the Middle and East European Countries, Vienna, 24/25 January 1991; for a description of the link between the world refugee problem and development see also Armin M. F. Goldschmidt / Ernst E. Boesch, The World Refugee Problem and Development, in: Boesch / Goldschmidt (eds.), Refugees and Development, Baden-Baden 1983, 15, 16 et seq. 99

Kay Hailbronner , Perspektiven einer europäischen Asylrechtsharmonisierung nach der Maastrichter Gipfelkonferenz, in: Hailbronner (note 4), 134, 136.

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none of the Western European countries thinks of itself as an immigration country, 1 0 0 some of them have in fact already acquired this status. This can certainly be said of Germany. Immigration into the country started at the beginning of the 20th century, 1 0 1 i. e. w i t h the beginning of industrialization, and was interrupted only by the two world wars. Due to the catastrophic situation in Germany after World War I I , many people emigrated to N o r t h America. However, the country was still capable of integrating a large number of refugees and displaced persons after the war. I n 1955 the Federal Republic of Germany, because of economic need, started a policy of hiring foreign workers through bilateral agreements w i t h Italy, and later w i t h Spain and Greece (1960), Turkey (1961), Morocco (1963) and several other European and non-European States. 102 Originally only the workers themselves were allowed entry but later this was extended to include their families. Between 1958 and 1973, when this policy came to an end due to economic reasons, there was a twenty-fold increase in new arrivals. Even now, taking the current demographic development into account, the Federal Republic of Germany still has an economic need for foreign workers. 1 0 3 Today approximately 6.5 million foreigners live in Germany, 1.5 million of which are citizens of EEC countries. 104 Moreover, a large number of these workers wish to stay w i t h their families in the country on a permanent basis. These factors, i. e. migration over several years, of a large number of people w i t h the expectation of a more than temporary settlement, in addition to the country's economic and demographic need for more of these people, indicate that Germany is an immigration country. 1 0 5 100

Id 135. See Miihlttm (note 8), 4 et seq. w i t h further references. I t should be noted in this respect that the immigration of Hugenots into Prussia between 1685 and 1714 and of Poles into the Ruhr district in the early 20th century are further examples of immigration into the country. 101

102

Portugal 1964, Tunesia 1965, Yugoslavia 1968, Korea 1970. This is a problem for most of the countries in Western Europe. It is estimated that by the year 2025 half of the population in Western Europe w i l l be older than 45 years of age. See U N Population Division, World Population Monitoring 1991, U N , New York 1991, 25. Recently the German ifo-Institute for Economic Research has presented a study showing that the Federal Republic of Germany has an urgent economic need for immigrants in order to keep its gross national product stable, see the report of the study in: Nord-Süd aktuell, 1993, 37. See also the study of Bamberg University which in a purely demographic perspective stresses the urgent need for immigrants of the Western European countries in general and Germany in particular, quoted from Frankfurter Allgemeine Zeitung N r . 179 of 5 August 1993, 4. 103

104

See the statement of Cornelia Schmalz-Jacobsen (deputy of the German Federal Government for aliens) in: Europäische Zeitung, May 1993, 2. 105 Although official statements still do not fully acknowledge Germany's status as an immigration country and stick to the formula as laid down in the Naturalization Guidelines — § 2.3 "Germany is not a country of immigration; she does not aspire to increase the number of German citizens through naturalization", the number of authors in German legal and political science literature who no longer negate this fact is increasing; this was evident,

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Germany's status as an immigration country, moreover, should prompt a revision in the law concerning the status of migrant workers. This law regards migrant workers as aliens, i. e., it assumes that they w i l l only stay temporarily in the host country. It is obvious that the current ins sanguinis-based nationality law that applies to the children of migrant workers who are born in Germany, allows such children to acquire German nationality only in a relatively difficult way and in fact impedes rather than promotes their integration. I n this respect, a fundamental problem w i t h nationality law, at least in Germany, is that the acquisition of nationality, is hindered by the prevailing doctrine against dual nationality; in principle only those aliens who give up their original nationality can acquire German nationality. 1 0 6 The international legal standard does not prohibit dual nationality but tries to reduce such cases.107 For Europe Article 1 of the Convention on the Reduction of Cases of Multiple Nationality of 6 May 1963 108 provides that nationals who acquire the nationality of another State by a voluntary act lose the nationality which they possessed before. Difficulties arising from cases of multiple nationality are mostly regulated by bilateral agreements; such difficulties can encompass namely military service and diplomatic protection. 1 0 9 Recently a new tendency seems to have gained support in Europe in that more and more countries are tolerating dual nationalities. 110 I n this context, the Parliamentary Assembly of the Council of Europe in its Recommendation 841 of 1978, proposed facilitating the acquisition of a second nationality, at least for young migrant workers in the EEC if they were born in their host country or went to school there. 111 Moreover, the Committee of Ministers as well as the Assembly of the Council of Europe have recommended facilitating the possibility of acquiring already in 1976, see the statement of Bartels / Delbrück / Wiegel (note 35), 220; Dietrich Thränhardt, Die Bundesrepublik Deutschland — ein unerkanntes Einwanderungsland, in: Aus Politik und Zeitgeschichte 1988,3; Klaus J. Bade, Vom Auswanderungsland zum Einwanderungsland. Deutschland 1880-1980, Berlin 1983 passim; Helmuth Rittstieg, Einwanderung als gesellschaftliche Herausforderung, in: Informationen zum Ausländerrecht 1993, 117; Günther Apel, Gedanken zu einem zuwanderungspolitischen Konzept, in: Zeitschrift für Ausländerrecht 1992, 99. For a critical foreign assessment of the reasons for the prevalence on the a Nicht Einwanderungsland" -philosophy see Daniel Kanstroom, Wer sind wir wieder?, Yale Journal of International Law, vol. 18, 1993, 155, 175 et seq., 201 et seq. 106 See §§ 84 and 85 of the German Law concerning aliens (Ausländergesetz). Still, according to the Federal Ministry of Interior Affairs, 141,600 people were naturalized in 1991. 107 For such tendency see the Hague Convention of 12 April 1930, the judicial opinion of the PCIJ of 15 September 1923, in: PCIJ Serie B, Nr.7, 20; Cordova, Report on multiple nationality, International Law Commission (ILC) Yearbook 1954 I I , 42 et seq.; BVerfGE 37, 217, 254. 108 634 U.N.T.S. 221, ratified by the FRG on 29 September 1969, BGBl. I I , 1953. 109 For a description of the legal situation in such cases see Kay Hailbronner, Staatsangehörigkeitsrecht, München 1991, 72 et seq. 110

See Frankfurter Allgemeine Zeitung N r . 82 of 7 April 1993, 5.

111

See Wolfgang Hannappel, Staatsangehörigkeit und Völkerrecht, Frankfurt 1986, 58; Gerard-Rene de Groot, Staatsangehörigkeitsrecht im Wandel, Köln et al. 1989, 37.

6 GYIL 36

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Hoe

nationality for the second, third and subsequent generations of migrant workers. 1 1 2 Finally the legislation of some Western European countries, namely Switzerland, France and Spain, seems to underline the above-stated tendency for an acceptance of dual nationality. 113 It may therefore be appropriate, if one generally accepts that multiple nationality can create conflicts of loyalty for citizens, that at least children of migrant workers born and raised in the host country should have the possibility to acquire by law the nationality of the host country at the age of eighteen. This could be done for a certain period of time, for example ten years, until they have to make their final decision concerning which nationality they eventually want to possess. This seems to be only a modest dilution of the ius sanguinis principle through the introduction of ius soli elements. This modification of the ius sanguinis principle, (a principle recognized as the basic principle of nationality in all European States 114 ) seems all the more justified because ius sanguinis is a relatively static concept, 115 based on the assumption of an ethnicly coherent population, and no longer reflects the needs of the open nation State at the end of the twentieth century that must create conditions for many ethnic groups to live together. 116 Moreover, European citizenship, which is not yet a nationality, 1 1 7 by granting active and passive rights to election to EC citizens on the municipal level in all Member States, already gives evidence of a changing notion of the nation State, 118 112

See Council of Europe / Human Rights, Information Sheet N o . 23 May-October 1988,

117. 113 Hailhronner 1993, 5.

(note 109), 77; see also Frankfurter Allgemeine Zeitung N r . 82 of 7 April

114

See Kay Hailhronner, Einbürgerung von Wanderarbeitnehmern und doppelte Staatsangehörigkeit, Baden-Baden 1992, 50 et seq. Some of the European states like Italy and the Netherlands have, however, already modified ius sanguinis by introducing elements of ius soli, whereas, as has been indicated above, this tendency is declining again in France. 115 As Rolf Grawert, Staat und Staatsangehörigkeit, Berlin 1973, 190 et seq. has shown the German preference for ius sanguinis over ius soli is mainly rooted in the German process of nation building. The nation was considered as a genetical-cultural organic unit, as a community based on blood, tribal and family bonds. For a typical statement of the 19th century see Friedrich Julius Stahl, Rechts- und Staatslehre auf der Grundlage christlicher Weltanschauung. Die Staatslehre und die Principien des Staatsrechts, 5th ed. Tübingen/ Leipzig 1878, 161 et seq., 169 et seq. 116 Other proposals are the concept of dual nationality with a governing and a residual nationality according to the model of twelve agreements between Spain and Hispano-American states, see Kay Hailhronner (note 109), 78. For a description of such on "open" national State of the late 20th century and the consequences for the migration policy see Dieter Oberndorfer, Vom Nationalstaat zur offenen Republik, in: Aus Politik und Zeitgeschichte, B 9/92, 21 of 21 February 1992, 21 et seq. 117

See Hobe (note 42), 250-258. See id., 259 et seq., 263. Even the German Bundesverfassungsgericht seems to already implicitly apply a changed notion of national State when it, however carefully, indicates 118

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83

and could provide an example of how the problems of nationality among the European States could be mitigated. I n any case, one must state that the acquisition of the nationality of the host State is only attractive for an alien if the privileges granted at the stage of immigration to an asylum seeker are not such that they almost equal those of nationals. 119 Besides this, a further consequence should be derived from the status of an immigration country. Taking the example of the United States, immigration into the country should be controlled by the establishment of quotas, based on economic need and the prospects for integration; in this respect such quotas would only make sense as an integrated European effort. The establishment of such quotas and of a system of preferences, due to the principle of sovereignty, are at the sole discretion of the respective State. They are, however, bound to the principle of non-discrimination as enshrined in the International Convention on the Elimination of all Forms of Racial Discrimination 1 2 0 and should be less influenced by the sole self-interest of the respective recipient country than has been evidenced by the United States system of preferences. By making these changes to the currently existing policy and law towards aliens, one could, on the one hand, improve the chances of integrating immigrants who would come into the country on a perfectly legal basis and would thus be accepted by the population, and, on the other hand, discourage persons from abusing the already overburdened asylum procedures by providing appropriate immigration possibilities. This would make resources available for more effective granting of the right of asylum. I n cases of civil wars or natural disasters, European States should automatically be prepared to accept a certain quota of persons fleeing from those regions for humanitarian reasons. 121 Here, a system should be established to come to a quick and unbureaucratic decision in cases after a crisis has arisen. A t the same time, a totally asymmetric distribution of refugees among the European States cannot be accepted; this runs counter to the principle of European solidarity and partnership. Moreover, as a second consequence besides the proposed conceptual changes w i t h regard to the legal treatment of the immigration problem, the law of asylum needs a comprehensive harmonization on the European level. This becomes readily that, opposed to the principle of only nationals being allowed to vote, a European regulation for a right of EC aliens to vote at municipal level would not be unconstitutional; see BVerfGE 83, 37, 59. 119 See Helmut Quaritsch y Die Einbürgerung der "Gastarbeiter", in: Festschrift für Karl Doehringy Berlin / Heidelberg et al. 1990, 725, 733 et seq. 120 O f 7 March 1966, in force since 4 January 1969; Source: 660 U.N.T.S. 195, reprinted in I L M , vol. 5, 1966, 352; see for an according assessment of the limits Delbrück (note 35), 224, 226. 121

6*

Hailhronner

(note 99), 141.

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apparent if one realizes that, in view of the fall of the European borders, different legal standards as to the granting of asylum no longer make sense.122 As has been demonstrated in the Dublin and Schengen Agreements, a harmonization of European asylum policy and law is on the political agenda. 123 This means that not only procedures must be coordinated as indicated and intended by Schengen and Dublin, but also the substantive law of asylum. This becomes evident if one takes into account the fact that there is a measurable stream of double and triple immigration requests. It has been estimated that approximately 30 per cent of all applicants to the EC request political asylum in several European countries. 124 Dublin and Schengen are the first, if insufficient, attempts for a harmonization of the European law of asylum. It is most unfortunate that proposals to transfer more tasks to the EEC were only partly successful in the respective articles of the Maastricht Treaty, but as the study of the different legal standards has shown, it is absolutely necessary to harmonize the substantive law of asylum in Europe. 1 2 5 There must be a harmonization of facts w i t h regard to political persecution in all European States in furtherance of the objectives of the 1951 Convention, e. g., w i t h respect to degrading behaviour and a harmonization of the criteria of what constitutes evident impermissibility or a manifestly unfounded claim. 1 2 6 Harmonization of the substantive law of immigration is particularly necessary because any legally controlled immigration into one of the European countries according to existing European legislation (such as the freedoms of the EEC Treaty), automatically grants important rights in other member States. This makes evident the need for any immigration legislation to be an integrated European effort. Moreover, a harmonization of the procedure for granting asylum is necessary. Perhaps the concept contained in the new German Article 16 a in paragraphs 2 and 3 of the Basic Law, which enables the establishment of a list of countries where no persecution is occurring, w i l l make disingenuous claims to political asylum more easily discerned and thereby discouraged. Moreover, the creation of an independent body of experts enjoying quasi-judicial privileges should safeguard and supervise the determination of such countries which are considered free of persecution. 127 This would perhaps be a clear signal to immi-

122 For more reasons for a harmonization in view of the free internal European market see id., 136 et seq. 123 Tomuschat (note 18), 261; see also Schoch (note 36), 537 et seq. 124 Hailhronner (note 99), 137. 125 Id., 140; Tomuschat (note 18), 261 et seq. 126 I n this respect questions of the treatment of criminals, of cases w i t h no connection to the facts as stated in the 1951 Convention and of applicants who have already applied for asylum without success in other contracting States of the Geneva Convention are at stake, see Hailhronner (note 99), 141 et seq. 127 Tomuschat (note 18), 263.

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grants that applying for asylum is not an expedient way to immigrate into one of the European countries. Finally, as w i t h disaster refugees, a European burden sharing in hosting refugees is necessary; 128 this could be established by the introduction of quotas on the European level. 129 U n t i l now, attempts to introduce such quotas have unfortunately not brought any tangible result. I n conclusion, the contribution which the law of aliens and of asylum can make to the migration problem is not entirely satisfying. Still it should aim at giving aliens a fair chance of being integrated into the host society by a special immigration law and policy which would enable a better separation of immigrants and asylum seekers. Controlled immigration on the European level, accompanied by a law of asylum which is harmonized among the European States, could make a measurable contribution to solving the problems of migration; however this demands, as has been indicated, a further strengthening of international economic and development policy and law.

128 Stefan Langer, Asylrecht — ein strukturelles Verfassungsproblem der Staatengemeinschaft, in: D Ö V 1993,2873,2880 holds that an equitable burden sharing of the world refugee problem is an international legal duty. 129 Hailhronner (note 99), 136.

The Legal Position of the Unborn Child in International Law 1 By Maja Kirilova Eriksson

I. Introduction The awareness of the need to grant special protection to children, by reason of the physical and mental immaturity that makes them a particularly weak and vulnerable group in society, has gradually found recognition in international law. The international evolution of the concept of the rights of the child may be traced through a succession of instruments 2 , the most significant being the U N Conven1

The author wishes to express her warm thanks to the Humanistisk-samhällsvetenskapliga forskningsradet (HSFR) for the financial support to carry out this research. 2 The first comprehensive international document was the Declaration of the Rights of the Child, adopted on 24 September 1924 by the Fifth Assembly of the League of Nations, L o N , Official Journal, Special Supplement No. 21, October 1924, 43. In addition a number of other international instruments contain provisions for the protection of children: U N Declaration of the Rights of the Child adopted in September 1959, G A res. 1386 (XIV), Universal Declaration of Human Rights (Article 25 para. 2), G A res. 217 (III) A of 10 December 1948, U N Doc. A / 810 (1948), 71; International Covenant on Economic, Social and Cultural Rights (hereinafter ICPR) (Article 10), G A res. 2200 (XXI) of 16 December 1966, U N G A O R 21st sess., Supp. 16, 49, U N Doc. A / 6316 (1966), United Nations Treaty Series (UNTS), vol. 993, 3; International Covenant on Civil and Political Rights (hereinafter CCPR) (Article 24) G A res. 2200 ( X X I ) of 16 December 1966, U N G A O R 21st sess., Supp. 16, 52, U N Doc. A / 6 3 1 6 (1966), UNTS, vol. 999, 171. Several human rights instruments have been adopted by regional organisations which also recognize children's need for special protection. See American Declaration of the Rights and Duties of Man, OAS, res. X X X , adopted by the N i n t h International Conference of American States, Bogota 1948, in: InterAmerican Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, O E A / ser. L . V / 11.71, doc. 6 rev. 1, 23 September 1987, 18; (European) Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, UNTS, vol. 213, 222; American Convention on Human Rights, adopted 22 November 1969, Organisation of American States (OAS) Treaty Series No. 36, 1, International Legal Materials (ILM), vol. 9,1970, 673; African (Banjul) Charter on Human and Peoples' Rights, adopted 27 June 1981, O A U Doc. C A B / L E G / 6 7 / 3 rev. 5, I L M , vol. 21, 1982, 58. For a historical review of the concept of the rights of the child see Eliska Cbanlett / G. M. Morier , Declaration of the Rights of the Child, International Child Welfare Review, 1968, 4; D. K. Weisberg, Evolution of the concept of the rights of the child in the western world, The Review of the International Commission of Jurists, 1978, 43; Cynthia Price Cohen, The Human Rights of Children, Capital University Law Review, 1982, 369.

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t i o n o n the Rights o f the C h i l d o f 1989 3 , where i t is stipulated that " T h e child, b y reason o f his physical and mental i m m a t u r i t y , needs special safeguards and care, i n c l u d i n g appropriate legal p r o t e c t i o n , before as w e l l as after b i r t h . " H i s t o r y reveals that the u n b o r n c h i l d as a rule has been excluded f r o m legal p r o t e c t i o n , the m a i n exception being provisions f o r the a p p o i n t m e n t of a curator. I n R o m a n l a w a curator ( curator nascitur,

curator ventris nomina) 4

was a p p o i n t e d

t o protect the future interest o f the foetus and charged w i t h certain responsibilities. T h e foetus was entitled t o these rights f r o m the m o m e n t o f conception, p r o v i d e d i t was b o r n alive. Similar rules still exist i n the domestic jurisdictions of m a n y countries. 5 T h e E u r o p e a n C o m m i s s i o n o n H u m a n Rights, i n its report o n the Brüggemann

and Scheuten

v. the Federal

Republic

of Germany

case, likewise

p o i n t e d t o the fact that certain rights, " i n particular the r i g h t t o i n h e r i t , " are a t t r i b u t e d t o the u n b o r n c h i l d . 6 H o w e v e r , i t was n o t u n t i l the 2 0 t h century that a strong international o p i n i o n f o r the p r o t e c t i o n o f the u n b o r n c h i l d was heard. T h e u n b o r n child, v i e w e d f o r m a n y centuries as a "legal n o n e n t i t y " , has n o w been accorded certain p r o t e c t i o n 7 under international law. W e m a y observe that legal p r o t e c t i o n generally implies a situation, i n w h i c h someone o r something is exposed t o a threat o r risk o f 3

The Convention was unanimously adopted on 20 November 1989 by the U N General Assembly, U N Doc. A / 44/736, 1989. I t entered into force on 2 September 1990. As of 30 May 1993 136 States were parties to the Convention on the Rights of the Child. 4

Milan Bartosek , Rimskoe pravo, Moscow 1989, 95. I n Roman Law the principle was enunciated that the conceptus had to be treated as a born person whenever it could benefit from it. However, this principle was first and foremost applicable when establishing whether a person was to be considered a free individual or a slave: thus, a child had to be considered born free, even when the mother was a slave when she conceived, if she was free at the time of the birth of the child; and the child was to be considered free if the mother was free when she conceived, even if she was a slave when she gave birth to the child. Id. at 81. 5

Eleonora Zielinska, European Socialist Countries, in: Stanislaw J. Frankowski / George F. Cole (eds.), Abortion and Protection of the Human Foetus, Dordrecht 1987, 311. 6 Brüggemann and Scheuten v. Germany , Appl. no. 6959/75, European Commission of Human Rights Report, 1977, 116, para. 60. The Commission referred, furthermore, to a survey of the domestic laws of 13 States parties to the European Convention, which showed that certain rights are attributed to unborn children. 7 Our point of departure is that not every legal position on its own constitutes a right. Thus, the unborn child does not possess any legal rights , but it ought to be protected. I n order for it to be a right, "There had to be a) a holder of the right, who can bring b) an objectified claim against c) a duty-bearer who must honour the claim," Peter H. Kooijmans , Human Rights — Universal Panacea?, Netherlands International Law Review (NILR), 1990, 323. Philip Alston has also elaborated standards of control for rights proposed to exist under international customary or treaty law. See Rebecca J. Cook , International Protection of Women's Reproductive Rights, New York University Journal of International Law and Politics, no. 2, 1992, 657. Taking into account the proposed conditions which a claim must satisfy in order to be recognized as a human right, we can hardly successfully apply this test as regards possible rights of the unborn child.

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destruction or injury and that the legal system has a function to prevent or to mitigate the conceivable injurious effects. 8 The rules of relevance for the protection of the unborn child are aimed at: 1) protecting its biological existence; and 2) securing its healthy and proper development. The nature and the extent of the protection vary, however, depending upon the issues involved and the domestic law in different branches of law. The wide jange of questions concerning the international protection of the unborn child covers many issues such as the right to life, the right to medical assistance during pregnancy and the question of research on embryos and foetuses. The growing number of artificial conceptions in vitro , as well as scientific experiments on human foetuses ex utero in the developed world, raises important questions of a legal nature. Hence we can maintain that the contemporary picture of the legal position of the unborn child is very complicated. Many of the problems stem from apparently ill-defined or non-defined terms of great importance. Therefore section I I of our survey shall be devoted to terminological clarifications. Our position as regards the legal status of the unborn child is that it does not have legal capacity, i. e. it has no independent legal rights. However, it is not exempt from protection by the law. 9 The central question of this article is what legal protection is accorded an unborn child in international law. The scope of this protection shall be explored and determined in accordance w i t h the above mentioned two objectives. For this purpose I shall examine the substantive provisions of relevant human rights treaties as well as the jurisprudence and authoritative statements of international organs in sections I I I and I V of the study.

I I . Some terminological issues 1. The term human being For the purpose of law a distinction is made between human beings generally and persons. However, the application of the terms is problematic. Therefore, it might be useful to make an attempt to clarify them somewhat. The term "human being" has been considered to be somewhat broader than the expression "person". 1 0 Thus the first term is merely biological; being a human is a biological 8

Nils Jareborg, Straffrättsideologiska fragment, Uppsala 1992, 80. A review of recent developments in Swedish and English Law is given by Per Westman , Protection of the Unborn Child and the Rights of Parents, Svensk Juristtidning (SvJT), 1993, 479 et seq. 10 O n the other hand there are examples of human rights documents where both terms are used synonymously. I n Article 1(2) of the American Convention on Human Rights it 9

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designation. It indicates being part of the genus homo of the species homo sapiens. 11 The second term is assigned to human beings in their various capacities. A survey of international human rights documents and jurisprudence reveals a considerable degree of agreement among States w i t h respect to the unborn child not being considered a person for the purpose of human rights protection. The Universal Declaration of Human Rights and the principal conventions (global and regional) dealing w i t h the protection of fundamental human rights, 12 w i t h the exception of Article 4 (1) of the American Convention on Human Rights which expressly guarantees the unborn child some protection, do not explicitly mention the term unborn child. The Universal Declaration states in the crucial Article 1 that "(a)ll human beings are born free and equal." This wording and the phrase that follows, "They are endowed w i t h reason and conscience," explicitly condition the rights contained in the Declaration to already born persons. 13 The provisions in the human rights treaties are formulated in terms of stipulating rights for "everyone" or all "human beings". Neither of the two terms have been closely defined by the international organs. However, according to the case-law of the European Commission on Human Rights, 14 the term "everyone" 1 5 can only apply postnatally and not to the foetus in uterus. I n other words, the livebirth rule is in general applicable to the term. Similar reasoning has been undertaken by the Inter-American Commission on Human Rights. There the emphasis regarding the right-bearers of human rights in international law has been on already born individuals. Moreover, in different branches of domestic law there is the notion that the unborn child becomes a human being when it has completely proceeded in a living state from its mother. 1 6

is stipulated, "For the purposes of this Convention, 'person' means every human being", (note 2). 11 William B. Bondeson, Abortion and the Status of the Fetus, Dordrecht 1984, X V . 12 Important human rights conventions have been adopted within the United Nations, the Council of Europe, the Organization of African Unity and the Organization of American States. 13 The discussions during the preparatory work on Article 1 indicate that there was no intention of including rights of the unborn child in the Universal Declaration. For a thorough analysis of the travaux preparatories to Article 1 see Tore Lindholm , Article 1, A New Beginning, in: Asbjorn Eide / Gudmundur Alfredsson / Göran Melander / Lars Adam Rehof / Allan Rosas (eds.), The Universal Declaration of Human Rights, A Commentary, Oxford 1992, 32 et seq. 14

Paton v. UK\ Appl. no. 8416/79, D R 19, 250, para. 9. O n the other hand in the jurisprudence of national courts we may find cases where the unborn child has been considered as an autonomous human being and the term 'everyone' has been given the meaning of including the foetus's right to life. See e.g. the German BVerfGE, vol. 39, 43. 15

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Medical, ethical and social concerns serve as the foundation, upon which laws are based. Therefore we must take development in these fields into consideration. Such an approach has been reflected in the Rees v. the UK case, where the European Court of Human Rights endorsed the view that, "The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal development." 17 I n order to answer the question whether the unborn child is a human being, and, if so, at which stage of its development it becomes a human being, there still are different criteria used in sciences when defining or identifying the term "human being". Usually in the philosophical debate the characterization of the term is related to the question of when human life begins. Different points of reference have been provided: conception, the beginning of the primitive streak, nidation, the 40th day when neurological sensitivity appears, viability and birth. There are also advocates of the theory that life is a continuum and that there is a universal life cycle. Consequently, life never stops. It only passes on from one generation to another. O n that ground it is argued that it is incorrect to claim that life begins at arbitrarily chosen points of the life cycle. 18 I n the legal context the different stages of foetal development have influenced, for example, decisions on when societal concerns for the protection of the foetus may override a woman's request for an abortion. The Fristenlösung, 19 which is based on women's right to self-determination, has been considered the most consistent w i t h the right to private life. 20 16 Barth a Maria Knopp ers, Modern Birth Technology and Human Rights, The American Journal of Comparative Law, vol. 33, 1985, 18. 17 E C H R Judgment of 17 October 1986, Ser. A no. 106, para. 47, (italics added). The importance of those factors has been maintained on many occasions during the drafting of the different international documents. For example, the United States and Brazil made declarations regarding Article 4 (1) of the American Convention on Human Rights to the effect that when interpreting this provision the States parties should have discretion w i t h respect to "the content of legislation in the light of their own social development, experience and similar factors." See William A. Schahas, Substantive and Procedural Hurdles to Canada's Ratification of the American Convention on Human Rights, Human Rights Law Journal (HRLJ), vol. 2, 1991, 409. 18

John D. Biggers , Generation of the Human Life Cycle, in: Bondeson (note 11), 31. The law regulating abortion in the previous G D R was based on the assertion that pregnancy can be divided into different stages and left the decision to have an abortion in the early stage of pregnancy to the woman. However, a similar practice occurred in many Bundesländer w i t h the exception of Bavaria in the previous FRG as well see Anton Leist y Eine Frage des Lebens, Ethik der Abtreibung und künstlichen Befruchtung, Frankfurt 1990, 228. 19

20

See the concurring opinion expressed by the Nordic members of the European Commission Torkel Opsahly Carl Norgaard and Love Kellberg in the Brüggemann, Scheuten v. the Federal Republic of Germany case, Appl. no. 6959/75, Report of the European Commission of Human Rights 1977, 120.

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I n our opinion, as well, unborn life need not necessarily at all stages of its development be regarded as human. The embryo is human but it is not " i n being". I n the explanatory memorandum to the report of the Legal Affairs Committee within the Council of Europe, it is noted that human embryos are a form of human life but they are not defined as human beings. 21 Therefore I would rather prefer to use the phrase human subjects to include the embryo and the foetus until viability. Philosophical and theological reflections on the issue of abortion and the status of the foetus show that they can only illuminate this complex issue but cannot deliver indisputable answers to i t . 2 2 We may, therefore, claim that no morally incontestable truth is to be found on the topic; instead there is a moral uncertainty and a range of legitimate moral viewpoints. Diversity and respect for pluralism is on the other hand one of the characteristic elements of a modern understanding of democracy. The European Court of Human Rights has consistently held that there is no uniform European formulation of ethics. 23 I n fact, a recent study on the moral status of abortion and the status of the foetus shows that none of the moral theories in existence today justifies any specific position regarding the moral status of abortion and the position of the foetus. This is "due to complete lack of knowledge concerning several important factors, severe uncertainties concerning the knowledge of many other relevant factors, and even more severe uncertainties as to how different relevant factors should be weighted in relation to each other." 2 4 It appears from the above that a uniform universal moral conception as to the definition of the term human being is missing today. The societies in which we are living even show an increasing degree of diversity w i t h respect to the most fundamental questions. Moreover, it can hardly be said that international law has adhered to the assertion that conception is decisive for determining the existence of a human being. Thus, the foetus is not treated as a human being from the moment of conception. Instead there is a marked aspiration to avoid the use of different criteria for defining the term "human being" and to remain flexible. 25 Furthermore, qualifying as a "human 21

Doc. 5615, Parliamentary Assembly of the Council of Europe, 1986, cit. in: Raimo Lahti, Law and Moral Dilemmas affecting Life and Death, Report presented at the X X t h Colloquy on European Law, Glasgow 1990, 12. 22 Warnock Committee, in: Derek Morgan / Robert G. Lee, Human Fertilisation and Embryology Act 1990, London 1991, 76. 23 Handyside case, E C H R Judgment of 7 December 1976, Ser. A , no. 24, 22; Müller v. Switzerland , E C H R Judgment of 24 May 1988, Ser. A , no. 133, para. 35. 24 Christian Munthe , Livets slut i livets början, En Studie i abortetik, Stockholm 1992,416. 25 Hugo Grotius has expressed how difficult it is to deal with that particular issue and suggested in his work, Introduction to Dutch Jurisprudence, that, "The unborn should be

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being" does not automatically guarantee the unborn the possession of legal rights under international law. O n the contrary, today there is consensus in international law that the live-birth distinction is decisive here as well. This does not exclude protective rules for the unborn. The rules are simply of less "weight" as compared to rules concerning the already born human being. 2. The concept of personhood There are obvious difficulties in dealing w i t h the concept of personhood because of the existing confusion as to the criteria used when defining the term. The result is that there is no single coherent concept of person in law. A whole range of different definitions of the term person, 19 in fact, has been presented by G. Atkinson, 26 Despite this variety there are some common elements used in the different definitions. A first necessary condition for being a person is to be recognized as a human being. This condition in itself, however, is not sufficient. A second essential condition is the separateness of persons. If the unborn child is considered in light of these two conditions, even if it is argued as discussed above, that the unborn child is a human being and exists from the moment of conception, since the unborn has not yet been born it has not acquired the separateness needed to satisfy the definition of person under the law. 2 7 I n other words non-autonomous human beings are not persons. Birth confers personhood and it is the determinable event for when someone becomes a person. Some authors go even further and confirm personhood not automatically upon birth, but characterize a person rather as a rational, self-determining, self-conscious entity endowed w i t h the capacity to reason and having a sense of justice. 28 Rowls presupposes, moreover, that a concept of personhood implies that the person is free and equal. 29 Clearly the above mentioned features can hardly be ascribed to the unborn. It is not conscious of its own identity, it can not make any decisions, etc. Accepting such a narrow definition leads to the exclusion even of newly born children from the concept of person. I n such cases, usually covering a short period recognized as human beings when it is in their favour." See Matthijs deBlois, The Netherlands, in: Frankowski / Cole (note 5), 169. 26 See Lahti (note 21), 14. 27 See the dissent opinions in the Baby Boy case, case N o . 2141, Resolution of the InterAmerican Commission on Human Rights no. 23/81 of 6 March 1981. The case concerns the prosecution of Edelin , a doctor from Massachusetts, for performing an abortion on a teenage girl at the request of the girl and her mother. The petitioners claimed that abortion is an unlawful ending of the legal protection of unborn children, thereby implying a right to life. See further Bondeson (note 11), 24. 28 Bondeson, op. cit., X I V ; Celia Wells, Otherwise K i l l Me: Marginal Children and Ethics at the Edges of Existence, in: Robert Lee / Derek Morgan (eds.), Birthrights, Law and Ethics at the beginnings of Life, London 1989, 195; Jareborg (note 8), 226. 29 Carlos Santiago Nino, The Ethics of Human Rights, Oxford 1991, 110.

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of time, the term "incomplete" persons or person-like beings has been introduced. 30 The lack of legal personality of unborn and newly born children makes an extensive interpretation of the term human being even more important. Some authors take the position that it is wrong to distinguish between human being and person: "Jeder Mensch ist eine Person in jedem Zeitpunkt seines Lebens." Thereby "ein menschlicher Embryo ist ein Mensch in den ersten Wochen seines Lebens." 31 The objection to the idea of differentiation between "Personsein" and "Menschsein" has been motivated as follows: "(e)ine solche Trennung nicht möglich ist, ohne zugleich den Rechtsanspruch aufzugeben: Die anderen müssen mich als Person anerkennen, auch während ich schlafe." 32 This idea has actually found expression in the domestic legislation of a few countries, where the personhood rights of the in vitro embryo have been recognized. 33 I n many United States jurisdictions the foetus' in uterus personhood has been recognized in the unborn from the point of viability. 3 4 I n international law the conceptus is not considered a legal person within the language and meaning of the human rights documents. This statement leads to the conclusion that the foetus does not have independent human rights. However, this fact should not make us less respectful towards the unborn. 3. The concept unborn child I n international instruments we find statements that the unborn child ought to be protected. The Declaration of the Rights of the Child from 1959 35 is the first international document giving support to the concept that the unborn child should be granted legal protection. According to the Fourth principle in the Declaration, the child shall "be entitled to grow and develop in health; to this end, special care 30

Jareborg (note 8), 227.

31

Antoine Suarez , Darf man dem Embryo den Verfassungsrechtlichen Schutz der Menschenwürde absprechen? Schweizerische Juristen-Zeitung, 1990, 207, 210. The terms human being and person have been used synonymously by Bleckstone too. See D. J. Horan / C. D. Forsythe / E. R. Grant (eds.), T w o Ships passing in the Night: A n Interpretavist Review of White — Stivens Colloque on Roe v. Wade, Saint Louis University Public Law Review, vol. 6, 1987, 287. 32 Suarez, op. cit., 208. 33 Lori B. Andrews , The Legal Status of the Embryo, Loyola Law Review, vol. 32, 1986/ 87, 409. A t a national congress held in Costa Rica in 1988 distinguished lawyers expressed the view that the nasciturus is a person. See Nota Informativa: Efectos Juridicos de la Fecundaciön, in: Pedro F. Silva-Ruiz, Manipulation of Human Embryos in Latin American Law, paper presented at the V l l t h World Conference of the International Society of Family Law, 1991. 34

Cook (note 7), 690. Res. 1386 (XIV), Human Rights, A Compilation of International Instruments, U N New York, 1983, 129. 35

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and protection shall be provided both to him and to his mother, including adequate prenatal and postnatal care." The provision, seen in the light of the Third preambular paragraph, which reads, "The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth," is undoubtedly an expression of regard for foetal life. The legislative history of the Declaration demonstrates that the proposal put forward by the Italian delegation to grant protection to the child from the moment of conception was opposed by a majority of the participating delegations. 36 Instead, a compromise solution worked out by the representatives from the Philippines was adopted, which does not specify any moment of time. The desire to protect the unborn child was further manifested in the preamble to the Convention on the Rights of the Child, where it is stipulated that "The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth." N o t only in international instruments but also in the case-law of international organs, in the doctrine in national statutes and in national judicial opinions has the term "unborn child" overwhelmingly been used instead of the term "foetus". The preference for this term demonstrates indeed that the unborn child is regarded as a human being. Thus, the modifier "unborn" points to the assumption that "Both the child born and the unborn child are considered to be children, w i t h the unborn child distinguished not because it is a non-human being . . . but merely because it is unborn." 3 7 Unfortunately, the preference for this phrase may cause inaccuracy. Thus, we cannot use the term child at any time of pregnancy without controversy, but we can declare that the foetus is the preliminary stage of a child. The uncertainty becomes apparent when we are to decide on criteria for when exactly the foetus should be regarded as an unborn child and entitled to protection according to international rules. The expression "embryo" describes the first stage of growth of the product of human conception. 38 It becomes a foetus approximately nine weeks after conception and it is considered as such through to birth. We may assume that the use of terminology in international law indicates that the intention of choosing the expression "unborn child" is probably meant to under36 U N Doc. E / A C . 3 / L . 713. 37 D. J. Horan et al. (note 31), 290. To support this view very often the reference has been made to the expression "being w i t h child" used in daily life in most societies to describe pregnancy. This phrase has been used also in national legislation in some States dating from the 19th century. 38 A comprehensive survey of those laws is to be found in: Jan Stepan, International Survey of Laws on Assisted Procreation, Zürich 1990. A draft Bio-technology convention is at the moment under discussion within the Council of Europe. See Lars Adam Rehof, Article 3, in: Eide et al (note 13), 82.

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line that the term is related to a developed foetus, e. g., it is a viable foetus, capable of surviving outside the mother's womb though by artificial means of help. Our stand that it is the viable foetus, which should be considered an "unborn child" and which is the subject of certain protection under contemporary international law, is supported by the dissenting opinion of Mr. / . E. S. Fawcett in the Brüggemann and Scheuten v. the Federal Republic of Germany case who has remarked upon that issue stating that he is "unable to attribute rights and freedoms under the Convention to an unborn child not yet capable of independent life." 3 9 We may also refer to the Paton v. UK case,40 where the European Commission came to the conclusion that under certain circumstances, such as the late stage of pregnancy, the unborn child is protected under the European Convention. A similar argument has been put forward regarding the International Covenant on Civil and Political Rights (CCPR). 4 1 Thus, national legislation may impose limits upon post-viability abortion and that would be consistent w i t h human rights provisions. Moreover, to substantiate our argument that the point of viability would be the decisive criterion for the protection of the unborn child under international law we may refer to the fact that the abortion laws in the majority of States restrict the abortion right to protect the potential life of the foetus referring to the concept of viability, unless the pregnant woman's life or health is endangered. I n other words a woman's right not to procreate exists only until the foetus reaches viability. The ordinary medical definition of the term "abortion" describes it as an intended premature termination of pregnancy. 42 Generally the term premature is defined w i t h reference to a specific point in time in order to guarantee that only non-viable foetuses can be aborted. Still, even then there is no assumption that this protection should include an absolute right to life for the viable foetus. Moreover, we should be aware of the fact that an objective definition of viability is impossible. It is merely a medical judgment, and as such largely dependent upon the progress of medical technology. Nowadays there is consensus that the point of viability is approximately at the beginning of the third trimester. It occurs commonly between the 23rd and the 28th week. The actual chances of survival for the foetus are then about 50%. 4 3 39 (Author's italics). See note 6,120, para. 7. The European Commission of Human Rights declared in its Report that Article 8, para. 1, cannot be interpreted as meaning that pregnancy and its termination are as a principle solely a matter of the private life of the mother. I n other words the foetus has a legal status of its own, separate from that of the mother. The Commission's view was accepted by the Committee of Ministers. Res DH(78)1, 17 March 1978. 40

Appl. no. 8416/79, D R 19, 244. Louis Henkin , The International Bill of Rights, New York 1981, 122. 42 Werner W ernste dt , Medicinsk terminologi, Stockholm 1961; Munthe (note 24), 405. According to Oxford Student's Dictionary of Current English, page 2, abortion means, "legal expulsion of the foetus from the womb during the first 28 weeks of pregnancy; helping or causing this." 41

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O n the other hand, using the stage of viability as a demarcation line for determining the term unborn child and consequently when it should be entitled to protection under international law does not exclude protection prior to viability as we are going to see in section III.3. The whole foetal stage is an on-going biological process and therefore the differential protection approach, i. e., foetal rights grow over time, seems to be an appropriate one. I n other words, the foetus is not wholly protected throughout the period of gestation. The level of protection is not very strong at the lower points of this spectrum. 44 It is only when the foetus has been born alive that it is entitled to full legal protection. This leads us then to the conclusion that foetal life may be valued differently at various stages of pregnancy and differently from born life. 4. The concept child in the light of the UN Convention on the Rights of the Child The first draft on a Convention on the Rights of the Child was presented by the government of Poland to the U N Commission on Human Rights in 1978. A specific reference to the unborn child was at that time not included in the operational part of the treaty, but in the preamble. The text of this draft was similar to the earlier mentioned third preambular paragraph of the 1959 Declaration on the Rights of the Child. After consulting the member States, the competent specialized agencies, regional intergovernmental organizations and non-governmental organizations (NGOs), a modified draft Convention was presented to the U N Secretary General in 1979. It has since served as a basis for the subsequent legislative work of the Commission on Human Rights, the body that has examined the question of the Convention on the Rights of the Child at its sessions from 1979 until 1989. The most notable feature, characterizing the discussions at the introductory stage of drafting the Convention, was a common, albeit unuttered, desire to avoid dealing w i t h the issue of protecting the unborn child. 4 5 The fact that a great variety of cultures, religions and political systems are represented within the U N , and that such factors influence abortion laws, made the drafters feel that it would be virtually impossible to reach a solution that would satisfy all the specific interests. 43 Lars Adam Rehof, Behandling af og forsag pä fostre, Det Etiske Rad, Copenhagen 1989, 43. One definition of a viable foetus is given in the Peel Report in England as, "(O)ne which has reached the stage of maintaining the coordinated operation of its component parts so that it is capable of functioning as a self-sustaining whole independently of any connection w i t h the mother." See Nicolas P. Terry , England, in: Frankowski / Cole (note 5), 99. 44 Those ideas are old and have been reflected, e. g., in Exodus 21:22 et seq., where it is stated that a man who has pushed a woman and as a result of that she has had a miscarriage shall be punished according to the stage of the development of the foetus. 45

Maja Kirilova Eriksson, Barnets folkrättsliga skydd, SvJT, 1988, 469.

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Despite its complexity the issue came up on the agenda during the preparatory work, and it was considered in connection w i t h the debates on Article 1 (the definition of a child), Article 6 (the right to life) 4 6 and the preamble. Article 1 of the Convention is of crucial importance. The protective measures of the Convention depend, needless to say, on the definition of the concept of "child". Generally it is defined by reference to age. A child is a human being from the moment that she or he is born alive 47 till a certain age. The age-limit has varied greatly, and in domestic law it is largely conditioned upon cultural values. There is neither a standard definition nor universal consensus in international law on when a human being is to be considered a child. This may explain the difficulties encountered by the open-ended Working Group on the Question of a Convention on the Rights of the Child, which was set up by the Human Rights Commission in 1979 w i t h a view to formulating a Convention on the rights of the child, when it began drafting Article 1 of the Convention. After considerable debate on the upper age-limit of the term "child" a compromise was reached, and only the wording accepted by all the delegations present was adopted. This is a fact that is mirrored in the language of the provision. It is not precise enough, and it leaves considerable discretion to States parties to determine the age-limit. This w i l l undoubtedly cause difficulties in the interpretation of the provision. Under the Convention a "child" is considered to be any person under the age of 18, unless a nation's laws recognize adulthood earlier. The decisive element of the definition is the reference to the age of majority according to national law. As mentioned earlier this concept varies considerably from State to State. It is interesting to note that a higher standard was established and a greater consensus achieved on that matter when the newly adopted African Charter on the Rights and Welfare of the C h i l d 4 8 was drafted. For the purpose of that treaty a child is defined as every human being under the age of 18, without any exception.

46

The delegation of Barbados raised the issue in its reply to the Polish draft in 1978 by suggesting that before the right to life is considered, a stand must be taken on the scope of that right and whether the unborn child should be included in the provision. See Philip Alston y The Unborn Child and Abortion under the Draft Convention on the Rights of the Child, Human Rights Quarterly (HRQ), vol. 12, 1990, 162. 47

Some authors have referred to the following criteria as regards the moment when the foetus becomes a child: first, the physical criterion — the decisive element is the separation of the body of the child from the body of the mother; second, the physiological criterion — the decisive moment is the independent breathing by the foetus; third, the obstetric criterion — the decisive moment is when the pregnant woman has the sensation of birth pains. See Zielinskay in: Frankowski / Cole (note 5), 309. 48 Geraldine van Bueren , The African Charter on the Rights and Welfare of the Child, A new children's treaty, International Children's Rights Monitor, vol. 8, Special issue, 1991, 20.

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Attempts 4 9 to discuss the lower age-limit of the term child in the U N draft Convention were made in 1980, but consensus on the issue was reached within the Working Group that the term was clearly intended to maintain "the maximum flexibility" for treaty parties to decide on the issue. The question was again addressed during the preparatory work in 1988 in connection w i t h proposals made by the delegations of Malta and Senegal. I n their view Article 1 should have been amended to include protection for every human being from the moment of conception. The Working Group did not accept this proposal, and the only solution reached after lengthy debates was to include a reference to the need for protection of the unborn child in the ninth preambular paragraph. 50 The observer for the H o l y See stated that had the proposals by Malta and Senegal not been withdrawn, his delegation would have supported them. The compromise meant that an explicit reference to the unborn child was avoided in the operational part of the Convention. The very important question then arises whether the scope of Article 1 of the Convention may be expanded in light of the preamble. There are three different theories about the interpretation of treaties: the subjective 5 1 , the textual 52 , and the teleological. 53 The Vienna Conference on the Law of Treaties in May 1969 54 accepted the textual approach to the interpretation of treaties when it adopted the Vienna Convention on the Law of Treaties. 55 The basic rule of interpretation of a treaty is established in Article 31, paragraph 1 of the Convention: A treaty shall be interpreted in good faith in accordance w i t h the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 49 There were two opposing stands during the preparatory work of the convention as to the moment when childhood begins — at conception or at birth. E / C N . 4 / L. 1542. See Alston (note 46), 163. 50 E / C N . 4/1989/48, 43. See further Sharon Detrick, , The United Nations Convention on the Rights of the Child, A Guide to the Travaux Preparatoires, Dordrecht 1992, 117. It should be mentioned here that Argentina, Guatemala and the H o l y See made declarations concerning Article 1 when ratifying the Convention, indicating that life begins at conception. The reservation of Argentina read, "Concerning Article 1 of the Convention the Argentine Republic declares that the article must be interpreted to the effect that a child means every human being from the moment of conception up to the age of 18. The initial point, which defines the concept of child as contained in Article 1, includes the entire period from the moment of conception." See CRC I dl 2 Rev. 1, 6. The Government of Guatemala upon ratification referred to its Constitution which protects human life from the time of conception. 51

The subjective theory aims at interpreting a treaty by trying to ascertain the intention of the parties. 52 The textual theory of interpretation of a treaty puts particular emphasis on the text of the treaty as incorporating the authentic expression of the intentions of the parties. 53 According to the teleological theory a treaty is to be interpreted in the light of its objects and purposes. It is a combination of both the subjective and the textual theories. 54 U N Doc. A / C O N F . 39/27. 55 U N T S vol. 331, 1155 (1969).

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The process of interpretation consequently begins with an analysis of the specific provisions of the treaty56 concerning the disputed question. Then it continues with a consideration of the context, which comprises other provisions of the treaty, including its preamble, annexes etc., and related agreements made by all the parties (Article 31(2)). Account shall be taken of the object and purpose of the treaty, which are part of the context. So, we have to start the interpretation of the text of the Convention by exploring the ordinary meaning to be given to the term "child". Interpreting it involves, however, more than looking up the meaning of the word in a dictionary. 57 First, we may establish that the ordinary meaning of the expression "child" does not include the foetus. The common way of counting the age of a child is from the moment of his / her birth and not from the moment of conception. However, this common meaning of the term makes no sense in the context of the Convention. It falls short because of the preamble. For that purpose the term child should not be considered in isolation but in its context, i. e., in the light of the treaty's object and purpose. The object and purpose of the treaty is the most important part of the context. 58 The context includes the preamble as well as the documents that form annexes to the treaty in question. Therefore, the scope of Article 1 cannot be defined until the aims of the Convention have been ascertained. One of the aims of the treaty, as stated in the ninth paragraph of the preamble, which makes reference to the 1959 U N Declaration of the Rights of the Child, is to protect the child before as well as after birth. The question here is what the relations are between different parts of the treaty. A n agreement is binding in law, and there is a "presumption that this quality covers all the provisions of the instrument in question," including the preamble. 59 The treaty must consequently be read as a whole, including its preamble. Thus, the preamble is an integral part of an international treaty, and it offers guidance through the interpretation of the substantive articles. This has been stressed on several occasions by the International Law Commission in the course of its work on the law of treaties. The States' intentions and common points of departure have been laid down in the preamble, which explains the purpose and scope of the Convention. Moreover, the importance of the preamble has been compared to "the clef of a piece of music, hinting at what is to come and how to pitch the

56 The International Law Commission (ILC) has underlined the principle that the first task when interpreting a treaty is to elucidate the text of the treaty and not the intention of the parties, Yearbook of the I L C , vol. II, 1966, 219. 57 John Graham Merrills , The Development of International Law by the European Court of Human Rights, Oxford 1988, 70. 58 Taslim O. Elias , The Modern Law of Treaties, Leiden 1974, 83. 59

Jerzy Sztucki , Reflections on International "Soft Law", in: Festskrift till Lars Hjerner , Studies in International Law, Stockholm 1990, 561. 7*

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instrument." 6 0 Even if we agree that the legal value of the principles enshrined in the preamble is not the same as the judicial signification of an article of the operative part of the treaty, this may not obviate the future difficulties of interpretation. Article 32 of the Vienna Convention on the Law of Treaties permits supplementary means of interpretation to be resorted to, including the travauxpreparatories of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of the general rule contained in Article 31 or to determine the meaning when the interpretation according to the general rule (Article 31) leaves the meaning ambiguous or obscure, or leads to a result, which is manifestly absurd or unreasonable. Since the preparatory work is viewed as a supplementary means of interpretation one may ask whether it is necessary at all to rely on the travaux preparatories, and if so to what extent. Notwithstanding the doctrinal controversy on the matter, we cannot but find that preparatory works are frequently used in international law. O f interest for our study is the legislative history of the preamble to the Convention on the Rights of the Child. I n this respect we may note that the Working Group within the Commission on Human Rights when adopting the ninth preambular paragraph made the following interpretative statement, " I t does not intend to prejudice the interpretation of Article 1 or any other provision of the convention by the states parties." 61 I n our view this is an attempt to reduce the importance of the preamble as a basis for interpretation of the treaty. The next question that needs answering is what value should be given to a statement that is a component of the travaux preparatories. The European Court of Human Rights has accepted that the travaux preparatories can be of evidential value. O n the other hand it is a well-established understanding that the European Convention, as the other human rights treaties, is a living instrument, the interpretation of which may develop over the years. Thus, as professor Rudolf Bernhardt himself has expressed, "(t)he ideas and conditions prevailing at the time when the treaties were drafted retain hardly any continuing validity." 6 2 Bearing this in mind the Court upheld the view in the Marckxs case that its decision should not be determined by even clear indications at the time 60

Shabtai Rosenne, Practice and Methods of International Law, London 1984, 44.

61

According to the Legal Counsel of the United Nations there is no prohibition of the inclusion of an interpretative statement in the travaux preparatoires. Its legal value is however uncertain. Sharon Detrick, The Irish Case, International Children's Rights Monitor, vol. 9, 1992, 6. See also Alston (note 46), 167. 62 Rudolf Bernhardt, Thoughts on the interpretation of human-rights treaties, in: Franz Matcher / Herbert Petzold (eds.), Protecting Human Rights: The European Dimension, Studies in honour of Gerard J. Wiarda, Köln 1988, 71.

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of drafting that a particular interpretation of a right was to be preferred. 63 Much of the jurisprudence of the European Court bears witness to the assumption that the unreliability of the travaux preparatories now makes them less important. They have often been displaced by other considerations of the European Court. Also the European Commission made the contracting States' intentions irrelevant in the Golder case.64 Furthermore, the views of the International Law Commission, which represents the teachings of the most highly qualified publicists are of some relevance here and should be considered. It has held that, " I t is beyond question that the records of treaty negotiations are in many cases incomplete or misleading, so that considerable discretion has to be exercised in determining their value as an element of interpretation. " 65 I n the light of the quoted statement we may conclude that in future interpretations of the Convention on the Rights of the Child, clarifications made during the preparatory work can be overruled by other considerations, which means that the interpretative statement on the ninth preambular paragraph made by the Working Group should be regarded as being of minimum significance. I n conclusion it can be said that interpreting Article 1 as entirely excluding the unborn child from protection would be in collision w i t h the preamble of the Convention. To support our statement we may refer to the assertion made by the delegation of the FRG that the preambular paragraph indeed affects Article 1 of the Convention, and it has been referred to as a great success in protecting the unborn. 6 6 The H o l y See and Ecuador have submitted declarations upon ratification of the Convention, which explicitly refer to paragraph 9 of the Preamble as a guide-line for the interpretation of Article l . 6 7

The travaux preparatories indicate that several governments, at the time of drafting the provisions, insisted on the protection of children from the moment of conception, which would mean forbidding or restricting abortion. The wording as adopted, however, is neutral since it does not specify the length of the period 63

Marckx Case, E C H R Judgment of 13 June 1979, para. 41. See Merrills (note 57), 81-84. Golder vs. the UK> Appl. no. 4451/70, European Commissions Report of 1 June 1973. 65 Yearbook of the International Law Commission, vol. I I , 220, para. 10, (1966). 66 Rüssel L. Barsch , The Convention on the Rights of the Child: A Re-Assessment of the Final Text, in: New York Law School Journal of Human Rights, 1989, 156. 67 The text of the H o l y See declaration is as follows: "The H o l y See remains confident that the ninth paragraph w i l l serve as the perspective through which the rest of the convention w i l l be interpreted, in conformity with Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969." CRC 1 1 1 Rev. 1, 14. O n the other hand the United Kingdom stated upon ratification that it interprets the Convention as applicable only following a live birth. CRC / C / 2 / Rev. 1, 20. 64

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before birth which is meant to be covered by the Convention. 68 The permissibility of termination of pregnancy in certain cases is in that way not precluded. The Government of the French Republic declared upon signature and confirmed upon ratification that, "This Convention, particularly Article 6, cannot be interpreted as constituting any obstacle to the implementation of the provisions of French legislation relating to the voluntary interruption of pregnancy." 69 This supports the previous statement. Therefore it cannot be argued that the unborn child has been guaranteed an absolute right to life in the Convention. Furthermore, the Convention is complementary and not competitive. Thus, Article 41(2) of the Convention, considered as a "saving clause", requires that nothing in the Convention shall affect any provision contained in international law in force for the State parties. This means that the Convention has to be in conformity w i t h already existing norms in international law establishing rights for women, such as their right to life, to health and to family planning. Claims of hierarchical status might be raised as to the relationship among rights belonging to already born human beings and the right to protection of the unborn. It appears from the above that the term unborn child allows flexibility as regards its interpretation in the sense that each State may take the position it wants, provided it is not contrary to existing international law.

I I I . Protecting the biological existence of the unborn child 1. The right to life Human rights are generally concerned w i t h the State-individual relationship. When human rights norms are defined in terms of freedoms, they impose upon the State first and foremost a duty of abstention from action. Thus the individual is protected from State interference that might impede his development. The scope of a right depends to a great extent on the duties of the actors that are required to implement them. Human rights instruments provide for, or imply, various kinds of State obligations as regards the implementation of human rights norms. They have both negative and positive aspects. There is no doubt that States have legal obligations to respect human rights arising out of international law. Such an obligation is a passive obligation. For example, the right to life comprises freedom from acts causing death and bodily injury. However, it is now 68

Thomas Hammarberg, the Swedish member of the Committee on the Rights of the Child, emphasized that the fact that the Convention does not explicitly resolve the abortion issue is what President George Bush referred to as one of the obstacles to the USA not ratifying the Convention, Svenska Dagbladet (SvD), 3 September 1992. 69 CRC / C / 2 / Rev. 1, 11.

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generally accepted that the obligations may further require the State to: one, adopt measures and provide the material resources that might be necessary for the enjoyment of human rights, and two, to take action to prevent others from acting in a way that might lead to violations of human rights. Obligations of this kind are active obligations. a) Treaty provisions The issue of the protection of the unborn child concerns the basic question whether and, if so, to what extent the unborn child is entitled to protection according to the rules dealing with the right to life. Opinions differ, however, on what constitutes the beginning and end of life as we have already demonstrated. Although the question of different categories of life, e. g.y self-sustaining and nonself-sustaining, have juridical impact, it is not life in itself but the right to life that is a subject of protection under international law. A person's right to life has been considered in the doctrine as secured only if it includes that person's "prenatal phase of development". 70 The concept of human life is among the highest values in the legal order and the right to life is the most fundamental human right. The right as such belongs to the peremptory norms of international law. It is viewed as the "supreme r i g h t " 7 1 a primordial right, from which all other human rights obtain their "raison d'etre", 7 2 and as such it is an essential condition for the enjoyment of other human rights. A person, who is deprived of his right to life, is automatically also deprived of all other human rights. 73 Moreover, the relevant rules contained in the major human rights treaties are non-derogable. They may not be suspended in times of emergency. Provisions on the right to life are set up in Article 6 of the CCPR, Article 6 of the Convention on the Rights of the Child, Article 2 of the European Convention, Article 4 of the American Convention and Article 4 of the African Charter on Human and Peoples' Rights. The nature and meaning of the concept in most of the treaties has w i t h few exceptions been interpreted restrictively and negatively, i. e.y in the sense denoting a right not to die, i. eprotection from intentional or arbitrary deprivation of one's life by public authorities. I n other words nobody 70 Wolfgang Peukert , Human Rights in International Law and the Protection of Unborn Human Beings, in: Matscher / Petzold (note 62), 519. 71 The Human Rights Committee marked the right to life as 'the supreme right' in its first general comment on Article 6. See Doc. A / 37/40, 93. See also, Communications Nos. 146/1983, 148-154/1983, Kanta Baboeram —Adhin et al v. Suriname , Selected Decisions of the H R C under the Optional Protocol to the CCPR New York, vol. 2, 1990, 172. 72

Bertrand G. Ramcharan , The Right to Life in International Law, Dordrecht 1985, XI.; Krishan P. Saksena, Human Rights and the Right to Development, International Studies 28, 1991, 47. 73

Richard B. Lillich , Civil Rights in: Theodor Meron y Human Rights in International Law: Legal and Policy Issues, Oxford 1988, 120.

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may be deprived of his life save on conditions prescribed by law. However, current development in authoritative statements of international organs points to the fact that the narrow approach of defining the right to life has lost actuality, and we are witnessing an evolution of the concept. It is claimed that "the rationale of the right to life concept may thus be said to be the protection of the life of every individual human being from all possible threats." 74 Mr. Ramcharan gives a number of examples of what those threats may be. Abortion is, however, not mentioned among them. A n examination of the rules concerned shows that the term "life" may be interpreted differently depending upon the context in which it is used in different conventions. Thus, life can be said to be pure potentiality or pure actuality, depending on one's point of view. 7 5 There are still different opinions as to the moment from which this right is to be enjoyed. The only reference to a foetal right to life is contained in Article 4 (1) of the American Convention, which reads, "Every person has the right to have his life respected. This right shall be protected by law, and in general, from the moment of conception." It is, however, not a right guaranteeing the foetus complete protection, including a right to be born, which would oblige States parties to protect it against a mother who wishes to undergo abortion. The right is limited in certain circumstances by the phrases " i n general" and "arbitrary". Consequently, there is room left for giving priority to a woman's right to life in situations of conflict. 76 The other human rights instruments lack explicit provisions on pre-natal right to life. This, however, does not mean that the right to life of the unborn child might not exist implicitly. A n examination of the travaux preparatories 77 of Article 6 of the CCPR reveals that a prospective life was not intended to be protected from the moment of conception. I n the Third Committee of the U N General Assembly, an amendment to Article 6 was proposed at its 12th session by the governments of Belgium, Brazil, Mexico and Morocco to add "from the moment of conception". It was rejected, however, by vote of 31 to 20 w i t h 17 abstentions on the grounds that domestic laws differ on this matter and that State authorities are not able to determine the moment of conception. 78 74

Bertrand G. Ramcharan , The Concept to and Dimensions of the Right to Life, in: Ramcharan (note 72), 7. 75 J. W. Dellapenna , N o r Piety N o r Wit: The Supreme Court on Abortion, Columbia Human Rights Law Review, vol. 6, 1975, 389. 76 I n support of our argument we may refer to the fact that none of the States parties to the American Convention objected to the interpretative declaration of Mexico w i t h regard to Article 4(1) expressing a similar view. See Schah as (note 17), 410. 77

The proposal that the right to life in Article 6 CCPR should be protected from the moment of conception was rejected by the majority of delegations when it was discussed in 1950 during the sixth session of the U N Human Rights Commission and in 1957 during the U N G A Third Committee's 12th session. See A / C. 3 / SR. 820; A / 2929, 30.

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Some academic commentators claim that as a rule the unborn child is not entirely excluded from protection on the grounds of these provisions. 79 It has also been argued that it may well be that norms declared by Article 6 of the CCPR and Article 4 of the American Convention "are identical in meaning, despite the differences and wording." 8 0 Moreover, it has been suggested that a right to be born should be considered in relation to Article 23 of the CCPR. 8 1 I n Article 6 of the Convention on the Rights of the Child States parties recognize that "every child has the inherent right to life." Proposals to include the unborn child in this provision have been rejected throughout the negotiations, and there was consensus that the matter be left unaddressed. However, the issue of the protection of the unborn child was raised again in the context of Article 6(2), which establishes a State's obligation to ensure "to the maximum extent possible the survival and development of the child." The Italian delegation submitted a proposal implying that the right to survival should be linked to the right to life. The observer for the H o l y See supported the statement and suggested that "human life shall absolutely be respected and protected from the moment of conception." 82 The H o l y See affirmed that a child and its life existed from the moment of conception, which was the transmission of life in marriage, to which the mission of transmitting life was exclusively entrusted. The proposed amendments were not approved by the Working Group. Thus, the term "survival", as pointed out by the observer for the United Nations Health Organization, had a special meaning within the United Nations context. It included growth, monitoring oral rehydration and disease control, breast feeding, immunization, child spacing, food and female literacy. Moreover, the governments of China, France, Tunisia and the United Kingdom have submitted declarations when ratifying the Convention, indicating that the treaty does not apply prior to birth or that Article 6 may not be interpreted in a way that might constitute an obstacle to national legislation concerning abortion. 78 A / C. 3 / L. 654. We may also refer to the fact that the attempt to provide explicit protection for the unborn child, in the sense that the right to life should be protected from the moment of conception, made when drafting Article 3 of the Universal Declaration of 1948, did not succeed. Albert Verdoodt , Naissance et Signification de la Declaration Universelle des Droits de l'Homme, Paris 1964, 95; Alston (note 46), 159; Lars Adam Rehof Article 3, in: Eide et al., The Universal Declaration of Human Rights, A Commentary (note 13), Oxford 1992, 76. 79 Manfred Nowak: "Die Tatsache, daß der Schutz des Rechts auf Leben nach dem Willen der Mehrzahl der Delegierten in der M R K und G V nicht mit dem Augenblick der Empfängnis beginnen sollte, läßt allerdings noch nicht den Schluß zu, daß das ungeborene Kind von Article 6 gar nicht geschützt wird", in: U N O - P a k t über politische Rechte und Fakultativprotokoll, CCPR-Kommentar, Strasbourg 1989, 131. 80 81

Schabas (note 17), 408.

A. Redelbach, Protection of the Right to Life by Law and by Other Means, in: Ramcharan (note 72), 198. 82 E / C N . 4/1988/28, See Detrick (note 50), 121; Alston (note 46), 164.

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b) Jurisprudence and authoritative statements of international organs The jurisprudence of the international organs is characterized by an avoidance of taking a clear stand on the issues of a pre-natal right to life, the beginning of life, and its end. Generally, the jurisprudence shows a reluctance to interfere w i t h national law and practice in this field. aa) The Human Rights Committee (HRC) N o case dealing w i t h the issue of abortion or w i t h the unborn child's right to life has been considered by the Human Rights Committee (HRC) under the First Optional Protocol to the CCPR. However, under Article 40 of the Covenant, which directs a very important implementation mechanism, the H R C has issued a number of important general comments. General comments are a means of interpretating the provisions of the Covenant, and they are intended to assist States parties in their implementation of the treaty. I n a draft of General Comment no. 6 /16 on the right to life the H R C expressed the view that since the protection of the right to life of the unborn is an issue of great controversy in a number of States that have adhered to the Covenant, " I t cannot be solved by reference to this article." 83 This statement, however, was not included in the final text of the comment. O n the contrary, the adopted text of the HRC's general comments, — General comment no. 6/16 (on Article 6) and General comment no. 17/35 (on Article 24) — indicates that the restrictive approach to the right to life is no longer adequate. The H R C noted in the former that the right to life is a right "which should not be interpreted narrowly." A member of the H R C has described the wide perspective to the right to life as follows: " I n order to exercise any of the rights, w i t h which the Committee was concerned, an individual had to exist, and in order to exist, he must die neither before nor after birth." 8 4 The Committee stated expressly that the right requires States to adopt positive measures. Moreover, adopting a broad approach to the scope of the right to life implies that practicing or tolerating infanticide violates Article 6. Other areas referred to by the H R C related to the right to life are: the reduction of infant mortality, increasing life expectancy by adopting measures to eliminate malnutrition and epidemics and prohibition of acts of genocide.

83 84

U N Doc. CCPR / C / SR. 369, para. 10. Schabas (note 17), 408.

(Author's italics). Dominic McGoldrick , The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford 1991, 329. Article 6 of the Covenant has been interpreted by the H R C to include a duty of States to prevent wars. Moreover, production, possession and the use of atomic weapons has been characterized as crimes against humanity. The H R C has also referred to the issue of the death penalty. I t underlined that the death penalty should not be imposed for crimes committed by persons under 18 years of age. CCPR / C / 21 / Rev. 1, 21, para. 2.

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Article 6 has also been given a broad interpretation during the HRC's consideration of periodic reports. However, the unborn child's right to life has not been included within the realm of Article 6. bb) The Committee on the Rights of the Child (CRC) The Committee on the Rights of the Child (CRC) is a special monitoring body that has been set up under the U N Convention on the Rights of the Child to oversee State compliance w i t h the provisions of the Convention. 8 5 Governments that have ratified the treaty have pledged to report periodically on their performance of conventional obligations. I n 1992 about 20 State reports are due. States are requested among other things to provide relevant information on Article 1 and 6 of the Convention. 8 6 Sweden delivered its first report on the Convention 2 September 1992. 87 The definition of the term child was discussed on three pages. However, the controversial issue as to the moment when childhood begins was left out. N o r was the right to life considered there in light of the unborn child. The CRC may deliver proposals and general recommendations on the basis of the information it has received. It remains to be seen in the future, which aspects w i l l be discussed under the above mentioned issues. cc) The Inter-American Commission on Human Rights A t the regional level within the Inter-American system there is one case, White and Poter v. USA, of relevance to our study. T w o individuals representing Catholics for Christian Political Action brought a petition to the Inter-American Commission on Human Rights on behalf of a foetus named "Baby Boy", aborted at the request of a pregnant 17-year-old girl and her mother. The petitioners alleged violations of Articles I, I I , V I I and X I of the American Declaration of the Rights and Duties of Man. According to the claimants the intentional interruption of pregnancy is an offence against the right to life and consequently constitutes a violation of Article I. The majority of the members of the Inter-American Commission came to the conclusion that none of the rights in the Declaration had been violated. It found that the right to life of the foetus as outlined in the 85

There is no provision in the Convention for individual or inter-state complaints. The only implementation mechanism is the reporting procedure referred to in Article 44. 86 CRC / C / 7,19. According to the General Guidelines regarding the Form and Content of Initial Reports, States parties are requested to provide information, pursuant to Article 1 "on the age of attainment of majority and on the legal minimum ages established for various purposes". CRC / C /5, 3. 87 Socialdepartementet, Första rapport av Sverige om konventionen om barnets rättigheter, Stockholm, 2 September 1992; CRC / C / 3 / Add. 1.

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Declaration is not absolute. 88 The Commission based its arguments on an examination of the legislative history of the relevant articles in the Declaration and the American Convention. It appeared to be clear that the wording " i n general" was a compromise formula between the pro-and anti-abortion groups at the time of the drafting of the Convention text. Another argument used in favour of the noninclusion of an unlimited foetal right to life was the interpretation of the phrase " i n general" made by the delegations from the United States and Brazil during the preparatory talks. Using that phrase the States could cover "the most diverse cases of abortion" in their domestic laws. 89 The Commission referred to a number of States that permitted abortion. 90 Thus, a ban on abortion from the moment of conception was rejected because it would have invalidated the laws in force at that time in 11 member States of the Organization of American States. dd) The European Commission on Human Rights Within the Council of Europe the Strasbourg organs for the protection of human rights have so far left open the question whether, if at all and if so, to what extent, the right to life of the unborn is protected by Article 2 of the European Convention. The European Commission has expressed the view that since the right to life is not absolute, some restrictions on the foetus's right to life could be considered permissible, especially if the life and health of the mother are threatened. Thus, priority is then given to the mother's life in relation to that of the foetus, and the State's interest in the preservation of the foetus is not such as to permit it to intervene. The European Commission is clear in its point on the foetus's right to life in its decision on the X v. the UK case91 where the Commission examined what interpretations could be given to Article 2 of the Convention. First, it considered whether Article 2 covers the rights of the foetus? Second, it considered whether this provision recognizes a "right to life" of the foetus w i t h certain implied limitations? Third, it considered whether Article 2 implies an absolute "right to life" of the foetus? The last alternative was excluded 88 Case 2141, Annual Report of the Inter-American Commission on Human Rights 198081, 25 O E A . Ser. L / V / II. 54, doc. 9, rev. 1, 1981. 89 Adam Rehof / Tyge Trier, Menneskeret, Copenhagen 1990, 327. 90 These states were: Argentina, Costa Rica, Brazil, Ecuador, Mexico, Nicaragua, Paraguay, Peru, Uruguay, Venezuela and the United States. I n order to assure such an interpretation of the Convention, President Carter in 1979, when submitting the Convention for Senate ratification, included the following reservation: "U.S. adherence to Article 4 (relating to right to life 'from the moment of conception' and including provisions on capital punishment) is subjected to the Constitution and other laws of the U.S." See Mark Kirk , Should the United States ratify the American Convention on Human Rights?, Revista I I D H , N o . 14, December 1991, 78. See furthermore: Thomas Buergenthal / Robert Norris / Dinah Shelton, (eds.), Protecting Human Rights in the Americas, Kehl 1986, 86 et seq. 91

Case X v. the UK, Appl. no. 8416/76, D R 19, 244.

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by the Commission at once on the grounds of an obvious need, recognized in international law, to protect the life of the mother. The Commission argued that if Article 2 was held to cover the foetus and "its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman." 9 2 This interpretation would also be contrary to the object and purpose of the Convention, since the right to life of an already born individual would be considered subject to further implied limitation. The two remaining alternatives of interpretation were not considered at all by the European Commission. However, according to the European Commission's decision in the earlier referred to Paton v. UK case, the unborn child does benefit from the right to life provision in the later stages of pregnancy. ee) The Court of Justice of the European Communities As regards the European Community a recently adopted decision of the European Court of Justice 93 is of some relevance to our study. The case concerned the abortion issue in the context of freedom of expression. 94 I n 1983, Ireland adopted in its Constitution a total ban on abortion and an explicit recognition of the right to life of the foetus. Accordingly, abortion is punishable by a maximum sentence of life imprisonment. The only way Irish women may obtain abortion is by travelling to Britain or other European countries. The first question was whether it was contrary to Community law for a member State, in which medical termination of pregnancy is forbidden, to prohibit students' associations from distributing information about the identity and location of clinics in another member State where medical termination of pregnancy is lawfully carried out. The European Court of Justice concluded in favour of Ireland as follows: The freedom to provide service — medical termination of pregnancy performed in accordance w i t h the law of the State, in which it is carried out — does not prevent a member State of the EEC, where the protection of unborn life is recognized in the Constitution and in its legislation as a fundamental principle, from imposing a general prohibition on 92

Op. cit. , 252. S.P.U.C. v. S. Grogan and others , Case C-159/90, 3 C.M.L.R. 849, 1991. 94 The European Court of Human Rights delivered on 29 October 1992 judgment on a similar issue, the Open Door Counselling Ltd. vs. Ireland , Appl. nos. 14234/88, 14235/88 in which it decided that Ireland had violated Article 10 of the Convention. Ireland banned in 1988 the health clinics Dublin Well Women Centre Ltd. and Open Door Counselling from giving information to women who were considering abortion about such possibilities in Great Britain. The Court ruled that the recognition of the right to life of the unborn as stipulated in the Constitution does not implicitly prohibit the provision of information on how to procure an abortion abroad. 93

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students' associations to distribute information about the identity and location of clinics in another member State.

A narrow discussion of possible constraints on the extent of the protection was not addressed by the Court, which makes it difficult to generalize as to the position the Court takes on the right to life of the unborn child in general. Nevertheless, the desire to recognize an individual State's ambition to give legal protection to the foetus does not necessarily conflict w i t h the general view of the necessity of having abortion legalized. As a basis for this argument we may refer to the fact that the Court in its judgment recognizes abortion to be included as a [crossborder] service within the meaning of Article 60 of the EEC treaty. Persons receiving medical treatment are recipients of services and are entitled to the benefit of the free movement provisions of the EEC treaty. Consequently, a pregnant woman should not be prevented from travelling to another member State, where abortion is legal, in order to undergo one. This judgment was followed by a judgment of the Supreme Court of Ireland on 5 March 1992. 95 The latter case shows that the right to life of the unborn as stated in the Constitution of Ireland is not absolute. The case was about a fourteen and a half year old girl who was pregnant subsequent to an alleged rape. She decided jointly w i t h her parents to travel to the United Kingdom to obtain an abortion. Before departing for England the family informed the police of their intentions and asked whether it was possible to test the aborted foetus in order to provide proof in any subsequent charge to be brought against the alleged rapist. However, the girl was restrained by the H i g h Court of Ireland from leaving the country and from arranging or carrying out an abortion. It was ordered that the girl be restrained from interfering w i t h the right to life of the unborn. This decision stirred public opinion, and, as a result, the Supreme Court decided to set aside the order of the H i g h Court, justifying its decision by weighing the right to life of the girl against the right to life of the unborn. It was concluded that in the present case the continuation of the life of the unborn child constituted a real danger to the girl, that she ran the risk of her own self-destruction and that this risk could only be avoided by the termination of her pregnancy. The Court found that such a termination was permissible in accordance w i t h the true interpretation of Article 40.3.3 of the Constitution. The effect of the Supreme Court decision was that legislative and / or constitutional changes became necessary. Therefore a referendum took place on 25 November 1992 in Ireland, in which people were asked to vote on an amendment of Article 40.3.3. of the Constitution as to the right to life, travel and information. The right to life amendment was turned down in the referendum, obviously since it would have left undisturbed the existing affirmation in Article 40.3.3. of the 95

The Attorney General v. X and Others , in: HRLJ, 30 June 1992, 210.

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Constitution of the right to life of the unborn. The current constitutional position therefore is as set out in the decision of the Supreme Court in the " X " case, i. e., making the rules concerning abortion more permissive. The Government has committed itself to introduce legislation to regulate this position. 9 6 The other two proposals received the majority's support in the referendum w i t h the consequence that the Government is now drafting new legislation in order to regulate the availability of information on abortion services obtainable outside the State. This development in the national law of Ireland is fully in conformity w i t h the judgments of the European Court of Human Rights in the Open Door case and of the Court of Justice of the European Communities in the Grogan case. Complications could result from the simultaneous interpretation of the articles of the European Convention by both the European Commission of Human Rights and the European Court of Human Rights on the one hand and by the Court of Justice of the European Communities on the other. There is a potential risk for normative disparity, since the practice of international organs may broaden the scope of the provision(s) of concern. Our survey of the existing case-law of the above mentioned organs on our subject matter shows that this has not been the case. O n the contrary, the case-law provides for greater uniformity in Europe, having a concrete impact on national law of the member States of the Council of Europe and the European Communities. I n other words, in order to ensure enforcement of international law, national law should be coordinated w i t h international law. Moreover, this is, in line w i t h an extremely important goal in the context of human rights law — normative uniformity. 2. Prohibition

of imposition of death penalty upon pregnant woman a) I n times of peace

Acts of public authorities may constitute a breach of human rights norms that indirectly guarantee protection for the unborn child. Such a protective function is invested in the regulations prohibiting the carrying out of capital punishment on pregnant women. The question of a general prohibition of the death penalty has always been and is still a matter of great controversy. A t the end of 1990 only 38 States had abolished the death penalty for all crimes. Seventeen States had abolished the death penalty for breach of criminal law but still preserved its existence for exceptional crimes, e. g., military crimes. I n addition 30 States had abolished the death penalty de facto, having not carried it out for the last 10 years. There are consequently about 95 States in the international community that still apply the death penalty. 97 There is even a tendency in some societies to reintroduce 96

Written information submitted by Mr. Martin McDonald, Private Secretary, Office of the Minister of Health, Hawkins House, Dublin 2, 13 September 1993. 97 Amnesty International: Ärsrapport 1990, Stockholm 1990, 25.

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it. I n the United States President Bush was in favour of the creation of several new federal death penalties. 98 A brutal murder of a seven-year-old girl in France has recently stirred public opinion into demanding the reintroduction of the death penalty. 99 Many of the States that have retained the death penalty for a number of military infractions apply these rules without any exception even to minors and pregnant women, despite the fact that imposing capital punishment on a pregnant woman violates international treaty law. Some of the human rights treaties contain rules prohibiting States' authorities from carrying out the death penalty on pregnant women. Articles 6(5) of the CCPR and 4(5) of the American Convention entail such a requirement. When drafting Article 6 of the CCPR there was overwhelming consensus within the G A Third Committee to include a prohibition of the performance of the death penalty on pregnant women. One particular problem gained attention in this respect, namely the question whether it would be permissible to carry out the death penalty on the mother after the child was born, or should this prohibition also relate to the period after birth. 1 0 0 The wording of Article 6(5) contains no direct answer on that issue, and the article can theoretically be interpreted in different ways. Semantically and logically the most reasonable interpretation would be that the prohibition of execution of a pregnant woman is valid until the child has been born. 1 0 1 The preparatory work indicates, however, the restrictive alternative to be the actual one, since none of the delegations opposed this interpretation. 1 0 2 A n argument against such an interpretation would be that a child needs its mother after it has been born, too, in order to develop harmoniously. 103 O n the basis of humanitarian considerations the second alternative is of course preferable. The view that carrying out death penalties might constitute inhuman treatment w i t h respect to both the mother and the child has on several occasions been expressed by members of the H R C when considering country reports under the CCPR. 1 0 4 The Economic and Social Council has also taken this stand. According to G A Res. 39/118 and E C O S O C Res. 1984/50, Annex §§ 7-8, the execution of women who have recently become mothers is prohibited.

98

Kirk (note 90), 87. SvD, 2 December 1992, 6. 100 A / C. 3 / SR 809, 239. 101 Nigel Rodley, The Treatment of Prisoners under International Law, Oxford 1987,187; L. Landerer , Capital Punishment as a Human Rights Issue before the United Nations, Revue des droits de Thomme, vol. 4, 1971, 525. 99

102 103

A / C. 3 / SR 809, 239 (China), SR 810, 241 (Iran), SR 814, 263 (Canada).

R. Sapienza, International Legal Standards on Capital Punishment, in: Ramcharan (note 72), 288. McGoldrick (note 84), 353.

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Reference should also be made to Protocol N o . 6 to the European Convention, the intention of which is to eliminate totally the use of the death penalty in peacetime. It is clear from Article 2 that a State party to the Protocol is obliged to ban the death penalty completely in its domestic law. 1 0 5 Within the Inter-American system a Protocol to the American Convention to abolish the Death Penalty was approved in 1990 but is still not in force. 106 Also within the U N a Second Optional Protocol to the CCPR has been adopted aiming at the abolition of the death penalty. The total number of States parties is at the moment only six. b) I n armed conflicts It is important to bear in mind that the norms related to the prohibition of the death penalty contained in the CCPR are valid also in times of war. However, there are a number of rules in international law, which are explicitly relevant in armed conflicts. States' obligations to respect the pregnant woman's right to life are consequently contained in norms of international humanitarian law, 1 0 7 which are more extensive than the CCPR. Parties to an international conflict shall, according to Article 76(3) of the First Additional Protocol to the Geneva Conventions of 1949, do their utmost to avoid pronouncing the death penalty on pregnant women and mothers w i t h dependent infants. Moreover, it is prohibited to execute the death penalty on these persons.

The international efforts at limiting the imposition of death sentences on pregnant women have unfortunately had negative results as well. Thus, in order to circumvent the prohibition in international law of execution of pregnant women, a number of States have imposed coercive abortions to render pregnant women eligible for the death penalty. 3. Protection of the unborn from abuse in foetal research The consequences of research are generally difficult to survey. Since research in bio-medicine is almost exclusively conducted and funded by governmental authorities, research is not the researcher's own business. It is to a great extent a social concern, and States should have certain human rights obligations in this respect. As regards our study there are mainly two aspects of protection of the unborn that are of concern:

105 The Protocol has been in force since 1 March 1985. A t the end of 1991, 17 States members of the Council of Europe have become parties to it. 106

OAS, Treaty Series, N o . 73. A t the end of 1992 only one ratification has been received. International humanitarian law is applicable in international as well as in non-international armed conflicts. 107

8 GYIL 36

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1. Scientific experiments with embryos — embryos are used for scientific research among other things designed to improve the success rate of I V F but also in research aimed at enhancing medical knowledge in virology, immunology, etc. 2. Prenatal medical treatment or genetic alteration of the embryo. 108 The legal response as regards the protection of the foetus in international law in the above mentioned areas is still unsatisfactory and there is a pressing need to elaborate rules. However, certain standards have developed which apply to the treatment of embryos. O n the international level Recommendation no. 1046 (1986) on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes has been adopted within the General Assembly of the Council of Europe which is aimed at encouraging member States to prohibit in domestic law genetic manipulation that may lead to sex selection of the child to be born. I n this respect there is a need in international law for adopting rules that emphasize the right to be born without manipulated hereditary factors. However, it may be necessary to justify exception by the application of this principle in order to enable the parents-to-be to avoid X-linked chromosomal disorders. General consensus on that matter is reflected in the recommendations presented by C A H B I 1 0 9 to the Council of Europe in 1989. Principle 1(2) reads as follows: "The techniques of human artificial procreation must not be used for obtaining particular characteristics in the future child, in particular for the purpose of selecting the sex of the child except where . . . a serious hereditary disease linked w i t h the sex is to be avoided." Moreover, techniques for sex selection that are used in a number of countries 110 should not be allowed, even at a stage of early pregnancy. They have to be strongly denounced because of the cultural and social perceptions they perpetuate and generate. Such practices should be judged incompatible w i t h the accepted principles of international human rights law, in which States are urged to adopt all appropriate measures to modify social and cultural conduct which discriminates between men and women, to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes.111

108 Michael Coester , The Legal Status of the Embryo in German Family Law, Report to the V l l t h World Conference of the International Society on Family Law, 1991, 3. 109 C A H B I is an ad-hoc Committee of experts on progress in the bio-medical sciences relating to human artificial procreation. The principles are published in: Human artificial procreation, Council of Europe, Legal Affairs, Strasbourg 1989, 35-40. 110

Maja Kirilova Eriksson , Family Planning in the Spirit of Human Rights, in: The Living Law of Nations, Essays in Memory of Atle Grahl- Madsen y Strasbourg 1993 (forthcoming). I n December 1991 a proposal has been submitted to the Indian Parliament for legislation banning sex determination tests to prevent its misuse for female foeticide. See Rita Panicker, The Child and the Indian State, in: Maud Droogleever Fortuyn / Miek de Langen (eds.), Towards the Realization of Human Rights of Children, Amsterdam 1992, 77.

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A comprehensive report reviewing the possibilities known to bio-medical science and practicable now concerning the use of human embryonic and foetal material for different purposes was delivered by A. McLaren to the Council of Europe in 1989. Also the impressive report delivered by professor Christian Byk on "La reglementation des sciences bio-medicales en Suede et au Danemark suivi de l'organisation mondiale de la sante et la procreation medicalement assistee" presented in 1988 to the Council of Europe should be mentioned. O n the national level the well-known Warnock Report has recommended, as has C A H B I , that a limit of 14 days beyond fertilization should be observed as regards research on embryos. O f central importance for the reasoning in Warnock was that the embryo at this point becomes an individual. According to the principles elaborated by C A H B I embryos should also be treated w i t h respect for human dignity. The embryo is given fairly good protection through, e. g., Principle 17 of the C A H B I document related to human artificial procreation. Paragraph 1 of this Principle provides that nothing must be done to harm an embryo and that no act or procedure shall be permitted on any embryo other than those intended for the benefit of the embryo. Furthermore, experiments on fertilized human eggs are prohibited after the 14th day from fertilization. (Principle 17 para. 2(b)). A number of States have passed laws w i t h similar regulations. The 14-day limit has on the other hand been objected to on the grounds that abortion is permitted up to 28 weeks. There is no reason for outlawing embryo research and experimentation below the upper time limit of abortion. 1 1 2 Yet, the fact that abortion is widely accepted for the pre-viable foetus does not imply that State institutions may use it for research purposes. The arguments for the demands on limiting or ending genetic engineering are based on the premise that the foetus also has a right to identity and integrity and that it is important to preserve its dignity . Foetal experimentation may result in a brutalization of researchers and society, 113 making them insensible towards human life. 1 1 4

111

See Article 4(h) of the 1992 U N Declaration on Violence against Women (note 159) and Article 5(a) of the Convention on the Elimination of A l l Forms of Discrimination against Women. 112 John Harris , Should we experiment on embryos? in: Robert Lee/ Derek Morgan > Birthrights, Law and the Beginnings of Life, New York, 1989, 93. 113 Historical reviews of ancient attitudes toward abortion have, however, shown that even more cruel behaviour was permissible. "(I)n Sparta, if any infant, newly born, appeared, to those who were appointed to examine him, ill formed or unhealthy, he was, without any further ceremony, thrown into a gulf near mount Taygetus . . . A t Athens, the parent was empowered, when a child was born, to pronounce on its life or its death. I n Rome, the son held his life by the tenure of his father's pleasure." See Horan et al. (note 31), 274. 114 Marilyn J. Clapp , State Prohibition of Fetal Experimentation and the Fundamental Right of Privacy, Columbia Law Review, vol. 88, 1988, 1095; Lahti (note 21), 3; Torbjörn Tännsjöy Göra barn, Stockholm 1991, 164.

8""

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Some of these ideas have found expression in the Draft Recommendation on Genetic Testing and Screening for Health Care Purposes adopted by the Committee of Ministers of the Council of Europe in September 1991. 115 The extent of the research allowed in the fields of genetic testing and screening depends upon the degree of usefulness and benefits it may have for the individual, the family, "as well as the population as a whole." Despite these strict requirements it must be ensured that those techniques are being used properly. There are still considerable risks for misuse because of the vague language of the document. According to Principle l a of the Recommendation genetic testing for health care purposes refers to detecting "a serious genetic disease . . . or to avoid giving birth to affected offspring." The phrase "affected offspring" in our opinion raises a very difficult and delicate question since the adjective "serious" is omitted. What conduct is to be deemed proper in cases of less serious defects? Would this justify abortion of a foetus where there is a risk for the child to be born w i t h genetic diseases or birth defects? If so, this would deny the handicapped their human dignity. One thing is indisputable, however, this rule cannot justify the compulsory termination of a pregnancy. Protection of the unborn from foetal experimentation has been subject to discussions during the preparatory work on the U N Convention on the Rights of the Child. 1 1 6 Efforts were made by N G O s to include a provision on that matter in the Convention. The proposal was disregarded, however, for several reasons. 117

115

C A H B I - G T - G S (91) 4, 2nd Rev., Restricted, in: Council of Europe, A C A H B I G T G S 9 14 Rev., Strasbourg, 4 September 1991. Within the Council of Europe there is on-going work on a convention in the field of bio-medicine. See Recommendation 1160, 1991, on the preparation of a convention on bioethics, Parliamentary Assembly of the Council of Europe, 43rd ordinary session, 18-25 September 1991. The text of the draft is still kept confidential. Moreover, Principle 6 of Recommendation N o . R (90)3 of the Committee of Ministers to Member States Concerning Medical Research on Human Beings is of relevance to the issue at hand. It is stated that, "Pregnant nursing women may not undergo medical research where their health and / or that of the child would not benefit directly unless this research is aimed at benefiting other women and children who are in the same position and the same scientific results cannot be obtained by research on women who are not pregnant or nursing." See Council of Europe, Ree. No. R (90) 3, adopted by the Committee of Ministers on 6 February 1990, 433 meeting of the Ministers' Deputies. 116 Cynthia Price Cohen, United Nations Convention on the Rights of the Child Introductory Note, The Review International Commission of Jurists No. 44, 1990, 39. 117 Alston (note 46), 165.

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I V . Securing the healthy and proper development of the unborn child 1. Protection against harmful influence The duties of the individual toward other individuals according to the perception of law, embracing among other things the principle alterum non laedere , i. e.} not to hurt but help others develop their personality, have been summarized by the Roman emperor Justinian. 118 The maxim has since then influenced the domestic law of many countries, 119 as well as international law. The principle relating to parental duty to promote the welfare of the child and to take care of the needs of it has found expression in most constitutions in the world, and it is marked in the U N Convention on the Rights of the Child. 1 2 0 The question then arises whether and, if so, to what extent the unborn child may benefit from those rules? Different aspects of protection of the unborn child come up in many situations when it is exposed to injurious influence. Considering that the pregnant woman has direct control over the unborn child during the gestational process, it appears most natural that the expectant mother should be in charge of the unborn child's interests, i. e.y she should see that the development of the foetus is as favourable as possible. However, she may fail in doing so. Is there any possibility then for the unborn child to demand protection from detrimental conduct by the mother such as drinking alcoholic beverages, using narcotics or other drugs, or any treatment threatening its well-being and healthy development and perhaps leading to its destruction? May the State intervene and impose coercive measures such as treatment in clinic or even detention of the pregnant woman in such cases? Would the use of coercion be considered compatible w i t h human rights law? The domestic laws in a number of countries, among them Sweden, 121 establish rules dealing w i t h the prerequisites for taking persons into institutional care to prevent drug abuse. Characteristic of those provisions, which in our opinion are in conformity w i t h the individual's right to respect for private life as guaranteed by human rights treaties, is that the only considerations needed to be made in 118

Erica-Irene A. Deas> Freedom of the Individual under Law, U N New York, 1990, 41. The national laws reflect the notion of pre-existing duty not to harm the foetus, or a conditional prospective duty, which crystallizes at birth as the basis for liability. 120 The CCPR is also based on the idea that the responsibility for guaranteeing children the necessary protection lies w i t h the family, society and the State. Although the Covenant does not indicate how such a responsibility is to be apportioned, it is primarily incumbent on the family. Thus, parents are "to create conditions to promote the harmonious development of the child's personality." See H R C General Comment no. 17/35. CCPR / C / 21 / Rev. 1, 23 para. 6. 119

121 The 1980 Act on the Care of Young Persons (Lag 1980:621 med särskilda bestämmelser om vard av unga); The 1988 Act on the Care of Persons who Abuse Alcohol, Narcotics etc. (Lag 1988: 870 om vard av missbrukare i vissa fall).

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such situations is whether there is a risk for the person's (including the pregnant woman's) health. The need of the foetus can, therefore, only be warranted to the extent that it coincides with the mother's own need of care. Except under international law only the victim of an alleged violation may bring an application to the international organs for the protection of human rights. Since there is no prospect of actio popularis in individual cases it is theoretically possible only for the potential father to take legal action on behalf of the unborn child in the aboye mentioned situations. The European Commission has decided in a case dealing w i t h the abortion issue 122 that the father-to-be is a "victim" within the meaning of Article 25 of the Convention. N o w , even if the father's complaint were to be declared admissible, it is doubtful whether actions by public authorities could be justified. They would imply that the mother in such circumstances could be put into public care against her w i l l only because of the risk that she could inflict injury upon the unborn child. The European Commission and Court of Human Rights have attached great importance to protecting the individual's liberty. However, when it is in the interest of the person concerned, deprivation of liberty of individuals w i t h alcohol and drug problems is in conformity w i t h Article 5 §1 (e) of the European Convention. 1 2 3 Moreover, according to the case-law of the European Court of Human Rights 1 2 4 coercive measures in this respect are to be applied w i t h the utmost restriction. As regards the right to privacy a wide definition essentially involves the right to live one's own life with a minimum degree of interference. A narrower definition has been outlined as "those activities which do not affect other persons, but that would exclude personal relationships, and most of what one does affects people one way or another." 1 2 5 This would mean that one's private life ends when another person is involved. The European Commission in the Briiggeman and Scheuten case expressed the view that, "Whenever a woman is pregnant, her private life becomes closely connected w i t h the developing foetus." 1 2 6 Furthermore, the European C o u r t 1 2 7 has observed that a fair balance has to be struck between the general interest of the community and the interest of the individual. Thus, on some occasions individuals' interests must be subordinated to the interest of society.

122 123

Paton v. UK y Appl. no. 8416/79, D R 18, 244.

Arthur Haeflinger, Die Europäische Menschenrechtskonvention und die Schweiz, Bern 1993, 84. 124 Winterwerp Case, 24 October 1979, Series A , no. 33, ECHR, Judgment of 27 November 1981, para. 39. See furthermore Lars Adam Rehof / Tyge Trier , Menneskeret, Kobenhavn 1990, 237. 125 Louise Doswald-Beck y The meaning of the 'right to respect for private life* under the European Convention on human rights, HRLJ, 1983, 285. 126 Report of the European Commission of Human Rights, 12 July 1977, 115. 127 Gaskin Case 2/1988/146/200, E C H R , Judgment 7 July 1989, para. 42.

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Such an interference w i t h one's private life must be necessary for one of the purposes in Article 8 paragraph 2 of the Convention. I n other words, Article 8 requires that the interference must comply w i t h several legitimate aims referred to in Article 8(2) in order to be considered justified. 128 We have to explore whether an interference in the private life of a pregnant woman on some occasions might be justified. Interference must, among other things, be based on domestic law, i. e.y " i n accordance w i t h law". The law in its turn must fulfil a requirement related to a quality of law, connected w i t h its accessibility and foreseeability. I n the case of Silver and Others 129 the European Court stated that, " A law, which allows the exercise of unrestrained discretion in individual cases w i l l not possess the essential characteristics of foreseeability and thus w i l l not be a law for present purposes. The scope of the discretion must be indicated w i t h reasonable certainty." When the law has been formulated w i t h sufficient precision it w i l l enable people to regulate their conduct. However, absolute certainty is unattainable. The degree of precision w i l l naturally differ depending on the subject matter. 130 I n that respect we would rightly fear difficulties in creating a system w i t h sufficiently precise criteria to meet w i t h the requirements of legal certainty for compulsory care. It would have to provide for secure legal guarantees in cases, where it could be deemed necessary to take action to protect the unborn child. There is still no sufficient scientifically substantiated data on what amount of alcohol or other drugs might constitute a risk to the unborn child. 1 3 1 Furthermore, the Convention organs determine in cases which raise issues under Article 8, whether the infringement was "necessary in a democratic society". The individual State has, though, in this respect a margin of appreciation, which it exercises under the supervision of the courts. The Strasbourg organs were for a long time of the opinion that the government concerned is better placed than a body in Strasbourg to know the particular needs of the country. The "margin of appreciation" has, however, w i t h time become narrower, especially in matters affecting individuals' private life. The European Court supervises whether the national measures pursue a legitimate aim and whether they correspond to a "pressing social need". 1 3 2 O n l y particularly serious reasons are considered justifiable for such interference. Interference w i t h a person's right to privacy is furthermore permissible and is justified if there is a risk for the "health" of others and in so far as it is necessary to protect "the rights and liberties of others" according to Article 8(2). However, 128

Eriksson (note 45), 457. Silver and Others , E C H R Judgment 25 March 1983, Ser. A , no. 61, paras. 88-89. 130 Sunday Times Case, E C H R Judgment 26 April 1979, Ser. A, no. 30, para. 49. 131 Äke Saldeen , Sweden: More Rights for Children and Homosexuals, Journal of Family Law, 1988-89, vol. 27, 300. 132 E C H R , Judgment of 25 March 1983, Ser. A , no. 61, 37. 129

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the term "others" has not been interpreted by the Strasbourg organs in the context of the unborn child. Certainly one may argue that States' authorities may decide to place a child as soon as it is born alive into public care if the lack of care for the child, or any other condition in the child's home, entails a danger to its health or development. The Strasbourg organs have decided on such cases on several occasions. 133 I t has constantly been held that a decision to take children away from their parents is an interference w i t h a person's right to privacy and family life as stipulated in Article 8 of the European Convention. However, in the light of the circumstances in some of the cases, the decisions of the domestic authorities have been found justifiable according to Article 8(2), in view of the need to care for the health of the child. Thus, the interest of the child is indeed predominant, when we look for a balance between conflicting interests. W h y then not prevent or stop possible harm to the child to be born? The consequences of such an interference could be deemed less essential than taking children into care, resulting in the person being deprived of the factual care of her / his child, sometimes even for an indefinite time. Thereby it has turned out to be very difficult to uphold the natural link between parent and child, a bond of fundamental importance. Against this argument one may contend that the expression "health", 1 3 4 used in the relevant article but also in other human rights treaties, has been drafted exclusively to apply to persons already born. The term has been given an extensive interpretation by the Strasbourg organs, to encompass, e.g., the general future well-being of an already born child. 1 3 5 Coercive measures have been used on behalf of pregnant women in domestic practice. I n national practice there have been cases when a mother, refusing blood transfusion on religious grounds, has been forced to accept it in order to save the life of the viable foetus. 136 A refusal of a blood transfusion may lead to the stillbirth of the child. Forced intervention on behalf of the foetus would, however, according to current interpretation of human rights norms, constitute a violation of the woman's right to bodily integrity, in other words the right to respect of private life.

133 Here we could refer to some of them: Olsson judgment, Appl. no. 10465/83, E C H R 24 March 1988, Ser. A , no. 130; Eriksson judgment, Appl. no. 11373/85, E C H R 22 June 1989, Ser. A , No. 156. 134 I n other international documents the word 'health' is meant to relate to already born children too. W H O ' s definition of health comprises "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." See Preamble to the Constitution of W H O , 2 Official records of the World Health Organization 100 (July 1946). I t is furthermore stipulated that "healthy development of the child is of basic importance, the ability to live harmoniously in a changing total environment is essential to such development." See Alston (note 46), 161. 135 136

Doswald-Beck (note 125), 308. Lahti (note 21), 23.

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From the foregoing it is evident that there is not any possibility of applying existing rules in international law to stop or control the potentially harmful behaviour of an expectant mother. Coercion is part of the legal order making certain behaviour mandatory for the benefit of others, and coercive measures to further the human rights of others are not necessarily incompatible w i t h human rights principles. The rights contained in human rights treaties have to be interpreted in the light of the development in social and political attitudes. The right to privacy is a particularly dynamic concept. It is, however, hardly conceivable that the Strasbourg organs would justify coercion in favour of an unborn child to protect it from acts of its mother. The mother's right to private life would be deemed stronger than the interest to protect the unborn child, who lacks personal legal rights. We believe that encouraging the pregnant woman to change her behaviour is a better way of ensuring the unborn child's healthy development rather than imposing penal sanctions. Counselling and proper information is very important in this respect. However, upon completion of its b i r t h 1 3 7 the child may, if it suffers from injuries that occurred prior to birth, in utero , when reaching a certain age take legal action against its mother according to the domestic law of a number of countries. 138 The issue of parental liability for an injured foetus that is born alive has not yet been discussed by the international organs. It should not be overlooked that such lawsuits do not rest on a claim of foetal rights but of an individual born alive. The unborn child should also be entitled to protection against abuse by persons other than the mother. I n this respect many new areas need regulation in law. I n the context of A I D S the question arises whether it is justified for a State to impose restrictions on procreation for persons who are H I V positive. I n our opinion protection of the mother and the prospective child from H I V infection would be a legitimate aim, justifying the legal liability of H I V positive donors with knowledge of their disease who donate sperm to be used in artificial insemination. Public health measures designed to counter the spread of H I V infection and ensure the safety of semen for artificial insemination are "unobjectionable on human rights grounds". 1 3 9 Thus, mandatory testing of donors for H I V seropositivity would not constitute any interference w i t h the human right to privacy of the individual concerned. 137

Nitza Shapiro-Libai, The Right to Abortion, Israel Yearbook on Human Rights, vol. 5, 1975, 131. 138 Derek Morgan , When a foetus has legal standing, Bulletin of Medical Ethics, No. 66, 1991, 34. According to Ontario's Family Law Reform of 1980, the child has a right to sue for prenatal injury. Morgan / Lee (note 22), 170; K. Swinton , Regulating Reproductive Hazards in the Workplace: Balancing Equality and Health, University of Toronto Law Journal, 1983, 65. 139

Paul Sieghart, , AIDS and Human Rights, A U K Perspective, London 1989, 75.

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Furthermore, the question of liability may be discussed in relation to situations, such as when a doctor prescribes a vaccination or certain medicine to a pregnant woman that may indirectly lead to abortion or to injuries of the foetus. I n this respect we could by analogy use the conclusions of the European Commission in the X v. the United Kingdom case 140 which deals w i t h a voluntary vaccination campaign that resulted in the death of a number of children. The applicant claimed the United Kingdom was liable since there was a definite causal connection between the vaccinations and the subsequent deaths. Moreover, there was medical evidence that suggested that 15% of the children who suffer from "adverse reactions" eventually die. Consequently, in the view of the applicant the right to life Thus, Article 2 would encompass death from had not been protected effectively. carelessness or over-confidence. I n that case the victim claimed that there had been poor administration of the vaccination and immunization schemes and lack of information. The European Commission came to the conclusion that in the present case the purpose of the vaccination program, even though small numbers of fatalities occurred, was to protect the health of society by eliminating infectious diseases. Therefore, it could not be claimed that there had been an intentional deprivation of life in the meaning of Article 2(1) of the European Convention. This case demonstrates that when a vaccination scheme is voluntary, that is to say when States do not compel parents to vaccinate their children or themselves and vaccinations are subject to proper control systems to minimize the risks involved, the public authorities cannot be charged w i t h infringing the right to life. Professor Wolfgang Peukert , however, remarks in this respect that if the vaccination is administered to pregnant women at a stage when the foetus has reached viability, "There would be no conceivable reason for allowing the argument that in such a case the state did not have an obligation to take appropriate 1 steps to safeguard the child-to-be." 1 4 1 International law is still largely State centered. States are the principle actors on the international scene. For a long time only actions of States and not those of individuals could be prosecuted in the international sphere. Even though the development in modern international law, having in view the concept Hugo Grotius expressed in his De iure praedae commentarius that the individual should be attributed international rights and duties apart from his State, has lead to the acceptance of a restricted procedural capacity for the individual under international law, 1 4 2 there are still difficulties to overcome in dealing w i t h the question of the 140 Association X v. the United Kingdom , Appl. no. 7154/75, D R 14, 31. It should be mentioned that this case deals w i t h State action. However, the development in European case-law shows that the right to protection of one's life has been interpreted to comprise State obligation to provide protection against acts of private persons. Peukert (note 70), 517. 141

Op. cit 9 516. Article 8 in the Protocol No. 9 to the European Convention on Human Rights entrusts individuals w i t h procedural capacity. In other words individuals have been guaranteed a 142

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liability of States in relation to the acts of private individuals who harm other individuals. This is a relatively underdeveloped subject in the area of international human rights law. We should, however, not leave unnoticed the fact that the substance of States' traditional obligations in this area is expanding. Under some circumstances international law requires a State not just to "stand idly by while private individuals infringe the rights of other individuals" 1 4 3 but must take steps to stop or offer redress for such violations. Furthermore, States have obligations to prevent and punish particular acts by private individuals. Certain international duties and responsibilities for individuals have become part of international law. Thus, individuals may be held responsible for committing crimes against international law. Examples of such violations are crimes against peace, war crimes and crimes against humanity. The Nuremberg and Tokyo tribunals prosecuted war criminals directly under international law. O f importance for the protection of the unborn child is the fact that genocide is considered a crime under international law for which perpetrators, be they statesmen, public officials or private individuals, are punishable. Genocide as defined in Article I I (d) of the Convention on the Prevention and Punishment of the Crime Genocide includes measures intended to prevent births within a national, ethnic, racial or religious group w i t h the intention of extinguishing the group as such. 144 The Convention expands the concept of crimes against humanity as contained in the Nuremberg Principles and defines liability for such crimes whether committed in times of war or in times of peace. I n addition, it provides for the creation of an international court w i t h criminal jurisdiction. However, an international court w i t h jurisdiction to try individuals committing such crimes has not yet been established. Summing up the above we may ascertain, as to the subject of our discussion, that the unborn child is not protected by international law rules against acts of private persons. It is not protected from the main threat to it — abortion. The pregnant woman cannot be made a criminal accomplice in an abortion case, since abortion is not a crime under international law. Very few States today still consider abortion as such, and even then it is not treated the same way as murder, insofar as punishment is concerned. O n the contrary, women's right to respect for private life and the right to family planning, as guaranteed by existing human rights treaties, prevails in a situation where there is a conflict of interests. There is even evidence that a right to abortion is emerging in international law. 1 4 5 conditional right to appear before the European Court. This document was adopted on 8 November 1990 and is not yet in force. 143 Andrew Byrnes, A Feminist Analysis of International Human Rights Law, (Conference paper), 1990. 144 U N T S vol. 78,277. As of 31 March 1991 the Convention has been ratified by 102 States. 145 Maja Kirilova Eriksson, The Right to Marry and to Found a Family, Uppsala 1990, 141 et seq.

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O n the other hand, the unborn child enjoys protection against any unjustified action by public authorities, which violate the woman's right to found a family or to family planning. A n example of that is coercive abortion. 1 4 6 I n the 1980's such practices occurred regularly in China. 1 4 7 2. States obligations to protect motherhood a) General remarks I n order to enforce human rights, international law requires, apart from its obligation upon the State to refrain from taking action infringing upon human rights, positive action from States parties w i t h regard to different human rights treaties. Protective measures for women who are child bearers and specific activities by States parties are called for in a number of international instruments, including for example the obligation to give assistance to the pregnant woman, i. e., medical care and counselling and to create safe and healthy working conditions that make it possible for her to give birth to healthy children. The first instrument in international law to pay special attention to the need of treating motherhood in a protective manner, i. e.y during all stages of pregnancy, birth, nursing and care of infants and childhood, was the Universal Declaration on Human Rights (Article 25(2)). This intention, which found expression in the sentence "maternity and childhood must enjoy particular protection," was later on incorporated into Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICPR). I n this article it is stipulated that special protection should be accorded to mothers during a reasonable period before and after childbirth. The protection includes paid leave or leave w i t h adequate social security benefits. However, it is important to underline that the ICPR imposes qualified and progressive obligations on States parties. Thus, they do not demand immediate application but are rather promotional, i. e., they call for steps to be taken by the States w i t h the view of gradually achieving the full realization of the rights concerned. A t the regional level it is only the American Declaration of the Rights and Duties of Man of 1948, Article V I I , that entails a general requirement for protection of women during pregnancy and the nursing period. A provision about motherhood is not found in the CCPR nor in the European or American Conventions on Human Rights. 146 147

Op. cit. y 163.

Rudolf Andorka , The use of direct incentives and disincentives and of indirect social economic measures in fertility policy and human rights, in: Population and Human Rights, U N , Department of International Economic and Social Affairs, S T / E S A / S E R . R / 1 0 7 , New York 1990, 136.

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Provisions aimed at ensuring State action to protect motherhood, and in that way the needs of the unborn, are included in the Convention on the Elimination of A l l Forms of Discrimination against Women (Convention of 1979), adopted by the U N General Assembly in 1979. According to Article 12(2) States parties have to ensure that women receive "appropriate services about pregnancy, confinement and the post-natal period, granting free services where necessary." They are furthermore entitled to adequate nutrition during pregnancy and lactation. Article 10(h) of this Convention requires the elimination of discrimination against women in the field of education. Education is seen as the main key to improve women's situation. Educational opportunities and counselling for women affect infant health and the well-being of the mother. A low literacy level hinders a woman's access to health information and affects the mortality of the mother as well as the child. Clearly, a mother's loss of health through reproductive accidents endangers the welfare of her child. Consequently, the protection of the mother's health protects her dependents and the family. That is w h y States parties not willing to take appropriate measures to eliminate policies that require the expulsion of pregnant students w i l l have committed a breach of the obligations under the Convention. 1 4 8 According to Article ll(3)e in the recently adopted text of the African Charter on the Rights and Welfare of the Child, 1 4 9 States parties are under an obligation to adopt special measures for girls who are pregnant to ensure equal access to education and the opportunity to continue their educatiqn. Apart from the Convention of 1979 another significant document that furthers health related goals was adopted during the U N Decade for Women (1976-1985): the Forward-Looking Strategies 150 for implementing the goals of the Decade. The importance of the strategies lies in their articulation of specific measures that should be used where necessary to advance women's status. According to Article 155 States should, in view of the unacceptably high level of maternal mortality in many developing countries, reduce "maternal mortality from now to year 2000 to a minimum reducible level." This "should be a key target for Governments and non-governmental organizations including professional organizations." The relationship between the status of women and welfare of the child has been stressed 148

Rebecca J. Cook / Jeanne M. Haws , The United Nations Conventions on the Rights of Women: Opportunities for Family Planning Providers, International Family Planning Perspectives, 1986, 52. 149 Geraldine van Bueren (note 48), 20. 150 Forward-Looking Strategies of Implementation for the Advancement of Women and Concrete Measures to Overcome Obstacles to the Achievement of the Goals and Objectives of the United Nations Decade for Women for the Period 1986 to the Year 2000: Equality, Development and Peace. A / Conf. 116/28 / Rev. 1, 1985. This document is a plan for overcoming obstacles to equality. A t the 1985 World Conference on Women, governments of over 150 countries adopted the Strategies without a dissenting vote.

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in paragraph 164, by stating that raising the level of education among women is vital "for the general welfare of society and because of its close links to child survival and child spacing." Unfortunately in practice the existing rules, are not observed by many States, and international actions are needed for better implementation. I n developing countries maternal mortality rates are much higher than in the industrialized world. Maternal health services are not available to the same extent in rural areas, where the greater part of the population in the Third World lives. Half a million women still die every year because of inadequate reproductive health care. Women must be in the best possible state of physical health during pregnancy, for her own safety as well as for the survival and future development of the child. 1 5 1 b) Conditions of work of pregnant women The inspiration to protect unborn and even unconceived children in a broad sense, for example in the working environment which can be dangerous to potential mothers, has led to the adoption of provisions in international law such as Article 7 of the ICPR designed to secure safe and healthy working conditions for women. To prevent miscarriages pregnant women workers should do work that is not physically demanding, and they should not be assigned to night shifts in the later stages of pregnancy. There is evidence that exposure to many toxic agents, lead, radiation, vinyl chloride, anaesthetic gases, etc., at the working place may harm reproductive capacity or a developing foetus. A t the regional level the EEC has developed a number of principles as regards States' obligations to counteract foetal damage. A directive is expected to be adopted focusing on a prohibition of the employment of women during pregnancy in environments w i t h a high amount of lead. Furthermore, there are proposals under preparation w i t h strict rules requiring introduction of compulsory warning signs on chemicals which might cause damage to the foetus. The employer w i l l be responsible for the implementation of these rules. The Convention of 1979 affects safety in the work-place as well. It contains rules implying that pregnant women in jobs entailing congenital risk to the unborn may be required to work elsewhere. I n other words, to serve the balance between the interests of the employed woman and the unborn child, the pregnant woman should be ensured the right to be transferred to a more suitable job w i t h equivalent status. This provision, the only one at a universal level, however, is not sufficient. More occupational and environmental regulation is needed to promote general health on the international as well as domestic level. The efforts within the EEC 151 Pramilla Senanayake , Young Women and Reproduction: Offering Options and Choices, in: Development (1990:1), 9.

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to adopt common regulations related to a pregnant woman's right to be transferred out of a potentially harmful environment to be safer for the unborn child have so far been unsuccessful. Furthermore, research has indicated that many of the substances affect both sexes and that reproductive disorders cover all disturbances in the human capacity for reproduction concerning both men and women. 1 5 2 However, possible risks to male reproductive capacity have not yet been considered thoroughly and they are not subject to State regulation to the same extent as for women. We can claim that men today have inadequate protection against hazards to health associated w i t h the reproductive function. This fact causes concern about compliance w i t h the important principle of equality between the sexes in international law. According to international standards women are totally excluded from certain types of night work, work underground and in mines. 153 I n this respect we may observe the fear being expressed that over-protective legislation might easily lead to negative results, for example "prohibition of night work for women . . . which may be counter-productive in terms of equality." 1 5 4 O f importance for the proper development of the unborn are the provisions prohibiting dismissal as a result of maternity. Article 11 of the Convention of 1979 contains prohibition of dismissal on the grounds of pregnancy or maternity leave. According to Article 8 of the European Social Charter women have the right to paid leave or adequate social security. These provisions are very important indeed, but sometimes have caused situations in which women are denied employment opportunities. I n this field legislative work has to be strengthened. A t present the legal provisions at the international level as well as at the domestic level are neither sufficient nor complete. c) Protection of pregnant women in special situations A pregnant woman is particularly vulnerable to torture or to detention in cruel and degrading conditions. She risks miscarriage and severe injury from untreated medical complications of pregnancy. Torture can result in serious injury both to the mother and to the foetus.

152 Swinton (note 116), 47; L. Doyal , Infertility — a Life Sentence? Women and the National Health Service, Reproductive Technologies, 1990, 189. 153 Many of the International Labor Organization's ( I L O ) Conventions and recommendations provide for special protection of women, and indirectly also for children to be conceived. Article 2 of Convention No. 45 states, " N o female whatever her age shall be employed on underground work in any mine." Article 3 in Convention No. 89 says, "Women without distinction of age shall not be employed during the night in any public or private industry." 154 U N Doc. A / 3 9 / 4 5 , in: Theodor Meron y Human Rights Law-making in the United Nations, Oxford 1986, 74.

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There is a body of principles in international law directed towards safeguarding the physical safety of detainees and prisoners. The U N Standard Minimum Rules for the Treatment of Persons in Detention and Imprisonment prohibit, e. g.y any form of punishment that could adversely affect the person's physical or mental health. Torture is a grave breach of international treaty law. It specifically violates the CCPR, the European and American Conventions on Human Rights, and there are strong indications that the rules in question are rules of general international law. Moreover, prohibition of torture has been made the subject of a special convention within the United Nations. The U N Convention Against Torture, adopted by the U N General Assembly in 1984, has been in force since 1987. 155 I n the preamble the right to be free from torture is regarded to have its basis in "the inherent dignity of the human person." It stands to reason that even though the relevant provisions do not specifically address the issue of treatment of pregnant women, they are not excluded from the envisaged protection. Apart from the above mentioned rules of general protection there are protective provisions designed for women in special situations. Those rules are indeed of significance for the healthy development of the foetus. We may start by referring to the most important documents in international humanitarian law, the 1949 four Geneva Conventions applicable in international armed conflicts. I n part I I of the fourth Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, it is stipulated that expectant mothers shall have particular protection and respect (Article 16). Furthermore, Article 23 stipulates that States parties shall allow the free passage of medical stores, foodstuffs and clothing intended for expectant mothers and maternity cases. Article 76 of the First Additional Protocol to the Conventions requires that the case of a detained or arrested pregnant woman or mother of dependent children shall be given the utmost priority. If it is not obvious that a woman is pregnant, a medical examination must be carried out. Finally, States parties to the African Charter on the Rights and Welfare of the Child are obliged to provide special treatment for expectant mothers who are imprisoned. Notwithstanding the existence of the above mentioned norms of international law, a number of governments still ignore the special needs for protection of pregnant women. 1 5 6 The number of pregnant women detained in South America has long been and still is very high. 1 5 7 Women are often held under intolerable 155

G. A . Res. 39/46 of 10 December 1984, G A O R 39th sess., Suppl. 51, 197. There has been a European Convention on that subject in force since 1 February 1989, the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment. We should mention here Article 3(h) of the 1992 Declaration on Violence against Women where the right not to be subject to torture or cruel, inhuman or degrading treatment or punishment has been stipulated (note 159). 156 Women in the Front Line, A n Amnesty International Report, 1991, 24.

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conditions in prison and detention centres and subject to treatment that contravenes contemporary international law norms. Pregnant women are often kicked and beaten and they have w i t h malicious aforethought been assigned to heavy labour in order to provoke miscarriage. Irr 1980 the U N Commission on the Status of Women (CSW) appointed a five-member working group to review communications in order to identify such occurrences so as "to reveal a consistent pattern of reliably attested injustice and discriminatory practice against women." 1 5 8 I n 1984 the Working Group considered 121 communications, in which "widespread physical violence against women while in official custody," including cases of rape, sexual abuse and violent treatment of pregnant women in detention, were identified. As a result the CSW adopted a resolution on the matter, in which the United Nations member States were urged to eradicate violations of that kind. However, the CSW did not disclose the offending countries. I n our view such practices need to be condemned strongly by the international organs. This unique situation for women requires more attention on the international agenda. A very important step in the development of international norms regulating violence against women has been taken by the adoption of a draft Universal Declaration on Violence Against Women in 1992. 159 I n this document it is stressed that violence against women is a complex reality that creates problems affecting society as a whole. I n paragraph 7 of the preamble concern is expressed regarding women in institutions or in detention. Thus, they are "especially vulnerable to violence." States are urged in Article 4 to pursue by all appropriate means and without delay a policy of eliminating violence against women. A characteristic of the provisions related to pregnant women is that they are worded in a way that only expresses consideration for maternal health. They do not overtly assert human rights for the unborn, even if their intention of protecting the unborn cannot be disregarded. V . Conclusions O n the basis of the preceding discussion the following observations may be made regarding the legal position of the unborn child. First, it should be noted that protection of the unborn child's interests is an area that has been traditionally considered to be exclusively within the domestic jurisdiction of States. However, development has moved in the direction of setting up international standards on that matter. Through the adoption of the U N Convention on the Rights of the 157 J. Neuwirthy Towards a gender-based approach to human rights violations, Whittier Law Review, vol. 9, 1987, 405. 158

Sandra Coliver , U N Commission on the Status of Women: Suggestions for Enhancing its Effectiveness, Whittier Law Review, vol. 9, 1987, 440. 1 59 See U N Doc. E / C N . 6 / WG. 2/1992 / L. 3, 4.

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Child, which has gained widespread adherence, universal consensus has been reached that the child needs protection "before" as well as "after" birth. A wide range of norms exist, through which the interests of the unborn child can be promoted. International law norms related to the status of the unborn child are worded in terms of protection instead of rights. 1 6 0 There is consequently no sufficient ground for legal arguments that the foetus has a right to be born. Thus, the unborn child's right to life per se has not been recognized in the international instruments and in the jurisprudence of the international organs. The unborn child acquires rights when it is born and has a separate existence from its mother. The very few cases and modest number of authoritative statements, which reflect partly textual "ambiguities" but also difficulties in reaching consensus on the issue, do not enable us to describe the exact content of the legal protection of the unborn under international law. The biological differences between born and unborn life justify the legal protection of born and unborn human beings being unequal. Thus, the life of a human being gradually changes in worth during its biological development. The existing rules of relevance to the legal protection of the unborn child might be divided into two groups: norms aimed at protecting its biological existence and norms securing its proper development. Even if the unborn child is guaranteed a certain degree of protection, the consequence is not necessarily an obligation for the States to provide criminal sanctions for persons performing abortion. We may, furthermore, maintain that the protection of the unborn is relative, since the rights and interests of others according to human rights instruments have to be balanced against the interests of the unborn. I n other words, the legal position of the unborn child largely reflects and is dependent upon the place in the hierarchy of values that are protected by international law bestowed upon the right to family planning and the right to privacy of a woman. There are different means of securing legal protection: directly and indirectly. Despite the fact that the protection of the unborn still lacks a clearly definable substance, we may conclude from this study that the child is protected in an indirect manner against States' actions through the rights of its mother. Improving the situation of the mother has consequently a direct impact on the position of the child. The unborn child is furthermore protected under international law from acts of individuals, provided they can be classified as genocidal. Finally, recent development reflects the tendency towards strengthening the legal position of the embryo and the foetus directly on the grounds of respect for human dignity rather than its right to life. However, the legal response to changed attitudes has to date been meagre. 160 The concept of human rights is still to a great extent based on the perception of subjective rights, enforceable in a court of law.

Evolving Trends in the International Protection of Species By Maria Clara Maffei*

The Convention on Biological Diversity, adopted in Nairobi on 22 May 1992 and opened to signature in Rio de Janeiro on 5 June 1992 during the United Nations Conference on Environment and Development ( U N C E D ) constitutes the most recent treaty on species conservation of world wide scope. I n some respects this Convention fills in a few gaps, since it regulates matters, biotechnology in particular, which had not been tackled in previous treaties concerning wildlife. 1 However, in some other respects the Convention does not represent an improvement in conservation when compared w i t h other instruments of international law. The purpose of this article is not to show the functioning of each treaty protecting wildlife in detail. More modestly, it intends to deal w i t h some aspects of various conventions in order to point out the evolving trends in the field of the international protection of species. To this end some relevant existing treaties w i l l be briefly analysed,2 together w i t h some essential instruments of soft law. O n the other hand, this article faces some issues raised by the conclusion of the 1992 Convention on Biological Diversity.

* The author wishes to thank the United Nations Environment Programme (Nairobi) and, in particular, Ms. Elisabeth Wamttkoya , Administrative Assistant of the Environmental Law and Institutions Programme Activity Centre, for their kind assistance in providing documents on the negotiations of the Convention on Biological Diversity. 1

In the present context a wide definition of wildlife has been adopted that includes not only the native fauna and flora of a particular place but more generally the natural habitats which are indispensable for the survival of wild species. The text of the Convention on Biological Diversity is reproduced in: International Legal Materials (ILM), vol. 31, 1992, 822 et seq. [Hereinafter Biodiversity Convention. A l l references to the Convention in the text and footnotes refer to this cite.] 2

For further details on wildlife conventions see Simon Lyster, International Wildlife Law, Cambridge 1985; Alexander Kiss , Droit international de Tenvironnement, Paris 1989, 212273; Malcolm J. Forster/ Ralph U. Osterwoldt , Nature Conservation and Terrestrial Living Resources, in: Peter H. Sand (ed.), The Effectiveness of International Environmental Agreements, Cambridge 1992, 59 et seq.; Patricia W. Birnie / Alan E. Boyle , International Law and the Environment, Oxford 1992,419 et seq.; Maria Clara Maffei, La protezione internazionale delle specie animali minacciate, Padua 1992.

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I. The Evolution of International Protection of Wildlife 1. Preliminary

Remarks

Before considering the relevant conventions it is necessary to make some preliminary remarks. First of all, for the scope of this article, we have made a distinction between "protection" and "conservation" of species and wildlife in general. Even if the different terminology is not always evident in the texts of the agreements, this distinction is not of minor importance. Usually the "protection treaties" aim at preventing the extinction of the wildlife which is at present threatened by various causes, not necessarily by over-exploitation. O n the contrary, the "conservation treaties" usually aim at regulating the exploitation of a not-yet endangered resource without causing its depletion, i. e. in a sustainable way. This difference in scope entails a difference in content; conservation treaties usually provide only for "negative" obligations (i. e. the reduction of catches), while protection treaties often contain also "positive" obligations, namely those of restoring and maintaining the conditions necessary for the survival of the endangered species or for the maintenance of their habitats. 3 I n the present context only the "protection treaties" w i l l be taken into account. It must be said that the distinction between "protection" and "conservation" treaties is probably going to be overcome in the future. Many factors contribute towards progressively filling in the gap between the "conservation treaties" and the "protection treaties", a gap which still exists, however. For instance, according to the most recent conservation treaties, the exploitation of the resources is to be grounded on scientific data. The scientific approach should avoid both the risk of over-exploitation of the target-resources and adverse effects on the other components of the ecosystem, including w i l d species. O n the other hand, the sustainable use of natural resources begins to appear also among the objectives of the most recent protection treaties. This corresponds to the principles embodied in some very important acts of soft law, like the 1980 World Conservation Strategy and the 1987 Report of the World Commission on Environment and Development "Our Common Future " Actually these instruments favour, especially for economic reasons, a policy permitting a sustainable utilization of natural resources, including wildlife and genetic diversity, instead of encouraging their absolute protection.

3 A definition of "conservation" in the sense adopted in the present context is given in Art. 2 of the Convention on Fishing and Conservation of the Living Resources of the High Seas (Geneva, 29 A p r i l 1958). A more recent definition of conservation is given in the 1980 World Conservation Strategy ( see infra § 4 of this section): it means "the management of human use of the bio-sphere so that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations" (section 1.4).

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Finally, it is worth noting that some typical conservation treaties have undergone a progressive transformation into protection treaties. This is the case, for instance, w i t h the International Convention for the Regulation of Whaling (Washington, 2 December 1946, hereinafter referred to as the I C R W ) . 4 The I C R W was concluded in order to regulate whaling and is now used to ban it, at least according to the decisions of the International Whaling Commission (IWC). Actually the I C R W turned out to be ineffective in preventing whale depletion. The risk of extinction run by some species of whales due to over-exploitation led in 1982 to the adoption by the I W C of a 10-year moratorium on commercial whaling. 5 It must be recalled however that the restrictive measures were adopted by the I W C thanks to the votes of non-whaling States which may be Parties to the ICRW. Whaling States can object to the I W C decisions and thus continue whaling legally. The way to understand the protection of species at the international level has progressed in stages. These stages correspond only roughly to precise temporal phases.6 States' concern about wildlife is not recent. Several, mostly bilateral, treaties exist on hunting which date back to the 18th and 19th century. 7 The main purpose of these treaties was to regulate the exploitation of certain species through the establishment of bare intergovernmental cooperation for the prevention and the punishment of offences concerning forestry, hunting and fishing. Apart from these marginal cases, the approach which marked the first attempts of States to deal w i t h wildlife protection was strictly utilitarian. This meant that: the species which in some respects are useful to man were protected; the inoffensive species were mostly ignored; the specimens belonging to harmful species were to be reduced in number. During a second phase the efforts of States concerning wildlife concentrated on the establishment of protected areas. W i l d animals and flora, whether useful, harmless or noxious, were confined to these zones where capturing, killing or collecting were prohibited or strictly regulated. A more comprehensive approach which takes into account the connections among the different components of the ecosystem had not yet been envisaged in this phase. 4 The text is reproduced in: Wolfgang E. Burhenne (ed.), International Environmental Law — Multilateral Treaties, Binders I - V I , Berlin, 946:89. The I C R W is only the most famous of a series of treaties on whaling. O n this subject see Patricia Birnie, International Regulation of Whaling, New York / London / Rome 1985. 5

During its last annual meeting in 1992 the I W C decided to maintain in force the ban on commercial whaling for another year. 6 It must be said moreover that the interpretation here proposed is only one of the many possible ways to interpret the evolution in wildlife protection. 7 A list of these treaties is published in: Bernd Rüster / Bruno Simma (eds.), International Protection of the Environment, vol. IV, Dobbs Ferry 1975, 1542.

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O n the contrary the comprehensive approach marked the third stage of the evolution. During this phase the concern for wildlife preservation was reflected in two kinds of treaties. O n the one hand, some treaties were concluded to protect certain natural areas either per se (because they constituted endangered ecosystems), or since they represented the habitats of endangered species. O n the other hand, the treaties which concerned more directly the protection of w i l d species of fauna and flora faced the problem in more complete terms. They tried to deal w i t h all the different causes which may constitute a threat for the survival of the species. It was during this phase that protection and development started to be no longer regarded as contrasting goals. Moreover the anthropocentric approach to protection was progressively abandoned: man began to consider himself only as a "part" of the Earth's environment and not as its master. Finally, during the last phase, the regulation of the sustainable use of natural resources, including flora and fauna, has appeared in the treaties on wildlife alongside the provisions which protect species more stringently. These treaties have been motivated by the necessity of maintaining the fundamental ecological balances of the Earth. Such balances are at present threatened by excessive production and over-consumption. It is obvious that man too profits from the protection measures so agreed upon, but the scope of the treaties is no more strictly utilitarian. O f course, since this evolution has been and still is a dynamic process, these phases are not, in practice, so clearly distinct. While outstanding examples of protection treaties easily fit into such categories, as we shall see, other treaties cannot be classed in any of them. 2. The Strictly

Utilitarian

Approach

The first multilateral convention on wildlife protection was the Convention Designed to Ensure the Conservation of Various Species of W i l d Animals in Africa, Which Are Useful to Man or Inoffensive (London, 19 May 1900, hereinafter referred to as the 1900 Convention). 8 Except Congo, all the Parties of the 1900 Convention were European Powers. 9 The Convention was to apply to their African colonial territories. The title, though long, does not provide a complete outline of the 1900 Convention. O f course, the latter contained provisions which protected faunal species. It included, for instance, the prohibition on killing animals which need protection 8 9

The French text of the 1900 Convention is reproduced ibid., 1607.

The Parties to the Convention were Great Britain, Germany, Spain, Congo, France, Italy and Portugal. It must be said that in the case of Congo its independence was much more formal than effective.

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"soit ä cause de leur utilite, soit ä cause de leur rarete et du danger de leur disparition" (Art. II. 1). O n the contrary some provisions can by no means be considered as protective or conservative measures. This is the case of Art. 11.13 which provided for the sufficient reduction of the number of animals belonging to the species mentioned in Annex V to the 1900 Convention. 1 0 Among others, Annex V listed lions, leopards, otters, and crocodiles. It was clear that these fierce animals could be dangerous for man and his activities. From this point of view, the 1900 Convention can be considered as an attempt to "remake" nature, or at least to adjust it, in order to meet human needs. Besides disregarding many aspects of wildlife protection, like habitat preservation, 11 the Convention plainly contrasts w i t h the current view of the protection of nature. The same utilitarian concept of nature preservation marks another treaty of the same period: the Convention for the Protection of Birds Useful to Agriculture (Bruxelles, 19 March 1902, hereinafter referred to as the 1902 Convention). 12 According to Art. 1 of the 1902 Convention, birds useful to agriculture were absolutely protected. 13 By contrast Art. 9 allowed the Parties to kill the birds which were noxious to hunting, fishing and local agriculture, that is to human activities. Annex 2 to the 1902 Convention listed the species to be considered noxious. 14 The list could be integrated unilaterally by the Parties. The 1900 and 1902 Conventions clearly show what the human attitude towards wildlife was at the beginning of the 20th century. Man decided which species were "good" according to their qualities as regards meeting human needs. Man decided which species were "bad" according to whether they were an obstacle to the achievement of human goals. Man decided on these grounds which species deserved to be protected or to be limited in their spreading. It is evident that this attitude was likely to cause the alteration of the ecological balance. Fortunately things were destined to change in the field of protection. For many years the usefulness of species was to continue to be a good incentive for the 10 Art. 11.13 may turn out to be very detrimental to species as the meaning of the adjective "sufficient" referred to "reduction" is not further specified or limited in the Convention. Moreover, Art. 11.15 provides for the destruction of the eggs of crocodile, poisonous snakes and pythons. Finally, Art. I V provides for the adoption of measures facilitating the domestication of zebras, elephants, ostriches etc. The domestication entails the removal of specimens from the wild and can bring about their depletion. 11

A modest reference to the conservation of habitats is contained in Art. II.5. The French and German texts of the 1902 Convention are reproduced in: Burhenne (note 4), 902:22. 12

13

This absolute protection however mainly consists in the prohibition on killing the birds and destroying their nests. The 1902 Convention contains no provisions concerning habitat preservation. 14

Many of these species (e. g. some eagles and predatory birds) are now on the brink of extinction.

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protection of species. The noxiousness of species, however, seemed no longer to be a good reason for destroying them. Although their approach plainly contrasts w i t h the current view of environmental protection, the 1900 and 1902 Conventions are important insofar as they constitute the first multilateral attempts to regulate wildlife protection at the international level. It is finally worth recalling that some marginal examples of treaties concerning noxious species do exist nowadays. We refer, in particular, to the treaties concerning locusts. 15 It could be said that these treaties regulate the competing use of the same area by man (for agriculture) and by locusts (for food). However these treaties, at least the most recent ones, do not try to alter nature or to fit it to human needs. O n the contrary they intend only to "control" some outbreaks of insects. 16 These outbreaks in themselves may be considered an upset in the balance of nature or a state of emergency. 17 3. The "Separative"

Approach

As said above, man can limit or avoid the damage caused by the species he considers noxious by limiting the number of the specimens belonging to them. A less destructive method is to isolate those specimens, along w i t h specimens belonging to other species, in special protected areas. O f course the protected areas do not serve only this purpose. They are often established w i t h the broader scope of ensuring the survival of wild species which are threatened by various causes. It seems however that the creation of protected zones entails the consequence of separating the areas where protection measures are to be enforced and human activities prohibited 1 8 from those areas where 15 We can mention the International Convention for the Permanent Control of Outbreak Areas of Red Locust (London, 22 February 1949) in: Burhenne (note 4), 949:15; the Convention on the African Migratory Locust (Kano, 25 May 1962, amended on 25 July 1968) in: Burhenne (note 4), 962:39; the Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Eastern Region of its Distribution Area in South-West Asia (Rome, 3 December 1964) in: Burhenne (note 4), 963:91; Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Near East (Rome, 2 July 1965) in: Burhenne (note 4), 965:49; Agreement for the Establishment of a Commission for Controlling the Desert Locust in North-West Africa (Rome, November 1970), in: Burhenne (note 4), 970:85. 16 It is worth noting that the Agreements of 1964, 1965 and 1970 quoted in the preceding note mainly provide for the "control" (and not for the "destruction") of locusts. It must be recalled however that in the French version the word "lutte" corresponds to the English word "control". 17

It is not clear whether these outbreaks are caused or influenced by human actions or only by natural factors, e. g. by particular weather conditions. 18 Sometimes every human activity is forbidden inside the protected zones.

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human activities may develop irrespective of environmental considerations. From this point of view it is evident that protective measures are considered an obstacle to socio-economic development, and not a means to achieve it. This kind of approach seems to characterize the Convention relative to the Preservation of Fauna and Flora in their Natural State (London, 8 November 1933, hereinafter referred to as the 1933 Convention). 19 Also in this case the majority of the Parties to the Convention were European States.20 The 1933 Convention was to be applied mainly in their African territories. 21 It can be inferred from the Preamble of the 1933 Convention that the latter had a comprehensive approach, at least as regards protection methods. Moreover it appears that in the 1933 Convention the direct protection of species and the preservation of their habitats were placed on the same level. Indeed, the 1933 Convention focused on the regulation of the measures to be adopted in protected zones. I n these zones the Parties were mainly requested not to perform certain activities (e. g. killing, destroying, capturing, but also entering, traversing or camping in). I n other words the 1933 Convention mainly contained "nonfacere obligations" and not "facere obligations", except for that of creating protected zones. It must be said however that Art. 8 granted protection to the species listed in the Annex also outside the protected zones. Art. 9, moreover, regulated the trade of the so-called "trophies" deriving from the species listed in the Annex. The creation of protected zones was one of the purposes of another convention: the Convention on Nature Protection and W i l d Life Preservation in the Western Hemisphere (Washington, 10 December 1940, hereinafter referred to as the 1940 Convention). 22 Some provisions also concern the protection of species outside the protected zones. Special attention is devoted to migratory species, which by definition cannot be confined to enclosed spaces (Art. VII). Like the 1933 Convention, the 1940 Convention does not provide for an approach which takes into account the relationships among the different components of the ecosystem. The separation between the protected zones (or at least some of them) and the "remaining" areas is clear. 23

19

The text of the 1933 Convention is reproduced in: Burhenne (note 4), 933:83. The 1933 Convention was originally concluded by: the Union of South Africa, Belgium, the United Kingdom, Egypt, Spain, France, Italy, Portugal and the Anglo-Egyptian Sudan. India acceded in 1939, the United Republic of Tanzania in 1962. France and Portugal signed the convention but they did not ratify it. Spain ratified it but the Convention never entered into force for this State. 20

21 22

See Arts. 1.3 and 13 (note 19).

The text of the Convention is reproduced in: Burhenne (note 4), 940:76. 23 See e. g. ibid., Art. I V according to which the Parties, as far as practicable, "agree to maintain the strict wilderness reserves inviolate".

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4. The Comprehensive Approach The comprehensive approach which has characterized the treaties concluded after the World War I I is due to different factors. Among these factors there has unfortunately been the progressive worsening of environmental conditions, including the status of wildlife. Besides this "negative" factor, a positive one is worth mentioning, namely scientific progress. Scientific knowledge has emphasized the relationship between the various elements of the environment and the impossibility of managing such elements separately. From this point of view, human intervention to modify nature for his advantage seems even more inappropriate. It is evident that this selfish "improvement" of nature resulted in an imbalance of the ecosystem. This new scientific awareness entailed the abandonment of some ideas that had characterized the preceding phases. For instance, the strictly utilitarian scope has been progressively, if not substituted by, at least integrated with the idea that all species deserve protection. This is manifest in the Convention on the Protection of Birds (Paris, 18 October 1950, hereinafter referred to as the 1950 Convention). 24 The 1950 Convention was intended to amend the 1902 Convention on the assumption that "tous les oiseaux doivent, en principe, etre proteges". The killing of birds which prove to be noxious is still possible (Art. 6) but as an exception under specific conditions. 25 Attention is also paid to the problem of habitat preservation and to factors other than human exploitation which may cause the destruction of birds. 26 Another factor which has influenced the change of attitude in protecting wildlife is the necessity to improve living conditions in developing countries. I n the Sixties the decolonization process led to the independence of many States. The treaties which had been concluded by the European Powers w i t h reference to their colonial territories were progressively substituted by other treaties concluded by the new independent States. This happened also for the treaties concerning wildlife. The colonial territories which in the past may have been considered as "exotic" places for recreational purposes or as "reservoirs" of "unusual" species are now regarded in a different way. From this point of view natural resources, together w i t h human ones, are to be "harnessed for the total advancement of peoples in spheres of human endeavour". 27 As we shall see, this approach was further developed and expanded in the Eighties. 24

The French authentic version of the 1950 Convention, together with English and German translations, is reproduced in: Burhenne (note 4), 950:77. 25 Even in these exceptional cases, " i l ne peut etre pris . . . aucune mesure susceptible de provoquer la destruction totale des especes indigenes ou migratrices w ibid., Art. 6.4. 26 See ibid., Arts. 10 and 11 of the 1950 Convention. 27 See the Preamble of the Charter of the Organization of African Unity, Addis Ababa, 25 May 1963, reprinted in: I L M , vol. 2, 1963, 766.

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The above mentioned approach is quite manifest in the African Convention on the Conservation of Nature and Natural Resources (Algiers, 15 September 1968, hereinafter referred to as the African Convention). 28 This Convention is particularly innovative for two reasons. Firstly, the African Convention faces in extensive terms the problem of the wise management of natural resources. I n other words it tries to conciliate the economic exploitation of nature w i t h its conservation. The protection of species is only one of the purposes of the African Convention, which intends "to ensure conservation, utilization and development" of natural resources (Art. II). The latter are defined as "renewable resources, that is soil, water, flora and fauna" (Art. I I I . l ) . From this wide definition it could be inferred that vegetable and animal species, whether prosperous or endangered, are considered as "resources". Usually the concept of resource is an economic one that implies utilization. However, after the general definition of natural resources (Art. I I I . l ) , the African Convention makes a distinction among "flora" (Art. VI), "faunal resources" (Art. V I I ) , and "protected species" (Art. V I I I ) . While the best utilization and development of flora and faunal resources, together w i t h their rational management and w i t h land-use planning, are encouraged, a special restricted regime is reserved to protected species. The utilization of these species is permitted only under special national authorizations; in other words, it seems that the protected species are not exploitable at least until they recover and may be considered as "resources" in the economic sense.29 The second reason which makes the African Convention an innovative instrument is the comprehensive approach to protection issues. The African Convention pays more attention to the connections existing among the different components of nature and to the necessity of a joint management of these components. This is confirmed by the provisions of the Convention which deal w i t h soil and water (non-living components) as well as w i t h flora and fauna (living components). This approach entails a double advantage as regards the effectiveness of protection. O n the one hand it is clear that protection measures which do not take into account all the factors which threaten a given species are doomed to fail. O n the other hand comprehensive measures may bring about an effect of synergism which permits a reduction in protection expenses.

28 The text is reproduced in: Burhenne (note 4), 968:68. According to Art. XXI.3 of the African Convention "the London Convention of 1933 or any other Convention on the conservation of flora and fauna in their natural state shall cease to have effect in States in which this Convention has come into force". 29

Endangered species of flora and fauna should be excluded from the definition of "natural resources" given in Art. I I I . l also on a different ground. It could be maintained that these species are not renewable, in the sense that, due to their dramatic depletion, they have lost their capability to renew at least without special protection measures provided by man.

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A more comprehensive approach has characterized also the treaties which essentially deal w i t h protected zones. A very important treaty of this kind is the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, 2 February 1971, hereinafter referred to as the Ramsar Convention). 3 0 The application of the Ramsar Convention is not limited to a specific region but is universal. The Ramsar Convention establishes a List of Wetlands of International Importance which includes wetlands situated in the territories of the Parties. It must be noted, however, that not only wetlands included in the Lists are granted protection. Indeed the Ramsar Convention encourages the conservation and management of wetlands independently from their inclusion in the List. The utilization of wetlands, including their flora and fauna, for economic purposes is not excluded by the Ramsar Convention, but the use has to be wise. 31 I n this sense, these particular areas do not appear as "isolated zones" to be maintained "inviolate". O n the contrary they constitute a precious resource to be properly managed. Indeed it is worth noting that the importance of wetlands is revalued by the Ramsar Convention. This contrasts w i t h the secular way of considering wetlands as zones to be reclaimed in order to eradicate diseases (e. g. malaria) traditionally and erroneously regarded as linked w i t h marshes, and provide new lands for cultivation. Under the Ramsar Convention wetlands are considered as a source of wealth and not as unhealthy places. I n the Ramsar Convention the link between the protection of species and the preservation of habitat is stressed. The international significance of wetlands has to be evaluated in terms of "ecology, botany, zoology, limnology or hydrology". " I n the first instance" the Parties should include in the List "wetlands of international importance to waterfowl at any season" (Art. 2.2). It could seem that only species of waterfowl are protected by the Ramsar Convention; however all the species of flora and fauna constituting the ecosystem of a given wetland benefit from the regime provided for in the Convention. Another important treaty, elaborated in the framework of the United Nations Educational Scientific and Cultural Organization (UNESCO), partially deals w i t h habitat preservation. We refer to the Convention for the Protection of the World Cultural and Natural Heritage (Paris, 23 November 1972, hereinafter referred to as the U N E S C O Convention). 32 According to Art. 2 "geological and physiographical formations and precisely delineated areas which constitute the habitat 30

The text is reproduced in: Burhenne (note 4), 971:09. O n "wise use" see Doc. C O N F / 4 prepared by the International Union for Conservation of Nature and Natural Resources ( I U C N ) for the 1980 Cagliari Conference on the Conservation of Wetlands and Waterfowl, 17. 32 The text is reproduced in: Burhenne (note 4), 972:86. Obviously, in the present context only the part of the Convention which deals w i t h the "natural" (and not "cultural") heritage has been considered. 31

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of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation" shall be considered as "natural heritage" 33 and, as such, protected by the Convention. 3 4 The U N E S C O Convention does not specify the means to be employed by the Parties for the protection of the world heritage sites and species occasionally present there. 35 The inadequacy of the U N E S C O Convention for the protection of species seems to be implicitly recognized by the 1992 Operational Guidelines for the Implementation of the World Heritage Convention. 36 Notwithstanding its limited effectiveness as regards species protection, some aspects of the U N E S C O Convention have great importance. Its most interesting feature is its institutional organization. The Convention sets up: a) the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (briefly: the World Heritage Committee); and b) the Fund for the Protection of the World Cultural and Natural Heritage of Outstanding Universal Value (briefly: the Fund). T w o Lists of sites to be protected are created by the Convention as well: a) the World Heritage List; and b) the List of World Heritage in Danger. The World Heritage Committee is responsible for running both the Lists. The Committee decides, w i t h the consent of the sovereign State concerned, which properties are to be included in the Lists (Art. 11). It also decides on the requests for international assistance presented by the Parties and on the use of the resources 33 Natural heritage is defined as "world" heritage by the U N E S C O Convention. However the properties constituting this heritage remain strictly under the jurisdiction of each State on whose territory they are situated. This means that the concept of "world heritage" is something different from the concept of "common heritage of mankind", which is regulated by different principles. O n the common heritage of mankind see Alexandre-Charles Kiss , La notion de patrimoine commun de Phumanite, Recueil des Cours de l'Academie de Droit International, vol. 175, 1982, 99 et seq.; see also infra § 3 of section II. 34 According to the Doc. W H C / 2 Revised (27 March 1992), Operational Guidelines for the Implementation of the World Heritage Convention , para. 36.a.iv, a site can be considered as natural heritage to be included in the World Heritage List if it contains " the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science or conservation still survive". 35

Art. 5 mentions, in very general terms, a series of actions that Parties "shall endeavour" to carry out in order to ensure the "protection, conservation and presentation" of the natural heritage situated in their territories (see note 32). 36

See para. 36.b.v of the Operational Guidelines (note 34) according to which " I n the case of migratory species, seasonable sites necessary for their survival, wherever they are located, should be adequately protected. Agreements made in this connection, either through adherence to international conventions or in the form of other multilateral or bilateral arrangements would provide this assurance". Among the factors which are likely to threaten the species the Operational Guidelines (note 34) consider also activities which are not strictly related to the habitats. See e. g. para. 61.i.a of Operational Guidelines (note 34) which refers to "poaching".

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of the Fund (Art. 13). The latter is mainly financed by the Parties. The Fund turns out to be extremely useful in improving the enforcement of the U N E S C O Convention. Moreover it seems to be a very advanced instrument of international cooperation, especially when compared w i t h the solutions reached, twenty years later, in the Biodiversity Convention. The great success of the U N E S C O Convention in terms of participation is probably due to the possibility for the Parties, developing countries in particular, to obtain both technical (see e. g. Art. 22) and financial support for their conservation effort. 37 It must be said finally that the creation of international lists of sites to be protected does not require States to resign any of their sovereign rights in the zones included in such lists. This is clearly stated both in the Ramsar Convention and in the U N E S C O Convention. 3 8 Both the Ramsar Convention and the U N E S C O Convention were concluded shortly before the United Nations Conference on Human Environment ( U N C H E ) held in Stockholm from June 5 to 16, 1972. 39 As known, the U N C H E adopted a Declaration on the Human Environment containing 26 Principles and an Action Plan containing 109 Recommendations. 40 As regards the protection of wildlife, Principle 2 of the U N C H E Declaration states that "The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate". Principle 4 of the U N C H E Declaration also deals w i t h wildlife. It states that "Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development". States are not mentioned in these Principles. This is particularly significant since the reference to States as the addressees of Principle 2 was contained in a previous draft. 41 Thus it is possible to infer that the U N C H E Declaration has no

37

O n different forms of assistance available under the World Heritage Fund, see Operational Guideline (note 34) at 20 et seq. 38 See Art. 2.3 of the Ramsar Convention (note 30), and Art. 6.1 of the U N E S C O Convention (note 32). 39

Actually the U N E S C O Convention was elaborated before the U N C H E but formally adopted after the U N C H E . 40 The text on the U N C H E Declaration is reproduced in: I L M , vol. 11, 1972, 1416 et seq. O n the U N C H E see Louis B. Sohn, The Stockholm Declaration on the Human Environment, Harvard International Law Journal (HILJ), vol. 14, 1973, 423 et seq.; Alexandre Kiss/ Jean-Didier Sicault , La Conference des Nations Unies sur PEnvironnement, Annuaire Fransais de Droit International, vol. X V I I I , 1972, 603 et seq. 41

Sohn (note 40), 456-457.

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juridical consequence in terms of State obligations to protect wildlife both because of its character of soft law and because of the extremely cautious wording of the above-mentioned Principles. Obviously also the Recommendations of the Action Plan, many of which regard more or less directly wildlife, 4 2 do not have binding force. Nevertheless the U N C H E Declaration and the Action Plan constitute an important starting point for the conclusion of new treaties. The great number of treaties effectively concluded by States in the Seventies for the direct protection f'of wildlife shows that they have complied w i t h the exhortation contained in Recommendation 32 of the Action Plan. The Convention on the Conservation of Migratory Species of W i l d Animals (Bonn, 23 June 1979, hereinafter referred to as the Bonn Convention) 4 3 is in fact a consequence of this Recommendation, as expressly said in its Preamble. The Parties to the Bonn Convention recognize that w i l d animals "are an irreplaceable part of the earth's natural system" which have an ever-growing value "from environmental, ecological, genetic, scientific, aesthetic, recreational, cultural, educational, social and economic points of view" (Preamble). Moreover, it is worth noting that the Preamble of the Bonn Convention recalls the idea — already embodied in Principle 2 of the U N C H E Declaration — that man (and not the States) has an obligation to manage and conserve natural resources for the benefit of future generations. The Bonn Convention provides for two different kinds of protection. The species included in Appendix I (Endangered Migratory Species) are directly protected by the Bonn Convention. O n the contrary the Bonn Convention constitutes only a framework convention for further agreements to be concluded for the protection of species included in Appendix I I . 4 4 The Bonn Convention only deals w i t h the protection of migratory species.45 Due to their "mobile nature", the need for international cooperation in protecting migratory species is particularly evident. This characteristic of migratory species entails an important consequence: the animals'mobility becomes a means of extending the protection of habitats. This protection is no longer limited only to

42

We can mention Recommendations 29, 30, 31, 32, 33, and 99. The text of the Bonn Convention is reproduced in: Burhenne (note 4), 979:55. 44 Appendix I I lists "migratory species which have an unfavourable conservation status and which require international agreements for their conservation and management, as well as those which have a conservation status which would significantly benefit from the international cooperation that could be achieved by an international agreement" ibid Art. IV. 1. 43

45 A wide definition of "migratory species" is given in Art. I.l.a of the Bonn Convention (note 43). Sometimes it may be difficult to distinguish migratory species from non-migratory species (as regards their protection). See e. g. the Preamble of the Agreement on the Conservation of Bats in Europe (see infra note 49) which extends the protection to non-migratory bats on the assumption that they share their roots with the migratory ones.

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particular zones. According to Art. III.4 "Parties that are Range States46 of a migratory species listed in Appendix I shall endeavour . . . to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction". 4 7 Particularly interesting is the definition of "Range State". This definition identifies the addressees of the obligations to protect a given migratory species. Thus the application of the Bonn Convention is not restricted from a spatial point of view. Indeed the protection measures follow the animals in their migrations and regulate the activities which may damage them in areas both under and beyond national jurisdiction. As regards the protection of the species of Appendix I I , it must be said that the Bonn Convention does not seem to be an effective instrument. States do not appear to be very eager to conclude the Agreements required by Alrt. I V of the Bonn Convention. U p to now, only three Agreements have been concluded, which are: the Agreement on the Conservation of Seals in the Wadden Sea (Bonn, 16 October 1990); 48 the Agreement on the Conservation of Bats in Europe (London, 25 November 1991); 49 and the Agreement on the Conservation of Small Cetaceans of the Baltic and N o r t h Sea (New York, 17 March 1992). 50 Further Agreements are at the moment under discussion. 51 Almost coeval to the Bonn Convention is the Convention on the Conservation of European Wildlife and Natural Habitats (Berne, 19 September 1979, hereinafter referred to as the Berne Convention). 52 The Berne Convention was worked out within the framework of the Council of Europe. 53 Here again species protection and habitat preservation are strictly connected. 54 A provision of the Preamble 46 According to Art. 1.1.h, a , Range State' in relation to a particular migratory species means any State . . . that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species" (note 43). 47

The obligation to restore habitats is a typical example of facere obligation. The text of the Agreement is reproduced in: Burhenne (note 4), 990:77. 49 The text of the Agreement is reproduced in: Yearbook of International Environmental Law (YIEL), vol. 2, 1991 (on disk: Doc. 4). 50 The text of the Agreement is reproduced in: Burhenne (note 4), 992:21. 51 These Agreements w i l l concern white storks in Europe and Africa; waterfowl in the Western Paleartic region; Houbara bustard in the Gulf; waterfowl in Asia; small cetaceans in the Black and Mediterranean Seas. 52 The text of the Convention is reproduced in: Burhenne (note 4), 979:70. 53 As the Bonn Convention, the Preamble of the Berne Convention mentions the U N C H E . 54 I n the Preamble of the Berne Convention it is said that the Member States of the Council of Europe are "aware that the conservation of natural habitats is a vital component of the protection and conservation of wild flora and fauna". Other conventions of this period are marked by a similar comprehensive approach; see e. g. the Convention on Conservation of Nature in the South Pacific (Apia, 12 June 1976) in: Burhenne (note 4), 976:45. This 48

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of the Berne Convention really worth noting is that wild flora and fauna are recognized to constitute "a natural heritage of aesthetic, scientific, cultural, recreational, economic and intrinsic value that needs to be preserved and handed on to future generations". 55 This seems the completion of the evolution of species protection. Species deserve to be protected not because they are useful to man (from whatever point of view), but because of their intrinsic value. This value, precisely because it is intrinsic, cannot be assessed on the basis of utilitarian (lato sensu) criteria. To recognize the intrinsic value of species means to admit that they all must be preserved, whether beautiful or insignificant-looking, whether noxious, harmless or useful, whether precious or negligible. It might be maintained that it is not possible for States to retrace their steps and return to utilitarian assessments. Unfortunately this is not true, as we shall see. As a matter of fact the evolving process of protection, which seemed to be irreversible, has had to face contrasting economic needs. These needs have heavily influenced views on protection. Other features of the Berne Convention are worth mentioning. For instance the Convention, though regional, aims at a wider spatial application. States which are neither members of the Council of Europe nor European may become Parties to the Convention under certain conditions (Arts. 19 and 20). 56 Moreover the Berne Convention can be considered as an instrument of prevention. This is particularly important because usually the treaties on this matter are concluded by States to protect wildlife which is already endangered. According to Art. 1 the Berne Convention intends "to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the cooperation of several States, and to promote such co-operation". Consequently the Berne Convention may apply to all species if these may benefit by international co-operation. However, Art. 1.2 states that "Particular emphasis is given to endangered and vulnerable species, including endangered and vulnerable migratory species". Another treaty worth mentioning due to its approach to protection is the Convention for the Conservation of the Antarctic Marine Living Resources (Canberra, 20 May 1980, hereinafter referred to as the C C A M L R ) . 5 7 The C C A M L R , Convention particularly encourages the establishment of protected areas but it also provides for the protection of fauna and flora species outside such zones (Art. V). 55

Emphasis added.

56

Up to now (April 1993), among the non-Member States of the Council of Europe, only Senegal (as from 13 April 1987) and Burkina Faso (as from 14 June 1990) are Parties to the Berne Convention. According to Forster et al (note 2), 99, a more effective programme of cooperation between N o r t h and South, together with financial aid, would encourage a wider participation by developing countries. 57

The text is reproduced in: Burhenne (note 4), 980:39. The C C A M L R belongs to the group of "conservation treaties". 10 GYIL 36

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which was concluded in the framework of the Antarctic Treaty system, 58 is characterized by its ecosystem approach. The latter implies two important consequences. First, the application area of the C C A M L R is no longer limited to the application area of the 1959 Antarctic Treaty, that is to the area artificially defined as located south of 60° South latitude. The C C A M L R applies in fact to the resources "which form part of the Antarctic marine ecosystem" (Art. 1.1). Second, the ecosystem approach means that not only the exploitation of the resources must not deplete the harvested species, but also the adverse effects of exploitation on other species and on the ecosystem as a whole must be avoided (Art. II). Another kind of approach — a sectorial one — marks the Convention on International Trade in Endangered Species of W i l d Fauna and Flora (Washington, 3 March 1973, hereinafter referred to as the CITES). 5 9 The CITES deals specifically w i t h only one of the various causes threatening w i l d species. It regulates more completely and effectively international trade, a phenomenon which had been already tackled by previous treaties in a fragmentary way. 6 0 The CITES does not protect the species directly, nor does it contain provisions on habitat preservation. Indirectly the species turn out to be protected because the strict regulation of their international trade makes the collecting, capturing or killing of specimens less profitable. The need for international co-operation in the field of trade is particularly manifest. A wide participation in the CITES is important as well, even though the CITES also regulates the trade occurring between Parties and non-Parties. The CITES provides for a system of exchange of export-import permits. These documents have to meet precise conditions and certify that the trade of specimens belonging to a given species is not detrimental to its survival. The costs of the machinery set up by the CITES are high. For example an effective control in international traffic requires the presence of customs officers able to recognize the species protected by the CITES from the other species. Some developing 58

Besides the C C A M L R , the Antarctic Treaty system includes the Antarctic Treaty (Washington, 1 December 1959), the Convention for the Conservation of Antarctic Seals (London, 1 June 1972), the Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 2 June 1988), the Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991). The system also includes the recommendations adopted during the meetings of the Antarctic Treaty Consultative Parties. Among these recommendations the Agreed Measures for the Conservation of Antarctic Fauna and Flora (Brussels, June 1964), which specifically deal w i t h wildlife, are worth mentioning. O n the problems concerning the regime of Antarctica see, in general and for further bibliographical references, Rüdiger Wolfrum (ed.), Antarctic Challenge, Berlin 1984; Rüdiger Wolfrum (ed.), Antarctic Challenge II, Berlin 1986; Rüdiger Wolfrum (ed.), Antarctic Challenge I I I , Berlin 1988; Francesco Francioni/ Tullio Scovazzi (eds.), International Law for Antarctica, Milan 1987; Arthur Watts , International Law and the Antarctic Treaty System, Cambridge 1992. 59

The text is reproduced in: Burhenne (note 4), 973:18. See e. g. Art. 9 of the 1933 Convention (note 19); Art. I X of the 1940 Convention (note 22); Art. I X of the African Convention (note 28). 60

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countries, which very often are the richest States in species, cannot afford the expenses of adequate training of their personnel. 61 Actually implementation problems are not rare as regards the protection treaties. Some of these problems have been resolved quite satisfactorily from the "institutional w point of view. For instance some conventions provide for the creation of permanent organs (or the use of pre-existent bodies) to carry out in a continuous way all the administrative activities necessary to ensure the correct and effective implementation of the conventions. 62 Provisions regarding periodical meetings of the Parties are also quite common in the protection treaties. 63 The above-mentioned examples of protection treaties all seem to be moving in the same direction: that of an ever-growing effectiveness of protection. N o t w i t h standing this undeniable improvement in wildlife protection, some problems of implementation still exist. From a legal point of view States seem to have the best intentions to protect wildlife when looking at the treaties they have concluded. I n practice these good intentions clash w i t h difficulties of two kinds: scientific and economic. From the scientific point of view it must be taken into account that it is not possible to save all the species which are on the brink of extinction. From the economic point of view it is necessary to remember that the greatest wealth in w i l d species is situated in developing countries. This has two logical consequences. O n one side, these States need to use their natural resources for their development. O n the other side, they do not possess the economic resources necessary to protect the endangered species. Since the survival of species is in the interests of the whole international community, the developing countries cannot be left alone in their protection efforts. The World Conservation Strategy — launched in 1980 by the I U C N , the United Nations Environmental Programme (UNEP), and the World Wildlife Fund (WWF) — faces both the scientific and the economic aspects of conservation and tries to solve the related problems. The objectives of the World Conservation Strategy (hereinafter referred to as the WCS) are basically three: a) to maintain essential ecological processes and life support systems; b) to preserve genetic diversity; c) to ensure the sustainable utilization of species and ecosystems. The 61 Training seminars have been organized by the Secretariat of the CITES. Exporting developing countries are indirectly helped in implementing the CITES by the necessity of an import permit issued by the importing (often developed) States. 62 See e. g. Art. 8 of the Ramsar Convention (note 30); Art. X I I of the CITES (note 59); Art. I X of the Bonn Convention (note 43); Art. 13 of the Berne Convention (note 52). When similar bodies do not exist the possibility of improving the implementation of the treaties, for instance by the exchange of information and scientific data regarding the protection, is completely left to the good w i l l of the Parties. O n the proposal to improve the 1940 Convention by the establishment of permanent organs see Forster et al (note 2), 62. 63 See e. g. Art. 6.1 of the Ramsar Convention (note 30); Art. V I I of the Bonn Convention (note 43); Art. X I of the CITES (note 59).

1*

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WCS also identifies the main obstacles to achieving conservation, which are: a) the belief that living resource conservation is a limited sector; b) the consequent failure to integrate conservation w i t h development; c) a development process that is often inflexible and needlessly destructive; d) the lack of a capacity to conserve; e) the lack of support for conservation; f) the failure to deliver conservation-based development where it is most needed. 64 The WCS indicates the priority requirements for achieving the objectives of conservation. 65 Among these priority requirements there are the prevention of species extinction and the maintenance of habitats. It is undeniable that the WCS re-introduces the utilitarian approach of protection which had characterized the first international instruments on wildlife. H o w ever, some important differences distinguish the WCS approach from the older one. While the oldest treaties tried above all to obtain short-term benefits from the use of the resources, the WCS contains long-term considerations. These are summarized in the concept of sustainable use of the resources. Sustainability should avoid the risks deriving from a more restricted utilitarian vision. It is not only a problem of using the resources in a way which does not cause their depletion. It is also necessary to consider all the possible consequences that the exploitation of a given species may have on the dependent species and on the entire ecosystem. Moreover the concept of sustainability is implicit in the "emotional" idea that natural resources are to be handed down to future generations. The latter must be enabled to enjoy natural resources in the future just as the present generations can do now. As we shall see below, the WCS has influenced the content of the treaties concluded by States in the Eighties and beyond. By contrast an idealistic and unrealistic approach is still present in the World Charter of Nature (hereinafter referred to as the W C N ) , adopted by the United Nations General Assembly by Resolution 37/7 on 9 November 1982. 66 The W C N does not contradict the principles embodied in the WCS. The concept of sustainable use is expressed in principle lO.a, according to which "Living resources shall not be utilized in excess of their natural capacity for regeneration". The utilitarian approach of the WCS seems however to have been set aside in the W C N through the recognition that "every form of life is unique, warranting respect regardless of its worth to man". 64 See I U C N — U N E P — W W F , World Conservation Strategy, Gland, 1980, (Executive Summary) V I - V I I . 65 The WSC mentions three criteria for deciding whether a requirement is a priority: significance, urgency, and irreversibility (Section 5). The last criterion has special relevance w i t h regard to species conservation because the extinction of a species is always an irreversible loss. 66 The text of the W C N is reproduced in: I L M , vol. 22, 1983, 456 et seq. O n the World Charter for Nature see The World Charter for Nature — Legislative History and Commentary, 2nd revised edition, Berlin 1986.

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5. The Sustainable Use The WCS is mainly a scientific and political instrument w i t h no legal binding force for States. Nevertheless it played an important role as regards the content of the subsequent treaties on wildlife protection. A n outstanding example of a treaty which embodies the principles of the WCS is the Agreement on the Conservation of Nature and Natural Resources (Kuala Lumpur, 9 July 1985). 67 This Agreement was worked out within the framework of the Association of South East Asian Nations (ASEAN). The purposes of the Agreement (hereinafter referred to as the A S E A N Agreement) are: the maintenance of "essential ecological processes and life-support systems"; the preservation of genetic diversity; and "the sustainable utilization of harvested natural resources . . . in accordance w i t h scientific principles and w i t h a view to attaining the goal of sustainable development" (Art. 1.1). 68 Chapter I I of the A S E A N Agreement is completely devoted to the conservation of species and ecosystems. Species are considered from different perspectives in Arts. 3, 4 and 5. Art. 3 in particular deals w i t h genetic diversity. The measures to be taken refer both to in-situ and to ex-situ conservation. These measures include the sustainable use of the resources. This is more specifically regulated in Art. 4 which regards the harvested species. Finally Art. 5 deals w i t h endangered and endemic species. I n the same Chapter I I of the A S E A N Agreement Art. 6 deals w i t h vegetation cover and forest resources as important elements of natural ecosystems. Similarly, Arts. 7, 8 and 9 deal w i t h other components of ecosystems, that are respectively soil, water and air. 6 9 As regards international co-operation, the Parties are requested to co-ordinate "their activities in the field of conservation of nature and management of natural resources", and assist "each other in fulfilling their obligations" under the Agreement. It must be recalled, however, that all the members of the A S E A N are developing countries. Consequently the mutual assistance mentioned in Art. 18 is something essentially different from the financial aid which could be provided for in conventions to which both developing and developed countries are called to become Parties.

67

The text is reproduced i n : Burhenne (note 4), 985:51. According to Art. 2 of the A S E A N Agreement, conservation and management of natural resources must be an integral part of development plans. The latter have to consider at the same level both ecological and socio-economic factors. 69 Chapter I I I concerns the conservation of ecological processes and faces the problems of environmental degradation (Art. 10) and pollution (Art. 11). Protected areas are dealt w i t h in Art. 13 of Chapter I V (Environmental Planning Measures). 68

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Particularly interesting is Art. 19 of the A S E A N Agreement concerning the shared resources. 70 Shared resources are not defined in the Agreement. However, as regards the species, it seems that the latter may be considered "shared" if they have a migratory character or because they inhabit shared habitats (Art. 19.3.b). The Parties to the A S E A N Agreement are requested to co-operate in the conservation and harmonious utilization of shared resources "taking into account the sovereignty, rights and interests of the Contracting Parties concerned in accordance w i t h generally accepted principles of international law". Art. 20.4 moreover requests Parties to "endeavour to refrain from actions which might directly or indirectly adversely affect wildlife habitats situated beyond the limits of national jurisdiction, especially habitats of species listed in Appendix I or habitats included in protected areas". It must be recalled however that as far as Arts. 19 and 20 provide for the prevention of adverse environmental effects in the territory of one Party from the utilization of shared resources by another Party, they add nothing to the well-known Principle 21 of the U N C H E Declaration. 71 This rule which is almost unanimously considered as customary international law is embodied in other conventions concluded even before the U N C H E . 7 2 The A S E A N Agreement is not yet in force. Consequently it is not possible to know whether its implementation w i l l be easy or not, and whether its institutional machinery w i l l work effectively. The purposes of the A S E A N Agreement are shared by the Protocol concerning Protected Areas and W i l d Fauna and Flora in the Eastern African Region (Nairobi, 21 June 1985, hereinafter referred to as the Nairobi Protocol). 73 Special attention 70 The concept of shared resources does not refer only to living resources but it includes, e. g.y the river basins shared by two or more States. O n this subject see Pierre-Marie Dupuy , Ressources naturelles partagees et ressources de Phumanite, Annuaire de PAAA, vols. 54/ 55/56, 1984/85/86, 201 et seq.; Asit K. Biswas, Shared Natural Resources: Future Conflicts or Peaceful Development, in: The Settlement of Disputes on the New Natural Resources, The Hague / Boston / London 1983, 197 et seq. See also Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States (1978) in: Harald Hohmann (ed.), Basic Documents of International Environmental Law, vol. I, London 1992, 58. The difficulty of defining "shared resources" emerges from the Report of the Intergovernmental Working Group of Experts on Natural Resources Shared by Two or More States on the Work of Its Fifth Session held at Nairobi from January 23, to February 7, 1978 (ibid., 62). 71 See UNCHE Declaration (note 40). According to Principle 21: "States have, in accordance w i t h the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction'*. 72

See e. g. Art. 6.3 of the U N E S C O Convention (note 32). The text is reproduced in: Burhenne (note 4), 985:47. The Nairobi Protocol has been concluded in the framework of the more general Convention for the Protection, Management 73

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is devoted t o the p r o t e c t i o n and preservation o f "rare or fragile ecosystems as w e l l as rare, depleted, threatened o r endangered species of w i l d fauna and flora and their habitats". A l s o i n this case, species are dealt w i t h f r o m different p o i n t s o f v i e w , 7 4 i n c l u d i n g , o f course, that o f their exploitation. I t m a y be recalled that the encouragement o f the sustainable use o f natural resources implies a greater concern f o r the e x p l o i t a t i o n methods. Some o f these methods i n fact m a y t u r n o u t t o be v e r y detrimental f o r the non-harvested species. Just t o q u o t e an example, the international c o m m u n i t y has several times expressed its concern about the use o f driftnets. T h i s fishing technique is considered as " i n d i s c r i m i n a t e , irresponsible and d e s t r u c t i v e " . 7 5 A c c o r d i n g l y numerous declarations have been adopted i n order t o restrict the use o f driftnets w h i c h m a y seriously damage the marine resources. 7 6 A treaty also exists o n this subject, namely the C o n v e n t i o n f o r the P r o h i b i t i o n o f F i s h i n g w i t h L o n g D r i f t n e t s i n the S o u t h Pacific ( W e l l i n g t o n , 23 N o v e m b e r 1989, hereinafter referred t o as the D r i f t n e t s and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi, 21 June 1985). The first part of Art. 2.1 of the Nairobi Protocol corresponds almost exactly to Art. 1.1 of the A S E A N Agreement. 74 I n particular, Art. 3 concerns the protection of wild flora. Art. 4 deals with species of w i l d fauna requiring special protection (endangered species). Art. 5 regards the harvestable species of wild fauna. Quite surprisingly Art. 5 does not refer to "abundant" species but to species that are already "depleted or threatened". The exploitation of these species is to be regulated " i n order to restore and maintain the populations at optimum levels". Finally, Art. 6 provides for additional measures for the protection of migratory species. The establishment of protected areas is provided for in Art. 10, while Art. 13 deals w i t h the protected areas which are contiguous to the frontier with a Party or a non-Party of the Protocol. 75

See the Tarawa Declaration of the South Pacific Forum of 11 July 1989, Law of the Sea Bulletin, vol. 14, 1989, 29. 76 See e. g. the Castries Declaration of the Authority of the Organization of Eastern Caribbean States of 24 November 1989 (ibid., 28); the Resolutions of the United Nations General Assembly 44/225 of 22 December 1989, ( I L M , vol. 29, 1990, 1556); 45/197 of 21 December 1990 (Law of the Sea Bulletin, vol. 17, 1991, 7); 46/215 of 20 December 1991 ( I L M , vol. 31, 1992, 241). O n the problem of driftnets see F A O Legislative Study No. 47, The Regulation of Driftnet Fishing on the High Seas: Legal Issues, Rome 1991. The Driftnets Convention is particularly important also because it embodies the so-called precautionary principle. The destructive effects of driftnets on marine resources in fact are not completely ascertained. Some States maintain that there is not enough scientific evidence that driftnets are detrimental to the marine environment and to the survival of endangered species in particular. Consequently, in their opinion there is no compelling reason to ban this fishing method. O n the other hand, some States, international organizations and conservationist movements would apply the precautionary principle to driftnets, although they admit that scientific data is as yet insufficient. I n this specific case the precautionary principle would mean that driftnets should be considered harmful to the environment until proved otherwise. O n the precautionary principle see Tullio Scovazzi, Sul principio precauzionale nel diritto internazionale dell'ambiente, Rivista di Diritto Internazionale (RDI), vol. L X X V , 1992, 699 et seq. (and the bibliography quoted in note 1); see also Ellen Hey, The Precautionary Approach, Marine Policy, vol. 15, 1991, 244 et seq. See also below note 186 and preceding text.

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Convention). 77 As a matter of fact even some protection treaties (stricto sensu)7* contain provisions concerning this problem. These provisions aim at limiting or prohibiting the use of methods which are not selective and which may have an adverse impact on non-targeted resources and on the environment in general. The link between environmental issues and development is particularly stressed in the Protocol concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Kingston, 18 January 1990, hereinafter referred to as the Kingston Protocol). 79 I n the Preamble the Parties recognize that "protection and maintenance of the environment of the Wider Caribbean Region are essential to sustainable development within the region". 8 0 According to Art. 4.2 protected areas shall be established, inter alia , " i n order to conserve, maintain and restore . . . (c) the productivity of ecosystems and natural resources that provide economic or social benefits and upon which the welfare of local inhabitants is dependent". It is particularly important that the protection of the environment (and of species and ecosystems in particular) is considered as a means to improve the living conditions of local populations. As said above, the protection (better, conservation) of species is now considered as an essential part of development. This idea, accepted by Governments and enshrined in international acts and treaties, must be accepted by all strata of population, especially those who must enforce, day by day, the protective measures adopted at the highest level. From this point of view it could appear even more important to stress the economic value of species rather than to insist on their intrinsic value. Especially in developing countries, people must be convinced that an exploitation which is not sustainable can give only short-term benefits. If the exploited resource depletes, there w i l l be no more benefits at all. For people living in very poor conditions this should be much more acceptable than the idea that a species must be protected because every organism has a right to life. Even for the species which are not currently exploited the accent could be placed on the possibility to economically exploit them in the future. 81 Obviously the success of this "educational" approach depends 77

The text is reproduced in: Burhenne (note 4), 989:87.

78

See e. g. Art. 7.2 of the African Convention (note 28), ("any method liable to cause a mass destruction of wild animals" is prohibited), and Art. 8 and Appendix I V of the Berne Convention (note 52), ("all indiscriminate means of capture and killing" are prohibited). 79 The text is reproduced in: Burhenne (note 4), 990:85. 80

It may be interesting to compare the Kingston Protocol (note 79) w i t h the Protocol Concerning Mediterranean Specially Protected Areas (Geneva, 3 April 1982), in: Burhenne (note 4), 982:26. The scope of the two Protocols is virtually the same and many of their provisions almost coincide. However in the most recent one the importance of protection as a crucial part of development is much more emphasized. 81

The common example is that of a species which is discovered to be useful for medical remedies.

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on the previous satisfaction of basic needs. It goes without saying that, for instance, it is not possible to ask people dying of hunger to conserve the resources for future generations. Once again the role of international cooperation in this field seems essential. The importance of involving and supporting local populations in conservation efforts is particularly stressed in another important instrument launched by I U C N , U N E P and W W F in 1991: Caring for the Earth (hereinafter referred to as CFE). 8 2 Also in this case, CFE has no legal binding force and its content is mainly political and scientific. CFE constitutes an extension and an advancement of the WCS. Action 4.14 of CFE explains how local communities should be encouraged to pursue sustainable management of the resources. 83 Governments are requested to act at a twofold level. O n the one hand, at the national level, they should adopt conservation strategies which imply the greatest participation of local populations and indigenous people in particular. 84 O n the other hand, at the international level, the Governments should co-operate in conserving nature and natural resources. Particular emphasis is given to technical and financial aid to developing countries from developed ones. 85 As regards wildlife more specifically, CFE suggests for its preservation both in-situ and ex-situ conservation. The former is preferable but the latter is necessary in certain cases.86 As for harvestable species, CFE stresses the necessity of regulating harvests in order to make them sustainable. I n particular "local needs should have priority over external commercial and recreational uses". Research and monitoring, which

82

See I U C N — U N E P — WWF, Caring for the Earth — A Strategy for Sustainable Living, Gland 1991. O n CFE see Nicholas A. Robinson , Caring For The Earth — A Legal Blueprint For Sustainable Development, in Environmental Policy and Law (EPL), vol. 22, 1992, 22 et seq. 83 Incentives for conservation can include "shares of entrance fees to a protected area, the proceeds of fines for illegal use of wild resources, and compensation for wildlife damage. Indirect incentives include exemptions from taxes, food security, and assistance for community development. Social incentives include measures to maintain strong communal organizations for resource management", see CFE (note 82), Action 4.14. 84 See e. g. Box 11 in Chapter 7 of CFE ibid. According to Action 4.10, the actions to be undertaken in order to improve conservation of wild plants and animals include inter alia "improvement of management techniques to eliminate the illegal and unsustainable taking of animals and plants, especially from protected areas — such anti-poaching schemes always involving local people and providing them with an incentive for maintaining their wild resources (emphasis added). 85

See Chapter 9 of CFE ibid. I n particular ex-situ conservation is necessary when "habitats have become so degraded or population sizes have fallen so low that it is not possible to guarantee the survival of certain species in the w i l d " (see Action 4.12 of CFE ibid.). 86

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are considered as "an aid to sound management", are to be given due priority by Governments. 87 As an extention of the WCS, CFE cannot neglect the importance of sustainable use of the resources. However, and quite surprisingly, CFE also insists on moral and religious considerations to justify conservation. CFE introduces "an ethic of living sustainably" and recalls the message of the W C N . According to this ethic, "we have a right to the benefits of nature but these w i l l not be available unless we care for the systems that provide them. Moreover, all the species and systems of nature deserve respect regardless of their usefulness to humanity". 8 8 From this point of view CFE seems much closer to the principles of the W C N than to those (more utilitarian principles) of the WCS. It may be recalled that the concept of the intrinsic value of nature recurs in a very recent treaty — that is the Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991). 89 Notwithstanding some flaws in the Protocol 9 0 and the fact that it does not regulate exploitation activities like sealing and fishing, 91 it is worth noting that Art. 3 mentions the "intrinsic value" of Antarctica. The special features of Antarctica are however evident; for instance, there is not an Antarctic population whose essential needs are to be met. Moreover, it is doubtful that States would have decided to recognize the intrinsic value of Antarctica, if the Protocol regulated the exploitation of natural resources. 92 Another example of species protection which does not correspond to economic considerations concerns the exploitation of whales. Actually according to some States whaling should be banned forever irrespective of the abundance of the 87

Action 4.13 of CFE ibid.

88

Chapter 2 of CFE ibid. See also Chapter 4: "Biological diversity should be conserved as a matter of principle, because all species deserve respect regardless of their use to humanity . . . and because they are all components of our life support system. Biological diversity also provides us with economic benefits and adds greatly to the quality of our lives" ibid. 89 The text is reproduced in: Burhenne (note 4), 991:74. 90 By the way, it is worth noting that, unlike the C C A M L R , the Protocol does not provide for an ecosystem approach. 91 See Art. 4.2 of the Protocol (note 89). O n the Protocol see Francesco Francioni, 11 Protocollo di Madrid sulla protezione delPambiente antartico, R D I , vol. L X X I V , 1991, 797 et seq.; Laura Pineschi, Antarctica, in: Tullio Scovazzi / Tullio Treves (eds.), World Treaties for the Protection of the Environment, Milan 1992,249 et seq.; Laura Pineschi, La protezione delPambiente in Antartide, Padua 1993. 92 It may be recalled that Art. 7 of the Protocol (note 89) prohibits any activity relating to mineral resources other than scientific research. This provision, combined w i t h Art. 25.2 (according to which a review of the Protocol w i l l be possible after 50 years from the date of its entry into force) entails that once in force the Protocol shall constitute a hindrance to the enforcement of the 1988 Wellington Convention ( see note 58). O n this Convention see Rüdiger Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource Activities, Heidelberg 1991.

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species.93 The ban should be grounded inter alia on ethical and moral considerations. This seems to have something to do w i t h the recognition of the intrinsic value of this group of species.94 It seems, however, that Antarctica and whales are examples too specific to prove a general trend of States as regards wildlife protection. The necessity of integrating conservation and development is once more stressed in another important instrument of soft law, that is the Report of the World Commission on Environment and Development " Our Common Future 9 5 Chapter 6 of this Report (hereinafter referred to as the Brundtland Report) is devoted to species and ecosystems considered as "resources for development". The Brundtland Report recognizes that "species conservation is not only justified in economic terms" and that "aesthetic, ethical, cultural, and scientific considerations provide ample ground for conservation". 96 Nevertheless it is undeniable that particular prominence is given to the value that natural resources have for humankind. 9 7 Notwithstanding the long-term benefits deriving from the sustainable use of the resources and from their conservation, the latter entails expenses that the developing countries cannot meet by themselves. The idea of making choices in conservation, which had already been envisaged in the WCS, is reaffirmed in the Brundtland Report. 98 The importance of international co-operation especially between developed and developing countries for the success of every conservation strategy is stressed both by CFE and by the Brundtland Report.

93

This seems to be confirmed by Arts. 65 and 120 of the United Nations Convention on the Law of the Sea (note 129). Art. 65 inter alia allows the coastal States not to pursue optimum utilization of marine mammals and to adopt for their exploitation measures more restrictive than the ones required for conservation purposes. 94 O f course this opinion is not shared by States — like Norway and Japan — which traditionally exploit whales for consumption. 95 The Report has been adopted by the General Assembly of the United Nations ( U N doc. A / 4 2 / 4 2 7 of 4 August 1987). It is commonly known as the Brundtland Report. 96 Chapter 6.30 ibid. It is worth noting that all the reasons mentioned in Chapter 6.30 which justify conservation (except, perhaps, the ethical ones) are "utilitarian". Thus, even in these cases, species are conserved as far as they provide man with (though non-material) benefits. 97 According to Chapter 6.5 "Species and natural ecosytems make many important contributions to human welfare" ibid. 98 "Every nation has only limited resources at its disposal for dealing w i t h conservation priorities. The dilemma is how to use these resources most effectively. Cooperation w i t h neighbouring nations sharing species and ecosystems can help streamline programmes as well as share expenses for regional initiatives. Explicit efforts to save particular species w i l l be possible for only relatively few of the more spectacular or important ones... . [I]nsofar as choices are already being made, unwittingly, they should be made w i t h selective discretion that takes into account the impact of the extinction of a species upon the biosphere or on the integrity of a given ecosystem", Chapter 6.67 of the Brundtland Report, ibid.

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It must be said that the problem of aid to developing countries for conservation purposes has been tackled, though marginally, even by treaties preceding the WCS, the Brundtland Report or C F E . " We have already mentioned the financial mechanism provided for in the U N E S C O Convention. More modestly, as regards those treaties which provide a budget for the functioning of the organs created by the treaties themselves or for their implementation, the contributions of developing countries are usually lower than those of developed countries. 100 Worth mentioning also is the Resolution on assistance to developing countries which is annexed to the Final Act of the Conference to Conclude a Convention on the Conservation of Migratory Species of Wild Animals. By this Resolution the Conference requests the Parties "to promote financial, technical and training assistance in support of the conservation efforts made by developing countries". International and national organizations are urged to give priority to their aid programmes relating to the management and conservation of migratory species and their habitat in developing countries, enabling these countries better to pursue efforts for the implementation of the Convention. Moreover, during the third meeting of the Conference of the Parties of the Bonn Convention (1991) it has been decided to include a sum of about 10 % of the total budget to assist developing countries. 101 Similarly, in the framework of the Ramsar Convention, during the 1990 Conference on Wetlands the United States proposed the creation of a Wetland Conservation Fund for technical assistance to developing countries. The proposal was "unanimously and enthusiastically" approved. 102

II. The 1992 Convention on Biological Diversity 1. Why a Convention on Biodiversity? As stated above the concern about the preservation of genetic resources — as something partially different from the protection of species — dates back to the Seventies. Recommendations 39, 40,41,42, 43,44, and 45 of the U N C H E Action 99

See e. g. Art. 15 of the 1982 Protocol concerning Mediterranean Specially Protected Areas (note 80) which provides for assistance to developing countries for the selection, establishment and management of protected areas. 100

For example as regards the CITES (note 59), contributions to the Trust Fund — established during the second meeting of the Conference of the Parties in 1979 — are to be calculated in accordance with the United Nations scale; on this problem see David S. Favre, • International Trade in Endangered Species, Dordrecht / Boston / London 1989, 289 et seq. 101 See Forster et al (note 2), 94. 102 See Growing International Recognition, EPL, vol. 20, 1990, 137 et seq.

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Plan specifically concern genetic resources. Some of these recommendations are very detailed. They encourage the co-operation among States, and between them and international organizations, in particular the United Nations, F A O and U N E S C O . The needs of developing countries are not ignored. According to Ree. 45.1.d "technical and financial assistance should be provided where required; areas of genetic diversity are most frequently located in those countries most poorly equipped to institute the necessary programmes". The necessity of organizing a global network of genetic resources conservation centres, and of exchanging data and information, is particularly stressed. The W C S 1 0 3 and C F E 1 0 4 also give particular emphasis to the problem of the preservation of genetic resources. I n more detail, the Brundtland Report encourages the conclusion of a "Species Convention" that also deals w i t h biodiversity. According to Chapter 6.58 this "Species Convention" should be "similar in spirit and scope to the Law of the Sea Treaty and other international conventions reflecting principles of 'universal resources'". The Convention "should articulate the concept of species and genetic variability as a common heritage". Chapter 6.60 specifies that such a Convention would need to be supported by a financial arrangement in order "to ensure the conservation of genetic resources for all people", and "assure that the nations that possess many of these resources obtain an equitable share of the benefits and earnings derived from their development... . One such arrangement might be a Trust Fund to which all nations could contribute, w i t h those benefitting most from the use of these resources contributing an appropriate share". We shall see below whether the 1992 Biodiversity Convention corresponds or not to the wishes expressed in the Brundtland Report. Before doing so, it is worth recalling that there were different opinions on the necessity of concluding a new convention on biodiversity. 105 A n initial question regarded the possibility of using the existing instruments of international law to ensure the preservation of biodiversity, instead of concluding a new treaty. It is clear that at least the in-situ conservation of biological resources tends to coincide w i t h the protection of wildlife provided for in previous treaties. The risk of a duplication of provisions w i t h the same problems of im103 Section 6.5 of the WCS (note 64) envisages three ways of preserving genetic diversity: "on site", "off site, part of the organism", and "off site, whole organism". 104

See note 82. The conservation of biological diversity is one of the priority actions provided for by CFE: see CFE (note 82) Actions 4.9, 4.10, 4.11, and 4.12. 105 O n this topic see Simone Bilderbeek (ed.), Biodiversity and International Law, Amsterd a m / O x f o r d / W a s h i n g t o n / T o k y o 1992. O n general problems concerning biodiversity conservation see Conservation of Biological Diversity — Background and Issues, Report of the Secretary-General of the U.N. Conference on Environment and Development , U N doc. A / CONF.151 / PC / 66 of 9 July 1991 (hereinafter Report of the Secretary-General).

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plementation was not overlooked. However, from the very beginning of the negotiations for the Biodiversity Convention it was stated that a new convention was necessary. I n particular it was stated that "the existing conservation conventions and the other relevant international programmes, which are necessarily sectoral, could not adequately meet the aim of conserving biological diversity at the global level" and that "consequently, there was a need for one or more legally binding mechanisms dealing with the conservation of biological diversity at the international leveV\ 106 It was stressed that "even the totality of the existing conventions could not cover the full range of biological diversity". 1 0 7 The purpose of the negotiations was not the elaboration of an umbrella convention absorbing the existing conservation conventions. O n the contrary, the "new convention should build upon the existing conventions , mechanisms and action plans, using their measures and potential to the greatest possible extent ". 108 As a matter of fact, many issues which have been dealt w i t h in the Biodiversity Convention were not regulated in previous treaties. Suffice it here to mention the use of biotechnologies. Their use entails a number of problems of various natures. Some of these problems concern the protection of the environment, and of wildlife and biodiversity in particular. There are at least three points of contact between biotechnologies and biodiversity. First, biotechnologies are grounded on the manipulation of genes which are found in the wild. As said above, the greatest wealth in gene variety is found mostly in developing countries. A non-sustainable use of this variety in order to supply the biotechnology industry is likely to threaten the survival of species. Second, biotechnologies may turn out to be useful for improving conservation efforts and management of natural resources. 109 I n this case, as in the previous one, the fact that developing countries are the "owners" of genes places them in a good "bargaining" position. I n exchange for genes they can negotiate to obtain from the developed countries either the financial resources they need to invest in conservation or the technologies to make their conservation 106

Report of the A d Hoc Working Group on the Work of its First Session (hereinafter First Session Report ), doc. U N E P / Bio.Div. 1/3 of 9 November 1989, para. 13.b and 13.c. 107 Ibidpara. 15. 108 Ibid., para. 16. This has been reaffirmed in the Report of The A d Hoc Working Group on the Work of its Second Session in Preparation for a Legal Instrument on Biological Diversity on the Planet, doc. U N E P / Bio.Div. 2 / 3 of 23 February 1990 (hereinafter Second Session Report), para. 14. 109

Biotechnologies may be used e. g. to find energy alternatives or to degrade toxic chemicals. A positive impact on the environment can also derive from biotechnologies aimed at improving crops and yields and thus suppling food in economically disadvantaged regions. The increased agricultural productivity of lands may reduce pressures on ecosystems rich in biological diversity (e. g. forests). O n the possible use of biotechnologies for the conservation, sustainable utilization and development of biodiversity see the Final Report of the SubWorking Group on Biotechnology, doc. U N E P / B i o . D i v . / SWGB.1/5 / Rev.l of 28 November 1990 (hereinafter Final Report of SWGB), esp. sect. I I and I I I of the Annex.

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efforts more effective. Third, the introduction of modified organisms into the environment may seriously and adversely affect the ecological balance of natural ecosystems. 110 The. Biodiversity Convention deals extensively w i t h the first two aspects of biotechnology. O n the contrary, the regulation of the third aspect is dealt w i t h only marginally and is entrusted to a further specific protocol. Questions concerning the adverse environmental effects of modified organisms may be considered regulated already, though partially and perhaps inadequately, by some previous treaties on wildlife protection. We refer in particular to those provisions which prohibit or regulate the introduction of new species into the wild. For instance, according to Art. 7 of the Nairobi Protocol, the Parties shall "prohibit the intentional or accidental introduction of alien or new species which may cause significant or harmful changes to the Eastern African Region". 1 1 1 Even when the introduction of new (or genetically modified) species into the environment is not mentioned, it may be included in the concept of pollution. 1 1 2 As such it is regulated by the conventions concerning wildlife, should the release turn out to be harmful to the habitats of the protected species. I n the light of this fragmentary regulation, the opinion that a new convention in this field was necessary seems acceptable. The new instrument however should demonstrate that it is able to resolve the problems which at present make species conservation ineffective or at least insufficient. I n order to be useful the new convention has to add "something" to the provisions of the previous treaties. This addition should consist of an improvement from at least one of these points of view: a) the contents — the new convention should regulate issues which were neglected in previous treaties; b) the effectiveness — the new convention should provide for mechanisms which ensure the correct implementation and enforcement of its provisions; c) the spatial application — the new convention should be open to all States and apply in every part of the world. 110 O n the environmental risks linked w i t h the use of biotechnologies see Thomas O. McGarity , International Regulation of Deliberate Release Biotechnologies, in: Francesco Francioni / Tullio Scovazzi (eds.), International Responsibility for Environmental Harm, L o n d o n / D o r d r e c h t / B o s t o n 1991, 319 et seq.; Richard B. Stewart/Maria A. Martinez , International Aspects of Biotechnology: Implications for Environmental Law and Policy, Journal of Environmental Law (JEL), vol. I, 1989, 151 et seq. 111 See Nairobi Protocol (note 73). Genetically modified organisms could be included also among the substances harmful to migratory species which, according to Art. V.5.i of the Bonn Convention, should not be released into the habitats of such species. 112 According to the definition contained in the annex to Recommendation C(74)224 (Principles Concerning Transfrontier Pollution) adopted in 1974 by the Council of the Organisation for Economic Co-operation and Development, "pollution means the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere w i t h amenities and other legitimate uses of the environment".

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The Biodiversity Convention seems in principle to be innovative in these three respects. It regulates biotechnology in connection w i t h conservation issues; it provides for financial mechanisms which should remedy the most frequent problems of implementation; it is universal in participation and global in scope. 2. Preliminary Remarks on the Biodiversity

Convention

The Biodiversity Convention was adopted by the ad hoc Conference convened in Nairobi on 22 May 1992. The Conference had been preceded by three meetings of experts and seven negotiating sessions in the period between November 1988 and May 1992. 113 Different bodies worked out the text of the Convention: a) the Ad Hoc Working Group of Experts on Biological Diversity; b) the Ad Hoc Working Group of Legal and Technical Experts; c) the Intergovernmental Negotiating Committee on Biological Diversity (hereinafter I N C ) which differs from the Group indicated at b) only in name. The Conference also adopted four Resolutions. 114 When the text of the Convention was adopted, several States 115 made declarations on various issues. Other declarations were made upon signature of the Convention. 1 1 6 The objectives of the Biodiversity Convention are specified in Art. 1. They are: "the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding". The Biodiversity Convention is composed of a Preamble and 42 articles. It is completed by two Annexes concerning respectively Identification and Monitoring, 1 1 7 and Arbitration. 1 1 8 113 The first meeting was convened pursuant to Decision 14/26 of the Governing Council of U N E P . 114 The Resolutions concern respectively: Interim Financial Arrangements; International Cooperation for the Conservation of Biological Diversity and the Sustainable Use of its Components pending the Entry into Force of the Convention on Biological Diversity; The Interrelationship between the Convention on Biological Diversity and the Promotion of Sustainable Agriculture; Tribute to the Government of the Republic of Kenya. 115 These States are: Algeria, Australia, Austria, Belgium, Canada, Chile, Colombia, Denmark, Finland, France, Germany, Greece, India, Italy, Japan, Malawi, Malaysia, Malta, Netherlands, New Zealand, Niger, Norway, Peru, Portugal, Saudi Arabia, Spain, Sweden, Switzerland, United Kingdom, United States. 116 117

I n particular France, Italy, Switzerland, and the United Kingdom made a declaration.

I n particular Annex I contains an indicative list of categories of components of biological diversity which shall be identified and monitored by the Parties according to Art. 7 of the Biodiversity Convention.

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From the very beginning of the negotiations it was clear that the lack of unanimous consent about some of the provisions to be embodied in the future convention could jeopardize the success of the convention itself. Few basic issues seemed to receive from States the approval necessary to be included in the Convention without much discussion. There were for instance no doubts that the Convention should deal simultaneously w i t h conservation and sustainable use of the resources as two sides of the same coin. Similarly it was clear that the Convention should consider conservation as a means for achieving development. 119 N o r could the Convention neglect to reaffirm those principles which correspond to customary international law. We refer in particular to the rule embodied in Principle 21 of the U N C H E Declaration which is exactly reproduced in Art. 3 of the Biodiversity Convention. 1 2 0 Other principles which are achieving a good degree of acceptance by States in the field of international environmental law — like the precautionary principle — nevertheless had some difficulty in being included in the Convention. Finally some other important matters were widely and strongly debated during the negotiations. Developed countries were opposed to developing countries on some crucial questions. These concerned, inter alia , the difficulty of giving a "legal" definition of biological diversity and its compatibility w i t h the principle of permanent sovereignty over natural resources, the transfer of technology and access to genetic resources.

118 Annex I I provides for an arbitral procedure for the settlement of disputes concerning the application and interpretation of the Biodiversity Convention pursuant to Art. 27. 119

See the Report of the Secretary-General (note 105), para. 39: "Development and conservation of biodiversity must proceed together, as they enhance and strengthen each other". O n the relationship between conservation and development see Chris K. Mensah, United Nations Conference on Environment and Development: The Role of the Developing Countries, Proceedings of the Conference: "The Environment after Rio", held 11-13 February 1993 in Courmayeur (not yet published). 120

It is interesting to note that Art. 3 of the Biodiversity Convention and Principle 21 of the U N C H E Declaration coincide perfectly. O n the contrary, in Principle 2 of the Declaration on Environment and Development adopted in Rio de Janeiro on 14 June 1992, I L M , vol. 31, 1992, 876 et seq., (hereinafter the Rio Declaration), the adjective "developmental" was inserted after the adjective "enviromental" and before the word "policies". Despite the general acceptance of Principle 21 as a customary rule, at the time of the adoption of the agreed text of the Biodiversity Convention Colombia made an interpretative declaration. " W i t h respect to the principle laid down in the third article of the Convention" Colombia "shares its spirit but interprets the text to mean that no country shall be responsible for activities carried out beyond the control of its Government, within its national jurisdiction, which cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". United Nations Environment Programme, Convention on Biological Diversity, Environmental Law and Institutions Programme Activity Centre, June 1992 [hereinafter UNEP Guidebook],

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The adoption of the text of the Convention and the great number of signatory States prove that a satisfactory compromise among the different positions was finally reached. However, it is likely that further problems w i l l arise (or reappear) in interpreting and applying provisions which, precisely because they are fruit of compromise, are sometimes ambiguous or unclear. Some declarations made by States when adopting the text of the Convention have precisely the purpose of explaining how they interpret some expressions contained in the Convention itself. 121 The following paragraphs do not intend to examine the Biodiversity Convention in detail. O n l y some crucial aspects of the Convention w i l l be considered, w i t h an eye to their development during the negotiations. 122 3. The Legal Definition of Biological Diversity and Access to Genetic Resources Art. 2 of the Biodiversity Convention defines biological diversity as "the variability among living organisms from all sources including, inter alia y terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems". This definition is perhaps wider but not substantially different from the definitions given in non-binding and more technical instruments like CFE. 1 2 3 The scientific definition of biological diversity did not constitute a problem. O n the contrary the question of the legal definition of biodiversity was discussed at length during the negotiations. Indeed the consequences deriving from some 121 It is worth remembering that Art. 37 of the Biodiversity Convention prohibits any reservations to the Convention. 122 For further details on the negotiating history of the Biodiversity Convention see Kathyrn Rackleff Preservation of Biological Diversity: Toward a Global Convention, Colorado Journal of International Environmental Law and Policy, vol. 3, 1992, 405 et seq.; Frangoise Burhenne-Guilmin / Susan Casey-Lefkowitz , The Convention on Biological Diversity: A Hard W o n Global Achievement, Y I E L , vol. 3, 1992. O n the Convention see also Wolfgang E. Burhenne , Biodiversity — The Legal Aspects, EPL, vol. 22, 1992, 324 et seq.; Clare Shine / Palitha T. B. Kohona y The Convention on Biological Diversity: Bridging the Gap Between Conservation and Development, Review of European Community and International Environmental Law, vol. 1, 1992, 278 et seq.; Alan E. Boyle , The Rio Convention on Biological Diversity, Proceedings of the Conference: "The Environment after Rio", held 1113 February 1993 in Courmayeur (not yet published); Alexandre Kiss y Le droit international ä Rio de Janeiro et ä cote de Rio de Janeiro, Revue Juridique de l'Environnement, 1993, 45 et seq.y 68 et seq.; Frederic Hendrickx / VeitKoester/ Christian Prip, Convention on Biological Diversity, Access to Genetic Resources: A legal Analysis, EPL, vol. 23, 1993, 250 et seq. 123 See CFE y (note 82). According to the Glossary annexed to CFE, biological diversity (or biodiversity) means "the variety of life in all its forms, levels and combinations". It "includes ecosystem diversity, species diversity, and genetic diversity".

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legal qualifications given to the concept of biological diversity are not of minor importance. From the beginning some delegations stressed the principle of the sovereignty of States over their natural resources as opposed to the notion of biological diversity as a common resource of mankind. 1 2 4 Three different qualifications of biological diversity were envisaged. It could be considered: a) a heritage of mankind; b) a common responsibility of humankind; c) a common interest of humankind. 1 2 5 The use of the expression "common heritage" was particularly controversial. 126 The delegates of the Ad Hoc Working Group agreed that such a concept did not imply "the establishment of collective international rights to resources within national jurisdictions nor [did] it infringe upon permanent sovereignty of States over natural resources". 127 The final solution on this point is contained in the Preamble of the Biodiversity Convention. I n it the Parties affirm "that conservation of biological diversity is a common concern of humankind" and reaffirm "that States have sovereign rights over their own biological resources". This solution appears logically and legally consistent w i t h the whole context of the Biodiversity Convention. The expression "common heritage of mankind" (hereinafter C H M ) refers to a precise regime, like the one envisaged in Resolution 2749(XXV) of the United Nations General Assembly of 17 December 1970 128 124 First Session Report (note 106), para. 21. See also Susan H. Bragdon , National Sovereignty and Global Environmental Responsibility: Can the Tension Be Reconciled for the Conservation of Biological Diversity?, Harvard International Law Journal (HILJ), vol. 33, 1992, 381 et seq. 125 See Elements for Possible Inclusion in a Global Framework Legal Instrument on Biological Diversity , doc. U N E P / Bio.Div. / W G . 2 / 1 / 3 of 24 September 1990 (hereinafter Elements), Chapter I I I . 126 See ibid. y General comments on Chapter II.4, where it was suggested that the expression "common heritage" should be replaced by other terms. See also the statements / amendments / proposals submitted by States contained in the Report of The A d Hoc Working Group of Legal and Technical Experts on Biological Diversity on the Work of its First Session (Addendum^ doc. U N E P / B i o . D i v . / W G . 2 / 1 / 4 / Add. 1 of 5 February 1991 (hereinafter First Session Legal Technical Report Addendum) y esp. at 3 et seq.; see the positions of Argentina and Colombia; Bahamas; Brasil; Chad; Finland; Gambia; Germany; India; Malaysia; Nigeria; Senegal; Syria; Tanzania; United States; Venezuela. See also below note 132. 127

Second Session Report (note 108), para. 11. The characteristics of the C H M according to the Declaration of Principles Governing the Sea-Bed and the Ocean Floor , and the Subsoil Thereof beyond the Limits of National Jurisdiction Resolution 2749(XXV), of 17 December 1970, in: G A O R 25th Sess., Suppl. 28, 24, can be very briefly summarized as follows: a) prohibition of national appropriation and prohibition of the exercise of sovereignty; b) use only for peaceful purposes; c) exploitation for the benefit of mankind as a whole, with particular consideration for the interests and needs of developing countries; d) the establishment of appropriate international machinery for the enforcement of the regime. 128

n:

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w h i c h was later e m b o d i e d i n the U n i t e d N a t i o n s C o n v e n t i o n o n the L a w o f the Sea ( M o n t e g o Bay, 10 December 1982). 1 2 9 Some o f the features o f such a regime — and i n particular the i m p o s s i b i l i t y o f exercising sovereign rights over the C H M — seem inapplicable t o species at least w h e n specimens b e l o n g i n g t o t h e m are i n areas under national j u r i s d i c t i o n . 1 3 0 E v e n recourse t o the m o r e abstract concept o f b i o d i v e r s i t y does n o t eliminate the p r o b l e m . Indeed the components o f b i o d i versity remain material and concrete and, as such, t h e y m a y be i n c i d e n t a l l y subject t o sovereign r i g h t s . 1 3 1 T h e f o r m u l a used i n the Preamble o f the B i o d i v e r s i t y C o n v e n t i o n does n o t affect sovereignty over natural resources. Nevertheless i t entails a n u m b e r o f i m p o r t a n t consequences. First o f all, i t m u s t be n o t e d that according t o the Biodiversity Convention "conservation of biological diversity" (not "biological d i v e r s i t y " tout court ) is " a c o m m o n concern o f h u m a n k i n d " . T h i s is substantially different f r o m w h a t had been p r o p o s e d o r i g i n a l l y . 1 3 2 T h e fact that conservation is a c o m m o n concern o f h u m a n k i n d 1 3 3 implies that the latter is called u p o n t o 129

I L M , vol. 12, 1982, 1261. A slightly different concept has been suggested in order to overcome possible contrasts w i t h sovereign claims. This is "le patrimoine commun de l'humanite 'par affectation'" which is characterized by the possibility of national appropriation; see Kiss (note 33), 229 et seq. 130

131 See Elements (note 125), General comments on Chapters I - X V I I I , made by the Ecosystem Conservation Group at their meeting on 1 October 1990: "concepts like ownership and sovereignty can be applied only to the components of biological diversity". 132 See e. g. Annex I of the Report of The A d Hoc Working Group on the Work of its Third Session in Preparation for a Legal Instrument on Biological Diversity on the Planet , doc. U N E P / Bio.Div. 3/12 of 13 August 1990 (hereinafter Third Session Report), paras. 2 and 4: "Biological diversity is the common responsibility or common interest of humankind. Many delegates expressed a desire for the use of this language instead of common heritage". See also the Report of The A d Hoc Working Group of Legal and Technical Experts on biological diversity on the Work of its First Session, doc. U N E P / Bio.Div. / WG.2 / 1 / 4 of 28 November 1990 (hereinafter First Session Legal Technical Report), para. 30: "The Working Group agreed that the heritage of mankind should not be reflected in the convention. It agreed that the concept of the common concern of humankind in relation to biological diversity should be introduced into the fundamental principles. Some representatives suggested that the common interest of humankind should also be reflected in the draft and that common responsibility followed naturally from the concept of common interest. Several representatives opposed inclusion of common responsibility in the draft. Some also opposed reference to the common interest, which, in the English language, can also be understood as a material interest". 133 O n the meaning of this expression in a different context see Antonio A. Cangado Trindade / David J. Attard, The Implications of the "Common Concern of Mankind" Concept on Global Environmental Issues, in: Torn Iwama (ed.), Policies and Laws on Global Warming: International and Comparative Analysis, Tokyo 1991, 7 et seq. See also Boyle (note 122), 14 et seq. By the way, it may be remembered that the word "humankind" has replaced the expression "all peoples" which was contained in the Preamble of the drafts preceding the final version of the Biodiversity Convention. Brazil opposed the reference to "peoples" because of "the possibility that this might be seen as conferring rights on indigenous peoples" (ibid., 13). The expression "common concern of humankind" (sometimes alternating

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conserve biodiversity. A t the governmental level this means that all States must co-operate in conserving biological diversity. Since States have different capabilities, their conservation efforts w i l l consequently differ. 1 3 4 Thus the legal consequence of the "common concern" seems to be mainly the duty of co-operation among States. Moreover, as the possessors of genetic resources maintain full sovereignty over their natural resources, the cooperation of developed States in conservation should inevitably take the form of unconditional financial aid and scientific and technological assistance. Evidently this conclusion is different from what could be inferred from the qualification of biodiversity as C H M . I n this second case, the concept of C H M would have implied that all States have a right to benefit from their common heritage and consequently to freely accede to biological diversity. I n other words the possessors of genetic resources would have been considered simple "guardians" of biological diversity, which is to be conserved for mankind. The developing countries strongly rejected this idea of stewardship. 135 The problem of access to genetic resources is in many respects linked to that of the legal definition of biodiversity. Once again, in Art. 15 of the Biodiversity Convention the sovereign rights of States over their natural resources are stressed. Moreover Art. 15 clearly states that "the authority to determine access to genetic resources rests w i t h the national governments and is subject to national legislation". But, what are the obligations of the "possessors" of genetic resources? The wording of Art. 15 could not be vaguer and softer on this point. According to para. 2 the Parties "shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses 136 by other Contracting Parties and not to impose restrictions that w i t h "common responsibility" or "common interest") was used in the drafts of the Article dealing w i t h fundamental principles: see, e. g., Art. 3 of the Second Revised Draft Convention on Biological Diversity, doc. U N E P / Bio.Div. / I N C . 4 / 2 of 23 July 1991 (hereinafter the Second Rev. Draft). A similar Article is present in the drafts of the convention up to the last one, which is the Fifth Revised Draft Convention on Biological Diversity, doc. U N E P / Bio.Div. / N 7 - I N C . 5 / 2 of 20 February 1992 (hereinafter the Fifth Rev. Draft). The Article concerning "Fundamental Principles" disappears in the final version of the Convention. It is replaced by an Article (Art. 3) which simply reproduces Principle 21 of the U N C H E Declaration (note 71). 134

The difference among States as regards their capabilities is reflected in various provisions of the Biodiversity Convention. The financial provisions of the Biodiversity Convention are obviously based on this difference. 135 O n this point and in general on the position of developing countries see Mensah (note 119). 136 During the negotiations there was the suggestion to qualify the "purposes" of the access. The proposal was to provide access to genetic material "for purposes of scientific research, training, surveying and monitoring and for other environmentally sound uses": see Art. 14, Alternative 1, para. 1, of the Revised Draft Convention on Biological Diversity, doc. U N E P / Bio.Div. / W G . 2 / 3 / 3 of 30 April 1991 (hereinafter the Rev. Draft), of the Second

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r u n counter t o the objectives" o f the C o n v e n t i o n . Paras. 4 and 5 o f A r t . 15 add that "access, where granted, shall be o n m u t u a l l y agreed terms and subject t o the provisions o f this A r t i c l e " , and that "access t o genetic resources shall be subject t o p r i o r i n f o r m e d consent o f the C o n t r a c t i n g Party p r o v i d i n g such resources, unless otherwise determined b y that P a r t y " . I t seems that the o n l y o b l i g a t i o n f o r the possessors o f genetic resources 1 3 7 is t o endeavour t o create c o n d i t i o n s t o facilitate access, w i t h o u t any restrictions that contrast w i t h the purposes of the C o n v e n t i o n . I t appears d i f f i c u l t t o ascertain w h e t h e r o r n o t a C o n t r a c t i n g Party has sufficiently endeavoured, 1 3 8 i n compliance w i t h the C o n v e n t i o n . A r t . 15 does n o t therefore seem t o affect the p o s i t i o n that the possessors o f genetic resources w o u l d have had even w i t h o u t this A r t i c l e . 1 3 9 A s a matter of fact A r t . 15 constitutes a c o m p r o m i s e between the aspirations o f developing countries (i. e. gene-rich countries) and the desires o f developed countries (i . e. t e c h n o l o g y - r i c h c o u n t r i e s ) . 1 4 0 T h e c o m p r o m i s e can be better appreciated i f i t is considered together w i t h the provisions w h i c h regulate access t o technologies, as w e shall see b e l o w . Indeed d u r i n g the negotiations o f the C o n v e n t i o n , access t o genetic resources and access t o technologies were considered as interrelated p r o b l e m s . 1 4 1

Rev. Draft (note 133), and of the Fourth Revised Draft Convention on Biological Diversity, doc. U N E P / B i o . D i v . / N 6 - I N C . 4 / 2 of 16 December 1991 (hereinafter the Fourth Rev. Draft). 137 According to Art. 15.3 "the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance w i t h " the Biodiversity Convention. According to Art. 2 country of origin of genetic resources "means the country which possesses those genetic resources in in-situ conditions". The result of the provision of Art. 15.3 is "to exclude from the scope of the Convention genetic resources placed in gene banks and other ex situ facilities before the entry into force of the Convention", Burhenne-Guilmin et al. (note 122), 55. O n this point see also the Report of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity on the Work of its Sixth Negotiating Session / Fourth Session of INC , doc. U N E P / Bio.Div. / N 6 - I N C . 4 / 4 of 18 February 1992 (hereinafter Sixth Session INC Report ), para. 7. 138 The expression "shall endeavour" of Art. 15 was originally proposed as an alternative to the more stringent "undertakes". See Art. 14, Alternative 1, para. 3 of the Second Rev. Draft (note 133), and of the Fourth Rev. Draft (note 136). 139

Art. 15 "does not create any right of access", see Boyle (note 122), 12. From the beginning of the negotiations it was suggested to replace the expressions "gene-rich, technology-rich and poor countries" w i t h other terms. 141 See e. g. the Second Session Report (note 108), para. 22 : "the full potential of biological diversity can best be realized when genetic resources remain accessible to all users and if technology and information on their use is transferable to a l l . . . . Accessibility to biological diversity, including new varieties, and to related technologies, including conservation technologies, are two sides of one and the same coin and must be an integral part of the planned legal instrument". 140

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Various States put forward many proposals concerning the qualification of access to genetic resources. Just to quote some examples, it was suggested that access should be "fair and equal", "free" 1 4 2 or "open". Originally a "preferential treatment for countries of origin of germplasm w i t h regard to access to genetic material and varieties derived therefrom" 1 4 3 was also proposed. However, even "preferential" treatment was considered not sufficient by some delegations. 144 The adjectives that referred to access in the proposals end up by referring to the sharing of the scientific results and benefits deriving from genetic material in the final text of the Convention. According to Art. 15.7 the Parties in fact "shall take legislative, administrative or policy measures, as appropriate, . . . w i t h the aim of sharing in a fair and equitable way the results of research 145 and development and the benefits arising from the commercial and other utilization of genetic resources w i t h the Contracting Party providing such resources". Even in this case, however, the "sharing shall be upon mutually agreed terms". Thus it is not clear what happens if the Parties do not succeed in coming to an agreement in this sense. 4. Biotechnologies: Access and Transfer

146

The question of access (or transfer) of biotechnologies is strictly related to the question of access to genetic material. Here too the developing and developed countries found themselves on opposite sides as there was a conflict of interests between the two groups. It might be said that access to genetic materials and 142

It was specified that "Free access does not mean free of charge and accessibility should be based on mutual agreement and full respect for the permanent sovereignty of States over their natural resources", Second Session Report (note 108), para. 22. 143 See Elements (note 125), Chapter VI.A.c. 144

See e. g. the position of Chile according to which "the country of origin of the germplasm must share the commercial results and patent rights on an equal footing", First Session Legal Technical Report Addendum (note 126), 38. See also the position of Thailand, ibid. y 39. 145 Scientific research based on genetic resources is encouraged in Art. 15.6 " w i t h the full participation" of the Parties which provide genetic material. 146 Originally the regulation of "access t o " and "transfer of" technology were separate. "Access" is not defined in the Biodiversity Convention. According to Art. 15.2 of the Rev. Draft (note 136) "access to technology and information shall include access to [published results of] scientific research, training and surveying, know-how, traditional knowledge as such and in combination w i t h technologies". I n the final version of the Convention "access to" and "transfer of" biotechnologies are dealt with separately from the issue of "exchange of information" (Art. 17 of the Biodiversity Convention). O n the distinction between "access to" and "transfer of" see note 19 of the Rev. Draft (note 136): " I n this context, is there a meaningful distinction between access to and transfer of technology and information? Access could mean access to information about technology. Direct physical access would seem to imply the transfer of the technology. If transfer is a way of achieving access it may be desirable to combine the two Articles on Access and Transfer".

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access to biotechnologies were the two "goods" that each group could use for bargaining. 147 Which technologies did the future convention have to deal with? This was the first problem the negotiations would have to solve. Different possibilities were envisaged. 148 The Convention could deal with: a) technologies that support conservation and sustainable use of biological diversity; or b) technologies that make use of genetic resources for other purposes such as the production of pharmaceuticals; or c) both these technologies. 149 I n the end both categories were included in the Biodiversity Convention. According to Art. 16, para. 1: "Each Contracting Party, recognizing that technology includes biotechnology, 150 and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and / or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment". Art. 16.1 uses the word "undertakes", instead of the apparently softer "shall endeavour" adopted in Art. 15.2. The wording of Art. 16 would therefore appear to be more stringent. However the word "facilitate" is not defined, nor is there any explanation of the distinction between "to provide" and "to facilitate". It is therefore hard to determine whether or not the Parties comply w i t h Art. 16.1. 151 We have already pointed out this problem above, w i t h regard to Art. 15. 147 O n some issues concerning biotechnologies which were debated during the negotiations of the Biodiversity Convention see the Final Report of the SWGB (note 109). 148 I t was even considered that since biotechnology and transfer of technology "were issues that should be dealt w i t h by the 1992 U N C E D conference" they should not have been included in the convention on biological diversity; see Elements (note 125), General comments on Chapter VII.6. O n the contrary, according to other representatives the fact that the U N C E D would deal w i t h these issues did not mean that they should be excluded from the Biodiversity Convention; First Session Legal Technical Report (note 132), para. 79. 149 See e. g. the Third Session Report (note 132), para. 37: "Some delegations expressed concern about the appropriateness of covering all aspects relevant to biotechnology included in the planned convention on biological diversity. They stressed that only technologies that would improve the conservation and sustainable development and utilization of biological diversity should be considered in negotiating the legal instrument". 150 According to Art. 2 of the Biodiversity Convention, biotechnology "means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use". 151

It is worth noting that originally a more stringent wording had been proposed, see e. g. Elements (note 125), Chapter Vll.a, where an "obligation for developed countries to transfer technology . . . to developing countries" was envisaged. See also the First Session Legal Technical Report (note 132), para. 70: "The use of the word "obligation" . . . elicited

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Para. 2 of Art. 16 is more precise. It states that access to and transfer of technology to developing countries "shall be provided and / or facilitated under fair and most favourable terms, including on concessional and preferential terms where mutually agreed, and, where necessary, in accordance w i t h the financial mechanism established by Articles 20 and 21". Mutual consent is probably indispensable so as not to infringe upon the sovereign rights of States and their sovereign equality. It seems however that this requirement undermines the effectiveness of the Convention on this question, as the position of the two groups of States remains substantially unchanged. O n the one side there is the genetic material, on the other there is the relevant technology. The Parties must come to an agreement to exchange these goods. I n pursuing such an agreement States should be guided by the principles laid down in the Convention. It is however possible that the terms of the agreement w i l l be mostly conditioned by the contractual weight of the States concerned. Indeed it seems hardly tenable that a Party may invoke the Biodiversity Convention in order to obtain a result different from, or better than, the result that the same Party would have obtained without the Convention. I n other words, w i l l a developing country be able to claim the transfer of technology from a developed country on the conditions of the Biodiversity Convention? Who is to assess for instance whether or not the terms of the transfer are "fair and most favourable" 152 as required by Art. 16.2? I n the light of these considerations even the distinction made by Art. 16 between Contracting Parties tout court and Contracting Parties which are developing countries loses its significance. 153 A third category of Contracting Parties is the one envisaged in Art. 16.3, i. e. the "Contracting Parties, in particular those that are developing countries, which provide genetic resources". These States should be granted by each Party "access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance w i t h international law and consistent w i t h paragraphs

numerous comments. Several representatives considered that the language should be weakened, while others wished the word to be retained". 152 Also in this case, as in the case of access to genetic material, various qualifications of the transfer were proposed during the negotiations; see e. g. Art. 14 of the Draft Convention on Biological Diversity , doc. U N E P / Bio.Div. / W G . 2 / 2 / 2 of 22 January 1991 (hereinafter the Draft) which envisaged several alternatives: availability of and access to technology might be either "fair and equal", "free", or "open" on either a "preferential and noncommercial basis" or a "fair and favorable basis". See also: Art. 15 of the same Draft; Art. 1, Alternative 3, para. 2, Alternative 5, Alternative 6, para. 2.c, Art. 3.13 and 3.19, Art. 15.1, Art. 16.1 of the Rev. Draft (note 136); Art. 1, Art. 3.9, Art. 15.1, Art. 16.1 of the Second Rev. Draft (note 133); Art. 1, Art. 3.9 and 3.15, Art. 16.1 and 16.2 of the Fourth Rev. Draft (note 136); Art. 1, Art. 3.9 and 3.14, Art. 17.2, Art. 20.2 of the Fifth Rev. Draft (note 133). 153

I n conclusion the greatest innovation of Art. 16 appears to be the possibility to resort to the financial mechanism of Arts. 20 and 21, provided it is enabled to work adequately.

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4 and 5" of the same Art. 16. It goes without saying that also in this case the requirement to achieve mutual agreement may give rise to difficulties in implementation. The problem of patents and intellectual property was widely debated during the negotiations of the Biodiversity Convention. 1 5 4 As stated above, the main concern in dealing w i t h access to biological material was the need to reaffirm the sovereign rights of States over their natural resources. By contrast, in dealing w i t h access to and transfer of technologies one of the crucial issues was the need to protect the ownership of the technologies. I n general, countries rich in technology are interested in increased protection for intellectual property rights. During the negotiations "some representatives stated that technology was primarily owned by private industry; therefore, they expressed concern that since States did not own the major part of the technology and cannot intervene or force the private sector, the elaboration of provisions for transfer of technology to developing countries could become cumbersome". 155 According to other States however "the developed countries should develop a mechanism for transfer of technology from the private sector". 156 The position of technology-rich States is partially reflected in the second sentence of Art. 16.2: " I n the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights". 1 5 7 O n the contrary the position of the other States is partially reflected in the last two paragraphs of Art. 16. 158 154 O n the problem of patents see Gerd Winter , Patent Law Policy in Biotechnology, JEL, vol. 4, 1992, 167 et seq. For other problems concerning the transfer of technology see Matthew Townsend, The International Transfer of Technology, EPL, vol. 23,1993, 66 et seq. 155 fi rs t Session Legal Technical Report (note 132), para. 67. 156

Ibid. , para. 68. According to the United States the Biodiversity Convention does not protect intellectual property sufficiently. This is another reason why the United States decided not to sign the Convention: see the United States' declaration made at the time of adoption of the text of the Convention (note 208). However the Government of the United States signed the Convention on 16 June 1993. O n the position of the United States see Kristin Rosendal , The Biodiversity Convention: Analyzing the Footwork of Bush in Rio, in: International Challenges, vol. 12, 1992, 15 et seq. 157

158 O n Art. 16 the delegation of the United States expressed a highly critical opinion: " I n regard to Article 16, this delegation finds it potentially deficient in the protection of intellectual property rights. The United States strongly supports the promotion of the transfer of technology and technology and scientific cooperation provided that intellectual property rights in technology are recognized and protected. Article 16 fails to recognize the positive role of intellectual property systems in facilitating technology transfer and cooperative research and development by private entities. The United States encourages the establishment of strong intellectual property rights systems in all nations and stands ready, if so requested, to offer technical assistance to any nation wishing to do so", Annex to the Report of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity on the Work of its Seventh Negotiating Session / Fifth Session of INC , doc. U N E P / Bio.Div. / N 7 - I N C . 5 / 4 of

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The above mentioned provisions on biotechnology are completed by the provisions of Art. 17 (Exchange of Information) and Art. 18 (Technical and Scientific Cooperation) of the Biodiversity Convention. Once again the wording of these provisions is rather soft. Indeed Art. 17 states that the Parties "shall facilitate" the exchange of information, while according to Art. 18 international technical and scientific cooperation shall be "promoted" by the Parties. Improvements in the implementation of Art. 18 w i l l be possible if and when the "clearing-house mechanism" — provided for in para. 3 in order to promote and facilitate technical and scientific cooperation — is established. Finally, Art. 19 of the Biodiversity Convention deals w i t h the handling of biotechnology and distribution of its benefit. The first paragraphs concern participation in biotechnological research activities. Legislative, administrative or policy measures shall be adopted in order to ensure that the Parties, especially developing countries, which provide genetic resources, take part in the research based on such resources. Where feasible, the research should be carried out in the countries which provide genetic material. According to paragraph 2 of Art. 19 "each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms". As stated above, the sharing of benefits deriving from the use of genetic resources is one of the objectives of the Biodiversity Convention. 1 5 9 Nevertheless, as for many other provisions of the Biodiversity Convention, the wording of Art. 19.2 seems too soft to be effective. 5. Some Remarks on Conservation Measures A n analysis of the effectiveness of the conservation measures provided for in the Biodiversity Convention is beyond the scope of this article. This paragraph intends to point out only some of the characteristics of the provisions concerning conservation. I n this field a serious and stringent undertaking at the political and legal level must match measures that are effective from the scientific and technical point of view. 27 May 1992 (hereinafter Seventh Session INC Report). Another oustanding example of provisions dealing w i t h the transfer of technologies is represented by Part X I V (Development and Transfer of Marine Technology) of the 1982 U N Convention on the Law of the Sea (note 129). The adoption of these provisions was much debated due to the opposite positions of developing and developed States. 159

This necessity had already been stressed in acts preceding the negotiations of the Biodiversity Convention; see e. g. Chapter 6.51 of the Brundtland Report (note 95): "Developing countries must be ensured an equitable share of the economic profit from the use of genes for commercial purposes".

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I t c o u l d be inferred f r o m the B i o d i v e r s i t y C o n v e n t i o n , Preambular para. 2, that the reasons f o r conservation are t o be f o u n d i n the " i m p o r t a n c e o f b i o l o g i c a l d i v e r s i t y for e v o l u t i o n and f o r m a i n t a i n i n g life sustaining systems o f the b i o sphere". A s a matter o f fact " c o n s e r v a t i o n and sustainable use of b i o l o g i c a l diversity is o f critical i m p o r t a n c e f o r meeting the f o o d , health and other needs o f the g r o w i n g w o r l d p o p u l a t i o n " . 1 6 0 T h i s apparently anthropocentric approach is h o w ever balanced b y the first sentence o f the Preamble o f the B i o d i v e r s i t y C o n v e n t i o n , w h e r e the Parties recognize " t h e intrinsic value o f b i o l o g i c a l d i v e r s i t y " as w e l l as " t h e ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic v a l u e s 1 6 1 o f b i o l o g i c a l diversity and its c o m p o n e n t s " . 1 6 2 T h e reference t o the intrinsic value o f b i o d i v e r s i t y is m o r e f o r m a l t h a n substantial. 1 6 3 Indeed the B i o d i v e r s i t y C o n v e n t i o n m a y be i n c l u d e d a m o n g the u t i l i t a r i a n conventions, due t o the importance given t o the sustainable use o f the resources and t o the economic benefits d e r i v i n g f r o m them. T h e reasons b e h i n d the " n e w u t i l i t a r i a n " v i e w o f conservation that emerges f r o m the m o s t recent international agreements have been explained above. N o r were references t o the intrinsic value o f b i o d i v e r s i t y m o r e frequent i n the drafts preceding the final version o f the C o n v e n t i o n . 1 6 4 H o w e v e r a less u t i l i t a r i a n approach c o u l d be inferred f r o m some

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See Preambular para. 20 of the Biodiversity Convention. Sometimes it may be even difficult to explain the reasons for these values or the precise meaning of the adjectives. As regards the scientific value, see e. g. the opinion of Prof. Ramel, Chairman of the Environment Committee of the Royal Swedish Academy of Sciences: " H e pointed out that, apart from its practical and economic value, biological diversity had immense scientific value for it was the foundation of the biological sciences and of an understanding of organic evolution, including the human biological heritage", Report of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity on the Work of its Third Session / Fifth Negotiating Session , doc. U N E P / Bio.Div. / N 5 - I N C . 3 / 4 of 4 December 1991 (hereinafter Fifth Session INC Report), para. 25. It was also suggested to create a group of experts "to develop guidelines for determining the value (ecological, economic, aesthetic and cultural) of biological diversity"; see Art. 8 bis.3 of the Articles prepared by Working Group I, in Annex to the Sixth Session INC Report (note 137). 161

162 This distinction between the value of biological diversity and the value of its components is very interesting. If the interpretative principle expressio unius est exclusio alterius is applicable to this provision, it follows that the components of biological diversity do not have an intrinsic value. This seems to be confirmed by the definition of "genetic resources" (i. e. components of biodiversity) given in Art. 2. This expression "means genetic material of actual or potential value". The recognition of the intrinsic value of genetic resources would have implied that they must be protected per se. This is denied by the definition of Art. 2 which refers to values based on human assessments. Intrinsic value cannot be either actual or potential: it is immanent. According to the interpretation outlined above, the text of the Biodiversity Convention, Annex I to the Convention does not mention intrinsic value among the requisites to be considered in choosing the components of biological diversity for identification and monitoring. It is however difficult to understand how the sum of components lacking in intrinsic value may result in something having this value. 163

O n this point see Boyle (note 122), 10.

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provisions o f these d r a f t s . 1 6 5 These provisions disappeared i n the final version o f the C o n v e n t i o n . 1 6 6 A n t h r o p o c e n t r i c considerations are also at the basis o f the r e c o g n i t i o n contained i n the C o n v e n t i o n Preamble according t o w h i c h " e c o n o m i c and social developm e n t and p o v e r t y eradication are the first and o v e r r i d i n g priorities o f developing c o u n t r i e s " . 1 6 7 I n this case the anthropocentric approach is essentially different f r o m the s t r i c t l y u t i l i t a r i a n considerations w h i c h characterized the first treaties o n the p r o t e c t i o n o f species. There is n o d o u b t that economic and social developm e n t as w e l l as p o v e r t y eradication cannot be placed after conservation needs. T h e anthropocentric approach is n o t always censurable. O n the c o n t r a r y i n some cases this approach m a y be indispensable o r at least f u l l y justifiable. O n the other h a n d i t is evident that sometimes the conservation o f genetic resources cannot be postponed. I t is n o t a question of importance, as meeting h u m a n basic needs is certainly m o r e urgent and i m p o r t a n t t h a n conservation issues. I t is a question o f time. O n c e the l i v i n g c o n d i t i o n s o f people have i m p r o v e d b u t the species have become extinct, there w i l l be little left t o conserve. T h e best s o l u t i o n — w h i c h is n o t easy t o achieve — s h o u l d be t o pursue the t w o different aims — p o v e r t y eradication and conservation — together. A s far as the B i o d i v e r s i t y C o n v e n t i o n

164 Intrinsic value was mentioned e. g. in Chapter I, Alternatives 1, 2, and 4 (in this last case intrinsic value referred also to the components of biodiversity), Article 2, Alternatives 1 and 2 of the Draft (note 152); Art. 1, Alternatives 1,2,4 (also w i t h regard to the biodiversity components), 5 and 6 of the Rev. Draft (note 136); Art. 1 of the Second Rev. Draft (note 133); Art. 1 of the Fourth Rev. Draft (note 136); Art. 1 of the Fifth Rev. Draft (note 133). It may be remembered that some other provisions contained in the above mentioned drafts took into account only values (of biodiversity or of its components) that differed from the intrinsic one; see Art. 6.a.ii and iii of the Draft (note 152); Art. 7.a.ii and iii of the Rev. Draft (note 136) and of the Second Rev. Draft (note 133); Art. 5 bis.l.a.vi, 5 bis.l.b.iii and (iv), 5 bis.l.c, Art. 7.a.ii and iii, Art. 8 bis.3, Art. 9.b.v of the Fourth Rev. Draft (note 136); Art. 11.3 of the Fifth Rev. Draft (note 133). 165

See e. g. the Preamble, (b), of Elements (note 125): "Recognition of mankind's coexistence on earth w i t h a wide range of other living organisms, which exist independently from the benefits they may provide to humanity". This provision was then modified in the Preamble of the Draft (note 152) as follows: "Recognizing that humanity shares the earth w i t h other forms of life and accepting that these should exist independently of their benefits for humanity" (emphasis added). This provision was reproduced in the Preamble of the subsequent drafts up to the last one. It disappeared in the final version. 166

Also mention of the ethical value of biodiversity — which was contained in Elements (note 125), Chapter I, (k) — does not appear in the final version of the Convention. I t seems easier to found conservation on ethical reasons when the protective measures concern single species or groups of animals (such as whales or pandas) rather than when they concern an abstract concept like biological diversity. Also mention of the environmental value of biodiversity, which was contained in the Preamble of all the drafts up to the last one, disappeared in the final version. 167 This same sentence is repeated in Art. 20.4. O n this point see Mensah (note 119), 25 et seq. with particular reference to Principle 5 of the Rio Declaration (note 120).

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is concerned, it is clear that the establishment of the priorities mentioned in the Preamble can jeopardize conservation. Conservation w i l l not necessarily conflict w i t h the pursuit of economic and social development and the eradication of poverty. However, should developing countries be unable to conserve their biological diversity because they devote their economic resources to the achievement of the priorities mentioned, these States w i l l not infringe the Biodiversity Convention. The main remedy to the possible impasse w i l l be the full implementation of the provisions regarding financial aid and other assistance from the developed countries. This w i l l be in accordance w i t h the objectives of the Biodiversity Convention and w i t h the assertion that biodiversity conservation is "a common concern of humankind". This is clearly stated in Art. 20.4 of the Biodiversity Convention: "The extent to which developing country Parties w i l l effectively implement their commitments under this Convention w i l l depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and w i l l take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties". 1 6 8 Similarly the conservation provided for by the Biodiversity Convention might be prejudiced by the possibility for developing countries to invoke their different capabilities. 169 The phrase " i n accordance w i t h its [each Contracting Party's] capabilities", which is contained both in Art. 6 1 7 0 and in Art. 20.1, 171 qualifies the 168 See also Art. 20.5 which refers to the "least developed countries". Due to the different wording of this paragraph, which does not refer to the "least developed country Parties", it is not clear whether these countries are to be helped even when they are not Parties to the Convention. The same doubt exists in Art. 20.7. It must be said moreover that in the French version the reference to the "Parties" is lacking even in Art. 20.4. However it may be inferred from the content of this paragraph that it refers to the Parties and not to third States. The Spanish version of Art. 20, paras. 4, 5 and 7, corresponds to the English one. 169 The idea of different capabilities of States, which was already contained in previous treaties such as the 1982 U N Convention on the Law of the Sea ( see e. g. Art. 194.1, note 129), is different from the concept of "common but differentiated responsibilities". This latter expression is embodied in Principle 7 of the Rio Declaration (note 120). It is grounded on the recognition that developed countries have contributed to environmental degradation more than developing countries have. O n the contrary the concept of different capabilities, which is partially reflected in Principle 11 of the Rio Declaration ibid., recognizes the economic conditions of developing countries which cannot implement the same conservation measures implemented by developed countries. O n these issues, see Mensah (note 119), 30 et seq. 170

Art. 6 also refers to "particular conditions". Another phrase which is quite common in the treaties on environmental protection is "as far as possible and as appropriate". It is also contained for instance in Arts. 6, 7, 8, 9, 10,11,14 of the Biodiversity Convention. The use of this phrase constitutes an acknowledgement "that all the measures w i l l not be applicable in all cases at all times"; see note a) to Art. 4 of the Draft (note 152). 171

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obligations undertaken by the Parties. Can a developing country therefore invoke its absolute incapability to conserve its genetic resources due to lack of financial or technical resources as a justification for not implementing the Biodiversity Convention? Can it invoke the necessity to use its genetic resources in an unsustainable manner for meeting its essential needs? Can it carry out activities which damage the habitats of species and consequently genetic resources when the prevention of the adverse effects of such activities is beyond its capabilities? If the answer to these questions is affirmative, the effectiveness of the Convention may be prejudiced. These examples are perhaps excessive. I n more realistic terms it might nevertheless be difficult to balance the consequences of the few but important provisions mentioned w i t h the whole context of the Convention, and w i t h its scope and its object in particular. The Biodiversity Convention makes a distinction between conservation and sustainable use. The Convention contains a definition of sustainable use, 172 while the definition of conservation, which was included in previous drafts, 173 was omitted in the final version. This distinction between conservation and sustainable use is quite surprising. I n fact it is generally accepted that conservation includes sustainable use. This is clearly stated in some environmental treaties, 174 while in some other treaties this indication is implicit. Despite the distinction between conservation and sustainable use, many articles of the Biodiversity Convention deal w i t h these two issues simultaneously. T w o articles are however specifically devoted to conservation and one is devoted to sustainable use. Art. 8 deals w i t h in-situ conservation, 175 while Art. 9 concerns 172 According to Art. 2, sustainable use "means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations". 173 The definition recommended by Working Group I, Sub-Working Group on Definitions and Use of Terms, was the following: "Conservation of biological diversity means the preservation (or integral protection), maintenance, sustainable use, recovery and enhancement of the components of biological diversity", Appendix I to the Fifth Rev. Draft (note 133). Finally it was decided not to include this definition, Seventh Session INC Report (note 158), para. 53. Peru announced its reservations concerning this non-inclusion and made a similar declaration at the time of the adoption of the text of the Biodiversity Convention, UNEP Guidebook (note 120). See also Burhenne-Guilmin et al. (note 122), 49 et seq. 174

See e. g. Art. II.2 of the C C A M L R (note 57). See also the definition of conservation in the Glossary annexed to CFE (note 82). During the negotiations of the Biodiversity Convention, some delegations expressed the opinion that conservation includes "rational and sustainable utilization"; see e. g. the remarks of Chile and India in the First Session Legal Technical Report Addendum (note 126), 5 and 36. 175 In-situ conservation is defined in Art. 2. I t "means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties".

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ex-situ conservation. 176 Art. 10 deals w i t h the sustainable use of components of biological diversity. As far as the relationship between in-situ and ex-situ conservation is concerned, a pre-eminent position was finally given to in-situ conservation. 177 The question was debated at length however during the negotiations. 178 Many of the in-situ measures provided for in Art. 8 correspond to "traditional" ones, such as the establishment of protected areas, and the protection of threatened species, their habitats and ecosystems in general. It is worth noting that during the negotiations the protection of migratory species and of shared ecosystems was given particular emphasis. 179 These are typical examples of components of the environment that require international co-operation for their protection. This emphasis may however turn out to be excessive if Arts. 4 and 5 of the Biodiversity Convention are correctly implemented. Art. 4 deals w i t h "juridical scope" and states that the Convention applies in relation to each Contracting Party "(a) I n the case of components of biological diversity, in areas within the limits of its national jurisdiction; and (b) I n the case of processes and activities, regardless of whfere their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction". Moreover Art. 5 provides for international cooperation for the conservation and sustainable use of biological diversity " i n respect of areas beyond national jurisdiction and on other matters of mutual interest". Thus, w i t h a technique that vaguely recalls the one used in the Bonn Convention, Arts. 4 and 5 should ensure a satisfactory application of the Convention. Indeed genetic resources are safeguarded in the territory of the Parties whereas, beyond it, activities relating to genetic resources are regulated thanks to the reference to State jurisdiction and control.

176 According to Art. 2, ex-situ conservation "means the conservation of components of biological diversity outside their natural habitats". 177

See e. g. Preambular paras. 10 and 11. "Some representatives stressed that in-situ conservation of biological diversity should be given priority, while others preferred to accord equal weight to in-situ and ex-situ conservation"; "Several representatives stated that in-situ conservation was a fundamental aim of the future convention, while ex-situ conservation could be an indispensable tool, but not an aim", First Session Legal Technical Report (note 132), paras. 37 and 59. See also para. 50 of the same Report. Finally see the positions of Australia, the Netherlands, and Norway (according to which in-situ conservation should prevail) and the positions of Brazil, India, Indonesia, and the United States (according to which in-situ and ex-situ measures are equally important), First Session Legal Technical Report Addendum (note 126). 178

179

See e. g. Art. 2, Alternative 2 (e) of the Draft (note 152); Arts. 3.8 and lO.b of the Rev. Draft (note 136); Arts. 6.a and lO.b of the Second Rev. Draft (note 133); Arts. 3.4, 5 bis.l.a.iv and lO.b of the Fourth Rev. Draft (note 136). See also the proposal of Kenya and the United States, First Session Legal Technical Report Addendum (note 126), 7 and 9.

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A n o t h e r interesting feature o f the B i o d i v e r s i t y C o n v e n t i o n is the lack o f lists o f areas o r species t o be protected. P r o v i s i o n s r e g a r d i n g such lists — the so called G l o b a l Lists — w e r e i n c l u d e d i n the drafts o f the C o n v e n t i o n . 1 8 0 D i f f e r e n t o p i n i o n s w e r e expressed d u r i n g the negotiations as t o w h e t h e r i t was necessary and o p p o r t u n e t o establish G l o b a l L i s t s . 1 8 1 T h e decision was m u c h debated. I n the e n d i t was decided t o delete these p r o v i s i o n s . 1 8 2 Particular p r o v i s i o n s are d e v o t e d t o the r e g u l a t i o n , management and c o n t r o l o f the " r i s k s associated w i t h the use a n d release o f l i v i n g m o d i f i e d organisms r e s u l t i n g f r o m b i o t e c h n o l o g y w h i c h are l i k e l y t o have adverse e n v i r o n m e n t a l impacts t h a t c o u l d affect the c o n s e r v a t i o n a n d sustainable use o f b i o l o g i c a l d i v e r s i t y " . ( A r t . 8 . g ) . 1 8 3 T h e measures t o be a d o p t e d are n o t specified i n detail. O n this m a t t e r A r t . 19.3 p r o v i d e s f o r the possible a d o p t i o n " o f a p r o t o c o l setting o u t a p p r o p r i a t e procedures . . . i n the f i e l d o f the safe transfer, h a n d l i n g and use o f any living modified organism resulting f r o m b i o t e c h n o l o g y " . 1 8 4

180 The idea of a Global List of "biogeographic areas of particular importance for conservation of biological diversity" and of a Global List "of species threatened w i t h extinction at global level" was already envisaged in Elements (note 125), Chapters V.A.b and X l l . d . See also Art. 12 of the Draft (note 152); Arts. 13, 22.2.b, 23 paras. 4, 5, 6 and l l . i , 24.1 subparas. (b) and (c), and 25.2.C of the Rev. Draft (note 136); Arts. 13, 23 bis, 24.1 subparas. (b) and (c), and 25.5.C of the Second Rev. Draft (note 133); Art. 13, 22, 23.1 subparas. (b) and (c) of the Fourth Rev. Draft (note 136); Art. 15, 25, and 26.1 subparas. (b) and (c) of the Fifth Rev. Draft (note 133). 181

I t was maintained for instance that "there should be caution in the development of Global Lists, because such a list has the potential to undermine areas not on the list", in Annex I to the Third Session Report (note 132), para. 18. "Some delegations were unconvinced that the preparation of Global Lists was the best way of using the limited financial and human resources available", Fifth Session INC Report (note 161), para. 62. See also the Sixth Session INC Report (note 137), para. 39 ("42"). See also Burhenne-Guilmin et al. (note 122), 52. 182 Seventh Session INC Report (note 158), para. 41. I n its declaration made at the time of the adoption of the text of the Convention France expressed regret for the deletion of the provisions regarding the Global Lists. See UNEP Guidebook (note 120), 17. 183 The need for a "strict regulation on a national basis of intentional or accidental release into the environment of genetically engineered organisms and alien species, including the establishment of testing procedures" was pointed out during the negotiations. "Some delegates stressed the importance of conducting environmental impact assessment before authorizing releases. Such assessments w i l l quantify the risks and benefits of applying genetically engineered organisms for human uses", Second Session Report (note 108), para. 24. 184

See also Art. 8.h and Art. 19.4. The development of a code of conduct on these matters was suggested as a general obligation, see Annex I to the Third Session Report (note 132), para. 5. See also para. 7 of the same Annex. "Some delegations were of the opinion that the question of risks [associated w i t h biotechnology] should be reflected in the convention, while other delegations felt that the possibility of linking the results of the w o r k carried out by other bodies (e. g. U N I D O / W H O / U N E P Working Group on Biotechnology Safety, O E C D and U N C E D ) to the convention at some future stage should be left open. I n this context, some delegations proposed the elaboration of a code of conduct for the safe use of

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The adverse impact of human activities on biological diversity is dealt w i t h also in Art. 7.c on monitoring and Art. 14 (Impact Assessment and Minimizing Adverse Impacts). The provisions on environmental impact assessment have been considered unsatisfactory since they are not sufficiently precise as regards the activities to be assessed, and because of the phrase "as far as possible and appropriate" which may cause disparities in assessment.185 Finally it is interesting to note that the Biodiversity Convention includes the precautionary principle. The precautionary principle is clearly summarized in Principle 15 of the Rio Declaration: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." The inclusion of this principle in the Biodiversity Convention was proposed early in the negotiations. 186 I n the drafts preceding the final version of the Convention the precautionary principle appeared among the Fundamental Principles. 187 Following a proposal of the Group of 77 and China 1 8 8 it was finally shifted into the Preamble. As regards the ex-situ measures it is worth noting that they are to be adopted "preferably in the country of origin" of the resources. They should complement the in-situ measures and, inter alia, favour the reintroduction of threatened species into their natural habitats. O n the other hand, of course, the collection of biological resources for ex-situ purposes must not be detrimental for the ecosystems and in-situ populations of species (Art. 10).

biotechnology. Some delegations felt that irresponsible use of biotechnology should be repaired by compensation to those parties affected, as well as by the carrying out of corrective measures", Final Report of SWGB (note 109), para. 22. O n risk assessment and management see also Sect. I V of the Annex to the same Report. The provisions proposed by the SubWorking Group on this topic were more detailed than those finally contained in the Biodiversity Convention. The need to regulate and control the introduction of man-made and genetically modified organisms had already been envisaged in Elements (note 125), Chapter V.A.i. It was also proposed to adopt an annex containing guidelines for the introduction of genetically modified and alien species, ibid.. Chapter X V I I . See also Art. 5.i of the Draft (note 152); Art. 6.g of the Rev. Draft (note 136); Art. 6.g of the Second Rev. Draft (note 133); Arts. 5 bis.3.d, 6.g and 17 bis paras. 4 and 5 of the Fourth Rev. Draft (note 136); Arts. 7.g and 20.4 of the Fifth Rev. Draft (note 133). 185

O n this point see Boyle (note 122), 15 et seq. 186 pi rs t Session Legal Technical Report (note 132), para. 27. Following this suggestion, the precautionary principle was included in Art. 2, Alternative 2.f of the Draft (note 152). The inclusion of the precautionary principle had been supported by Canada, Finland and Germany, First Session Legal Technical Report Addendum (note 126), 4, 5 and 6. O n the contrary the United States opposed this inclusion, ibid., 9. 187

See Art. 3.9 of the Rev. Draft (note 136) and Art. 3.6 of the Second Rev. Draft (note 133), the Fourth Rev. Draft (note 136) and the Fifth Rev. Draft (note 133). 188 See Appendix I I to the Fifth Rev. Draft (note 133).

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6. The Financial Mechanism Arts. 20 and 21 of the Biodiversity Convention deal respectively w i t h "financial resources" and the "financial mechanism". From the very beginning of the negotiations it was clear that a "convention on the conservation of biological diversity without a functioning secretariat and financial means would be meaningless. Since contributions from contracting parties might not be sufficient to achieve the aims of the convention, the elaboration of fund-raising mechanisms needed to be examinedV 89 O n financial matters it was recognized that those who enjoy most the economic benefits of biological diversity should contribute equitably to its conservation and sustainable management. 190 This was only a minimal common basis for further negotiations. This recognition however was not enough to facilitate the debate on this issue. N o r did it lead to a compromise that was satisfactory both for developing and developed countries. A preliminary problem was to determine the costs of conservation. 191 Studies were carried out and various categories of costs to be met were identified. I n particular it was stated that funds were necessary to cover: "(i) secretariat administrative costs; (ii) global conservation needs; (iii) development and transfer of new technologies and techniques; (iv) national and international efforts to promote the concept of sustainability in the use of biological diversity; and (v) strengthening existing international legal instruments and activities on biological diversity when their basic objectives and/ or activities are very similar or closely linked". 1 9 2 O f course the items of this list which give rise to dispute are not those relating to "normal" administrative costs but those concerning the costs of "concrete" conservation. The estimates of these costs are difficult, indeed at times impossible. 193 The identification of those who must bear these costs is sometimes difficult as well, as we shall see.

189

First Session Report (note 106), para. 18. Second Session Report (note 108), para. 17. 191 O n this point see e. g. the Second Session Report (note 108), paras. 15 and 16, and the Third Session Report (note 132), paras. 15 and 21. 192 Annex I V to the Third Session Report (note 132), para. 8. 193 I n presenting the results of his study Mr. Furtado y consultant, stressed "that the estimates presented in his report might be no more than an order of magnitude of the global conservation cost and that precise costing of certain conservation measures would never be possible. While there was considerable variation in the figures and uncertainty about their basis, the estimated additional cost of priority conservation needs of biological diversity . . . over the next 10-20 years would range from hundred of millions to units of billions of US dollars per year (approximately $1 billion to $10 billion per year)", Third Session Report (note 132), para. 15. 190

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After determining the costs, it was necessary to agree on the institutional form to give to the financial mechanism. According to several representatives the fund established by the amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer 1 9 4 could serve as a good model for negotiation. According to others the Montreal Protocol should not be interpreted as setting a precedent. 1 9 5 Many proposals concerning the financial mechanism were in fact put forward during the negotiations. For instance, it was suggested to add the financial mechanism to the Convention as a Protocol. 1 9 6 The "need for a fund or a funding mechanism" to facilitate the financial transfer was examined. To this end three possibilities for the future mechanism were envisaged: "(i) Co-operative arrangements w i t h existing multilateral and bilateral sources of funding; or (ii) The consideration of a special fund; or (iii) B o t h " . 1 9 7 The mention of a Biological Diversity Fund appeared in a draft article devoted to "operational costs". 198 These costs included the "expenses incurred in the operation of the Conference of the Parties, of the Scientific Committee, [of the Biological Diversity Fund] and of the Secretariat" as well as expenses for technical assistance. According to a subsequent version of this provision, the Biological Diversity Fund was to bear its own expenses and those incurred by technical and scientific cooperation. 199 Later on the scope of the Biological Diversity Fund was extended to "the achievement of the objectives of the Convention by developing countries". Contributions to the

194 The text of the Protocol as adopted in Montreal on 16 September 1987 — reproduced in: Burhenne (note 4), 985:22 / A — did not contain any provision on the Fund (see Arts. 10 and 13). Financial mechanisms were introduced by the Amendment adopted in London on 29 June 1990. The new Art. 10 provides for financial and technical cooperation. The mechanism includes a Multilateral Fund. These provisions should facilitate the developing countries in the fulfilment of their obligations under the Protocol. O n this specific topic see Jason M. Paths, The Multilateral Fund of the Montreal Protocol: A Prototype for Financial Mechanisms in Protecting the Global Environment, Cornell International Law Journal, vol. 25, 1992, 181 et seq.; Peter Lawrence , Technology Transfer Funds and the Law — Recent Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer, JEL, vol. 4, 1992, 15 et seq. 195

First Session Legal Technical Report (note 132), para. 82. See Elements (note 125), General comments on section I X . A . l ; see also Art. 18.2 of the Draft (note 152); Art. 19.2 of the Rev. Draft (note 136); Art. 19.2 of the Second Rev. Draft (note 133). O n different proposals see also Burhenne-Guilmin et al. (note 122), 55 et seq. 196

197 See Elements (note 125), Chapter IX.B; Art. 18.1 of the Draft (note 152); Art. 19.1 of the Rev. Draft (note 136); Art. 19.1 of the Second Rev. Draft (note 133). 198 See Art. 27 of the Rev. Draft (note 136). 199 See Art. 27 of the Second Rev. Draft (note 133). The scope of this provision however was not clear even to the Group of Lawyers who examined it; see note 34 to Art. 27 of the same draft. The same provision is contained in Art. 26 of the Fourth Rev. Draft (note 136) and in Art. 29 of the Fifth Rev. Draft (note 133).

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F u n d were t o be m a n d a t o r y f o r the developed c o u n t r y Parties according t o a f o r m u l a t o be specified i n an A n n e x . T h e F u n d was t o be administered t h r o u g h an agency t o be decided b y the Conference o f the Parties. 2 0 0 A r t . 21 o f the B i o d i v e r s i t y C o n v e n t i o n constitutes the final controversial solut i o n reached at the end o f the negotiations. I t entrusts the Conference o f the P a r t i e s 2 0 1 w i t h the establishment o f an " i n s t i t u t i o n a l s t r u c t u r e " t o carry o u t the operations o f a financial mechanism. T h i s mechanism shall concern " t h e p r o v i s i o n of financial resources t o developing c o u n t r y Parties f o r purposes" o f the B i o d i v e r sity C o n v e n t i o n " o n a grant o r concessional basis the essential elements o f w h i c h are described" i n A r t . 21 (para. 1). D u r i n g the p e r i o d between the e n t r y i n t o force o f the C o n v e n t i o n and the relevant decision o f the Conference o f the Parties, the G l o b a l E n v i r o n m e n t F a c i l i t y ( G E F ) o f the U n i t e d N a t i o n s D e v e l o p m e n t P r o gramme ( U N D P ) , U N E P and the I n t e r n a t i o n a l B a n k f o r R e c o n s t r u c t i o n and D e v e l o p m e n t ( I B R D ) 2 0 2 "shall be the i n s t i t u t i o n a l structure referred t o i n A r t i c l e 21 o n an i n t e r i m basis" ( A r t . 3 9 ) . 2 0 3 T h i s financial i n t e r i m arrangement is o n the c o n d i t i o n that the G E F "has been f u l l y restructured i n accordance w i t h the requirements o f A r t i c l e 2 1 " . 2 0 4 T h e changes i n the G E F s h o u l d concern the deci200

See Alternative 1 of Art. 19 of the Fourth Rev. Draft (note 136), and Alternative 1 of Art. 22 of the Fifth Rev. Draft (note 133). See also Alternative 2 of the same Articles. 201 The Conference of the Parties is one of the organs established by the Biodiversity Convention. I t has inter alia the function of keeping under review the implementation of the Convention (Art. 23). 202 The GEF, established at the end of 1990, is a comparative venture among national governments, the U N D P , the I B R D and the U N E P . I t "is a pilot programme under which grants or concessional loans w i l l be provided to developing countries to help them implement programs that protect the global environment. Four areas have been identified for the operations of the Facility: (i) Protection of the Ozone Layer; (ii) Limiting Emissions of Greenhouse Gases; (iii) Protection of Biodiversity; (iv) Protection of International Waters"; see The World Bank , Establishment of the Global Environmental Facility, I L M , vol. 30, 1991, 1739 et seq. The Pilot Phase of GEF ends in late 1993. O n the GEF see The Global Environment Facility, Our Planet, vol. 3, 1991, 10 et seq. 203 Recourse to the GEF was not well accepted by some representatives; see e. g. the statement of Malaysia: "The Malaysian delegation always maintained that we do not see any role for the GEF in this Convention. It has always been our clear position that the Convention should have its own specific funds, called the Biological Diversity Fund. I n view of that, we wish to express our reservations in the strongest terms that the GEF has been accepted into the draft Convention, even on an interim basis. As we all know, in spite of our best efforts and intentions, these interim measures have the habit of becoming permanent features", Seventh Session INC Report (note 158), para. 62. The Malaysian statement was reaffirmed at the time of the adoption of the text of the Convention. See also Resolution 1 adopted by the Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity (22 May 1992), I L M , vol. 31, 1992, 843. 204 According to the declaration made by India at the time of the adoption of the text of the Convention this condition "implies that for the Global Environment Facility to be the interim institutional structure as per Article 39 would require that it shall (a) function under the authority and guidance of, and be accountable to, the Conference of the Parties; (b)

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sion-making system, the legal framework and the links between the GEF and the environmental conventions. 205 The developing countries aim at equality in membership to the GEF and a more democratic decision-making system. 206 This idea is reflected also in Art. 21.1 of the Biodiversity Convention according to which "the mechanism shall operate within a democratic and transparent system of governance". One of the most controversial provisions of the Biodiversity Convention is the part of Art. 21.1 according to which the Conference of the Parties shall decide on contributions and resources. This provision provoked a reaction from developed countries. A t the time of the adoption of the text of the convention a group of them 2 0 7 made a declaration where they stated "their understanding that the decision to be taken by the Conference of the Parties under Article 21, paragraph 1, of the Convention refers to the "amount of resources needed" by the financial mechanism, not to the extent or nature and form of the contributions of the Contracting Parties". Analogous declarations were made upon signature of the Convention by France, Italy and the United Kingdom. 2 0 8 I n other words the developed country Parties undertake to provide the financial resources in order to facilitate the implementation of the Convention by the developing countries. This is clearly stated in Art. 20.2: "The developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfil the obligations of this Convention and to benefit from its provisions and which costs are agreed between a developing country Party and the institutional structure referred to in Article 21, in accordance w i t h policy, strategy, programme operate within a democratic and transparent system of governance; and (c) have universal membership" (para. 3), UNEP Guidebook , (note 120), 17. 205 A preliminary agreement on the restructuring of the GEF was achieved by its Members on 30 April 1992. The restructuring of the GEF was then discussed in Abidjan on 3 - 5 December 1992. Four further meetings were scheduled for May (in Beijing), September (in Washington), November (probably in Paris), and December (in Geneva). O n this topic see also Mechanism for Funding, EPL, vol. 23, 1993, 48 et seq. 206 See Sergio Marchisio , Gli atti di Rio nel diritto internazionale, R D I , vol. L X X V , 1992, 581 et seq., esp. 602 et seq. 207 They were: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Italy, Japan, Malta, the Netherlands, New Zealand, Portugal, Spain, Switzerland, the United Kingdom, and the United States. Denmark and Finland, together w i t h Sweden and Norway, made however another declaration where they stressed "the special obligations of the developed countries to contribute financially and technologically to enable developing countries to fulfil their obligations under the C o n v e n t i o n . . . . A fair international burden sharing according to each country's means and needs is therefore absolutely crucial for the ultimate achievement of the objectives of the Convention". UNEP Guidebook , (note 120), 16. 208 W i t h regard to financial mechanisms the position of the United States was particularly critical. See the United States' declaration made at the time of the adoption of the text of the Convention, I L M , vol. 31, 1992, 848.

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priorities and eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties". 209 But the developed country Parties reject the idea that an organ of the Convention can state "how much" they owe. The consequences of this position are not negligible. 210 We said above that the provisions on access tg genetic resources and transfer of technology are in a sense weakened by the need to achieve a "mutual agreement". A t first sight this does not seem to be required by Art. 21 as far as the financial contributions are concerned. The decision appears to rest w i t h the Conference of the Parties and not with the single State Parties. 211 The interpretative declarations of developed countries however entrust the ultimate decision of the amount of contributions to the unilateral w i l l (or good will) of the contributing States. It is true that the whole functioning of the Convention cannot depend only on the interpretation of one of its provisions. It is true that the Parties must implement the convention in good faith and developed country Parties cannot shirk their obligations and thwart the achievement of the objectives of the Convention. It is true that the developed countries have the obligation to provide financial resources to developing countries. 212 Once again, however, who is to assess whether the financial contribution of a State is or is not in compliance w i t h the terms of the Convention? Who can say that a State has infringed the Convention because of the exiguousness of its contribution? 2 1 3 The distinction between developed and developing countries is not the only one made by the Biodiversity Convention. Special economic or geographic situations are considered in Art. 20. Art. 20.5 which mentions the "least developed countries" whose specific needs and special situation must be taken into account 209 The necessity of new and additional financial resources is reaffirmed also in Preambular paras. 15 and 16. 210 These consequences also affect the provisions on access to genetic resources, and access to and transfer of technology, since both Art. 15.7 and Art. 16.3 refer to the financial mechanism of Arts. 20 and 21. 211 As said in Art. 21.1, the financial mechanism "shall function under the authority and guidance of, and be accountable to, the Conference of the Parties". 212 It is worth noting that the first drafts of the convention referred to the provision of financial resources as an "obligation" of the Parties, in particular industrialized countries; see Elements (note 125), Chapter IX.A; Art. 17 of the Draft (note 152); Art. 18 of the Rev. Draft (note 136). I n Art. 18.1 of the Second Rev. Draft (note 133) another formula is used: the Parties, "consistent w i t h their capabilities undertake to provide". See also Art. 18 of the Fourth Rev. Draft (note 136); in Alternative 1 of Art. 18.2 the developed country Parties "committed" themselves to provide. 213

According to Marchisio (note 206), 607, in determining their contributions the developed countries must take into account the "need for predictability, adequacy and timely flow of funds" (Arts. 20.2 and 21.2) " i n accordance with the amount of resources needed to be decided periodically by the Conference of the Parties and the importance of burdensharing among the contributing Parties" (Art. 21.1). This means that the financial mechanism can function only on the basis of periodical negotiations among the contributing countries.

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by the Parties in their actions concerning funding and transfer of technology. Again, according to Art. 20.6, the Parties shall take into consideration a the special conditions resulting from the dependence on, distribution and location of, biological diversity within developing country Parties, in particular small island States". Similarly, Art. 20.7 mentions the most environmentally vulnerable developing countries "such as those w i t h arid and semi-arid zones, coastal and mountainous areas". 214 Another category is that of States "undergoing the process of transition to a market economy". According to Art. 20.2 these States "may voluntarily assume the obligation of the developed country Parties".

Conclusion It has been rightly observed that the Biodiversity Convention constitutes "the beginning of a process rather than the end". 2 1 5 Much is still to be done and may be done. The Biodiversity Convention is not a bad convention. It is a convention whose effective implementation may be extremely difficult. First of all the Parties shall demonstrate their good w i l l in complying w i t h all the provisions of the Convention, each Party according to its "real" capabilities. The Biodiversity Convention focuses on the adoption of national strategies, plans and programmes for the conservation and sustainable use of biological diversity (Art. 6). Single national policies for the implementation of the Convention can be useful in meeting local needs. However they might also bring about the risk of an excessive fragmentation of the conservation measures 216 thus thwarting the global scope of the Convention. Technical instruments such as the Global Diversity Strategy 217 could be used as guidelines in order to avoid this risk. The Conference of the Parties, the Secretariat (Art. 24), the subsidiary body on scientific, technical and technological advice (Art. 25), each according to its own competence, should ensure a correct implementation of the Convention. Moreover the Parties are obliged to present to the Conference of the Parties periodical reports on measures that they have adopted to implement the provisions of the Convention 214

For the problems concerning the wording of these provisions see note 168. Burhenne-Guilmin et al. (note 122), 57. 216 O n the problems of national implementation see Cyrille de Klemm, The Implementation of the Convention on Biological Diversity in National Law, Proceedings of the Conference: "Derecho y polftica ambiental en America Latina y el Caribe", held 26-28 May 1993 in Santiago (not yet published). See also Burhenne-Guilmin et al. (note 122), 52. 217 The Global Biodiversity Strategy — prepared by U N E P , I U C N and the World Resources Institute in consultation w i t h F A O and U N E S C O and w i t h the support of several governmental institutions and non-governmental organizations — was introduced by the representative of the World Resources Institute in the last phases of the negotiations of the Biodiversity Convention, Fifth Session INC Report (note 161), para. 7. 215

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and o n h o w effective these measures have been i n meeting the latter's objectives ( A r t . 26). T h i s s h o u l d act as another safeguard f o r the correct application p f the Biodiversity Convention. F u r t h e r conservation needs m i g h t be met b y the conclusion o f n e w treaties i n the f o r m o f p r o t o c o l s t o the C o n v e n t i o n as p r o v i d e d f o r i n A r t . 28. T h e conclusion o f n e w treaties seems easier t h a n the t r a n s f o r m a t i o n o f previous treaties dealing w i t h conservation i n t o p r o t o c o l s . 2 1 8 T h e a d o p t i o n o f a d d i t i o n a l annexes t o the C o n v e n t i o n o n procedural, scientific, technical and administrative matters ( A r t s . 23.4.f and 30) w o u l d also be useful i n i m p r o v i n g its effectiveness. W e have t r i e d t o p o i n t o u t some provisions that are open t o criticism. I t is perhaps t o o early t o say w h e t h e r o u r pessimism is justified o r n o t . I n conclusion, the B i o d i v e r s i t y C o n v e n t i o n demonstrates that the p r o b l e m o f b i o d i v e r s i t y conservation is n o t confined t o the preservation o f w i l d species i n order t o enable o u r children's c h i l d r e n t o see " a blue s k y split b y the majestic C o n d o r and green hill-sides d o t t e d w i t h herds o f animals" — just t o quote the poetic v i e w o f the delegate o f Ecuador d u r i n g the seventh plenary meeting o f I N C . 2 1 9 T h i s is o l d hat. A t present the question includes the conservation o f " i n v i s i b l e " o r even u n k n o w n species, transfer o f technologies, p o v e r t y eradication, sustainable development, and so o n . 2 2 0 I n other w o r d s , b i o d i v e r s i t y conservation 218 Art. 20.2 of the Rev. Draft (note 136) stated that "any existing treaty, convention or international agreement relating to the conservation and sustainable use of biological diversity may be renegotiated as protocols" to the Convention. During the negotiations it was also suggested to set out possible links between the Biodiversity Convention and the F A O International Undertaking on Plant Genetic Resources. This Undertaking, with no legal binding force, was adopted in 1983 by the F A O at its 22nd Conference by Resolution 8/ 83. The text is reproduced in: Hohmann (note 70), vol. I, 114 et seq. It was suggested to adopt the Undertaking as a protocol to the Convention, see the Second Session Report (note 108), para. 14, and the Report of the Intergovernmental Negotiating Committee for a Convention on Biological Diversity on the Work of its Third Session, doc. U N E P / Bio.Div. / I N C . 3 / 11 of 4 July 1991, para. 48; see also the First Session Legal Technical Report (note 132), para. 87. The transformation may give rise to some difficulties. I t is worth noting for instance that according to Art. 1 of the Undertaking it is a universally accepted principle "that plant genetic resources are a heritage of mankind and consequently should be available without restriction". 219

See the Annex to the Seventh Session INC Report (note 158), 26. Clear evidence of the importance of biodiversity is the fact that Agenda 21, adopted at the end of the U N C E D , devotes two chapters to its conservation and to biotechnologies. Chapter 15 concerns in fact the conservation of biodiversity while Chapter 16 is devoted to the "environmentally sound management of biotechnology". U N Conference on Environment and Development, U N doc. A / C O N F . 1 5 1 / 4 (Part II) of 1 May 1992, 107 et seq. Moreover it is worth noting that contemporary to the Biodiversity Convention, but on a regional basis, is the Central America Convention for the conservation of biodiversity (Convenio para la conservaciön de la biodiversidad y protecciön de areas silvestres prioritärias en America Central) adopted in Managua on 5 June 1992 (reproduced in: Y I E L , vol. 3,1992, on disk: Doc. 2). 220

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is part of a wider problem. It is a question of conciliating the aspirations of the developing countries w i t h the interests of the developed countries, a contraposition which characterizes the whole of international environmental law.

Antarctic Tourism: A Challenge to the Legitimacy of the Antarctic Treaty System? B y D a v o r Vidas *

Introduction T h e title o f this article m a y p r o v o k e at least t w o questions; first, h o w t o assess the legitimacy o f the A n t a r c t i c T r e a t y System ( A T S ) 1 ? A n d second, w h a t is the correlation between A n t a r c t i c t o u r i s m and the legitimacy o f the A T S ? Therefore, the purpose o f this article is t w o f o l d . O n the one hand, i t attempts t o c o n t r i b u t e t o the development o f criteria f o r the assessment o f the regime's legitimacy i n international l a w and international relations. 2 O n the other, i t applies these criteria t o the A T S and uses the issue o f A n t a r c t i c t o u r i s m as a test-case f o r the legitimacy o f the A T S .

* Coordinator of the International Antarctic Regime Project and Research Fellow at the Fridtjof Nansen Institute; Member of the Norwegian delegation to the X V I I Antarctic Treaty Consultative Meeting, Venice, November 1992. Views expressed in this article are solely those of the author. I n addition, the author wishes to express his appreciation to Peter Beck , Carola Bjorklund, Douglas Brubaker, Bruce Davis , Richard Herr, Christopher Joyner , Rene Lefeber , Francisco Orrego Vicuna , Maja Sersic y Ann Skarstad , Olav Schram Stokke and Geir Ulf stein for their valuable comments. This article is also published under the auspices of the International Antarctic Regime Project — IARP (1992-1994). The Fridtjof Nansen Institute (Lysaker, Norway) has initiated and coordinates IARP. Other participating institutions are: the George Washington University (Washington D.C., USA), Institute of International Studies — University of Chile (Santiago, Chile) and Institute of Antarctic and Southern Ocean Studies — University of Tasmania (Hobart, Australia). IARP is funded by the Tinker Foundation and the Norwegian government. 1 A definition of the term 'Antarctic Treaty system' as "the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments'' is offered by the 1991 Protocol on Environmental Protection to the Antarctic Treaty, Art. 1(e); text of the Protocol reprinted in International Legal Materials (ILM), vol. 30, N o . 6, 1991, 1461 et seq., [hereinafter Protocol]. 2 These criteria are currently under development in the International Antarctic Regime Project.

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I. Assessment of Legitimacy of an International Regime: A n Attempt towards the Establishment of Criteria H o w to approach the assessment of the legitimacy of an international regime? Isolation of either the legal or the political aspect of legitimacy is a dead end; obedience cannot be induced merely by the rules' formal validity or the intrinsic justness of desired behaviour. 3 Unlike legality, legitimacy depends on whether and to what extent the subjects of the rule believe themselves obliged. Hence, while determining a common set of criteria for the regime's legitimacy, it is essential that they provide for an assessment of a regime's legitimacy both in its legal and political meaning. During this process of crystallization of complementary legal and political criteria for the regime's legitimacy in international law and international relations, we met certain obstacles. First, is it appropriate to determine legitimacy in international law, being aware of its meaning in municipal law? Some international lawyers argue that the term "legitimacy" may seem rather inappropriate for certain international legal institutes, 4 as it conveys the ideas of constitutional rather than international law. 5 Therefore, our first question was whether our task (to develop a set of criteria for the assessment of the regime's legitimacy in international law and international relations, which we may apply to the study of the legitimacy of the ATS) is achievable, due to the sovereignty of States (the main subjects of international law) and without the existence of supranational legal power in the international community. 6 We were not discouraged by this initial conceptual difficulty; sovereignty is limited by law — the State is the creature of the law, not the law 3 Martti Koskenniemi, The Power of Legitimacy Among Nations. By Thomas M. Franck, book review, American Journal of International Law, vol. 86, No. 1, 1992, 175. 4 Cf. Vladimir Golitsyn , Reflections on the Legality of the ATS, in: Arnfinn JorgensenDahl/ Willy Ostreng (eds.), The Antarctic Treaty System in World Politics, London 1991, 343. 5 I n all probability this might have led to Wight's conclusion that, " [ I ] n none of the literature on diplomatic theory or international law is it easy to find a broad discussion of the theory of legitimacy," ( Martin Wight, International Legitimacy, in: Martin Wight, Systems of States, edited w i t h an introduction by Hedley Bull, Leicester 1977,153), whereas JergensenDahl has noted recently that "the situation has not changed much in the intervening years," (Arnfinn Jorgensen-Dahl, The Legitimacy of the ATS, in: Jorgensen-Dahl / 0streng (note 4), 287). However, the process of change has been initiated, see Thomas M. Franck, The Power of Legitimacy Among Nations, New York / Oxford 1990. 6

It is worthwhile mentioning that major reference encyclopedias and dictionaries of international law, such as Max Planck Institute's 12-volume Encyclopedia of Public International Law (1981-1990), Parry and Grant Encyclopaedic Dictionary of International Law (1986) and four-lingual Paenson's Manual of the Terminology of Public International Law (Peace) and International Organizations (1983) contain no explanation of the notion of legitimacy. We found this term mentioned only in Harrap's German and English Glossary of Terms in International Law (1980), but without any explanation except from translation from German into English.

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the creature of the State.7 I n this principle lies the essence of the legal nature of international law. However, its specific legal nature, without the possibility of enforcement by legal sanctions, pays special significance to the applicability 8 of international legal rules. As observed by Orrego Vicuna, international law tends to avoid extreme solutions, because it relies on the harmonization of interests. 9 H o w then, along this line of reasoning, may one derive constitutive elements of legitimacy in international law? O u r hypothesis comprises two complementary elements, aiming to constitute the legitimacy of a particular regime, within a wider framework of the general system of international law: (i) the authority of a regime in the international community to create international legal rules 10 (manifested through consent to the regime by relevant subjects of international law), and (ii) applicability / application of rules (manifested through acceptance of rules by relevant subjects of international law). One may also regard the ability of a regime to exercise control over compliance w i t h its rules 11 as an element of the regime's legitimacy, although we have treated the element of control to be integrated into the wider concept of authority. This might also be viewed as the area of interrelation between legitimacy and effectiveness. Second, in contrast to the hesitancy of some international lawyers on the appropriate use of the term legitimacy in international law, it is frequently used by political scientists in the context of international relations. Still, any survey of 7

Wight uses the word "legitimacy" in the sense in which the word is used by the branch of international law most concerned with legitimacy — the law of the recognition of States (cf. Wight , (note 5), 158). This is the case where the interaction of de facto and de jure is most obvious, expressed through the principle of effectiveness in international law. This approach we shall try to apply below, in order to derive constitutive elements of regime legitimacy in international law. 8 Applicability may be defined here as appropriateness to changing conditions in the international community and harmony with the genius, spirit and objects of international legal institutions (cf. Ballentine's Law Dictionary, 3rd ed., 1969). As such, applicability may be regarded a prerequisite for the effectiveness of international legal rules. 9 Francisco Orrego Vicuna , State Responsibility, Liability and Remedial Measures under International Law: New Criteria for Environmental Protection, unpublished paper, 1992, 48-49. 10 The concept of authority has been recently elaborated and applied to the ATS by Sahurie (see Emilio J. Sahurie , The International Law of Antarctica, New Haven / Dordrecht 1992, especially 130-134, 444-449, 508-511 and 541-545), but to a certain extent discussed also earlier by M. C. W. Pinto / Fernando Zegers Santa Cruz / Scott Hajost/Abdul G. Koroma > in: Thomas A. Clingan Jr. (ed.), The Law of the Sea: What Lies Ahead?, Proceedings of the 20th Annual Conference of the Law of the Sea Institute, Honolulu 1986 (Part V: Authority to Manage Fisheries and Mineral Resources of the Southern Ocean, 341-386). 11 See Control over Compliance with International Law, ed. by Butler , 1991, especially the contribution by Vinogradov on the Verification Machinery in the Antarctic Treaty System, 97-105; also Sahurie (note 10), 134-137.

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political theory w i l l suggest that the concept is a recent innovation; it was not found in the vocabulary of the classics (Hobbes, Locke , Rousseau, Marx). Let us now try to clarify the legal and political aspects of legitimacy in the international arena. There is a legal aspect of legitimacy within international law, as determined above. A n international regime must be accepted by subjects of international law to be regulated by the regime; this can happen explicitly (treaty law) or implicitly (customary law). Furthermore, the acquiescence of the wider international community (third parties) is an important element in the building of legitimacy in international law. 1 2 The discussion w i l l centre on the validity of the rule / regime in question and its applicability to the behaviour it seeks to regulate (whether it is contested or overruled by another set of rules or regimes). 13 Then there is a political aspect of legitimacy, defined not by formal procedure but by attitudes in the relevant realms / constituencies: their sense of the regime as being just or unjust. These constituencies may be individual inhabitants in the states regulated by the regime, it may be third parties (not regulated but still following the spirit of the regime, for instance); it may be among subjects who previously supported the regime but change their mind, etc. Ultimately, of course, the legitimacy of any regime in the international society is critically dependent on the attitudes and behaviour of the subjects of the regime as well as on the acceptance and support of its creators. Thus, as observed by Koskenniemi , legitimacy is an intermediate concept whose very imprecision makes it available to avoid the attacks routinely mounted against the formal (but too abstract) idea of legal validity and the substantive (but too controversial) notion of justness. 14 Hence, it is necessary to formulate a common set of criteria for the regime legitimacy relying on the interplay of formal and material sources of international law. I n order to establish appropriate criteria for an estimation of legitimacy of international regimes, it is necessary to include both static (normative) and dynamic (process) components; thus we made an attempt to translate our constitutive elements of regime legitimacy (i. e.y its authority in the international community and the applicability of its rules) into an analytical approach for the assessment of regime legitimacy encompassing both normative and processual components.

12 This requirement has been applied to the ATS by Sahurie , stating that a realistic examination of the issue should focus on the real effects in terms of shaping decisions of the communication by the Antarctic powers of their common policies to the rest of the world community (Sahurie (note 10), 132). 13 One should not neglect the ultimate importance of the regime's effectiveness — a lack of effectiveness weakens its legal legitimacy: it becomes a "paper tiger". 14 Koskenniemi (note 3), 175.

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These considerations, along w i t h the concepts of the legal and the political aspect of legitimacy as described above, have led us to propose a complementary four-step analysis to assess the legitimacy of an international regime: 1. Role (legal and political) of the regime in the international community; 2. Challenges to the regime; 3. The regime's adaptation to challenges; 4. Resulting institutional changes within the regime and their applicability / application. 1 5 When in such an analysis one arrives at stage 4, the circle is closed; resulting institutional changes w i l l require a fresh estimation of the regime's role in the international community.

II. Antarctic Tourism: A Test for the Legitimacy of the ATS We w i l l apply the above analytical approach to the ATS, elaborating various elements w i t h respect to Antarctic tourism. First , what is the role of Antarctic tourism within the ATS? Antarctic tourism is one of several economic uses (or industries) in Antarctica. Herber X( > identifies both operational uses and uses in the stage of future possibilities ("the proposal stage"): science, harvesting of marine living resources, tourism, and mining of minerals. While science is not a commercial activity, and harvesting of marine living resources occurs in the Southern Ocean, tourism and mining remain as, at least partly, mainland-oriented. Therefore, this section w i l l offer a brief comparison of the role the ATS has given to minerals and tourism issues. Second , what are the main challenges for the ATS posed by Antarctic tourism? They may be divided into two main groups: (i) challenging circumstances, i. e., the nature of the challenge, illustrated by the identification of the main peculiarities of Antarctic tourism; (ii) challenges exerted by subjects , i. e.y internal weaknesses of the ATS concerning the tourism issue have made room for third parties to exert external pressure 15 While it may be said that 1., 3. and 4. constitute criteria for the regime legitimacy concept, being related to the regime itself, it might be difficult to include 2. in the same category of criteria; however, this aspect of the challenges for the regime should not be omitted in our analysis of the regime legitimacy, for its causal link to the regime's adaptation and resulting institutional changes within the regime. 16 Bernard P. Herber , The economic case for an Antarctic world park in light of recent policy developments, Polar Record, vol. 28, N o . 167, 1992, 293; Herber defines economic uses or industries as "the application of scarce land or natural resources, labour, and capital to produce economic output", id.

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on the ATS. While tour companies have adopted their quasi-legislative guidelines on Antarctic tourism, the 1990 and 1991 deliberations on the "Question of Antarctica" in the United Nations have addressed the issue as well. Third , the adaptation of the ATS to these challenges, i. e.y developments within the ATS towards the regulation of Antarctic tourism w i l l be assessed. This section shall place emphasis on the process component, providing us w i t h conclusions regarding the ability of the ATS to adapt to challenges in the given problem area. Fourth , in spite of no resulting institutional changes specifically devoted to Antarctic tourism within the ATS to date, applicability / application to Antarctic tourism of the existing regulation w i l l be considered in so far as it is relevant to this analysis. 1. The Role of Antarctic Tourism within the ATS A single ongoing commercial activity in the Antarctic mainland — large-scale commercial tourism — is threatening by possible adverse environmental impact. Although tourism existed in Antarctica even prior to the adoption of the Antarctic Treaty, 1 7 it is in recent years that booming tourism represents a far more immediate source of pollution than a speculative mining, in which the Antarctic Treaty Consultative Parties (ATCPs) have invested numerous years of negotiations. Comparing the reaction of the ATS to the minerals issue w i t h the reaction to the tourism issue, one may observe that the manner in which the ATS has reacted when faced w i t h a need to regulate a commercial activity in the Antarctic might seem inconsistent if not directly contradictory. O n the one hand, following ten sessions encompassing seven years of negotiations, the ATS has created a complex regime on the regulation of Antarctic mineral resource activities. The Convention on the Regulation of Antarctic Mineral Resource Activities, 18 after its adoption in 1988, was considered a significant development in international environmental law 1 9 and an important contribution

17

United Nations Treaty Series, vol. 402, 71. The first Antarctic tourist flight was made on 22 December 1956 by a Chilean national airline Douglas D C - 6 B w i t h 66 passengers, while the first commercial flight to land at McMurdo Sound was a Pan American Stratocruiser which departed Christchurch (New Zealand) on 15 October 1957. The genuine Antarctic tourism began in 1957/58 when Argentina and Chile ran four cruises involving over 500 tourists to the South Shetland Islands (Debra J. Enzenbacher , Tourists in Antarctica: numbers and trends, Polar Record, vol. 28, N o . 164, 1992, 18; Robert K. Headland , Chronological List of Antarctic Expeditions and Related Historical Events, Cambridge 1989, 363, 371, 379 and 385). 18

I L M , vol. 27, No. 4, 1988, 868 et seq. Henry C. Burmester , Liability for Damage from Antarctic Mineral Resource Activities, Virginia Journal of International Law, vol. 29, N o . 3, 1989, 621. 19

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to Antarctic law. 2 0 However, primarily due to the comprehensive mobilization of environmental groups on the Antarctic minerals issue, 21 this regulation of Antarctic mineral resource activities has never actually entered into force. Instead, in the course of a relatively short period, the Protocol on Environmental Protection to the Antarctic Treaty 2 2 has been adopted, prohibiting any activity related to mineral resources, other than scientific research. It is worthwhile mentioning the fact that no development of mineral resources has ever occurred in the Antarctic, as it has been prevented by a combination of economic, technical and climatic factors. A United States congressional report estimated that at current costs profitable mining could not take place for at least three decades.23 Moreover, the report emphasizes that there are no known mineral deposits of commercial interest in Antarctica. 24 For the time being, mining companies would rather engage in digging up less frozen (and more profitable) bits of the Earth. Hence, the ATS has prohibited a future and potential activity, which might have some imaginable adverse environmental effects, once it becomes a real and actual activity (if ever). 25 O n the other hand, in the same period, i. e., from 1982 to 1991, the representatives of ATCPs have not recommended even JL single measure regarding tourism to their governments, while the number of tourists visiting Antarctica has increased by more than 650 per cent. 26 The Environmental Protocol does not prohibit tourism in Antarctica nor does it regulate tourism thoroughly as a separate issue. The Protocol addresses the issue, together w i t h another human activity in Antarctica not prohibited by its provisions, viz., the conduct of scientific research. Certainly, science does not maintain a "friendly" attitude towards tourism which interferes w i t h scientific research. Tourists visiting Antarctica are shown to exceed in number all the scientists and support personnel from the National Antarctic Programs combined. 27

20 Cristopber C. Joyner, 1988 Antarctic Minerals Convention, Marine Policy Reports, vol. 1, No. 1, 1989, 81. 21

See, e. g., Olav Scbram Stokke , Protecting the Frozen South, Green Globe Yearbook 1992, 133-140; Lucius Caflish, The interaction of science and politics in the field of international relations: the case of Antarctica, Polar Record, vol. 28, No. 165, 1992, 161. 22 The Protocol was adopted at the final session of the X I Antarctic Treaty Special Consultative Meeting, held in Madrid, 3 - 4 October 1991; see Final Act of the Eleventh Antarctic Treaty Consultative Meeting reprinted in I L M , vol. 30, No. 6, 1991, 1460-61. 23

US Congress, Office of Technology Assessment, Polar Prospects: A Minerals Treaty for Antarctica, OTA-O-428 (Washington, D.C., US Government Printing Office, September 1989), 20. 24 Id., 17. 2 * Id. , 20. 26 In 1982/83 a total of 721 tourists visited Antarctica, while in 1990/91 there were 4,842, Enzenbacher (note 17), 17. 27

Id.

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A t this point the question arises whether there is a likelihood of any similar mobilization of environmental groups on the issue of Antarctic tourism to the extent comparable w i t h that on the issue of Antarctic minerals. Due to the interplay of industry, politics and environmental concerns, the most probable answer must be in the negative. Would it be a consistent reaction of the ATS to prohibit Antarctic tourism? Conceivably so. Could that be regarded as a prudent and realistic decision? Emphatically no! The Antarctic tourism industry is in a process of rapid development and substantial growth, proving that Antarctic tourism is a commercially lucrative activity. If the feasibility and profitability of mining in Antarctica were by analogy comparable to tourism, it is questionable whether the Protocol would have been adopted at all. 2 8 Taking into account the present development of the Antarctic tourism industry, its prohibition may not be an effective solution. Besides, it would be difficult to defend a prohibition of tourism to apply to an entire continent, being aware that the Helsinki Conference and Final Act on Security and Co-operation in Europe 2 9 earmarked the freedom of movement of tourism as one of the essential means of communication and understanding and therefore of peace and security. Hence, the primary task of the ATS (and a quite urgent one as well) is neither to prohibit nor to observe unregulated tourism in Antarctica, but to develop adequate legal rules. Its task is to make such choices wisely rather than to pretend that they do not exist. Once Antarctica has been discovered by the tourism industry we cannot "uninvent" it, and tourism — provided it is benign — is undeniably a less harmful use of its resources than mining. I n spite of some earlier activities of the ATCPs towards regulation of Antarctic tourism, 3 0 in 1991 they could still do no more than to express their concern about the possible effect of increased tourism and non-governmental activities in Antarctica. 31 Indeed, plans made by tour companies indicate that the summer of 1991/92 may have been one of the busiest yet for tourism in Antarctica. T w o organizations in particular 32 announced comprehensive programmes which included cruises, flights, and over28

Future developments w i l l most probably provide an answer since prospecting may be done under the guise of scientific research. It is not difficult to imagine what w i l l be the result of growing knowledge about prospecting, higher technological sophistication, and possibly dramatic changes in the demand for hydrocarbons or strategic minerals. W i l l international legal rules remain strong enough to resist political and commercial pressures? 29 I L M , vol. 14, No. 5, 1975, 1292 et seq. 30 E.g., in 1975, when they have acknowledged that tourism is a natural development in the Antarctic Treaty area and that it requires regulation, Recommendation V I I I - 9, Preamble, para. 2, reprinted in: John Heap (ed.), Handbook of the Antarctic Treaty System, Part 2, 7th ed., Cambridge 1990, 2602-2603 [hereinafter Handbook]. 31 Recommendation X V I - 1 3 , Preamble, para. 5, reprinted in SCAR Bulletin, N o . 104, 1992, 12 (also reprinted in Polar Record, vol. 28, No. 164, 1992, 92. 32 Society Expeditions and Adventure Network International, see also below, sub-section 2(a).

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land travel. 33 Consequently, Antarctic tourism has emerged as the most controversial issue for the ATS in the early 1990s. 2. Challenges for the ATS from Antarctic Tourism a) Challenging Circumstances: Main Peculiarities of Antarctic Tourism 3 4 Instead of giving an account of the development of Antarctic tourism, which may be found elsewhere, 35 this subsection highlights the main peculiarities of Antarctic tourism. These peculiarities make Antarctic tourism different from tourism in other parts of the globe, thus focusing the attention on some of its aspects relevant to future regulation within the ATS. aa) Tourism Without a Recipient State International tourism represents an important economic phenomenon which includes a notion of a recipient State. Yet, it is difficult to imagine a recipient State in Antarctica, even if one accepts that sovereignty claims evidence the real existence of sovereignty over the Antarctic. Which State would be a recipient one at the Antarctic Peninsula, or in the unclaimed area? Therefore, nothing but a notion of a recipient base is applicable in Antarctica. bb) Tourism Restricted to Certain Areas Tourism is one of the world's fastest growing industries; tourism is increasing in polar regions. 36 Data indicate that Antarctic tourism in particular is experiencing a substantial period of growth: 33

Tour Companies Opening U p Antarctic to Visitors, Antarctic, vol. 12, No. 5, 162 [hereinafter Tour Companies]. 34 This article concentrates on large-scale commercial tourism, leaving aside as a separate problem, non-governmental expeditions. Large-scale commercial tourism has been identified as the only non-governmental activity that differs significantly from governmental activity in terms of the intensity or pattern of its environmental impacts, see the Antarctic and Southern Ocean Coalition (ASOC), Information paper N o . 6, The Regulation of Tourism in Antarctica, A T C M X V I doc. A N T / X V I / I N F O 77, 11 Oct. 1991 (hereinafter ASOC paper 1991), 1. 35 See, Rosamunde J. Reich, The development of Antarctic tourism, Polar Record, vol. 20, No. 126,1980,203-214; Paul Dudley Hart, The Growth of Antarctic Tourism, Oceanus, vol. 31, No. 2, 1988, 93-100; Nigel Wace, Antarctica: a new tourism destination, Applied Geography, vol. 10, 1990, 327-341; Enzenbacher note 17), 17-22. 36

See in general Conference Communique from the Symposium on Tourism in Polar Areas, held in Colmar (France), 21 -23 April 1991; also Terence E. Armstrong, Tourists visit the N o r t h Pole, 1990, Polar Record, vol. 27, N o . 161, 1991,130; Torben Christensen, Greenland wants tourism, Polar Record, vol. 28, N o . 164, 1992, 62-63.

13*

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number of tourists

37

728 2,581 4,842 6,495

(1) Tourist Visits Concentrated at the Accessible Parts of the Continent Knowing that Antarctica is a continent representing about 9 per cent of the Earth's landmass, one may wonder whether a thousand tourists more or less makes any difference for an entire continent. However, one peculiarity of Antarctic tourism gives grounds for concern: there is a tendency for these visits to concentrate heavily on the Antarctic Peninsula, though a longer circumnavigation of the continent is available. 38 Activities which may have a negligible impact in terms of the Antarctic as a whole, may in fact be of moderate significance in particular regions and of major significance in specific localities. 39 A report of the Scientific Committee on Antarctic Research (SCAR) expressed "growing concern at the increasing frequency of visits by small boats and tourist ships, especially at the Peninsula area, and of flights by private or commercial aircraft," 40 while the ATCPs' recognized, "the necessity to restrict the number of places where large numbers of tourists may land so that the ecological effects may be monitored." 4 1 Yet, the current trend is an increase in landings at a number of specific locations, e.g., during the 1989/90 season, 10 landings were made at Almirante Brown Station, involving a total of 1,191 passengers, while in the 1990/91 season there were 16 landings involving 1,471 passengers, and in the 1991/92 season — 26 landings and a total of 2,889 passengers. 42 This has provoked a reaction by indi37 Antarctic tourism: 1991 -1992 (submitted by the United Kingdom), doc. X V I I A T C M / I N F O 4, 11 Nov. 1992, 7. 38 Ironically, since tour ships cannot navigate through heavy pack ice, the areas they visit are those least representative of Antarctica — sites where there is considerable variety of mountain scenery and marine life and a relatively mild maritime climate, Stephen J. Pyne, The Ice: A Journey to Antarctica, New York 1986, 357. 39 Ian E. Nicholson, Antarctic Tourism — The Need for a Legal Regime?, in: JorgensenDahl/ Ostreng (note 4), 416. 40 SCAR, Report of the Working Group on Logistics (17th Meeting, Leningrad, July 1982), SCAR Bulletin, No. 73, 1983. 41

Recommendation V I I I - 9, Preamble, para. 4, Handbook (note 30). Locations w i t h the highest number of landings and passengers include: Half Moon Island, Whalers Bay (Deception Is.), Almirante Brown Station at Paradise Bay, Port Lockroy (Wiencke Is.), Curville Island, Gonzales Videla / Waterboat Pt. (Paradise Bay), Paulet Island, 42

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vidual States. I n 1987, the U.S. communicated its position to U.S. Antarctic tour operators when projections indicated that Palmer Station could be visited by tour ships as many as thirty days during its twelve week season. Such a volume of tourist visits would clearly inhibit or eliminate scientific research; therefore the United States has decided to limit the frequency of tourist visits to Palmer Station and to restrict the manner in which such visits are conducted. Each U.S. tour company has been restricted to 400 passenger visits each season.43 Still, in the past few years, the number of U.S. tour companies involved in Antarctic tourism has grown significantly. (2) Tourism within the Framework of the Antarctic Protected Area System The comprehensive Antarctic Protected Area system comprises several elements applicable to Antarctic tourism. 4 4 Certain areas may be designated as Antarctic Specially Protected Areas (ASPAs) in order to protect their outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research, 45 while some areas may be designated as Antarctic Specially Managed Areas (ASMAs) in order to assist in the planning and co-ordination of activities, avoid possible conflicts, improve co-operation between Parties or minimize environmental impacts. 46 ASMAs may include areas where activities pose risks of mutual interference or cumulative environmental impacts, and sites or monuments of recognized historic value. 47 Antarctic historic sites and monuments face problems of pressure from tourist visits and need appropriate conservation methods. 48 N o person may enter an Pendulum Cove (Deception Is.), Hannah Point (Livingstone Is.), Arctowski Station, Petermann Islands, Esperanza Station at Hope Bay, Palmer Station (Anvers Is.), Baily Head (Deception Is.), Teniente Marsh Base, Bellingshausen Station and Torgersen Island. The increase in both the number of landings and passengers involved is high in all of these locations. Sources: Compilation of Data on Tourist Visits to the Antarctic Peninsula (submitted by the United States), A T C M X V I doc. A N T / X V I / I N F O 68, 10 Oct. 1991; Data Compilation by the National Science Foundation, Washington, D.C., 25 June 1992. « U.S. Paper, A T C M X I V doc. A N T / X I V / I N F O 43, Oct. 1987. 44 For the most recent measures see Recommendations X V I - 2 to X V I -11, SCAR Bulletin (note 31), 6 - 1 1 (also Polar Record (note 31), 86-91). I n particular see the Annex to the Recommendation X V I - 1 0 , forming the Annex V to the Environmental Protocol, on "Area Protection and Management". 45

Annex V, Art. 3, para. 1, SCAR Bulletin, id., 8-11 (also Polar Record, id., 88-91). Annex V, Art. 4, para. 1, id. 47 Annex V, Art. 4, para. 2. Historic sites and monuments which have been designated as ASP As or ASMAs shall be listed (Annex V, Art. 8, para. 1), id. 48 For an example of the status of Antarctic historic sites, see Janet Hughes, Mawson's Antarctic huts and tourism: a case for on-site preservation, Polar Record, vol. 28, N o . 164, 1992, 37-42. 46

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ASPA or A S M A without a permit issued by an appropriate authority, 4 9 while activities in those areas shall be prohibited, restricted or managed in accordance w i t h Management Plans adopted under the provisions of Annex V . 5 0 Another method was a designation of Sites of Special Scientific Interest (SSSIs);51 a notable example is the Cape Royds Adelie penguin colony, the most southerly known penguin rookery, the survival of which is marginal due to interference by man from 1956 onwards. 52 The reason for designation of two areas on Fildes Peninsula (King George Island, South Shetland Islands) as SSSIs was the unique fossil ichnolites found in these areas that are located close to two permanent scientific stations which have been visited frequently by tourist groups. 53 N o wonder, close to those two areas is a barrack-like 80 bed hostel Estrella Polar at Chile's Teniente Rodolfo Marsh Station, as well as a bank, post-office, school, super-market and even a souvenir store. These facilities are used also by tour groups for access to other parts of Antarctica. 54 There are some plans for landbased facilities for tourists (e. g., Project Oasis), and press reports indicate that the Holiday Inn Chain has sought permission from the Argentine Government to build a hotel at Esperanza, an Argentine base on the tip of the Antarctic Peninsula. 55 A n attempt to build a hotel outside a national scientific base may certainly give rise to some interesting jurisdictional questions. Finally, Areas of Interest were mentioned in Recommendation VII-4, and Areas of Special Tourist Interest were to be listed or defined in Annex B to Recommendation VIII-9. However, no such areas have been designated at the ATS level. A t the national level, the United Kingdom has declared areas of special tourist interest for the Falkland (Malvinas) Islands Dependencies and confined tourists to those areas. 56 Discussion at the X I A T C M revealed that there were doubts on the advisability of designating areas of special tourist interest. 57

49

Annex V, Art. 3, para. 4 and Art. 7 (note 45).

50

Annex V, Arts. 1 and 2, id. SSSIs designated as such by past A T C M s are designated, according to Annex V, as ASP As and shall be renamed and renumbered accordingly (Art. 3, para. 3), id. 52 Recommendation V I I I - 4, Handbook (note 30), Part 3, Section 3.3,3302, also see Impact of Tourism, in John May , The Greenpeace Book of Antarctica, London 1988, 139. 53 Recommendation V I I I - 4 , id. 54 For more detail see Colin M. Harris, Environmental effects of human activities on King George Island, South Shetland Islands, Antarctica, Polar Record, vol. 27, N o . 162,1991,202. 55 Tour Companies (note 33), 165. 56 Falkland Islands Dependencies Conservation ordinance 1975, Art. 3 (e), 14 (1) and Sec. 14 (Schedule C), in: William M. Bush, Antarctica and International Law: A Collection of Inter-State and National Documents, vol. I l l , London 1988, 398-402. 51

57

Final Report of the X I A T C M , Buenos Aires 1981, agenda item 12.

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cc) Tourism Restricted to a Short Period of the Year Except for being limited to certain locations, Antarctic tourism has its peak in a short period of the year, during the polar summer months of January and February. Ocean Cruise Lines, like other tour operators, has announced the itinerary for Ocean Princess in the 1991/92 season: she sails on 24 December, 7 and 27 January. The probability of disturbing wildlife is especially high in the Antarctic summer, during the breeding season. According to the United Nations Environment Programme (UNEP) Report, at the Cape Royds Adelie penguin rookery, a 50 per cent reduction in the birds' breeding population over a six-year period was attributed to stress from repeated visits by tourists (and personnel of a nearby scientific station as well). 5 8 I n this respect it is worth mentioning the Chilean Government Antarctic tourism programme formulated in 1984, as an example of State sponsored tourism; the trips are scheduled to take place so as not to interfere w i t h scientific tasks, the best months being October, November, March and April each year. 59 ^ dd) De Luxe Tourism Another peculiarity of Antarctic tourism is its luxury; cruises are usually taking from 11 days to 3 weeks, and can cost $ 1,000 (USD) a day per person. It is therefore not surprising that most Antarctic cruise tourists come from wealthy countries, the great majority from the U.S., but tourists also come from Europe and Japan. I n the Lindblad Explorer cruises during one season, the average ages of the passengers were between 59 and 63 and there were no children; the majority were recently retired couples in their 50s and 60s 60 . According to a recent offer from the Antarctic tour operators, it appears that Antarctic tourism itself is not exotic enough. Adventure Network International has developed a substantially new program for 1991/92 including guided climbs to different mountains in Antarctica, ski safaris, flying visits to the South Pole (at around $ 25,000 (USD) each), and for a mere $100,000 (USD) they may, according to demand, offer an alternative trip involving snowmobiling through the Transantarctic Mountains and the Ross Ice Shelf to Cape Evans. Other more novel projects include a visit to an Emperor Penguin colony, and the Ellsworths open, a golf tournament at the nine hole course at Patriot Hills on New Years Eve. 61 58

Ocean and Coastal Areas Programme Activity Centre, U N E P : Report on the state of the environment in the Antarctic, December 1989, 18 (quoted in: State of the environment in Antarctica and its impact on the global system, Report of the Secretary-General, U N doc. A / 4 6 / 5 9 0 , 25 Oct. 1991, 8). 59 Chilean Antarctic Tourism Programme, A T C M X I V doc. A N T / X I V / W P / 1 9 , Oct. 1987. 60 The New Explorers: Marketing the world's last unspoilt wilderness, Antarctica, London 1985, 279.

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ee) Predominantly Seaborne Tourism Means of travel to Antarctica limits Antarctic tourism to seaborne and airborne. Commercial cruiselines currently bring the greatest number of tourists to Antarctica; e.g., in 1990/91, 4,698 passengers were shipborne while only 144 were airborne. 62 I n the 1991/92 season, approximately 6,500 tourists visited Antarctica, most of them shipborne. 63 One of the trickiest issues regarding shipborne tourism in Antarctica is how to ensure that tour-company ships registered in countries that are not parties to the Antarctic Treaty meet safety and pollution-control standards. O f course, some ships like Ocean Princess, the flagship of Ocean Cruise Lines, include sophisticated waste disposal systems to protect the environment. However, there is a well-known problem; let us take the example of the latest vessel of the Society Expeditions, the Society Adventurer, commissioned in July 1991: she has an ice classification given by Det Norske Veritas of 1A1 super and — a Liberian registration. This fashion of the P A N - H O - L I B registration is well known in Antarctic waters, too. "Classical" open registers (Panama, Honduras, Liberia) have been joined during the past decade by an increasing number of States (Vanuatu, the Bahamas, Gibraltar, Isle of Man, etc.) to approximately 25 to date. Since 1971, the tonnage of ships flying traditional flags has fallen dramatically. However, the flag State not only possesses jurisdiction over vessels flying its flag, it must also effectively exercise control and jurisdiction in administrative, technical and social matters. Concurrent assertions of jurisdiction by other States on the basis of the nationality of the owner or charterer are also possible. Increased jurisdiction of coastal and port States diminishes partially the traditional primacy of flag State jurisdiction. The present situation in the Antarctic waters appears to be even more complex as difficulties are created by the unclear situation regarding the existence of a coastal State, and thus by lack of port State control. Besides, there are some instances of non-ice strengthened ships visiting Antarctica — the significant risk of accidents associated w i t h such vessels applies to all operators. 64 It has been recommended that a ship's capacity for the Antarctic should not exceed 300 passengers; 150 to 200 passengers is preferable, being the ideal number to control in order to prevent disturbance of any kind. 6 5 A noticeable trend is the increase in the tourist capacity of passenger vessels, e.g., in 1969 the Lindblad Explorer w i t h its maximum 92 berths was one of only a few tourist vessels; in 61

Tour Companies (note 33), 163. Enzenbacher (note 17), 17. 63 Antarctic tourism: 1991-92 (note 37), 7; Bernard Stonehouse, I A A T O : an association of Antarctic tour operators, Polar Record, vol. 28, No. 167, 1992, 322. 64 ASOC paper 1991 (note 34), 6. 65 Australian paper on recommended standards to be met by operators of tourist cruises in the Antarctic, A T C M X I I doc. A N T / X I I / I N F O 6, 12 Sept. 1983._ _ 62

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the 1988/89 season, according to ASOC, two Antarctic tourist ships had a passenger capacity close to 1,000 each, while several others were in the hundreds. 66 Airborne tourism poses another sort of problem. 6 7 Tourist overflights became less popular after the crash of an A i r N e w Zealand D C 10 on Mount Erebus in November 1979, in which all 257 people aboard were killed. The ATCPs have noted that: [Commercial overflights of Antarctica are operating in a particularly hazardous environment, where aircraft operation systems normally available elsewhere in the world are at minimum, and where emergencies could arise which are beyond the capacity of permanent Antarctic expeditions to respond adequately.68 ff) Tourism in Antarctica as an Inherently Hazardous Human Activity A major problem for tour operators is Antarctica's unpredictable nature and harsh environment, where accidents may easily happen. Tourism in Antarctica, like any other human activity there, is inherently hazardous. Considerations on assistance in Antarctica were mainly connected w i t h the activities of non-governmental expeditions, 69 but numerous commercial tourist voyages required emergency assistance as well. 7 0 As noted in a British draft recommendation of 1983, any need for emergency assistance from governmental facilities and resources in Antarctica would at best be disruptive for ongoing programs (financed by public funds for the purpose of conducting scientific research and supporting agreed international scientific projects) and at worst lead to loss of life or critical resources or both. 7 1 These facts are demanding a rethinking of certain projects recently announced by Adventure Network International. 72 ATCPs have noted at the X I I

66 ASOC paper 1991 (note 34), 6. Among larger cruise ships are the Ocean Princess (with its capacity of 480 passengers) and the Daphne (with over 400 passengers). 67 For a detailed account see Jeffery Boswall , Airborne tourism 1982 - 84: a recent Antarctic development, Polar Record, vol. 23, No.. 143,1985,187-191; Charles Swithinbank , Antarctic Airways: Antarctica's first commercial airline, Polar Record, vol. 24, No. 151, 1988, 313316; Charles Swithinbank , Non-government aircraft in the Antarctic 1988/89, Polar Record, vol. 25, No. 154, 1989, 254; Charles Swithinbank , Non-government aircraft in the Antarctic 1990/91, Polar Record, vol. 28, No. 164, 1992, 66; Charles Swithinbank , Non-government aircraft in the Antarctic 1991/92, Polar Record, vol. 28, No. 166, 1992, 232. 68 Recommendation X - 8, Preamble, para. 6, and Art. IV, Handbook (note 30), 2605 - 2606. 69 See, e. g.y U.S. Policy on Private Expeditions to the Antarctic, ATCM X I I I doc. A N T / X I I I / I N F O 16, 10 Oct. 1985. 70 E.g., Lindblad Explorer has twice run aground in the Antarctic Peninsula, requiring expensive and disruptive rescue and repair operations to be mounted. 71 Revised draft recommendation submitted by United Kingdom, Non-governmental expeditions, ATCM X I I doc. A N T / X I I / 4 / R E V 1, 22 Sept. 1983, para. 3 (iii). 72

See above, under II.2(a)(dd).

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Antarctic Treaty Consultative Meetings ( A T C M ) that "tour operators should be covered by adequate insurance and by some form of guarantee that would demonstrate their responsibility for their activities." 73 However, since there was no agreement as to where responsibility for nongovernmental operations should lie, the draft Recommendation which had been tabled was withdrawn. Problems of liability and insurance were vaguely mentioned at the X I V A T C M , but no solution was reached. 74 gg) Tourism Prior to a Comprehensive Tourism Impact Assessment in Antarctica As well-formulated in an Antarctic and Southern Coalition (ASOC) paper presented at the X V I A T C M , 7 5 environmental impacts associated w i t h tourism are essentially no different than those resulting from scientific and logistical activities; any not-prohibited human activity in Antarctica can be expected to involve some similar environmental impacts. However, it is the level and intensity of commercial tourism visits (the placement of large numbers of people in environmentally sensitive locations for short periods of time, and often repetitively), rather than their fundamental nature, that makes them of particular concern. From an environmental perspective, the main impacts tourism is likely to have are: marine pollution from accidents, inadequate waste disposal practices, and harmful interference w i t h wildlife and the natural environment (due to the frequency of visits, concentration of visitors, and lack of awareness). 76 Enzenbacher has pointed out that to date no comprehensive tourism impact assessment has been undertaken in Antarctica, meaning that Antarctic policymakers and tour operators are regulating a commercial industry whose effects are not yet fully understood. 77 The trend is usually in the opposite direction, i. e.y to make environmental impact assessment when damage occurs. For example, out of the numerous research projects of the U.S. Antarctic Program planned for 1991/92, not a single one is related to the environmental impact assessment of Antarctic tourism. T w o projects, however, included environmental impact assessment related to the impact of the Bahia Paraiso oil spill. 7 8 As concisely observed 73

Final Report of the X I I ATCM, Canberra 1983, pt. 29. * Final Report of the XIV ATCM, Rio de Janeiro 1987, pt. 121. 75 ASOC paper 1991 (note 34), 5. 7 Id. , 1. 77 Enzenbacher (note 17), 22. 78 These projects are: "The impact of the 'Bahia Paraiso' oil spill on a Southern Ocean seabird community" (Old Dominion University), and "Sources, distribution, and fate of hydrocarbons in the vicinity of the 'Bahia Paraiso', Arthur Harbour, Antarctica"; see Antarctic Journal of the United States, vol. XXVI, Nos. 2/3, 1991, 6 and 8. 7

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by Davis, "little action is likely to occur until a major disaster happens — then they w i l l belatedly give it attention." 7 9 One international initiative to monitor and assess the effects of tourist activity in Antarctica is Project Antarctic Conservation (now still as a pilot project), based at Scott Polar Research Institute, Cambridge (England), supported by the British Antarctic Survey, and involving Chilean and Argentine collaboration as well as the cooperation of a number of tour operators. The objectives of this research project on management of Antarctic tourism in the Peninsula sector of Antarctica include examination of (i) how parties of tourists are managed afloat and ashore; (ii) impacts they make on plant and animal communities and other facets of environment; and (iii) what management procedures are most likely to be effective in minimizing undesirable impacts between tourists and the environment. 80 A preliminary study of shipborne tourism has been undertaken between late December 1991 and March 1992 on Half Moon Island, South Shetland Islands. 81 Arising from this study, a programme of visitor monitoring is planned as a joint project between British, Chilean, and Argentine scientific institutions during the next five years. 82 N o doubt, policy-makers w i l l benefit from this study, acquiring data to help them understand the impacts generated by large-scale commercial tourism in Antarctica. The encouragement of appropriate research that w i l l aid in assessing the environmental impacts of tourism in Antarctica was also voiced at the Symposium on Tourism in Polar Areas, held in Colmar (France), 21-23 April 1992. 83 b) Challenges Exerted by Subjects aa) Internal Weaknesses within the ATS: Postponement of Serious Consideration of Antarctic Tourism at Antarctic Treaty Consultative Meetings, 1966-1991 The issue of Antarctic tourism has regularly appeared as an item on the agendas at the Antarctic Treaty Consultative Meetings (ATCMs) since the I V A T C M in 1966. However, extracts from the Final Reports sometimes provide evidence of the obvious postponement of serious consideration of the matter, e.g., "owing to a lack of time for full discussion, the matter was referred to the Tenth Consulta79

A letter from Bruce Davis , 6 August 1992. Bernard Stonebouse , Monitoring shipborne visitors in Antarctica: a preliminary field study, Polar Record, vol. 28, No. 166, 1992, 216. 81 On preliminary results see id., 216-217. 82 On plans for future work see id., 217-218. 83 See Conference Communique from the 1992 Colmar Symposium, 2; for a review see Debra Enzenbacher, Tourism in polar areas: a symposium, Polar Record, vol. 28, No. 166, 1992, 246. 80

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tive Meeting" 8 4 ; and "since there was insufficient time to give this matter adequate attention it was referred to the next Consultative Meeting." 8 5 Prior to 1991, the ATCPs have adopted several recommendations on the effects of tourist and non-governmental expeditions in the Antarctic Treaty area (Recommendations IV-27, VI-7, VII-4, V I I I - 9 and X-8). However, they have expressed concern that the existing measures were complex and that a more simple and more transparent set of measures should be adopted to assist operators, in securing effective compliance 86 . Thus far the ATCPs only have adopted the Guidance for Visitors to the Antarctic, 8 7 as they found it helpful to enable the organizers of tourist expeditions to provide individual visitors with a brief guide of good conduct in the Antarctic. 8 8 What about the effectiveness of these measures? The answer was given not within but outside the ATS. bb) External Pressures Exerted on the ATS (1) "Tour Companies Opening U p Antarctic to Visitors" The title of a recently published article in the Antarctic may be indicative as an illustration of contemporary developments: "Tour Companies Opening U p Antarctic to Visitors". 8 9 I n July 1989 four Antarctic tour expedition leaders and naturalists indicated the need for an Antarctic Traveller's Code, explaining that, "at present the [Antarctic] Treaty parties have not fashioned sufficiently specific guidelines to govern tourism and other Antarctic visits." 9 0 They have therefore introduced their own Traveller's Code , w i t h "readilyunderstood and easily-applied guidelines". 91 The Traveller's Code has been criticized by Stonehouse** 1 for not taking account of existing official guidance, including also SCAR's Visitor's Introduction to the Antarctic and its Environment. However, A Visitor's Introduction may hardly be termed "official guidance"; rather it is a "booklet", in need of revision. 93 Despite being translated into several languages (e. g., also Spanish, Russian, Portuguese), and issued by different SCAR's national 84

Final Report of the IX ATCM, London 1977, pt. 12. Final Report of the X I I I ATCM, Brussels 1985, pt. 68. 86 Final Report of the XIV ATCM, Rio de Janeiro 1987, pt. 124. 87 See text in: Bush (note 56), vol. I, London 1982, 387-388. 88 Recommendation X-8, Preamble, para. 2, Handbook (note 30), 2605-2606. 89 Tour Companies (note 33), 162. 90 Ron Naveen et al., Antarctic Traveller's Code, Antarctic Century, vol. 4, 1989, 6. 91 Id. 92 Bernard Stonehouse, A traveller's code for Antarctic visitors, Polar Record, vol. 26, No. 156, 1990, 56-58. 93 Presentation by the President of the Scientific Committee on Antarctic Research (SCAR), Dr. R. M. Laws, SCAR Report, No. 5, 1991, 5. 85

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committees, A Visitor's Introduction was still not available in many SCAR countries. 94 Moreover, A Visitor's Introduction is hardly reaching people outside the scientific community. 9 5 While neither SCAR nor documents from the A T C M s 9 6 were readily accessible to or phrased for the general public, the Traveller's Code — although not very informative — has been widely circulated. 97 A t the 1990 Meeting of the Group of Specialists on environmental affairs and conservation (GOSEAC II), it was noted that groups other than SCAR were providing instructions and guide books on commercial tourism in the Antarctic. 98 Major Antarctic tour operators have agreed on a voluntary code of conduct, based upon a "composite of their experience". The three U.S. tour operators (Society Expeditions, Travel Dynamics and Mountain Travel) adopted in November 1989 their joint guidelines for both operators and tourists. 99 Recent developments brought additional tour operators' "legislation" to regulate Antarctic tourism. I n August 1991 the major Antarctic tour operators 100 founded the International Association of Antarctica Tour Operators ( I A A T O ) . 1 0 1 I n 1991, I A A T O endorsed the guidelines for aircraft and land-based privatesector travel to and within the Antarctic interior. 1 0 2 Today, however, I A A T O ' s 94

Report of the second meeting of the Group of specialists on environmental affairs and conservation (GOSEAC II), held in Sao Paolo, 9-13 July 1990, SCAR Report, No. 7, 1992, 10. 95 Id. 96 Statement of Accepted Practices and Relevant Provisions of the Antarctic Treaty (Annex A to Recommendation VIII-9, Handbook (note 30), 2603-2604), intended for the guidance of all those who visit the Antarctic, as well as the Guidance for Visitors to the Antarctic, formulated at the X ATCM in 1979. 97 See also Stonehouse (note 92), 57-58. 98 SCAR Report, No. 7, 1992, 10. 99 For a short review see Peter J. Beck , Regulating one of the last tourism frontiers: Antarctica, Applied Geography, vol. 10, 1990, 352. 100 Society Expeditions, Inc., Ocean Cruise Lines, Salen Lindblad Cruises, Travel Dynamics, Inc., Adventure Network International, Mountain Travel Sobek and Zegrahm Expeditions. The membership of IAATO grew in 1992 to 13 members, including all the main cruise lines to be operating in Antarctica in the 1992/93 season; Stonehouse (note 63), 322. It now includes also Abercrombie & Kent International, Clipper Cruise Lines, Quark Expeditions, Sea Quest Cruises, South Pacific Expeditions and Transocean Tours. Still, some tour operators sponsoring trips to Antarctica (like Blyth and Company / Marine Atlantic, a Canadian tour operator) are not within IAATO's membership. 101 See in general International Association of Antarctic Tour Operators, Polar Record, vol. 27, No. 163, 1991, 372. It might be interesting to note that SCAR Working Group on Logistics, at its meeting at Hobart, held from 5 to 9 September 1988, suggested that private operators should be encouraged to form an association through which they could receive information and assistance and in that way achieve self-regulation of the tourist industry in the Antarctic, see SCAR report, No. 5, 1989, 44. 102 Text in Antarctica Tour Operators Form Association, doc. XVI ATCM/INFO 20, 8 Oct. 1991.

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self-regulatory framework comprises three sets of guidelines: tour operator guidelines for shipborne operations, guidelines for operators of aircraft and land-based private-sector travel to and within the Antarctic interior and the I A A T O Antarctica visitor guidelines. 103 I n spite of the legally non-binding nature of guidelines, the "punishment" for the I A A T O ' s members not complying w i t h them may be a revocation of their membership in the Association. 104 (2) United Nations and Antarctic Tourism The ATS' critics in the United Nations, most notably Malaysia and Antigua and Barbuda, have raised the issue of Antarctic tourism in the United Nations' deliberations on the "Question of Antarctica" in 1990. While Antigua and Barbuda pointed out that, "there have been noticeable negative impacts, including the disruption of scientific programmes, and vandalism of historic sites," 105 Malaysia accused tourists in Antarctica of "often disturbing local breeding sites, trampling on vegetation or interfering w i t h scientific research," 106 and warned that " w i t h a significant increase in the number of tourists, the fragile sites that are attractive to them w i l l begin to show signs of irreparable damage." 107 The 1991 Report of the Secretary-General, on the State of the environment in Antarctica and its impact on the global system, 108 while assessing, inter alia, the types of negative environmental impact resulting from tourism, stated: Thus far, tourism has had minimal adverse impact on the Antarctic environment since no significant tourist facilities have been constructed. Apart from the obvious problems that tourism may create for scientific programmes, it may also indirectly affect Antarctic ecosystems.109 Hence, the Report did not provide any factual basis for alarming warnings on various negative impacts of Antarctic tourism. Yet, in the 1991 United Nations debate on the "Question of Antarctica", critics of the ATS have regularly included some words on Antarctic tourism when pointing out weaknesses of the ATS. 1 1 0 Some statements were quite vague, such as, e. g. the statement of Nepal, according 103 For a summary of these three sets of guidelines see: Stonehouse (note 63), 322-323. According to Stonehouse, these guidelines are by far the most comprehensive and practical guides to visitor behaviour available for Antarctica, id, 323. 104 Id. , 323. 105 U N doc. A/C.1/45/PV. 40, 17. U N doc. A/C.1/45/PV. 40, 27. IQ 7 Id. los U N doc. A/46/590, 25 Oct. 1991. i° 9 Id., 8. no See statements of Malaysia (UN doc. A / C . l /46/PV. 38, 9-10), Antigua and Barbuda (id., 16), Guinea (id., 27), Indonesia (UN doc. A/C.l/46/PV. 39, 6) and Nepal (id., 14).

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to whicH "pollution and the environmental impact of activities related to . . . tourism in the continent have been documented, and the relevant information has been disseminated." 111 However, no "documents" or "relevant information" have been submitted in support of this statement. But, in spite of the vagueness characteristic of this and similar statements, Germany speaking on behalf of all the ATCPs, has not mentioned Antarctic tourism at all. 1 1 2 Finally, in December 1991 the United Nations General Assembly adopted a resolution, by which — convinced of the need to prevent or minimize any negative impact of human activity resulting from the large number of scientific stations and expeditions, including tourism , in Antarctica on the environment and its dependent and associated ecosystems — the Assembly urges all members of the international community to ensure that all activities in Antarctica are carried out exclusively for the purpose of peaceful scientific investigation. 113 Obviously, the resolution is tending towards a prohibition of Antarctic tourism, thus being divergent from the tour operators' "self-help" regulations. (3) ATS and "Thirds" in Antarctic Tourism I n spite of divergencies, it remains a fact that individuals, companies, nongovernmental organizations (NGOs) as well as international (intergovernmental) organizations are involved in addressing and — to some extent — even regulating Antarctic tourism. 1 1 4 Is it imaginable that such an innocent and even exotic issue may raise doubts about the legitimacy of the ATS to regulate the entire spectrum of activities in the Antarctic? Also, is it appropriate to consider these activities as third parties' acts? The rules of the 1969 Vienna Convention on the Law of Treaties 115 limit the notion of third to relations between States w i t h respect to treaties. Even when some authors give a broader definition of the third to include any subject of international law which is not a party to a given treaty, 1 1 6 it remains crucial to be third in relation to a certain treaty. However, no treaty on Antarctic tourism has been adopted within the ATS. Furthermore, the Antarctic Treaty 111

U N doc. A/C.l/46/PV. 39, 14. See U N doc. A/C.l/46/PV. 38, 31-37. 113 UNGA res. 46/41 A of 6 Dec. 1991, Preamble, paras. 10 and 16. 114 Indeed, some national governments were involved in addressing Antarctic tourism as well, but not outside the group of ATCPs; see, e.g., the Parliament of the Commonwealth of Australia, Tourism in Antarctica, Report of the House of Representatives Standing Committee on Environment, Recreation and the Arts, Canberra 1989. 115 United Nations Treaty Series, vol. 1155, 332 et seq. 116 Budislav Vukas, Relativno djelovanje medjunarodnih ugovora (The Relativity of International Treaties), Zagreb 1975. 112

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made no provision for tourism. The only relevant provision may be found in Article X of the Antarctic Treaty, according to which: Each of the Contracting Parties undertakes to exert appropriate efforts . . . to the end that no one engages in any activity in Antarctica contrary to the principles and purposes of the present Treaty. No one can be interpreted to cover tour operators and tourists, while any activity can be regarded to cover tourism. Some tour operators have literally demonstrated their awareness of the principles and purposes of the Antarctic Treaty: Adventure Network International organized a commemorative media event on 1 December 1991 w i t h a live broadcast from Antarctica to mark the 30 years of the Antarctic Treaty. 1 1 7 Is Antarctic tourism an activity contrary to the principles and purposes of the Antarctic Treaty? N o doubt, it has to be regarded as a peaceful use of the Antarctic. However, it might interfere w i t h scientific research, freedom of which is par excellence the principle and purpose of the Treaty. Tourists are often perceived as a threat to the cause of science, and this is a ground for ATCPs to exert appropriate efforts. 3. Adaptation of the ATS to Challenges During the past decade the norm-creating activity of the ATS has been stimulated to a significant extent by outside factors exerting external pressure on the System. Let us try to evaluate whether tourism in Antarctica is an exception to this mode of responding or whether it is just another case confirming a general rule according to which the ATS functions. a) Regulation of Antarctic Tourism within the ATS prior to 1991 Adopting recommendations seemed the most "appropriate effort" ATCPs may exert; yet, the existing recommendations date back to the 1960s and 1970s, w i t h the exception of Recommendation XVI-13, formulated at the Bonn A T C M in October 1991. As noted by Beck y m the regulation of tourism has "never been approached systematically" by ATCPs, while Boczek has criticized ATCPs' regulations pertaining to Antarctic visitors for a "lack of conceptual rigor". 1 1 9 Also, the manner in which ATCPs have tried to regulate Antarctic tourism through recommendations may sometimes seem inadequate; e. g., Recommendation V I - 7 117

Tour Companies (note 33), 163. Beck (note 99), 352. 119 Boleslaw Adam Boczek , The Legal Status of Visitors, Including Tourists, and NonGovernmental Expeditions in Antarctica, in: Rüdiger Wolfrum (ed.), Antarctic Challenge III: Conflicting Interests, Cooperation, Environmental Protection, Economic Development, Berlin 1988, 465. 118

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simply paraphrased Article X of the Antarctic Treaty by recommending governments to: [E]xert appropriate efforts to ensure that all tourists and other visitors do not engage in any activity in the Treaty area which is contrary to the principles and purposes of the Antarctic Treaty or Recommendations made under it. 1 2 0 Auburn has rightly observed that exhortations of this type are "too vague to be enforceable". 121 To what extent, if at all are recommendations on Antarctic tourism enforceable? The contents of provisions in recommendations I V - 2 7 , V I - 7 , V I I - 4 , V I I I - 9 and X - 8 have been well synthesized by Heap 122 and Beck 123, while FR Germany has summarized in 1985 its practices based on recommendations on Antarctic tourism in an information circular. 124 Basically, recommendations include provisions on the need to be aware of the ATS provisions, availability of prior information, protection of scientific research, prevention of adverse environmental impacts and promotion of self-sufficient tourism. The enforceability of recommendations is a general dilemma for any commentator of the ATS. I do not intend to enter here into an indepth discussion on the legal nature of recommendations regarding conflicting views of various authors, i.e., whether they should be considered as resolutions similar to those adopted by international organizations or as treaties. Beck is of the opinion that "the hortatory nature of recommendations means that ATCPs have to rely upon persuasion and exhortation rather than compulsion," 1 2 5 and a similar view is that recommendations provide non-binding rules and codes of accepted practices. 126 O n the contrary, however, Nicholson claims that an act of any national of an A T C P contrary to recommendations' provisions would be a breach of its international obligation. 1 2 7 However, Orrego Vicuna , who provides more detailed analysis of the issue, 128 concludes that it is the specific content of a recommendation which w i l l determine whether its legal effects are mandatory or merely recommendatory. 1 2 9 One may not exclude the possibility that the same kind of instrument may have a mandatory legal effect on some occasions, while on other occasions 120

Recommendation VI-7, para. 1, Handbook (note 30), 2601-2602. Francis M. Auburn , Antarctic Law and Politics, London 1982, 280. 122 Handbook (note 30), Section 2.6. 123 Beck (note 99), 345-346. 124 ATCM X I I I doc. A N T / X I I I / I N F 16, 10 Oct. 1985. 125 Beck (note 99), 348. 126 ASOC paper 1991 (note 34), 6. 127 Nicholson , op. cit. } 419. 128 Francisco Orrego Vicuna, Antarctic mineral exploitation — the emerging legal framework, Cambridge 1988, 57-67. 129 Id. , 67. 121

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it may be used for mere recommendatory measures. 130 This conclusion may be proved correct by the study of State practice distinguishing recommendations of a hortatory nature from recommendations requiring legislative action. 131 The legal situation w i t h respect to recommendations in the municipal law of Australia and the United Kingdom is quite similar; recommendations requiring legislative action are treated as interim guidelines until the necessary legislation enters into force, at which time they are substantially approved. The procedure is more simple for other recommendations, as there is no requirement for legislative action apart from a technical procedure within the executive branch. Such differentiation of recommendations is, basically, similar in the United States legal system as well. Perhaps the study of the language used in recommendations is not a decisive element in determining their legal nature, although it might indicate their mandatory or recommendatory character. Moreover, by using the semantic interpretation it is possible to find both mandatory and recommendatory elements in a single recommendation; let us take Recommendation V I - 7 as an example. The wording of paragraphs 1 and 2 might suggest a recommendatory character ("Governments should exert appropriate efforts . . . in so far as they are able"), while the phrasing of paragraph 2 (c) could suggest a mandatory nature ("visitors must not enter Specially Protected Areas and must respect designated historic monuments"). 1 3 2 Furthermore, paragraph 3 might be interpreted to embody both mandatory and recommendatory elements ("Advance notice shall be given, in so far as is possible"). Finally, paragraph 4 provides an extremely interesting formulation: " U n t i l such time as this Recommendation becomes effective . . . it shall be considered, as far as possible, as a guide-line." Argumentum a contrario, Recommendation VI-7 shall acquire a mandatory legal nature upon becoming effective. However, Beck considers the key factor of the enforcement to be United States and Chilean government control over runway facilities and fuel supplies rather than the force of the ATS recommendations, as these facilities and fuel have to be transported at great expense to Antarctica and can be obtained readily only from the United States and Chile by non-governmental users. 133 Still, how in such a manner is it possible to enforce, e.g., Recommendation VI-11 recognizing the special scientific interest of new islands formed by geological processes in the Antarctic, and thus recommending to the ATCPs to use their best endeavour to 130 id. See, e. g.y relevant procedures leading to the approval of the ATCM recommendations in the United Kingdom (ATCM XIV doc. A N T / X I V / I N F / 5 , 5 Oct. 1987), Australia (ATCM XIV doc. A N T / X I V / I N F / 1 2 , Oct. 1987) and the United States (ATCM XIV doc. A N T / X I V / I N F / 5 3 , Oct. 1987). 132 Regrettably, because most of these areas remain unmarked by boundaries or posts, it is difficult to give them special protection, even from the well-intentioned visitor. 131

133

Beck (note 99), 348.

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prevent tourists from landing on such islands? Besides, any enforcement depending on a voluntary policy might appear arbitrary and thus discriminatory in some instances, which is not acceptable for any consistent legal regulation. Obviously enough, a disperse regulation, scattered in a number of recommendations (with an unclear legal nature), both unsystematic and incomplete, was not the most appropriate solution the ATS could have offered to regulate Antarctic tourism. b) Recent Developments within the ATS towards the Regulation of Antarctic Tourism: A n Overview of A T C P Activities in 1991 and 1992 Discussions on Antarctic tourism, initiated at the X I Antarctic Treaty Special Consultative Meeting (ATSCM), were considerable at the X V I Bonn A T C M , in October 1991, and one of the major agenda items at the X V I I Venice A T C M , in November 1992. aa) The X I Antarctic Treaty Special Consultative Meeting It may be asserted that the year 1991 represented a turning point regarding A T C P activities in the regulation of Antarctic tourism. Stimulated by the substantial growth of Antarctic tourism as well as by the conclusion of negotiations to draft the Environmental Protocol, some ATCPs took first steps to bring up the issue of a future Antarctic tourism regime. A t the X I A T S C M (second session, held in Madrid, 22 - 30 April 1991) two working papers were submitted by Chile 1 3 4 and France. 135 Many delegations have participated in the discussion on the subject, 1 3 6 finally agreeing to form an informal group on Antarctic tourism. The group has accepted several principles which were, however, not a significant innovation in comparison to earlier recommendations on the subject (e.g., on the promotion of self-sufficient tourism, availability of prior information, prevention of adverse environmental impacts, etc.). However, the consciousness of the rising need for adequate regulation of Antarctic tourism by ATCPs has been created.

134 Governmental and non-governmental activities concerning the protection of the Antarctic environment (draft Annex to the Protocol), doc. XIATSCM/2/WP. 20,23 April 1991. 135 Tourist activities in Antarctica and the protection of the environment, doc. X I ATSCM / 2/WP. 3, 22 April 1991. 136 In particular Australia, Argentina, Brazil, Chile, China, Ecuador, France, Germany, Italy, Japan, New Zealand, Norway, Soviet Union, United Kingdom, United States.

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bb) The X V I Antarctic Treaty Consultative Meeting, Bonn 1991 This awareness was expressed in a Statement of the Chairman of the X V I A T C M in Bonn, on 7 October 1991, on the occasion of his election, stating that, "There are still some sensitive and tricky problems like . . . how to tackle tourism in Antarctica". 1 3 7 Consequently, tourism appeared as a busy agenda item at the X V I A T C M ; numerous working papers as well as information papers were received. Working papers were submitted by France, 138 Chile, 1 3 9 Japan, 140 I t a l y 1 4 1 and by Germany jointly w i t h Japan. 142 Several information papers were submitted by the United Kingdom 1 4 3 and the United States. 144 Pursuant to Rule 35 of the revised A T C M Rules of Procedure (1987), the ATCPs have invited the World Tourism Organization ( W T O ) , 1 4 5 the International Union for the Conservation of Nature and Natural Resources ( I U C N ) and ASOC to appoint experts to assist in the discussion of the agenda item on Antarctic tourism and non-governmental expeditions. 146 Information papers were presented by A S O C 1 4 7 and W T O . 1 4 8 137

Doc. XVI ATCM/INFO 66, 10 Oct. 1991; the open question of liability regulations for environmental damage was mentioned in this statement together with tourism. 138 Tourism and other Non-Governmental Activities in Antarctica and Environmental Protection, doc. XVI ATCM/WP 2, 25 Sept. 1991. 139 Tourism and other activities in Antarctica, doc. XVI ATCM/WP 29, 8 Oct. 1991. 140 Japanese Proposal on Tourism and Non-Governmental Expeditions, doc. XVI ATCM/ WP 34, 9 Oct. 1991. 141 Tourist Activities in Antarctica, doc. XVI ATCM/WP 37, 9 Oct. 1991. 142 Draft Recommendation: Tourism and Non-Governmental Activities in the Antarctic Treaty Area, doc. XVI ATCM/WP 41, 10 Oct. 1991. 143 Docs. XVI ATCM/INFO 19, 20 and 73. Doc. XVI ATCM/INFO 73 were a re-issue of working papers previously presented by the United Kingdom at the XV ATCM in Paris (doc. XV ATCM/WP 33) and at the XVI ATCM in Rio de Janeiro (doc. ANT/XIV/ 6). 144 Docs. XVI ATCM/INFO 58, 59 68 and 84. 145 WTO was established in 1970 and came into operation in 1975. It is an intergovernmental organization, with its headquarters in Madrid. WTO is a successor to the International Union of Official Travel Organisations, a non-governmental organization created in 1925. It operates in close contact with the U N and the U N Specialized Agencies, especially the UNDP as well as with the WTO's "Affiliate Members*. The "Affiliate Members" Committee is composed of representatives of the most important non-governmental organizations, national enterprises and associations concerned with tourism. Thus the WTO has also created an original form of cooperation with the private sector which may go well beyond the usual cooperation established by intergovernmental organizations with non-governmental organizations; see Pierre Vellas , Tourism, in: Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, Inst. 9, 1986, 377-378. 146 Draft Final Report of the XVI ATCM, Bonn 1991, doc. XVI/ATCM/WP 56/Rev. 1, 18 Oct. 1991, pt. 5. 147 Doc. XVI ATCM / I N F O 77.

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Concern about the possible effects of increased tourism in Antarctica has caused some degree of urgency to the ATCPs dealing w i t h the matter. Tourism has been recognized as a high priority in terms of Antarctic environmental protection. 1 4 9 However, the environmental impact of Antarctic tourism has not yet been sufficiently evaluated. The Japanese delegation, therefore, recognized the necessity to make a survey (both by individual countries and by environmental experts meeting) and to make clear the actual situation before discussing how to regulate those activities. 150 Moreover, it was the United Kingdom's view at the X V A T C M , repeated at the X V I A T C M , that a fundamental look at the problems posed by the effects of tourism is a matter which w i l l need more time than is available at a regular A T C M . This observation by the United Kingdom was in the context of a view that simple codification of what has been agreed in the past is unlikely to provide a regulatory framework adequate to ensure the environmental sustainability of tourism. 1 5 1 The United Kingdom proposed, as a first step, that the ATCPs should attempt to define the scope of the matter by a list of questions. 152 While some ATCPs, such as Chile, France and Italy, have quite forcefully advocated the formulation of an annex on tourism to the Protocol, there were also some different views of the ATCPs expressed at the X V I A T C M . Furthermore, ASOC argued that — in order to be consistent w i t h the comprehensive environmental regime established by the Protocol — an additional annex specifically confined to non-governmental activities is not required, given that the Protocol and its annexes apply to all human activities in Antarctica. 153 Conversely, one problem of the regulation of tourism in an annex to the Protocol is also that some issues are slightly beyond the scope of the Environmental Protocol, although they are connected to it (e. g., reimbursement of costs caused by emergency assistance). The Meeting established a sub-working group, which studied the proposals for a future annex to the Environmental Protocol. The sub-working group submitted to Working Group I a draft Recommendation on tourism and non-governmental activities in the Antarctic Treaty area, subsequently adopted by the A T C M as Recommendation X V I - 1 3 . 1 5 4 The Recommendation embodies a trend towards a future annex to the Environmental Protocol, on the comprehensive regulation of tourist and non-governmental activities in Antarctica. 155 Recommendation X V I 13 lists several environmental and operational issues to be taken into account by Doc. Doc. 150 Doc. 151 Doc. 152 Id.

XVI ATCM/INFO 87. XVI ATCM/WP 41, 10 Oct. 1991. XVI ATCM/WP 34, 9 Oct. 1991. XV ATCM/WP/33; re-issued as doc. XVI ATCM/INFO 73, 10 Oct. 1991.

153 A S O C paper 1991 (note 34), 1.

154 Draft Final Report of the XVI ATCM, (note 146) pts. 110 and 111. 155 See Recommendation XVI-13, para. 1 (note 31).

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the informal Venice meeting of the ATCPs. 1 5 6 Environmental issues include: implementation of the Environmental Protocol and its Annexes; number of tourists / carrying capacity; homologation of standards relating to vessels; permanent infrastructure for tourists; concentration / dispersal of tourist activities; access to unexplored areas. Operational issues include: notification and expansion of information to be exchanged; system for granting permission to visit stations; selfsufficiency; insurance, including search and rescue insurance; information obligation of Parties; preparation and training of tour guides, and visitors' guides; examination of the need for specific kinds of control and monitoring; requirements for organizational procedures. A n informal meeting of ATCPs, to address primarily these issues, and to be convened w i t h a view to making proposals to the X V I I A T C M , was to begin its work in Venice on 9 November 1992. 157 The list of N G O s ' representatives invited to attend the Venice informal meeting of the ATCPs on the regulation of tourism has been significantly lengthened. Apart from SCAR, I U C N and ASOC (and W T O as an intergovernmental organization) it included the Council of Managers of National Antarctic Programs ( C O M N A P ) and — notably — representatives of the tourism industry from I A A T O 1 5 8 and the Pacific Asia Travel Association ( P A T A ) . 1 5 9 cc) The Informal Antarctic Treaty Meeting on Tourism, Venice 1992 Obviously, high expectations for significant moves toward the establishment of a regime for Antarctic tourism led the ATCPs to convene the Informal Meeting on Tourism, which was held in Venice, 9-10 November 1992. The reason behind it was the need for the formulation of A T C P policy w i t h regard to Antarctic tourism. However, some might be surprised by the sharp polarisation of the ATCPs concerning the issue of a regime for Antarctic tourism. It became entirely clear in Venice that the approaches of various ATCPs are in conflict due to their basic conceptual differences. 156

See Recommendation XVI-13, para. 2, id. Recommendation XVI-13, paras. 1 and 3, id. 158 In this respect, Stonehouse observed that "the Antarctic tourism industry, consistently maintaining its own standards of responsibility for three decades, has surely earned a hearing in the law making process. With well-considered policies based on extensive field experience, IAATO seems highly qualified to represent that industry's views"; Stonehouse (note 63), 324. The same author has suggested that IAATO should work in similar relation to the ATS as the Tourism Industry Association of Canada (TIAC) works closely with the government of Canada, id 323. 159 PATA is a non-profit corporation and is comprised of over 2,100 worldwide travel industry organizations, including 66 government, state and city tourism bodies and over 500 travel agencies. Nearly 17,000 individual volunteers are members of 74 PATA Chapter organizations worldwide. 157

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From the positions announced at the Informal Meeting, one may easily conclude that the main polarisation was due to different views of the two groups of ATCPs; the "Group of Five" (Chile, France, Germany, Italy and Spain) and the United States and New Zealand. The United Kingdom maintained a special position, partially in disagreement w i t h both groups (perhaps to a larger extent in disagreement w i t h the "Group of Five"), while Australia tried to uphold a middle position — one which, eventually, the others were not willing to accept. 160 Several other ATCPs were inclined to give their support to one of the conflicting views, or were close to some of them; Belgium was close to the "Group of Five", while the Netherlands seemed to give mild support to the same Group, emphasizing however that its position was not yet fully defined. Norway gave, to a certain extent, support to the United Kingdom's approach, while Argentina and Japan expressed moderate views on the necessity of further clarification of the issue. Russia entered into discussion on several specific questions. 161 A l l other ATCPs remained silent. Surrounded by the multiple division of the ATCPs, the tourist industry — represented by I A A T O and P A T A — offered its cooperation and the benefit of its thirty-years of experience in Antarctic tourism. I U C N was supportive of the proposal put forward by the "Group of Five", while ASOC gave full support to the United States position. W T O and C O M N A P also expressed their views. Thus, the tourism issue was discussed among the narrow group of nine ATCPs, w i t h the occasional involvement of the few additional ATCPs and several N G O s . This has not only characterized the discussion at the Informal Meeting, but the discussion of the tourism issue at the X V I I A T C M as well. We shall now try to condense the main positions: O n behalf of the "Group of Five", France introduced a preliminary draft Annex V I to the Protocol, on regulation concerning tourism and non-governmental activities. I n support of this proposal, France put forward three basic arguments, according to which: — Antarctic tourism needs a specific policy; — this policy shall be contained in one document, not scattered throughout a number of them; — this document shall have legally binding force. Therefore, France suggested that a preliminary draft Annex, as proposed by the "Group of Five", be taken as a basis for further discussion. 160

Thus illustrating how intensive is the polarisation between the ATCPs with regard to the issue of Antarctic tourism. 161 Most notably, proposing compulsory insurance for tourism and non-governmental expeditions in Antarctica, a portion of which would be channelled for purposes of financing national scientific programs in Antarctica.

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This proposal met w i t h strong opposition. It was the United States' view that, having in mind that the Protocol applies to all human activities in Antarctica in a comprehensive manner, any new regulation specifically devoted to tourism would imply the negligence of the Protocol. According to this view, any new regulation of tourism would be either a duplication of provisions already existing in the Protocol, or inconsistent w i t h the Protocol. However, efforts should be directed to the overriding priority of the ATS: bringing into force the Protocol, which is a landmark agreement for the ATS, not neglecting it by the tourism issue. I n support of this position, the United States highlighted relevant provisions of Recommendation X V I - 1 3 . N e w Zealand's position was close to the latter, suggesting that the word "activities" throughout the Protocol shall be — for the purpose of Antarctic tourism — read as "tourism", thus providing an adequate regulation. The United Kingdom stated that there is no disagreement amongst the ATCPs that tourism and non-governmental activities must be regulated; it would be, therefore, not a question of whether but how it should be regulated. Prior to deciding whether the existing regime, as embodied in recommendations, is adequate or not, an assessment should be made of: (i) the nature and scale of the potential problems and impacts of tourism and non-governmental activities; and (ii) whether existing provisions adequately addresses those potential problems and impacts. The United Kingdom saw the task of the Informal Meeting in developing an explanation on how the Protocol addresses the issue of tourism, and — if there are shortcomings in the Protocol — how to solve these. However, in response to the French statement, the United Kingdom argued: — there is no need for a specific policy for Antarctic tourism; — the ATS already has one document: the Protocol; — the ATCPs' task is to give the Protocol legally binding force, to implement it and enforce it. The position of Australia was that the need exists to develop a clear statement (or guidance) which can apply to tour organizers, but not a need for a new legal instrument. Hence, Australia maintained the view that significant new obligations are not needed, rather the existing regulation shall be explained in a better, perhaps synthesized manner. Also, Australia warned of the risk in over-regulating tourism activity from the ATCPs, as self-regulation is the necessary component of tourism. Intensifying consultations w i t h the tourism industry would, in Australia's view, offer a more appropriate method of managing Antarctic tourism. However, any regulation shall be applied equally to all forms of non-governmental activities, regardless of their size. I n this respect, the Protocol does provide a basic framework, but the question of its implementation to tourist activities is rather complex.

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The Meeting examined the issues identified in Recommendation XVI-13, and the result, as reported to the X V I I A T C M , was "without arriving at any specific conclusions". 162 During this examination, statements were often flavoured w i t h divergencies between the ATCPs, while it was also obvious that the issues listed in Recommendation XVI-13 were not always the most appropriate ones; w i t h regard to some of them nobody took the floor 1 6 3 , while concerning the others there was uncertainty about their real meaning, 164 or uncertainty whether there is any need at all for a discussion of the issue. 165 However, one may advocate that fundamental legal problems should be resolved prior to any operational issues which would otherwise lack an adequate basis. A t this point a set of interconnected legal questions must be resolved in the following order of priorities: information and licensing system , competent authority to issue licences ,166 as well as associated issues of insurance , liability and jurisdiction. 167 Furthermore, control of activities of third parties is an issue worth deeper consideration, as observed by the German delegation. Some of these questions involve extremely difficult problems of international law when applied to the Antarctic reality. Moreover, the issues involved are of an interdisciplinary legal nature; apart from international law, they include rules of maritime law and private international law. 1 6 8 Obviously, regulation of Antarctic tourism may not be limited to the level of environmental and operational issues without tackling the more complex legal problems. dd) The X V I I Antarctic Treaty Consultative Meeting, Venice 1992 169 The Venice A T C M started, one might say, quite ambitiously — if the large quantity of working and information papers 170 could be regarded as an indication 162 Draft Final Report of the XVII Antarctic Treaty Consultative Meeting, doc. XVII ATCM/WP 34, 19 Nov. 1992, para. 102. 163 I. e.y "examination of the need for specific kinds of control and monitoring" (Recommendation XVI-13, para. 2 (b) (vii)), (note 31). 164 I. e.y "information obligation of Parties" (Recommendation XVI -13, para. 2 (b) (v), id.). 165 I. e.y "requirements for organizational procedures" (Recommendation XVI-13, para. 2 (b) (viii), id.). 166 See elaboration on the role of the Committee for Environmental Protection in French working paper, doc. XVI ATCM/WP 2, 25 Sept. 1991. 167 Some of these questions were elaborated in working papers submitted by Chile (doc. XVI ATCM/WP. 29, 8 Oct. 1991) and by France (doc. XVI ATCM/WP 2, 25 Sept. 1991). 168 See in general Beverly May Carl , The Need for Private International Law Regime in Antarctica, in: Christopher C. Joyner/ Sudhir K. Chopra (eds.), The Antarctic Legal Regime, Dordrecht 1988, 65-95. 169 The Meeting was held from 11 to 20 November 1992. 170 In total, 6 working papers and 15 information papers were submitted for consideration under this agenda item.

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of ATCPs' ambitions to move ahead w i t h the tourism issue. Among these papers, crucial ones were submitted by the "Group of Five" (Chile, France, Germany, Italy and Spain), 171 the United States 172 , the United Kingdom 1 7 3 and Australia. 174 Besides, Russia elaborated on its proposal for compulsory insurance, put forward at the Informal Meeting, by submitting a working paper. 175 Several information papers were submitted by A S O C , 1 7 6 I A A T O 1 7 7 and I U C N . 1 7 8 Again, to a large extent resembling the discussion at the Informal Meeting, a relatively small group of ATCPs led discussions on the tourism issue, w i t h the occasional involvement of others. Main positions remained unchanged, while the polarisation between them became even more strongly accentuated. Apart from the ATCPs which have participated in discussions at the Informal Meeting, Sweden announced its position, which appeared to be close to the one held by the United States. Some non-ATCPs also took the floor; Austria supported the Australian view, while Greece gave its support to the position of the United States. 179 Australia rightly noted that there is still a large body of undecided opinion among the ATCPs. O n the other hand, there was a small body of firmly decided opinion; the proposal for the method of work of Working Group I was put forward by the Chairman of the Group (Pieter Verbeek , the Netherlands), pursuant to short informal consultations w i t h four delegations: France, N e w Zealand, Spain, and the United States — thus illustrating where the main disagreement lies.

171

Preliminary draft: Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty; Regulation concerning Tourism and Non-Governmental Activities, doc. XVII ATCM/WP 1, 9 Nov. 1992. 172 Antarctic Tourism and the Environmental Protocol, doc. XVII ATCM/WP 6, 9 Nov. 1992. 173 The Regulation of Tourism and Non-Governmental Activities in the Antarctic Treaty Area, doc. XVII ATCM / WP 2,9 Nov. 1992, together with the related information document: The Regulation of Tourism and Non-Governmental Activities in the Antarctic Treaty Area (II), doc. XVII ATCM/INFO 6, 11 Nov. 1992, as well as A Revised "Code of Guidance for Visitors to the Antarctic", doc. XVII ATCM/WP 3, 9 Nov. 1992. 174 Tourism and Non-Governmental Activities in the Antarctic Treaty Area, doc. XVII ATCM/WP 14, 11 Nov. 1992. 175 Compulsory Insurance of Tourism and Non-Governmental Activities in the Antarctic Treaty Area, doc. XVII ATCM/WP 23, 12 Nov. 1992. 176 Regulation of Non-Governmental and Tourism Activities in Antarctica, doc. XVII ATCM/INFO 52, 12 Nov. 1992. 177 Tourism in Antarctica — Guidelines for a Low-Impact Presence, doc. XVII ATCM/ INFO 65, 16 Nov. 1992; Educational Program on Tourist Vessels to Antarctica, doc. XVII ATCM/INFO 75,16 Nov. 1992; and Responsible Tourism in Antarctica, doc. XVII ATCM/ INFO 76, 16 Nov. 1992. 178 Tourism in Antarctica, doc. XVII ATCM/INFO 18, 11 Nov. 1992. 179 Incidentally, several cruise ships owned by Greek ship owners (but sailing under a "flag of convenience") are involved in Antarctic cruises each season.

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Working Group I examined the tourism issue by employing the same method of work as the Informal Meeting — through consideration of the list of items contained in paragraph 2 of Recommendation XVI-13. Eventually, the outcomes of the X V I I A T C M were by no means any better than the results of the Informal Meeting. ATCPs' views were in conflict w i t h regard to the majority of items, 180 leading the Chairman to conclude the examination of each item by stating the disagreement of views. It was very soon obvious that, regarding Antarctic tourism, no real outcome was any longer expected of the X V I I A T C M ; probably the first public expression of this general feeling was Chile's proposal for the establishment of a working group which would meet in the inter-sessional period. 1 8 1 There was another very obvious signal that no real outcomes on the tourism issue are to be expected in Venice: attendance in the large hall where this item was discussed became gradually less crowded. 182 However, when the Meeting was approaching its final days, it seemed that the tourism issue had revived, and new hopes were raised for, at least, some modest results, as the United Kingdom pointed out that there are still some "commonalities" in positions of the ATCPs w i t h regard to Antarctic tourism. Several additional information papers were submitted; one jointly by Argentina, Chile and the United Kingdom 1 8 3 and two by N o r w a y . 1 8 4 A paper entitled "Accepted Statement on the Regulation of Tourism in Antarctica" 1 8 5 was circulated by "anonymous sponsors". The purpose of this declaration would be — pending the entry into force of the Protocol — to highlight obligations of tour operators and organizers of non-governmental expeditions (to undertake an Environmental Impact Assessment before carrying out activities, to provide advance notice of their proposed visits and to obtain prior approval for them, to comply w i t h the provisions 180

E. g w i t h regard to item "homologation of standards relating to vessels" (Recommendation XVI-13, para. 2 (a) (iii), (note 31)), France held that tourist vessels need special rules, while New Zealand did not agree with any "discrimination between vessels". 181 Germany gave strong support to this proposal. 182 This was, in the same time, a signal that the issue of the Secretariat has been given a priority, as discussions on that issue were held simultaneously in another hall. 183 Environmental Management in Antarctic Tourism: An International Initiative, doc. XVII ATCM/INFO 82, 17 Nov. 1992. 184 Regulation of Tourism and Non-Governmental Activities in the Norwegian High Arctic, doc. XVII ATCM/INFO 77, 17 Nov. 1992; and Tourism in the High North — Management Challenges and Recreational Opportunity Spectrum Planning in Svalbard, Norway, doc. XVII ATCM/INFO 78, 17 Nov. 1992. The Norwegian position was quite open, embracing a determination to avoid any slowing down of the process of ratification of the Protocol, but also allowing that further regulation of Antarctic tourism might be needed. 185 The title of this paper was soon changed to "Declaration on the Regulation of Tourism and non-governmental activities in Antarctica", pursuant to the objection that the category of "accepted statement" is unknown in the ATS.

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regarding the Antarctic Protected Area system, the conservation of flora and fauna, waste disposal and the prevention of marine pollution, to ensure the selfsufficiency of their activity and to arrange appropriate insurance cover). This short text, whose only purpose might be to keep the tourism issue "alive", has suffered some criticism, for being "not balanced" (Spain), as well as, on the one hand, for being "too complete" (Chile) and, on the other hand, to "fall short" of identifying the points on which more work is needed (Germany). There was no mention of this draft Declaration in the draft Final Report of the X V I I A T C M . Finally, in contrast to the abundance of working, information and other papers submitted, as well as the extensive discussions of the issue, the outcome of the X V I I A T C M w i t h regard to Antarctic tourism was rather poor: nothing more than one page containing seven paragraphs in the draft Final Report of the Meeting. 1 8 6 Several delegations expressed their disappointment with this result. O n behalf of the "Group of Five", Germany has emphasized the determination of the Group to continue work on the tourism issue at an inter-sessional meeting to be hosted by Germany in 1993, and has invited others who may wish to join. 1 8 7 However, as stated in draft Final Report; "Some other Parties could not agree to this proposal". 1 8 8 4. Institutional Changes within the ATS Concerning the Regulation of Antarctic Tourism and Their Applicability / Application A t the outset, we have to conclude that the adaptation of the ATS to recent challenges posed by Antarctic tourism (as described above, in section 2) has not resulted in any institutional changes within the ATS. It would be beyond the scope of the analytical approach employed in this report (as outlined above, under I and II) to enter an analysis de lege ferenda, i. e., to propose any new regime for Antarctic tourism. As no new regime has resulted as yet, and there are small chances that any new regime for Antarctic tourism w i l l emerge soon, we have to inquire into the existing body of rules within the ATS related to Antarctic tourism, and to estimate its applicability/application to the issue. A t present, these rules are scattered in a number of recommendations, and are — as commented on above, in section 3(a) — unsystematic, incomplete and of an unclear legal nature. The very fact of the self-regulation of the Antarctic tourist industry as the main source for the regulation of its activity provides a clear answer to the real application of the ATS recommendations in this field. 186 187 188

Paras. 102 to 108 of the draft Final Report of the XVII ATCM, (note 162). Several ATCPs indicated their interest. Draft Final Report of the XVII ATCM (note 162), para. 108.

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The Protocol and its Annexes apply, without doubt, to all activities in the Antarctic Treaty area, including tourist and other non-governmental activities. However, the Protocol has not yet entered into force. Even under the hypothesis that the Protocol were already in force, its regulation of Antarctic tourism would face serious difficulties. One evident difficulty is the disagreement among the ATCPs w i t h respect to the sufficiency of the Protocol and its present Annexes to adequately regulate Antarctic tourism. As long as this disagreement on the interpretation of the provisions of the Protocol exists, it would be difficult to imagine how the Protocol could be applied to Antarctic tourism. Regardless of the type of international legal document (whether the Protocol itself, a new annex to the Protocol, or a separate convention), it remains crucial for any regime on Antarctic tourism that Parties institute their own laws or relevant legal instruments on regulation of proceedings and imposition of sanctions for failure to abide by the provisions approved at the ATS level. 189 A t this point, the legal aspect of domestic — international interface becomes the most obvious. 190 As stated in the French working paper of 1991, 191 it should be possible to control individual tourism through national legislation once States have re-enacted in their domestic laws the rules of the international instrument. However, in the case of Antarctic tourism there is still a disagreement on the international ATS level. But even under the second hypothesis, i. e., that this disagreement is resolved, the question remains: does the Protocol really offer an adequate legal regime for Antarctic tourism, applicable under the first hypothesis, i. e., that the Protocol is already in force? I n other words, is it really so simple to solve the problem of a tourism regime as suggested by New Zealand at the X V I I A T C M , by replacing the word "activities" throughout the Protocol w i t h the word "tourism"? Perhaps it creates some difficulty to employ this linguistic interpretation, having in mind that the word "tourism" is expressly mentioned in several provisions of the Protocol and its Annexes; 192 argumentum a contrario , the words "activities" and "tourism" in the Protocol are not synonymous. The real reason for this was concisely formulated by Laura Pineschi: The very fact that tourism is regulated by the same obligations preventing the environmental impact produced by other human activities on the Antarctic environment has not grasped the peculiarity of tourism and, therefore, has not given appropriate answers to the specific problems posed by this activity. 193 189

See Chilean view in doc. XVI ATCM/WP 29, 8 Oct. 1991, 6. On the political aspects see in general: Olav Schram Stokke , Domestic Politics and Non-State Actors in the Antarctic Treaty System: Towards a Framework, IARP Publication Series, No. 1, 1992. Doc. XVI ATCM/WP 2, 25 Sept. 1991. 192 See the Protocol, Art. 3, para. 4; Art. 8, para. 2; Art. 15, para. 1, pt. (a); Art. 1, para. 1, Protocol (note 1). 190

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Both Pineschi 194 and Manheim 195 have detected a number of significant gaps in the coverage of Antarctic tourism under the Protocol. These gaps are caused by the peculiarities of Antarctic tourism, 1 9 6 as described above, in section 2(a) It is for this reason that: Current regulations governing tourism under the Antarctic Treaty, though considerable, are inadequate and insufficiently integrated with other measures for regulating human access to Antarctica and use of its resources. 197 There are a number of questions, related to liability, insurance, jurisdiction, third parties' activities and enforcement, to which answers are not found in the provisions of the Protocol. Furthermore, rules of the Protocol in several instances offer only partial solutions, even when expressly related to tourism. The duty of prior environmental impact assessment (EIA), as provided for in Article 8 of the Protocol, may serve as an example: when the formulation from Article V I I (5) of the Antarctic Treaty is applied to an Antarctic tourist cruise (with ships often flying a "flag of convenience" and owned by companies or individuals from different countries, tour companies incorporated in one country, while organizing trips in another country and proceeding to the Antarctic Treaty area from a third country), it is entirely unclear who w i l l be responsible for E I A . 1 9 8 Faced w i t h the tourism issue, the ATCPs w i l l have to formulate legal rules applicable not only to subjects of international law but also to subjects of municipal law (natural and juridical persons, i. e.y tourists and tour operators) to whom such rules shall directly apply in Antarctica. Hence, the ATCPs must develop the most appropriate legal methods to bridge a gap between the international and the domestic legal level in this matter. 199 A decade ago Auburn 200 argued that the preferable means of settling this dispute and achieving uniform standards for the safety of Antarctic tourism would be a code of practice laid down by the ATCPs 193

Laura Pineschi , Tourist Activities and the Protection of the Antarctic Environment: Current Obligations and Possible Future Developments, in Environmental Law for Antarctica (in print), 186. 194 Id. , 187-202. 195 Bruce S. Manheim, Gaps in Management of Antarctic Seaborne Tourism under the Protocol (unpublished paper, delivered at the Informal Antarctic Treaty Meeting on Tourism, Venice, 9-10 November 1992), 4-14. 196 Norwegian Regulations relating to tourism and other travel in Svalbard, issued by Royal Decree of 18 Oct. 1991, offer an useful example of legal regulation dealing with peculiarities of polar tourism. 197 Tourism in Antarctica, doc. XVII ATCM/INFO 18, 11 Nov. 1992 (submitted by IUCN). 198 See an example in Manheim (note 195), 6. 199 On this problem see in general A. A. Fatooros , National Legal Persons in International Law, in: Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, Inst. 10, 1987, 299-306; also Karl Josef Partsch , International Law and Municipal Law, id., 238-257. 200 Auburn (note 121), 283.

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and incorporated in municipal legislation. However, the ATS has developed significantly during the past decade, and it offers a variety of legal techniques. The ATS w i l l have to be innovative once again, to regulate Antarctic tourism. The problems it faces now are not results of imperfect implementation of the existing regulation, but rather results of gaps and inadequacies in the existing regulation when applied to Antarctic tourism.

Conclusion It was the purpose of this analytical exercise to show in what sense the issue of Antarctic tourism is related to the wider question of the legitimacy of the ATS. Hence, what are the main aspects in relation to which Antarctic tourism presents a challenge to the legitimacy of the ATS? First, it is the present situation regarding the regulation of Antarctic tourism within the ATS, which is somewhat chaotic: — some regulation does exist, but is scattered and inadequate for application; — crucial issues, such as liability and jurisdiction, are not regulated at all; — the Environmental Protocol regulates activities in a comprehensive manner, covering also tourism, but this is certainly not sufficient in terms of an Antarctic tourism regime. U p to 1991, the ATS might have been blamed for remissness causing postponements in the regulation of some issues of importance, Antarctic tourism being a prominent example. Indeed, the ATS is not "blind" to the tourism issue any more; the ATCPs have paid considerable attention to this matter in 1991 and in 1992, when tourism was discussed at the X I ATSCM, the X V I and X V I I A T C M as well as at the Informal Meeting on Tourism. Nowadays, the regulation of Antarctic tourism appears as a test for the ATCPs' ability to regulate an ongoing commercial activity, w i t h the interests of the tourism industry behind it. The basis of any future Antarctic tourism regime — intended to be an effective regime — lies in the adequate reconciling of interests of the tourist industry w i t h concerns of the ATS (such as uninterrupted scientific research, and protection of the environment). W i t h regard to this aspect, the answer to the question posed in the title of this article might be a simple one: if the ATS fails to regulate increasing tourism in Antarctica, "thirds" w i l l enact surrogate regulations. This would seriously threaten the legitimacy of the ATS, since it would no longer remain the single legislator for the Antarctic Treaty area. But second, an even more serious threat which Antarctic tourism may pose to the legitimacy of the ATS might come from the recent sharp polarisation between the ATCPs regarding the issue. As observed by one delegation at the X V I I A T C M , arguments used by the ATCPs in discussions on Antarctic tourism were forgotten

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since 1959. Furthermore, it may easily happen that a group of ATCPs w i l l proceed w i t h the continuation of the work on this issue at an inter-sessional meeting, while some other ATCPs might simply boycott such a meeting, deeming it inappropriate. However, when the legitimacy of the ATS is challenged, the essence is in the ability of the ATCPs to resolve conceptual legal problems, such as liability and jurisdiction (which are complex primarily due to their political background), in a pragmatic matter like Antarctic tourism.

Judge Shigeru Oda's Opinions in Law-of-the-Sea Cases: Equitable Maritime Boundary Delimitation By Barbara Kwiatkowska *

The high qualifications which are required of the fifteen members of the principal, independent judicial organ of the United Nations, the International Court of Justice (ICJ), result from "the natural desire of all states that authoritative pronouncements on questions of international law should be made by as 'strong' a Court as it is possible to create." 1 I n a situation that the individual qualifications of Judges are subordinated to the basic principle of the collegiate responsibility of all members of the ICJ, it is mainly through the separate and dissenting opinions appended by Judges to the respective judgments that their capacities can be appreciated individually. 2 A t the end of 1992 Judge Shigeru Oda, the Court's current Vice-President, whose third term in the ICJ commenced in 1994, had already written 25 Opinions. This article examines his Opinions that relate to the maritime boundary delimitation cases settled in 1982-1992. They include Opinions written by Judge Oda in the two major Tunisia/Libya Continental Shelf and Libya/Malta Continental Shelf cases, which are analyzed in detail first, followed by an examination of his Opinions in two more recent cases, the 1989 Guinea-Bissau v. Senegal Arbitral Award and the El Salvador/ Honduras Land y Island and Maritime Frontier Dis* The author wishes to express her gratitude to Judge Sir Robert Jennings , President of the International Court of Justice (ICJ), Judge Stephen M. Schwebel of the ICJ, and Derek W. Bowetty C.B.E., Q.C., LL.D., F.B.A., Whewell Professor of International Law, University of Cambridge, for the perceptive suggestions they were kind enough to make on the draft of this article. The author is also indebted for their comments to Prosper Weil , Professeur ä l'Universite de Droit, d'Economie et de Sciences Sociales de Paris, Ambassador Carlos Argüello Gomez of Nicaragua's Embassy in The Hague, and J. R. Victor Prescott , Professor at the Department of Geography, University of Melbourne. 1 Shabtai Rosenne, The World Court: What It Is and How It Works, 4th rev. ed., Dordrecht 1989, 52. See also, generally, Stephen M. Schwebely Relations Between the International Court of Justice and the United Nations, in: Le droit international au service de la paix, de la justice et du developpement, Melanges Michel Vir ally, Paris 1991, 431-443. 2 Cf Sir Robert Jennings , The Collegiate Responsibility and Authority of the ICJ, in: Yoram Dinstein / Mala Tabory (eds.), International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne, Dordrecht 1989, 343-353; Shabtai Rosenney Publications of the ICJ, American Journal of International Law (AJIL), vol. 81, 1987, 681-696, 690. 15 G Y I L 36

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pute. I n contrast to the former two, neither of the latter two cases directly involved maritime boundary delimitation. However, settlements reached in both the 1989 Arbitral Award and the El Salvador / Honduras cases included certain elements of major importance from the viewpoint of future delimitations, notably in the Guinea-Bissau v. Senegal Maritime Delimitation case presently pending before the Court. The Judgment in Denmark v. Norway Maritime Boundary in the Area Between Greenland and Jan Mayen was delivered on 14 June 1993, whereas Qatar v. Bahrain Maritime Delimitation and Territorial Questions still awaits the Court's decision on jurisdiction and admissibility. Judge Oda' s Opinions in the Tunisia / Libya and Libya / Malta Judgments are particularly significant in that they contain a masterly analysis of the development of both the traditional and the modern international law of the sea as it relates to equitable maritime delimitation. I n the context of the Court's functioning, those Opinions, and especially the 1982 and 1985 Dissenting Opinions made by Judge Oda in these two cases, could be regarded as representing what Sir Gerald Fitzmaurice called the "miniature treatises" on their respective branches of the law. 3 Judge Oda* s Opinions testify to his outstanding involvement in both theory and practice, as also evidenced by an impressive number of his law-of-the-searelated writings over the past four decades. These include an article published as early as 1957 by the then Professor Oda in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) which at that time was a first attempt to introduce the importance of the concept of the distribution of marine resources, 4 a theme continued in his other writings referred to elsewhere in this article. Judge Oda's article in ZaöRV is but one of the results of his continuously close links w i t h the Max-Planck-Institute in Heidelberg. Other influences in his diverse academic background are the influence of the German Begriffsjurisprudenz on Japanese law at the time of Judge Oda' s education at the University of Tokyo in the 1940s,5 and his subsequent exposure to the Harold D. Lasswell / Myres S. McDougal approach at the Yale Law School in the 1950s, which as a result of Lasswell' s studies in Germany in the 1920s, draw substantially upon German models of the 3 Sir Gerald Fitzmaurice , The Law and Procedure of the International Court of Justice, vol. 2, Cambridge 1986, 648. 4 Shigeru Oda, A Consideration of the Problems of Conservation and Distribution of Marine Resources (I), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 18, 1957/1958, 61-102. 5 Judge Oda was a student of Professor K. Yokota (presently an honorary member of the Institute of International Law) who, since the late 1920s, has been a leader in Japan of the Reine Rechtslehre which he learned directly from Hans Kelsen and Alfred Verdross. a result, the first works studied by Judge Oda included Alfred Verdross , Die Einheit des rechtlichen Weltbildes, Tübingen 1923, and Verdross , Verfassung der Völkerrechtgemeinschaft, Wien / Berlin 1926.

As

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social sciences.6 Moreover, although Judge Oda joined the Court only in 1976, it is significant that his concern with equitable maritime delimitation had already commenced w i t h the crucial North Sea Continental Shelf cases, in which he served as counsel for the Federal Republic of Germany (F.R.G.) from 1967 and where he worked closely w i t h Professor Günther Jaenicke , the agent for the F.R.G. The Opinions of Judge Oda in the four above mentioned cases are, therefore, examined in light of both his theoretical and practical experience in equitable maritime delimitation, and the positions taken by the other Judges and the Court itself. Since Judge Oda's contribution relates as much to problems of substance as to issues of procedure, in particular the right of a third State to intervene in maritime boundary delimitation, procedural questions are also considered in the context of the respective cases. Finally, an assessment and conclusions are drawn jointly in light of the analysis of all Judge Oda's Opinions and the complexity of issues involved in equitable maritime boundary delimitation.

I. Tunisia / Libyan Arab Jamahiriya Case Concerning the Continental Shelf 1. Introductory Remarks The Tunisia / Libya dispute over the continental shelf spills over into a number of decisions of the International Court. Judge Oda appended Opinions to three Judgments delivered by the Court: — Dissenting Opinion to the majority Judgment of the Court on the merits of 24 February 1982;7 — two Separate Opinions to the unanimous Judgments of the Court on the Application by Malta for Permission to Intervene of 14 April 1981,8 and on the Application for Revision and Interpretation of the Judgment of 24 February 6

Cf Harold D. Lasswell / Myres S. McDougal , Jurisprudence for a Free Society, Dordrecht 1992. 7 Continental Shelf (Tunisia / Libya), Judgment, I.C.J. Reports 1982, 18-94 (hereinafter 1982 Tunisia / Libya Judgment), decided by ten votes to four (including that of Judge Oda); Dissent Oda> ibid., 157-277 (hereinafter 1982 Dissent Oda). For an overview of Judge Oda's Opinion, see S. P. Jagota, Maritime Boundary (Publications on Ocean Development, vol. 9, Shigeru Oda General ed.), Dordrecht 1985, 196-204; Douglas M. Johnston, The Theory and History of Ocean Boundary-Making, Montreal 1988, 172-173. For summaries and text of the Tunisia / Libya and other Judgments and Awards referred to in this article, see Research Centre for International Law (ed.), International Boundary Cases: The Continental Shelf, vols. I and II, Cambridge 1992. 8 Continental Shelf (Tunisia / Libya), Application by Malta for Permission to Intervene Judgment, I.C.J. Reports 1981, 1-21 (hereinafter 1981 Tunisia / Libya Judgment), decided unanimously; Separate Opinion Oda, ibid., 23 -34 (hereinafter 1981 Separate Opinion Oda). 1*

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1982 in the Case Concerning the Continental Jamahiriya ) of 10 December 1985.9

Shelf (Tunisia / Libyan Arab

The Dissenting Opinion of Judge Oda runs through some 120 pages, amounting to twice the length of the analysis contained in the 1982 Judgment. The complexity of Judge Oda's analysis would appear to have been stimulated by the parties having for the first time requested the Court to take account of "the recent trends admitted at the Third Conference on the Law of the Sea" ( U N C L O S III), which at the time of the 1982 Judgment was finalizing its profound revision of the entire law of the sea. The Tunisia / Libya case was thus the first to consider the new legal regime of the oceans as codified and progressively developed in the then Draft of the new Law of the Sea Convention (LOS Convention). But it was also Judge Oda's longstanding involvement in both theory and practice which ensured that his Dissenting Opinion in the Tunisia / Libya case constituted a significant contribution to the crystallization of major concepts evolving under the new oceans regime. Judge Oda's lengthy analysis suggests that by failing to appreciate adequately the changes that had occurred in the concept of the continental shelf (CS) under the influence of the new concept of the 200 mile exclusive economic zone (EEZ), and by overstressing the application of equitable principles and the taking into account of all relevant circumstances, the Court had simply suggested "the principle of non-principle", leading to an obscure boundary line not grounded on any persuasive considerations. 10 Consequently, the Judgment would, in Judge Oda's view, be appropriate to a case ex aequo et bono under Article 38(2) of the ICJ Statute, rather than to the authority given to the Court in Article 38(1) of the Statute. 11 The Dissenting Opinion supplements the Judgment, in that the Court failed to consider the U N C L O S I I I trends as a means of facilitating an understanding of what the principles and rules of international law applicable to maritime delimitation were, despite having been requested to do so. If the Court had undertaken such analysis, it would, in Judge Oda's opinion, have adhered to a different approach and, accordingly, have reached different conclusions. 12 A t the

9 Continental Shelf (Tunisia / Libya), Application for Revision and Interpretation of t Judgment of 24 February 1982, Judgment , I.C.J. Reports 1985, 192-231 (hereinafter 1985 Tunisia / Libya Judgment), decided unanimously; Separate Opinion Oda, ibid., 236-245 (hereinafter 1985 Separate Opinion Oda). 10 1982 Dissent Oda (note 7), para. 1. 11 See also Continental Shelf (Tunisia / Libya), Dissent Gros, I.C.J. Reports 1982, 143156, 153, para. 19, and Dissent Evensen, ibid., 278-323, 296, para. 14, in fine, (hereinafter 1982 Dissent Gros and 1982 Dissent Evensen). Cf. Edward D. Brown , The Tunisia / Libya Continental Shelf Case, Marine Policy, vol. 7, 1983, 142-162, 149 and 161-162; Jonathan I. Charney, Ocean Boundaries Between Nations, AJIL, vol. 78,1984, 582-606, 5S6-5S7; Johnston (note 7), 165-178, esp. 177. 12

1982 Dissent Oda (note 7), paras. 6-7.

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same time, the Court should have sought enlightenment from U N C L O S I I I not in the provisions of the various drafts of the LOS Convention, but rather in the progress of the discussions underlying them. 13 This is because U N C L O S I I I , which is referred to by Judge Oda as "a great laboratory of international law", and to which Judge Oda made important contributions as a member of the Japanese delegation until his election to the Court, worked on the basis of consensus and produced special and often unique procedures and "package deals", which are of essential importance for an adequate appreciation of the "trends" in the new oceans regime. Similarly, the Court should, in Judge Oda's view, have based its consideration of trends in the law of the sea over the previous few decades on a broader survey, so as to appreciate fluctuations and changes of the continental shelf concept. The Dissenting Opinion consists of eight chapters dealing respectively with: trends apparent at U N C L O S I I I and the status of the then Draft LOS Convention; the traditional concept of the CS; sedentary fisheries and historic rights; new trends in the CS concept; the impact of the concept of the EEZ on the CS concept; trends in the CS / EEZ delimitation at U N C L O S I I I ; principles and rules for the CS / EEZ delimitation; and the practical delimitation method and line suggested by Judge Oda for delimitation of the CS between Tunisia and Libya, which challenges the method and line suggested by the Court in its Judgment. 2. Judge Oda's Theory of the New Continental Shelf Exclusive Economic Zone Parallelism The in-depth analysis of changes that had occurred in the legal regime of the continental shelf, which is contained in the Dissenting Opinion, as well as in the lectures delivered by Judge Oda at the Hague Academy of International Law in 1969 and in his book on International Control of Sea Resources , led Judge Oda to elaborate the new theory of parallelism between the continental shelf and the exclusive economic zone both in this Dissenting Opinion, and in those appended to the Libya / Malta Continental Shelf case.14 This theory had been outlined in 13 Ibid.j paras. 26 and 146, first point. See also, e. g.y Shigeru Oda y International Law of the Sea, Interregional Seminar on the Development of the Mineral Resources of the Continental Shelf, Port-of-Spain, 5-16 April 1971, U N Doc. S T / T A O / SER.C / 138, New York 1972, 94-106; Oda, Towards a New Regime for Ocean Development, Ocean Development and International Law (ODIL), vol.1, 1973,291-302; Oda y The Law of the Sea in Our Time, vol. I: New Developments 1966-1975, and vol. II: The United Nations Seabed Committee 1968-1973 (Publications on Ocean Development, vols. 3 and 4, Shigeru Oda General ed.), Leyden 1977; Oda, The Oceans: Law and Politics, Netherlands International Law Review (NILR), vol. 25, 1978, 149-158. 14 See Shigeru Oda y International Control of Sea Resources (1962), Reprint with a New Introduction (Publications on Ocean Development, vol. 12, Oda General ed.), Dordrecht 1989; reviewed by Francisco Orrego Vicuna , ODIL, vol.20, 1989, 245-249, and Barbara

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another of Judge Oda's books published in 1979, but the major importance of his Tunisia / Libya Dissenting Opinion is reflected in his essay in the Festschrift for Judge Roberto Ago.15 Judge Oda's theory of parallelism involves a difficult question of the relationship between the regimes of the continental shelf and the 200 mile exclusive economic zone, in combination w i t h the interrelated issue of the impact which the EEZ has upon the outer limit of the CS. Parallelism between the two regimes is, as the Tunisia / Libya Dissenting Opinion shows, twofold. 1 6 O n the one hand, it occurs between the legal regimes of the EEZ and the inner CS up to 200 miles, and, on the other hand, between the regimes of two areas of the CS, i. e. the inner CS up to 200 miles and the outer CS extending beyond this limit up to the edge of the continental margin. a) New Outer Limits of the Continental Shelf and the Changed N o t i o n of Natural Prolongation The new exclusive economic zone concept significantly changed the outer limit of the continental shelf and the notion of natural prolongation. This is evidenced by the new definition of the continental shelf contained in Article 76(1) of the LOS Convention, according to which the principles of entitlement to the CS are alternatively: natural prolongation of State land territory to the outer edge of the continental margin; or a distance of a maximum of 200 miles where the continental margin does not extend up to that distance. Taking into account that the 200 mile distance is also the maximum breadth of the EEZ (Article 57), it can be stated that the LOS Convention clearly distinguishes between: the principle of a 200 mile distance as governing the attribution of legal title to both the EEZ and the CS where the continental margin extends up to 200 miles (the inner CS); and the principle of natural prolongation as applying to the CS where the continental margin extends beyond 200 miles (the outer CS). However, the Court in its 1982 Judgment only recognized that, insofar as Article 76 provides for a distance of 200 miles as being " i n certain circumstances" the basis of legal title to the CS, " i t departs from the principle that natural Kwiatkowska , NILR, vol. 37, 1990, 116-117; Oda y International Law of the Resources of the Sea, Recueil des Cours de TAcademie de Droit International (RCADI), tome 127,1969 / II, 355-484; Oda, International Law of the Resources of the Sea, Alphen aan den Rijn 1979; and Continental Shelf (Libya / Malta), Dissent Oda, I.C.J. Reports 1985,123 -171 (hereinafter 1985 Dissent Oda). 15 See Shigeru Oda, Delimitation of a Single Maritime Boundary, in: International Law at the Time of Its Codification, Essays in Honour of Roberto Ago, Milano 1987, 349-362. Cf. Barbara Kwiatkowska, Creeping Jurisdiction Beyond 200 Miles, ODIL, vol. 22, 1991, 153-187, 159. 1

1982 Dissent Oda (note 7), para.

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prolongation is the sole basis of the title"; but the Court declined to advance any argument based on what it called a "trend" towards the principle of distance. 17 I n his Dissenting Opinion, Judge Oda criticized this position of the Court arguing that: The actual regime of the continental shelf is represented as remaining in 1981 exactly the same as in 1958. Yet it cannot be over-emphasized that, in parallel with the change in the outer limit of the continental shelf, the notion of natural prolongation by which the concept of the continental shelf was embellished in the 1969 Judgment has greatly lost its significance, particularly with the introduction of the criterion of the 200-mile distance under the strong influence of the concept of the exclusive economic zone . . . In spite of the provision of Article 77 relevant to the rights of the coastal State (which is essentially identical to that of the 1958 Convention) . . . the concept of the continental shelf cannot have escaped changes as a result of the fading away of the geomorphological notion of natural prolongation. 18 Natural prolongation, which under the LOS Convention is a criterion of entitlement only to the CS extending up to the outer edge of the continental margin, now has a different meaning than it had under the traditional doctrine of the continental shelf. I n the 1969 North Sea Continental Shelf cases the concept of natural prolongation was employed by the Court not in order to clarify the outer limit of the CS, but to justify the appurtenance of the CS to the coastal State. The well-known assertion of the Court in this case was that "the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ah initio , by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources." 19 These concepts of "ipso facto and ab initio 3' were, in Judge Oda's opinion, employed by the Court "simply to strengthen the regime of the continental shelf, which had not yet achieved a firm status in international law." A t the same time, the outer limit of the CS was, as he remarked, not at issue in that case, the N o r t h Sea being a shallow sea w i t h the exception of the (irrelevant) Norwegian Trough, and thus the area beyond the 200-metre depth of water was not dealt w i t h at that time. As Judge Oda indicated, the natural prolongation was instead "used simply to justify the appurtenance to the coastal State of the continental shelf geographically adjacent to i t . " 2 0

17

1982 Tunisia / Libya Judgment (note 7), paras. 47-48. 1982 Dissent Oda (note 7), para. 107. For agreement with Judge Oda's view, see Francisco Orrego Vicuna , The Contribution of the Exclusive Economic Zone to the Law of Maritime Delimitation, German Yearbook of International Law, vol. 31, 1988, 120-137, 123. 19 North Sea Continental Shelf (F.R.G. / Denmark; F.R.G. / Netherlands), Judgment, I.C.J. Reports 1969, 1-54, 22, para. 19 (hereinafter 1969 North Sea Judgment). 18

20

1982 Dissent Oda (note 7), para. 57. Cf. 1969 North Sea Judgment (note 19), para. 46.

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Contrary to that, in the travaux preparatoires of the LOS Convention, the concept of natural prolongation had been maintained w i t h a view to defining the international sea-bed area, recognized to be the common heritage of mankind. Judge Oda recalled that the traditional criterion of exploitabiEty laid down (along w i t h criterion of 200-metre isobath) in the 1958 Continental Shelf Convention (CSC) w i t h a view to defining the outer limit of the CS, could be interpreted to mean that "all sea-bed areas of the world would eventually be divided among separate States." 21 Ambassador Arvid Par do of Malta, who pioneered the common heritage of mankind concept to be applied in the area beyond a redefined continental shelf, in a speech in the U N General Assembly on 1 November 1967 explicitly referred to the view of then Professor Shigeru Oda of Tokyo University as exemplifying an influential school of thought which denied any room to discussions of the outer limits of the CS under the 1958 Convention which permitted a coastal State to claim the continental shelf up to the midway point between the deep sea-bed.22 I n other words, as Judge Oda emphasized, the new concept of the common heritage of mankind had arisen "to call a halt to the indefinite expansion of the continental shelf, in order to preserve the international sea-bed beyond i t . " 2 3 This motivation also resulted in the new requirement of Article 76(9) of the LOS Convention that the outer limits of the continental shelf should 21

1982 Dissent Oda (note 7), para. 89. Ibid., para. 90. Cf. Note Verbale of 17 August 1967 from the Permanent Mission of Malta to the U N Secretary-General, U N Doc. A/6695, 18 August 1967. For the text of U N GA Res. 2340(XXII) of 18 December 1967 and the subsequent Resolutions, see Shigeru Oda, The International Law of Ocean Development — Basic Documents, vol. I, Leyden 1972, 33-55, and vol. II, Leyden 1977, 3-10. Note that then Professor Oda also signalized this question as counsel of the F.R.G. during the 1968 oral pleadings in the North Sea cases. See Reply of Professor Oda as counsel, to Judge Sir Gerald Fitzmaurice, in: I.C.J. North Sea Pleadings, vol. II, 197-198 (No. 332). Cf. Oda, A Reconsideration of the Continental Shelf Doctrine, Tulane Law Review, vol. 32, 1957/1958, 21-36, 33-36 (cautioning that the monopolistic doctrine of the CS is not necessarily the most acceptable one); Oda, Umi no Kokusaiho (International Law of the Sea), vol. 2, Tokyo 1959; Oda, International Control of Sea Resources (note 14), 166-168, 171; Oda, Some Observations on the International Law of the Sea, Japanese Annual of International Law (JAIL), vol. 11, 1967, 37-50, 39-40; Oda, Proposals for Revising the Convention on the Continental Shelf, Columbia Journal of Transnational Law, vol. 7, 1968, 1-31, 3-10; Oda, International Law of the Resources of the Sea, RCADI (note 14), 439-444; Oda, Some Recollections of the Development of the New Law of the Sea and, in Particular, Its Resource Aspects, in: Alfred H. A. Soons (ed.), Implementation of the Law of the Sea Convention Through International Institutions, Honolulu 1990,555 - 564,563 - 564. For analysis of the deep sea-bed regime, see Oda, International Law of the Resources of the Sea, RCADI, (note 14) 458-472; respective parts of Oda, The Law of the Sea in Our Time (note 13); Oda, Sharing of Ocean Resources — Unresolved Issues in the Law of the Sea, Journal of International and Comparative Law, vol. 3, 1981, 1 -25; Oda, International Control of Sea Resources, (note 14), xxix-xxxi. Cf. Rüdiger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Regime, Berlin 1991. 22

2

1982 Dissent Oda (note 7), para.

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be described "permanently", so as to ensure legal security for miners on both sides of the line. Apart from the different purposes served by natural prolongation under the traditional and the new oceans regimes highlighted above, the Court, according to Judge Oda, did not really make clear what it meant by the natural prolongation concept. He felt that "once this concept had served the purpose of casting doubt on the proximity test (which might have pointed to the use of the equidistance method), the Court felt reluctant to be more explicit." 2 4 Judge Sir Robert Jennings , in one of his essays, was equally critical, referring to natural^prolongation as a "pure figment of the Court's imagination", which although purported to be a physical phenomenon subject to identification by scientific evidence, was apparently unknown to geology, geography or any other allied science, and a scientifically-based definition of natural prolongation only appeared in Article 76 of the LOS Convention. 2 5 Whereas the principle of 200 mile distance, be it as the outer limit of the EEZ or the CS, had already become a customary norm of international law, the limit of the CS extending beyond 200 miles had not yet acquired the character of a generally binding norm. According to Judge Oda, the concept of the EEZ, w i t h its uniform limit of 200 miles, "has rapidly been accepted in the realm of international law." 2 6 I n fact, as he observed, "Throughout the history of international 24

Ibid., para. 61, in fine. Sir Robert Jennings, The Principles Governing Marine Boundaries, in: Staat und Völkerrechtsordnung, Festschrift für Karl Doehring, Berlin 1989, 397-408, 406. Cf. Edward D. Brown, Sea-Bed Energy and Minerals: The International Legal Regime, vol. 1: The Continental Shelf, Dordrecht 1992, 23-34; Sir Robert Jennings / Sir Arthur Watts (eds.), Oppenheim's International Law, Peace, Ninth Edition, vol. 1: Parts 2 to 4, Harlow 1992, 776-782; Keith Highet, Whatever Became of Natural Prolongation, in: Rights to Oceanic Resources (Publications on Ocean Development, vol. 13, Shigeru Oda General ed.), Dordrecht 1989, 87-100; Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in: Jonathan I. Charney / Lewis M. Alexander (eds.), International Maritime Boundaries, vol. 1, Dordrecht 1993, 163-202. But see Arguments of Sir Robert Jennings as counsel of Tunisia, and of Keith Highet as counsel of Libya, in: I.C.J. Tunisia / Libya Pleadings, vol. IV, 403-419 (No. 492), and vol. V, 214-443 and 260-279 (No. 493). At that time, in view of Sir Robert Jennings, ibid., vol. V, 262, natural prolongation still continued to play "a determinative role under the regime of Article 76", and neither of the tests, 200 miles or natural prolongation, were to be mistaken for "absolute principles governing delimitation." Cf. Sir Robert Jennings, The Limits of Continental Shelf Jurisdiction, International and Comparative Law Quarterly (ICLQ), vol. 18, 1969, 819-832, esp. 826. 26 1982 Dissent Oda (note 7), para. 108; also para. 107; para. 151 (quoted under note 43); and para. 126. Note short mention in the 1982 Tunisia / Libya Judgment (note 7), para. 100, that the EEZ concept "may be regarded as part of modern international law." Cf. JeanPierre Queneudec, Note sur l'arret de la C.I.J, relatif a la delimitation du plateau continental entre la Tunisie et la Libye, Annuaire Fran^ais de Droit International (AFDI), vol. 27, 1981, 203-212, 206-207. But note that the Continental Shelf (Tunisia/ Libya), Application by Malta for Permission to Intervene, Separate Opinion Schwebel, I.C.J. Reports 1981, 34-40, 25

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law, scarcely any other major concept has ever stood on the threshold of acceptance within such a short period." 2 7 However, the new definition of the CS beyond the 200 mile limit, which is essentially a product of compromise — not consensus — between the conflicting positions of States, could in Judge Oda's view, "hardly be considered as enshrining established rules of international law." 2 8 b) N e w Parallelism Between Regimes of the Inner and Outer Continental Shelf Areas The two new alternative definitions of the outer limits of the continental shelf embodied in Article 76 of the LOS Convention referred to above are coupled w i t h parallelism of the two regimes governing these CS areas. The first of these areas, the inner CS up to 200 miles remains, as Judge Oda showed, governed by the traditional principle of exclusivity of the coastal State's title to resource activities. Within the other area, the outer CS beyond 200 miles, this exclusivity is diminished by the revenue-sharing rule set out in Article 82 of the LOS Convention which obliges the coastal State to share the profits from the exploitation of mineral resources w i t h the international community, in particular w i t h developing States. " I t cannot be over-emphasized," Judge Oda said, "that this formula never founded part of the traditional concept of the continental shelf." 29 I n addition, within the outer CS a coastal State also enjoys less discretion to withhold its consent for the conduct of marine scientific research than it does within the areas up to 200 miles (Article 246(6) of the LOS Convention). These limitations were, as Judge Oda indicated, meant to give recognition to the interests of land-locked or shelf-locked States against maritime expansionism of the broad-margin States such as Canada, Brazil, India, the United States and the then Soviet Union. Since the revenue-sharing rule of Article 82 can only be implemented on the basis of conventional law, and since this clause apparently conditioned acceptance of the outer CS extending beyond 200 miles as enshrined in Article 76, the very normcreating nature of Article 76 w i t h respect to broad margins could at least be considered in doubt. 37 (hereinafter 1981 Separate Opinion Scbwebel) referred to a 200 mile (minimum) limit of the CS as only provisionally agreed in Art. 76 of the then Draft LOS Convention. 27 1982 Dissent Oda (note 7), para. 120. 28 Ibid., para. 104; Shigeru Oda, Queries Relating to the Viability of the U N Convention on the Law of the Sea in the Light of State Practice, in: Myron H. Nordquist (ed.), Proceedings of the 14th Annual Seminar of the Center for Oceans Law and Policy, University of Virginia, Cascais, Portugal, 19-22 April 1990, Charlottesville 1991, 307-322, 317-318. For a similar view, see Dissent Prosper Weil, para. 42 (hereinafter 1992 Dissent Weil), to the Decision of the Court of Arbitration of 10 June 1992 concerning the Maritime Areas Between Canada and France case, decided by three votes to two (hereinafter 1992 Canada / France [St. Pierre and Miquelon] Decision), reprinted in: International Legal Materials (ILM), vol. 31, 1992, 1149-1219, 1215. 29 1982 Dissent Oda (note 7), para. 101.

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c) New Parallelism Between Regimes of the Inner Continental Shelf and the Exclusive Economic Zone Another new parallelism that results from two alternative outer limits of the continental shelf is that between the legal regimes of the EEZ and the inner CS up to 200 miles. Although the Tunisia / Libya case involved the principles and methods applicable to delimitation of the continental shelf, one cannot but agree w i t h Judge Oda that: The question as to whether the sea-bed, at least within 200 miles of the coast, has been incorporated in the regime of the Exclusive Economic Zone or whether it should still come under the separate regime of the Continental Shelf in parallel with the Exclusive Economic Zone was far more essential than generally thought for making any judgment on the issue presented for the Court's consideration.30 The legislative history as traced by Judge Oda w i t h respect to the EEZ-related provisions of the LOS Convention, which were negotiated at U N C L O S I I I in a package with major navigational issues, evidences that the new concept of an EEZ was basically distinct from the traditional concept of the continental shelf. Unlike the case of the CS, fishery rights of a coastal State within its EEZ are of essential importance, and there is no trace of the criteria of contiguity or natural prolongation in the EEZ concept. Judge Oda indicated that the extent of the EEZ is to be measured simply by distance from the baseline off the coast. This, as he emphasized, differs greatly from the original CS concept, but he added that, while the basic concept of the CS had been firmly established without leaving any room for doubt, the basic concept of the 200 mile EEZ "is not quite unequivocal." 31 Consequently, although the EEZ concept had already entered the realm of customary international law, Judge Oda remained cautious as to the scope and content of the detailed rules governing the EEZ regime. 32 aa) Ambiguities of the EEZ Regime Among the ambiguities in the sui generis EEZ concept, Judge Oda mentioned those pertaining to the major concept of fishery conservation management, and the somewhat unbalanced concept of the enforcement of the fishery laws and regulations of the coastal State under the EEZ-Part V of the LOS Convention. 33 30

Ibid., paras. 108 and 146, fourth point. Ibid., paras. 118 and 146, fourth point. 32 Ibid., para. 120. 33 Ibid., paras. 121-124. See also Shigeru Oda, International Law of the Resources of the Sea (note 14), 36-40, 64-67; Oda, Fisheries Under the U N Convention on the Law of the Sea, AJIL, vol. 77, 1983, 739-755; Oda, Exclusive Economic Zone, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. 11: Law of the Sea — Air and Space, Amsterdam 1989, 102-109. 31

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He also noted that since disputes concerning law-enforcement activities in the exercise of coastal State resource-related rights are proposed for exemption from compulsory settlement (Article 298(1 )(b) of Part X V of the LOS Convention), any incident arising out of the enforcement of a State's fishery regulations may not be unilaterally submitted to compulsory dispute settlement procedures by the flag State of the vessel arrested in such incidents. The same, in Judge Oda' s view, was true of the safeguards against undue detention, which "remains at the mercy of unilateral construction of the word 'reasonable', despite the at-firstsight impressive provisions for judicial remedy." 3 4 As Judge Oda argued in his other works, the deficient rules of Article 292 of the LOS Convention related to prompt release of foreign vessels and crews detained by a coastal State, cast doubt on an important role to be played by the International Law of the Sea Tribunal (ITLOS) in settling disputes related to release of detained vessels.35 Safeguards against undue detention also form an important part of the new jurisdictional framework concerning marine scientific research and pollution from ships which, as other sources of marine pollution, fall to varying extents within the rights and duties exercised by the coastal State in its EEZ. While many detailed issues pertaining to the new environmental competences still await verification in State practice, the main question, as Judge Oda indicated, remains that of maintaining an adequate balance between the encouragment of economic development and marine environmental protection. 36 Since the EEZ now incorporates the (inner) CS regime, the EEZ regime also inherited those ambiguities of the traditional CS regime which were carried unchanged from the 1958 CSC to the LOS Convention and are now applicable to both regimes. Such ambiguities, as Judge Oda rightly argued, go "to the heart of the regime of the continental shelf, i. e. the exclusive use of the continental shelf by the coastal state" and relate to various specific coastal State competences that may affect navigational and other communicational freedoms of third States.37 A crucial role of balancing the resource-related rights and jus communicationis is now even more pronounced under the new EEZ regime, as a result of which, 34

1982 Dissent Oda (note 7), para. 124. See Oda, The Oceans (note 13), 156-158; Oda, Fisheries (note 33), 741-742, 746-749; Oda, Some Reflections on the Dispute Settlement Clauses in the U N Convention on the Law of the Sea, in: Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs, The Hague 1984, 645-655, 649-651; Oda, Queries (note 28), 313-314. Cf. Barbara Kwiatkowska, Letter to the Editor in Chief, AJIL, vol. 82, 1988, 332-335. 36 See Oda, The Oceans (note 13), 154-155; Oda, Sharing of Ocean Resources, in: ReneJean Dupuy (ed.), The Management of Humanity's Resources: The Law of the Sea, The Hague 1982, 49-62, 60. 37 See Oda, Proposals (note 22), 19-23; Oda, International Law of the Resources of the Sea, RCADI (note 14), 452-457; Oda, International Law of the Resources of the Sea (note 14), 101-103. 35

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Judge Oda emphasized, the traditional dichotomy between the territorial sea and the high seas has come to an end. 38 He also observed that, "The EEZ is a sui generis regime, and the argument as to whether it still remains a part of the high seas seems to be purely academic." 39 I n addition, since the EEZ now overlaps up to 24 miles (from baselines) w i t h the contiguous zone, the EEZ inherited pressures to extend a coastal State's jurisdiction to security matters, as well as a longstanding controversy as to whether the right of hot pursuit from the contiguous zone applies only to violations committed within internal waters and the territorial sea, or also to those occurring in the contiguous zone, which as Judge Oda showed were already apparent under the traditional regime of this zone. 40 bb) Incorporation of the Inner CS Regime Into the EEZ Regime As regards the essential question of a new parallelism between the 200 mile EEZ and the inner CS regimes, Judge Oda considered that, in spite of the distinct legal nature of those regimes, the sovereign rights of the coastal State over seabed mineral resources, as set forth in Articles 56 and 77 of Parts V and V I of the LOS Convention respectively "have been expressly subsumed" under both these regimes. Accordingly: Any concrete issue that may arise concerning the exploitation of mineral resources within the 200-mile limit will thus, for the time being, be cloaked in legal ambiguity, for it will not arise bearing the label "Continental Shelf" or "made in the Exclusive Economic Zone." The only realistic attitude to adopt in the circumstances is to await, and meanwhile to promote, the harmonization of the two regimes. And it is common sense that, to that end, what is still malleable in one should be aligned on what has taken firm shape in the other, rather than the reverse. 41 This in fact had been done by Article 56(3) of the EEZ-Part V of the LOS Convention providing for exercise by the coastal State of its rights w i t h respect to the sea-bed of the EEZ in accordance w i t h the CS-Part VI. According to Judge Oda, this provision "should be interpreted to mean that the regime of the exclusive economic zone w i l l incorporate, in principle, the whole regime of the continental shelf." Therefore, in his view, "there should be no impediment to aligning what is still indecisive about the continental shelf concept, namely the question of the extent of the area involved, upon what is clearly established in the concept of the

38

See Oda, Towards a New Regime (note 13), 302; Oda, Sharing of Ocean Resources (note 22), 4. 39 Oda, Fisheries (note 33), 741. 40 See Shigeru Oda, Japan and the U N Conference on the Law of the Sea, JAIL, vol. 3, 1959, 65-86, 69-70; Oda, The Concept of the Contiguous Zone, ICLQ, vol. 11, 1962, 131 153; Oda, Some Observations (note 22), 41-44. 41

1982 Dissent Oda (note 7), para. 129; also para. 126.

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exclusive economic zone, namely the extent of the zone." 4 2 As Judge Oda in another part of his Dissenting Opinion explained: Despite the continuing uncertainty as to the outer limit of the continental shelf, the coastal State, under the new concept of the continental shelf, is certainly entitled to claim seabed areas as far as a distance of 200 miles from the coast. Furthermore, despite the continuing uncertainty as to the precise regime of the exclusive economic zone, the coastal State is entitled, within the universally agreed 200 mile limit, also to claim sea-bed areas for the purpose of exploitation of mineral resources. Thus in the case of two opposite States whose coasts are less than 400 miles apart, there will be an area where each will have an equally valid claim.43 This proves rightfulness of his assertion that the question facing the Court could equally well have concerned the EEZ as the CS. One of the questions clarified as a result of the new parallelism between the EEZ and the CS regimes is that of sedentary fisheries which, under Article 77(4) of the CS-Part V I of the LOS Convention remain included, w i t h mineral resources, in the natural resources of the continental shelf. I n his Dissenting Opinion, Judge Oda addressed this question not specifically in the context of the EEZ / CS parallelism but in the context of historic rights w i t h a view to showing that Article 77(4) cannot constitute a basis for justifying title to the continental shelf by reason of sedentary fisheries, as had been suggested by Tunisia. 44 I n the Judge's view, "historic title might justify some deviation in the line of the delimitation of the territorial sea, but otherwise historic title would not have any impact on delimitation of the continental shelf." 45 Moreover, in reply to the Court's suggestion that Tunisia's historic rights and titles might be more closely related to the EEZ concept, Judge Oda emphasized that such rights and titles claimed on the basis of longstanding fisheries were by no means related to the EEZ. 4 6 As regards the treatment of sedentary species in the new law of the sea, Judge Oda mentioned that Article 77(4) was to be seen alongside the omission in the EEZ-Part V of the LOS Convention, of the provision of the 1958 H i g h Seas Fisheries Convention (Article 13) related to fisheries carried out from permanently fixed installations. 47 W i t h regard to the new EEZ / CS parallelism as well as the recent legislative and treaty practice of States w i t h respect to sedentary fisheries, it cannot indeed be doubted that sedentary fisheries at present form, as Judge Oda claimed, part of the EEZ fisheries regime. 48 42

Ibid., para. 130. See also Oda, Queries (note 28), 8-9. 1982 Dissent Oda (note 7), para. 151. 44 Ibid., para. 85. For similar view, see Argument of Keith Highet as counsel of Libya, in: I.C.J. Tunisia / Libya Pleadings, vol.V, 214, 242-243 (No. 493). But see Reply of Sir Robert Jennings as counsel of Tunisia, ibid., 278. 45 1982 Dissent Oda (note 7), paras. 88 and 146, third point. 46 Ibid, and para. 108; 1982 Tunisia / Libya Judgment (note 7), para. 100. 47 1982 Dissent Oda (note 7), para. 85. 43

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cc) Views of Other Authorities A n approach underlying Judge Oda's theory of the new EEZ / CS parallelism is adhered to by those doctrinal writers in whose opinion the EEZ "absorbs", "generally trumps" or "relabels" the CS regime within 200 miles. 49 I n 1986, Judge Oda's theory was extensively examined by one author in the light of the travaux preparatoires of the LOS Convention, State practice and the case law, who concluded that, under the new customary law on the nature and purpose of the EEZ in conformity w i t h Article 56(3) and other relevant provisions of the Convention, "a claim to an economic zone incorporates ipso jure a claim of continental shelf rights." 5 0 A similar approach, though perhaps somewhat less clearly conclusive, was adhered to by two ad hoc Judges, Eduardo Jimenez de Arechaga (designated by Libya) and Jens Evensen (designated by Tunisia), in their Separate and Dissenting Opinions to the 1982 Tunisia/ Libya Judgment respectively. Judge de Arechaga , like Judge Oda, distinguished between the two new alternative definitions of the outer limits of the CS under Article 76 of the LOS Convention, i. e. one based on distance up to 200 miles and another based on natural prolongation extending beyond this limit, and submitted that " i t is difficult to deny that, at least in the case of continental shelves not extending beyond 200 miles, the notion of the continental shelf is in the process of being assimilated to, or incorporated in that of the Exclusive Economic Zone." 5 1 Judge Evensen , who during U N C L O S I I I made an important contribution to formulation of the new EEZ concept, admitted that the 200 mile EEZ "is as valid and important a principle as the continental shelf", and that, "This 200 mile economic zone concept refers not only to the resources of the seas (living or non-living), but also to the natural resources on or in the sea-bed. To this extent it is also in practice a continental shelf concept." 52 I n view of the geographical location of Tunisia and Libya, Judge Evensen , like 48 Cf. Barbara Kwiatkowska , The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Publications on Ocean Development, vol. 14, Shigeru Oda General ed.), Dordrecht 1989, 74-78. 49 See, e. g., Philip Allott, Power Sharing in the Law of the Sea, AJIL, vol. 77, 1983, 130, 14; Daniel Patrick O'Connell, The International Law of the Sea, I. A. Shearer (ed.), vol. 1, Oxford 1982, 580; Alexander Yankov, Comment, in: The Exclusive Economic Zone, Working Sessions, ILA 61st Conference, Paris, 26 August - 1 September, Interventions, 1984,131; Elisabeth Zoller, Recherche sur les methodes de delimitation du plateau continental, RGDIP, vol. 86, 1982, 645-678, 652. 50 D. N. Hutchinson, The Seaward Limit to Continental Shelf Jurisdiction in Customary International Law, British Yearbook of International Law (BYIL), vol. 56, 1985, 161-188, 169. See also Kwiatkowska (note 48), 9-19. 51 Continental Shelf ( Tunisia / Libya), Separate Opinion Jimenez de Arechaga, I.C.J. Reports 1982, 100-142, paras. 50-55 (hereinafter 1982 Separate Opinion de Arechaga). 52

1982 Dissent Evensen (note 11), paras. 7-9.

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Judge Oda, believed that the majority Judgment should have laid more emphasis on the new CS / EEZ inter-relationship. 53 Judge de Arechaga did not reach such a conlusion, as due to his concurring autonomous equity-oriented approach, he would not opt for accepting an essential effect of the CS / EEZ parallelism (parallelism he otherwise recognizes) for maritime delimitation. A more reluctant position w i t h respect to the CS / EEZ parallelism may be found in the 1986 Report of the Committee on Exclusive Economic Zone of the International Law Association (ILA). While appreciating Judge Oda's theory w i t h regard to "a single homogeneous maritime area" within a distance of 200 miles (the EEZ tout court), the Report emphasizes that it cannot categorically be stated that the inner CS has already been subsumed within the EEZ. 5 4 The view has also been expressed that, in spite of considerable overlap between the rights of the coastal State in the EEZ and the CS up to 200 miles, the two regimes cannot, due to their very natures, be fused. Such a restrictive opinion was adhered to by, among others, Judge Andre Gros in his Dissenting Opinion to the 1984 Gulf of Maine Maritime Boundary Judgment (his 1982 Tunisia/ Libya Dissenting Opinion contained no reference whatsoever to the EEZ), and by the then Vice-President Jose Sette-Camara in his Separate Opinion to the 1985 Libya / Malta Continental Shelf Judgment. 55 Meaningfully, both authorities, in spite of a major step taken by the Court (and its Chamber) in these two Judgments to the contrary, still denied the customary nature of the merging of the CS up to the 200 mile limit w i t h the EEZ and, accordingly, of using the 200 mile distance as the new principle of entitlement to both the EEZ and the inner CS.

53

Ibid. , 283, para. 6; 288, para. 10, in fine; 296, para. 15. See also 1982 Dissent Oda (note 30), para. 108. 54 L. D. M. Nelson (Rapporteur), The Relationship Between the Exclusive Economic Zone and the Continental Shelf, in: ILA Report of the 62nd Conference, Seoul, 24-30 August 1986, London 1987, 328-343, 331-332. Cf. Jean-Pierre Queneudec as counsel of Libya, in: I.C.J. Libya/Malta Verbatim Record of Pleadings, CR 84/31, 57-63; Francisco Orrego Vicuna , The Exclusive Economic Zone, Oxford 1989, 69-72; Orrego Vicuna , State Practice and National Legislation Relating to the Exclusive Economic Zone, the Continental Shelf and Straits Used for International Navigation: Basic Trends, in: Wolfrum (note 22), 351 371, 361. 55 Gulf of Maine Maritime Boundary (Canada / U.S.A.), Judgment, I.C.J. Reports 1984, 246-346 (hereinafter 1984 Gulf of Maine Judgment), and Dissent Gros, ibid., 360-390, 372376, paras. 18-23 (hereinafter 1984 Dissent Gros); Continental Shelf (Libya / Malta), Judgment, I.C.J. Reports 1985, 13-58 (hereinafter 1985 Libya / Malta Judgment), decided by fourteen votes to three (including that of Judge Oda), and Separate Opinion Sette-Camara, ibid., 60-75, 69-71 (hereinafter 1985 Separate Opinion Sette-Camara).

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dd) Elements of Virtual Identity of the CS and the EEZ Regimes Since the latter restrictive view is based on a number of questionable arguments, it seems useful to respond to them in the light of approach taken by Judge Oda. Apart from doubts w i t h regard to assimilating the CS into the EEZ when the CS extends further seaward, this restrictive view objects to a merger of the two institutions on the ground that certain rules defining the CS rights are found in the CS-Part V I but not in the EEZ-Part V of the LOS Convention. These rules (repeating the relevant provisions of the 1958 CSC) are contained in Article 77 of the CS-Part V I , providing that the rights of the coastal State over the CS "are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state" (paragraph 2), and that these rights "do not depend on occupation, effective or notional, or on any express proclamation" (paragraph 3). As regards the argument of the exclusivity of CS rights, although the EEZ-Part V lacks a similar definition with regard to the sovereign rights of the coastal State, the sovereign rights of that State w i t h regard to living resources and other economic activities in the EEZ have the same exclusive character as those w i t h regard to sea-bed resources. 56 I n addition, apart from the same rights over mineral resources of the sea-bed, the scope of many resource-related powers of that State (with regard to artificial islands, scientific research, various environmental matters, hot pursuit, and cables and pipelines) is virtually identical in both the EEZ and the CS, the only differences applying to the CS area beyond the 200 mile limit. Both the EEZ and the CS are also subject to identical principles and rules governing delimitation of these areas between opposite and adjacent States which are laid down in Articles 74, 83 and 298 of the LOS Convention (involving the issue of a single maritime boundary referred to further below). The notion of the exclusivity of the coastal State's title over resource activities in the EEZ is, furthermore, clearly reflected by exclusion or exception of disputes related to such activities from a compulsory dispute settlement scheme laid down in Part X V of the LOS Convention. The ultimately narrow scope of the compulsory scheme of Part X V reflects, as Judge Oda remarked, "the contemporary situation of the law of the sea and the position taken by individual States of the world towards a new regime they have together so painstakingly contrived." 5 7 It seems noteworthy that while reaffirming this view in one of his works, Judge Oda drew his additional reservations with respect to the comprehensive law of the sea related jurisdiction of the I T L O S . 5 8 I n particular, he emphasized that: 56

See 1982 Dissent Oda (note 7), para. 43, in fine , explaining the meaning of Art. 77(2) of the LOS Convention. 57

Oda, Some Reflections (note 35), 655.

16 GYIL 36

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If the current development of the law of the sea under the U N Convention continues in its present direction, namely separating this branch of law from the general rules of international law to place it under the jurisdiction of a separate judicial authority, I am afraid this could lead to the destruction of the very foundation of international law . . . I would like to repeat that the rule of law based upon the uniform development of jurisprudence will be best secured by strengthening the role of the International Court of Justice, not by dispersing the judicial function of the international community among a number of scattered organs.59 The only basic difference between the EEZ and the CS regimes therefore is the fact that the EEZ-Part V does not contain a provision parallel to Article 77(2) of the CS-Part V I that the coastal State's rights need not be proclaimed. However the most essential aspect of this question is that the fact that a coastal State does not possess rights over the EEZ ipso jure and ab initio (as it does over the CS) but must act in order to establish all or any of its rights under the EEZ regime does not contradict the principle of exclusivity of title because inherent in that principle is a coastal State's privilege not to exercise its rights. 3. Principles and Rules for the Equitable CS / EEZ Delimitation and Judge Oda's Boundary Line A n in-depth analysis of changes in the legal regime of the continental shelf and an examination of the complex new parallelism between the EEZ and the CS regimes in Chapters I to V I provided Judge Oda w i t h an adequate background for his subsequent reflections on the principles and rules of international law relevant to equitable CS / EEZ delimitation in Chapter V I I and his following suggestions on the practical method and line of delimitation in Chapter V I I I of 58 As to ITLOS, the following anecdotal situation explains that it owes its name to Judge Oda. It was during the crucial Montreaux meeting on 22-23 May 1975 of the Informal Working Group consisting of some 60 members — including Professors Oda (Japan), Willem Riphagen (Netherlands), Louis Sohn (USA, Rapporteur), Jean-Pierre Queneudec (France), and A. Malintoppio (Italy), as well as Ambassadors A. O. Adede (Kenya, Co-Chairman), Harry (Australia, Co-Chairman) and Shabtai Rosenne (Israel) — that, in their lack of enthusiasm for the establishment of a new Tribunal then referred to by acronym LOST (from its original name — Law of the Sea Tribunal), Professors Oda and Malintoppio passed a note between them in which they jokingly concurred that the suggested Tribunal should really be "lost" as implied by its acronym. Subsequently, the UNCLOS I I I President Hamilton Shirley Amerasinghe changed the Tribunal's name and its acronym into ITLOS as it was finally called. Based on the recollection of A. O. Adede , The System for Settlement of Disputes Under the U N Convention on the Law of the Sea (Publications on Ocean Development, vol. 10, Shigeru Oda General ed.), Dordrecht 1987, 10, n. 7. 59 Oda, Queries (note 28), 320-321. Cf. Oda, Further Thoughts on the Chambers Procedure of the International Court of Justice, AJIL, vol. 82, 1988, 556-562. See also Keith Highet, The Peace Palace Heats Up: The World Court in Business Again?, AJIL, vol. 85, 1991, 646-654, 649-650, and 653-654; Elihu Lauterpacht, Aspects of the Administration of International Justice, Cambridge 1991, 86-95; Stephen M. Schwebel, Ad Hoc Chambers of the International Court of Justice, AJIL, vol. 81, 1987, 831-854.

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his Dissenting Opinion. I n Chapter V I I he analyzes the status of the third State, in general and in relation to island States; equitable principles, including equitable apportioning and geographical equity; the concept of proportionality; and the rule of equidistance in the context of its general application as well as in the context of islands and low-tide elevations. a) Status of Third States While addressing the issue of the status of the third State in general, Judge Oda pointed out the importance of the situation of third States in relation to the geographical claims of parties to the dispute, and the particular difficulty of prior definition of the disputed area in cases when, as was the case w i t h the Tunisia / Libya delimitation, such area was also bordered by third States.60 I n this connection, Judge Oda reiterated in the Dissenting Opinion the points made in his Separate Opinion to the 1981 Judgment on the Application by Malta for Permission to Intervene in which the Court unanimously denied Malta such permission. According to Judge Oda, it might be difficult to identify the whole "area" (in the central Mediterranean region) in which the relevant circumstances were to be taken into account by the Court without possessing any precise definition of an aggregate of the "areas" that would appertain to Libya and Tunisia and would concern only these two States without affecting any third States.61 Therefore, Judge Oda tended to believe that this "area" must necessarily have a different connotation than what is implied by the mere aggregate of two "areas" appertaining to the parties. In this assumption, he based himself on the use of the words a propres a la region" in Tunisia's certified French translation of the original Arabic text of the 1977 Special Agreement, these words being translated into English as "which characterized the area. " Although Judge Oda acknowledged that the delimitation of the two "areas" of Tunisia and Libya was a matter for bilateral agreement not intruding upon the "area-to-be" of any third State, he had some justified doubts w i t h respect to the situation when account was taken of the characteristics of the "area as a whole" in which a third State might have some legal title to a portion of the continental shelf. I n particular, he doubted whether in such situation there would be no legal interest of such third State which might be affected by the Court's decision. He also doubted the correctness of the Court's assertion that no conclusions or 60 1982 Dissent Oda (note 7), para. 147. Cf Argument of Elihu Lauterpacht as counsel of Malta, in: I.C.J. Tunisia / Libya Pleadings , vol. Ill, 293 - 318,440 - 448 (No. 491); Argument of Keith Highet as counsel of Libya, ibid., 382-390; and Argument of Sir Robert Jennings as counsel of Tunisia, ibid., 407-423, and vol. V, 272-274 (No. 493). 61 1981 Separate Opinion Oda (note 8), para. 22, and 1982 Dissent Oda (note 7), para. 148. Cf. C. M. Chinkin, Third-Party Intervention Before the ICJ, AJIL, vol. 80, 1986, 495531, 510.

1*

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inferences might legitimately be drawn from the findings/reasoning w i t h respect to rights or claims of third States in the Tunisia / Libya case, since in his view Malta could be affected by the Court's decision indicating the principles and rules related to, e. g., the existence of islands. According to Judge Oda, since the Court could not define the "area" in question prior to dealing w i t h the principal case, the possibility of an adverse effect upon a third State was not excluded. 62 A t the same time, he emphasized in another part of his Separate Opinion that more could not be demanded of Malta than of Tunisia and Libya. 6 3 I n fact, Article 62 of the ICJ Statute should, in Judge Oda's view, be interpreted as including non-party intervention in the case in which a jurisdictional link is absent, and it would not have been difficult for the Court, basing itself on Article 62(2), "to allow the intervention of the third State particularly concerned, depending on the Court's evaluation of the imminent and grave interests prima facie at stake." 64 I n Judge Oda's opinion, Malta was such a State, as it prima facie belonged to the very "area" in issue and would not escape the legal effects of the Court's Judgment. I n addition, the fact that the LOS Convention (Article 121) reaffirmed the legal regime of islands, without distinguishing an island State (as is Malta) from any other coastal States or non-independent islands, confirmed Judge Oda's view that the Court should avoid formulating any judgment affecting areas which might fall within the purview of Malta's interests. 65 The foregoing views of Judge Oda, in spite of his vote in favour of the Court's 1981 Judgment, testify to his supportive position with respect to the third parties' right to intervene in case of maritime delimitation. This seems confirmed by Judge Judgment on Application Oda's Dissenting Opinion to the 1984 Libya/Malta by Italy for Permission to Intervene and his Separate Opinion to the 1990 El Salvador / Honduras Judgment on Application by Nicaragua for Permission to Intervene, which are further commented upon below. Judge Oda ultimately concurred w i t h the 1981 Tunisia/Libya Judgment due to the fact that it involved delimitation between adjacent States in case of which "the interest of a third State which is situated on the opposite side and far from the coasts of these adjacent States may not, prima facie, be greatly affected by such a delimitation, nor by the declaration of the applicable principles and rules." 66 62

1981 Separate Opinion Oda (note 8), para. 23, and 1982 Dissent Oda (note 7), para. 148. 1981 Separate Opinion Oda (note 8), para. 19. 64 Ibid., paras. 15-16 and 23, and 1982 Dissent Oda (note 7), para. 148. Cf Shigeru Oda, Intervention in the ICJ: Articles 62 and 63 of the Statute, in: Völkerrecht als Rechtsordung — internationale Gerichtsbarkeit — Menschenrechte, Festschrift für Hermann Mosler, Berlin 1983, 629-648. 65 1982 Dissent Oda (note 7), para. 150. 66 Continental Shelf (Libya / Malta), Application by Italy for Permission to Intervene Judgment, I.C.J. Reports 1984, 1-29 (hereinafter 1984 Libya / Malta Judgment), decided by 63

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Malta's legal interest in the Tunisia / Libya case was also acknowledged by Judge Stephen M. Schwebel, who maintained that Malta's CS claims apparently "may" well be "affected" by the reasoning of the Court's holdings that bear upon CS claims of Tunisia and Libya and might at some points compete with those of Malta. 6 7 He based himself on Malta's contention as to the existence of one and the same shelf to be ultimately delimited in any event among Tunisia, Libya, Malta and Italy, all of which were shelf-locked, the outer limits of their continental shelves not exceeding 200 miles. I n Judge Schwebel* s opinion, the fact that Malta's request did not submit the legal interests of Malta vis-a-vis Tunisia and Libya for the decision of the Court was, nevertheless, relevant to the judgment of whether Malta had legal interests which might be affected by the decision in the case. Like Judge Oda, Judge Schwebel believed that, had it been necessary to decide whether a jurisdictional link between Malta and the parties was necessary under Article 62, the better view would have been that it was not. 6 8 b) Equitable Apportionment I n analysing equitable principles, Judge Oda focused on two controversial aspects of the Court's doctrine, namely equitable apportionment and geographical equity. 6 9 Since the customary nature of the 200 mile distance, be it in case of the EEZ or the CS, legalized equally valid claims to the sea-bed area of two States whose coasts were less than 400 miles apart, and since the lateral extent of the sea-bed appertaining to the coastal State was not restricted a priori , both Tunisia and Libya were, according to Judge Oda, in principle entitled to claim any area within a 200-mile radius of any point on their coastlines as appertaining to their respective CS or EEZ. 7 0 Therefore, the Court was, in his view, only requested to indicate the principles and rules for "dividing the area which both parties might claim under the concepts of the continental shelf and the exclusive economic zone." This logically evokes the concept of "a just and equitable share" (or "coastal facade") which the then Professor Oda claimed as counsel for the Federal Republic of Germany in the North Sea cases, and which the Court rejected in its 1969 Judgment primarily, eleven votes to five (including Judge Oda), and Dissent Oda, ibid., 90-114, 113, para. 43 (hereinafter 1984 Dissent Oda). 67 1 981 Separate Opinion Schwebel (note 26), 37-40. Cf. Jonathan I. Charney, Remarks, in: Proceedings of the 76 Annual Meeting of American Society of International Law, Washington, D.C., 22-24 April 1982, Washington D.C. 1984, 154-160, 156. 68 1981 Separate Opinion Schwebel (note 26), 40. 69 Note emphasis by Judge Oda as then counsel of the F.R.G. on application of the equitable standard to maritime delimitation, in: I.C.J. North Sea Pleadings, vol. II, 55 - 63, 193-201, and 241 (No. 332). 70

1982 Dissent Oda (note 7), paras. 152 and 151 (quoted under note 43).

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in Judge Oda's view, due to heavy dependence on its doctrine of the coastal State's CS rights existing ipso facto and ab initio. 71 Since under this doctrine the (mutually exclusive) areas of the CS of each party were predetermined ab initio , the function of the CS delimitation consisted of discerning a line already potentially in existence. The natural prolongation, as Judge Oda indicated, was developed by the Court precisely as an aid to what he perceived as the performance by the Court of that very special and difficult task. But whatever the necessity of the Court's logic in the 1969 context, it could not, according to Judge Oda, be upheld in the Tunisia / Libya delimitation. 72 c) Geographical Equity Judge Oda agreed w i t h the Judgment that delimitation must lead to an equitable solution, but considered the Court's dictum that "delimitation is to be effected in accordance w i t h equitable principles" as stating a truism rather than suggesting any principles and rules of international law. 7 3 Equally vague, as Judge Oda argued in the preceding part of his Dissenting Opinion, was the final content of identical Articles 74 and 83 of the LOS Convention which, after deletion from their text of reference to equidistance and relevant circumstances, are based on a tripartite structure of agreement, international law as referred to in Article 38 of the ICJ Statute, and equitable solution. This is a "catchall provision" aimed to satisfy both the "equidistance" and the "equitable principles" schools of thought, but as Judge Oda observed, given the difficulty of deriving any positive meaning from these provisions, it would seem that "the satisfaction must be essentially of a negative kind, i.e., pleasure that the opposing school has not been expressly vindicated." 74 I n his attempt to identify elements of, as he puts it, a "blanket concept [of equity] susceptible of diverse interpretations", 75 Judge Oda rejected any role for various political, social and economic factors, such as the size of the territories and their population, the distribution of natural resources or the degree of economic development of the parties. 76 O n the other hand, Judge Oda appeared to admit 71 Ibid., para. 153; 1969 North Sea Judgment (note 19), paras. 18-19 and 39; I.C.J. North Sea Pleadings (note 69), 196. But see, e. g., Sir Humphrey Waldock as counsel of Denmark and the Netherlands, in: North Sea Pleadings, op. cit., 85, 275. 72 1982 Dissent Oda (note 7), para. 154. 73 Ibid., para. 155. See also reference to "the principle of non-principle ibid., para. 1 (note 10); and 1982 Tunisia/ Libya Judgment (note 7), para. 38. 74 1982 Dissent Oda (note 7), para. 143; also paras. 142 and 145. See further his criticism of the Court's emphasis on the principle of agreement, ibid., para. 144. Cf. arguments of Prosper Weil as counsel of Malta invoking Judge Oda's views, in: I.C.J. Libya / Malta Verbatim Record of Pleadings, CR 84/24, 50, 60-61. 75 1982 Dissent Oda (note 7), para. 156. 76 Ibid., para. 157.

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some exceptions to this approach when he mentioned that the role of islands in maritime delimitation may depend on demographic and economic factors. 77 I n this context, it could be observed that in spite of the repeated rejection by the Court of operation of equity as justitia distributiva with a view to ensuring objective decisions infra legem, 7* the Court has already partly acknowledged that resource (and likewise navigational, security and defence) factors may be relevant to maritime delimitation. 79 Moreover, there appears to exist an unstated alternative that courts do and w i l l continue to take such factors into account in the delimitation process. Such an assumption would seem to be supported by the difference between the court's role in making the law and the court's role in applying this law. While searching for the content of equity in its application to maritime delimitation, Judge Oda also denied that much guidance could be found in the theory of the "hinterland", although he admited that prolongation of the land frontier may in some cases provide an acceptable solution. 8 0 I n sum, he agreed w i t h the Court that, as it stated in the 1969 North Sea Judgment, "Equity does not necessarily imply equality" and, "There can never be any question of completely refashioning nature." 81 Judge Oda emphasized that the geography of the areas concerned undoubtedly played an essential role in maritime boundary delimitation. This was reflected by explicit reference to equidistance and the relevant circumstances both in the 1958 Continental Shelf Convention (Article 6) and in the successive negotiating texts of the LOS Convention (Articles 74 and 83) until as late as August 1981 when this reference was omitted upon the initiative of the new U N C L O S I I I President, Ambassador Tommy Koh. 82 77

Ibid., paras. 173 and 176. On the only exception of "catastrophic repercussions", see 1984 Gulf of Maine Judgment (note 55), para. 273, as confirmed by the 1985 Libya / Malta Judgment (note 55), para. 50. 79 Cf. argumentation in favour of economic factors by Elihu Lauterpacht as counsel of Malta, in: I.C.J. Libya/Malta Verbatim Record of Pleadings, CR 84/23, 24-50, CR 84/24, 5-47, and CR 85/6, 5-16, 35; 1992 Dissent Weil (note 28), paras. 33-37; Derek W. Bowett, The Economic Factor in Maritime Delimitation Cases, in: International Law (note 15), 4563; Thomas Franck, Judging the World Court, New York 1986,63 - 64; Barbara Kwiatkowska, Economic and Environmental Considerations in Maritime Boundary Delimitations, in: Charney / Alexander (note 25), vol. 1, 75-113; and text accompanying note 177. 80 Cf. Daniel Bardonnet, Frontieres terrestres et frontieres maritimes, AFDI, vol. 36, 1990, 1 - 64; Prosper Weil, Delimitation maritime et delimitation terrestre, in: Dinstein / Tabory (note 2), 1021-1026. 81 1982 Dissent Oda (note 7), paras. 158 and 159. Cf. the Frontier Dispute (Burkina Faso / Republic of Mali), Judgment, I.C.J. Reports 1986, 554-651, 633, para. 150. 82 1982 Dissent Oda (note 7), paras. 160 and 142; Question I I I by Judge Oda, in: I.C.J. Tunisia / Libya Pleadings, vol. V, 244, 245-246 (No. 493); and Question IV(2) by Judge Oda, quoted in main text under note 186; Prosper Weil as counsel of Malta, in: I.C.J. Libya / Malta Verbatim Record of Pleadings, CR 84/24, 50, 59. 78

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Criticism of both the Court's disregard of equidistance as the only concrete principle and the broad reference to equity in the texts debated by U N C L O S I I I can also be found in the Dissenting Opinion of Judge Evensen , who, like Judge Oda, acknowledged that the new criterion of distance strengthened equidistance as the equitable principle of maritime delimitation. 83 Contrary to that, Judge Jimenez de Arechaga , undertaking a difficult task to deny equidistance the nature of not only a legal rule but even of a privileged method in application of equity, (in spite of the new CS / EEZ parallelism which he acknowledged,) regarded the omission of equidistance from Articles 74 and 83 as testifying to the "toning down" of its significance. 84 The text as it reads now thus, would confirm the primacy of equity as an autonomous "lead rule". 8 5 However, in view of the travaux preparatoires of both the 1958 Convention and Articles 74 and 83, such minimization of the role of equidistance appears at least open to doubt. d) Essential Effect of 200 Mile Distance as a N e w Principle of Legal Entitlement to the CS / EEZ Strengthening the Equidistance I n his Introduction to Chapter V I I Judge Oda re-emphasized that although the delimitations of the EEZ and the CS, as shown in his detailed account of the legislative history of Articles 74 and 83 of the LOS Convention, were dealt w i t h together and, thus, the principles applicable to delimitations of these two areas might be the same, it can be argued that "the practical application of those principles in each case might be different as a result of applying the same principles in different frameworks." 86 A n essential point is made by Judge Oda in a sentence which directly follows this remark and in which he states that: If not, what ought to have been considered by the Court was whether criteria of distance , being intrinsic to the Exclusive Economic Zone and also favoured by the latest concept of the Continental Shelf (which sounds the knell of both the depth and the exploitability tests), ought not to play a role in the common delimitation of the area. Such consideration by the Court of the principle of distance as the new basis of legal title to the (inner) continental shelf would be of essential importance for delimitation of the areas concerned, in that the principle of distance implied, in normal circumstances, the use of equidistance. I n the further part of his Dissenting Opinion, while reflecting on equidistance as a function of geographical equity, Judge Oda reconfirmed that:

83 84 85 86

1982 Dissent Evensen (note 11), paras. 5, 14 and 15 (see also note 89). 1982 Separate Opinion de Arechaga (note 51), paras. 31-36. Ibid., para. 26. 1982 Dissent Oda (note 7), para. 146, fifth point.

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In addition, it cannot be over-emphasized that in the new concept of the continental shelf as well as in the exclusive economic zone the distance criterion now plays a decisively important role in defining the expanse of the respective areas, thus also qualifying their very nature. 87 Finally, in Chapter V I I I of the Dissenting Opinion while putting forward his (modified) equidistant boundary line as a more sound alternative to the one favoured by the Court, Judge Oda stated that the bisected angles, compromise boundaries, half-effects, etc., preferred by the Court "are simply approximations to the consistent geometrical approach, based on a distance criterion, which the Court has rejected for no stated reason"; he added that "a distance criterion is precisely the one established feature of the exclusive economic zone regime which is destined to replace natural prolongation as a test in delimitation of the continental shelf." 88 A similar approach, although not supported by such comprehensive analysis as Judge Oda's Dissenting Opinion, was adhered to by Judge Evensen. 89 A shift shown by Judge Oda in the legal entitlement from a physical concept of natural prolongation to the legal and spatial concept of 200 mile distance under the influence of the new CS / EEZ parallelism, necessarily implied the decisive importance of equidistance which has persistently been denied the status of a legal rule by the Court. Meaningfully, Judge Oda titled the respective section of Chapter V I I of his Dissenting Opinion "The Rule of Equidistance" as well as the (qualified) equidistant line which he suggested in Chapter V I I I as his equitable method for delimitation of the Tunisia / Libya continental shelf. e) The Concept of Proportionality The Dissenting Opinion considered proportionality as a function of geographical equity in the meaning ascribed to it by the Court, which involved the lengths of the coasts facing the sea-bed areas concerned, such lengths being measured in the general direction of the coast. 90 Proportionality was not meant per se to determine the boundary line but served as the test of whether any suggested line 87

Ibid. , para. 160. Ibid., para. 182; also para. 61. 89 1982 Dissent Evensen (note 11), 296, para. 15; also 294, para. 14. Cf. Jennings, The Principles (note 25), 406. But note that while pleading in the Tunisia / Libya case as counsel of Tunisia, then Professor Jennings argued that, "If the 200-miles distance limit were of a determinative influence, it would follow logically that the principle of equidistance is governing, the debate over Article 83 would be otiose, and that absolute proximity would be the governing principle in spite of the 1969 Judgment... The 1969 Judgment would have been reversed. But that is clearly not the position." See I.C.J. Tunisia / Libya Pleadings, vol. IV, 421 (No. 492). 90 1982 Dissent Oda (note 7), paras. 161 (quoting 1969 North Sea Judgment (note 19), paras. 98 and 101 (D)(3)) and 163. 88

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would satisfy the requirement of equity. Application of this concept may, as Judge Oda argued, be complicated by the existence of third parties and geographical and geomorphological circumstances which might now determine the outer limit of only the CS extending beyond 200 miles. Judge Oda disagreed w i t h the part of the Judgment relying on calculation of the length of the coastlines and the expanse of the areas, namely 31:69 ratio of the coastlines of Tunisia and Libya, or reckoned on a basis of straight-line coastal fronts, a 34:66 ratio, which led the Court to a division of the area in an approximately 40:60 ratio which, in the Court's view, met the requirements of the test of proportionality as an aspect of equity. Emphasizing that it was by no means the case of sharing a confined area in conformity with proportionality, Judge Oda doubted how the area concerned could be defined in advance, in terms of definite parallels and meridians. 91 He emphasized the necessarily general concept of proportionality, which in combination w i t h the essential role of geographical factors and equidistance, formed the basis for the equitable boundary line suggested by Judge Oda as an alternative to the one suggested by the majority of the Court. f) (Rule of) Equidistance, Including the Role of Islands I n the last section of Chapter V I I Judge Oda gave an overall perspective of the essential importance of equidistance as the method and rule of maritime delimitation. Noting that the North Sea cases deprived equidistance of the nature of a legal rule while admitting that no other method had the same "combination of practical convenience and certainty of application," 92 Judge Oda quoted, w i t h evident admiration, the views of the earlier Japanese member of the International Court, Judge Kotaro Tanaka, who in his 1969 Dissenting Opinion stated that: The incorporation of the equidistance rule as a geometrical technique into a legal norm [Article 6 of the Convention on the Continental Shelf] exemplifies an extremely widespread phenomenon which can be observed in regard to several kinds of extra-legal, social and cultural norms and in such fields as usage, ethics and techniques . . . In the case of the equidistance principle, a technical norm of geometrical nature, after being submitted to juridical evaluation has become incorporated or naturalized in law as a legal norm vested with obligatory force. 93

91

Ibid.j para. 164; and 1982 Tunisia / Libya Judgment (note 7), paras. 75 and 130-131. Cf. Lawrence L. Herman , The Court Giveth and the Court Taketh Away, ICLQ, vol. 33, 1984, 825-858, 852, and Zoller (note 49), 664, who both agree with Judge Oda's criticism. See also criticism in 1982 Dissent Gros (note 11), para. 17; 1982 Dissent Evensen (note 11), 313, para. 23. 92 1969 North Sea Judgment (note 19), para. 23; also 1982 Dissent Oda (note 7), paras. 176, 180-181 and 188 (see also note 112). 93 North Sea Continental Shelf Dissent Tanaka, I.C.J. Reports 1969, 171-196, 183.

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I n fact even the F.R.G., which in the North Sea cases opposed the view that Article 6 of the 1958 Convention codified customary law, was — as Judge Oda recalled earlier in his Dissenting Opinion — not necessarily against the method of equidistance / special circumstances. I n his capacity as counsel for the F.R.G., Professor Oda argued that: The use of a median line is a method of demarcation which, if used in proper geographical context, and if no unsound subsequent conclusions are drawn from its existence, can lead to commonsense results and just and equitable solutions.94 I n Judge Oda's view, the fact that the equidistance method was one which, according to the 1958 Convention and the 1969 Judgment, applied in principle in normal situations, appeared to confirm its nature as a legal rule, notwithstanding exceptions to its application. 95 Judge Sir Robert Jennings expressed a similar view in one of his essays, arguing that in its otherwise "brilliantly drafted" North Sea Judgment: The Court might be understood as suggesting that a "principle" is necessarily absolute (see para. 41 for "the idea of absolute proximity"); and that, therefore, any principle which may in certain circumstances lead to an inequitable result cannot or at least should not be a principle of law. This would surely be mistaken, and would be a curious error for any lawyer to make . . . Moreover, the function of equity is precisely to qualify rules of law when their application in particular circumstances would produce "extraordinary, unnatural or unreasonable" results . . . Moreover, the Court seems to forget that even in Art. 6 of the Geneva Convention on the continental shelf, the principle of equidistance is qualified in its application precisely in those circumstances where it would produce an unfair result. 96 It may well be that equidistance was not accepted by the 1969 Judgment for the reasons implied in it, namely convergent claims of several States and irregularities in the coastline in the N o r t h Sea area. 97 As in the case of the "equitable share", there might simply have been too great a readiness to generalize these specific submissions. As regards the differences between advocates of equidistance and equitable principles during U N C L O S I I I , Judge Oda felt that these might not be as insurmountable as was generally thought. I n fact, as he rightly observed, "since the 94 I.C.J. North Sea Pleadings , vol. II, 54 (No. 332); and ibid., 201, when he remarked that, "The equidistance method does have a function, but it is subordinated to the higher principle of equitable apportionment." Cf. Shigeru Oda, International Law of the Resources of the Sea, RCADI (note 14), 444-450; and Oda, International Law of the Resources of the Sea (note 14), 90-96. 95 1982 Dissent Oda (note 7), para. 166. 96 Jennings, The Principles (note 25), 399-400. Cf. Wolfgang Friedmann, General Course in Public International Law, RCADI, tome 127, 1969/11, 38-246, 160-161; Lauterpacht (note 59), 124-130. 97

1982 Dissent Oda (note 7), para. 62; also para. 167.

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time of the 1958 Conference on the Law of the Sea efforts have been made to reconcile equity w i t h geography surrounding the sea-bed areas concerned." 98 The reason for criticism of the 1958 Continental Shelf Convention, both within and outside U N C L O S I I I , could in his view have related to the way it was drafted, harnessing together the unequivocal geometrical method of "equidistance" and the equivocal notion of "special circumstances". This presumption seems to be, to some extent, supported by the autonomous equity-oriented reasoning of Judge Jimenez de Arechaga who, when denying that equidistance is a binding rule or enjoys any privileged status or even advantage of a presumption in favour of such status, apparently had in mind the application of strict (unqualified) equidistance. 99 I n support of his argument that equidistance would, by reason of geographical configuration of the coasts of Tunisia and Libya, produce "inequitable and disproportionate results to the detriment of Libya", Judge de Arechaga drew an analogy to the North Sea cases and quoted from the opinion of then Professor Oda as counsel for the F.R.G., referring to "the extreme, and even sometimes bizarre, results reached by strictly applying the equidistance method", which "can only be properly applied at short distances from the coast." 100 Apart from opting for qualified equidistance, Judge Oda suggested that the problem of the adequate accommodation of equidistance and special circumstances could perhaps be solved through always taking account of various factors determining the baselines from which the equidistant line is measured. For this purpose, he proposed to construe the inherent logic of the 1958 Convention as follows: While the sole use of the equidistance method can be expected to lead to an equitable result, this is on the understanding that the baseline to be employed for the purpose of the geometrical construction will vary from case to case, from the strict version used in measuring the limit of the territorial sea to certain modified baselines employed because of special circumstances in the geography of the region. 101 One special circumstance, especially relevant in the Tunisia / Libya case, concerned islands. According to Judge Oda the degree of irregularity of the coastline to be considered significant in each case might vary according to the overall expanse of the area concerned. I n the case of comparatively large areas, the existence of some irregularities might be ignored, but in the case of small areas, even some minor irregularity would probably have to be taken into account for the purpose of rectifying the baseline for delimitation of the CS or E E Z . 1 0 2 Although neither the 1958 nor the LOS Conventions provided how islands could influence the 98

Ibid., para. 168. 1982 Separate Opinion de Arechaga (note 51), paras. 21 and 28. 100 Ibid., paras. 104,108 and 109. But note Reply of Oda to Judge Sir Gerald Fitzmaurice , in: I.C.J. North Sea Pleadings, vol. II, 196 (No. 332). 101 1982 Dissent Oda (note 7), para. 168, in fine. 102 Ibid., para. 169. 99

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delimitation of the CS, the travaux preparatoires of these treaties evidenced, in Judge Oda's view, that the presence of an island might "influence the equity of a delimitation." 1 0 3 I n each case an island should be considered on its own merits when the baseline for plotting equidistance was being determined. When an island was within easy reach of the mainland, geographical and demographic criteria would normally be sufficient to determine whether it should be treated as a rectifiable irregularity, but low-tide elevations should, in his opinion, be ignored in the delimitation of the continental shelf (and presumably also of the EEZ), due to the fact that the wider (than traditional 3 mile) 12 mile territorial sea had become an established rule of international law. g) The Court's and Judge Oda's Delimitation Methods and Boundary Lines The method and boundary line suggested by Judge Oda in Chapter V I I I of his Dissenting Opinion are the logical result of his coherent reasoning presented above, which importantly challenged that of the majority of the Court. This reasoning was summarized by Judge Oda in the preceding Chapter V I I as follows: In conclusion, I would suggest that, considering geography as the sole factor to be employed for the division of the sea-bed area, a division of the area concerned in proportion to the length of the relevant coast of each State facing that area will, in principle, satisfy the requirement of equity, and the geometrical method of equidistance will, in principle, serve to achieve this purpose. 104 aa) Judge Oda's Criticism of the Court's Method and Line Judge Oda criticizes the apparent lack of ground for either of two sectors, as well as a whole line, suggested by the Court, as not exemplifying any principles or rules of international law. 1 0 5 I n the first sector of the line, he saw no justification for either following the western boundary of the Libyan concessions, or for continuing to the point of intersection w i t h a parallel passing through the most westerly point of the Tunisian coast in the Gulf of Gabes. 106 If the configuration of the area was looked at from a position and angle different from the traditional 103 Ibid., para. 173; also paras. 170-172; and paras. 149-150; Oda, International Law of the Resources of the Sea (note 14), 96-98, 104-106. Cf. Derek W. Bowett, Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations, in: Charney / Alexander (note 25), vol. 1, 131 -151. 104 1982 Dissent Oda (note 7), para. 176. 105 Ibid., para. 180. See also strong criticism in 1982 Dissent Evensen (note 11), paras. 1726, and 1982 Dissent Gros (note 11), paras. 10-24; and less strong criticism in 1982 Separate Opinion de Arechaga (note 51), paras. 111-124. Cf. Brown (note 11), 156-159, and Brown (note 25), 159-160, 162-163, who fully agrees with Judge Oda. 106

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north-south / west-east view, it would become clear that the veering point suggested by the Court had no special relationship w i t h the most westerly point in the Gulf of Gabes. Judge Oda confirmed this criticism in his Separate Opinion to the 1985 Tunisia/ Libya Judgment on Application for Revision and Interpretation of the Judgment of 24 February 1982.107 I n the second sector, Judge Oda challenged a parallel line w i t h the general direction of the coast of Tunisia north of the most westerly point of the Gulf of Gabes, as adjusted by the Court to allow a half-effect to the Kerkennah Islands (surrounded by islets and low-tide elevations) due to their size (180 square kilometers) and position. 1 0 8 A line parallel to the coastline could only appropriately be used for the outer limit of maritime zones, and not for the lateral or common boundaries of the zones of adjacent or even opposite States. This criticism was also made in Judge Oda's 1985 Separate Opinion, which claimed there was no justification for the 1982 suggestion by the Court that the veering point of the line should be on the same latitude as the turning-point of the Gulf of Gabes' coast. 109 That particular point, which just happened to be "the most westerly point" of the Gulf of Gabes, was chosen by the Court "empirically within a range of physical possibilities" and not necessarily based on legal grounds. The critical assessment of both sectors of the Court's line was in addition reaffirmed by Judge Oda in his Dissenting Opinion to the 1985 Libya/Malta Judgment. I n this Opinion he specifically added that the half-effect granted by the Court to the Kerkennahs resulted from a complete misunderstanding of the half-effect which was given in the 1977 Anglo/French arbitration to the English Scilly Isles (uniquely located on the "wrong side of the median line") for the purpose of rectifying the bases for equidistance. 110 bb) Method and Line Suggested by Judge Oda The Dissenting Opinion in the Tunisia / Libya case indicated that the Court's line might represent an acceptable solution, but its equitableness could only be verified by comparing it w i t h the outcome of applying what Judge Oda perceived to be "a truly equitable method." For this purpose, Judge Oda suggested the use of qualified equidistance which was "the equitable method par excellence , and for 107 1985 Separate Opinion Oda (note 9), paras. 9-10. Cf. the Continental Shelf ( Tunisia / Libya), Separate Opinion Ago, I.C.J. Reports 1982, 95-98. 108 1982 Dissent Oda (note 7), para. 179. 109 1985 Separate Opinion Oda (note 9), paras. 12 and 14. 110 1985 Dissent Oda (note 14), paras. 72-73, and paras. 39-45. Cf. Derek W. Bowett, The Arbitration Between the United Kingdom and France, BYIL, vol. 49, 1978, 1-29, 14 and 18-26; Jean-Pierre Queneudec, L'Affaire de la Delimitation du Plateau Continental entre France et le Royaume-Uni, RGDIP, vol. 83, 1979, 53-103. See also note 169 and accompanying text.

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this reason alone should be tried before all others." 1 1 1 He stressed that an important advantage of equidistance "lies in the fact that its inherent property of equity remains constant whatever the 'area relevant to the delimitation,' so that the imperious necessity of defining that area is removed — and w i t h it the need to resort to the arbitrary and artificial use of parallels and meridians." 112 The qualified equidistance suggested by Judge Oda was to be measured from baselines determined on the basis of the coastal configuration of Tunisia and Libya, revealing no features which would call for departure therefrom. 113 The Kerkennahs and low-tide elevations were to be wholly disregarded. While the effect of the Kerkennahs having pushed the baselines for the territorial sea of Tunisia far to the east was tolerable, no similar (and more pronounced) effect could be accepted in relation to such a vast and economically important zone as the continental shelf. As regards the Kerkennah Islands, which were thus granted half-effect by the majority of the Court and no effect whatsoever by Judge Oda, Judge Schwebel referred in his 1982 Separate Opinion to the third possibility, namely giving the Islands full effect. 114 cc) Ultimate Maintenance of the Court's Method and Line I n spite of his conviction that the Court had decided its boundary line without adequate ground, Judge Oda voted in favour of the 1985 Tunisia / Libya Judgment, in which the Court unanimously rejected Tunisia's Application for revision, interpretation and correction of an error in the 1982 Judgment, except for admitting Tunisia's request for interpretation of the first sector of the line relating to "the most westerly point of the Gulf of Gabes." I n fact, Judge Oda found Tunisia's requests for interpretation relating to both the first and second sectors of the boundary line inadmissible, but as the question of admissibility in both cases was 111

1982 Dissent Oda (note 7), paras. 180-181. For agreement with Judge Oda's view, see Herman (note 91), 833-834. Modified equidistance was also the best solution according to the 1982 Dissent Evensen (note 11), though ultimately Judge Evensen proposed (in his Conclusions) resolution of the dispute through a joint exploitation zone of the parties. This suggestion could be related to Judge Evensen' s experience as conciliator in the Iceland/ Norway (Jan Mayen) Continental Shelf Commission. 112 1932 Dissent Oda (note 7), para. 188, in fine. For agreement with Judge Oda's view, see Brown (note 11), 161. Cf. 1982 Dissent Gros (note 11), paras. 11-12; Continental Shelf (F.R.G. / Denmark; F.R.G. / Netherlands ), Dissenting Opinion Lachs, I.C.J. Reports 1969, 218-240, 240; Prosper Weil, The Law of Maritime Delimitation — Reflections, Cambridge 1989, 59. 113 1982 Dissent Oda (note 7), paras. 183-184 and 186-187. Judge Oda gave also the specific geographical coordinates of his qualified equidistant line as illustrated by two maps attached thereto, I.C.J. Reports 1982, 274. For the map offered by the majority, see id. at 90. 114 Continental Shelf (Tunisia / Libya), Separate Opinion Schwebel, I.C.J. Reports 1982, 99. Similarly 1982 Dissent Gros (note 11), para. 14; and 1982 Dissent Evensen (note 11), paras. 15 and 17-19.

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put to the vote together w i t h the contents of the respective requests, and as he agreed w i t h the Court's findings that these requests could not be upheld, he had voted in favour of the 1985 Judgment. 115 I n relation to the first sector of the Court's boundary line, Judge Oda stated that however much it might be criticized: The cause and motive underlying the Court's Judgment, which is final, are not matters subject to revision under Article 61 of the Statute. In other words, if any case could be made for contemplating a revision of the 1982 Judgment, it would rather be on the basis of a criticism of its reasoning than on that of any "facts" newly drawn to the Court's attention. However, the Statute makes no provision for revising a Judgment of the Court on such grounds. 116 N o r did he find any room for further interpretation of the second sector of the line, stressing that for this reason any other interpretations of lawyers or geographers became irrelevant. I n conclusion Judge Oda stated that although he could personally not support it, the Court had made in its 1982 Judgment a firm and clear suggestion for a practical method of defining the boundary line, and Tunisia's requests for interpretation of the Judgment were simply (as had been contended by Libya) "disguised requests for revision." 1 1 7 Tunisia and Libya were not prevented from reaching a mutual agreement on their delimitation that would not correspond to the Court's decision, and that would supersede their Special Agreement. Ultimately, the boundary line suggested by the 1982 Judgment was fully implemented by the two parties through their subsequent Benghazi Maritime Delimitation Agreement of 8 August 1988 and, presumably, two other agreements concluded the same year and concerning their joint exploitation zone in the Gulf of Gabes (El Bouri Field). 1 1 8 Thus, the parties, motivated primarily throughout the long course of their dispute by their concerns w i t h petroleum exploitation, opted ultimately for the solution of joint development, as originally envisaged in their 1972 political agreement. 4. Concluding Remarks The 1982 Dissenting Opinion of Judge Oda to the majority Tunisia/ Libya Judgment is significant in terms of a complex but precedential exposition of the effects of the new CS / EEZ parallelism and the principle of 200 mile distance on the law of maritime delimitation, which are presented by Judge Oda against the background of an in-depth analysis of the development of both the traditional 115

1985 Separate Opinion Oda (note 9), para. 1. Ibid., para. 10, in fine; also para. 14, in fine. 117 Ibid., para. 19, in fine. 118 For the text and analysis, see Tullio Scovazzi, Report Number 8-9, in: Charney / Alexander (note 25), vol. 2, 1663-1680. 116

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and the modern oceans regime. After two subsequent cases, i. e.y the 1984 Canada / United States Gulf of Maine Maritime Boundary and the 1985 Libya/Malta Continental Shelf cases, the effects of the new CS / EEZ parallelism became the subject of more pronounced attention by a number of outstanding authorities, including Sir Robert Jennings , Keith Highet , Prosper Weil, Edward Brown and others. However, at the time of the delivery of the Tunisia / Libya Judgment which preceded the signing of the LOS Convention in December 1982, Judge Oda's analysis stood alone as a significant testimony to the possible erosion of the negative attitude towards the rule of equidistance developed by the Court since its 1969 North Sea Judgment, within the context of the application of equity to maritime boundary delimitation. Judge Oda's position favouring the right of third States to intervene, as evidenced by his 1981 Separate Opinion and confirmed by his 1982 Dissenting Opinion, was also meaningful in that the 1981 Tunisia/ Libya Judgment was the first ever involving third State intervention under Article 62 of the ICJ Statute. II. Libyan Arab Jamahiriya / Malta Case Concerning the Continental Shelf 1. Introductory Remarks I n the Libya / Malta Continental Shelf case, Judge Oda appended his Dissenting Opinions to both majority Judgments delivered by the Court — the Judgment of 3 June 1985 on the merits, 119 and the Judgment of 21 March 1984 on Application by Italy for Permission to Intervene. 120 The 1985 Dissenting Opinion of Judge Oda, which is less than half the length of his 1982 Tunisia/ Libya Dissenting Opinion but still somewhat exceeds the majority Judgment, length of the analysis contained in the 1985 Libya/Malta has two marked characteristics. One of them is that the Libya / Malta Dissenting Opinion may be considered to be "Part T w o " of the analysis found in Judge Oda's Dissenting Opinion to the Tunisia / Libya Judgment. The second characteristic is that the 1985 Dissenting Opinion could be qualified as kind of a "double dissent" as it seriously questions not only the findings of the Court in the Libya / Malta case, but also those of the ICJ Chamber in the preceding Canada / United States Gulf of Maine Maritime Boundary case.121 119

See notes 14 and 55. See note 66. 121 See note 55; 1985 Dissent Oda (note 14), paras. 74-79. See also 1984 Dissent Gros (note 55), para. 45 and a map. See further Gulf of Maine Maritime Boundary (Canada/ U.S.A.), Constitution of Chamber, Order, I.C.J. Reports 1982, 1-9, decided by eleven votes (including Judge Oda) to two, and Declaration Oda, ibid., 10. Cf. Oda, Further Thoughts (note 59). 120

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The 1985 Libya/ Malta Judgment, in Judge Oda's view, shows that the Court did not fully appreciate the recent developments in the law of the sea and, consequently, was in danger of "taking the principle of equity for what it subjectively feels to be equitable", or in other words, translating equity as "a subjective appreciation of circumstances." 122 Judge Oda proceeds, in his 1985 Dissenting Opinion, w i t h his critique of the 1985 Libya / Malta Judgment (Chapter I) against the background of a reappraisal of the complex issues pertaining to the "equidistance / special circumstances" rule (Chapter II) and an analysis of misunderstandings evident in the preceding Tunisia/ Libya and Gulf of Maine Judgments which were duplicated in the Libya / Malta Judgment (Chapter III). Judge Oda's cogent reasoning logically leads to his suggestion for a Libya / Malta equidistant line (Chapter IV) which has important differences from the line proposed by the majority of the Court. 2. Judge Oda's Theory of the New Continental Shelf Exclusive Economic Zone Parallelism One of the main reasons for Judge Oda's criticism of the 1985 Judgment was a continuing lack of appreciation by the Court's majority of the new twofold CS / EEZ parallelism which, as Judge Oda explained in his 1982 Dissenting Opinion, occurs between the legal regimes of the EEZ and the inner CS up to 200 miles on the one hand, and between the two regimes of the inner CS (within 200 miles) and the outer CS (beyond 200 miles) on the other hand. W i t h respect to the EEZ / inner CS parallelism within 200 miles and its relevance to the Libyan / Maltese delimitation, Judge Oda notes an increased awareness on the part of the Court of the importance of that parallelism for the delimitation of the continental shelf. 123 But he seems rightly dissatisfied w i t h the Court's hesitancy to draw appropriate conclusions on that basis. Thus, while recognizing that the EEZ, w i t h its legal title based on distance, now incontestably forms part of customary law, the majority Judgment, as Judge Oda suggests, does not accept that the CS concept has been "absorbed" by that of the EEZ. 1 2 4 Moreover, while making a step beyond the Tunisia / Libya Judgment by acknowledging that the criterion of distance applies now to both the EEZ and the CS, the 1985 Libya/ Malta Judgment, in Judge Oda's view, refuses to admit that "the idea of natural prolongation is now superseded by that of distance." The Judgment suggests, instead, that natural prolongation is " i n part" defined by distance, and that these two concepts are "not opposed but complementary; and that both remain essential elements in the juridical concept of the continental shelf." 122

1985 Dissent Oda (note 14), para. 1. Ibid., paras. 5 and 60. 124 Ibid., para. 2 (quoting fragments of 1985 Libya/Malta and 34). 123

Judgment (note 55), paras. 33

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This view, Judge Oda contends, undermines the Court's acknowledgment of the criterion of distance in the regime of the CS and appears, at least within the 200 mile context, to be "no more than a method of keeping 'natural prolongation' alive by artificial respiration." 125 As Judge Oda in his reappraisal of law of the sea developments stated once more, what Article 76(1) of the 1982 U N Law of the Sea Convention (LOS Convention) offers: Is not, as the Judgment seems to suggest, two complementary definitions of the (legal) continental shelf — hence two complementary criteria for determining its appurtenance — but two radically alternative definitions. 126 The 200 mile distance as a customary principle governing legal entitlement to the continental shelf is also recognized in the 1985 Dissenting Opinion of Judge Hermann Mosler and the Separate Opinion of Judge ad hoc Nicolas Valticos (designated by Malta); while Vice-President Sette-Camara , in his Separate Opinion, considers this principle only a "trend", thus ascribing to it even less importance than the Court. 1 2 7 However, whereas Vice-President Sette-Camara at least appears to admit two distinct entitlements in terms of natural prolongation and distance, the Separate Opinion of Judge Keba Mbaye appears as an extreme interpretation to the contrary of the ambiguous assertions of the Court. I n particular, according to Judge Mbaye , under Article 76 of the LOS Convention the natural prolongation remains the basic entitlement to the continental shelf, while the 200 mile distance and likewise the outer edge of the continental margin are but complementary means of implementation of this basic rule. 1 2 8 As was discussed above in the context of the Tunisia / Libya case, such interpretation as well as 125 Ibid., para. 6. The adequacy of this Judge Oda's view is often underlined by other authors, e. g.y Eric David, La Sentence Arbitrale du 14 fevrier 1985 sur la Delimitation de la Frontiere Maritime Guinee-Guinee Bissau, AFDI, vol. 31,1985, 350-389, 372; Emmanuel Decaux, L'Arret de la C.I.J. dans l'Affaire du Plateau Continental (Libye / Malte), ibid., 294-323, 303; L. D. M. Nelson, The Roles of Equity in the Delimitation of Maritime Boundaries, AJIL, vol. 84, 1990, 837-858, 851. 126 1985 Dissent Oda (note 14), para. 61. Cf. arguments of Prosper Weil as counsel for Malta, in: I.C.J. Libya/Malta Verbatim Record of Pleadings, CR 84/25, 5-79; CR 84/26, 5-36; and CR 85/7, 5 and 32-60. Cf. also Weil (note 112), 38-45; Rüdiger Wolfrum, The Emerging Customary Law of Marine Zones: State Practice and the Conventional Law of the Sea, NYIL, vol. 18, 1987, 121-144, 142-143. 127 1985 Separate Opinion Sette-Camara (note 55), 65-70; see also text accompanying note 55; Continental Shelf (Libya / Malta), Dissent Mosler, I.C.J. Reports 1985, 114-122, 119 (hereinafter 1985 Dissent Mosler ); Separate Opinion Valticos, ibid., 104-113, 104-105, paras. 3-4 (1985 Separate Opinion Valticos). 128 Ibid., Separate Opinion Mbaye, 93-103, 93-99 (hereinafter 1985 Separate Opinion Mbaye). Cf. arguments invoked to similar effect in: I.C.J. Libya / Malta Verbatim Record of Pleadings by counsels of Libya: Günther Jaenicke, CR 84/30, 32-61; CR 84/31, 5-34; CR 85/10, 5-34; Jean-Pierre Queneudec, CR 84/31, 35-63; CR 84/32, 5-22; CR 85/10, 45-64; Keith Highet, CR 84/34, 5-15; and Derek W. Bowett, CR 84/34, 16-63; CR 85/ 11,5.

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rejection of a 200 mile outer limit of the CS as a customary norm have no ground in the development of international law of the sea. Although the language of Article 76 lends itself to the interpretation exemplified by the view of Judge Mbaye, the approach of Judge Oda, distinguishing two alternative definitions of the CS based on distance and on natural prolongation, appears to be a "much more acceptable interpretation, which is in accordance w i t h both commonsense and the physical origin of the notion of natural prolongation and which, incidentally, would not alter the result of the application of the formula." 1 2 9 There is even less justification for espousing the interpretation adhered to by Judge Mbaye in relation to international customary law. This is because (as Judge Oda also argued) the very fact that the new rule of 200 mile CS is derived from the EEZ regime indicates that this rule is quite independent of the existence of a natural prolongation. 1 3 0 Significantly, in oral pleadings in Denmark v. Norway Maritime Boundary in the Area Between Greenland and Jan Mayen case, which like the Libya / Malta case involved two coasts of very different lengths which were less than 400 miles apart, there was no reference whatsoever to the concept of natural prolongation, especially on the part of Denmark which opposed the use of the principles of "equal division" and equidistance as advocated by N o r w a y . 1 3 1 As Judge Oda put it, the "misconceptions" on the part of the Court's majority in the Libya/ Malta case had important consequences in terms of the Court's perception of the content and operation of the principles and rules related to equitable maritime delimitation. 3. Principles and Rules for the Equitable CS/ EEZ Delimitation and Judge Oda's Boundary Line a) Status of Third States As in Tunisia/ Libya case, Judge Oda criticizes the majority's misconstruction Judgment, of the "relevant area" for the operation of the 1985 Libya/Malta because the aggregate of the "areas-to-be" appertaining to Libya and Malta respectively could affect third States. 132 I n fact, as Judge Oda in his 1985 Dissenting Opinion indicates, the L i b y a / M a l t a "area" somewhat differs from that in the 129 Edward D. Brown , The Libya-Malta Continental Shelf Case, in: Bin Cheng / Edward D. Brown (eds.), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger , London 1988, 3-18, 12. 130 Ibid. Cf. Jennings / Watts (note 25), 781. 131 See arguments invoked in: I.C.J. Denmark v. Norway Verbatim Record of Pleadings by advocates of Denmark, Eduardo Jimenez de Arechaga , CR 93 /2, 60 - 80; and Derek W. Bowett, CR 93/4, 9-37, CR 93/10, 48-69. Cf. Argument of Prosper Weil as advocate of Norway, CR 93/8, 2-66, CR 93/9, 2-36, CR 93/11, 41-51. 132 1985 Dissent Oda (note 14), para. 8; and 1984 Dissent Oda (note 66), para. 39.

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Tunisia / Libya case where the Court could plausibly confine itself to a certain area without affecting third State claims, and essentially differs from the "area" involved in the Gulf of Maine case where only a division between Canada and the United States was at issue. Judge Oda reaffirms the regret he had already expressed in his Dissenting Opinion to the 1984 majority Judgment on Application by Italy for Permission to Intervene that the Court rejected Italy's Application and limited its task to a very narrow "area". He emphasizes again that, unlike what was upheld in the 1984 Judgment, Article 59 of the ICJ Statute does not guarantee that the Court's decision in a case concerning the title erga omnes w i l l not affect a third State claim to the same title. 1 3 3 By confining its task to a narrow area with a view to not risking interfering w i t h a third State claim, the Court, according to Judge Oda, lost "sight of the scope of the dispute between the two original Parties" and fell short of that full exercise of jurisdiction which they were entitled to expect. 134 The Court's decision also, in Judge Oda's view, confused calculation of proportionality between the lengths of coastline and the area to be divided. As Judge Oda in his 1984 Libya / Malta Dissenting Opinion suggests, the Court appeared to presuppose a priori the scope of the kind of intervention it deemed genuine, and then drew the conclusion that Italy's Application did not fall into this category. This approach, in Judge Oda's view, was incorrect in that Italy's request fell within the scope of intervention confined to the scope of the Libya / Malta Special Agreement, thus, precluding Italy from seeking a decision of the Court which would directly uphold its own claim. 1 3 5 He reiterated his view expressed in the 1981 Tunisia/Libya Separate Opinion that non-party intervention in the case in which a jurisdictional link is absent is possible under Article 62 of the ICJ Statute provided an interest of a legal nature is present. 136 Moreover, while emphasizing the existence of an interest for Italy which could be affected by the decision in the case, Judge Oda added that, unlike in the Tunisia / Libya case which involved adjacent States, Italy's interest was especially pronounced due to the exclusively opposite location of the two main parties. 137 The oppositeness of the coasts of States concerned is also emphasized in the 1984 Dissenting 133 1985 Dissent Oda (note 14), para. 10, quoting 1984 Dissent Oda (note 66), para. 37; 1984 Libya / Malta Judgment (note 66), para. 42. See also 1985 Dissent Oda (note 14), para.

80. 134 1985 Dissent Oda (note 14), paras. 11-12. Cf strong criticism in the 1985 Dissent Mosler (note 127), 116-117; 1985 Separate Opinion Valticos (note 127), paras. 21 and 28. See also arguments of: Derek W. Bowett as counsel of Libya, in: I.C.J. Libya / Malta Verbatim Record of Pleadings, CR 84/35, 5-21; CR 85/11, 5 and 32-46; Ian Brownlie as counsel of Malta, CR 85/5, 44-53; Günther Jaenicke as counsel of Libya, CR 85/10, 5 and 33-45. 135 1 984 Dissent Oda (note 66), paras. 2 and 33-36. 136 Ibid., para. 29. 137

Ibid , para. 43.

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Opinion of the Vice-President Sette-Camara, which stressed that any decision of the Court would necessarily affect the interests of Italy as this was "an imperative of the geography of the region." 1 3 8 Another of five dissenting Judges favouring admissibility of the Italian Application, Judge Sir Robert Jennings , while observing that the 1981 Maltese Application was rejected because Malta "asked too little", found it unfortunate that the Court now appeared to reject Italy's Application because Italy "asked too much". 1 3 9 I n Sir Robert's opinion, if the Court regarded Italy's request to "safeguard" its rights as leading inevitably to the Court's finding on the validity of those rights, then there was "virtually no practical possibility of a third party ever safeguarding its rights by intervention under Article 62, save when the main parties have at some stage given their consent"; whereas there is no circumstance more relevant than "the legal rights of a geographically immediate neighbour." 1 4 0 Equally critical was the 1984 Dissenting Opinion of Judge Schwebel, who had Judgment, and who appended his Separate Opinion to the 1981 Tunisia/Libya now argued that Italy's interest of a legal nature was not only "eminently plausible" but "so obvious as to be beyond question", w i t h Italy having more than met the standard of proof that its interest "may" be affected by the Court's decision in the case. 141 Judge Schwebel observed that while the primary ground of inadmissibility of Malta's request in 1981 was Malta's refraining from placing its claims in issue, the Court now rejected Italy's Application on the ground that Italy placed its claims against Libya and Malta in issue. 142 As regards the permissibility of non-party intervention by Italy under Article 62 of the ICJ Statute, Judge Schwebel, in an excellent analysis of the issue of a jurisdictional link, in his 1984 Dissenting Opinion, reaffirmed the position he expressed in the 1981 Tunisia/ Libya Separate Opinion, arguing that "Article 62 of itself furnishes sufficient title of jurisdiction to intervene 'in the case' — not to bring a new case in the guise of intervention, but to intervene incidentally 'in the case'." 143 He concludes that, "Whether, in fact, the Court's Judgment in this case, when taken together w i t h 138

Continental Shelf (Libya / Malta), Application by Italy for Permission to Intervene Dissent Sette-Camara, I.C.J. Reports 1984, 71-89, 81-83, paras. 57-62 (hereinafter 1984 Dissent Sette-Camara). 139 Continental Shelf (Libya / Malta), Application by Italy for Permission to Intervene Dissent Jennings, I.C.J. Reports 1984, 148-160, 150, para. 7 (hereinafter 1984 Dissent Jennings). 140 Ibid., paras. 19 (and 1984 Libya/Malta Judgment (note 66), para. 32) and 21. Cf. Brown (note 25), 264-265. 141 Continental Shelf (Libya / Malta), Application by Italy for Permission to Intervene Dissent Schwebel, I.C.J. Reports 1984, 131-147, 133-134, paras. 6 and 8 (hereinafter 1984 Dissent Schwebel). 142 Ibid., para. 17, in fine. 143

Ibid., para. 27; also paras. 18-38.

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that rejecting Malta's application, actually leaves wider scope for intervention than appears is to be hoped, but it is not now apparent." 144 The limited scope of operation of the 1985 Libya/ Malta Judgment which resulted from rejection of Italy's intervention in 1984 was one of the grounds for Judge Schwebel's subsequent dissent in the 1985 Judgment. I n particular, he found it inappropriate that, in its 1985 Judgment, the Court virtually granted to Italy what Italy would have achieved if its request to intervene had been granted. 145 Judge Schwebel suggested that the terms of the 1985 Judgment confirmed his conviction that the Court's decision to deny Italy's request to intervene was in error, and he engaged in a detailed examination of how the Court arrived at its conclusion. He found the Court's arguments unpersuasive, concluding that what was critical were not claims but "facts of geography" which must operate in favour of Malta and Libya as well as Italy and, where appropriate, in favour of other States to the extent that the facts existed. 146 A t the same time, he recognized that the 1985 Judgment " i n a practical sense does serve to mitigate the error of rejection of Italy's intervention." Another dissent to the 1984 majority Judgment was also filed by Judge Roberto Ago, who regarded the ground for rejection of Italy's Application to be entirely unfounded. I n particular, Judge Ago disagreed that this Application could be treated as an "instance a titre principal " instituted by Italy against Libya and Malta that would require the Court to "decide on the rights" which Italy has claimed against the two States. 147 The Court, in his view, thus missed a unique opportunity to grant permission to intervene in a classic case exemplifying a situation for which the institution of intervention was devised in the ICJ Statute. 148 I n Judge Ago's opinion, "This avenue, which was theoretically still open, towards a wider and more liberal conception of international judicial proceedings, w i l l probably fall into oblivion." b) Essential Effect of 200 Mile Distance as a New Principle of Legal Entitlement to the CS / EEZ Strengthening the Equidistance Although the Court had, in its 1985 Libya/Malta Judgment, shown more appreciation of the recent developments in law of the sea than it did in its 1982 144

Ibid. , para. 39, in fine. Continental Shelf (Libya/Malta), Dissent Schwebel , I.C.J. Reports 1985, 172-187, 173-174 (hereinafter 1985 Dissent Schwebel). 146 Ibid. , 177-178. 147 Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene, Dissent Ago, I.C.J. Reports 1984, 115-130, 127, para. 19 (hereinafter 1984 Dissent Ago). 145

148

Ibid., para. 22.

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Tunisia/ Libya Judgment, Judge Oda, in his 1985 Dissenting Opinion, remained strongly critical of what he considered an inconsistency in the Court's treatment of not only natural prolongation in the context of 200 mile distance already referred to above, but also implications of the criterion of distance for the principles and rules governing maritime delimitation. I n particular, Judge Oda indicated, on the one hand, that the Court admitted (as Malta contended) that the title to the continental shelf within 200 miles depended now solely on the distance and that, thus, the geological and geomorphological factors were irrelevant. But, on the other hand, the Court was unable to accept that this new importance of distance conferred, at any rate for delimitation between opposite coasts, a primacy on the method of equidistance, at least in terms of a provisional first-step method. 1 4 9 I n this context it is to be noted that, in the 1984 Gulf of Maine Judgment, the Chamber, although it recognized the customary nature of the exclusive economic zone, rejected the Canadian contention on the 200 mile distance as the sole basis of title to the continental shelf, evidently fearing that this could enhance the role of equidistance in maritime delimitation, or as the Chamber put it, "turn equidistance into a genuine rule of l a w . " 1 5 0 Were Judge Oda the Chamber's member, the Chamber would have probably taken a different approach. A t the time of the Libya / Malta Judgment, the use of equidistance as a result of title to the CS based on the criterion of distance was, in addition to Judge Oda, also supported by the Dissenting Opinion of Judge Mosler and the Separate Opinion (resembling, on the whole, a dissent) of Judge ad hoc Valticos. 151 Although, in the Libya / Malta Judgment, the Court acknowledged "impressive evidence" of the equity of equidistance, the Court's rejection of equidistance as even the preferable point of departure, and the severity of the Court towards the absence of the "equidistance / special circumstances" rule in Articles 74 and 83 of the LOS Convention, in Judge Oda 9s view, amounted to the Court offering equity as the "approved antithesis" to equidistance. 152 It is presumably w i t h a view of moderating this antithesis that Judge Oda in Section 6 of Chapter I I of his 1985 Libya/Malta Dissenting Opinion entitled "Equity within the 'Equidistance / Special-Circumstances' Rule" somewhat restructured his approach in dis149

1985 Dissent Oda (note 14), para. 3. Cf arguments of Günther Jaenicke as counsel of Libya, in: I.C.J. Libya / Malta Verbatim Record of Pleadings, CR 84 / 31,5 - 6, that recognition of a superior or at least a primary role of the criterion of distance "would be tantamount to recognizing the equidistance method as a rule of law — a thesis constantly rejected by this Court." This was similarly pleaded by Sir Robert Jennings as counsel of Tunisia in the Tunisia / Libya case (note 89). 150 1984 Gulf of Maine Judgment (note 55), paras. 94 and 102-107. Cf criticism of Jennings / Watts (note 25), 806. 151 1985 Dissent Mosler (note 127), 120; 1985 Separate Opinion Valticos (note 127), paras. 6-13. 152

1985 Dissent Oda (note 14), para. 4.

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cussing the problems which he previously examined in Section I I I of Chapter V I I of his 1982 Tunisia/ Libya Dissenting Opinion under the heading "Equitable Principles". It was also the term "equidistance / special circumstances" rule, rather than "equidistance" per se, which Judge Oda consistently used throughout his 1985 Dissenting Opinion, w i t h a view to emphasizing that: The method of equidistance has never been proposed as a counter-concept to the rule of equity and that this method has been considered by adjudicators to lie well within the framework of the rule of equity. 1 5 3

Finally, as in the Tunisia / Libya case, it was the "equidistance / special-circumstances" rule which, as a rule of international customary law, was considered by Judge Oda to be the most sound solution of Libya / Malta delimitation. 1 5 4 c) The Concept of Proportionality While in Tunisia / Libya Judge Oda criticized a priori the calculation by the Court of the area concerned in application of the proportionality test, in the Libya / Malta case he strongly disagreed w i t h the Court's assessment of a proportional division of the shelf areas attributed to each of the parties that was not based on any figures for comparison of the test of proportionality. 1 5 5 I n the Libya / Malta case the Court, it may be suggested, abandoned application of this test due to the complex geographical context and the existence of third State interests, though claiming it was possible to make "a broad assessment of the equitableness of the result, without seeking to define the equities in arithmetical terms." I n the light of the Court's repeated affirmation that the concept of proportionality involved comparison of the mathematical ratios of the lengths of the coasts and the areas of shelf attributed to each of the parties, Judge Oda found the assessment made by the Court in dissociation from such ratios to be meaningless. 156 Judge Oda also strongly criticized the approach taken in the 1985 majority Judgment in the second stage of the delimitation process when, after having 153 Ibid., para. 7. Cf. arguments of counsels of Malta in: I.C.J. Libya / Malta Verbatim Record of Pleadings, in particular Elihu Lauterpacht, CR 84/23, 24, 50-60; and Prosper Weil , CR 84/26, 5, 51-86. 154 1985 Dissent Oda (note 14), para. 80. 155 Ibid., paras. 13-15; 1985 Libya / Malta Judgment (note 55), paras. 67, 74 and 75. 156 1985 Dissent Oda (note 14), para. 15. For agreement with Judge Oda's view, see Decaux (note 125), 321. See also 1985 Dissent Mosler (note 127), 117-118; as well as 1985 Dissent Schwebel (note 145), 184-187, and 1985 Separate Opinion Valticos (note 127), paras. 15-23, both pointing out that an a posteriori test of proportionality is meaningless in the case of opposite States. For the opposite view, see Continental Shelf (Libya / Malta), Joint Separate Opinion Ruda, Bedjaoui and Jimenez de Arechaga, I.C.J. Reports 1985, 76-92, 8889, paras. 31-33 (hereinafter 1985 Joint Separate Opinion).

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established in the first stage the equidistance as a provisional line, the Judgment considered whether other considerations, including the factor of proportionality, justified an adjustment of that line. The Court concludes that disparity between the lengths of the Maltese coastline (24 miles) and the Libyan coastline (192 miles) was too pronounced to justify such adjustment. 157 Pointing out that the very concept of equidistance (median) line in the case of opposite States implied "a proportional ratio for the division of the area, instead of necessarily guaranteeing equality", Judge Oda challenged the Court's 1 : 3.8 ratio of the division of the area concerned by his own suggestions. 158 I n particular, he submits that the genuine equidistant line will, depending on specific calculations, produce the ratios of about 1 : 2.3 or 1 : 4. The question whether or not any one of these ratios, 1 : 3.8 proposed by the Court, or 1 : 2.3 or 1 : 4 suggested by Judge Oda, appears more or less equitable is in his opinion a moot point, but the Judgment should in any event prove how the application of the equidistance leading to such ratios in exclusively opposite States would give an inequitable result. As he emphasized later in his analysis, contrary to the very concept of proportionality which it recognizes, the Court in its adjustment of the provisional equidistance in fact "employs proportionality not for the purpose of verification of the equitable result, but as a criterion for drawing the delimitation line." 1 5 9 Criticism was also expressed by Judge Schwebel , who, in his 1985 Dissenting Opinion, suggested that the Court appeared to base its Judgment on "some intuitive instinct" to give Libya a bonus — because its coastlines were so much longer than Malta's — by awarding Libya some 6,000 square kilometers of the continental shelf which, by application of a pure equidistance, would be allocated to Malta. 1 6 0 The Court's decision to use the lengths of the coasts was also criticized in the Separate Opinion of Judge ad hoc Valticos, w i t h the indication that this introduced an elemerjt of inequality reflected .by location of the boundary line closer to the shorter coast, thus "banishing any hope of achieving a minimum degree of harmony and comparability in the establishment of the various delimitation lines in the seas." 161 Taking account of all circumstances, one could agree w i t h Edward Brown that it would have been sensible if the Court simply decided that the proportionality test was dispensable in this case because of the practical

157 1985 Dissent Oda (note 14), paras. 16-17; 1985 Libya/Malta Judgment (note 55), para. 68. For agreement with Judge Oda's view, see Ian Brownlie as counsel of Norway, in: I.C.J. Denmark v. Norway Verbatim Record of Pleadings, CR 93/7, 8, 58, 63. 158 Cf. 1985 Joint Separate Opinion (note 156), para. 39, the three Judges arguing that the Court's ratio was really 1:2.38, which they found insufficient. 159 1985 Dissent Oda (note 14), para. 26. 160 1985 Dissent Schwebel (note 145), 183, discussed by Weil (note 131), CR 93/9, 1213. Cf. Bowett (note 131), CR 93/4, 14, 16-18, and CR 93/10, 50. 161 1985 Separate Opinion Valticos (note 127), para. 20.

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difficulties w i t h effecting the calculations required. 162 But given the manner in which the Court had constructed its line, it is not really surprising that the Court ultimately found (without resorting to any arithmetical terms) its line to satisfy the proportionality test. d) (Rule of) Equidistance, Including the Role of Islands The contentious application of the proportionality test was but one of the elements in the process that lead the Court to its Libya / Malta boundary line, which, in Judge Oda's opinion, "resembles more the result of a transaction than an application of judicial principles." 163 Although continuously denying equidistance any status other than that of one of possible delimitation methods (even in delimitation between opposite States), the Court had established equidistance (ignoring the Maltese islet of Fifla) as a first-step provisional line, but, in view of the marked disparity between the lengths of Libyan and Maltese coastlines, had decided to adjust this line by shifting it closer to Malta. 1 6 4 For the purpose of determining the extreme limit of such a shift, the 1985 Judgment assessed the "general geographical context" of the central Mediterranean, concluding that the island State of Malta was but "a minor feature" of that context. Therefore the Judgment took the notional equidistance between Libya and the Italian island of Sicily as the extreme limit of the envisaged shift, and transposed the provisional equidistance northward (closer to Malta) about three-quarters of the distance between the provisional Libya / Malta and notional Libya / Italy (Sicily) equidistant lines. 165 I n other words, distance between these lines was divided in the proportion three-quarters for Libya and one-quarter for Malta. Apart from the surprising coincidence (in Judge Oda's view) (not mentioned in the Judgment) that the intersection point of the delimitation line and the reference line happened to have the same location as the southwestern limit of the Italian claim in the Ionian Sea, Judge Oda suggested that the whole shifting operation, bearing no geographical relation to Libya and Malta, was geographically mistaken. According to Judge Oda: The suggestion made by the Judgment for the delimitation line is based simply on the illusion created by the traditional north-south / east-west view of the atlas, and thus 162

Brown (note 129), 17. 1985 Dissent Oda (note 14), para. 1. 164 Ibid., paras. 19-20; 1985 Libya / Malta Judgment (note 55), para. 71. 165 1985 Dissent Oda (note 14), paras. 21-23; 1985 Libya/Malta Judgment (note 55), paras. 72-73. Cf. 1985 Guinea / Guinea-Bissau Maritime Boundary Award, para. 110, which takes account of basepoints on the coasts of Senegal and Sierra Leone in drawing a straight baseline to determine the general direction of the West African coastline for the purposes of the third sector of Guinea / Guinea-Bissau maritime boundary, ILM, vol. 25, 1986, 251, 297-98. 163

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ultimately on the plane of the earth's rotation, a factor which has yet to receive conscious recognition in international law. 166 Judge Oda was also highly critical of the Court's treatment of one of the main parties in this case, the island State of Malta, as but a special circumstance that affected delimitation: If Malta is to be given partial effect, there is theoretically no need to consider the Malta / Libya median line at all: it becomes a mere convenience enabling the notional intercontinental Sicily / Libya median line to be more easily adjusted.167 The Court's "adjusted/ transposed" line was, in Judge Oda's opinion, deprived of all the properties inherent in the concept of equidistance, and could not be regarded as Libya / Malta, but rather as Sicily / Libya adjusted equidistance. The Court's line, in Judge Oda's view, reflected the lack of a proper understanding both of geography, especially in the context of oppositeness of the coasts and the equidistance method, and also of a practical application of the geometrical method of equidistance. 168 According to Judge Oda, the particular adjustment of the equidistance by the Court had, in all likelihood, resulted from misinterpretation of the precedential half-effect given to the English Scilly Islands in the 1977 Anglo / French Continental Shelf Decision. The Anglo / French arbitration involved a unique instance of the isolated group of tiny Scilly Islands located on the wrong side of the median line, and was thus, Judge Oda emphasized, incomparable to partial effect given in the 1985 Judgment to the main State party itself. 169 The Court's line was also strongly criticized by Judge Schwebel who stated, in his 1985 Dissenting Opinion, that the Court "conspiciously fails to invoke and objectively apply relevant circumstances which specifically or measurably justify, still less require, correction of the median line." 1 7 0 He saw no justification for reliance, even notionally, by the Court on an intercontinental (Africa-Libya/ Europe-Italy) median giving no weight whatsoever to Malta. He observed that it was "a creative consideration, of no obvious probative value, which is not easily reconcilable w i t h principles of the sovereign equality of States." Contrary to the

166

1985 Dissent Oda (note 14), para. 25; also para. 24. Cf Derek W. Bowett as counsel for Libya, in: I.C.J. Libya/Malta Verbatim Record of Pleadings, CR 84/35, 7-8. 167 1985 Dissent Oda (note 14), para. 27. 168 Ibid. , paras. 29-30. 169 Ibid., para. 28 and paras. 39-45. In Judge Oda's opinion, the Gulf of Maine Judgment departed even more than the Tunisia / Libya Judgment from the half-effect (enclave) technique used in the Anglo / French arbitration with a clear view to rectifying the bases for drawing the equidistance line, but not, as the Chamber had done, for replacing the very concept of equidistance. See 1985 Dissent Oda (note 14), para. 79. Note that the enclave solution was rejected by the 1992 Canada / France (St. Pierre and Miquelon ) Decision (note 28), para. 42. See also note 110 and accompanying text. 170 1985 Dissent Schwebel (note 145), 179, 181-182.

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Court's perception, which, in Judge Schwebel* s view, unjustifiably narrowed this context to the limits of Italian claims, the macrogeographical context of the semienclosed Mediterranean operated neither for nor against either Malta or Libya; rather what operated for each of them was the extent, configuration and situation of the coastal fronts of respective opposite and adjacent States.171 The three concurring Judges, Judges Jose Maria Ruda, Mohammed Bedjaoui, and Judge ad hoc Jimenez de Arechaga (designated by Libya), in their 1985 Joint Separate Opinion, criticized the Court's reasoning of the use of Libya / Italy notional equidistance from a different, autonomous equity-oriented perspective. 172 I n their opinion, the coast of Italy was really opposite to that of Libya only in a short segment of the Sicilian coast. Since the notional median itself required correction (on account of the disparity in the lengths of the relevant coasts), through a correcting on that basis of the Malta / Libya provisional equidistance, the Court attempted to solve one unknown with another unknown, this being, in their view, a formidable exercise. Unlike Judges Oda, Schwebel , Mosler and Valticos who argued in favour of a genuine Libya / Malta equidistance, the three concurring Judges found it hazardous to assert that the claims of Libya should not extend northwards beyond a notional Libya / Italy equidistance, thus to even greater disadvantage of Malta than the Court's line. Unlike the 1982 Tunisia / Libya Separate Opinion of then Judge ad hoc Jimenez de Arechaga , the 1985 Libya/Malta Joint Separate Opinion did not address at all the essential question of new entitlement to the CS based on the principle of distance. Instead, the three Judges rejected the Maltese contention claiming the use of equidistance, because, in their view this claim was "an attempt to subordinate the equitable result to be achieved, to the method adopted", which contradicted their perception of the fundamental role of equity in maritime delimitation. 173 What they found adequate was "full application" of the equidistance and proportionality concepts. This implied using, first, equidistance w i t h a view to giving a precise indication of the contours and characteristics of the boundary line, and then employing proportionality w i t h a view of correcting the line by "shifting it northwards to the requisite latitude, so as to achieve a reasonable relationship between the areas w i t h a view to an equitable result." I n the subsequent paragraphs, the Joint Separate Opinion continued detailed examination of the issues involved in the use of proportionality test which, to some extent, differed from the approach taken by the 1985 Judgment. 171

Cf. criticism in 1985 Dissent Mosler (note 127), 120 -122; and in 1985 Separate Opinions of: Sette-Camara (note 138), 74-75, Mbaye (note 128), 99-103, and Valticos (note 127), para. 23. 172 1985 Joint Separate Opinion (note 156), paras. 16-19. Cf. Continental Shelf (Libya/ Malta), Declaration El-Khani , I.C.J. Reports 1985, 59. 173 1985 Joint Separate Opinion (note 156), paras. 20-40.

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The concurring Joint Separate Opinion may, however, be seen as but one possible approach to applying the fundamental norm of equity that "is as uninstructive as it is all-embracing", w i t h such an approach appearing to misinterpret, if not neglect, the development of the law of the sea which the three Judges regarded as "still quite rudimentary." 1 7 4 I n fact, it was observed w i t h respect to the Libya / Malta Judgment that, "Even functionalists may wonder why, in a straightforward opposite-State situation, it was found appropriate to deviate so far from the traditional median line, especially at a time when the need for equality of treatment between opposite States may seem to have been reinforced rather than reduced by the merger of EEZ and continental shelf delimitation criteria at U N C L O S I I I . " 1 7 5 According to another view, the Court's method leading to its delimitation line "was as idiosyncratic as it was unpredictable", while the Libya / Italy (Sicily) notional equidistance reflected "a worst-case scenario for Malta" based on the "exceedingly odd" assumption that Malta belonged to Italy and Italy received no credit in terms of CS entitlement by virtue of its sovereignty over Malta. 1 7 6 I n view of this wide criticism by both opponents and advocates of the 1985 Judgment suggesting a lack of convincing justification for the Court's method and line, one may wonder whether, apart from the importance attached to the disparity between coastal lengths and intention of minimizing the role of equidistance, the Court did not, in some degree, end by weighing up the socio-economic situation of the two parties. 177 e) Judge Oda's Delimitation Line I n his attempt to avoid any overgeneralization of the test of proportionality or misapplication of the equidistance, which, in his opinion, was evident in the Tunisia / Libya , Gulf of Maine , and the Libya / Malta Judgments, Judge Oda suggested in the last Chapter of his 1985 Dissenting Opinion the use of equidistance. This was also supported by Judges Mosler and Schwebel and Judge ad hoc Valticos , and importantly differed from the Malta / Libya boundary line proposed by the Court. Judge Oda's line, which ignored (as the Court's line) the island of Fifla as a basepoint, was a genuine equidistance drawn between Libyan and Maltese coasts as far as its intersection w i t h the equidistance between Italy and Libya. 1 7 8 174

Ibid. , para. 37. Johnston (note 7), 209. 176 Brown (note 129), 15-18. 177 Cf. note 79 and accompanying text. 178 1985 Dissent Oda (note 14), para. 80. The line, in the context of other boundaries in the region, is shown on a map appended to Judge Oda's Dissent, see I.C.J. Reports 1985, 171. For the map offered by the majority, see id. at 54. 175

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A t the same time, Judge Oda made a reservation that there was no intention on his part to imply that the equidistance line which Malta shared w i t h Italy definitely divided the area between those two States. I n the light of the Court's view, as expressed in its 1984 Judgment rejecting intervention of Italy, that the interests of the third party were protected by Article 59 of the ICJ Statute, Judge Oda emphasized that his suggested line between Libya and Malta simply meant that neither of these parties was entitled to claim against the other the area beyond that line. Ultimately, in accordance w i t h their 1976 Special Agreement (Article III), Libya and Malta explicitly implemented the Court's boundary line under their Valletta Agreement of 10 November 1986. 179

I I I . Guinea-Bissau and Senegal Maritime Delimitation 1. Introductory Remarks Delimitation of maritime spaces between Guinea-Bissau and Senegal is still to be settled by the Court in the pending Guinea-Bissau v. Senegal Maritime Delimitation case. I n its Application Instituting Proceedings, filed in the ICJ Registry on 12 March 1991, Guinea-Bissau requested the Court, in particular, to adjudge and declare: What should be, on the basis of the international law of the sea and of all the relevant elements of the case, including the future decision of the Court in the case concerning the arbitral "award" of 31 July 1989, the line (to be drawn on a map) delimiting all the maritime territories appertaining respectively to Guinea-Bissau and Senegal (para. 14). Meanwhile, Judgment in the Arbitral Award of 31 July 1989 case was delivered by the Court in November, 1991, and rejected all three submissions made by Guinea-Bissau in that case.180 The submission that the 1989 Guinea-Bissau / Senegal Award was inexistent was rejected by unanimous vote, while the submission that the Award was absolutely null and void was rejected by eleven votes (including Vice-President Oda) to four. The third submission of Guinea-Bissau that Senegal was not justified in seeking to require it to apply the Award was rejected by 179

For the text and analysis, see Tullio Scovazzi , Report Number 8-8, in: Charney / Alexander (note 25), vol. 2, 1649-1662. 180 Arbitral Award of 31 July 1989 ( Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, 53-76 (hereinafter 1991 1989 Arbitral A ward Judgment). See also Arbitral Award of 31 July 1989 ( Guinea- Bissau v . Senegal), Request for the Indication of Provisional Measu Order, I.C.J. Reports 1990, 64-71, decided by fourteen votes (including Judge Oda) to one. For an analysis of the 1989 Award, see Jean-Pierre Queneudec, L'Arbitrage Relatif a la Determination de la Frontiere Maritime Entre la Guinee-Bissau et le Senegal, 31 Juillet 1989, AFDI, vol. 35, 1989, 325-339.

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twelve votes (including Vice-President Oda) to three, w i t h the Court finding that the 1989 Award was valid and binding for both States which had the obligation to apply it. The 1991 Guinea-Bissau v . Senegal Judgment concerns the procedural question of the validity of an arbitration. However, it is of direct relevance for GuineaBissau / Senegal delimitation in that it reaffirms findings of the 1989 Award as to validity of the 1960 Franco-Portuguese Agreement w i t h respect to delimitation of the territorial sea, contiguous zone and the continental shelf between GuineaBissau and Senegal. I n accordance w i t h the 1960 Agreement, these three spaces are delimited by the straight (loxodromic) line drawn at 240° from the point of intersection of the prolongation of the land frontier and the low-water line (represented for that purpose by the Cape Roxo lighthouse). This single boundary line delimits the continental shelf "over the whole extent of that maritime space as defined at present", but it does not apply to delimitation of the 200 mile EEZ which did not exist at the time of adoption of the 1960 Agreement. 181 I n view of clear determination of the boundary line in the 1960 Agreement, the Court found the absence of a map as not rendering the 1989 Award invalid by means of "exces depouvoir but as Judge Manfred Lachs remarked, "Elementary courtesy required that the matter be dealt w i t h in a different w a y . " 1 8 2 Having regard to the 1991 Guinea-Bissau's Application in the new case referred to above, and a long and difficult arbitral procedure between the two States (with negotiations having been initiated since 1977), as well as to proceedings before the Court in the 1989 Arbitral Award case, the 1991 Judgment considered it highly desirable that the unsettled elements of the dispute, that is, the EEZ delimitation between Guinea-Bissau and Senegal should be resolved as soon as possible. As the EEZ boundary was apparently the real issue in dispute between the two states, Judge Oda, in his Separate Opinion to the 1991 Judgment, suggested that the whole procedure was, from the outset, ill-conceived and the 1985 GuineaBissau / Senegal Arbitration Agreement drafted in an inappropriate manner. 183 I n Judge Oda's opinion:

181 i99i 2989 Arbitral Award Judgment (note 180), paras. 16-18 (quoting paras. 80, 85 and 88 of the 1989 Award). There is no express reference to application of the 240° line within new limits of the territorial sea and contiguous zone, in spite of claims by both States to the 12 mile territorial sea, and by Senegal — also to the 24 mile contiguous zone. 182 Ibid., paras. 61-64; and Arbitral Award of 31 July 1989 ( Guinea - Bissau v. Senegal ), Separate Opinion Lachs, I.C.J. Reports 1991, 92-95, 95 (hereinafter 1991 Separate Opinion Lachs). For a map, see I.C.J. Guinea-Bissau v. Senegal Verbatim Record of Pleadings, CR 90/2, Annex. 183 Arbitral Award of 31 July 1989 ( Guinea-Bissau v. Senegal ), Separate Opinion Oda, I.C.J. Reports 1991, 81-91, 81, para. 1, and 85-88, paras. 11-17 (hereinafter 1991 Separate Opinion Oda). Cf. Jean- Pierre Queneudec, L'Affaire de la Sentence Arbitrale du 31 Juillet 1989 devant la C.I.J. (Guinee-Bissau c. Senegal ), AFDI, vol. 37, 1991, 419-443, 441.

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The representatives of the two countries who were responsible for drafting the Arbitration Agreement embarked upon their task without sufficient grasp of what they had taken for granted as premises in the light of some essential concepts of the law of the sea, particularly those concerning the interrelation between the exclusive economic zone and the continental shelf. They put to the Arbitration Tribunal a question which drifted away from the genuine issues, which concerned the law of the sea, in order to focus upon a narrow preliminary issue of treaty interpretation. 184

Ultimately, as Judge Oda indicated, neither was Guinea-Bissau, which advocated a line between 270° and 264° for the EEZ delimitation, the "losing party" nor Senegal, which favoured a 240° line for that delimitation, the "winning party". I n fact, even if the Court had declared the 1989 Arbitral Award non-existent or null and void, the position and rights of either State relating to the EEZ boundary could not have been affected. 185 However, in Judge Oda's view, as a result of upholding the 1991 Judgment of a 240° line, the issue which Guinea-Bissau and Senegal are presently facing concerns, unlike the situation in 1985, the drawing of an EEZ boundary line in a situation where a 240° boundary already exists for the continental shelf. I n this context, Judge Oda made in his 1991 Separate Opinion some important reflections concerning a single boundary line based on his theory of the CS / EEZ parallelism as developed in the Tunisia / Libya and Libya / Malta cases. 2. Single Boundary Line Although a single maritime boundary for the CS and the EEZ was not in issue in the Tunisia / Libya case, Judge Oda was the first to raise the problem of possible effects of the identity of Articles 74 and 83 of the LOS Convention when he addressed the two-part question to the agents of both parties during the Tunisia / Libya oral pleadings as follows:

184 1991 Separate Opinion Oda (note 183), para. 15. Cf. 1991 Separate Opinion Lachs (note 182), 94; Arbitral Award of 31 July 1989 ( Guinea-Bissau v. Senegal ), Separate Opinion Ni y I.C.J. Reports 1991,96-105,102-103. The 1991 Application of Guinea-Bissau Instituting Proceedings in the new Maritime Delimitation Between Guinea-Bissau and Senegal case referred to above and made in the course of proceedings in the 1989 Arbitral Award case could be regarded as testifying to Guinea-Bissau's appreciation of its inadequate approach emphasized by Judge Oda. But see arguments of Judges who voted against the 1991 Judgment, in Arbitral Award of 31 July 1989 ( Guinea-Bissau v. Senegal ), Dissent Aguilar Mawdsley and Ranjeva, I.C.J. Reports 1991,120-129; Dissent Weeramantry y ibid. y 130-174 (hereinafter 1991 Dissent Weeramantry); Dissent Judge ad hoc Thierry (designated by Guinea-Bissau), ibid., 175-185. In the context of the 1991 Dissent Aguilar Mawdsley , see L. D. M. Nelson , The Arbitration of Boundary Disputes in Latin America, NILR, vol. 20,1973 267-294,288292. 185 1991 Separate Opinion Oda (note 183), para. 16. 18 GYIL 36

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Judge Oda . . . Question IV ... My question is divided into two subsections: 1. Does each Party consider that, within the 200 miles which will be the limit of the exclusive economic zone, the delimitations of these two areas may well be different, or, on the contrary, ought not to be different? 2. The reference to all "relevant" or "prevailing" circumstances is dropped in the draft convention of this year. In interpreting the previous texts of the Third Law of the Sea Conference, which contained such a reference, would each Party have thought that the circumstances which might be taken into account in delimiting the continental shelf could or could not have been different from the circumstances to be taken into account in delimiting the exclusive economic zone?186 I n his 1982 Tunisia/Libya Dissenting Opinion, Judge Oda has indicated that the identity of Articles 74 and 83 implied that the principles and rules applicable to the CS delimitation would not be different from those applicable to the EEZ delimitation but that this "works both ways, in that one must examine whether principles said previously to apply to delimitation of the continental shelf are adaptable to delimitation of the Exclusive Economic Zone, and also see what features of the Exclusive Economic Zone concept are instructive in relation to delimitation of the shelf." 187 A n d in another part of this Dissenting Opinion, he referred to practical inconveniences of using two separate boundary lines: Yet, if the regimes of the Continental Shelf and Exclusive Economic Zone co-exist without covering coincident areas, a question may arise as to how the jurisdiction of the coastal State can be unambiguously exercised in the fringes where they fail to overlap. Is it congruous or conceivable that the same marine / submarine column should be placed under different national jurisdictions for the same purpose of resource exploitation, however different the resources may be, and that the same area of the ocean be consequently policed by two different States? One is entitled to enquire whether superimposition of two different boundaries is tolerable as a matter of international ordre public. 188 Judge Oda continues these doubts in subsequent writings, indicating that if boundaries of the CS and the EEZ are different, the same area w i l l in some situations fall within the EEZ of one State and the CS of the other State. 189 I n his opinion, it might be difficult to determine which State was entitled to exploration and exploitation of the sea-bed resources in any specific area claimed by one country as its own EEZ and by another as its own CS. If instead a single boundary should be chosen, a difficulty might arise w i t h regard to the criteria of drawing such a single line. This was signalled in Judge Oda's question during Tunisia / Libya pleadings, above, since those criteria would vary for the EEZ and the CS. 186

I.C.J. Tunisia / Libya Pleadings, vol. V, 246 (No. 493). Cf. Oda (note 15), 351. 187 1982 Dissent Oda (note 7), para. 145; also para. 146, fifth point (quoted in main text under note 86). 188 Ibid., para. 126, in fine. Cf. Brown (note 25), 351-354; Orrego Vicuna, The Exclusive Economic Zone (note 54), 199-200, expressing his agreement with Judge Oda. 189 See Oda, Queries (note 28), 317.

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A single boundary line delimiting the CS and the EEZ as justified by the new inter-relationship between the two areas, was also advocated by Judges Evensen and Jimenez de Arechaga in their respective Dissenting and Separate Opinions to the 1982 Tunisia/Libya Judgment. 190 As a matter of general approach in the context of effect of new entitlement based on distance, Judge Evensen (like Judge Oda) seemed to support the direct use of (qualified) equidistance as a single line; while Judge de Arechaga , consistent w i t h his support for autonomous equity, dissociated the use of single line from equidistance which he firmly opposed. A question similar to that posed by Judge Oda during the Tunisia / Libya pleadings was addressed to Canada and the United States by President of the Chamber, Judge Ago in the course of proceedings in the next Gulf of Maine Maritime Area case, the Chamber having been expressly requested by the parties to draw a single boundary line: In the event that one particular method, or set of methods, should appear appropriate for the delimitation of the continental shelf, and another for that of the exclusive fishery zones, what do the Parties consider to be the legal grounds that might be invoked for preferring one or the other in seeking to determine a single line? 1 9 1 I n its 1984 Gulf of Maine Judgment, the Chamber indicated that although the parties had not put forward any arguments in support of such boundary, "there is certainly no rule of international law to the contrary, and, in the present case, there is no material impossibility in drawing a boundary of this k i n d . " 1 9 2 I n fact, the Chamber based itself on neutral criteria of a geographical nature: It can be foreseen that with the gradual adoption by the majority of maritime States of an exclusive economic zone and, consequently, an increasingly general demand for single delimitation, so as to avoid as far as possible the disadvantages inherent in a plurality of separate delimitations, preference will henceforth inevitably be given to criteria that, because of their more neutral character, are best suited for use in a multipurpose delimitation. 193 The neutral geographical criteria were also the basis of the single lines suggested in the 1985 Guinea/ Guinea-Bissau Maritime Boundary Award (para. 113) and the 1992 Canada / France (St. Pierre and Miquelon) Maritime Areas Delimitation Decision (paras. 83-85), while in case of the 1981 Iceland / Norway (Jan Mayen) and the 1984 Argentina / Chile (Beagle Channel) delimitations the single lines 190 1982 Dissent Evensen (note 11), para. 10, in fine and Conclusions, 319; 1982 Separate Opinion de Arechaga (note 51), para. 56.

191 C 1 /CR 84/17, 62, quoted by Oda (note 15), 349-350. 192 1984 Gulf of Maine Judgment (note 55), para. 27; confirmed by the 1992 Canada / France (St. Pierre and Miquelon) Maritime Areas Delimitation Decision (note 28), para. 37. 193 1984 Gulf of Maine Judgment (note 55), para. 194. See also Jennings / Watts (note 25), 804-807; ILA Report (note 54), 339. But note criticism in 1984 Dissent Gros (note 55), paras. 5-35, presumably resulting from his position referred to in main text following note 55.

1*

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were predominated by the considerations of the EEZ (fisheries) and the CS respectively. During oral pleadings in the pending Denmark v. Norway Maritime Boundary in the Area Between Greenland and Jan Mayen case in January 1993, Vice-President Oda addressed the following question to Denmark: It seems to me that a single line for the maritime boundary may well be sought by States concerned for practical purposes, but the present case is not one in which both Parties have agreed to have the Court determine a single maritime boundary. The concept of a single maritime boundary has not been established in either customary international law or treaty law. If Denmark, as stated in its Application, wants to have a single boundary line drawn in this case, which boundary line (i. e., that of the exclusive economic zone or that of the continental shelf) does Denmark believe should be foremost and therefore absorb in its confines the other line? Does Denmark believe that the boundary of the continental shelf (which could have been determined prior to the emergence of the concept of the exclusive economic zone) dictates the boundary of the exclusive economic zone (which Denmark believes should coincide with the boundary of the continental shelf) in the sea areas between Greenland and Jan Mayen? 1 9 4 I n reply, Denmark stated that State practice has increasingly favoured the use of a single maritime boundary, perhaps because, in the majority of situations, there was no relevant factor which could justify a different location for shelf, fishing or EEZ boundaries. 195 Moreover, in the present case there has been no request for different lines, one for the shelf and another, a different one, for the fishing zones. I n determining the location of such a single boundary Denmark has wished to follow the Court's Judgment in the Gulf of Maine case. As Denmark understood that Judgment, "it was not so much a question of which zone line (i.e. shelf or fishing zone) had priority, or which zone absorbed the other, but more a question of identifying and applying those factors relevant to both zones." The two other cases presently pending before the ICJ, in which the parties invoked a single maritime boundary are Qatar v. Bahrain Maritime Delimitation and Territorial Questions and Guinea-Bissau v. Senegal Maritime Delimitation cases.196 The latter case would, as Judge Oda in his 1991 Separate Opinion to the 1989 Arbitral Award Judgment emphasized, be essentially different than the Gulf of Maine case, which involved determination by the Chamber of a single boundary 194 I.C.J. Denmark v. Norway Verbatim Record of Pleadings, CR 93/9, 83, 85. In its 1988 Application, Denmark requested the Court to, "Decide, in accordance with international law, where a single line of delimitation shall be drawn between Denmark's and Norway's fishing zones and continental shelf areas in the waters between Greenland and Jan Mayen." 195 I.C.J. Denmark v. Norway Verbatim Record of Pleadings, GJM 93/5, 3. 196 In Qatar v. Bahrain , Qatar, in its 1991 Application, requested the Court, "II. With due regard to the line dividing the sea-bed of the two States as described in the British decision of 23 December 1947, to draw in accordance with international law a single maritime boundary between the maritime areas of sea-bed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain" (para. 41). The 1991 GuineaBissau Application was already quoted above in the main text.

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where there did not exist any line of the CS delimitation. 1 9 7 I n the new GuineaBissau v. Senegal Maritime Delimitation case, having regard to the existence of 240° line already delimiting the CS, the parties could, in Judge Oda's opinion, either chose for an EEZ line varying from the extisting CS line, thus producing two co-existent lines, or else opt for a single line delimiting both EEZ and the CS. Judge Oda observed that much controversy still surrounds the question de lege ferenda whether the delimitation of EEZ should be identical to that of the CS, but he appeared to confirm his preference for the second of these alternatives, w i t h his emphasis on the identity of Articles 74 and 83 of the LOS Convention as well as on the new CS / EEZ parallelism: Bearing in mind that the subject (that is, the exploring of the sea-bed and its subsoil and the exploitation of its natural resources, covered by the concept of the continental shelf) is now completely superseded by or even absorbed in the new concept of the exclusive economic zone, a uniform maritime area for the exclusive economic zone and the continental shelf may certainly be desirable, and it is to be recommended that a single line of delimitation between the neighbouring States be institutionalized in order to avoid conflicts in the exercise of jurisdiction by different coastal States over the same maritime area, depending on whether this is the exclusive economic zone or the continental shelf. 198 Adequacy of this recommendation seems to be enhanced by the fact of the future Guinea-Bissau / Senegal delimitation involving only areas up to the limit of 200 miles, since, unlike Senegal, Guinea-Bissau has so far not advanced (as it potentially could) a claim to the CS extending beyond that limit up to the outer edge of the continental margin. If the two States preferred to opt for a single boundary line, they would still, in Judge Oda's view, face the question of further choice. 199 I n particular, they could determine their EEZ boundary as identical w i t h the existing 240° line for the CS, in which case there would in fact remain no room for negotiations. Such negotiations would, as Judge Oda continued, be meaningful only if the existing CS line was to be subject to alteration or adjustment to the new line to be agreed for the EEZ, so as to produce a single boundary for both these maritime spaces that would differ from the 240° line. This solution could not be excluded in view of Guinea-Bissau's Communique in which, while declaring (as did Senegal in its corresponding Statement) its w i l l to abide by the 197

1991 Separate Opinion Oda (note 83), paras. 21-23. Cf 1991 Dissent Weeramantry (note 184), 170-172; remarks of Keith Highet as counsel for Guinea-Bissau, in: I.C.J. GuineaBissau v. Senegal Verbatim Record of Pleadings, CR 91/3, 80, that a fragmentary award (confirming 240°line as only the CS boundary ignoring the Bijagos Archipelago) is worse than none at all, as in absence of that award Guinea-Bissau would be free to achieve an overall equitable solution. 198 1991 Separate Opinion Oda (note 183), para. 18; also para. 20. 1

Ibid,

para. 22.

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Court's 1991 Judgment, Guinea-Bissau emphasized that "the door is still open for solving the question of the entire maritime territories of the two States." 200 It should, however, be noted that in practice virtually all existing continental shelf delimitations have evolved formally or informally into single boundaries also dividing the 200 mile zones. 201 Were Guinea-Bissau and Senegal to opt in the future to follow this practice, they would utilize their existing 240° CS boundary line as their EEZ boundary, thereby meeting the requirements of international ordre public emphasized by Judge Oda.

I V . El Salvador / Honduras Land, Island and Maritime Frontier Dispute 1. Introductory Remarks One year before the merits of the El Salvador/Honduras Land, Island and Maritime Frontier Dispute were decided, while analyzing multiple elements involved in this case, Keith Highet concluded that "this 'little' case, now being decided by a chamber on which the President and the Vice-President of the Court both sit, w i l l prove to be one of the most important 'big' cases in the Court's history." 2 0 2 The accuracy of this submission appears confirmed by decisions taken by the Chamber in this case, including in its 1992 Judgment on the merits which is probably the most voluminous in the history of the Court. 2 0 3 Although the Chamber ultimately decided that the 1986 El Salvador / Honduras Special Agreement has not conferred upon it jurisdiction to effect any delimitation of maritime areas, whether within or outside the Gulf of Fonseca, 204 the unprecedented decision taken by the Chamber in its 1990 Judgment permitting Nicaragua to intervene as well as various elements of the 1992 Judgment on the merits are of major importance in the context of maritime boundary delimitation.

200 Note Verbale from Guinea-Bissau of 14 November 1991, United Nations Law of the Sea Bulletin, 1992, No. 20, 52; and Note Verbale from Senegal, ibid., 53. See also ICJ Communique No. 92/24 of 9 October 1992. 201 See David Colson, The Legal Regime of Maritime Boundary Agreements, in: Cbarney / Alexander (note 25), vol. 1, 41-73, 45-48 and 51. 202 Highet (note 59), 649. 203 Land, Island and Maritime Frontier Dispute (El Salvador / Honduras; Nicaragua In tervening), Judgment, I.C.J. Reports 1992,351-618 (hereinafter 1992 El Salvador / Honduras Judgment). 204 lbid mj paras. 372-380, and para. 432(2) decided by four votes (including Judge Oda) to one. Cf. arguments to this effect by advocates of El Salvador, in: I.C.J. El Salvador/ Honduras Verbatim Record of Pleadings, Prosper Weil, C 4/CR 91 /4, 31-66, C 4/CR 91 / 5, 2-21, and C 4/CR 91/7, 2-8; and Elihu Lauterpacht, C 4/CR 91/40, 29-42.

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Judge Oda appended Opinions to two Judgments delivered by the Chamber: — Declaration and Dissenting Opinion to the Chamber's Judgment on the merits of 11 September 1992; 205 — Separate Opinion to the unanimous Judgment of the Chamber on the Application by Nicaragua for Permission to Intervene of 13 September 1990. 206 I n the complex 1992 Judgment, five issues relating to El Salvador / Honduras land frontier and two issues concerning the legal situation of the islands were decided unanimously by all the five Chamber's members that included Judge Sette-Camara (President), Judges Oda and Sir Robert Jennings , and Judges ad hoc Nicolas Valticos (designated by El Salvador) and Santiago Torres Bernardez (designated by Honduras). 2 0 7 The remaining seven issues of substance were decided by the majority vote of four to one. Judge Oda voted in favour of four of those decisions involving land frontier and the islands, as well as that on the Chamber lacking jurisdiction to effect maritime delimitation, 208 whereas his vote against was recorded in respect of two issues concerning legal situation of the waters within and outside the Gulf of Fonseca which are further discussed below. 2. Status of Third States Five years after the Court rejected, in its majority 1984 Libya/ Malta Judgment already discussed above, Italy's application for permission to intervene, the Chamber had, in its unanimous 1990 El Salvador / Honduras Judgment, for the first time granted Nicaragua permission to intervene as a non-party under Article 62 of the ICJ Statute. Keeping in mind that the selection of the Chamber's members was made before question of intervention was raised in this case, 209 it could be 205

Land, Island and Maritime Frontier Dispute (El Salvador / Honduras: Nicaragua In tervening ), Declaration Oda, I.C.J. Reports 1992, 619-620 (hereinafter 1992 Declaration Oda); and Dissent Oda y ibid ., 732-761 (hereinafter 1992 Dissent Oda). 206 Land, Island and Maritime Frontier Dispute (El Salvador / Honduras), Application Nicaragua for Permission to Intervene, Judgment, I.C.J. Reports 1990, 92-137 (hereinafter 1990 El Salvador / Honduras Judgment); Separate Opinion Oda, ibid., 138-144, (hereinafter 1990 Separate Opinion Oda). See also Land, Island and Maritime Frontier Dispute (El Salvador / Honduras), Constitution of the Chamber, Order, I.C.J. Reports 1987, 10-13, decided unanimously, and Declaration Oda, ibid., 13; Application for Permission to Intervene, Order, I.C.J. Reports 1990, 1-6, decided by eleven votes (including Judge Oda) to three, and Declaration Oda, ibid., 7-8. 207 1992 El Salvador / Honduras Judgment (note 203), paras. 425 - 427 and 429 - 430, relating to the first, second, third, fifth and sixth sectors of the common land frontier; and para. 431(3) and (4), deciding that the islands of El Tigre and Meanguera are parts of the territory of Honduras and El Salvador, respectively. 208 Jbid., paras. 428 (fourth sector of land frontier); 431(1), (2) and (5) related to the islands; and 432(2) referred to in note 204.

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recalled that from amongst the Chamber's members, its President Judge SetteCamara and Judge Sir Robert Jennings had dissented to the 1984 Libya/ Malta Judgment; whereas Judge Oda expressed his support for third State intervention in both his Dissenting Opinion to the 1984 Libya/ Malta Judgment and Separate Judgment denying Malta permission to inOpinion to the 1981 Tunisia/Libya tervene, both analyzed above. I n his Separate Opinion, which is the only one appended to the 1990 El Salvador/ Honduras Judgment, Judge Oda strongly concurred w i t h the Chamber's permitting Nicaragua to intervene, but criticized the scope of this intervention limited (in accordance w i t h Honduran contention 2 1 0 ) to the legal regime of the waters within the Gulf of Fonseca which excluded from the object of intervention the matters of delimitation within the Gulf and the legal situation of the maritime spaces (including prospective delimitation) outside the Gulf. 2 1 1 I n Judge Oda's view, the Chamber did not persuasively define the grounds for its restrictive decision, and he suggested that the presumption that, under Article 62 of the ICJ Statute, a clear distinction can be made between the interpretation of a rule and the nature of its application in a concrete instance, remains open to challenge. Judge Oda found it difficult to accept that, while Nicaragua had sufficiently shown interest of a legal nature which might (but not necessarily would or must) be affected by the Chamber's decision in the case of the legal regime of the maritime spaces within the Gulf of Fonseca, it had not done so as regards the delimitation of the maritime boundaries there and outside the Gulf. 2 1 2 He also 209

Cf. emphasis on that fact that Nicaragua (which in its 1989 Application sought intervention before the full Court) did not participate in the selection or composition of the Chamber nor did it have a Judge ad hoc, in: Diplomatic Note Circulated by the Permanent Mission of Nicaragua to Other Missions Accredited to the United Nations, Unofficial Translation obtained in January 1993 through kindness of Ambassador Carlos Argüello Gomez of Nicaragua's Embassy in The Hague. 210 1990 El Salvador / Honduras Judgment (note 206), para. 69; Argument of Derek W. Bowett as counsel of Honduras, in: I.C.J. El Salvador / Honduras Verbatim Record of Pleadings, C 4/CR 90/4, 27-53, and C 4/CR 90/5, 53-59. 211

1990 El Salvador / Honduras Judgment (note 206), paras. 104-105; and 1990 Separate Opinion Oda (note 206), 138. Cf. Argument of Ian Brownlie as counsel of Nicaragua, in: I.C.J. El Salvador / Honduras Verbatim Record of Pleadings, C 4/CR 90/1, 30-61, and (replying to Derek W. Bowett , counsel of Honduras, and Prosper Weil , advocate of El Salvador) C 4/CR 90/5, 22-37. For arguments questioning Nicaragua's intervention, see those invoked by Prosper Weil and Elihu Lauterpacht as advocates of El Salvador, C 4/CR 90/3, 18-58 and 59-84; and by Keith Highet as counsel of El Salvador, C 4/CR 90/4, 824. Cf. Stephen R. Ratner y ICJ-Application of Nicaragua to Intervene-Article 62 of the Statute of the Court-Frontier Dispute, in: Keith Highet / George Kahale III (eds.), International Decisions, AJIL, vol. 85, 1991, 680-686, 684; Jamal Seifi, Nicaragua Granted Permission to Intervene, International Journal of Estuarine and Coastal Law, vol. 6, 1991, 253263,257-258; who both found Judge Oda's approach more convincing than that of the Court. 212 1990 Separate Opinion Oda (note 206), 140-144.

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stressed that, unlike what the 1990 Judgment contended, the applicant was not required "to show in what way that interest may be affected." 213 I n Judge Oda's opinion, in fact, neither the main parties in the El Salvador/Honduras case nor the Chamber's Judgment ruled out the eventuality of a decision effecting a delimitation within the Gulf. As regards the boundaries outside the Gulf of Fonseca, based on the lines claimed by El Salvador and Honduras, Judge Oda believed that if the Chamber were to determine a line delimiting zones outside the Gulf, Nicaragua "could reasonably claim to possess a legal interest which may be affected by a Judgment of the Chamber." 2 1 4 However, the Chamber's position would appear justifiable in view of the aim of Honduras to confine the relevant area for the purposes of a hypothetical delimitation w i t h El Salvador to the western sectors within and outside the Gulf of Fonseca. A clear confinement to those sectors, limited by perpendicular lines drawn from the mid-point on the closing line of the Gulf, back inside the Gulf to reach the Honduran coast on the one hand, and out to the 200-mile limit on the other hand, would not prejudice any future delimitation which Nicaragua might seek either within or outside the Gulf. 2 1 5 I n his Declaration appended to the 1992 El Salvador/ Honduras Judgment on the merits, Judge Oda reaffirmed the views expressed in his previous Opinions and disputed the Chamber's findings as to lack of binding effect of the 1992 Judgment upon the intervening State. 216 Although not a party to the case, N i caragua will, according to Judge Oda, be bound by the Judgment in so far as it relates to the legal regime of the maritime spaces of the Gulf of Fonseca, which regime he further examines in his 1992 Dissenting Opinion. Judge ad hoc Torrez Bernardez, in his 1992 Separate Opinion, concurred w i t h the view of Vice-President Oda w i t h respect to the effects of the 1992 Judgment other than that of res judicata (Article 59 of the Statute) on a non-party State intervening under Article

62.217

213

Ibid., 141 (quoting 1990 El Salvador / Honduras Judgment (note 206), para. 61, emphasis added). 214

215

Ibidy 143.

1990 El Salvador / Honduras Judgment (note 206), para. 75; I.C.J. El Salvador / Honduras Memoire du Gouvernement de la Republique du Honduras, vol. II, 1 juin 1988, Map C.5 (within the Gulf), 704, and Map C.6 (outside the Gulf), 720; Argument of Bowett y in: C 4/CR 90/4 (note 210), 38-44, and C 4/CR 91/44 (note 224), 11-14. On Honduran claim to the starting-point of the common maritime frontier in the Gulf, see Argument of Daniel Bardonnet as advocate of Honduras, in: C 4/CR 91/27, 2-34, and C 4/CR 91/28, 2-25. Cf. text accompanying note 229. 216 Cf. 1992 El Salvador / Honduras Judgment (note 203), paras. 421 -424. 217 Land, Island and Maritime Frontier Dispute (El Salvador / Honduras; Nicaragua In tervening), Separate Opinion Torrez Bernardez, I.C.J. Reports 1992, 629-731, 730-731, para. 208. But see text accompanying note 233.

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3. Some Issues of the Legal Regime of the Maritime Spaces The 1992 Dissenting Opinion of Judge Oda explains the reasons for his vote against two majority decisions taken by the Chamber in its El Salvador / Honduras Judgment on the merits w i t h respect to interrelated questions of the legal situation of the maritime spaces within and outside the Gulf of Fonseca. 218 A considerable part of Judge Oda's Opinion comprises arguments in support of his view on the non-existence in the international law of the sea of the concept of a pluri-State bay, whether normal (juridical) or historic, which the Chamber employed to characterize the Gulf. 2 1 9 According to Judge Oda, the 1992 Judgment simply perpetuated an error of the 1917 Gulf of Fonseca Judgment of the Central American Court of Justice which, in his opinion, appeared to be based upon "a local illusion as concerns the historical background of law and fact" in ascribing to the pluri-state Gulf of Fonseca the nature of a historic bay w i t h the character of a closed sea subject to a condominum of the three coastal States, except of a 3-mile belt and the waters delimited in 1900 between Honduras and Nicaragua. Contrary to the Chamber's findings, Judge Oda believed that, at present, the waters in the Gulf constitute wholly the sum of the distinct 12-mile territorial seas of each of the three riparian States, El Salvador, Honduras and Nicaragua. 220 I n this context, although noting that the Chamber was not in a position to delimit the territorial sea of these three States, Judge Oda observed that there had been no historic title or other special circumstances advanced by either El Salvador or Honduras which would justify any departure from the application of "the general rule of the 'equidistance line'" in accordance w i t h Article 15 of the LOS Convention. 2 2 1 I n view of the notorious lack of any general rules for pluri-State bays, and in a situation that the Chamber was neither a court of appeal from the Central American Court nor was it charged w i t h determining whether by reason of error the 1917 Judgment was invalid, 2 2 2 the essence of the difference manifested in the Chamber's and Judge Oda's approaches would seem to lie in the weight ascribed to historic factors. Such factors, including the fact that the waters in question were waters of a single State's (Spain and thereafter the Federal Republic of Central America) bay during the greater part of their history, were found by the three and other (e. g., the United States) States concerned as well as by many commenta-

218 1992 El Salvador / Honduras Judgment (note 203), para. 432(1) and (3). For a map of the Gulf of Fonseca see I.C.J. Reports 1992, 587. 219 1992 Dissent Oda (note 205), paras. 1-45. 220 221 222

Ibid. , paras. 45-50. Ibid. , para. 49. Cf. Lauterpacht (note 224), C 4/CR 91/40, 23.

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tors to be decisive for recognition of the Gulf of Fonseca as a historic bay of a special character. 223 As the Chamber asserted: What matters . . . is not what is "always" true, but what was the position in this particular case, in which the maritime area in question had long been historic waters under a single State's sovereignty, apparently without any demarcated administrative limits, and was in 1821 jointly acquired by the three successor States by reason of succession. That seems to be the essence of the decision of the Central American Court for this confined maritime area which so intimately concerns all three coastal States. Certainly there is no reason why a joint sovereignty should not exist over maritime territory. 224 A t the same time, as condominia can cease to exist given the necessary agreement, the Chamber decided that the joint entitlement of all three States of the Gulf w i l l apply unless and until a delimitation (including agreement on navigational questions) of the relevant maritime area is effected. 225 As regards the legal situation of the waters outside the Gulf, upon having decided that outside the closing line of the Gulf there can be a further belt of territorial sea, in the sense of the modern law of the sea, of up to 12 miles, the Chamber took the position that the closing line of the Gulf constituted the baseline of the territorial sea. 226 W i t h respect to the closely related question whether the line between Punta Cosigüina and Punta Ampala was (as contended by Honduras)

223 Cf. references contained in: 1992 El Salvador / Honduras Judgment (note 203), paras. 383-394, including to the successive editions of the leading work, Oppenheim' s International Law; and those found in the ninth edition thereof, Jennings / Watts (note 25), 626-633. Cf. also Ian Brownlie , Principles of Public International Law, Fourth Edition, Oxford 1990, 167-168. 224 1992 El Salvador / Honduras Judgment (note 203), para. 401; also para. 399, in fine. For discussion on detailed issues pertaining thereto in the context of hypothetical delimitation, see Elihu Lauterpacht as advocate of El Salvador (replying to Rene-Jean Dupuy and PierreMarie Dupuy, advocates of Honduras), in: I.C.J. El Salvador / Honduras Verbatim Record of Pleadings, C 4 / CR 91 / 40,10 - 29, and C 4 / CR 91 / 42,10 - 42; Ambassador Carlos Argüello Gomez as agent, and Ian Brownlie as counsel, of Nicaragua, C 4/CR 91 /43, 10, 34-50, and 51-88; Derek W. Bowett as advocate of Honduras and Lauterpacht, C 4/CR 91/44, 1024, and 24-40. 225

1992 El Salvador / Honduras Judgment (note 203), paras. 409, 412 and 432(1), in fine. Ibid., paras. 415-417 and 432(3). For discussion on detailed issues of the legal situation of the waters outside the Gulf in the context of hypothetical delimitation, see Derek W. Bowett as advocate of Honduras, in: I.C.J. El Salvador / Honduras Verbatim Record of Pleadings, C 4/CR 91/45, 10-42; Elihu Lauterpacht as advocate of El Salvador (replying to Bowett), C 4/CR 91/46, 10-57; Bowett (rejoinder to the reply of Lauterpacht), C 4/ CR 91/47, 10-30; Lauterpacht (replying to Bowett), C 4/CR 91/48, 10-39; Ambassador Argüello as agent, and Ian Brownlie as counsel, of Nicaragua (replying to Bowett), C 4/CR 91/49, 13-31, and 31-60; summary of the position of Nicaragua by Argüello, ibid., 61-63; final statements and submissions of Ambassador Valladares Soto as agent of Honduras, C 4/CR 91/50, 10-16; final statements and submissions of Martinez Moreno as agent of El Salvador, ibid., 16-23. 226

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or was not (as contended by El Salvador) also a baseline, the Chamber decided that the TS, EEZ and continental shelf of El Salvador and Nicaragua were also to be measured outwards from a section of the closing line extending 3 miles along that line from Punta Ampala (in El Salvador) and 3 miles from Punta Cosigüina (in Nicaragua) respectively. But entitlement to those three maritime spaces seaward of the central portion of the closing line appertains, according to the 1992 Judgment, to El Salvador, Honduras and Nicaragua. This latter decision reflects the Chamber's view that: Since the legal situation on the landward side of the closing line is one of joint sovereignty, it follows that all three of the joint sovereigns must have entitlement outside the closing line to territorial sea, continental shelf and exclusive economic zone. 227 The Chamber's finding that, since a condominium prevails up to the closing line, Honduras is entitled to extend its maritime spaces in the Pacific, was strongly objected to by the 1992 Dissenting Opinion of Judge Oda. Basing himself on his perception of the legal regime of waters within the Gulf of Fonseca referred to above, Judge Oda maintained that Honduras was locked within the Gulf itself. Being sandwiched between El Salvador and Nicaragua in the Gulf, Honduras would, in Judge Oda' s view, be "not entitled to claim any territorial sea beyond the meeting point somewhere in the Gulf of the respective territorial seas of the three riparian States which may well be determined, if necessary, by agreement among themselves or by any other means that they may deem f i t . " 2 2 8 But Honduras would, according to Judge Oda, be fully guaranteed access to the high seas outside the Gulf of Fonseca and, as a geographically disadvantaged State, it could claim right to fish in the EEZs of its two Pacific neighbouring States in accordance w i t h the LOS Convention. However, this hypothesis contradicted the claim of H o n duras strongly objecting to it being entirely blocked off from any claim beyond the Gulf's closing line. Instead, according to Honduras, the division of this line (treating its Honduran portion as a national coast) should be proportionate to the length (of some 45 miles) of Honduran coast, and Honduran maritime areas should be adjusted by varying the angle of the boundary seawards, so as to reflect the difference in coastal lengths of El Salvador and Honduras. 2 2 9 After expressing astonishment that the Chamber should permit Honduras to claim maritime zones outside the bay's closing line, the political geographer Victor Prescott provided one application of the Chamber's decision. 230 The total length 227 1992 El Salvador / Honduras Judgment (note 203), para. 420. At present only Honduras proclaimed a 200-mile EEZ, while El Salvador and Nicaragua each claim a 200-mile TS. Neither of the three States has yet ratified the LOS Convention. 228 1992 Dissent Oda (note 205), para. 50; also paras. 53-55. Cf. J. R. Victor Prescott, The Maritime Political Boundaries of the World, London 1985, 254-255. 229 Cf. text accompanying note 215; Argument of Bowett , C 4/CR 91/45, and final submissions of Ambassador Soto (note 226).

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of the closing line is 18 miles and El Salvador and Nicaragua are each entitled to the 3 miles of the closing line closest to their coasts. This means that the remaining central portion of the line, from which each country may make maritime claims is 12 miles long, allowing each country to use 4 miles of that section. Nicaragua and El Salvador could add their 4-mile sections to the 3-mile sections adjoining the headlands and base their claims on 7 miles of the line. Honduras could base its claim on 4 miles of the closing line, presumably between El Salvador and Nicaraguan sections (and not, as Honduras claimed, on the part of line proportionate to its coast). This would result in a perpendicular corridor, 4-mile wide and 200-mile long, that would lie entirely through waters which would otherwise be claimed by El Salvador, and that would be similar to that obtained by France in the Canada/France (St. Pierre and Miquelon ) case.231 The line of equidistance between El Salvador and Nicaragua, ignoring H o n duras, would, according to Prescott, lie east of that perpendicular. O n the face of it El Salvador ^ o u l d , in his view, be the loser if Honduras was allowed a corridor from the centre of the closing line. If Honduras was left out of it entirely, Nicaragua, which has a 160-mile coastline between the mouth of the Gulf of Fonseca and the boundary with Costa Rica, would be rather disadvantaged in terms of its coastal relationship with El Salvador and Costa Rica. If El Salvador insisted that any grant of maritime zones in the Pacific Ocean had to be provided equally from the potential claims of El Salvador and Nicaragua, then Nicaragua would, in Prescott's opinion, be likely to take issue because it seems at a disadvantage in terms of the coastal configuration vis-a-vis its coastal neighbours. This option is, however, purely hypothetic as it runs counter to the Chamber's 1992 Judgment that there would not be an equidistant line between El Salvador and Nicaragua. I n view of all the circumstances of the El Salvador/Honduras case, and in spite of the lack of evidence of any actual exercise of joint sovereignty within the Gulf of Fonseca, a delimitation in future of waters within the Gulf, whether directly between the three States concerned, or through a third-party settlement, appears unlikely. Hence, if the status of the Gulf as determined by the 1992 Judgment was to be preserved, the three States may choose to also base themselves on this Judgment in a prospective delimitation of the waters outside the Gulf. This is confirmed by statements made by the parties to the dispute that they w i l l comply w i t h the Chamber's Judgment. 232 O n its part Nicaragua, in its Diplomatic 230 This and all subsequent references to his views are based on the author's correspondence (including maps) with Professor Prescott of the Department of Geography, University of Melbourne, Australia of 20 October and 24 November 1992. 231 See text accompanying note 255. 232 Cf., e. g., Statement of Mario Carias Zapata , Foreign Minister of Honduras in the U N General Assembly on 6 October 1992, emphasizing that both Honduras and El Salvador will comply with the 1992 Judgment. See United Nations Press Release DH/1241, 1992, 6.

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Note, while invoking the Chamber's decision that the 1992 Judgment is not res judicata for Nicaragua, declared that this Judgment "has not altered nor can it alter Nicaragua's rights in the Gulf of Fonseca or in the maritime spaces in the Pacific Ocean." 2 3 3 A t the same time, Nicaragua reiterated "its willingness to reach bilateral or multilateral agreements w i t h its neighbours, in order to resolve any differences that might arise, and also its willingness to submit any disputes that can not be settled by diplomacy to any of the other pacific means of resolution provided for in the treaties to which it is a Party, on the basis of sovereign equality w i t h any other State." If the States concerned decided to proceed w i t h delimitation of their respective maritime spaces, any such delimitation would at any event, as the Chamber emphasized, have to be "effected by agreement on the basis of international l a w . " 2 3 4 V . Assessment and Conclusions The two major Dissenting Opinions of Judge Oda to the Tunisia/ Libya and Libya / Malta Judgments, in combination w i t h his three other Opinions in these cases, can, on the whole, be regarded as a significant contribution to the development of international law of the sea in general and the law of maritime boundary delimitation in particular, insofar as they crystallize the new legal regimes of the continental shelf and the 200 mile exclusive economic zone in the context of their parallelism, and also provide guidance w i t h respect to application of equity to delimitation of these major maritime spaces under the new oceans regime. The Opinions of Judge Oda to the Guinea-Bissau v. Senegal and the El Salvador/ Honduras cases further develop various elements of his contribution. 1. Issues of Procedure As regards the issues of procedure, through consistent support for third State intervention in his 1981 Tunisia/ Libya Separate, 1984 Libya/ Malta Dissenting and 1990 El Salvador/ Honduras Separate Opinions as well as the 1992 El Salvador / Honduras Declaration, Judge Oda has accelerated the development of the right to intervene and its acceptance for the first time (though to a limited extent) in the 1990 El Salvador / Honduras Judgment, and thereby, has importantly contributed to expanding the creative role of the Court. Notwithstanding the limited scope of intervention granted to Nicaragua, the El Salvador/ Honduras case, thus, marked a significant stage in the development of a third State's right to intervene in maritime boundary delimitation, commencing 233 1992 El Salvador/Honduras Judgment (note 203), para. 424, and Nicaragua's Diplomatic Note (note 209). 234 1992 El Salvador / Honduras Judgment (note 203), paras. 420 and 432(3), in fine.

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w i t h the unanimous rejection by the Court of Malta's request to such effect in 1981, followed by the majority's rejection of Italy's right to intervene in 1984, and culminating in the unanimous acceptance by the Chamber of Nicaragua's (limited) intervention in 1990. In both Tunisia/ Libya and Libya/ Malta cases, Judge Oda was one of only a few members of the Court who considered the issues pertaining to intervention also in his (1982 and 1985) Dissenting Opinions to the respective Judgments on the merits. This reflects his perception of the role of intervention in application of equity to maritime boundary delimitation. A l though in both Libyan cases the requests for permission to intervene (opposed by each of the respective principal parties) were not granted, the two cases might be regarded as having opened up a new perspective for international litigation. I n particular, since the requests of the two would-be intervenors, Malta and Italy had the effect of reducing considerably the areas of the congested and politically sensitive central Mediterranean Sea which the Court found came within its jurisdiction in theses cases, it might be argued that, in spite of the Court's decision dismissing an intervention, the would-be interveners had to an important extent achieved their objectives. 235 According to the well-known scholar and practitioner Elihu Lauterpacht , in Judgment, the Chamber has dealt with the the 1990 El Salvador/Honduras question of jurisdiction in "a manner that appears to differ from the way in which the full Court has dealt w i t h comparable problems in the past", what he perceives as a possible precursor of a relaxation of consent in the practice of the ICJ. 2 3 6 However, the view that the Chamber reversed the previous decisions of the full Court and anticipation that the Court (with a markedly different composition) might, in turn, reject in future the Chamber's Judgment as a precedent, appears to somewhat underestimate the fact that the 1990 Judgment is in entire conformity w i t h the previous decisions of the Court and could be regarded as but a gloss on their effect. I n particular in its 1990 Judgment, in accordance w i t h the principle of judicial consistency, the Chamber has fully accepted that the lack of a jurisdictional link between the State which seeks to intervene and the parties to the case is a fundamental stumbling block to a would-be intervener. 237 But since Nicaragua obviously had an effective legal interest in the case as required by Article 62 of the ICJ

235

See Rosenne (note 1), 212; and Shabtai Rosenne, Some Reflections on Intervention in the ICJ, NILR, vol. 34, 1987, 75-90, 78-81. Cf. 1985 Dissent Schwebel (notes 145 and 146); Bardonnet (note 80), 57-59. 236 Lauterpacht (note 59), 26-30, and reference thereto in review of his book by Keith Highet , in AJIL, vol. 86, 1992, 621-626, 622; Argument of Lauterpacht (note 211), C 4/CR 90/3, 80-84. Cf. Juan Jose Quintana , The Intervention by Nicaragua in the Case Between El Salvador and Honduras, NILR, vol. 38, 1991, 199-208, 204-208. 237 1990 El Salvador / Honduras Judgment (note 206), paras. 93-103.

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Statute, the Chamber allowed intervention without the status of party to the dispute, thus, holding that where there is no jurisdictional link a third State cannot be a party, even though intervening. This not being a party is a material difference and precludes application of Article 59 of the Statute and the respective provisions of the Rules of Court. 2 3 8 A significant element of the Chamber's decision, thus, lies in a distinction between intervening party and mere intervener which does permit some kind of useful intervention while allowing full logical effect to the lack of any jurisdictional link. This fulfilled the anticipation expressed by Judge Oda in his Opinions attached to the respective Tunisia / Libya and Libya / Malta Judgments that Article 62 permits non-party intervention in the case in which a jurisdictional link is absent provided an interest of a legal nature is present. 239 If the full Court was not to follow the Chamber's approach in the future, it would not necessarily mean reversal of that approach. This is due to each case involving determination by the courts of "the application of the law to the circumstances of a particular case", w i t h the difference between making and determining law remaining "one of degree rather than of k i n d . " 2 4 0 2. Issues of Substance I n an essential division of the members of the Court (and likewise other authorities) for those who favour the concept of equity as modifying (correcting) the rigidity of a legal rule, and those who support an autonomous role of equity as a "lead rule", Judge Oda clearly belongs to the first of these groups. A t the same time, the central question posed in his analysis in the Tunisia / Libya and Libya / Malta Dissenting Opinions is perhaps not which one of these two concepts of equity is more adequate, but rather whether, in the light of developments that occurred in the legal regimes of the maritime spaces, the autonomous role of equity, or a "free-range equity", 2 4 1 is at all legitimate or sustainable. Judge Oda 9s reply seems negative, unless the new principles and rules related to the maritime areas in question are neglected or misapplied. A similar position is taken by Sir Robert Jennings who, although he did not dissent from the 1985 Libya/ Malta 238 Note that when Nicaragua declared its intention to be bound by the Chamber's Judgment (1990 El Salvador / Honduras Judgment (note 206), para. 38, in fine), it probably did not contemplate the possibility of being allowed to intervene as a non-party. If Nicaragua meant only that Article 59 would presumably apply, its declaration has no meaning or effect which would be against the rules of interpretation. See also 1992 El Salvador / Honduras Judgment (note 203), paras. 422 and 424. 239 See notes 64 and 136. Cf Opinions of Judge Schwebel , notes 68 and 143; Michael F. Wallace, Introduction, in: Research Centre for International Law (note 7), 1 -55,51 and n.209. 240 Sir Robert Jennings, The Progress of International Law, BYIL, vol. 34, 1958, 334-355, 339; and Sir Robert Jennings, General Course on Principles of International Law, RCADI, tome 121, 1967/11, 327-602, 341. 241 Jennings, The Principles (note 25), 407.

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Judgment, wrote subsequently two brilliant essays questioning the Court's findings and approach. 242 The Court thus appears to be confronted w i t h an extremely difficult dilemma. O n the one hand, it can hardly deny that the maritime boundary delimitation forms, as Judge Oda shows, an inherent part of international law of the sea to which the application of equity infra legem should at least closely relate. As Elihu Lauterpacht put it, " I t hardly needs emphasizing that if a tribunal purports to apply equity within, or prescribed by, the law, there must indeed be a clear basis in the law for such an application." 243 I n fact, in the 1985 Libya / Malta Judgment, the Court acknowledged: That the questions of entitlement and of definition of continental shelf, on the one hand, and of delimitation of continental shelf on the other, are not only distinct but are also complementary is self-evident. The legal basis of that which is to be delimited, and of entitlement to it, cannot be other than pertinent to that delimitation; . . . For a court, although there is assuredly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange to its nature. 244 Accordingly, any lawyer aware of the development of the principles and rules governing the legal regime of the continental shelf and other maritime spaces might be tempted to adhere to the approach which is advocated by Judge Oda and which is based on the equidistance, as now being strengthened by the principle of distance that evolved from the new CS / EEZ parallelism. O n the other hand, full acceptance by the Court of the developments that occurred in the modern law of the sea and of their effects on maritime boundary delimitation could well give rise to the question posed by Keith Highet whether this would not "do the Court itself out of a job" by rendering the outcome more rationally predictable and increasing the ease w i t h which settlements can be reached. 245 The Court seems to take a mid-way position by increasingly acknowledging the new principles and rules of the law of the sea, yet claiming the major issue of the new legal title based on distance to be complementary to the old notion of natural prolongation, so as to prevent recognition of equidistance as a legal rule and to preserve an autonomous role of equity. The dilemma facing the Court has been admirably summarized by Sir Robert:

242

Ibid., and Sir Robert Jennings, Equity and Equitable Principles, Swiss Yearbook of International Law, vol. XLII, 1986, 27-38. 243 Lauterpacht (note 59), 120. 244 1985 Libya/ Malta Judgment (note 55), paras. 27 and 48, in fine. 245 Highet, Whatever Became of Natural Prolongation (note 25), 98. 19 GYIL 36

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Well, maybe that is the position that has been reached in law and equity: that the law has only one fundamental rule that, whether by agreement or by adjudication, the delimitation must be effected with the help of a selection from an unlimited list of criteria in order to reach an "equitable" result. Yet the obvious question, even if it be somewhat embarrassing, must in honesty be posed: how, then, does this differ from a decision ex aequo et bono, except indeed that this is not what the parties asked for nor sanctioned? Or perhaps the answer will turn out to be that since, with the coming of the Exclusive Economic Zone, the principle of distance from the shore has in effect replaced natural prolongation, the wheel has come full circle. For distance must surely lead back to equidistance as to the basic boundary line, to be modified of course by equity where its application produces, for one identifiable particular circumstance or another, an inequitable result. 246 It could be argued that until recently the Court's approach, under which equity resembles its very early concept depending upon "the size of the Chancellor's f o o t " , 2 4 7 was justified by rapid and major changes occurring in the traditional law of the sea and by a lack of crystallized rules of the new oceans regime. Yet, for an experienced law of the sea expert, as is Judge Oda, the new rules were already clear at the time of the Tunisia / Libya Judgment which preceded signing the LOS Convention in December 1982. 248 Surprising as it may sound, these rules (including the new CS / EEZ parallelism within 200 miles) were in fact also appreciated by one of the advocates of equity as a "lead rule", Judge (ad hoc) Jimenez de Arechaga, except that he did not recognize in his 1982 Separate Opinion the effects of these rules for maritime boundary delimitation other than a single boundary line. 2 4 9 It could be assumed that in appreciation of this inconsistency, the 1985 Joint Separate Opinion, co-authored by Judge de Arechaga along w i t h two other supporters of autonomous equity, Judges Bedjaoui and Ruda, did not refer at all to the essential question of the new entitlement of the continental shelf based on a 200 mile distance, questioning instead the equidistance on the ground of various considerations which the three Judges perceived as equitable. 250 This could prompt the question whether such (ostrich) tactics of partly or wholly "avoiding the issue" could be considered as the sound means of adequately solving a legal problem? Further elaboration of the position pursued by the advocates of what Judge Oda calls "the principle of non-principle" 2 5 1 was attempted in 1990 by L. D. M. 246

Jennings, The Principles (note 25), 408. See also Weil (note 112), 202-203. See 1984 Dissent Gros (note 55), para.41; Jennings (note 242), 31. 248 Note a concomitant factor of the new rules (as enhancing the use of equidistance) being advantageous to Japan rather than to China and South Korea in prospective delimitations in the Yellow and East China Seas. See Cboon-bo Park, China and Maritime Jurisdiction, in: Cboon-bo Park / Jae Kyu Park (eds.), The Law of the Sea: Problems from the East Asian Perspective, Honolulu 1987, 281-300, 291. 249 See text accompanying notes 51, 99-100 and 190. 250 See text accompanying and following notes 172-173. 251 See text accompanying notes 10 and 73. 247

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Nelson advocating an autonomous role of equity in the process of maritime delimitation in spite of development of the principles and rules of international law of the sea. Unlike the three concurring Judges, he does acknowledge that: There is a compelling logic in the proposition that since the distance criterion has replaced natural prolongation as a basis of entitlement in areas within the 200 mile limit, that criterion in and of itself must have an important role to play in defining an equitable delimitation — a development that as a consequence enhances the role of equidistance.252 He also finds it noteworthy that Judge Oda interpreted a somewhat puzzling assertion of the Court in Libya / Malta Judgment on the complementary nature of natural prolongation and distance as a method of keeping natural prolongation artificially alive. 253 Nevertheless, Nelson suggests that in the present state of international law equidistance remains subject to the fundamental norm that the delimitation of maritime boundaries must be determined according to equitable principles. This fundamental norm is derived from the uniqueness of each maritime boundary situation, which would prevent the development of the structured and predictable system of equitable procedures and which would render "inadequate the application of a global or general rule such as is embodied in the principle of equidistance." 254 A peculiar effect of such an approach is exemplified by what Prosper Weil referred to as "a mushroom" solution that was reached in June 1992 by the Court of Arbitration under the Presidency of Jimenez de Arechaga in the Canada/ France (St. Pierre and Miquelon ) case.255 I n his well balanced Dissenting Opinion, while expressing agreement w i t h the 1992 Decision on many important points, Prosper Weil strongly questions what he perceives as a lack of legal basis for the Court's reasoning. 256 I n fact, in his view, the Decision may even in some respects jeopardize the development of the law of maritime delimitation, for which he coined the (by now widely used) term of "judge-made law", and which law had been importantly moved by the Libya / Malta Judgment toward a more secure 252 253

131.

Nelson (note 125), 850. Ibid., 851; 1985 Dissent Oda (note 14), para. 6 (note 125). Cf. text accompanying note

254 Nelson (note 125), 857, also 840-841. Cf. Daniel Bardonnet, Equite et frontieres terrestres, in: Melanges offerts ä Paul Reuter, Le Droit International: Unite et diversite, Paris 1981, 74; Louis Sohn, The Role of Equity in the Jurisprudence of the ICJ, in: Melanges Georges Petrin, Lausanne 1984, 303-312. 255 Cf. para. 38 of the 1992 Canada / France Decision (note 28) stressing that the underlying premise of the fundamental norm, which requires the delimitation to be effected in accordance with equitable principles, is a [t]he emphasis on equity and the rejection of any obligatory method." 256 Allan E. Gotlieb (of Canada) also dissented to the 1992 Decision. The three votes in its favour were those of the President Jimenez de Arechaga and the Court's other two members, Oscar Schachter and Gaetano Arangio-Ruiz.

19*

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(predictable) legal foundation. 2 5 7 Whereas the Libya / Malta Judgment put an end to the uncertainties of the "principle of non-principle", i.e. the autonomous principle of equity derived by the judge from the unique facts of each dispute, the 1992 Decision reverted, according to Weil , to such an autonomous form of equity which is a substitute for law, a form which, in his opinion, it was hoped had been definitively abandoned. 258 It could be acknowledged that to reach an equitable result the judge has to balance not only the relevant circumstances but also the interests of the parties, and that when impossibility to agree brings the parties to adjudication or arbitration they may often differ as to the use of the equidistance. For this very reason, the mandatory application of equidistance could raise restraints, if not affect the possible resort by States to third-party settlement. I n this context, the evidence as to the use of equidistance, whether strict, simplified or modified, in as many as 103 (77%) of the 134 instances of the existing delimitation treaties 259 would not furnish an argument in favour of mandatory or preferable use of this method in the third-party settlements. This, however, cannot be meant to suggest that the matter ends here, but rather to imply a tremendous complexity of questions pertaining to distinct applications of equity as a lead "principle of non-principle" and as correcting the rule of equidistance. It is worth recalling that a few years before the 1969 North Sea cases, Sir Gerald remarked on the law-creating role of the courts as follows: It is axiomatic that courts of law must not legislate: nor do they overtly purport to do so. Yet it is equally a truism that a constant process of development of the law goes on through the courts, a process which involves a considerable element of innovation . . . In practice, courts hardly ever admit a non liquet. As is well known, they adapt existing principles to meet new facts or situations. If none serves, they in effect propound new ones by appealing to some antecedent or more fundamental concept, or by invoking doctrines in the light of which an essentially innovatory process can be carried out against a background of received legal precept. 260

257 1992 Dissent Weil (note 28), para. 1. Cf. Weil (note 112), 6, 38-45, and Weil (note 80), 1023. 258 1992 Dissent Weil (note 28), para. 28, emphasizing that this reversion took place despite the fact that the 1992 Decision "[cjlaims to derive support from the (pseudo) equitable principle of frontal projection and refers to the equitable principle of non-encroachment (while distorting it)." Cf. references to the 1992 Dissent Weil in notes 28, 79 and 262. 259

For detailed statistics and analysis, see Blair Hankey / Leonard Legault , Method, Oppositeness and Adjacency and Proportionality in Maritime Boundary Delimitation, in: Charney / Alexander (note 25), vol. 1, 203-241, 214. 260 Sir Gerald Fitzmaurice , Judicial Innovation — Its Uses and Its Perils — As Exemplified in some of the Work of the International Court of Justice During Lord McNair's Period of Office, in: Sir Robert Jennigs (ed.), Cambridge Essays in International Law: Essays in Honour of Lord McNair, London 1965, 24-47, 24-25. Cf. Jennings , RCADI (note 240), 341-345.

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If, as follows from the analysis of Judge Oda, the Court's innovatory doctrine was formulated in the North Sea Judgment in dissociation from then existing, traditional law of the sea, why should the Court take now into account the modern rules of the oceans regime w i t h a view of changing the role it ascribes to equity from an autonomous into a corrective one? But although the core of the problem would seem to be indeed whether and what status should be accorded to equidistance, the issue appears by no means to be foreclosed to the advantage of freerange equity, w i t h a role for equity as correcting equidistance being effectively ruled out. Rather, the development of the new oceans regime and the CS / EEZ parallelism showed by Judge Oda appears to have accelerated the division between adherents to the autonomous and to the corrective role of equity in maritime boundary delimitation which has accompanied the Court's doctrine from its very inception. Meaningfully, in the 1985 Libya/Malta Judgment the Court itself acknowledged that application of equity as a part of general international law "should display consistency and a degree of predictability." 2 6 1 Both Judge Oda and Judge Sir Robert Jennings, presently the Vice-President and President of the Court respectively, seem to have no doubts that the use of the equidistance (or strictly speaking the equidistance / special circumstances) rule would in no way affect the process of reaching an equitable result, or pose any danger of replacing the fact-intensive by rule-intensive procedures in applying equity to maritime boundary delimitation. Prosper Weil took a similar position indicating that application of equidistance as a provisional line in the first stage of delimitation process would still leave the Court a sufficient degree of discretion in modifying this line in the light of all relevant circumstances at the second stage of this process. 262 While thus the delimitation process would remain a single complex operation, he also believes that it would "be illusory to think that the day can come when the 'power to judge', to adopt Montesquieu*s formula, w i l l be 'in some way non-existent;' worse than that, it would be dangerous." 263 The essence of a satisfactory resolution of any maritime boundary dispute consists in an outcome being politically acceptable to the parties. From this 261 1985 Libya/Malta Judgment (note 55), para. 45. Cf. Jennings (note 242), 38; Thomas Franck, Legitimacy in the International System, AJIL, vol.82, 1988, 705-759, 725, who submits that, "The legitimacy of a rule is affected by its degree of determinacy. Its determinacy depends upon the clarity with which it is able to communicate its intent and to shape that intent into a specific situational command. This, in turn, can depend upon the literary structure of the rule, its ability to avoid reductio ad absurdum and the availability of a process for resolving ambiguities in its application." 262 Weil (note 112), 202-203. Cf. 1992 Dissent Weil (note 28), para. 37. 263 Weil (note 112), 288. Cf. Brown (note 25), 215,225,330; Jonathan I. Charney , Introduction, in: Charney / Alexander (note 25), vol. 1, xxiii-xlvi, xlii, who, in the light of the major role played by equidistance in over 130 boundary delimitation agreements, concludes that, "If state practice has any influence on the positive law for maritime boundary delimitations, equidistance must have a place."

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perspective the Court's decisions, however much criticized, fulfill, as a matter of principle, their purpose of resolving foreign policy problems posed for the parties by the boundary disputes. But although a Court's Judgment has legitimacy, a well-reasoned analysis of the Court that uses legal principles to justify the result "adds to the legitimacy of the judgment and the prestige of the C o u r t . " 2 6 4 It may, therefore, be suggested that it would be more legitimate if, in its decision-making process, the Court, instead of proceeding, in Verlaine's words, in "Vextase et la terreur de celui qui a ete choisi", 265 assumed, as Judge Oda has consistently advocated, some more genuine responsibility for solving maritime boundary disputes within the principles and rules of international law.

264 265

Charney (note 67), 160. 1985 Joint Separate Opinion (note 156), para. 37.

The Third Pillar of Maastricht: Cooperation in the Fields of Justice and Home Affairs By I. D. Hendry *

The Treaty on European U n i o n 1 was signed on 7 February 1992 at Maastricht in the Netherlands. It entered into force on 1 November 1993. The H i g h Contracting Parties are the twelve Member States of the European Communities: Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Portugal, and the United Kingdom. This article examines Title V I of the Treaty, entitled Cooperation in the Fields of Justice and Home Affairs, 2 and related provisions. The Governments of the Member States of the European Communities have in fact cooperated in these fields for several years. They have done so outside the framework of the Community Treaties, and thus outside the Community legal order. The process, called "intergovernmental cooperation", has been carried on within the framework of international law, rather than Community law. 3 As such it is akin to European Political Cooperation, the process by which the Governments of the Member States used to consult and work together in the field of foreign affairs, governed by international law rather than Community law. European Political Cooperation, which had earlier been carried on informally, was put on a treaty basis in Title I I I of the Single European Act of 1986.4 By contrast, intergovernmental cooperation on home affairs and justice matters has had no equivalent treaty basis. Title V I of the Maastricht Treaty provides this. It is not part of the Community Treaties. Cooperation under Title V I takes place outside Community procedures. The resulting decisions form no part of Community law. * Legal Counsellor, Office of the United Kingdom Permanent Representative to the European Communities. The views expressed in this article are those of the author, and do not necessarily represent the views of the United Kingdom Government. 1 The text of the Treaty, and of the Final Act and Declarations adopted by the Intergovernmental Conference at Maastricht on 7 February 1992, were published in the Official Journal of the European Communities (hereinafter "OJ") No. C 191 of 29 July 1992. 2 The text of Title VI is reproduced in the annex to this article. 3 See the concise historical survey in Nanz, "Der '3. Pfeiler der Europäischen Union': Zusammenarbeit in der Innen- und Justizpolitik", Integration 15. Jg., 3/92, Beilage zur Europäischen Zeitung 7-8/1992. 4 OJ No. L 169 of 29 June 1987.

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Before considering Title V I , it may be helpful to look briefly at the overall structure of the Treaty. Title V I can then be seen in context.

I. The Structure of the Treaty on European Union The Treaty establishes a European Union among the H i g h Contracting Parties. Article A begins: By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called 'the Union'. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen. The precise nature of the Union is unclear. The concept appears to be a political rather than a legal one. The Treaty does not give the Union legal personality; and the articles in the Treaties establishing the three European Communities which give each of those Communities legal personality 5 are unaffected. There is evidently no intention to create an international legal person separate from, or in substitution for, those three Communities. The Union appears, rather, to represent a political aspiration, and a staging post along the road to an "ever closer union among the peoples of Europe" 6 . A t the same time, it might be described as a loose association between the H i g h Contracting Parties within the framework of which they have agreed to carry on certain activities together. The structure of the Union has sometimes been likened to that of a Greek temple facade, w i t h three pillars and an overarching pediment. The Treaty reflects this structure. The first pillar is the three European Communities: the European Economic Community (renamed by Article G ( l ) of the Treaty "the European Community"), the European Coal and Steel Community, and the European Atomic Energy Community. Titles II, I I I and I V of the Treaty on European Union respectively set out a series of amendments to the three Treaties establishing these Communities. 7 5

EC Treaty Article 210; the European Coal and Steel Community (ECSC) Treaty Article 6; the European Atomic Energy Community (Euratom) Treaty Article 184; see below note 7. In changing its name from "Council of the European Communities" to "Council of the European Union", the Council declared that this change in no way affected the current legal position that the European Union does not enjoy international legal personality. See Agence Europe, 9 November 1993. 6 In the preamble to the EC Treaty, the original six Member States expressed their determination "to lay the foundations of an ever closer union among the peoples of Europe". In the preamble to the Single European Act, the (by then) twelve stated that they were "moved by the will to transform relations as a whole among their States into a European Union".

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29 7

The second pillar is the common foreign and security policy, provision for which is made in Title V of the Treaty. This activity is to take place intergovernmentally, outside the Community Treaties, and according to its own special procedures. It replaces European Political Cooperation, and consequently Article P(2) repeals Title I I I of the Single European Act. The third pillar is cooperation between the H i g h Contracting Parties in the fields of justice and home affairs, as provided for in Title V I of the Treaty. This activity is also to take place intergovernmentally, outside the Community Treaties, and according to its own special procedures. 8 Overarching these three pillars is the European Council, which according to Article D "shall provide the Union w i t h the necessary impetus for its development and shall define the general political guidelines thereof". The European Council, as before, is composed of the Heads of State or Government of the Member States and the President of the Commission, and is assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. 9 The provisions relating to the Union and the European Council are mostly contained in Title I of the Treaty. Like the provisions in Titles V and V I , they are clearly separated from the provisions dealing w i t h the three Communities in Titles II, I I I and IV. So is Title V I I , which sets out the final provisions of the Treaty. A t the same time, provisions in both Title I and Title V I I relate to all three pillars, and this explains w h y in the Treaty structure they are distinct from the five Titles they span. This structure of the Union finds prosaic description in the third paragraph of Article A of the Treaty as follows: The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples. Article C of the Treaty provides that the Union shall be served by a "single institutional framework". This is explained in Article E, which provides: 7 A consolidated version of the EC Treaty, as amended by the Treaty on European Union, was published for information purposes in OJ No. C 224 of 31 August 1992. Consolidated versions of all three Community Treaties are available from the Office for Official Publications of the European Communities in Luxembourg. 8 The idea of providing for cooperation on justice and home affairs, and in a part of the Treaty separate and distinct from the provisions modifying the Community Treaties (as the Single European Act had provided for European Political Cooperation), was a British one. During the negotiations the British proposals underwent some substantive modification to take account of others' concerns, but the resulting Treaty structure essentially corresponds to the original British conception. 9 Article 2 of the Single European Act first provided a treaty basis for the European Council, with the same composition as that described in Article D of the Treaty on European Union. Article P(2) of the latter repealed Article 2 of the Single European Act.

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The European Parliament, the Council, the Commission and the Court of Justice shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of this Treaty. Accordingly, these Community institutions are envisaged as the organs through or in connection w i t h which activities are to be carried out under the umbrella of the Union. But Article E draws a careful and deliberate distinction between the exercise of their powers under the Community Treaties as modified and supplemented (including by Titles II, I I I and I V of the Maastricht Treaty itself), on the one hand, and under "the other provisions of this Treaty", which refers chiefly to Titles V and V I , on the other. As w i l l be seen,10 the powers of these institutions under Title V I differ significantly from those conferred on them by the Community Treaties; and the same applies to Title V. I n particular, Article L of the Treaty excludes from the jurisdiction of the Court of Justice the whole of Title V; and in respect of Title V I it envisages the Court having only such jurisdiction as may be expressly provided for in separate conventions concluded under that Title.

II. Title V I of the Treaty on European Union Title V I consists of ten articles: Articles K to K.9. Article K states simply: "Cooperation in the fields of justice and home affairs shall be governed by the following provisions". Accordingly, such cooperation is not governed by earlier provisions of the Treaty, in particular those relating to the Communities. Articles K . l to K.8 describe how that cooperation is to be carried out in a number of defined policy areas regarded as "matters of common interest". Article K.9 establishes a procedure for transferring some of these matters to the EC Treaty, thus placing them within Community competence. Title V I does not contain substantive rules of law regulating the matters of common interest. It is rather a legal framework for intergovernmental cooperation between the Member States in these policy areas. 1. Matters of Common Interest Article K . l lists nine areas which Member States, "for the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community", are to regard as "matters of common interest". The nine areas encompass asylum and immigration policy, Article K . l (1) to (3); combating drug addiction and fraud, Article K . l (4) and (5); judicial cooperation in civil and criminal matters, Article K . l (6) and 10

See Section I I (4) below.

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(7); and customs and police cooperation, Article K . l (8) and (9). Article K . l ' s reference to the objectives of the Union is perhaps more a political guideline than a legal qualification. Among those objectives, which are set out in Article B of the Treaty, is "to develop close cooperation on justice and home affairs". This does not take us far. N o r does it elucidate the emphasis placed upon the free movement of persons, a phrase not mentioned in Article B (although perhaps implied in that article's reference to "the creation of an area without internal frontiers"). The tenth paragraph of the preamble to the Treaty is more helpful: it reaffirms the objective of the H i g h Contracting Parties "to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by including provisions on justice and home affairs in this Treaty". Since immigration policy, including combating unauthorised immigration by third country nationals into the territories of Member States, is one of the matters of common interest listed in Article K . l , it must be assumed that the objective of free movement of persons refers to movement within and between the Member States. Free movement of persons within the Community is an objective enshrined in Article 7a of the EC Treaty. 1 1 For several Member States, an important reason for undertaking cooperation in justice and home affairs was and remains to create the conditions « of security — by a series of so-called compensating measures — in which barriers to the movement of persons within the Community could acceptably be lifted. 1 2 But this is not the only reason for such cooperation, which can obviously be mutually beneficial for several purposes, and the language of Article K . l reflects this. The qualification "without prejudice to the powers of the European Commun i t y " has greater legal significance. The "matters of common interest" listed in Article K . l are defined in broad terms. I n a few cases the language is so general that there could be some overlap w i t h matters which fall within the actual or 11 Formerly Article 8a, inserted by the Single European Act. Article 7a reads: "The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 7b, 7c, 28, 57(2), 59, 70(1), 84, 99, 100a and 100b and without prejudice to the other provisions of this Treaty. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty." 12 The Rhodes European Council on 2/3 December 1988 noted, in the context of the free movement of persons, that "the achievement of the Community's objectives, especially the area without internal frontiers, is linked to progress in intergovernmental cooperation to combat terrorism, international crime, drug trafficking and trafficking of all kinds," see Bulletin of the European Communities No. 12 of 1988,9. It established a Group of Coordinators on the Free Movement of Persons, who drew up a report on the measures needed in different fields in order to achieve progress towards the effective freedom of movement of persons within the Community. This report, the so-called "Palma document", was approved by the Madrid European Council in June 1989.

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potential competence of the Community. Aspects of some areas listed are expressly mentioned in the EC Treaty, as amended by Title I I of the Maastricht Treaty. For example, Article K . l (4) lists "combating drug addiction", but Article 129 (public health) of the EC Treaty provides that Community action shall be directed towards the prevention of diseases, including drug dependence. Again, immigration policy is listed in Article K . l (3), while new Article 100c of the EC Treaty gives the Community competence over some aspects of visa policy. Moreover, Article K.9 sets up a mechanism to transfer certain matters listed in Article K . l to Article 100c, and thus into Community competence. 13 The saving clause in Article K . l concerning the powers of the Community makes it clear that in so far as the Community has or acquires competence, it is not affected by apparently contradictory language in Title VI. A similar purpose is served by Article M , in the Final Provisions of the Treaty, which provides that, subject to the provisions amending the three Community Treaties and to the Final Provisions themselves, "nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them". a) Asylum and Immigration Policy O f the matters of common interest listed in Article K . l , the first three concern asylum and immigration policy, and are therefore closely inter-related. The Member States have in fact cooperated intergovernmentally on these subjects in an organised way since 1986. Before the Maastricht Treaty entered into force, Ministers responsible for immigration matters met at least every six months to take decisions in these fields. Their meetings were prepared by a group of senior officials called the A d Hoc Group on Immigration, which met about once a month and which in turn was served by several specialist working groups. The Member States had therefore developed an established practice of working together in the immigration field. By the time the Maastricht Treaty was signed, growing immigration pressures on the Member States made mutual cooperation more important than ever; at the same time, immigration policy remained for many Member States a matter of great political sensitivity. For some, above all Germany, asylum was the chief cause of immigration pressure. 14 Article K . l (1) simply refers to "asylum policy" as a matter of common interest. The Member States had already worked intensively together in this area, most notably concluding in 1990 the Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. 15 The importance attached to cooperation 13

See Section I I (5) below. In 1992 asylum applications in all Member States totalled approximately 560,000, of which 443,000 were lodged in Germany alone. 15 UK Command Paper Cm. 1623. 14

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on asylum policy can be seen in the Declaration on Asylum attached to the Final Act of the Maastricht Intergovernmental Conference. This records the agreement of the Conference that, in the context of the proceedings provided for in Articles K . l and K.3, "the Council w i l l consider as a matter of priority questions concerning Member States' asylum policies, w i t h the aim of adopting, by the beginning of 1993, common action to harmonise aspects of them". Although the Treaty had not entered into force by that deadline, the Member States did indeed intensify their work on asylum policy during 1992, and significant decisions were taken by Ministers responsible for immigration matters at their meeting in London on 30 November 1992. 16 Article K . l (2) lists, as the second matter of common interest, "rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon". This reflects the importance, especially in the context of the free movement of persons within the Community in accordance w i t h Article 7a of the EC Treaty, which was attached to control at the external borders of the Member States, that is to say at points of first entry into and departure from the combined territories of the twelve. The Member States had in fact already devoted much time and effort to this end, in particular negotiating a draft convention on the crossing of their external frontiers and a related draft convention on the establishment of a European information system. 17 Article K . l (3) lists as a matter of common interest "immigration policy and policy regarding nationals of third countries", and then defines this in some detail as follows: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) combating unauthorised immigration, residence and work by nationals of third countries on the territory of Member States. This accurately describes the aspects of immigration policy on which the Member States have cooperated hitherto. By contrast w i t h Article K . l (2), which refers to "persons", Article K . l (3) is concerned w i t h policy relating to "nationals of third countries", that is to say persons who are nationals of States other than the Member States. W i t h this limitation, the language is quite broad and comprehensive. For example, "combating unauthorised immigration" is wide enough to encompass both preventive action and post-entry measures such as expulsion or deportation. 16

See press release of 30 November 1992, available from the Secretariat General of the Council in Brussels. See also Guild , "Developments in EC immigration and asylum policy", Lawyers' Europe, Spring 1993, 2. 17 The negotiations had not been concluded at the time of writing.

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There are two aspects of immigration policy, as it relates to nationals of third countries, which are placed by the Maastricht Treaty within the competence of the European Community, as opposed to remaining within the competence of the Member States acting in cooperation under Title V I . Article G(23) of the Treaty inserts into the EC Treaty a new Article 100c. This provides for Community procedures to determine certain aspects of visa policy. Article 100c(l) requires the Council to determine the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States. The Council is to act by unanimity; but in recognition of the possible difficulty of reaching unanimous agreement, Article 100c(2) enables temporary decisions to be taken by qualified majority, and Article 100c(3) provides that from 1 January 1996 all decisions are to be taken by qualified majority. 1 8 Article 100c(3) also requires the Council, before 1 January 1996, to adopt measures relating to a uniform format for visas. I n each case the Council may only act upon the initiative of the Commission and after consulting the European Parliament. Acts adopted by the Council under Article 100c w i l l have the quality of Community law, in respect of which the European Court of Justice w i l l have its usual jurisdiction. 19 It is anomalous that the Treaty should pick out and assign to Community competence these limited aspects of immigration policy. But it represents a political compromise between those Member States which wanted the Community to have more competence over immigration and asylum policy and those which wanted it to have none at all. Article 100c represents the most which all could accept; and the two aspects of visa policy concerned were regarded as sufficiently selfcontained and severable from the generality of immigration policy to make this compromise workable. b) Drugs and Fraud The next two matters of common interest listed in Article K . l reflect the determination of the Member States to tackle modern mischiefs having transboundary effects. Both have been the subject of extensive cooperation between the Member States. Many aspects of the drug problem have been considered by the European Committee to combat drugs (known by its French acronym CEL A D ) which reported regularly to the European Council between 1990 and 1993. Fraud has been discussed both intergovernmentally and by Community institutions. 2 0 18

The term "qualified majority" is defined in EC Treaty Article 148(2). Dealt with chiefly in EC Treaty Articles 169 to 187 and 215. See discussion of Article 100c in Nanz, note 3. 20 See for example the Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, of 13 November 1991: OJ No. C 328/1 of 17 December 1991. 19

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Article K . l (4) lists "combating drug addiction in so far as this is not covered by (7) to (9)", and Article K . l (5) "combating fraud on an international scale in so far as this is not covered by (7) to (9)". The qualifying words in each provision recognise a potential overlap w i t h subparagraphs (7) to (9) of Article K . l , which respectively list as matters of common interest judicial cooperation in criminal matters, customs cooperation, and police cooperation. There is therefore room for cooperation other than of these kinds in combating drug addiction and fraud on an international scale. The distinction is legally significant for two reasons. First, by virtue of Article K.3 (2) only the Member States may initiate action in the areas referred to in Article K . l (7) to (9), whereas the Member States and the Commission share the right of initiative in the areas referred to in Article K . l (1) to (6). 21 Secondly, it is only action in the areas referred to in Article K . l (1) to (6) to which Article 100c may be applied (thus passing it into Community competence) in accordance w i t h Article K.9. It is therefore important to determine, each time action is taken to combat drug addiction or fraud on an international scale, whether it is done on the basis of Article K . l (4) or (5) or on the basis of Article K . l (7), (8) or (9). Aspects of the fight against drug addiction and fraud can also be the subject of action under the EC Treaty. Article 129 provides that "Community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence"; this is to be done "by promoting research into their causes and their transmission, as well as health information and education". Even before the Maastricht Treaty entered into force, the Council adopted a Regulation 22 under Article 235 of the EC Treaty establishing a European drug monitoring centre w i t h similar public health objectives. As for the fight against fraud, the Community has long been concerned about fraud affecting its own financial interests. This is reflected in Article 209a of the EC Treaty, which obliges Member States to take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests. Article M of the Maastricht Treaty, as well as the without prejudice clause at the beginning of Article K . l , mean that Articles 129 and 209a are not affected by Article K . l (4) and (5). They also mean that lawful action in the sphere of Community law is equally unaffected, for example by the European drug monitoring centre in the drug field or by the Community institutions to counter fraud affecting the Communities' financial interests. The legal position regarding action to combat drug addiction and fraud on an international scale is therefore not straightforward. The boundaries between the

21 22

See Section I I (3) (b) below. Council Regulation (EEC) 302/93: OJ No. L 36 of 12 February 1993.

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various possible legal bases for action are not altogether clear. Time w i l l tell how effectively these complex arrangements are applied in practice. c) Judicial Cooperation Article K . l (6) lists as a matter of common interest "judicial cooperation in civil matters", and Article K . l (7) "judicial cooperation in criminal matters". The term "judicial cooperation" is misleading. It might suggest no more than cooperative arrangements between the domestic courts of the Member States. But in practice it has come to be used as shorthand for a larger process. Each Member State has retained its own distinctive civil and criminal legal system, and in some Member States there are distinct regional legal systems. The Member States have guarded these jealously, and opposed the notion of Community competence over such matters as the organisation of the courts and administration of justice, rules of evidence, civil procedures and remedies, and criminal procedures and penalties. I n general these matters, as well as substantive criminal law and most areas of civil law, remain within the national competence of Member States. But the Member States have long acknowledged the need to cooperate closely to improve the efficiency and interaction of their legal systems within the Community. This need increased w i t h the establishment of the single market, bringing w i t h it freer movement of goods, services, capital and people within the Community. Judicial cooperation, involving a regular process of exchange of information, consultation, and agreement on subjects ranging from extradition to maintenance payments, was carried out in recent years as part of European Political Cooperation. The process also involved discussion and coordination of Member States' positions in wider international fora such as the United Nations, the Council of Europe, and the Hague Conference on Private International Law. This work can be expected to intensify under Title V I of the Maastricht Treaty. I n the civil law field, action has also been taken in pursuance of Article 220 of the EC Treaty. This provides, inter alia, that "Member States shall, so far as necessary, enter into negotiations with each other w i t h a view to securing for the benefit of their nationals . . . the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards". Notable achievements have been the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 23 and the 1980 Rome Convention on the Law applicable to Contractual 23

OJ No. L 299 of 31 December 1972. The Convention was amended on the accession of Denmark, Ireland and the United Kingdom (OJ No. L 304 of 30 October 1978), Greece (OJ No. L 388 of 31 December 1982), and Spain and Portugal (OJ No. L 285 of 3 December 1989).

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Obligations. 24 The possibility of concluding further conventions pursuant to Article 220, and thus within the framework of the Community Treaties (though not in the form of Community legislation), remains unaffected by Title VI. Title V I makes an important legal distinction between civil and criminal judicial cooperation. O n l y action in the field of judicial cooperation in civil matters, since that field is referred to in Article K . l (6), may be transferred to Article 100c of the EC Treaty and thus into Community competence in accordance with Article K.9; and it is only in respect of judicial cooperation in civil matters that the Commission shares the right of initiative w i t h Member States under Article K.3 (2). This distinction reflects the greater sensitivity of Member States about their powers in the field of criminal justice. d) Customs and Police Cooperation Article K . l (8) lists as a matter of common interest simply "customs cooperation". This may seem surprising given the many facets of customs policy which are regulated by Community law. But the customs authorities of the Member States have long cooperated on an intergovernmental basis in dealing w i t h matters which fall outside the competence of the Communities. A prime example is cooperation in the enforcement of national customs laws, 25 which often plays a vital role in fighting serious crime. Regular and organised exchange of information, intelligence and experience is essential for this purpose. Once again, the establishment of a single market within the Community increased the need for such cooperation. Article K . l (8) provides for this sort of cooperation to continue under Title V I . It cannot be passed into Community competence through Article K.9, and according to Article K.3 (2) the Commission has no right of initiative in respect of it. The same applies to police cooperation, which is defined as a matter of common interest in Article K . l (9) as follows: Police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organisation of a Unionwide system for exchanging information within a European Police Office (Europol). The first part of this definition describes an established field of intergovernmental cooperation between the Member States, which had been carried on since 1975 in a format known by the sobriquet "Trevi". Ministers would meet at least every 24

OJ No. L 266 of 9 October 1980. The Convention was amended on the accession of Greece (OJ No. L 146 of 31 May 1984), and Spain and Portugal (OJ No. L 333 of 18 November 1992). 25 See for example the Convention on the Provision of Mutual Assistance by their Customs Authorities, UK Treaty Series No. 93, 1980, Cmnd. 8080. 20 GYIL 36

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six months, and their meetings would be prepared by groups of officials and police experts which met much more frequently. Their purpose was cooperation to prevent and combat terrorism, drug trafficking and crime, through an organised process of exchange of information and experience. The second part of Article K . l (9) introduces a new and specific element. I t refers to a European Police Office (Europol). The linking phrase, " i n connection with", suggests that Europol is envisaged as one, but not the only, means of carrying out police cooperation; if the opposite had been intended, words such as " b y means of" or "through" would have been appropriate. Moreover, no such body as Europol existed when the Treaty was signed, and it can safely be assumed that the Member States did not intend police cooperation to cease pending the establishment of Europol. But Article K . l (9) plainly envisages that Europol w i l l be established. It was a German idea, proposed at the Luxembourg European Council in June 1991. The objective of establishing Europol, to assist in the fight against international drug trafficking and organised crime, was there agreed. 26 But the functions and powers of Europol remained controversial. Article K . l (9) records a limited consensus on this point by speaking of a Union-wide system for exchanging information. This is confirmed by the Declaration on Police Cooperation annexed to the Final Act of the Maastricht Intergovernmental Conference. This Declaration is obscurely worded and does not mention Europol, but its references to German proposals at the Luxembourg European Council are code for the Europol idea. It records the willingness of the Member States, "for the present", to envisage practical measures in that context relating to "the following functions in the exchange of information and experience: — support for national criminal investigation and security authorities, in particular in the coordination of investigations and search operations; — creation of databases; — central analysis and assessment of information in order to take stock of the situation and identify investigative approaches; — collection and analysis of national prevention programmes for forwarding to Member States and for drawing up Europe-wide prevention strategies; — measures relating to further training, research, forensic matters and criminal records departments." But the Declaration goes on to say that Member States agree to consider on the basis of a report, during 1994 at the latest, whether the scope of such cooperation should be extended. This represents a political compromise between those 26

See Bulletin of the European Communities No. 6 of 1991, 7. See also Nanz, note 3.

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who wanted a firm decision that Europol should later have functions going beyond the exchange of information and experience and those opposed to taking such a decision for the time being. I n fact, a draft convention for the establishment of Europol is currently being negotiated, and Europol can be expected to play a large part in the implementation of police cooperation under Title V I . 2. Qualifications Intergovernmental cooperation on the matters of common interest listed in Article K . l is subject to certain qualifications set out in Title V I . a) Human Rights Article K.2 (1) provides that: The matters referred to in Article K.l shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Convention relating to the Status of Refugees of 28 July 1951 and having regard to the protection afforded by Member States to persons persecuted on political grounds. The first part of this provision reflects Article F(2) of the Treaty, which states that the Union "shall respect fundamental rights, as guaranteed by [the European Human Rights Convention] and as they result from the constitutional traditions common to the Member States, as general principles of Community law". A l l the Member States are Contracting Parties to the European Human Rights Convention, 2 7 and are therefore already obliged to comply w i t h it. The Commission and Court of Human Rights at Strasbourg are available to enforce such compliance. It is therefore difficult to see what legal purpose Article K.2 (1) serves as regards this Convention. But it provides political reassurance, in legally binding terms, that in cooperating under Title V I the Member States must comply w i t h the human rights standards set out in the Convention, as interpreted and amplified by the Strasbourg Commission and Court. It w i l l also help Member States to resist any proposed action under Title V I which in their view might put them in breach of the Convention. Similar considerations apply to the reference in Article K.2 (1) to the Geneva Convention relating to the Status of Refugees. 28 A l l the Member States are Contracting Parties to that Convention. Unlike the European Human Rights Convention, the Geneva Convention does not establish its own enforcement machinery; judicial enforcement of the Convention on the international plane therefore de27 UK Treaty Series No. 71, 1953, Cmd. 8969. 28 UK Treaty Series No. 39, 1954, Cmd. 9171. 20*

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pends on reciprocal acceptance by Contracting Parties of the jurisdiction of the International Court of Justice or of another international tribunal. The reference in Article K . l (2) to the protection afforded by Member States to persons persecuted on political grounds adds an additional safeguard. 29 I n particular, it w i l l help any Member State, whose domestic law or practice affords to those suffering political persecution greater protection than is required by the two Conventions mentioned, to resist proposals for action under Title V I which might contravene its domestic law or practice. To that extent this provision could result in higher standards of protection being applied than are required by the European Human Rights Convention and the Geneva Convention relating to the Status of Refugees. b) Law and Order and Internal Security Article K.2 (2) provides as follows: This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. This can be regarded as a corresponding qualification to that in Article K.2 (1). It acknowledges that, while Member States owe human rights duties towards individuals, they also have responsibilities towards society to maintain law and order and to safeguard internal security. These responsibilities are obviously politically sensitive for Member States. They are essential elements of national sovereignty. Article K.2 (2) provides a clear basis for resisting proposed action under Title V I to any Member State which considers that such action might prejudice the exercise of its responsibilities to maintain law and order or to safeguard internal security. Each Member State remains free to exercise its own responsibilities in these fields, subject only to its other international obligations and its own domestic law. Article K.2 (2) cannot of itself allow Member States to derogate from the European Human Rights Convention or the Geneva Convention relating to the Status of Refugees, since all Member States are already legally bound by these Conventions. But Member States may feel obliged to have recourse to Article K.2 (2) to derogate from measures adopted in pursuance of Title V I ; and in case of doubt they can be expected to make express provision in such measures to enable them to do so.

29

Of particular concern to Germany, in view of Articles 16 and 19 of the Grundgesetz (Basic Law).

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c) Closer Cooperation between two or more Member States Article K.7 sets out another general qualification in the following terms: The provisions of this Title shall not prevent the establishment or development of closer cooperation between two or more Member States in so far as such cooperation does not conflict with, or impede, that provided for in this Title. This recognises the right of Member States to cooperate w i t h one another, bilaterally or in groups of less than twelve, more closely than all twelve may be able to achieve under Title V I . The material scope of the qualification is plainly that of Title V I itself: it concerns cooperation in respect of the matters of common interest listed in Article K . l . A n example of closer cooperation among some of the Member States is the 1985 Schengen Agreement concerning the gradual abolition of controls at common frontiers and the 1990 Convention for the application of that Agreement 30 , which are relevant to many of the matters listed in Article K . l . Another example is the closer cooperation on immigration and related matters between the United Kingdom and Ireland resulting from the common travel area they share. Article K.7 places a limit on such closer cooperative arrangements. They may exist only in so far as they do not conflict with, or impede, the cooperation provided for in Title V I . The evident intention is to give precedence to cooperative action by all twelve Member States; and the implication appears to be that, once agreed, cooperative action by the twelve would override any incompatible arrangements concluded between only some of them. Equally, any new special arrangements between less than twelve may only be concluded to the extent that they are compatible w i t h action taken by the twelve. 3. Forms of Cooperation Title V I envisages several forms and methods of cooperation between the Member States. These are described in fairly general terms, allowing the Member States considerable flexibility. I n all cases, since the product of cooperation under Title V I is not Community law, it can only be governed by international law. a) Information and Consultation Article K.3 (1) provides that: In the areas referred to in Article K.l, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations. 30

See GMBl. 1986, 79, and Bundestag Drucksache 12/3804 of 24 November 1992. At the time of writing all EC Member States except Denmark, Ireland and the United Kingdom were parties to the Schengen Agreement.

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This describes, in the form of a treaty obligation, the practice already developed by the Member States of exchanging information and consulting one another in the fields of justice and home affairs, both at regular meetings and through direct contacts between the responsible government departments. Article K.3 (1) applies to all of the areas referred to in Article K . l . It recognises that exchange of information and mutual consultation are the essential means of achieving the stated objective of coordinating action in these areas. Direct interdepartmental collaboration is to serve the same end. b) Further Action among the Twelve Article K.3 (2) envisages several forms of cooperation going beyond the exchange of information and consultation. It starts by specifying who has the right of initiative, that is to say the right to propose action using any of these forms of cooperation. I n the areas referred to in Article K . l (1) to (6), the right of initiative belongs to any Member State or the Commission. By contrast, in the areas referred to in Article K . l (7) to (9) — judicial cooperation in criminal matters, customs cooperation, and police cooperation — the right of initiative is restricted to "any Member State"; the Commission has no right to make proposals in these areas. Turning to the various forms of cooperation, Article K.3 (2) refers to "joint positions"; "any cooperation contributing to the pursuit of the objectives of the Union"; "joint action"; and "conventions". These appear to be listed in ascending order of formality (or perhaps of anticipated substantive scope). The reference to "conventions" at the apex might suggest that other forms of cooperation are not intended to be legally binding; the Treaty is silent on the question. But in all cases the product of cooperation under Title V I is governed by international law; so the legal status and effect of any instrument or decision adopted under Title V I is determined by the applicable rules of international law. Accordingly, it is submitted that the question whether or not an act in the form, for example, of a "joint position" or "joint action" is legally binding depends upon the intention of the parties and the terms of the act itself. As w i t h other instruments concluded within the framework of international law, the form or title chosen is not of itself decisive. 31

31

See for example, in the Vienna Convention on the Law of Treaties, U N Doc. A / CONF.39/27,1969, International Legal Materials (ILM), vol. 8,1969, 679, the broad definition of "treaty" in Article 2(1 )(a) for the purposes of that Convention, and Article 26 (pacta sunt servanda).

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aa) Joint Positions and other Cooperation Under Article K.3 (2) (a) the Council may "adopt joint positions and promote, using the appropriate form and procedures, any cooperation contributing to the pursuit of the objectives of the Union". These are clearly terms of extreme generality. A "joint position" is in practice descriptive of an agreed policy or standpoint of the twelve Member States w i t h regard to a particular situation. A common and coordinated position is frequently adopted and pursued in international organisations and at international conferences, or in the face of external events or pressures. The rest of Article K.3 (2) (a) envisages the promotion of any appropriate form of cooperation, using the appropriate procedures. This allows a large measure of flexibility, both as to form and procedure. The only qualification, which hardly needed to be stated, is that such cooperation should contribute to the pursuit of the objectives of the Union. The fact that such cooperation is referred to in Article K.3 (2) (a) suggests that its substance, scope or effects are intended to encompass something less than joint action or conventions, which are dealt w i t h in Article K.3 (2) (b) and (c) respectively. bb) Joint Action Article K.3 (2) (b) provides that the Council may "adopt joint action in so far as the objectives of the U n i o n can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged; it may decide that measures implementing joint action are to be adopted by a qualified majority". The term "joint action", like "joint position", is very general. It suggests something between an agreed standpoint on a particular matter and the formal conventions referred to in Article K.3 (2) (c). I t could therefore embrace a range of agreed decisions or arrangements providing for some sort of action; and the second part of Article K.3 (2) (b) envisages implementing measures. The adoption of "joint action" is qualified by language describing a subsidiarity test. This language differs from that in Article 3b of the EC Treaty 3 2 , which defines the principle of subsidiarity for the purposes of that Treaty. There is a further inconsistency in that Article B of the Maastricht Treaty requires the 32 Inserted by Article G(5) of the Maastricht Treaty. The comparable test in Article 3b is in the following terms: "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community". Annex 1 to Part A of the Presidency Conclusions of the Edinburgh European Council of 11 /12 December 1992 sets out the "overall approach to the application by the Council of the subsidiarity principle and Article 3b," see Bulletin of the European Communities No. 12 of 1992, 12.

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objectives of the Union to be achieved "as provided in this Treaty . . . . while respecting the principle of subsidiarity as defined in Article 3b of the Treaty establishing the European Community". But too much should not be made of this anomaly. The thrust of both Article K.3 (2) (b) and Article 3b is broadly similar. Article B would suggest that in case of doubt the test in Article 3b should prevail. But in any case, since the adoption of joint action under Article K.3 (2) (b) requires unanimity, it is open to any Member State to withhold its consent if it is not convinced that the proposal satisfies the subsidiarity test there set out. A n d unlike Article 3b, Article K.3 (2) (b) is not justiciable in the European Court of Justice. cc) Conventions Article K.3 (2) (c) describes the most formal means of cooperation under Title V I . It provides that the Council may: [W]ithout prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Unless otherwise provided by such conventions, measures implementing them shall be adopted within the Council by a majority of two-thirds of the High Contracting Parties. Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down. The use of the word "conventions" reflects the previous practice of the Member States in this field. They have concluded formal treaty instruments, usually called Conventions, both in the process of intergovernmental cooperation on justice and home affairs and in pursuance of Article 220 of the EC Treaty. The apparent intention is to refer to formal agreements binding in international law. A consecutive process for concluding them is prescribed. First, a convention is drawn up in the Council and recommended to the Member States. Then, Member States decide whether to "adopt" the convention in accordance w i t h their respective constitutional requirements. This language is flexible enough to allow for the various methods under international law of expressing consent to be bound by a treaty, 33 according to the circumstances of each case and the applicable constitutional requirements of the Member States. The result w i l l be international agreements between the Member States. Article K.3 (2) (c) sets up a presumption that measures to implement any convention concluded under this Article shall be adopted by a majority of two33

See Articles 11 to 17 of the Vienna Convention on the Law of Treaties (note 31). The word "adopt" in Article K.3(2)(c) of the Maastricht Treaty clearly has a different sense from the process of "adoption" of the text of a treaty provided for in Article 9 of the Vienna Convention.

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thirds of the H i g h Contracting Parties; but the convention itself can override that presumption by stipulating different decision-making rules. While doubtless designed to ease implementation, the wisdom of this presumption is questionable: it could lead to disagreement during negotiation, especially where the proposed convention deals w i t h sensitive matters, and might even delay or prevent the conclusion of the convention. There is also a presumption that implementing measures w i l l be "adopted within the Council"; but again, this presumption can be overridden by the terms of the convention itself. By contrast, the final sentence of Article K.3 (2) (c) allows the negotiating States an unfettered choice as to whether the European Court of Justice should be accorded jurisdiction in relation to a convention adopted under that Article. The Court may be given jurisdiction to interpret the provisions of a convention and to rule on any disputes regarding its application, in accordance w i t h such arrangements as the convention itself may lay down. The Member States therefore have discretion whether or not to provide in a convention for the Court to have jurisdiction, and if so to prescribe the extent of such jurisdiction and the arrangements applicable to it. The choice w i l l affect only the judicial enforceability of a particular convention; even if the European Court of Justice is not accorded jurisdiction, the convention might still be enforceable by the International Court of Justice or another international tribunal, depending on the extent to which the jurisdiction of any such authority has been reciprocally accepted by Contracting Parties to the convention. I n any case, even if there is no international tribunal w i t h jurisdiction to secure compliance w i t h a convention concluded under Title V I , that does not of course affect the binding force of the convention under international law. The same applies to such other instruments or decisions adopted under Title V I as may give rise to international legal obligations. Intergovernmental cooperation under Title V I takes place within the framework of international law. As in other fields of international treaty-making, it is for the States engaged in it to choose whether, and if so how far, to accept the jurisdiction of a court or tribunal to enforce their agreements. But if they make a legally binding agreement, it is in any case binding: pacta sunt servanda. 34

34

This fundamental norm of international law is codified in Article 26 of the Vienna Convention on the Law of Treaties.

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c) Cooperation in International Fora The other form of cooperation specified in Title V I is set out in Article K.5, which provides: Within international organisations and at international conferences in which they take part, Member States shall defend the common positions adopted under the provisions of this Title. This acknowledges that an important element of justice and home affairs cooperation is coordination between the Member States on the wider international stage. Many of the policy areas covered by Title V I are the subject of discussion and negotiation in wider international fora, especially the Council of Europe, the Hague Conference on Private International Law, and the United Nations and diplomatic conferences held under its auspices. I n such negotiations the Member States had already developed a practice of coordinating their positions as far as possible, and Article K.5 reflects this. It does not in terms require coordination on all matters. But it does oblige Member States, once they have reached agreement on a common position, to "defend" it within international organisations and at international conferences in which they take part. This w i l l obviously strengthen their influence in international negotiations. Article K.5 complements similar provisions in Title V, which deal w i t h the common foreign and security policy. I n particular, Article J.2 (2) provides that "whenever it deems it necessary, the Council shall define a common position" on any matter of foreign and security policy of general interest. Article J.2 (3) then provides: Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the common positions in such forums (sic). In international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the common positions. The word "uphold" in Article J.2 (3) is perhaps a more appropriate and comprehensive description of the action required than is the word "defend" in Article K.5; but the apparent intention is the same in each case, and a restrictive interpretation of "defend" would make little sense. Each provision uses the term "common positions", but in Article K.5 it is qualified by the words "adopted under the provisions of this Title". This indicates that, as regards the policy areas covered by Title V I , the Member States w i l l seek to coordinate their positions in the wider international field separately from the common foreign and security policy under Title V. I n doing so, they may adopt common positions as part of any of the forms of cooperation described in Article K.3 (2); there is no reason w h y the similarly named "joint positions" should be the only vehicle, though it might naturally be the principal one.

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4. The Institutional

Framework

As noted at the outset, 35 Article C establishes a single institutional framework for the activities of the Union. Pursuant to Article D , the European Council gives overall political direction to justice and home affairs cooperation as part of those activities, as it did when that cooperation was conducted informally. Below that level, Article E distinguishes between the way the European Parliament, the Council, the Commission and the Court of Justice are to exercise powers when acting, on the one hand, under the Community Treaties, and on the other hand, under "the other provisions" of the Maastricht Treaty. Title V I represents some of these "other provisions". They give functions in operating Title V I to the Council, the Commission, and the Parliament. But in exercising those functions, these institutions act outside the Community Treaties and according to specially defined procedures, and not according to Community law and procedures. The Court of Justice is given no jurisdiction in respect of Title V I itself, but, as noted above, it may be given jurisdiction in respect of conventions concluded under it. I n short, the process of cooperation under Title V I is not comparable to the supranational system of the Community Treaties. 36 a) The Council As we have seen in discussing the various forms of cooperation under Article K.3, the Council is the body within which the Member States are to act formally under Title V I . Under Article K.3 (1), Member States are to inform and consult one another "within the Council" w i t h a view to coordinating their action. Under Article K.3 (2), it is the Council which may adopt joint positions, promote other cooperation, adopt joint action, and draw up conventions to be recommended to the Member States for adoption. Article K.4 (3) prescribes the rules for decision-making within the Council when acting under Title V I . It states: The Council shall act unanimously, except on matters of procedure and in cases where Article K.3 expressly provides for other voting rules. Where the Council is required to act by a qualified majority, the votes of its members shall be weighted as laid down in Article 148 (2) of the Treaty establishing the European Community, and for their adoption, acts of the Council shall require at least 54 votes in favour, cast by at least eight members. Accordingly, for substantive matters the general rule is unanimity. A n y Member State can therefore block a decision. The only exceptions are matters of procedure, 35

See Section I above. See discussion of the institutional arrangements for Titles V and VI in Wyatt / Dashwood , "European Community Law", Third Edition, London 1993, at 672-673. 36

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which are governed by the Council's Rules of Procedure and are mostly decided by simple majority, and cases where Article K.3 expressly provides for other voting rules. There are two such cases. One is straightforward: Article K.3 (2) (c) requires measures implementing any convention concluded under that paragraph to be adopted within the Council by a majority of two-thirds of the H i g h Contracting Parties, unless the convention provides otherwise. The second is Article K.3 (2) (b), which enables the Council to "decide that measures implementing joint action are to be adopted by a qualified majority". I n so deciding, the Council must of course act unanimously; but if it does so, the only "qualified majority" that can be applied for the adoption of implementing measures is that defined in the second sentence of Article K.4 (3). This imports from Article 148 (2) of the EC Treaty the system of votes weighted according to the relative size of the Member States. As under that Article, 54 (out of a total of 76) votes in favour are required for the adoption of an act; in addition, those votes must have been cast by at least eight Member States. Article K.8 (1) applies, for the purpose of operating Title V I , several provisions of the EC Treaty relating to the Council. These concern the composition of the Council and its six-monthly rotating Presidency (Article 146), convening of the Council (Article 147), proxy voting (Article 150), the Committee of Permanent Representatives, Secretariat, and rules of procedure (Article 151), the Council's power to request the Commission to undertake studies and submit to it proposals (Article 152), and the Council's power to determine the rules governing committees (Article 153). Article K.8 (1) also applies Article 217 of the EC Treaty, which empowers the Council to determine the rules governing the languages of the Community institutions. 37 Significantly, Article K.8 (1) does not apply Article 145 of the EC Treaty, which is the source of the Council's powers under that Treaty, or Article 148, which is the basis for its decision-making rules under that Treaty. This is because the powers and decision-making rules of the Council under Title V I are, as we have seen, specially defined within that Title. Article K.4 (1) makes provision for the preparation of the Council's work under Title V I . The Council consists of Ministers representing the Member States. It is assisted by a committee of senior officials. Article K.4 (1) provides as follows: A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to: — give opinions for the attention of the Council, either at the Council's request or on its own initiative; — contribute, without prejudice to Article 151 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to 37

Pursuant to Article 217, Council Regulation No.l of 15 April 1958, as amended, provides that the official languages and the working languages of the Community institutions are Dutch, French, German, Italian, English, Danish, Greek, Portuguese and Spanish.

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in Article K.l and, in accordance with the conditions laid down in Article lOOd of the Treaty establishing the European Community, in the areas referred to in Article 100c of that Treaty. This Committee accordingly coordinates, below the level of the Council, all the work under Title V I . It is composed of officials representing the Member States, w i t h the Commission in attendance; and it is supported by a variety of similarly composed specialist working groups which report to it. It is also the specialist Committee which advises the Council and prepares decisions for the Council to take. 38 To complicate matters, the Committee of Permanent Representatives of the Member States also has a role in this regard. This is the Committee (known by its French acronym COREPER) established by Article 151 of the EC Treaty, 3 9 which gives it responsibility "for preparing the work of the Council". Article 151 is expressly saved by the second indent of Article K.4 (1). COREPER therefore retains its role in preparing the Council's work alongside the Coordinating Committee (as it does alongside the equivalent Political Committee established by Article J.8 (5) for the common foreign and security policy). This allows COREPER to ensure the overall coordination of the activities of the Union, within all three pillars, and thus to ensure that the Council is provided w i t h coherent advice. b) The Commission The Commission, under the Community Treaties, has extensive powers and a central role. I n most matters it has the sole right to propose legislation; 40 it has its own legislative powers, some conferred directly by the Treaties and many more delegated to it by the Council; 4 1 and it has powers to police the observance of the Treaties, including powers to arraign Member States before the Court of Justice. 42 By contrast, under Title V I the Commission has a limited function. Article K.4 (2) provides simply that: "The Commission shall be fully associated w i t h the work in the areas referred to in this Title." 38

Before the entry into force of the Maastricht Treaty, several groups of senior officials performed similar functions on home affairs and justice matters: for example, the Ad Hoc Immigration Group and Trevi Senior Officials prepared six-monthly Ministerial meetings, while CELAD and the Coordinators' Group on the Free Movement of Persons advised the European Council directly. 39 Formerly provided for in Article 4 of the Treaty establishing a single Council and a single Commission of the European Communities. Articles 2 to 7 and 10 to 19 of that Treaty were repealed by Article P(l) of the Treaty on European Union. 40 This is specified in most of the EC Treaty articles which provide a legal basis for Community legislation. 41 EC Treaty Articles 155 and 145. 42 EC Treaty Articles 155 and 169.

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This gives the Commission the right to attend and participate in all meetings held in applying Title VI. This largely reflects the practice followed before the Maastricht Treaty, when the Commission attended most meetings concerned w i t h justice and home affairs cooperation. But the Commission has no right to participate in decision-making. I n respect of the matters listed in Article K . l (1) to (6), the Commjssion shares w i t h the Member States the right to make proposals for action under Article K.3 (2). Similarly, under Article K.9 the Commission shares w i t h the Member States the right to propose to the Council that Article 100c of the EC Treaty should apply to action in any of the areas referred to in Article K . l (1) to (6). Proposals by the Commission carry no special weight; there is no provision in Title V I like Article 189a of the EC Treaty, by virtue of which unanimity in the Council is in most cases required for an act under that Treaty constituting an amendment to a Commission proposal. I n respect of the matters listed in Article K . l (7) to (9), that is to say judicial cooperation in criminal matters, customs cooperation, and police cooperation, the Commission has no right to make proposals at all; Article K.3 (2) reserves the right of initiative on these matters to the Member States. Under Article K.6 the Commission shares w i t h the Presidency the task of informing the European Parliament of discussions in the areas covered by Title V I . Article K.8 (1) applies certain EC Treaty articles concerning the Commission for the purpose of operating Title V I . These deal w i t h the composition of the Commission (Article 157), the appointment, term of office, and removal of its members (Articles 158, 159 and 160), vice-presidents (Article 161), consultation and cooperation w i t h the Council, and Commission rules of procedure (Article 162), and Commission decision-making (Article 163). N o t so applied are any of the EC Treaty provisions giving the Commission powers to initiate and adopt legislation or to police the observance of the Treaty. c) The European Parliament Under the Community Treaties, the European Parliament has considerable influence over the legislative process. 43 The Maastricht Treaty increased this by giving the Parliament a power of "co-decision" w i t h the Council in making Community legislation in certain fields. 44 Under Title V I , however, the Parliament 43 EC Treaty Article 138b. Several EC Treaty articles require the Parliament to be consulted on a proposal for legislation. The Single European Act introduced a "cooperation procedure" with the Parliament in the adoption of legislation on certain matters, now prescribed in EC Treaty Article 189c. 44 EC Treaty Article 189b. Although sometimes called "co-decision", the procedure provided for in this Article is more accurately described as a negative assent procedure.

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has only an advisory and supervisory role. It is set out in Article K.6, in the following terms: The Presidency and the Commission shall regularly inform the European Parliament of discussions in the areas covered by this Title. The Presidency shall consult the European Parliament on the principal aspects of activities in the areas referred to in this Title and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament may ask questions of the Council or make recommendations to it. Each year, it shall hold a debate on the progress made in implementation of the areas referred to in this Title. The first sentence reflects the practice which had become established before the Treaty entered into force. Successive Council Presidencies kept the Parliament informed of progress on home affairs and justice cooperation, both by transmitting documents and through Ministerial appearances at least every six months. Article K.6 turns these voluntary arrangements into a treaty requirement, and gives the Commission a shared responsibility w i t h the Presidency. The third sentence of Article K.6 formalises a practice the Parliament had itself developed. It often asked questions, held debates and passed resolutions making recommendations on matters now the subject of Title V I . It now has a treaty right to do so. The second sentence of Article K.6 marks the most significant advance on previous practice. The Parliament is given, for the first time, the right to be consulted on the "principal aspects" of activities in Title V I areas; 45 and the Presidency is obliged to ensure that the Parliament's views are "duly taken into consideration". This implies that the Parliament must be given the opportunity to express its opinion on the main lines of proposed policy, and that the Presidency must see to it that the Parliament's views are given due weight in the Council. But the Parliament's views and recommendations have no binding force. Article K.8 (1) applies, for the purpose of operating Title V I , the following EC Treaty provisions concerning the Parliament: Article 137 (composition), Article 138 (elections), Article 139 (sessions), Article 140 (election of officers, hearing of Commission and Council), Article 141 (voting), and Article 142 (rules of procedure and publication of proceedings). N o t so applied is Article 138b, which prescribes the Parliament's powers in the Community legislative process. N o r are Articles 138c, 138d and 138e, which provide respectively for parliamentary Committees of Inquiry, petitions to the Parliament, and inquiries by the Ombudsman. Accordingly, none of these processes can be applied in relation to activities under Title VI. 45

This process of consultation should not be confused with the consultation procedure on proposals for Community legislation required by certain EC Treaty articles.

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d) The Court of Justice The jurisdiction of the Court of Justice in respect of the various parts of Maastricht Treaty is stipulated in Article L. This states that the provisions of three Community Treaties "concerning the powers of the Court of Justice of European Communities and the exercise of those powers shall apply only to following provisions of this Treaty:

the the the the

(a) provisions amending [the three Community Treaties]; (b) the third subparagraph of Article K.3 (2) (c); (c) Articles L to S.". Accordingly, Title V I as such is not subject to the Court's jurisdiction. The only provision of Title V I listed in Article L is the one enabling conventions concluded under Article K.3 (2) (c) to confer jurisdiction on the Court of Justice "to interpret their provisions and to rule on any disputes regarding their application, in accordance w i t h such arrangements as they may lay down". The Court therefore has jurisdiction in respect of this provision; but since this provision is purely permissive, it is difficult to see w h y the Court should need to interpret it, except conceivably in case of doubt that a convention conferring jurisdiction on the Court pursuant to it had lawfully done so. A n y jurisdiction conferred on the Court by a convention concluded under Article K.3 (2) (c) would not be the jurisdiction the Court has under the Community Treaties; nor would its rulings be binding in Community law. It would be an ad hoc jurisdiction, conferred and regulated by a Member State convention outside the Community framework, to interpret that convention and settle disputes on it. This is the position w i t h the jurisdiction already conferred on the Court by the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Since by virtue of Article M the Court retains jurisdiction in respect of the Community Treaties, it can properly determine the extent of Community powers. Accordingly, in case of dispute the Court can be expected to determine the boundary between the competence of the Community under the EC Treaty and that of the Member States under Title V I . e) Expenditure Article K.8 (2) deals w i t h the costs of implementing Title V I . Administrative expenditure entailed for the institutions is charged to the budget of the European Communities. The reference to "the institutions" appears, in the context of Article K.8 and the single institutional framework, to embrace the Council, the Commission, the Parliament and the Court of Justice. Administrative expenditure which is not entailed for these institutions cannot be charged to the Community budget.

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As regards operational expenditure, the Council has a choice. It may either decide unanimously that operational expenditure shall be charged to the budget of the European Communities, in which case the budgetary procedure laid down in the EC Treaty applies; 46 or the Council may determine that such expenditure shall be charged to the Member States, "where appropriate in accordance w i t h a scale to be decided". The former option would concede more influence over Title V I to the Parliament and the Commission, in view of their powers in the Community budgetary procedure. 5. Relationship with the European Community Title V I does not form part of the Community Treaties. Cooperation under Title V I takes place outside Community procedures, and the resulting decisions form no part of Community law. But in order to leave open the possibility of transferring some of the areas covered by Title V I into Community competence, Article K.9 provides a means to do so — a link (sometimes called a passerelle, or footbridge) to the EC Treaty. The other end of the link is new Article 100c of the EC Treaty. This, as noted above in discussing immigration policy, confers on the Community competence over some aspects of visa policy. 4 7 But paragraph 6 adds an "evolutionary clause", as follows: This Article shall apply to other areas if so decided pursuant to Article K.9 of the provisions of the Treaty on European Union which relate to cooperation in the fields of justice and home affairs, subject to the voting conditions determined at the same time. So Article 100c is a sort of receptacle available to accommodate other matters which might be transferred to it via Article K.9. Article K.9 is in the following terms: The Council, acting unanimously on the initiative of the Commission or a Member State, may decide to apply Article 100c of the Treaty establishing the European Community to action in areas referred to in Article K.l (1) to (6), and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements. This procedure may not be applied to the matters referred to in Article K . l (7) to (9): judicial cooperation in criminal matters, customs cooperation, and police cooperation. It may be applied to "action in areas referred to in Article K . l (1) to (6)". As regards these areas, this language permits either a wholesale or a piecemeal approach. For example, the area referred to in Article K . l (1) is "asylum 46

EC Treaty Articles 199 to 209. Article 199 provides the legal basis, in the EC Treaty itself, for charging expenditure to the Community budget in accordance with Article K.8(2). 47 See notes 18-19 above and accompanying text. 21 GYIL 36

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policy". The wording of Article K.9 would not preclude the transfer to Article 100c of either "asylum policy" as a whole or defined aspects of asylum policy. Article K.9 provides for a two-stage procedure. First, acting on the initiative of the Commission or a Member State, the Council decides that Article 100c should apply to action on a defined subject. I n doing so, the Council must determine the voting conditions under which action would be taken on that subject under Article 100c. The Council must decide these matters unanimously, so any Member State could prevent it. If the Council reaches a unanimous decision, it recommends that decision to the Member States. The second stage is the adoption of that decision by the Member States " i n accordance w i t h their respective constitutional requirements". 48 That can be expected to involve some form of ratification and domestic legislative procedure in each Member State, 49 since the effect of adopting the Council's decision would be to amend both Title V I of the Maastricht Treaty and Article 100c of the EC Treaty. Only after all Member States have "adopted" the Council's decision, in accordance w i t h their respective constitutional requirements, can the decision come into force; and only then can action in relation to the subject transferred be taken by the Community under Article 100c. U n t i l that moment the Community has no competence in respect of that subject. Paragraph 7 of Article 100c resolves the potential problem that areas of policy which may at any time fall within the scope of that Article might already be regulated by conventions in force between the Member States (whether concluded under Title V I or earlier). It states that "the provisions of conventions in force between the Member States governing areas covered by this Article shall remain in force until their content has been replaced by directives or measures adopted pursuant to this Article". Article lOOd of the EC Treaty acknowledges that expertise on Article 100c matters is likely to reside in the Coordinating Committee established by Article K.4. It requires that Committee to "contribute, without prejudice to the provisions of Article 151, to the preparation of the proceedings of the Council in the fields referred to in Article 100c." 50 The saving for Article 151 means that COREPER retains its responsibility for preparing the work of the Council, alongside that of the Coordinating Committee, as is the case under Title V I . These arrangements 48

Cf. similar procedures in EC Treaty Articles 8e, 138(3) and 201. In Annex 3 to the Edinburgh Decision on Denmark and the Treaty on European Union, Denmark declared that "in Denmark, such adoption will, in the case of a transfer of sovereignty, as defined in the Danish Constitution, require either a majority of five-sixths of Members of the Folketing or both a majority of the Members of the Folketing and a majority of votes in a referendum". Article D of the Decision provides that "Denmark will participate fully in cooperation on Justice and Home Affairs on the basis of the provisions of Title VI of the Treaty on European Union.". See Bulletin of the European Communities No. 12 of 1992, 24-27. 50 A corresponding cross-reference to Article lOOd is made in Article K.4(l). 49

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recognise the close relationship between the policy areas dealt w i t h in Title V I and Article 100c, whether or not any transfers are made via Article K.9.

I I I . Conclusions Intergovernmental cooperation between the Member States of the European Communities on justice and home affairs is not new. Since many of the policy areas in this field are politically sensitive, Governments have carefully guarded national competence over them. Cooperation has proceeded gradually and selectively. There has been no consensus for moving precipitately, or for conferring competence on the European Communities. Governments have preferred to walk together before trying to run. But they have taken several strides forward, and have reached some significant agreements. This is largely due to the habit of mutual consultation and cooperation they have developed in the intergovernmental process. Title V I of the Treaty on European Union wisely builds upon this experience. It consolidates a well-tried method of intergovernmental cooperation in the field of justice and home affairs. The policy areas it identifies as matters of common interest are those on which the Governments of the Member States are accustomed to working together. It retains, as a fundamental rule, decision-making by unanimity. It provides, for the first time, a treaty framework within which intergovernmental cooperation in this field can be carried on. Within the overall structure of the Treaty on European Union, and of the Union it establishes, justice and home affairs cooperation is firmly established as a distinct process. It is an intergovernmental, not a supranational, process. It is legally separated from, and carried on outside, the Community Treaties. It is governed by international law, not Community law. It is organised according to its own special procedures. This is an important legal development. The boundary between the competence of the Community and the powers of the Member States in some of the areas covered by Title V I was previously controversial. It is now much clearer, if not altogether sharply defined. Where there is some overlapping competence, the existing powers of the Community are preserved. Otherwise Title V I matters remain within national competence, and cooperation in respect of them is to be carried out under that Title. A bridge has been built to allow matters to be transferred to Community competence, in an orderly way and by deliberate decision. The procedure prescribed for this requires unanimity in the Council and subsequent ratification by all Member States. Given the single institutional framework of the Union, some of the institutions of the Communities have a role to play in organising cooperation under Title V I . 2*

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Formal meetings are held and decisions taken in the Council, according to specially defined procedures. The Commission and the Parliament have modest roles by comparison w i t h their powers under the Community Treaties. The Court of Justice has only such jurisdiction as the Governments may choose separately to give it. The European Council secures overall political direction. Title V I allows plenty of scope and flexibility for cooperation on justice and home affairs. Several forms of cooperation are possible, formal and informal. None involves Community legal instruments. A l l are subject to international law, which determines the legal status and effects of decisions and agreements reached. It is too soon to examine the effectiveness of the structure for justice and home affairs cooperation established by the Maastricht Treaty. It w i l l be interesting to revisit the topic later in the light of practice in the application of Title V I . The legal regime is not without complexity, and practice may not be uniform. The nature of the policies and issues involved calls for a pragmatic, step-by-step approach. Ultimately, success in cooperating on these sensitive matters depends on positive political will. The third pillar of Maastricht is founded on consensus politics and decision-making; and consensus is the key to progress.

Annex Treaty on European Union (Extract)

Title VI Provisions on Cooperation in the Fields of Justice and Home Affairs Article K Cooperation in the fields of justice and home affairs shall be governed by the following provisions. Article K.1 For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: (1) asylum policy; (2) rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; (3) immigration policy and policy regarding nationals of third countries: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment;

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(c) combating unauthorised immigration, residence and work by nationals of third countries on the territory of Member States; (4) combating drug addiction in so far as this is not covered by (7) to (9); (5) (6) (7) (8) (9)

combating fraud on an international scale in so far as this is not covered by (7) to (9); judicial cooperation in civil matters; judicial cooperation in criminal matters; customs cooperation; police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organisation of a Unionwide system for exchanging information within a European Police Office (Europol). Article K.2

1. The matters referred to in Article K.l shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Convention relating to the Status of Refugees of 28 July 1951 and having regard to the protection afforded by Member States to persons persecuted on political grounds. 2. This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article K.3 1. In the areas referred to in Article K.l, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations. 2. The Council may: — on the initiative of any Member State or of the Commission, in the areas referred to in Article K.l(l) to (6); — on the initiative of any Member State, in the areas referred to in Article K.l(7) to (9): (a) adopt joint positions and promote, using the appropriate form and procedures, any cooperation contributing to the pursuit of the objectives of the Union; (b) adopt joint action in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged; it may decide that measures implementing joint action are to be adopted by a qualified majority; (c) without prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Unless otherwise provided by such conventions, measures implementing them shall be adopted within the Council by a majority of two-thirds of the High Contracting Parties. Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down.

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Article K.4 1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to: — give opinions for the attention of the Council, either at the Council's request or on its own initiative; — contribute, without prejudice to Article 151 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article K.l and, in accordance with the conditions laid down in Article lOOd of the Treaty establishing the European Community, in the areas referred to in Article 100c of that Treaty. 2. The Commission shall be fully associated with the work in the areas referred to in this Title. 3. The Council shall act unanimously, except on matters of procedure and in cases where Article K.3 expressly provides for other voting rules. Where the Council is required to act by a qualified majority, the votes of its members shall be weighted as laid down in Article 148(2) of the Treaty establishing the European Community, and for their adoption, acts of the Council shall require at least fifty-four votes in favour, cast by at least eight members. Article K.5 Within international organisations and at international conferences in which they take part, Member States shall defend the common positions adopted under the provisions of this Title. Article K.6 The Presidency and the Commission shall regularly inform the European Parliament of discussions in the areas covered by this Title. The Presidency shall consult the European Parliament on the principal aspects of activities in the areas referred to in this Title and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament may ask questions of the Council or make recommendations to it. Each year, it shall hold a debate on the progress made in implementation of the areas referred to in this Title. Article K.7 The provisions of this Title shall not prevent the establishment or development of closer cooperation between two or more Member States in so far as such cooperation does not conflict with, or impede, that provided for in this Title. Article K.8 1. The provisions referred to in Articles 137, 138, 139 to 142, 146, 147, 150 to 153, 157 to 163 and 217 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this Title. 2. Administrative expenditure which the provisions relating to the areas referred to in this Title entail for the institutions shall be charged to the budget of the European Communities.

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The Council may also: — either decide unanimously that operational expenditure to which the implementation of those provisions gives rise is to be charged to the budget of the European Communities; in that event, the budgetary procedure laid down in the Treaty establishing the European Community shall be applicable; — or determine that such expenditure shall be charged to the Member States, where appropriate in accordance with a scale to be decided. Article K.9 The Council, acting unanimously on the initiative of the Commission or a Member State, may decide to apply Article 100c of the Treaty establishing the European Community to action in areas referred to in Article K. 1(1) to (6), and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements.

Russian Intellectual Property Reform: Towards a Market Paradigm By Michael N e w c i t y *

The twin engines that have driven Soviet, now Russian, intellectual property law reform have been changes in the underlying economic paradigm and, for the past thirty years, the desire to acquire advanced Western technology. Prior to the late 1950s, the Soviet strategy for developing their technological base was to develop such technology either independently or to copy existing foreign technology through reverse engineering without the permission of the foreign proprietor and certainly without the payment of royalties. By the early 1960s, however, it had become clear that this was an inefficient and ineffective strategy for technological development. Independent development and reverse engineering were expensive, time-consuming, and did not provide the managerial and operational know-how necessary for the effective use of the technology. The widespread acquisition of Western technology, w i t h the cooperation of the developers and proprietors of that technology, was necessary to achieve industrial modernization and economic productivity. Before Western governments, principally the United States, would permit these transfers of technology, they insisted that the Soviets upgrade the level of intellectual property protection offered in the USSR so that Western technology, once transferred to Soviet users, would not be freely pirated or otherwise misused. From the late 1950s through 1991, changes in the laws protecting intellectual property in the Soviet U n i o n often occurred in direct response to the efforts by the Soviet government to normalize trade relations and expand technology transfers w i t h the United States and other Western countries. This process of modifying intellectual property laws in response to the demands of foreign governments and technology owners has continued in Russia since the demise of the Soviet Union and largely explains the recent adoption of several important new intellectual property laws in the Russian Federation. These laws — on patents, trademarks, the protection of computer software and integrated circuits, and copyright — are intended to bring Russian legal safeguards for these * Research Associate, Center on East-West Trade, Investment, and Communications, Duke University.

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forms of intellectual property closer to world standards, to assuage the concerns of foreign trading partners who have been reluctant in the absence of such protection to export many forms of high technology to the former Soviet Union, and to conform Russian intellectual property law w i t h the market economy that is emerging there. Conforming Soviet, now Russian, intellectual property law to Western standards has been a slow and difficult process, and, despite the adoption of these recent laws, it remains incomplete. The administration and enforcement of the laws that have been adopted remain extremely difficult. This article is intended to analyze the current state of Russian intellectual property law. A n y such analysis of Russian law as it exists today, however, is inevitably no more than an interim report, an analysis of a legal system in transition from a communist polity and a command economy to a more democratic, pluralistic civil society and a market economy. However, just as the over-all transition of Russian society is unlikely to proceed quickly or smoothly and may take some unexpected turns, the development of a stable system of intellectual property law, its administration, and enforcement is likely to occur only fitfully over the years to come. I. The Soviet Legacy of Intellectual Property Protection Intellectual property legislation during the Soviet era passed through several phases in response to overarching political and economic developments. Immediately after the revolution and during the period of war communism, 1 tsarist copyright and patent laws were supplanted by new, more obviously socialist, laws and decrees that curtailed the rights of authors and inventors to claim monopolies on their creative works. These laws also sought to minimize market influences by standardizing and objectifying the bases on which royalties were calculated (the type of work and size of a publication's press run, for example). A decree adopted within the first months after the revolution, for example, authorized the State to nationalize the works of certain authors and to declare State monopolies in the publication rights to those works. 2 Similarly, a 1919 decree on 1 u

'War communism' is the name commonly given to the period of extreme communization which began in the middle of 1918, i. e. eight months after the revolution had triumphed." Alec Nove y An Economic History of the U.S.S.R., Harmondsworth, Middlesex., 1982, 46. 2 Decree of the All-Russia Central Executive Committee, dated 29 December 1917, On State Publishing, Sobranie Uzakonenii i Rasporiazhenii Pravitel'stva (1918), No. 14, Item 201. Despite the nationalization of authors' rights under this and other similar decrees, the tsarist copyright law continued in effect (though its exact status was unclear) until the mid1920s. For a more detailed discussion of the early history of Soviet copyright law, see Michael A. Newcity , Copyright Law in the Soviet Union, New York 1978, 17-24, and Corien Prins Computer Program Protection in the USSR: A New Era for Socialist Copyright Law, Boston 1991, 120-124.

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inventor's rights introduced the-concept of the certificate of authorship, which granted the inventor a right to receive royalties for the use of an invention, but which eliminated the inventor's monopoly on the use and exploitation of the invention, and de-emphasized the patent, which granted the inventor an exclusive right to the use of the invention. 3 These early decrees on intellectual property reflected a desire on the part of the Soviet leadership to abolish market relationships, but they were abandoned, and more conventional intellectual property legislation was adopted, when the period of war communism gave way to the New Economic Policy. Soon after Lenin's announcement of the New Economic Policy, under which the trend towards nationalization of property was reversed and some private enterprise was encouraged, new decrees and laws were adopted bolstering the property rights of authors, inventors, and other intellectual property proprietors. A decree issued in November 1922 acknowledged that all Russian citizens (other than those whose rights had been circumscribed by other legislation) were entitled to property rights and the protection of their rights in inventions, copyrights, trademarks, and industrial models and designs.4 Within a few years of this acknowledgment of intellectual property rights, a new patent law, modelled in part on the existing German law, 5 was adopted, followed quickly by new copyright legislation 6 and a law on trademarks. 7 The intellectual property laws adopted during the mid-1920s more clearly reflected accepted international standards and more fully incorporated notions of private property ownership and market economics than either of their predecessors or successors. This interlude, of course, was brief. As Lenin's N e w Economic Policy gave way in the late 1920s and early 1930s to Stalin's policies of forced industrialization and the collectivization of agriculture, the free enterprise-oriented intellectual property laws of the 1920s gave way to new legislation better suited to the command economy. O f particular importance in this regard was the 1931 law on inventions, which reintroduced the concept of the non-exclusive author's 3

Daniel Van Dyke, Industrial Property Protection in the USSR, in: Robert Starr (ed.), Business Transactions with the USSR, 1975, 109. 4 Decree of the Central Executive Committee of the RSFSR, dated 13 November 1922, On the Basic Private Property Rights Recognized by the RSFSR, Guarded by its Laws, and Protected by the Courts of the RSFSR, Sobranie Uzakonenii i Rasporiazhenii Pravitel'stva 1922, No. 36, Item 423. 5 Van Dyke (note 3), 109. 6 In 1925, the Soviet government adopted fundamentals of copyright law, which were to serve as the basis for copyright legislation in each of the republics within the Soviet Union. The Russian Republic adopted its copyright statute in October 1926. The 1925 fundamentals of copyright legislation were superseded three years later by a new, more detailed, set of fundamentals of copyright law. See Prins (note 2), 122-124, and Newcity (note 2), 20-25. 7 The decree on trademarks was adopted in 1926. Victor Olkhovsky, Patents and Trade Marks in the U.S.S.R., Journal of the Patent Office Society, vol. 17, 1935, 386.

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certificate, a device well-suited to a centrally-planned economy in which State planners, rather than market forces, would provide the incentives for innovation and invention. 8 W i t h the adoption of the 1928 copyright legislation and the 1931 laws on inventions and trademarks, Soviet intellectual property law remained largely unchanged for three decades. Major changes were made in this legislation in the late 1950s and early 1960s as part of a more generalized process of civil law reform and revision. A new statute on inventions was adopted in 1959, which maintained the author's certificate as the primary form of intellectual property rights for inventors. The new statute on inventions was followed by the adoption of new fundamentals of copyright law, adopted as part of the 1961 civil law reforms, a decree on trademarks in 1962, and a decree on industrial designs in 1965.9 Though these new decrees made some significant changes in the legal protection of inventions, copyrights, and trademarks in the USSR, they did not affect a radical change in Soviet intellectual property policy or signal a return to market relationships in this sphere. The non-exclusive author's certificate remained the prevalent form of legal protection for inventions and the State's power to expropriate the rights to inventions, as well as to works of literature, science, and art, was maintained in the new legislation. Royalties for the use of inventions and other protected creative works remained based on objective, non-market factors. The intellectual property legislation adopted in the late 1950s and early 1960s generally provided for the protection of foreigners' rights on the basis of reciprocity, but these provisions had little significance for foreigners until the USSR became a party to several multilateral treaties on the international protection of intellectual and industrial property. Earlier, the Soviet government had been adamant in refusing to protect the intellectual property of foreigners. However, by 1965, the Soviets had come to recognize that access to Western technology was essential for their advancement and that this technology would be more readily available to them and could be more effectively utilized if it was licensed from the foreign proprietors, rather than pirated. 10 Foreign intellectual property pro8

See Olympiad Ioffe / Peter Maggs, The Soviet Economic System: A Legal Analysis, Boulder / London 1987, 146-148. 9 The Soviet Constitution granted to the fifteen union republics substantial formal responsibility for the adoption of legislation, especially with respect to civil law, including copyright law. The role of Soviet legislation in this connection was to promulgate "fundamentals" (osnovy) for a particular area of the law, which were then to be adopted to a greater or lesser degree by each of the union republics. The fundamentals were not themselves binding laws, but were for the guidance of the union republic legislatures. Thus, the fundamentals of copyright law promulgated by the Soviet government in 1961 were subsequently adopted by each of the union republics as part of their civil codes. M. Boguslavsky / 1. Cherviakov , Protection of Industrial Property in the USSR, 1965, 69-70. 10

Homer O. Blair , Inventions in the Soviet Union, International Lawyer, vol. 7,1973,485.

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prietors would not license their inventions, designs, and copyrighted works to the Soviets if those works were not entitled to legal protection in the USSR. The Soviets also hoped to generate significant hard currency revenues by licensing Soviet technology abroad, but they were in the same position as foreign proprietors contemplating licensing their works in the USSR: unwilling to do so unless they could be assured it would be protected. Standing aloof from the international intellectual property protection regime was no longer feasible. Thus, in order to reassure foreign intellectual property proprietors that their inventions and other creative works would be protected in the USSR and to assure that Soviet technology would be protected against foreign piracy, the Soviet Union began to join some of the major intellectual property conventions. I n 1965, the USSR adhered to the Paris Convention for the Protection of Industrial Property, the first time that the Soviet Union had joined an international agreement for the protection of intellectual property. Over the next few years, the Soviet Union also became a party to the Convention Establishing the World Intellectual Property Organization in 1967, the Patent Cooperation Treaty in 1970, and the Trade Mark Registration Treaty and the Universal Copyright Convention in 1973. By joining these international intellectual property agreements, it became necessary for the Soviets to make significant changes in their intellectual property legislation, prompting the adoption of a new wave of laws and decrees. A new statute on discoveries, inventions, and rationalization proposals and amendments to the civil code provisions on copyright were adopted in 1973, and a new statute on trademarks was promulgated in 1974. While accession by the Soviet Union to these various intellectual property treaties and the subsequent modification of Soviet intellectual property legislation were generally greeted as positive steps by Western governments and industrialists, the protection actually offered in the USSR to foreign intellectual property proprietors was quite limited. The prevailing characteristic of the treaties to which the Soviet Union was a party, especially the Paris Convention for the Protection of Industrial Property and the Universal Copyright Convention, is that they guarantee foreign nationals from other signatory countries only the level of protection enjoyed by the citizens of the country in which protection is sought. 11 Thus, while these treaties offered protection in the Soviet Union to foreign patent and copyright holders where previously there had been none, the level of protection offered was identical to that enjoyed by Soviet citizens, but was not consistent w i t h the much higher levels of protection typical of Western intellectual property legislation. O f particular concern to foreign intellectual property proprietors were the provisions in the Soviet legislation on inventions and copyright that permitted 11 See, for example, Art. 11(1), Universal Copyright Convention, 6 September 1952, 6 U.S.T. 2731,216 U.N.T.S. 132 (1955). See also, Art. 2(1), Paris Convention for the Protection of Industrial Property, 20 March 1983, 21 U.S.T. 1583.

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the compulsory State licensing of protected works and the exclusion of significant forms of technology from coverage by the decree on inventions. For example, under the Soviet law chemical and pharmaceutical substances, medical and veterinary diagnostic and treatment methods, and plant and animal cell cultures and hybrids were not eligible for patent protection, though they were eligible for the issuance of a non-exclusive author's certificate. Computer programs and algorithms were not eligible for either patent or copyright protection. By the late 1980s, Soviet jurists and government officials had recognized that the limited protection and incentives offered by their intellectual property law were inadequate to stimulate the development of domestic technology or to induce the widespread importation of foreign technology. Moreover, the existing intellectual property laws, eschewing as they did market influences, were becoming more and more incompatible w i t h the mixed Soviet economy emerging under Gorbachev's policies oiperestroika. I n December 1988, a draft Law on Inventive Activity in the USSR, which departed substantially from the previous 50 years' practice, was published for public comment. 12 The most significant change included in this draft law was that it abandoned the concept of author's certificates entirely and provided that henceforth inventions would be protected only by patents. As Peter Maggs has pointed out, this draft patent law was well suited to operate in a planned, market, or mixed economy by retaining some elements of the compulsory licensing scheme and permitting patent holders to assign their patents to a State Patent Fund, under which a patented invention could be utilized by an enterprise without a license or the payment of royalties. 13 Under the patent regime embodied in the draft Law on Inventive Activity, the centrally-planned, State sector of the economy could continue to function much as it had under the previous legislation, w i t h inventions available from the State Patent Fund or under a variety of nonnegotiated licenses, while the growing market-oriented sector of the economy would function on the basis of freely-negotiated licenses and royalties. While concerns about stimulating domestic inventive and creative activities and accommodating Soviet intellectual property laws to new forms of economic activity provided much of the motivation for intellectual property law reform initiatives, pressure from abroad also played a significant role in spurring these efforts. During the negotiations that led to the 1990 US-USSR Agreement on Trade Relations, United States negotiators were adamant in insisting that the Soviets improve the level of intellectual property protection extended to foreigners as a condition of a grant of most-favored-nation status.

12 The draft Law on Inventive Activity in the USSR was published in Pravda, 27 December 1988, 1-3. 13 Peter B. Maggs , The Restructuring of the Soviet Law of Inventions, Columbia Journal of Transnational Law, vol. 28, 1990, 277, 280.

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The Agreement on Trade Relations advanced this process by including a commitment by the Soviets to a thorough reform of their intellectual property laws and included very specific features that were to be included in the new legislation. Article V I I I of the US-USSR Agreement on Trade Relations, which was signed by Presidents Bush and Gorbachev on 1 June 1990, required the preparation of draft laws to protect intellectual property, including copyright, patents, industrial designs, know-how, trade secrets, trademarks, and protection against unfair competition. Specifically, both countries agreed to: — adhere to the Berne Convention for the Protection of Literary and Artistic Works; — provide protection for computer programs and databases under domestic copyright legislation; — provide expanded protection for sound recordings; — provide product and process patent protection for all areas of technology (other than technology useful solely in the production of atomic weapons) for a period of at least 20 years from the filing of an application or at least 17 years from the grant of the patent; and — provide broad protection for trade secrets. 14 These undertakings were made even more specific in a side letter sent simultaneously w i t h the signing of the trade relations treaty by the Soviet Deputy Minister of Foreign Economic Relations, Yuri N. Chumakov, to the United States Trade Representative, Carla Hills. This letter, which the Agreement refers to as "an integral part of this Agreement," 15 promised that the Soviet government would incorporate the following features into its intellectual property legislation: — all types of computer programs, including application programs as well as operating systems, w i l l be protected by copyright regardless of their medium of fixation and whether they are expressed in source or object code; — the duration of protection for computer programs w i l l be the same as for literary works; — unfair competition protection w i l l be provided in accordance w i t h the provisions of the Paris Convention for the Protection of Industrial Property; — trade secrets w i l l be protected as long as their continued secrecy has actual or potential commercial value, are not readily accessible in a lawful manner, and appropriate measures have been taken to keep them secret. 14

Art. VIII(2), Agreement on Trade Relations Between the United States and the Soviet Union, signed in Washington, D.C., on 1 June 1990, US House of Representatives, 192d Congress, Document No. 102-148, 19-20 [hereafter US-USSR Agreement on Trade Relations]. is Art. VIIII(4), id., 20.

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The letter also pledged that the Soviets would review several specific issues concerning the protection of sound recordings (length of protection, adherence to the Geneva Phonograms Convention) and several provisions in their draft legislation for the protection of inventions, especially the provisions concerning the compulsory licensing of patents. 16 The Agreement on Trade Relations also provided for the establishment of a joint United States-Soviet working group on intellectual property matters, whose brief, as spelled out in the Chumakov-Hills letter, includes reviewing such issues as the extension of patent protection to products not previously patentable under Soviet law; the protection of integrated circuit layout design; the implementation of intellectual property laws; and the exchange of information and cooperation on intellectual property protection questions. Following the signing of the Agreement on Trade Relations, Soviet experts reworked the earlier draft law on inventive activity to produce a new draft that was in conformity w i t h the treaty's requirements. After extensive consideration of the draft by government officials and parliamentary commissions, a new Law on Inventions was adopted by the USSR Supreme Soviet on 31 May 1991. 17 The USSR Law on Inventions, which entered into force on 1 July 1991, contained many of the changes that had been sought by Western governments and industrialists. It increased the term of a patent from 15 to 20 years from the date on which the application was filed. It also eliminated the author's certificate, left the patent as the sole method by which inventions could be protected, and reduced the breadth of the compulsory license provisions. Patent protection was also extended to several categories of products that previously were not eligible, such as chemical substances, microorganisms, and plant and animal cell cultures. Computer programs and algorithms, however, were expressly excluded from patent protection. O n the same day that the Law on Inventions was adopted, 31 May 1991, the Supreme Soviet also adopted new Fundamentals of Civil Legislation of the USSR and the Republics, which included revised civil code provisions on patent, copyright, and other intellectual property rights. 18 Among the reforms introduced by the new Fundamentals of Civil Legislation were the inclusion of computer software in the list of works covered by copyright, the extension of the term of copyright to the life of the author plus 50 years, a more elaborate statement of 16

For the text of the relevant portions of the Chumakov-Hills side letter, see US House of Representatives, 192d Congress, Document No. 102-148, 30-33. 17 Law on Inventions in the USSR, dated 31 May 1991, Vedomosti S"ezda Narodnykh Deputatov SSSR, No. 25, 19 June 1991, Item 703 [hereafter 1991 USSR Law on Inventions]. 18 Fundamentals of Civil Legislation of the USSR and the Republics, dated 31 May 1991, Vedomosti S"ezda Narodnykh Deputatov SSSR, No. 26, 26 June 1991, Item 733.

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the copyright in recordings and broadcast programs, the elimination of provisions regarding the compulsory purchase of copyrights by the State, and the addition of provisions concerning the protection of know-how and trademarks.

II. Russia Seeks to Adopt its O w n Intellectual Property Laws The collapse of the Soviet Union called into question the administrative and statutory bases for protecting copyright and other intellectual property rights in the newly-independent Russian Federation. The continued viability of the agency established by the Soviet government to administer international and domestic copyright relations, for example, was compromised due to its non-governmental nature. The A i l - U n i o n Agency on Copyrights (known by its Russian acronym, V A A P ) had been established in 1973 when the Soviet Union acceded to the Universal Copyright Convention. V A A P was nominally a public organization constituted by the Union of Soviet Writers and other such unions and organizations, but VAAP's non-governmental nature was a distinction without a difference in the Soviet system where the line between governmental and public organizations existed in form only. VAAP's primary function was to assist in the negotiation of contracts between foreign publishers, Soviet authors, and vice versa, administer those contracts (primarily collect royalties, deduct taxes, and remit them to the rightful parties), and represent Soviet interests in international copyright organizations and meetings. Soon after the Soviet Union collapsed, the Russian legislature adopted a resolution that sought to recast the A i l - U n i o n Agency on Copyright as the All-Russian Agency on Copyright, which would assume the functions of the Soviet agency. This resolution was reviewed by the Russian Constitutional Court, which ruled that it violated the Russian Constitution by delegating governmental / administrative functions to a public, non-governmental organization. 19 Several months after this decision was released, President Yeltsin created a new agency, the Russian Agency on Intellectual Property (its Russian acronym is RAIS), as a federal agency responsible for preparing and carrying out State policy concerning the protection of copyright and neighboring rights. 20 RAIS assumed the responsibilities formerly carried out by V A A P .

19

Ruling of the Constitutional Court of the Russian Federation, dated 28 April 1992, Concerning the Case on the Review of the Constitutionality of the Resolution of the Presidium of the Supreme Soviet of the RSFSR of 3 February 1992, No. 2275-1 "On the All-Russian Agency on Copyright", Vedomosti S"ezda Narodnykh Deputatov, No. 21, 28 May 1992, Item 1141. 20 Order of the President of the Russian Federation, 15 July 1992, Questions of the Russian Agency on Intellectual Property under the President of the Russian Federation, Vedomosti S"ezda Narodnykh Deputatov, No. 29, 23 July 1992, Item 1768.

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The collapse of the Soviet Union also rendered the statutory basis for intellectual property protection uncertain. The adoption of the USSR Law on Inventions and the intellectual property provisions of the Fundamentals of Civil Legislation represented a major step in the direction of conforming Soviet intellectual property legislation to a more Western, market-oriented model and satisfying the foreign interests that had sought change in Soviet legislation on this subject. However, by the time these laws were to come into effect on 1 January 1992, the State that had enacted them, the Soviet Union, no longer existed, resulting in great uncertainty about the effect of Soviet legislation in Russia and the Soviet Union's other successor States. Article 11 of the Agreement on the Establishment of the Commonwealth of Independent States (CIS), signed on 8 December 1991 by most of the former Republics, actually suspended the operation of USSR laws on the territory of CIS Member-States, though the Russian legislation ratifying the Agreement merely provided that Soviet legislation would continue in effect if it did not contradict Russian Federation legislation or its Constitution. 2 1 The dilemma faced by the government of the new Russian Federation in early 1992 was whether it should ignore the USSR Fundamentals of Civil Legislation, adopted less than a year before, in favor of the existing Russian civil code, which had originally been adopted in 1964. 22 The Soviet legislation more closely reflected contemporary conditions and the Russian legislators, acting on this reality, incorporated the 1991 USSR Fundamentals of Civil Legislation into the Russian Federation's law pending the adoption of a new Russian civil code. 23 The sudden abandonment of virtually all existing civil legislation adopted by a State for an economic and political system that no longer existed necessitated a crash program in legislative action to replace the pre-existing Soviet laws. Intellec21 A resolution adopted by the RSFSR Supreme Soviet in connection with the adoption of this treaty provided that for the purposes of implementing Article 11, "pending the adoption of appropriate legislative acts of the RSFSR, norms of the former USSR shall apply as long as they do not violate the Constitution of the RSFSR, the legislation of the RSFSR, and this Agreement." Resolution of the RSFSR Supreme Soviet, dated 12 December 1991, On the Ratification of the Agreement on the Creation of the Commonwealth of Independent States, Rossiiskaia gazeta, 17 December 1991, 1. 22 Vratislav Pechota , Russian Federation Reaches Back to 1991 USSR Fundamentals of Civil Law, 3 Survey of East European Law, No. 5, August / September 1992, 5. 23 Resolution of the Supreme Soviet of the Russian Federation, dated 14 July 1992, On the Regulation of Civil Law Relations in the Period of Realization of Economic Reforms, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 30, 30 July 1992, Item 1800. Some technical adjustments to the provisions of this resolution were made by the Resolution of the Supreme Soviet of the Russian Federation, dated 3 March 1993, On Several Questions of the Application of the Legislation of the USSR within the Territory of the Russian Federation, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 11, 18 March 1993, Item, 393. These changes, however, did not alter the incorporation of the Fundamentals of Civil Legislation provisions regarding copyright, patent, and other intellectual property subjects into Russian civil law.

22 GYIL 36

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tual property laws loomed large on the legislative agenda if for no other reason than because they were sensitive issues for Russia's foreign trading partners and they were a sine qua non in encouraging foreign companies to transfer technology to Russia. I n the spring of 1992, the Russian Federation Supreme Soviet adopted several intellectual property laws, including new laws on patents, trademarks, protection of computer programs and databases, and the protection of integrated circuits. What was missing from this array of legislation was a new law on copyright, though the provisions of the 1991 USSR Fundamentals of Civil Legislation on copyright were in effect and were relatively comprehensive. The intellectual property laws adopted in the spring of 1992, however, did not quietly take effect after their initial adoption. Rather, they became the source of conflict between the Supreme Soviet and President Yeltsin. I n August and September, Yeltsin exercised his veto power and returned a number of laws that had been adopted earlier in the year for reconsideration by the Russian parliament. Among these laws were the laws on patents, trademarks, protection of computer programs and databases, and the protection of integrated circuits. Yeltsin's objection to these laws as they had originally been adopted by the Supreme Soviet arose from the federal structure of the Russian Federation and the distribution of legislative authority among the various jurisdictions that constitute it. According to Yeltsin , in adopting these laws the Supreme Soviet did not observe the terms of the Russian Federation Treaty and the Russian Constitution, which provide that the legal regulation of intellectual property is under the joint jurisdiction of the federal government and the governments of the 20 republics located within the Russian Federation. Article 81 1 of the Russian Constitution, as amended in April 1992, specifies certain subjects that are under joint federal and republican jurisdiction. Legislation concerning these subjects must be adopted in a two-step process in which the Russian Federation government adopts legislation that serves as a model for those republics that wish to adopt their own corresponding legislation, which then becomes the operative legislation in force within these republics. 24 The legislation adopted by the federal legislature w i l l operate within the republics until they have adopted their own legislation. The bulk of the territory within the Russian Federation, however, is not located within any of these republics, and in these locations the legislation adopted by the federal government (at least in the case of intellectual property protection) w i l l be the only operative legislation. The legislation Yeltsin returned for reconsideration was discussed by the Russian Supreme Soviet on 23 September 1992, amended in relatively insignificant ways so as to acknowledge the role played by the constituent republics, and re-ap24

See Art. 81 Law of the Russian Federation, On Amendments and Additions to the Constitution (Fundamental Law) of the Russian Soviet Federative Socialist Republic, dated 21 April 1992, Vedomosti Swezda Narodnykh Deputatov Rossiiskoi Federatsii, No. 20, 21 May 1992, Item 1084.

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proved. 25 The texts of the Patent Law, the Law on Trademarks, Service Marks, and the Designation of the Place of Origin of Goods, the Law on the Legal Protection of Programs for Computers and Databases, and the Law on the Legal Protection of the Topologies of Integrated Circuits were all then published in Russian newspapers in mid-October. More recently, in April 1993, the Supreme Soviet adopted a new Law on Copyright and Neighboring Rights that incorporated most of the changes that had been sought by the United States government and foreign commentators. However, as w i t h the earlier intellectual property legislation, President Yeltsin returned this law to the Supreme Soviet for reconsideration. The avowed reason for Yeltsin's action was that several of the law's provisions might lead to violations of human rights. 26 Article 50 of the Law on Copyright and Neighboring Rights as adopted by the Supreme Soviet on 29 April 1993, granted the police wide authority to enter the premises of suspected copyright pirates. As originally adopted, Article 50(3) provided: Should there be enough grounds to believe that copies of works or recordings believed to be counterfeit, as well as materials and equipment meant for their production or reproduction, or any other object or document constituting evidence of the assumed violation are on the territory or on premises occupied by enterprises, institutions and organizations or by individuals, the police may, as required by the holders of copyright and neighboring rights, freely enter such premises and territories at any time of day or night, search the same and confiscate any indicated copies, materials, equipment, objects or documents.27 While the police powers granted by this provision may have been the formal reason why President Yeltsin returned the Law on Copyright and Neighboring Rights to the Supreme Soviet for reconsideration, there was also a deeper, more bureaucratic / political reason. Apparently RAIS and its general director, Andrei Semyonov, were concerned that adoption of this law, especially its provisions permitting the establishment of organizations for the collective management of proprietary rights, would eliminate many of the functions now performed by RAIS and would threaten its continued existence (at least in its present form). Thus, RAIS advocated the abandonment or extensive modification of the Law on Copyright and Neighboring Rights as adopted by the Supreme Soviet in April 1993 and persuaded President Yeltsin to return it for reconsideration. Though RAIS would have preferred that the Law on Copyright and Neighboring Rights be either scuttled or amended so as to eliminate the provisions on the 25

Rossiiskaia gazeta, 24 September 1992, 1. 3 BNA's Eastern Europe Reporter, No. 15, 19 July 1993, 520. 27 The Russian-language text of the Law on Copyright and Neighboring Rights, as originally adopted by the Russian Supreme Soviet on 29 April 1993, was published in Kommersant', No. 18,3-9 May 1993,25-28. An English translation of this version of the Law was published in Commersant, 12 May 1993, 27-31, and 19 May 1993, 26-31. 26

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collective management of proprietary rights, neither eventuated. Article 50(3) was deleted from the Law and several other relatively minor changes were introduced. The Law was then returned to the Supreme Soviet for reconsideration. This revised text was adopted by the Supreme Soviet on 9 July 1993, the Law was subsequently signed by Yeltsin , and took effect upon publication on 3 August 1993. 28 Under these new intellectual property laws, many of the objections previously voiced by Western governments and industrialists concerning the limited level of protection offered by Soviet / Russian intellectual property legislation have been corrected and the advances in the level and nature of protection contained in the Soviet Law on Inventions and called-for by the US-USSR Agreement on Trade Relations are maintained. O f greatest importance are the provisions recognizing the patentability of substances (including chemical or pharmaceutical substances), microorganisms, and animal and plant cultures. Computer programs are not subject to patent protection, but they are covered by copyright and subject to a separate law of their own. The term of a patent has been extended to 20 years and the conditions and procedures for securing patent protection are stated more clearly than previously. Trademark and service mark protection have been expanded and, for the first time, computer programs, databases, and integrated circuits are subject to full legal protection. W i t h the adoption of the Law on Copyright and Neighboring Rights, Russia has adopted comprehensive, sophisticated legislation on this subject that w i l l permit Russia to accede finally to the Berne Convention.

I I I . The Patent Law of the Russian Federation Changes in patent law had been the most closely-watched and extensivelydiscussed issue in intellectual property law reform prior to the collapse of the Soviet Union, and after the demise of the Soviet Union the Patent Law of the Russian Federation was the most eagerly-anticipated of the various intellectual property laws finally adopted in September 1993. 29 This Law, though imperfect, addresses the concerns expressed by foreign governments and industrialists and finally repudiates the socialist model of intellectual property protection. Under this Law, legal protection w i l l be granted to inventions, useful models, and industrial designs. Patents issued for inventions w i l l be valid for a period of 20 years from the date on which the patent application is received by the State Patent Agency, while the certificate issued for a useful model is valid for five 28 The text of the Law on Copyright and Neighboring Rights was published in Rossiiskaia Gazeta, 3 August 1993, 4-6. 29 Law of the Russian Federation, dated 23 September 1992, Patent Law of the Russian Federation, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 23 October 1992, Item 2319 [hereafter the Patent Law].

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years (with the possibility of an extension of up to three years), and the patent for an industrial design is valid for ten years (with the possibility of an extension for up to five years). Protection is not granted, however, to inventions, useful models, and industrial designs that the State declares to be secrets. Special legislation regulating the handling of such secret inventions, useful models, and industrial designs is to be adopted by the Russian legislature. 30 A n invention w i l l be eligible for patent protection if it is new, meets the standard of an invention, and has industrial applications. 31 For these purposes, an invention is new if it is not known from the standard of technology; it has an invention level if, for a specialist, it does not obviously follow from the standard of technology; and it has industrial applications if it can be used in industry, agriculture, health care, and other fields of activity. The standard of technology used in defining these criteria consists of any information that was available in the world prior to the date of priority for the invention. 32 A patentable invention can be a device, method, substance, a strain of microorganism, plant and animal cell cultures, as well as the application of a previously known device, method, substance, or strain for a new purpose. 33 However, the following are expressly not eligible for patent protection: scientific theories and mathematical methods; methods for economic organization and management; symbols, timetables, and regulations; methods for the performance of mental operations; algorithms and computer programs; designs and diagrams of the layout of structures, buildings, and grounds; discoveries that have a purely esthetic significance; the topologies of integrated circuits; plant and animal strains; and discoveries that "run counter to public interests, the principle of humaneness, and morality". 3 4 The criteria established in the Patent Law for the protection of a useful model is that it must be new and have industrial applications. The list of products and processes that are ineligible for patent protection are also excluded from protection as a useful model, as well as methods, substances, microorganisms, and plant and animal cell cultures, as well as their application for a new purpose. 35 A n industrial design is patentable if it is new, original, and industrially applicable. I n this context, an industrial design w i l l be considered novel if the set of its essential features, as determined by the esthetic and / or ergonomic features of the product, are not known from information that was generally available in the 30 31 32 33 34 35

Art. Art. Art. Art. Art. Art.

3, Patent Law, id. 4(1), Patent Law, id. 4(1), Patent Law, id. 4(2), Patent Law, id. 4(3), Patent Law, id. 5, Patent Law, id.

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world prior to the date of priority for the industrial design. 36 The following are specifically excluded from patentable industrial designs: designs that result exclusively from the technical function of the product; designs of architectural (except small architectural forms), industrial, hydraulic, and other stationery structures; publications; designs of objects created out of unstable forms from liquid, gaseous, and bulk substances or other similar substances; and designs of products that are contrary to public interests, the principles of humaneness, and morality. 3 7 The right of the inventor whose creative labor produced the invention, useful model, or industrial design to be recognized as such is inalienable and permanent. The Law provides for situations in which a protected work (invention, useful model, industrial design) is developed by several individuals, all of whom would be recognized as its author, their respective rights to be determined by contract among them. Individuals who do not make a creative contribution to the development of the work, who provided only technical, organizational, or financial assistance, or who assisted in the registration of the work are not eligible to be recognized as authors of that w o r k . 3 8 Though it is the author of the invention, useful model, or industrial design who is entitled to be credited w i t h the invention, the bulk of the rights and protections available under the law are afforded to the patentee, who may be either the author, another person (individual or juridical person) who the author has listed as patentee in the patent application, or the author's employer in cases where the work was developed by an employee in the course of his or her employment. 39 I n cases in which the invention, useful model, or industrial design was developed by an employee in the performance of his or her official duties or as part of a special assignment given to the employee by the employer, the rights to the patent on that work belong to the employer, unless otherwise stated in a contract between the employer and the employee. Under the Patent Law, the employee-inventor has the right to receive compensation from the employer that is proportionate to the profit or other revenues derived, or that should have been derived, from the work by the employer. I n the event that the employer does not apply for a patent in its own name, transfers the work to another person, or takes action to protect the work as a trade secret within four months from notification by the author of the creation of the work, the author has a right to apply for a patent in his or her own name. Other rights and obligations arising in such cases are to be defined in greater detail in subsequent legislation. 40 36 37 38 39 40

Art. Art. Art. Art. Art.

6(1), Patent Law, id. 6(2), Patent Law, id. 7, Patent Law, id. 8(1), Patent Law, id. 8(2), Patent Law, id.

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The patentee is granted the exclusive right to determine how or whether the patented work w i l l be used, as long as that use w i l l not infringe the rights of other patentees. By granting an inventor the exclusive right to his or her work the Patent Law perpetuates the innovation contained in the 1991 USSR Law on Inventions, implements the market-oriented principle of intellectual property that an author ought to be granted a monopoly in his or her work, and finally repudiates the socialist principle, embodied in the author's certificate, that an inventor could be granted a right to receive compensation, but not a monopoly. If a patentee does not use, or inadequately uses, a patented invention or industrial design within four years of issuance of the patent, or fails to use or inadequately uses a useful model within three years of issuance of the patent, and refuses to license the invention, design, or model to another person, that other person can petition the Supreme Patent Chamber of the Russian Federation for the granting of a compulsory, nonexclusive license. Unless the patentee can then demonstrate that the failure to use the work was due to "valid reasons", the Supreme Patent Chamber w i l l grant a compulsory license specifying limits on use and the amounts and procedures for the payment of royalties. 41 As indicated above, the compulsory licensing of patented inventions had been a subject of concern in negotiations between the United States and Soviet governments prior to the signing of the US-USSR Agreement on Trade Relations and had been referred to at length in the Chumakov-Hills side letter. The side letter had stated that compulsory licenses of inventions would have to satisfy the following criteria: — the license only permits local making of the patented invention; — the license is granted to one qualified to make the invention; — those seeking the license show that the combination of manufacture, use, and importation of the patented invention has not satisfied the basic needs of the local market by the expiration of a period of five years from the date of the grant of the patent; — those seeking the license show that the patent owner has refused to grant a voluntary license on terms in line w i t h normal commercial practices; — the patent owner does not show that his inaction is justified by the existence of legal, technical or commercial reasons; — the patent owner receives reasonable and equitable compensation for the license; — the license is nonexclusive; — the license w i l l be non-assignable except w i t h that part of the enterprise or goodwill that exploits such a license; 41

Art. 10(4), Patent Law, id.

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— the license does not significantly prejudice the economic interests of the patent owner; — the license does not create trade distortions; and — decisions to grant a compulsory license and the terms of the license are made by a court and can be appealed and reviewed in accordance w i t h national law. 4 2 While the provisions of Article 10(4) of the Patent Law, which specify the conditions under which a compulsory license w i l l be issued, are not as elaborate and detailed as the Chumakov-Hills side letter, they should satisfy most of the conditions in this connection in the side letter. However, additional, more elaborate regulations are expected to be issued by the Russian government to bring the Patent Law into full compliance w i t h the terms of the Agreement on Trade Relations. The Patent Law specifies that the production, use, importation, offer for sale, sale, other introduction into commerce, or storage for this purpose of a product that contains a patented invention, useful model, industrial design, as well as the use of a method covered by a patent, constitute infringement of the patent. 43 The following do not constitute infringement of the patentee's rights: — use of protected works in connection w i t h the design or operation of methods of transportation from other countries that happen to be located^emporarily in Russia and that are owned by persons from those other countries, and those other countries grant reciprocal rights to Russians; — conducting scientific studies or experiments on something containing a protected work; — use of devices containing protected works under extraordinary circumstances (natural disaster, major accidents), as long as subsequently appropriate compensation is paid; — non-profit, personal use of protected works; — production of medicines in pharmacies pursuant to a doctor's prescription; and — use of devices containing protected works if those devices have been introduced in commerce legally. 44 I n addition to these fair uses, a person who prior to the protected work's priority date has used an identical invention, model, or device within Russia that was developed independently of the patented work's author is entitled to continue to use this work on the same scale without the payment of royalties. This right 42 43 44

See note 16. Art. 10(3), Patent Law, (note 29). Art. 11, Patent Law, id.

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of previous use can be transferred to another person, but only in conjunction w i t h the productive facilities in which this previous use occurred. 45 A patentee may license the right to use his or her invention, model, or design, but any such license agreement must be registered w i t h the State Patent Agency in order to be valid. 4 6 I n addition, a patentee can notify the State Patent Agency that he or she is willing to grant a license to any person (an "open license"). The granting of such an open license, which is irrevocable, serves to reduce the patentee's fees for maintaining the patent by 50 percent. Anyone desiring to license a patent that is subject to an open license must then conclude an agreement w i t h the patentee concerning the amount and schedule for the payment of royalties, disputes to be resolved by the Supreme Patent Chamber. 47 Finally, Article 13(4) of the Patent Law does reserve to the State the right to permit the use of a protected work without the consent of the patentee, but w i t h the payment of appropriate compensation, " i n the interests of national security". 48 The provisions of the Patent Law specifying the remedies that are available to the patentee and his or her licensee in cases of patent infringement are extremely sketchy. They merely state that an infringer should stop any infringement upon a demand from the patentee and that the infringer w i l l be liable for any damages resulting from the infringement " i n conformity w i t h the civil legislation of the Russian Federation". A licensee can also initiate an action against the infringer, unless otherwise provided by the license agreement. 49 These provisions are not nearly as detailed as the comparable provisions in the Law on the Legal Protection of Programs for Computers and Databases or the Law on the Legal Protection of the Topology of Integrated Circuits. The resolution of the Russian Supreme Soviet implementing the Patent Law called on several committees of the Supreme Soviet to develop legislation that would define more fully administrative and criminal liability for violation of patent legislation, but to date no such legislation has been enacted by the Supreme Soviet. 50 The longest section of the Patent Law specifies the process by which a patent is obtained. A n application for a patent is submitted either by the author of the invention, model, or design; the author's employer; or their legal successor. The petition requesting the issuance of a patent must be submitted in Russian, but 45

Art. 12, Patent Law, id. Arts. 13(1)-(2), Patent Law, id. 47 Art. 13(3), Patent Law, id. 48 Art. 13(4), Patent Law, id. 49 Art. 13, Patent Law, id. 50 Para. 10, Resolution of the Supreme Soviet of the Russian Federation, dated 23 September 1992, On the Entry into Force of the Patent Law of the Russian Federation, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 23 October 1992, Item 2320. 46

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the other documents making up the application may be submitted in Russian or another language, though non-Russian documents must be accompanied by a translation into Russian. 51 The application can be filed through a patent agent registered w i t h the Patent Agency. 52 The application should consist of a petition for the issuance of a patent, a description of the invention, the "formula" of the invention, drawings or other such materials, an abstract, and a receipt for the payment of the requisite fee or a statement as to why the fee is exempted or reduced. 53 Similar requirements are set for the applications for the issuance of a certificate for a useful model and a patent for an industrial design. The date from which a patented invention, useful model, or industrial design derives its priority is the date on which the application for registration of the patent is received at the Patent Agency. A n alternative date of priority is the date on which an application for a patent was first filed in a country that is a party to the Paris Convention on the Protection of Industrial Property, if an application is subsequently filed in the Russian Patent Agency within 12 months from the date for an invention or useful model and within six months for an industrial design. 54 The longest single provision of the Patent Law is Article 21, which sets out the procedure to be followed in examining the application for a patent. Within two months of the receipt of a patent application the Patent Agency makes a formal examination of the application. This examination consists of a review of the application to determine whether the required documents and other formalities have been satisfied and whether the claims made in the application relate to inventions, models, or designs that the law w i l l protect. If the patent examiner concludes that the application relates to something that is not patentable, the applicant w i l l be notified of the Patent Agency's refusal to issue a patent. The applicant may then appeal this decision to the Appellate Chamber of the Patent Agency within two months from the date on which the Patent Agency's negative decision was received by the applicant. The appeal itself w i l l then be considered within a two month period from the date on which it receives the appeal. 55

51 The Russian translation can be submitted to the Patent Office within two months from the date on which the application is filed. Art. 15(2), Patent Law, (note 29). 52 The Statute on Patent Agents, which regulates the professional activity of patent agents in Russia, was approved by the Russian Council of Ministers in February 1993. Resolution of the Council of Ministers — Government of the Russian Federation, dated 12 February 1993, On the Confirmation of the Statute on Patent Agents, Sbornik Aktov Prezidenta i Pravitel'stva R. F., No. 7, 15 February 1993, Item 573. 53 Art. 16(2), Patent Law, (note 29). 54 Art. 19(2), Patent Law, id. An applicant who wishes to claim this convention priority must indicate this and provide the Russian Patent Office with a copy of the first application.

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If, during the course of the formal examination, the patent examiner concludes that some documents are missing from the application or do not conform to the statutory requirements, a request to submit additional or corrected documents within a two month period w i l l be sent to the applicant. Failure to submit these documents w i l l result in the application being considered withdrawn. 5 6 Within 18 months of the date on which an application was filed, the Patent Agency w i l l publish information on an application that has survived the formal examination. 57 Upon publication of information about the application, the invention receives temporary legal protection. If the patent is subsequently denied, the temporary legal protection is considered never to have issued. 58 A n examination of the substance of a patent application that has received a positive response to the formal examination w i l l be conducted within three years of its submission, but only upon the petition of the applicant or a third party. If a petition requesting the substantive examination has not been received within that three year period the application w i l l be considered withdrawn. If a negative decision is rendered by the patent examiner after the substantive examination, the applicant may appeal the decision to the Appellate Chamber of the Patent Agency within three months from the date on which the applicant received the negative decision. The Appellate Chamber is then required to review the case within four months from the date on which the appeal is filed. If the applicant remains dissatisfied w i t h the ruling of the Appellate Chamber, their decision can be appealed to the Supreme Patent Chamber within six months of the lower appellate decision. The Supreme Patent Chamber's decisions are final. 59 After the Patent Agency has made an affirmative decision to grant a patent and the applicant has paid the appropriate fee, the Patent Agency publishes information about the patent in its official bulletin and registers the patent in the official state register. 60 A patent can be contested at any point during its term on the grounds that it does not satisfy the conditions of patentability, incorrect attribution of authorship, or the presence in a patented work of features that were not present in the materials contained in the original application. Patent contests are heard by the Appellate Chamber and appeals can be taken to the Supreme Patent Chamber. 61 55 56 57 58 59 60 61

Arts. 21(1)-(3), Patent Law, id. Art. 21(4), Patent Law, id. Art. 21(6), Patent Law, id. Art. 22, Patent Law, id. Arts. 21(7)-(9), Patent Law, id. Art. 26, Patent Law, id. Art. 29, Patent Law, id.

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Foreign persons enjoy the same rights under the Patent Law as do Russian persons by virtue of international agreements or on the basis of reciprocity. 62 The resolution of the Supreme Soviet that implemented the Patent Law was made unusually complicated because it had to resolve questions concerning the continuing validity of the various industrial property rights that had been created in the Soviet Union and Russia during the preceding few years. 63 I n general, this resolution recognized the continuing validity of patents and author's certificates that were previously issued under Soviet legislation, and applications for Soviet patents or author's certificates were assimilated into the new Russian patent regime. Inventors who had been granted author's certificates under the Soviet law are entitled to petition for the issuance of a patent for the remainder of the 20-year period from the date on which their original application for an author's certificate had been filed. Soviet legislation on inventors' rights was characterized by a rejection of the principle that inventors should be granted a monopoly on the use of their inventions. Societal interests were placed ahead of individual interests, so beneficial inventions ought to be available for the advancement of society whether the inventor granted permission or not. This socialist theory of intellectual property law received its clearest expression in the emphasis placed on the author's certificate, which was abandoned less than a year before the collapse of the Soviet Union. But even the 1991 USSR Law on Inventions maintained some vestiges of this socialist theory. The law permitted a patentee to arrange with the government to grant an "open license", which allowed anyone to use the invention. Inventors were encouraged to grant such an open license by a 50 percent reduction in the fees charged for maintaining the patent. 64 The 1991 law also authorized the government to permit the use of an invention in the interests of defense and public order, even if the inventor had not given permission to do so. 65 Finally, the Law on Inventions also created the USSR State Inventions Fund, which was authorized to exercise the rights of the patentee w i t h respect to any inventions the rights to which had been acquired by the State. The Inventions Fund was intended to acquire and promote the widespread use of beneficial inventions. 66 The Russian Patent Law, adopted in the year following the collapse of the Soviet Union, has rejected the socialist approach to the protection of inventors' 62

Art. 36, Patent Law, id. Resolution of the Supreme Soviet of the Russian Federation, dated 23 September 1992, On the Entry into Force of the Patent Law of the Russian Federation, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 23 October 1992, Item 2320. 64 Art. 24, 1991 USSR Law on Inventions, (note 17). 65 Art. 25, 1991 USSR Law on Inventions, id. 63

66

Art. 31, 1991 USSR Law on Inventions, id.

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rights. The emphasis in this law is on the rights of the individual, but some elements that had first appeared in Soviet intellectual property law have been preserved. The concept of an open license, for example, is provided for in the Patent Law, 6 7 as is the right of the State to use an invention without the permission of the patentee " i n the interests of national security". 68 Finally, the Patent Law also provides for a Federal Fund of Inventions, which is similar to the State Patent Fund that was provided for in the 1991 USSR Law on Inventions. The Federal Fund of Inventions, which w i l l be an instrumentality of the Russian government, w i l l select inventions, models, and industrial designs and enter into licensing agreements for them w i t h their patentees. The function of the Fund w i l l then be to "assist their implementation in the interests of the state." 69 I n these ways, the Russian Patent Law has tried to adopt a patent law suitable for a mixed Stateowned and private economy and preserved a few elements of socialist intellectual property law.

I V . Law on Trademarks, Service Marks, and the Designation of the Place of O r i g i n of Goods I n the years just prior to the collapse of the Soviet Union, intensive efforts had been made to reform the legal protection of inventions. Foreign governments and potential investors had expressed great interest in the subject, and the Soviet leadership recognized the importance of bringing the law on inventions into conformity w i t h the mixed economy that was emerging in the Soviet Union. Though the necessity of reforming trademark protection was referred to in the US-USSR Agreement on Trade Relations, no comparable efforts were made to reform Soviet trademark law. A t the time of its collapse, the Soviet Union extended legal protection to trademarks under legislation that was, in part, 30 years old: a May 1962 resolution of the USSR Council of Ministers 70 and a 1974 resolution by the State Committee on Inventions and Discoveries, which was then amended several times. 71 When the legislature of the Russian Federation turned its attention to intellectual property reform in the spring of 1992, it considered four draft laws, including a law on trademarks, service marks, and designation of the place of origins of goods. 67

Art. 13(3), Patent Law, (note 29). Art. 13(4), Patent Law, id. 69 Art. 9, Patent Law, id. 70 Resolution of the USSR Council of Ministers, dated 15 May 1962, On Trademarks, Sobranie Postanovlenii Pravitel'stva SSSR, No. 7, Item 59. 71 Resolution of the USSR State Committee on Inventions and Discoveries, dated 8 January 1974 (as subsequently amended), On Trademarks, Biulleten' Normativnykh Aktov Ministerstv i Vedomstv SSSR, No. 1, 1988, 11-20. 68

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This trademark law was finally enacted in September 1992 at the same time as the other three laws. 72 The Law on Trademarks, Service Marks, and the Designation of the Place of Origin of Goods made perhaps the least radical changes in Russian intellectual property law of the four laws enacted in September 1992, though it did bring Russian trademark law into much closer conformity w i t h international, marketoriented norms. Under this law, a trademark or service mark, which may be verbal, graphic, 3-dimensional, or any combination, w i l l be entitled to legal protection only if it is registered in the specified manner (either w i t h the Russian authorities or under the terms of an international treaty to which Russia is a party). Upon registration, the trademark owner is issued a certificate that establishes the trademark's priority, 7 3 which dates from the day on which the application for that trademark was filed, and the trademark is listed in the State Register of Trademarks and Service Marks, which is maintained by the State Patent Agency. A trademark has an initial term of ten years from the date on which the registration application was filed w i t h the State Patent Agency, which may then be extended for additional periods of ten years upon the request of the trademark proprietor. 7 4 A n application for registration of a trademark must be filed w i t h the State Patent Agency and may be filed through a registered patent agent. Foreign persons must engage a registered Russian patent agent in connection with the registration of a trademark. 75 The Law provides for the examination of the trademark application, which consists of both a preliminary examination and a substantive examination. The preliminary examination must be completed within a month from the application's filing and is concerned w i t h ascertaining that the application contains the appropriate documents and otherwise satisfies the formalities required by the statute. 76 The substantive examination then determines whether the trademark for which protection is sought meets the statutory criteria for protection. 77 Appeals from adverse decisions by the Patent Agency's examiners can be lodged w i t h the Appellate Chamber of the Patent Agency within a three month period, and final appeals can then be taken to the Supreme Patent Chamber. There are, of course, limitations on what can be submitted for registration as a trademark or service mark. For example, trademarks that consist only of symbols 72

Law of the Russian Federation, dated 23 September 1992, On Trademarks, Service Marks, and the Designation of the Place of Origin of Goods, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 23 October 1992, Item 2322 [hereafter Law on Trademarks]. 73 Art. 3, Law on Trademarks, id. 74 Art. 16, Law on Trademarks, id. 75 Art. 8(2), Law on Trademarks, id. 76 Art. 11, Law on Trademarks, id. 77 Art. 12, Law on Trademarks, id.

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or terms that are not distinctive, that are generally understood by consumers to represent a particular kind of good, that are generally-accepted symbols or terms, or that specify the type, quality, quantity, or place of manufacture of goods w i l l not be accepted for registration. Such symbols or terms, however, may be included as elements of a registrable trademark so long as they do not constitute the predominate element in the trademark. 78 The registration of a trademark that violates this requirement may be revoked at any time. 7 9 I n addition, the State Patent Office w i l l not register a trademark that was previously registered, or for which an application was filed, on behalf of another person; a trademark of another person that has not been registered in Russia, but that is protected in Russia under international agreements to which Russia is a party; and trademarks in other similar situations specified in the Law. 8 0 If such a trademark is somehow registered by the State Patent Office, its registration may be revoked within five years from the date on which information concerning the registered trademark was published in the official trademark bulletin. 8 1 The owner of a trademark has the exclusive right to use and to dispose of the trademark, as well as to license its use by another. The use of a trademark consists of its use on the goods for which the trademark was registered and their packaging, as well as in advertisements, publications, stationery, signs, and so forth. 8 2 A trademark may be assigned or licensed by its owner w i t h respect to all or some of the goods for which it was registered. Assignments or license agreements of trademarks must be registered w i t h the State Patent Agency. Failure to do so renders the agreements unenforceable. 83 The Law on Trademarks has introduced a new concept into Russian trademark legislation, the "collective mark," which is a trademark used by a union or group of enterprises to designate goods that they produce and that have common characteristics or qualities. Collective marks and the rights to use them may not be transferred. 84 A second new concept introduced by the Law on Trademarks is the "designation of the place of origin of goods," which can consist of the name of a country, locality, or other geographic place name that is used for the designation of goods. Such a place name can be used to identify products only if those products include features that are wholly or primarily determined by the characteristics of that 78 79 80 81 82 83 84

Art. Art. Art. Art. Art. Art. Art.

6, Law on Trademarks, id. 28(1), Law on Trademarks, id. 7, Law on Trademarks, id. 28(2), Law on Trademarks, id. 22(1), Law on Trademarks, id. 27, Law on Trademarks, id. 20, Law on Trademarks, id.

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place or its inhabitants. 85 However, if a place name has come into general use as the designation of goods of a specific kind unrelated to the place of its manufacture, that place name cannot be registered. 86 A place name can be registered by one or more persons in much the same fashion as for trademarks, and that registration w i l l remain in effect for a ten year term, renewable for additional ten year periods. 87 The provisions of the Law on Trademarks concerning remedies for the infringement of trademarks and designations of the place of origin of goods are extremely general. Infringers may be enjoined and pay damages,88 though it is expected that Russian civil law and other enactments w i l l specify the available remedies in greater detail. V . Law on the Legal Protection of Programs for Computers and Databases The Law on the Legal Protection of Programs for Computers and Databases was finally adopted on 23 September 1992. 89 Though computer programs had been listed as a protected work under the copyright provisions of the USSR Fundamentals of Civil Legislation, which remained in effect in Russia after the demise of the Soviet Union, the protection offered by this law was viewed as unsatisfactory by most Western experts and did not satisfy the requirements spelled-out in the US-USSR Agreement on Trade Relations. 90 The Law on the Legal Protection of Programs for Computers and Databases defined in detail, for the first time, the nature and extent of the legal protections offered to computer programs and resolved some of the technical copyright issues unique to computer programs and databases. The issue of whether computer programs should be protected under patent law or copyright had been the subject of extended debate within the Soviet Union (as elsewhere) for several years prior to the adoption of the 1991 USSR Law on Inventions. This debate was resolved, under pressure from the United States government and other foreign interests, in favor of copyright protection for these 85

Art. 30(1), Law on Trademarks, id. Art. 30(2), Law on Trademarks, id. 87 Art. 36, Law on Trademarks, id. 88 Art. 46, Law on Trademarks, id. 89 Law of the Russian Federation, dated 23 September 1992, On the Legal Protection of Programs for Computers and Databases, Vedomosti S"ezda Nardonykh Deputatov R. F., No. 42, 22 October 1992, Item 2625 [hereafter Law on the Legal Protection of Programs for Computers and Databases]. 90 The Agreement on Trade Relations, for example, required that computer programs be accorded a level of protection "consistent with that provided to other literary works," (note 14), but the USSR Fundamentals of Civil Legislation did not place computer programs on a par with literary works. 86

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works. The 1991 USSR law, as well as the Russian Federation Patent Law, expressly excluded algorithms and computer programs from patent protection. As required by the 1990 US-USSR Agreement on Trade Relations, computer programs are now protected by copyright. Article 2(2) of the Law on the Legal Protection of Programs for Computers and Databases provides that computer programs 91 w i l l be protected as works of literature and databases w i l l be protected as collections. The law specifies certain criteria that must be satisfied in order for a computer program or database to be protected by copyright. Such a work must be expressed in an objective form and it must be the product of the author's creative activity. If these criteria are satisfied, protection w i l l extend to all types of computer programs including operating systems and application programs, as long as they are capable of being expressed in any language and in any form, including source and object code. Copyright protection does not extend, however, to the ideas and principles which form the basis for a computer program or database, including any related algorithms. The use of the phrase "creative activity" (in Russian, tvorcheskaia deiateVnost y) in defining the programs and databases that are eligible for copyright protection has caused some consternation on the part of foreign experts and industry observers who view the requirement of creative activity as a requirement of some additional effort beyond that required for similar works in other countries. 92 The Business Software Alliance, for example, has recommended that copyright law should only require that programs be original and that originality should mean only that the program is not a copy, and some foreign lawyers have expressed concern that the requirement of creative activity would be an extremely onerous standard for the authors of computer programs to meet. 93 Since the Russian courts and jurists have had little experience w i t h issues relating to the copyright protection of computer programs, it is extremely difficult to predict how strictly or liberally those courts may interpret this standard. A t least one knowledgeable foreign expert, however, has concluded that the requirement of creative activity as a criterion for copyright protection should not present a serious problem for the authors of computer programs. 94 91 For purposes of this law, computer programs are defined as "the objective form of expression of a set of data and commands, intended to operate computers and other computer devices in order to bring about a certain result." Databases are defined as "an objective form of expression and organization of a set of data (e. g.y articles, calculations) systematized in such a manner that these data may be searched and processed by means of a computer." Art. 1(1), Law on the Legal Protection of Programs for Computers and Databases, (note 89). 92 See Russian Law on Computer Programs Offers Copyright Protection, but Fundamental Flaws Exist, 3 Russia and Commonwealth Business Law Report, No. 16,11 December 1992; see also Prins (note 2), 80. 93 Prins (note 2), 225, 330. 94 Id 229. Prins, of course, was writing about Soviet law and the views of Soviet jurists and Soviet courts. If anything, the economic and ideological changes that have occurred in

23 GYIL 36

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Databas es w i l l be protected if they reflect creative effort in the selection and organization of the data. Since they are regarded as collections, databases aire subject to copyright protection even if they include works that are themselves objects of copyright protection. Copyright does not extend to the ideas and principles which form the basis of a computer program or database, nor are the rights of the copyright proprietor connected w i t h the ownership rights in the material representation of the work. A n y transfer of the rights to the material representation w i l l not include a transfer of any rights to the computer program or database.95 The copyright to a computer program or database arises upon its creation, and no registration, deposit, or observance of any other formalities is necessary in order to perfect an author's copyright in these works. However, when the work is first published, the copyright proprietor may elect to publish it w i t h the traditional © copyright notice. 96 The author or proprietor of a computer program or database may also register it by filing an application w i t h the Russian Agency for the Legal Protection of Programs for Computers, Databases, and the Topology of Integrated Circuits (the Russian acronym is RosAPO). 9 7 The period of copyright extends from the moment the computer program or database is created for the life of the author plus 50 years after the author's death. The author's moral rights, however, are of indefinite duration. 98 Copyright extends to computer programs and databases first published within the territory of the Russian Federation or unpublished programs and databases that are located within the Russian Federation in some objective form, regardless of the citizenship of the author. Citizens of the Russian Federation who are the authors of computer programs and databases that are published or located in another country are entitled to protection by virtue of their Russian citizenship. Foreigners whose programs and databases are first published or located in a foreign country w i l l be protected in accordance w i t h the international treaties to which the Russian Federation is a party. 9 9 I n this connection, Russia is a party, as a successor State to the Soviet Union, to the Universal Copyright Convention and has agreed to join the Berne Convention. The rights granted to the author of a computer program or database under this law include a standard array of property and non-property rights. The nonRussia since the collapse of the Soviet Union ought to make it even more likely that the courts will apply the creative activity standard liberally. 95 Art. 3, Law on the Legal Protection of Programs for Computers and Databases, (note 89). 96 Art. 4, Law on the Legal Protection of Programs for Computers and Databases, id. 97 Art. 13, Law on the Legal Protection of Programs for Computers and Databases, id. 98 Art. 5, Law on the Legal Protection of Programs for Computers and Databases, id. Art.

, Law on the Legal Protection of Programs for Computers and Databases, id.

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property rights, referred to as personal rights in the law, include the right to be acknowledged as the author of the work, the right to determine the manner in which the author is acknowledged in the program or database, and the right to the inviolability of the work, i. e., the right to protection from any distortion or other infringement that damages the author's honor or reputation. 100 The author's property rights consist of the exclusive right to the publication, reproduction in any form or by any means, dissemination, modification (including translation), or other use of the computer program or database.101 While the author's personal rights are not transferable, the property rights may be transferred via a written agreement that specifies the scope and methods for the use of the program or database, the procedure for payment and the amount of royalties, and the term of the agreement. 102 Property rights in programs and databases created in the course of employment are owned by the employer, unless otherwise provided in an agreement between the employer and the employee. 103 The employee-author, however, retains personal rights in the program or database, including the right to be acknowledged as the author of the work. I n addition to the provisions defining the property rights of the author, the law contains a series of provisions specifying the bases on which computer programs and databases can be used. Thus, the law provides that computer programs and databases can be used by third parties (users) only pursuant to a written agreement w i t h the copyright proprietor. 1 0 4 Special procedures, which are not described in any great detail, may be employed for concluding such agreements when programs or databases are sold to large numbers of users. 105 Though the use of a computer program or database w i l l be governed by the agreement between the proprietor and the user, some uses of the program or database are guaranteed by law. The user has the right to engage in any activities required for the functioning of the program or database in accordance w i t h its purposes, including the recording and loading of the program in a single computer's memory or for a single network user, unless otherwise provided in the licensing agreement. The user also has the right to adapt the program or database and to

100

Art. 9, Law on the Legal Protection of Programs for Computers and Databases, id. Art. 10, Law on the Legal Protection of Programs for Computers and Databases, id. 102 Art. 11, Law on the Legal Protection of Programs for Computers and Databases, id. 103 Art. 12, Law on the Legal Protection of Programs for Computers and Databases, id. 104 Art. 1(2) of the Law defines the copyright proprietor as the author, his or her heirs, and any person who has acquired the exclusive property rights to the program or database either by operation of law or under an agreement, id. 101

105

23*

Art. 14(3), Law on the Legal Protection of Programs for Computers and Databases, id.

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copy it for archival purposes, 106 as well as to resell or transfer the ownership rights in the user's copy of the program or database.107 O n the controversial issue of the "reverse engineering" of computer software, the Russian legislature followed the lead of the European Community 1 0 8 and granted a user who has legally acquired a copy of a program limited rights to decompile that program. Under Article 15 of the Law, the user may decompile the program solely in order to achieve interoperability of that program w i t h another program or programs created by the user. The information gained through the decompilation of the program may not be used to create a new computer program that is substantially similar to the program that is decompiled. Further limitations on the user's right to decompile the program include a requirement that the information necessary to achieve interoperability w i t h other programs is not readily available from other sources and that decompilation is confined only to those portions of the program that are necessary to achieve interoperability. 109 The Law provides an array of remedies that may be used in the event of an infringement of the copyright proprietor's rights. I n defining what acts constitute an infringement of copyright, the Law includes the importation into Russia of copies of programs or databases made without the consent of the copyright proprietor, as well as the unlicensed importation of programs and databases that are protected in the Russian Federation, even if they are imported from a country where those works are not protected by copyright. 1 1 0 U p o n the occurrence of an infringement or other violation of the rights granted by this law, the author or copyright proprietor may seek a judicial declaration recognizing his or her rights; an injunction against the infringement and a restoration of the status quo ante; and compensation for damages, including any revenues received by the infringer. I n addition, when infringement has occurred in order to obtain profit, a fine in lieu of compensation for damages in an amount of from 5,000 to 50,000 times the amount of the minimum monthly worker's salary established by law may be levied by a court, arbitration court, or arbitral tribunal. The court or tribunal may also order the defendant to pay an additional fine equal to 10 percent of the judgment awarded to the author or copyright proprietor to the Russian State, as well as the confiscation or destruction of the infringing copies of the copyrighted work and the equipment and materials used to reproduce them. 1 1 1 106

Arts. 15 (l)-(2), Law on the Legal Protection of Programs for Computers and Databases, id. 107 Art. 16, Law on the Legal Protection of Programs for Computers and Databases, id. 108 See Prins (note 2), 84-85. 109 Art. 15(3), Law on the Legal Protection of Programs for Computers and Databases, (note 89). 110 Art. 17, Law on the Legal Protection of Programs for Computers and Databases, id. 111

Art. 18, Law on the Legal Protection of Programs for Computers and Databases, id.

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The resolution adopted by the Supreme Soviet concerning the entry into force of the Law on the Legal Protection of Programs for Computers and Databases provides that it took effect as of the day it was published (20 October 1992) and applies to legal relationships connected w i t h the creation and use of computer programs and databases that arise after the Law entered into force. However, until 1 January 1994, programs and databases that were published prior to the Law coming into effect may be used for non-profit scientific-research, educationalinstructional, or personal purposes without the consent of the author or copyright proprietor and without the payment of royalties. 112 This provision granting a continued right to use unlicensed software until 1 January 1994 (at least for certain non-profit purposes) touches on an important issue unresolved by the Law on the Legal Protection of Programs for Computers and Databases: what is the legal status of the huge number of unlicensed copies of computer programs and databases that existed in Russia prior to the Law taking effect? Are the users of these pirated programs entitled under the Law on the Legal Protection of Programs for Computers and Databases to continue to use them as long as their future use does not infringe the copyright on the program or database? If the Law is interpreted and applied in this way, the enormous existing base of pirated software can continue to be used as long as these programs and databases are used in accordance w i t h the provisions of the Law (i. e., used, but not copied). O r w i l l anyone using unlicensed software after the Law takes full effect be considered to have violated the Law? It is unclear which interpretation of the Law w i l l be adopted, but it may not make much practical difference, since adopting the latter interpretation (that any continued use of unlicensed software, at least after 1 January 1994, w i l l constitute an infringement) would create a virtually impossible burden of enforcement for software authors and manufacturers and the judicial system. 113 The Law on the Legal Protection of Programs for Computers and Databases represents a marked improvement in the level of legal protection offered to computer programs and databases and should satisfy many of the concerns expressed by the foreign government and industry experts who had been encouraging the adoption of such a law. The Law, however, has been criticized. Some Western experts objected to the fact that these protections were adopted in a separate law, rather than incorporated into the general copyright law. Their concern was that by adopting separate laws, the Russian government and courts might ultimately 112 Resolution of the Supreme Soviet of the Russian Federation, dated 23 September 1992, On the Procedure for the Entry into Force of the Law of the Russian Federation "Law on the Legal Protection of Programs for Computers and Databases", Vedomosti S"ezda Narodnykh Deputatov R. F., No. 44, 22 October 1992, Item 2326, 3018-3019. 113 3 Russia and Commonwealth Business Law Report, No. 16,11 December 1992, NEXIS Online Database.

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accord different levels of protection to computer programs and other literary works. 1 1 4 This concern should be satisfied, however, now that the Russian government has adopted a new general law on copyright that incorporates the provisions relating to computer programs and databases.115

V I . Law on the Legal Protection of the Topologies of Integrated Circuits The Law on the Legal Protection of the Topologies of Integrated Circuits is a short law consisting of 14 articles setting out general principles concerning the manufacture, legal protection, and use of integrated circuit topologies (i. e., layouts). 1 1 6 For these purposes, the Law defines an integrated circuit as "microelectronic manufactured goods in final or intermediate form, intended for the performance of the functions of an electronic circuit, the elements and connections of which are integrally formed in the mass and / or on the surface of the material on the basis of which the goods are manufactured." 117 The topology of an integrated circuit, which is the focus of the protection provided by this law, refers to "the spatial-geometric arrangement of a set of elements of an integrated circuit and connections between them that is fixed in a material medium." 1 1 8 The protection offered to the authors of these topologies is neither patent nor copyright, but this law and the rights granted under it combine some elements of each. I n order for the topology of an integrated circuit to be protected under this law, it must be original, i. e. created through the creative activity of the author. If the set of elements that constitute a topology are well-known to integrated circuit designers on the date of its creation, the protections established by this law w i l l not apply, unless the set of elements that constitute the circuit, though well-known, meet the requirement of originality. These legal protections, however, do not extend to the ideas, methods, systems, or information that are embodied in the topology. 1 1 9 The creators of integrated circuit topologies are granted non-property and property rights. The only non-property right recognized by this law is the inalienable right of the author of an integrated circuit topology (i. e.y the individual 114

Id. See Section VII above. 116 Law of the Russian Federation, dated 23 September 1992, On the Legal Protection of the Topology of Integrated Circuits, Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 22 October 1992, Item 2328 [hereafter the Law on the Legal Protection of the Topology of Integrated Circuit]. 117 Art. 1(1), Law on the Legal Protection of the Topologies of Integrated Circuits, id. 118 Id. 115

119

Art. 3, Law on the Legal Protection of the Topologies of Integrated Circuits, id.

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through whose creative activity the topology was created) 120 to the authorship of the topology. 1 2 1 The author's property rights consist of the exclusive right to the use of the integrated circuit topology, which includes the right to determine when the topology w i l l be reproduced, used in the manufacture and distribution of integrated circuits, sold, or otherwise used commercially. 122 The author's property rights in the topology may be transferred wholly or in part to another person pursuant to a written agreement that specifies the manner in which the topology w i l l be used, the procedure for the payment and amount of royalties, and the term of the agreement. 123 Topologies that are created in the course of employment are the property of the employer, unless otherwise stated in a contract between the author and the employer. 124 Article 8 of the Law lists several categories of fair use of integrated circuit topologies. It w i l l not be a violation of the author's exclusive right to the use of the topology if: — another person uses legally-acquired integrated circuits or goods containing integrated circuits, if the person acquiring them did not know and should not have known that those integrated circuits or the goods containing those integrated circuits were manufactured and distributed in violation of the author's exclusive right to the use of the topology. After the user has received notice from the proprietor of the topology, the user w i l l be required to pay appropriate compensation for each integrated circuit or each good containing such integrated circuit; — the topology is used for personal, non-profit purposes or for purposes of appraisal, analysis, research, or instruction; — integrated circuits containing protected topologies are disseminated in commerce by legal means; or — the topology being reproduced, sold, or otherwise used is identical to a protected topology, but is in fact the original, independently-created work of another author. 1 2 5 As w i t h computer programs and databases, the author of an integrated circuit topology has the option to register the work w i t h the Russian Agency for the Legal Protection of Programs for Computers, Databases, and the Topologies of 120 121 122 123 124 125

Art. Art. Art. Art. Art. Art.

4(1), Law on the Legal Protection 4(4), Law on the Legal Protection 5, Law on the Legal Protection of 6, Law on the Legal Protection of 7, Law on the Legal Protection of 8, Law on the Legal Protection of

of the Topologies of the Topologies the Topologies of the Topqlogies of the Topologies of the Topologies of

of Integrated Circuits, id. of Integrated Circuits, id. Integrated Circuits, id. Integrated Circuits, id. Integrated Circuits, id. Integrated Circuits, id.

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Integrated Circuits (RosAPO), though recognition of the author's rights w i l l not be determined by whether the topology has been registered. 126 Registration however, may affect when the author's rights expire. The author possesses exclusive rights to the use of the topology for a ten year period, dating from the earlier of the date when the topology is first used or the date when it was registered w i t h RosAPO. 1 2 7 The remedies available to the author of an integrated circuit topology are somewhat more limited than those available to the author of computer software. A chip designer whose topology has been infringed may seek injunctive and compensatory relief, but this law does not include a provision similar to that found in the Law on the Legal Protection of Programs for Computers and Databases that permits the courts to impose a substantial fine in lieu of compensation on commercial pirates. A 10 percent fine payable to the State can be imposed by a court, arbitration court, or arbitral tribunal, however. Infringing integrated circuits and products incorporating such circuits, as well as the equipment and materials used to manufacture them, can be ordered to be confiscated or destroyed. 1 2 8 Foreign individuals and juridical persons are entitled to protection of the rights provided under the Law on the Legal Protection of the Topologies of Integrated Circuits on a par w i t h Russian individuals and juridical persons either on the basis of international agreements to which the Russian Federation is a party or on the basis of reciprocity. 129 The resolution implementing this Law provides that it took effect as of the date on which it was published and shall apply to questions relating to integrated circuit topologies that were first used commercially after the Law took effect. W i t h respect to integrated circuit topologies that were used commercially prior to the Law's taking effect, the provisions of the Law w i l l apply to legal relations that arise after it took effect if those topologies are registered w i t h RosAPO within a two year period from the date of their first commercial use. 130

126

Art. 9, Law on the Legal Protection of the Topologies of Integrated Circuits, id. Art. 10, Law on the Legal Protection of the Topologies of Integrated Circuits, id. 128 Art. 11, Law on the Legal Protection of the Topologies of Integrated Circuits, id. 129 Art. 13, Law on the Legal Protection of the Topologies of Integrated Circuits, id. 130 Resolution of the Supreme Soviet of the Russian Federation, dated 23 September 1992, On the Procedure for the Entry into Force of the Law of the Russian Federation "On the Legal Protection of the Topologies of Integrated Circuits", Vedomosti S"ezda Narodnykh Deputatov R. F., No. 42, 23 October 1992, Item 2329. 127

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V I I . Law on Copyright and Neighboring Rights Adoption of a new, post-Soviet copyright law did not occur until nine months after the other new intellectual property legislation was adopted. Though copyright reform was an important requirement of the US-USSR Agreement on Trade Relations and was of critical interest to many foreign industrialists, the drafting and legislative enactment of a new copyright law lagged due to a general lack of interest on the part of the Yeltsin government. The preparation of a draft copyright law for submission to the Russian Supreme Soviet was the work primarily of private lawyers, and its final adoption was largely the product of their lobbying efforts. This delay in adopting a new copyright law was extended further due to President Yeltsin's veto of the law originally adopted by the Supreme Soviet in April 1993. The Law on Copyright and Neighboring Rights, enacted by the Russian Supreme Soviet on 9 July 1993, 131 supersedes the copyright provisions of the USSR Fundamentals of Civil Legislation, which had remained in effect in Russia after the demise of the Soviet Union. Together w i t h the Law on the Legal Protection of Programs for Computers and Databases and any legislation that may be subsequently adopted by the republics within the Russian Federation, this law constitutes Russia's legislation on copyright. The Law on Copyright represents a substantial advance over the Soviet legislation. The Fundamentals of Civil Legislation were never intended to be the operative legislation. Instead, they were intended to provide the basic provisions that were then to be incorporated in more detailed enactments by each of the union republics. The Fundamentals of Civil Legislation copyright provisions were by their nature too vague to provide a satisfactory basis for the enforcement of authors' rights. The Law on Copyright and Neighboring Rights is considerably more detailed and is better suited to this task. The Law also brings Russian copyright law into conformity with the standards set by the Berne Convention, which Russia is expected to join in the near future. Under the Law on Copyright and Neighboring Rights, copyright commences upon the creation of a work of literature, science, or art; neither registration nor the observance of any special formality is necessary in order for a work to be protected. The copyright proprietor may choose to mark each copy of the work w i t h the standard copyright notice: the © symbol, the name of the copyright proprietor, and the year of first publication. 132 The term of the copyright in most works lasts for the length of the author's life plus 50 years after his or her death. 133 131 The official text of the Law was published in Rossiiskaia Gazeta, 6 August 1993, 45 [hereafter referred to as the Law on Copyright]. 132 Art. 9(10), Law on Copyright, id. 133 Art. 27(1), Law on Copyright, id.

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Special provisions, added after President Yeltsin vetoed the original version of the Law on Copyright and Neighboring Rights, relate to the duration of copyright in works published after the death of the authors. Works first published after the death of the author shall be protected for a period of 50 years from the date of publication, and in cases where the author was repressed and then posthumously rehabilitated, the copyright period begins from January 1 of the year following the year in which the author was rehabilitated. 134 Copyright extends to published and unpublished works that exist in some objective form within Russia, regardless of the citizenship of the authors or of their legal successors (heirs and assignees). Published and unpublished works that exist in some objective form outside of Russia are also protected if their authors are Russian citizens or their legal successors, or if protection is required by an international agreement to which Russia is a party. 1 3 5 Foreign authors and publishers can arrange for the protection of their works in Russia even if they w o u l d not be subject to protection under a treaty if they arrange for the simultaneous > publication of those works abroad and in Russia. A work w i l l be considered to have been published in Russia if within 30 days after its first publication abroad it is published in Russia as well. 1 3 6 Published as well as unpublished works of literature, science, and art w i l l be entitled to protection under the Law on Copyright and Neighboring Rights if they are the result of creative activity ( tvorcheskaia deiateVnost '), regardless of their purpose, merits, or method of expression, and if they exist in some objective form. 1 3 7 Protected works may take written, oral, recorded, graphic, solid, or other form, though copyright does not exist for ideas, methods, processes, systems, discoveries, and facts. 138 The specific list of protected works in Article 7 includes literary works (including programs for computers); dramatic works; choreographic works; musical works w i t h and without libretto; audiovisual works; works of painting, sculpture, and other graphic arts; works of decorative and applied art; architectural, photographic, and cartographic works; and other works. Derivative works such as translations and collections are also protected. 139 Expressly excluded from copyright protection are official documents (laws, court decisions, and so forth), state symbols, works of folk art, and informal reports about events and facts. 140

134 135 136 137 138 139 140

Art. 27(5), Law on Copyright, id. Art. 5(1), Law on Copyright, id. Art. 5(2), Law on Copyright, id. Arts. 6(1)-(2), Law on Copyright, id. Arts. 6(2)-(4), Law on Copyright, id. Art. 7, Law on Copyright, id. Art. 8, Law on Copyright, id.

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Under Article 14 of the Law on Copyright, the copyright to a work that is created in the course of employment is owned by the author of the work, not the employer, though the employer has the exclusive right to the use of the work unless provided otherwise in a contract between the employer and the employeeauthor. Thus, the employee-author retains the right of authorship and other personal, non-property rights, but the employer enjoys the property rights in the work, viz. the exclusive right to its use. I n this regard, the Law on Copyright provision reaches the same result as the comparable provision in the Law on the Legal Protection of Programs for Computers, though the terminology is somewhat different. The personal, non-property rights reserved to an author under the Law on Copyright are somewhat different than the personal rights provided for under the Law on the Legal Protection of Programs for Computers. The two laws both provide that the author has the right to be recognized as the author of the work; the right to use or decide to use the work under his or her own name, a pseudonym, or anonymously; and the right to be protected against any infringement that may damage the author's honor or reputation. 141 However, the Law on Copyright also provides that the author has the right to publish or decide to publish the work in any form, including the right to rescind (with payment of appropriate compensation) an earlier decision to permit the publication of the w o r k . 1 4 2 N o such personal right is granted to the author of a computer program or database under the Law on the Legal Protection of Programs for Computers. This inconsistency represents a significant ambiguity w i t h respect to the rights relating to computer programs and databases. The Law on the Legal Protection of Programs for Computers states that the author or other proprietor (inoipravoobladatel 3) possesses the exclusive right to the publication (vypusk v svet) of the program or database.143 The Law on Copyright, however, provides that the author possesses the right to publish (obnarodovat 3) or decide to publish the work in any form, including the right to rescind an earlier decision to publish the work. Moreover, this right is not only personal to the author, it is also indefeasible. 144 Since computer programs and databases are defined as literary works, they are fully covered by the provisions of the Law on Copyright. The question, then, is which law takes precedence and who has the right to decide to publish a computer program or database? Unfortunately, it is impossible to resolve this inconsistency 141

Art. 15(1), Law on Copyright, id. While the Law on the Legal Protection of Programs for Computers and Databases refers to this final personal right as the right to inviolability, the Law on Copyright does not use this term. 142 Arts. 15(1)-(2), Law on Copyright, id. 143 Art. 10, Law on the Legal Protection of Programs for Computers and Databases, (note 89). 144

Art. 15(3), Law on Copyright, (note 131).

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at present. Though the Law on Copyright is the more recent and the more general of the two laws, there is nothing in either statute to assist in the resolution of inconsistencies and no regulations or interpretive judicial decisions have yet been issued. The Law on Copyright grants the author the exclusive right to the use of the work in any form and by any means, including the right to reproduce, disseminate, import, publicly display or otherwise use, broadcast, translate, and adapt the w o r k . 1 4 5 These property rights, of course, are not indefeasible and can be alienated by contract. Articles 30-34 of the Law relate to the author's contract under which the property rights of the author are transferred wholly or in part. Certain terms that must be included in an author's contract (the method by which the work w i l l be used, term and territorial scope, amount of royalties, etc.) are specified, as are provisions to fill-in terms that may not be included in the contract ( e. g., if the author's agreement does not specify the term of the agreement, it may be rescinded by the author at the end of five years from the date of its execution as long as the user has been given six months' prior notice). 146 A n author's agreement must be written, though a contract for the use of works in the periodical press may be oral. 1 4 7 Though in general the author has the exclusive right to the use of a work, nine articles of the Law on Copyright are devoted to defining the circumstances under which a work can be used without the permission of the author and / or the payment of royalties. Article 18 provides that a previously published work may be reproduced for personal purposes without the permission of the author or the payment of royalties. However, this does not permit the reproduction of works of architecture in the form of buildings; the reproduction of a database or a substantial portion of one; the reproduction of a computer program, except for the copying of the program that the legal owner of the program is entitled to carry out; and the reproduction of the entire text of a book. I n addition to these personal free uses, it is permissible to make a single copy of the following kinds of works without the author's permission or the payment of royalties as long as the author's name, the work's title, and the source from which it is taken are cited and the work is reproduced for non-profit purposes: published works that are copied by libraries and archives for restoration or replacement purposes or for lending to other libraries; individual newspaper and journal articles and short excerpts from other published written works that are copied by libraries or archives at the request of individuals for scholarly or research purposes; and individual newspaper and journal articles and short excerpts from 143 146 147

Art. 16, Law on Copyright, id. Art. 31, Law on Copyright, id. Art. 32, Law on Copyright, id.

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other published written works that are copied by educational institutions for teaching purposes. 148 These free uses involve extremely limited copying of a protected work. There are also other free uses permitted that entail the possibility of much more extensive use of a work. As long as the author's name, the title of the work, and the source from which it is taken are cited, a work may be quoted for scholarly or critical purposes; excerpted for illustrative purposes; reproduced in newspapers or broadcast, if the work consisted of a newspaper or journal article on current economic, political, social, or religious issues, and the reproduction was not specifically prohibited by the author; reproduced in newspapers or broadcast for informational purposes, if the work was a publicly-delivered political speech or report; included in surveys of current events in the form of a photograph or broadcast, if the work came into the public eye (or ear) through such events; and reproduced in braille or other similar format for the blind, as long as the reproduction is not for profit and the work was not specially created to be published in that format. 1 4 9 I n addition to these free uses, which are of general application, several articles of the Law on Copyright provide for free uses for specific kinds of works. Among these special free use provisions are ones that permit the reproduction or broadcast of works of architecture, photography, and fine art that have a permanent location and are on public display, except in cases where the image of the work is the basic purpose of the reproduction or broadcast or where the image of the work is used for commercial purposes. 150 Musical works may also be freely used during official and religious ceremonies as well as funerals, as long as the amount of the work used is appropriate to the event, 151 and protected works may also be freely reproduced for purposes of a judicial proceeding. 152 Finally, Article 25 of the Law sets out the free uses that apply to computer programs and databases. Though these free uses are set out in slightly different terminology than was used in Article 15 of the Law on the Legal Protection of Programs for Computers and Databases, the substance of the permitted free uses is the same. 153 One area of concern identified in the US-USSR Agreement on Trade Relations where the United States government sought to encourage the Soviet government to extend more extensive protection was in connection with the use of sound recordings. Part I I I of the Law on Copyright contains nine articles that define the "neighboring rights" granted w i t h respect to the use of sound recordings. 148 149 150 151 152 153

Art. 20, Law on Copyright, id. Art. 19, Law on Copyright, id. Art. 21, Law on Copyright, id. Art. 22, Law on Copyright, id. Art. 23, Law on Copyright, id. See footnote 109 and accompanying text.

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These provisions apply to recording artists or producers, as well as broadcast organizations, as long as the artist or producer is a Russian citizen or a juridical person officially located in Russia; the broadcast organization is officially located in Russia and transmits via a transmitter located in Russia; the use first took place in Russia; or the sound recording was first published in Russia. 154 Protection of these rights does not depend on the observance of any formalities, though the producer of a sound recording may affix each copy of the sound recording w i t h the standard notice for sound recordings: the ® symbol, the name of the owner of the rights to the work, and the year of its first publication. 1 5 5 The legal protection granted to recordings and broadcast programs under these articles has a duration of 50 years from the date of first performance or production of the w o r k . 1 5 6 A recording artist is entitled under the Law to rights closely akin to the rights of authorship guaranteed to the author of a work of literature, science, or art: the right to be identified as the artist, the right to protection against any infringement that w i l l denigrate the artist's honor or reputation, and the right to use the performance, including the right to receive royalties. 157 The right to use the performance as granted to the artist is defined to include the right to broadcast, record, and transcribe the performance, and this right to use the performance can be transferred by the artist pursuant to a contract w i t h another person. 158 A producer to whom the right to use a performance has been transferred has certain exclusive rights w i t h respect to the use and distribution of sound recordings that are made of that performance. 159 The Law on Copyright also includes provisions defining the rights that broadcast organizations and cable television operators have in their programs. 160 Sound recordings may be used in some ways without the permission of the recording artist or the producer. The Law provides a compulsory license (i. e.} the recording may be used without permission but w i t h the payment of royalties) for the public performance, broadcast, or transmission by cable of a recording. 161 Royalties paid for the use of a recording pursuant to this compulsory license are to be collected by a performing rights organization, which is provided for by Articles 44-47 of the Law. The amount of these royalties w i l l be determined by contracts entered into by the users of the protected recordings and the performing rights organization. 162 I n addition to the compulsory license provisions, there are other provisions that permit the free use of sound recordings and broadcast programs ( i. e.} their use without the permission of the artist, producer, or broadcast organization, or 154 155 156 157

Art. Art. Art. Art.

35, Law on Copyright, (note 131). 36(4), Law on Copyright, id. 43(1), Law on Copyright, id. 37(1), Law on Copyright, id.

158 159 160 161

Art. 37, Law on Copyright, id. Art. 38, Law on Copyright, id. Arts. 40-41, Law on Copyright, id. Art. 39(1), Law on Copyright, id.

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the payment of royalties). Brief excerpts from such works can be used in a survey of current events or for informational purposes. I n addition, a work can be used for instructional or research purposes, as well as in those situations in which a free use is permitted for works of literature, science, and the arts. 163 Recordings may also be copied for personal purposes or by a broadcasting organization for short term use if that organization has obtained advance permission and then afterwards destroys the recording. 164 The remedies granted by the Law on Copyright in connection w i t h the infringement of copyright or the neighboring rights granted in connection w i t h sound recordings and broadcast programs are similar to those granted to patentees and their licensees. The injured party may seek a judicial or arbitral acknowledgment of their rights; a restoration of the status quo that existed prior to the infringement; compensation for damages, including lost profits; recovery of profits earned by the infringers; and a fine in lieu of damages in an amount equal to between 10,000 and 50,000 times the amount of the minimum monthly worker's salary established by law. The proprietor of the copyright or related right has the right to choose among the latter three remedies. The court may also enjoin the defendant from actions that violate the plaintiff's rights 1 6 5 and impose a fine equal to 10 percent of any amount awarded to the plaintiff. 1 6 6 Finally, the court may order that any pirated copies of a protected work, as well as the materials and equipment used to make them, may be confiscated, destroyed, or transferred to the plaintiff. 1 6 7 The resolution adopted by the Russian legislature to implement the Law on Copyright provides that the Law shall take effect as of the date of its publication — 3 August 1993. 168 The Law applies to works that are created, as well as the use of works that occurs, after its effective date. I n addition, previously-published works whose 50-year period of protection had not expired by 1 January 1993, are covered by the provisions of the Law regarding the duration of protection. 1 6 9

V I I I . Conclusions The July 1993 Law on Copyright and Neighboring Rights and the four intellectual property statutes adopted in September 1992 represent a significant step away from the socialist theory of intellectual property protection toward a market 162

165 Art. 39(3), Law on Copyright, id. Art. 50(1), Law on Copyright, id. 166 Art. 42(1), Law on Copyright, id. Art. 49(1), Law on Copyright, id. 164 167 Art. 42(3), Law on Copyright, id. Art. 49(4), Law on Copyright, id. 168 Resolution of the Supreme Soviet of the Russian Federation, dated 9 July 1993, On the Procedure for the Entry into Force of the Law of the Russian Federation "On Copyright and Neighboring Rights", Rossiiskaia Gazeta, 3 Augustl993, 6. 163

169

Para. 3, id.

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paradigm. Under this new legislation, the State has negligible rights to intellectual property. Though the Patent Law retains a few vestiges of the old system, in general these new laws grant to the creators and those with whom they have entered into contracts the exclusive right to decide how their works w i l l be used. Compulsory license rights and fair uses are limited and, with the exception of the Patent Law, these statutes do not grant the State the right to compulsorily purchase or expropriate protected works. As a practical matter, however, the effect these laws w i l l have on practice and behavior in Russia remains unclear. There is a long and widespread tradition of intellectual property piracy in Russia, and the question is whether these statutes w i l l inhibit that behavior. The enforcement rights granted under each of these laws are broad, but vague, and the role that the government w i l l play in enforcing intellectual property rights is ill-defined. Effective use of these provisions depends on practicing lawyers and judges who are familiar w i t h intellectual property and who are willing to employ the sanctions provided by law. Though there are obviously talented, sophisticated, and knowledgeable Russian lawyers and judges, there are relatively few who are familiar w i t h intellectual property law and practice. As a result, it w i l l probably take years before domestic and foreign intellectual property owners can rely on the Russian judicial system for effective enforcement of their rights. The adoption of these laws w i l l not end the legislative process as it relates to intellectual property. Refinements of these laws and amendments to the civil and criminal codes and procedure codes to provide for the enforcement of intellectual property rights should be expected. But when these enactments w i l l be adopted by a legislature that is racked by political and constitutional upheaval is uncertain. Moreover, it is possible that at some point in the future some of the constituent republics within the Russian Federation w i l l begin to adopt their own laws governing intellectual property protection, since this is an area that, at least under the present constitution, is under joint federal and republican jurisdiction. Unfortunately, this dual federal-republic jurisdiction creates the possibility of disparities in the level and content of intellectual property protection throughout the Russian Federation, though these disparities are unlikely to be significant. As mentioned above, the bulk of the Russian Federation territory (including Moscow and St. Petersburg) are not located in the republics and thus w i l l be governed exclusively by the federal legislation, and in adopting their own legislation on these subjects the republics w i l l be guided by the models contained in the statutes adopted by the Russian Federation Supreme Soviet. The question of constitutional jurisdiction over intellectual property protection is open to change in the future as the Russian Federation drafts a new constitution. ( H o w near adoption of a new constitution actually is, of course, is anyone's guess.) Inasmuch as at least one draft Russian constitution circulating in Moscow

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would grant joint responsibility in regulating intellectual property issues to the federal and the local (oblast ) governments, there is always the possibility that uniformity in intellectual property legislation, a characteristic attractive to foreign investors and technology owners, may deteriorate rather than improve. Perhaps economic rationality and the interests of attracting foreign technology w i l l w i n out and the Russian federal government w i l l retain sole jurisdiction over intellectual property legislation. However this issue is ultimately resolved, at least for the moment Russia has relatively progressive and up-to-date intellectual property legislation, which constitutes a boon for those foreign companies who might be considering transferring technology to Russia or otherwise doing business there. Just as the situation w i t h respect to intellectual property protection in Russia has been confused, the situation in the fourteen other newly independent States that formerly made up the Soviet Union is even more confused. Some of these countries have already adopted laws or regulations governing the rights of patent holders (Russia, Belarus, Georgia, Kazakhstan, Latvia, Lithuania, Ukraine, and Uzbekistan), while others have not yet acted to adopt their own legislation (Armenia, Azerbaijan, Estonia, Kyrgyzstan, Moldova, Tajikistan, and Turkmenistan). Even in those countries that have adopted new patent legislation and created patent registration offices, the processes are confused. Since Russia inherited the Soviet patent files and patent search facilities, the other countries w i l l have to establish completely new and untested patent registration and search agencies. Moreover, inventors whose inventions were protected by author's certificates issued by the Soviet Union may re-register those inventions and receive patents, but some of the former republics have placed deadlines on this process. I n Kazakhstan, for example, Soviet author's certificates may be exchanged for patents only until 1 December 1993, and Georgia, Latvia, Lithuania, Ukraine, and Uzbekistan have set even earlier deadlines, some of which have already elapsed. Finally, patent cooperation among the former Soviet republics has not been smooth. Ukraine, for example, has adopted a US$1,200 fee for patent applications by foreign inventors that is prohibitive for inventors from Russia and other former republics. 170 Though the treaty establishing the Commonwealth of Independent States referred to a coordination of patent registration processes, fragmentation rather than coordination appears to characterize patent procedures in the former Soviet Union. Thus, while significant progress has been made in reforming Russian intellectual property legislation, the full and effective protection of intellectual property rights there and in the rest of the newly independent States of the former Soviet Union w i l l require substantial additional time and effort.

170

N. Khoroshavina , CIS: Ex-Soviet Republics Establish Patent Legislation, Commersant, 28 March 1993, Reuter Textline / Novecon, NEXIS Online Database. 24 G Y I L 36

CURRENT GERMAN LEGAL DEVELOPMENTS AND INTERNATIONAL

LAW

Throughout its history, the German Yearbook of International Law has served the German and international legal community by publishing articles on the most topical themes in international law. This year the German Yearbook of International Law includes a new section devoted to important legal developments in Germany. The new section, "Current German Legal Developments and International Law", w i l l highlight issues and decisions in Germany which play an important role in the development of international law.

Resolving the External Aspects of German Unification The "two-plus-four" Process By Frank Elbe*

I am honoured and, as a member of the Germany foreign service, very pleased to be able to speak to you in this Schticking Lecture on the subject of the settlement of the external aspects of German unification. The Federal Foreign Office had a particularly close relationship w i t h Walter Schücking, especially at times of nasty attacks by right-wing radical groups. Today Walter Schücking , repeatedly derided by his opponents as an unworldy dreamer, would see in the course of recent European history, and especially in the fact that our country has been united w i t h the approval of our neighbours and partners, a vindication of his basic belief in "peace through justice". "Thick, unbroken clouds had for decades hidden the star of German unity. Then, for a short time, the clouds scattered and revealed the star, and we reached out for it." This was how Hans-Dietrich Genscher later described the course which led to German unity. I n retrospect, the two-plus-four process still stands out as an extraordinarily dramatic, unique course of events. This was due, on the one hand, to three particularly favourable conditions reigning in 1989 and, on the other, to a unique chain of events leading up to the fall of the Berlin Wall on 9 November 1989. 1. Early in 1989 the United States radically changed its attitude towards German foreign policy. I n particular, the Bush administration laid to rest the dispute between the Reagan administration and Foreign Minister Genscher about "Genscherism", allegedly an overly soft stance towards the Soviet Union which found expression in Genschers call in a speech in Davos in 1987 that Gorbachev should be taken seriously and held to his word. 1 Following the successful settlement of the controversy about the modernization of short-

* Ambassador, Director-General of the Policy Planning Staff at the Federal Foreign Office, Walther Schücking Lecture, Institute of International Law at the University of Kiel, 11 December 1992. 1 The journalist Elizabeth Pond , who had obviously been thoroughly briefed in Washington by the National Security Council and the State Department, graphically described this shift in American policy in Europa-Archiv, volume 21, 1992. 24*

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range nuclear missiles, President Bush even spoke in Mainz on 31 May 1989 of "partners in leadership". 2. The N A T O summit held on 30 May 1989 agreed on the formula "The question concerning the introduction and deployment of a follow-on system for the Lance w i l l be dealt w i t h in 1992 . . . " This decision created a positive climate for the further shaping of East-West relations. A decision in favour of modernization would have issued the wrong signal, prompting a setback for the policy of detente which would probably have slowed down or even ended the reform process in Central and Eastern Europe. There was every reason to take seriously Marshal Akhromeyev*s warning of 8 May 1989: "Deployment would create an absolutely unacceptable situation." 3. President Gorbachev's successful, almost sensational, state visit to the Federal Republic of Germany heralded a new chapter in German-Soviet relations. The Joint Declaration of 13 June 1989 underlined the two countries' "desire to establish a lasting relationship of reliable good-neighbourliness" and afforded the Soviet Union the prospect of long-term cooperation w i t h the Federal Republic of Germany in all fields. While, on the international stage, everything was thus pointing towards a substantial improvement in East-West relations and reforms were taking place within the Eastern bloc (obviously w i t h the tacit approval of the Soviet Union), the German Democratic Republic (GDR) leadership ignored the need for political renewal. I n Hungary the Central Committee decided to introduce a multi-party system and Poland got ready for its first free elections — while the G D R leaders, unperturbed, arranged for the results of the local elections of 7 May 1989 to be falsified and interpreted the affirmative vote of 98.85 % as "a clear verdict by the people in favour of strong socialism and secure peace". The G D R government also justified the Tiananmen Square massacre of 4 June 1989 and called China's democratic movement a "counter-revolutionary uprising". It was this blindness to reality on the part of the country's political leaders — and this brings me to the individual links in the chain of events I mentioned earlier — that triggered the flight of G D R citizens, who sought refuge — initially in manageable numbers — in our missions in Prague, Warsaw, Budapest and East Berlin. The connection between these flights from the country and the government's unwillingness to undertake reform was clear: a confidant of Honecker had warned us as early as spring 1989 of the possibility of refugees flooding our embassies. N o t even this recognition prevented the G D R from stating, on its 28th anniversary on 13 August 1989: "The Wall w i l l not be taken down as long as the conditions which led to its construction persist, and such conditions do persist." This unconcealed reluctance to undertake reform caused even more people to leave the country. I n August and September 1989 tens of thousands of G D R

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citizens sought refuge in Hungary, which, after negotiations w i t h Bonn, finally opened its border w i t h Austria and thus allowed them to leave for the Federal Republic of Germany. Out of solidarity w i t h the G D R the orthodox communist regime in Czechoslovakia then closed its border w i t h Hungary, thereby blocking this avenue of escape. As a result, the embassies in Prague and Warsaw were overflowing w i t h refugees. I n the end, there were 6000 people camping out in the grounds of the embassy in Prague. During the U N General Assembly in N e w York, Foreign Minister Genscher negotiated w i t h his G D R colleague Fischer (with the support of foreign ministers Shevardnadze , Dumas and Baker) and obtained permission for all refugees in the embassy to leave the country in trains which, on face-saving grounds, had to cross the territory of the G D R once again. Another option would have been direct departure for the Federal Republic w i t h exit papers issued by the G D R embassy in Prague, but the G D R leadership did not allow this. When, a few days later, further trains were required for a total of 11,000 refugees, attempts to storm the trains degenerated into large-scale brawls in Dresden station. Today we know that it was precisely Honecker's contradictory behaviour — first approving the trains then seeking to settle the resulting unrest through brutal police action — that led to his downfall. The opening of the Wall turned out to be an unforeseen, explosive event. O n 9 November 1989 Chancellor Kohl and Foreign Minister Genscher were paying an official visit to Warsaw. Lech Walesa's troubled, indeed frightened, reaction on the morning of 10 November made it clear to us that the unusual events in Berlin had aroused not only joy in us Germans, but also fears among our neighbours that the European security architecture might collapse. When President Richard von Weizsäcker took up Willy Brandt's phrase — "What belongs together is growing together" — and warned against developments getting out of hand, he was also pointing to the danger of a loss of European stability. The Federal Foreign Office considered it essential from the outset that the unification of the two German states, whatever form it would take, should be completed within a stable framework. But when the cry "We are the people!" turned into "We are one people!", we had to make it clear to our partners and neighbours that Europe's stability would be jeopardized if the German people were withheld their unity. The western Allies and the Soviet Union reacted very differently to the possibility of unification. We were assured of Washington's political support at an early stage. I n his speech to the N A T O Council on 4 December 1989 in Brussels, President Bush reminded the other Allies of their obligations and stated quite clearly: " O f course, we have all supported German reunification for four decades."

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For the American President, however, notwithstanding his enthusiasm, it was imperative that "reunification should occur in the context of Germany's continued commitment to N A T O " . Secretary of State Baker , too, adopted this sine qua non and, addressing the Presseclub in Berlin on 12 December 1989, urged that the restoration of unity should "occur in a context of the Federal Republic of Germany's continued commitment to N A T O and in an increasingly integrated European Community and that there be due regard to the legal role and responsibilities of the Allied powers." A t this early stage France and Britain were somewhat reserved, while the Soviet Union's response reflected anxiety, even rejection. Chancellor Kohl's 10-point plan had caused considerable anger among the Soviet leadership. It was afraid of losing its influence on further developments. This may have been the reason w h y the Soviet Union suddenly took up an initiative proposed by the three western powers back in 1987 to improve the situation in and around Berlin, particularly as regards air traffic, and called for a meeting of the Four Powers. Thus, on 11 December 1989, the first meeting in 18 years of the American, French, British and Soviet ambassadors was held in the building of the Allied Control Council. The Soviet ambassador, Kochemassov , tried to establish the Four Power's responsibility for maintaining stability in Europe and for further developments between the two German States, but this was rejected by the three western ambassadors. The subsequent, somewhat anachronistic photo-call w i t h ambassadors Walters , Mallaby, Boidevaix and Kochemassov in front of the Allied Control Council building was viewed by the German press and public as largely inappropriate. It unwittingly strengthened the German resolve not to let the matter of German unification become the exclusive domain of the Four Powers. We Germans had the right to be involved in the process of German unification as equal partners. Thus, at the end of that year, two fundamental concerns determined Germany's foreign policy: 1. What should be the framework of the negotiations on German unification? 2. H o w could the United States' essential condition that a united Germany belong to N A T O , which was in fact in conformity w i t h our own security interests, be met in such a way that the Soviet Union would not refuse its approval? O n the one hand, then, it was a matter of fixing a framework for the negotiations that was narrow enough to bring about quick results but at the same time, in keeping w i t h the international relevance of the German question, wide enough to remove distrust of German unification. From Germany's point of view there would be no question of either a broad-based peace conference (for a peace treaty a la Versailles ), or a Four Powers conference on Germany or a conference between the two German States alone.

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O n the other hand, the objective was to secure united Germany's membership of N A T O without the Soviet Union feeling that its legitimate security interests had been encroached upon. I n Ottawa on 13 February 1990 something unexpected happened. A t 3 p. m., on the fringe of the NATO-Warsaw Pact conference on an "Open Skies" regime, foreign ministers Genscher, Fischer (GDR), Dumas (France), Shevardnadze (USSR), Baker (USA) and Hurd ( U K ) presented the astounded press w i t h a statement that they would meet "to discuss external aspects of the establishment of German unity, including the issues of security of the neighbouring States". Preparatory talks among officials were to be initiated at an early date. What had led to this unexpected, decisive breakthrough, the official birth of the two-plus-four process? Between the fears at the turn of the year and the agreement reached in Ottawa there had been a period of close diplomatic consultations and vigorous activity. I n January 1990 Foreign Minister Genscher was looking for a concept for united Germany's future membership in N A T O . He used the platform provided by a conference of the Tutzing Protestant Academy on 31 January 1990 to call publicly for united Germany's membership in N A T O — w i t h one important qualification: " A n y proposals for incorporating the part of Germany at present forming the G D R in N A T O ' s military structures would block intra-German rapprochement." This meant that united Germany would belong to N A T O , but that the forces on the territory of the former G D R would not be subject to N A T O ' s command structure, but would have a status in some ways comparable to that of territorial units. Initially this concept evoked concern and spite, both in domestic German politics and among our Allies. Would not the Germans, w i t h this qualified demand for N A T O membership, however sensible it might be, spoil their own chances of attaining unity? While Genscher was speaking in Tutzing, I flew to Washington on his behalf, to discuss the N A T O formula w i t h Secretary of State Baker's closest advisers, Bob Zoellick and Denis Ross. Both immediately and unreservedly accepted the proposal that N A T O structures should not be extended to G D R territory as a reasonable approach. I n turn, Zoellick and Ross suggested that the negotiations on the establishment of German unity should be held between a group of six countries, the Federal Republic of Germany, the GDR, France, the Soviet Union, the United States and the United Kingdom. The logic of the group's composition was seen in fact that it was a question of the unification of the two German States, on the one hand, while the four allied powers, on the other, had both rights and responsibilities

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w i t h regard to Germany as a whole and Berlin — a criterion met by no other country. O n 1 February Genscher himself arrived in Washington. O n the way from Dulles Airport to the State Department I told him and Dieter Kastrup , DirectorGeneral for Political Affairs at the Federal Foreign Office, about the positive response to the Tutzing formula and about the American proposal that the negotiations should be held in a group of six. Genscher was very pleased w i t h the proposed mechanism, but insisted that the talks should be known as "two-plusfour", as the two German States were the ones most immediately concerned. The aim was to avoid any reminder of the humiliating 1954 Geneva negotiations on this issue, where, after much wrangling on matters of protocol, the German delegations had to sit at a separate table; for this reason there could be no question of either "four-plus-two" or "group of six" talks. Genscher and Baker immediately agreed on the result obtained by their aides. Their meeting was significant not only in political terms, but more particularly for the atmosphere in which it took place. The two foreign ministers, in their shirt sleeves, sat casually opposite each other in comfortable club chairs, their legs stretched out on stools, in front of a crackling log fire. This encounter intensified the two men's personal relationship which in the end benefited the negotiations on German unity. Politically, there was an important connection between the N A T O formula and the negotiating format, one that was to accelerate the future course of events. Once the German side had said that united Germany would belong to N A T O , the United States entered actively and wholeheartedly into the further process. N o t only had it as a precaution developed the negotiating format in line w i t h German interests; it also took the offensive — both in press briefings and in dealings w i t h the other partners who played a key role in solving the German question. From 7 to 9 February Secretary of State Baker was in Moscow for political talks. During the flight from Washington to Shannon he briefed the journalists accompanying him on the agreement he had reached w i t h Genscher on 1 February, the two elements of which — the N A T O formula and the negotiating format — he called the "Genscher plan". During the stopover in Shannon he met w i t h Roland Dumas, the French foreign minister, and obtained his approval for the concept. Britain's Foreign Secretary Hurd had already accepted the plan during his visit to Washington. O n arriving in Moscow, one American journalist who had been at this briefing on the plane immediately asked Foreign Minister Shevardnadze what he thought of the "Genscher plan". "Herr Genscher ," replied Shevardnadze , "often makes reasonable proposals." So the Soviets' first reaction sounded far from cold. A t

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the same time, Baker s and Genschers considerations had aroused international attention. I n Moscow Baker discussed w i t h Gorbachev and Shevardnadze the idea of the two German States and the four victorious powers sitting together at one negotiating table; this was intended to allay suspicion of unification. Baker's emphatic support, w i t h the weight and authority of the leading western power behind him, which thus in a sense assumed the role of guarantor in dealings w i t h the other superpower, the Soviet Union, was of the utmost help for the German side in this situation. Chancellor Kohl's visit to Moscow on 10 February 1990 brought the Soviet leadership's approval for German unity. The Soviet news agency TASS announced that "there are no differences of opinion as to the fact that the Germans themselves must resolve the issue of the unity of the German nation and must themselves decide what form this unity w i l l take and when, how quickly and under what conditions it w i l l be established." I still vividly recall the disbelief, the perplexity bordering on denseness, w i t h which the journalists at the international press conference received the news of the agreement between Kohl and Gorbachev. Aj; the same time there was also agreement in Moscow that — I quote another TASS report — "solutions should be sought which are in keeping w i t h the interests both of the G D R and the Federal Republic of Germany and of the Soviet Union and the European States and which take account of the responsibility of the Four Powers in German affairs and in relation to West Berlin, as well as of the legal and political realities." I n this situation, it was more than thoughtless of Horst Teltschik, then DirectorGeneral at the Federal Chancellery, to say shortly afterwards that the Chancellor had fetched the key to German unity from Moscow and that it was now in Bonn. It is true that the Soviet Union's basic approval of the establishment of German unity was a big step forward, but we still had to develop the format and fix the goals for the negotiations. Upon returning from Moscow, Foreign Minister Genscher immediately flew w i t h his aides to Ottawa for the "Open Skies" conference. Since this was a meeting of the foreign ministers of N A T O and the Warsaw Pact, it was a matter of keeping up the momentum and seizing the opportunity presented by the presence of the relevant foreign ministers to advance the proceedings. A t the four-hand breakfast traditional at N A T O conferences, which took place on 13 February 1990 at the German ambassador's residence, thick with snow, foreign ministers Genscher, Dumas, Baker and Hurd decided, after Genscher had

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phoned Chancellor Kohl for his agreement, formally to agree on the framework for the forthcoming negotiations on the fringe of the Ottawa conference. To this end, Baker and Genscher held talks w i t h Shevardnadze and G D R Foreign Minister Fischer that morning. Before committing himself, however, Shevardnadze wanted to consult his alliance partners. Owing to the Polish wish that the border between Poland and united Germany be recognized once and for all, these consultations led to the phrase "including the issues of security of the neighbouring states" being added to the "two-plus-four" formula. A t 3 p. m. foreign ministers Genscher, Fischer , Dumas, Shevardnadze , Baker and Hurd met for a photo-call and presented their agreement. A l l in all the "two-plus-four" formula was of great benefit to us, not only because — as I have already outlined — it provided for a small negotiating framework, but also because the term "establishment of German unity" envisaged more than a mere treaty-based association or confederation, i. e. negotiations leading to German unity. News of the "two-plus-four" agreement spread like wildfire through the conference building in Ottawa. Unfortunately it met not only w i t h approval, but also w i t h considerable opposition. While the photo-call was taking place, the caucus of N A T O foreign ministers held a meeting, where the news fell like a thunderbolt. Two western foreign ministers, mindful of the phrase "including the issues of security of the neighbouring states", demanded most indignantly that they be involved in the negotiations on German unification. Genscher had great difficulty in making it clear that the group of participants — beyond the two German States — had to be restricted to those who had both rights and responsibilities arising out of the war and postwar period w i t h regard to Germany as a whole. I n the ensuing negotiations the delegation of the Federal Republic of Germany was guided by the following major political objectives: 1. Adherence to the limited group of participants determined by the "two-plusfour" formula; 2. Equal rights for all participants; 3. N o peace treaty, but a settlement on the external aspects of the establishment of German unity binding under international law; 4. Termination of the rights and responsibilities of the Four Powers relating to Berlin and to Germany as a whole; 5. Full sovereignty for the united Germany w i t h effect from its establishment; 6. German membership of N A T O ;

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7. N o special status, no singularization or discrimination of Germany; 8. Withdrawal of all Soviet forces from Germany within a foreseeable, fixed period. Following the meeting in Ottawa, preparatory talks at the level of officials had to be initiated speedily in keeping w i t h the two-plus-four formula. The first meeting at the level of political directors took place in Bonn on 14 March 1990 — before the elections to the G D R Volkskammer. Our delegation comprised Dieter Rastrup (Director-General for Political Affairs at the Federal Foreign Office), Peter Hartmann (Deputy Director-General for Foreign Relations at the Federal Chancellery) and myself (then Director of the Minister's Office at the Federal Foreign Office). This initial meeting of the political directors, as well as the preliminary talks among the western directors and the bilateral meetings between our head of delegations, Dieter Rastrup , and the heads of the Soviet and East German delegations produced a clear format for the negotiations. The following procedural outline reflects the care taken to ensure that the principle of equal rights was observed in all respects: The directors would meet alternately in Bonn and Berlin, starting in Bonn. The delegations would sit at a round table in German alphabetical order. Each delegation would have three members at the table; additional experts would sit behind the delegations. Speakers would use their own language. The principle of consensus would apply to the negotiations. The chairmanship would rotate among the heads of delegations in German alphabetical order. The same procedure would apply to the meetings of the foreign ministers, except that they would take place in the capitals in German alphabetical order and the foreign minister of the host country would take the chair. Poland's formal inclusion in the two-plus-four process was not envisaged; the Poles themselves did not seek to participate on a co-equal basis, but wanted to be called in when the western border of Poland was under discussion. A t their first meeting on 5 May 1990 the foreign ministers involved in the twoplus-four negotiations agreed on the following agenda: Item 1: Frontier questions Item 2: Politico-military issues having in mind approaches for suitable security structures in Europe Item 3: Berlin issues Item 4: Final settlement under international law and termination of the Four Powers' rights and responsibilities. W i t h this agenda the two-plus-four process entered its substantive phase, during which both the political directors and the ministers prepared the approaches which were subsequently largely incorporated into the eventual treaty. The fact that the

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western political directors had maintained long-standing, close relations of trust, in some cases even friendship, proved to be of great advantage. The head of the Soviet delegation, Bondarenko , and Soviet ambassador Kvitsinsky were outstanding experts in issues relating to Berlin and Germany and highly-respected negotiating partners. The delegation of the new G D R government sometimes had trouble finding its feet among these insiders. O f the four points, clarifying Germany's future military status became the prime focus of the negotiations. The Soviet leadership's main concern was to find, in parallel w i t h the unification process, satisfatory solutions to the question of alliance membership. Gorbachev was still toying w i t h the idea of a neutral or non-aligned status for united Germany; moreover, he was afraid that N A T O and the Warsaw Pact would collapse, thus — as he saw it — removing securitybuilding anchors of stability. While the security issue had foreign-policy implications for the Soviet Union, the main concern was a domestic one. The Soviet leaders had to make clear not only to the opponents of perestroika but also to the Soviet people, which had suffered considerable losses in the Great Patriotic War, why post-unification Germany had to belong to N A T O , a military alliance which the Soviet propaganda machine had for decades depicted as the enemy. H o w was the demise of the European post-war order laid down in Yalta and Potsdam, for which the Soviet Union had fought, to be justified? Could the Soviet Union obtain any security dividend at all from unification? A t the first meeting of the foreign ministers in Bonn on 5 May, Shevardnadze still insisted that N A T O membership for united Germany was unacceptable. I n the course of the bilateral talks, Shevardnadze repeatedly referred — very helpfully — to domestic sensibilities in his country. I n the spring of 1990 he beseechingly, almost prophetically, highlighted the risk of a right-wing coup. N o t until later, when he resigned in December of that year, did we find out what pressures had been exerted on him during this period by the so-called soyuz group in the Supreme Soviet. It was evident that the clarification of these sensitive issues would be crucial for all other topics, indeed for the negotiations as a whole. However, the twoplus-four negotiating forum itself was overtaxed by the delicate security aspects involved. Additional bilateral and multilateral negotiations were required to focus on the "destigmatization" of N A T O . Negotiations on German unification thus took place not only in Bonn, Berlin, Paris and Moscow, but also at many complementary meetings and conferences — in Windhoek, Geneva, Brest, Münster, Washington, Turnberry and London, for instance.

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The purpose of these additional meetings was both to find tangible solutions to security issues and to devise supportive gestures of considerable psychological or symbolic import. For example, Foreign Minister Shevardnadze invited his colleague Hans-Dietrich Genscher to Brest for a bilateral meeting on 11 June 1990. Shevardnadze's brother had died in the early days of the war in the defence of the fortress of Brest. I n addition to the negotiations proper, the joint laying of a wreath at the brother's grave, which was broadcast by Soviet television, was a significant event. It sent a double message to the Soviet people: Shevardnadze was making it clear that, in the negotiations, he would not forget the Soviet people's suffering during the war and that he was personally affected through the death of his brother. For his next meeting w i t h Shevardnadze , just a week later, Genscher deliberately chose the City Hall in Münster, where in 1648 the Peace of Westphalia had been negotiated. Shevardnadze was deeply moved both by the historical significance of the venue and by the overwhelming welcome he received from the people of Münster, which surprised us too. The N A T O summit in London on 6 July paved the way in both substantive and symbolic terms for united Germany's N A T O membership, which was later to be accepted by Gorbachev in the Caucasus. I n the London Declaration the western heads of State and government said, "The Atlantic Community must reach out to the countries of the East which were our adversaries in the Cold War, and extend to them the hand of friendship." This development was preceded by the similarly worded Message from Turnberry adopted by the N A T O foreign ministers at their spring meeting in Turnberry, Scotland, on 8 June 1990. It was a decisive stroke of German diplomacy that this message was drawn up precisely at that time and, moreover, as a separate document and that it was agreed outside the usual tough and protracted communique negotiations; this was thanks to the outstanding efforts of Dieter Rastrup. I n this vital point, the Message from Turnberry thus anticipated the outcome of the London summit and allowed the Soviet party leadership to adjust to the new development — which amounted to the desired destigmatization of N A T O — at an early stage, i. e. long before the 28th congress of the Communist Party of the Soviet Union (CPSU) from 1 to 11 July 1990. The offer of the N A T O summit alone would have come too late for the CPSU congress. The Two-plus-Four Treaty subsequently adopted the version "not to regard each other as adversaries" in its preamble. A further essential security aspect was the future strength of the German armed forces. We were certain that a cut in national personnel strengths would be agreed at the Vienna Negotiations on Conventional Armed Forces in Europe. I n the context of German unification the reduction of the Federal Armed Forces already envisaged could thus translate into a tangible security dividend for the Soviet

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Union which would make it easier for it to ensure the ratification of an agreement on German unification. Yet on the other hand the size of the armed forces involved the risk of Germany's singularization. I n our view, the final definition of the strength of future German forces was a decision for Vienna, not for the twoplus-four process. The problem was later solved in that Genscher and de Maiziere made a statement on the reduction of German forces in Vienna on 30 August 1990, which was quoted verbatim in paragraph 2 of Article 3 of the Two-plusFour Treaty. The 28th CPSU party congress saw fierce clashes between reformers and conservatives. Shevardnadze rejected the accusation that Gorbachev had gambled away the G D R and Eastern Europe as a Soviet area of influence and made it very plain that the long division of Germany had been "artificial and unnatural". For Gorbachev the congress in the end turned out to be a tremendous personal success, culminating in his convincing reelection as General Secretary, which gave him greater leeway in foreign policy. Against the background of this successful congress, Chancellor Kohl visited the Soviet Union on 16 and 17 July. It was during this visit that the crucial external aspects of German unification as they related to the Soviet Union were clarified. Thanks to the thorough preparatory work done in the two-plus-four talks, Dieter Rastrup , assisted by Horst Teltschik , was able to record agreement in a declaration issued in Arkhyz in the Caucasus. The individual elements of this agreement were as follows: First, the unification of Germany would involve the Federal Republic of Germany, the G D R and all of Berlin. Second, w i t h the establishment of the unity of Germany, Four-Power rights and responsibilities would be ended and Germany's full and unrestricted sovereignty acquired. Third, united Germany could decide freely whether it wanted to belong to an alliance and, if so, which one; thus united Germany's future membership of N A T O was assured. Fourth, conclusion of a treaty on the modalities of Soviet troop withdrawals, which were to be completed within three to four years, and of a transitional agreement. Fifth, as long as Soviet troops remained on the territory of the GDR, N A T O structures would not be expanded; articles 5 and 6 of the N A T O treaty would apply w i t h immediate effect to the entire territory of unified Germany. Sixth, the possibility of stationing territorial defence units of the Federal Armed Forces in the G D R and Berlin immediately.

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Seventh, troops of the western allies would remain in Berlin for the duration of Soviet military presence in the GDR. Eighth, after the withdrawal of Soviet troops, NATO-integrated troops could be stationed in the G D R and Berlin, although without delivery systems for nuclear weapons. N o foreign troops or nuclear weapons were to be deployed there. Ninth, the Federal Government would commit itself in the ongoing Vienna talks to reducing the strength of the armed forces of a unified Germany to 370,000. Tenth, united Germany would refrain from the manufacture, possession and use of A B C weapons and would remain a party to the Non-Proliferation Treaty. O n 17 July 1990, the day after the talks in Arkhyz, the two-plus-four meeting at ministerial level was held in Paris. While the western foreign ministers expressed their satisfaction at the agreement reached in the Caucasus, the G D R delegation, to the incomprehension of all the other delegations, was finding fault with it: it rejected the presence of N A T O forces on the territory of the then G D R after the withdrawal of the Soviet forces and called for a nuclear-weapon-free Germany. Grossly misreading the mood of the people of West Berlin, it also demanded the withdrawal of the western allies from the city. A t this point it also became clear that, as we had known for some time, Foreign Minister Meckel's West German advisers, while wanting unification, attached more importance to achieving an old aim of the peace movement, namely the denuclearization of Germany. W i t h the Polish Foreign Minister, Krzysztof Skubiszewski , taking part in the talks for the first time, the matter of Poland's western border was satisfactorily setttled. The Polish demand that the reference to German unity in the preamble and to the possibility of accession in Article 23 be deleted from the constitution of the united Germany was accepted. This demand was designed to exclude any further territorial claims by Germany. After the Paris meeting the two-plus-four political directors embarked on the editorial work; when the Soviet side stepped up the pace and expressed the wish during Foreign Minister Genscher' s visit to Moscow on 17 August that the twoplus-four negotiations be concluded and the treaty signed at the foreign ministers' meeting in Moscow on 12 September, pressure was mouting, making severe demands on all involved. The United States and the United Kingdom were prepared to forego their foreign ministers' conferences in Washington and London in order to expedite the conclusion of the Two-plus-Four Treaty. However, it was not only a matter of drawing up the definitive treaty on German unification by 12 September; the Soviet Union had also called for four bilateral agreements — the treaty on good-neighbourliness, the treaty on the presence and withdrawal of Soviet forces, the agreement on transitional economic issues and the treaty on comprehensive economic cooperation.

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Work on all these agreements had to be advanced to the point of allowing the treaty on good-neighbourliness to be initialled or signed following the Moscow conference and agreement reached on the wording of the other treaties by 12 September. This work was carried out outside the two-plus-four process; in some cases ministries other than the Federal Foreign Office were responsible. It was a gigantic task. The foreign ministers and, for the GDR, Prime Minister de Maiziere signed the Two-plus-Four Treaty in Moscow on 12 September in the presence of President Gorbachev. During the previous night, and even just a few hours before the signing, extremely complicated negotiations were going on about Britain's demand that western forces be allowed to participate in manoeuvres on G D R territory after the withdrawal of the Soviet armed forces. The problem was solved by an agreement to the effect that the approval of the government of the united Germany would be required for manoeuvres involving Allied forces — the matter was thus left to Germany's discretion. I n New York on 1 October 1990 the participants in the two-plus-four process signed a document suspending the operation of quadripartite rights and responsibilities. Germany had thus acquired sovereignty. O n 2 October the CSCE foreign ministers, meeting in N e w York, took note of the two-plus-four document, which meant that Germany's unity was achieved in agreement w i t h the CSCE participating States. O n 3 October 1990 the G D R acceded to the Federal Republic of Germany under Article 23 of the Basic Law. O n 4 March the Supreme Soviet in Moscow ratified the Two-plus-Four Treaty, the last of the parliaments concerned to do so. Ratification was to the very end a matter of bitter controversy and by no means certain. Just before the debate Colonel Petrushenko , a member of parliament belonging to the conservative soyuz group, had described ratification as an irretrievable error, claiming that the former foreign minister, Shevardnadze , had permitted provisions to be written into the treaty that were damaging to Soviet interests. Colonel Alksnis, like Petrushenko an arch enemy of Shevardnadze , criticized the "persecution" of former members of the Socialist U n i t y Party (SED) in Germany. The crucial significance this question had for the ratification procedure can be seen from the course of events: ratification was effected on 4 March, Gorbachev signed the instrument of ratification on 12 March, Honecker was taken from the G D R to a Moscow hospital by Soviet military aircraft on 14 March and — at the very moment of his transfer — the Soviet embassy informed the Federal Foreign Office in Bonn that Ambassador Terechov would present the instrument of ratification at 9 a. m. on 15 March. The Two-plus-Four Treaty entered into force, in accordance w i t h Article 9, on 15 March 1991 w i t h the deposit of the last instrument of ratification. Germany had attained full sovereignty over its internal and external affairs.

Thou shalt not (but thou mayest): Abortion after the German Constitutional Court's 1993 Landmark Decision By Susanne Walther 1

I. Retrospective: Key developments 1975-1992 I n 1975, the German Bundesverfassungsgericht (Federal Constitutional Court) 2 torpedoed the Bundestag's 3 Abortion Reform Act of 19744. The Act, which marked the end of a long and painful political battle, would have legalized abortion, performed after mandatory counselling, during the first twelve weeks of pregnancy 5 . Based on the rights to life and to the protection of human dignity, both embedded in the Grundgesetz. (Basic Law), 6 the Bundesverfassungsgericht found that "life in the sense of the historical existence of a human individual exists according to secured biological-physiological knowledge in any case from the 1 Dr. jur (Freiburg 1990), LL.M. (Georgetown 1989), admitted to the New York Bar (1990). Wissenschaftliche Referentin (Research Associate) at the Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg i. Brsg., Germany. A comprehensive analysis and critique of the decision was first presented in German in co-authorship with Dr. Georg Hermes; see Georg Hermes and Susanne Walther, Schwangerschaftsabbruch zwischen Recht und Unrecht, Neue Juristische Wochenschrift (NJW) 1993, 237-47.1 take the occasion to thank Georg Hermes for bringing his spirit and perseverance to our first enterprise as co-authors. I also thank Emily Silverman for constructive criticism and valuable advice in matters of language and style. Any deficits remain, of course, in the author's sole responsibility. 2 Under the German Grundgesetz, the Bundesverfassungsgericht has far-reaching powers. The "case" against the new regulation had been brought to the Court by several German states and conservative members of parliament by way of "abstract" judicial review. For an "abstract" judicial review no actual controversy between adverse parties is required. Abstract review can be initiated by the Federal Government, a Länder (state) government, or one third of the members of parliament; Article 93 cl. 1 nr. 2 Grundgesetz. 3 Parliament; then West German. 4 BVerfGE 39, 1. 5 German penal law until then allowed abortion only when necessary to preserve the life and health of the pregnant woman. For an instructive overview of developments see Donald F. Kommers, Abortion and Constitution: United States and West Germany, American Journal of Comparative Law, vol. 25, 1977, 255-285, 261 et seq. 6 Article 2 cl. 2 (life), Article 1 cl. 1 (dignity).

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fourteenth day after conception." 7 It held that the Act ran afoul of the State's constitutional duty to protect developing life, and mandated that the State stand "protecting and furthering" before it. The fetus was seen as developing in a "continuous process" that did not allow for a differentiation in protection based on developmental stages along the way to human personhood. 8 While on principle giving discretion to the legislature in choosing efficient means of protection, 9 the Bundesverfassungsgericht required the State to threaten punishment if the constitutionally required protection could not otherwise be secured. The State could, however, refrain from compelling a woman to carry the fetus to term where doing so would impose an unreasonable burden on her. 10 Following the Court's mandate, the Bundestag in 1976 passed an "indications regulation" which allowed abortion under circumstances, or "indications", where continuing the pregnancy would create an unreasonable burden. 11 Indications existed if the woman's life was endangered or her health seriously threatened (medical indication), if the child would be born with irremediable defects (embryopathological indication), if the pregnancy resulted from rape or sexual assault (criminological indication), and finally, if carrying the child to term would result in unreasonably burdensome hardship (social indication). Abortions performed by licensed physicians were legal, provided that both an independent physician and the performing physician ascertained the existence of one of the four enumerated indications, that counselling requirements and a waiting period had been complied with, and that the abortion was performed within the specified term of pregnancy 12 . I n sum, the threat of punishment for abortion focused on deterring abortions by non-physicians (including the woman herself 13 ), and the bulk of the new legislation, despite its location within the penal code, focused on the regulation of legal abortion. For a number of reasons, this "indications regulation" did not lead to a longlasting solution of the controversial abortion question. Abortion critics faulted it as a badly disguised surrender to feminist claims of a woman's right to choose abortion during the early stages of pregnancy and contended that the threat of punishment for circumventing the prescribed procedures was no real deterrent. 7

BVerfGE 39, 1, 37 (my translation). BVerfGE 39, 1, 37. 9 BVerfGE 39, 1, 44. 10 BVerfGE 39, 1, 48. 11 §218a Penal Code (1976); for an English translation of the Code, see Penal Code of the Federal Republic of Germany, translated by Joseph J. Darby (The American Series of Foreign Penal Codes, Vol. 28, 1987). 12 Twelve weeks, where abortion was based on criminological or social reasons, or twentytwo weeks, where it was based on embryopathological reasons, § 218 a Penal Code 1976. 13 However, the threat of punishment was lowered for the woman from the general maximum of three years to one year of imprisonment, or a firie, cf. § 218 (3) Penal Code 1976. 8

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They could point to factual and legal "evidence": in practice, the number of abortions based on the social indication ran up to more than 80% of all legal abortions. 14 The rates of criminal investigation and prosecution were extremely low. 1 5 Also, while counselling providers had to be state licensed, counselling policies differed from state to state. Generally speaking, in the southern states, counselling focused more on the woman's constitutional duty to the unborn; 1 6 in the north more emphasis was put on helping the woman to come to her own, responsible decision. 17 Another hotly debated issue turned on the fact that, while the statutory language labelled "indicated" abortions "non-punishable", this was interpreted more and more as justification, 18 implying full legalization and not just exemption from punishment. One of the most stinging thorns in the flesh of anti-abortion advocates probably was the fact that abortions based on the social indication were covered by public health insurance. 19 But criticism of the indications regulation came from women and the medical profession as well. Women felt imposed upon by the painstaking procedural requirements that forced them to consult three different authorities: the counselling center, the doctor ascertaining the indication, and finally the performing doctor who again had to confirm the existence of an indication. Many physicians felt that determining the existence of the indication of social hardship, which in turn determined whether or not a woman could have an abortion, was beyond their proper professional role. Due to vast state and regional differences in the availability of outpatient abortion services, 20 women wishing to terminate their pregnancies often had to travel great distances, which subjected them not only to additional financial burdens but also to problems explaining their absence at home and in the workplace. Several developments coincided at the turn of the decade and eventually led to reform. First, comprehensive empirical and comparative research 21 revealed that 14 Rolf Stürner, Die Unverfügbarkeit ungeborenen menschlichen Lebens und die menschliche Selbstbestimmung, Juristenzeitung (JZ), 1993, 709 et seq., 711; for the development from 1977-1986, see Hans-Georg Koch, Landesbericht Bundesrepublik Deutschland, in: Albin Eser / Hans- Georg Koch (eds.), Schwangerschaftsabbruch im internationalen Vergleich, Teil 1: Europa, Baden-Baden 1988, 241 et seq. 15 See Koch, id., 248 et seq. 16 See Guidelines Baden-Württemberg, cf. Koch (note 14), appendix 318 et seq. 17 See Guidelines Nordrhein-Westfalen, cf. Koch (note 14), 321 et seq. 18 See Koch (note 14), 113-117. New fuel was added to this debate by the judgment of -the Bayerisches Oberstes Landesgericht, of 26 April 1990 (RReg. 3 St 78/79), Neue Zeitschrift für Strafrecht (NStZ) 1990 389-392, which rejected the interpretation of the "social" indication as justification. 19 Cf. Stürner (note 14), 710. 20 See Koch (note 14), 193 et seq. 21 The most comprehensive project, I believe, was conducted at the Max-Planck-Institute of Foreign and International Criminal Law, Freiburg i. Brsg. The project yielded several

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while Germany's indications model was among the more restrictive regulations, its preventive effect was not superior to more liberal countries whose regulations, grounded in different concepts, in the early stage of pregnancy deliberately left the ultimate decision to abort up to the woman. 2 2 Second, while criminal prosecutions of abortion generally were extremely rare, a spectacular trial that gained nationwide notoriety was staged in 1989 in the Bavarian town of Memmingen, against a gynecologist (and a number of women) who had terminated pregnancies without following the prescribed regulations. 23 Finally, since East Germany's abortion law had been far more liberal 24 than West Germany's, unification of the two countries in 1990 necessitated new legislation. Accordingly, the Unification Treaty 2 5 instructed the (unified) Bundestag to pass new law within two years, which, in conformity w i t h the Grundgesetz , would protect the unborn life while allowing pregnant women to cope w i t h conflict situations. II. Climax of controversy: The Bundestag's 1992 liberalization of abortion in the early stage of pregnancy Faced w i t h abortion bills that ranged from the very liberal to the very restrictive, 2 6 the legislators eventually worked out a compromise that w o n a broad monographs. Work on the concluding comparative analysis of the national reports is still in progress. See Albin Eser / Hans-Georg Koch , Schwangerschaftsabbruch im internationalen Vergleich, Teil 1: Europa, Baden-Baden 1988, Teil 2: Außereuropa, Baden-Baden 1989; Brigitte Holzhauer, Schwangerschaft und Schwangerschaftsabbruch, Freiburg i. Br. 1989; Monika Häußler-Sczepan, Arzt und Schwangerschaftsabbruch, Freiburg i. Br. 1989; Karlhans Liebl y Ermittlungsverfahren, Strafverfolgungs- und Sanktionspraxis beim Schwangerschaftsabbruch, Freiburg i. Br. 1990. 22 Countries featuring a middle course, or "third way" in regulating legal abortion, typically combine the criteria of 'stage of pregnancy', 'substantive reason', and 'counselling / procedure', but typically do not enumerate the 'substantive reasons' and do not require that their presence be ascertained by a third party. Examples are France, Italy, the Netherlands, Norway, and recently Belgium; see Hans-Georg Koch, Recht des Schwangerschaftsabbruchs — ein Blick über die Grenzen, in: Andrea Hauner / Elke Reichart (eds.), § 218. Zur aktuellen Diskussion, München 1992, 39 et seq., 43-44. 23 See Ulrich Vultejus (ed.), Das Urteil von Memmingen (1990), 9 et seq. Dr. Theißen was initially sentenced to 2 years and 6 months of imprisonment and 3 years suspension from practice. After years of appellate review and, eventually, retrial, the conviction and sentence were reduced to 36 counts of criminal abortion (from an initial 79) and 18 months on probation. See Süddeutsche Zeitung, 13 January 1994, p. 1, 3. 24 The GDR regulation allowed abortion on demand during the first twelve weeks of pregnancy; it expressly recognized the equal rights dimension of choosing continuation or termination of pregnancy. Gesetz über die Unterbrechung der Schwangerschaft v. 9.3.1972, GBl. 1972 I, Nr. 5, 89. 25 Einigungsvertrag, 31 August 1990, BGBl. II, 889; see also Albin Eser, Deutsche Einheit: Übergangsprobleme im Strafrecht, Goltdammer's Archiv für Strafrecht (GA), 1991,241 -268. 26 For an instructive overview see Albin Eser, Das neue Schwangerschaftsabbruchsstrafrecht auf dem Prüf stand, Neue Juristische Wochenschrift (NJW) 1992, 2913 et seq.

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majority in both the Bundestag (parliament) and the Bundesrat (council of states).27 The new "counselling model" retained the concept that abortion destroys life and should only be allowed if the continuation of pregnancy would result in an unreasonable burden for the woman. But at the same time it reflected the belief that the State's duty to protect developing life could be better served, in general, by improving the social environment for women and families w i t h children, and in the individual case of unwanted pregnancy, by comprehensive information and counselling, than by threatening punishment and establishing cumbersome procedures for obtaining a permission to abort ("support instead of punishment"). Consequently, the new legislation contained a voluminous package of general social measures on education, birth control, and State assistance in matters of family planning and pregnancy. W i t h respect to the individual woman faced w i t h an unwanted pregnancy, the Act focused on providing not only State assistance in case of financial need but on strengthening the woman's rights and opportunities in education, workplace, career, and housing. Special emphasis was put on day care. From 1996 on, children of four years and up were to be guaranteed a place in a day care center. While the latter promise sparked debates over political credibility due to imminent serious budget problems, major constitutional controversy arose due to three elements central to the criminal and financing provisions of the new legislation: 28 first, while formerly the existence of an indication had to be ascertained by both an independent and the attending physician, the new law provided that, subject to mandatory counselling, the woman herself should ultimately determine whether an unreasonable burden existed for her. Second, abortions carried out within the first twelve weeks of pregnancy and in compliance w i t h the prescribed counselling provisions were labelled "not unlawful"; thus, early abortion was not only decriminalized, but it was legalized. A n d third, just like indications-based abortions under the former West German law, the cost of "merely counselled" abortions would be covered by general health insurance. The Act further established a duty for the German Länder to provide enough abortion facilities that women seeking abortions need not undertake burdensome and costly travel.

I I I . The Bundesverfassungsgericht^ 1993 decision29 The Bundesverfassungsgericht approved the decriminalization of abortion as premised by the new counselling regulation and for the first time recognized the 27

Schwangeren- und Familienhilfegesetz, 7 July 1992, BGBl. I, 1992, 1398. See Eser (note 26). 29 BVerfG, Judgment of 28 May 1993-2 BvF 2/90, 4/92, 5/92, unofficial publication in Neue Juristische Wochenschrift (NJW), 1993, 1751-1779. All subsequent reference will be to this source [hereinafter Judgment], 28

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woman's "ultimate responsibility" to decide whether or not to carry a fetus to term. However, w i t h a 6 : 2 majority the Court at the same time declined to allow full legalization of non-indicated abortions. I n claiming that the prohibition of abortion, as a principle, derives from the constitution and therefore from higher norms, the majority obviously sought to erect a normative bulwark to counteract the impression, conveyed by the frequent practice of abortion, that abortion is socially acceptable. Based on its concept of non-criminal, yet non-legal abortion, the Court established specific requirements and restrictions concerning counselling and financing. I n its reasoning, the Court heavily relied on the theory of "positive general prevention", a theory that seeks to explain the function of criminal law (and of punishment) on the basis of public norm affirmation and stabilization. Three Justices dissented. While the majority's interpretation of the State's duty to protect the unborn (below 1.-5.) culminated in the "normative" role of the law, particularly of the criminal law, and thereby came close to symbolic jurisprudence, the minority opinions of Justices Mahrenholz and Sommer strongly criticized the majority's approach (below IV. 1.). I n a separate dissenting opinion, Justice Böckenförde criticized the majority's stance w i t h regard to its consequences (below IV.2.). 1. Doctrinal starting point: State's duty to protect life The majority 3 0 relied on the constitutional doctrine set forth in the 1975 decision, 31 where the Court established the State's obligation affirmatively to protect human life against wrongful intrusion by others. Again, the Court held that human life in its genetic identity and uniqueness exists at the conclusion of nidation. 3 2 From this time on, the fetus develops "as a human being", and all human life enjoys human dignity. 3 3 The State's duty to protect relates to the individual life, not only to human life in general. 34 The State must implement preventive and repressive measures for its protection. 35 The protection of the unborn requires an acknowledgment of the unborn's own right to life, which cannot depend on the developmental stage of the pregnancy, nor on the woman's acceptance of the unborn. 3 6 Where the woman's constitutional rights, namely her right to the free development of her personality 30

For the following see id., D I of the opinion, 1753 et seq. Supra note 3. 32 The Court left open whether human life exists even at the time of fusion, Judgment (note 29), 1753. 33 Id., D I la, 1753. 34 Id., D I lb, 1753. 35 Id., D I 4, 1755. 36 Id., D I la, 1753. 31

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and to the protection of her dignity, collide w i t h the duty to protect the unborn, the conflict must be solved in accordance w i t h the principle of proportionality; 3 7 the State's protective measures must be adequate and effective. For the majority, three major consequences follow from this. The State is obliged to treat "merely counselled", i. e. non-indicated abortions as wrong. The State must seek to influence the woman to accept the unborn. Through social measures aimed at creating a family- and children-friendly society the State must create a social environment that promotes such acceptance. 2. Normative

consequences regarding "merely counselled " abortion

a) Principle: Abortion must generally be prohibited except in cases of unreasonable burden (Thou shalt not . . . ) As a direct consequence of the duty to protect unborn life the State must generally prohibit abortion. For the Court, then, it is only the flip side of the same coin that the pregnant woman has a general duty to carry the fetus to term. 3 8 Therefore, at no time during pregnancy may the State leave the abortion decision to the free, unrestricted discretion of the woman. I n accordance w i t h its 1975 precedent, the Court held that exceptions from the general prohibition of abortion may only be made where obligating the woman to carry her fetus to term would create an "unreasonable burden" for her. This can be the case where medical, embryopathological, or criminological grounds are given, but also in other cases as the legislature may define, provided that the circumstances create a burden so "heavy and unusual" that continuing w i t h the pregnancy would go beyond "reasonable sacrifice". 39 The State may not, however, leave the question of whether such circumstances are present to the woman's own judgment. 40 b) Compromise: Woman may have "ultimate responsibility" for abortion decision ( . . . but thou mayest) The compromise character of the majority's approach is obvious in the way the principles sketched above were applied to the legislation before it: while nonindicated abortion remains "wrong" by virtue of higher norms (embedded in the constitution), the "ultimate responsibility" for the abortion decision may yet rest w i t h the woman as premised in the new "counselling model". 4 1 The legislature 37

Id., D I 2b, 1753; the Court here cites Georg Hermes, Das Grundrecht auf Schutz von Leben und Gesundheit, Heidelberg 1987, 253 et seq. 38 Judgment (note 29), D I 2, 1753. 39 Id., D I I I lc, 1758. 40 Id., D I I I 2 b aa, 1759.

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may reasonably conclude that the new concept, w i t h its focus on counselling and on creating the atmosphere most conducive to a resolution of the woman's conflict in favor of the pregnancy, could be more effective as a "protection concept" for the unborn than the previous indications regulation. The Court acknowledged further the legislature's assessment that in order to promote the woman's openmindedness in counselling and improve the State's chance to " w i n her over" 4 2 in favor of the unborn, counselling should be "result-open" (ergebnisoffen) 43: the woman should be permitted ultimately to decide against the pregnancy without threat of punishment and obtain a medically safe abortion performed by a licensed physician. I n other words, the illegality verdict on the woman (and her doctor) seeking a "merely counselled" abortion must not be carried to the bitter end. 44 Also, in order to ensure open-mindedness the woman should be permitted to remain anonymous during counselling. Finally, the woman's freedom to come to her own decision must be protected against pressures from her family or social environment through the criminal law. 4 5 c) However: The "remaining legal order" must express the wrongfulness of non-indicated abortion While it would have been consistent w i t h the woman's "ultimate responsibility" to go all the way and hold that the woman (and her doctor) should know that she does not act illegally if she decides against the pregnancy, the majority did not see fit to make this holding: instead, it held that even though the woman's decision w i l l not be criminalized, it may not be viewed as legal; and the "remaining legal order" must bring this to the general public's consciousness.46 Implementation of the wrongful character of "merely counselled" abortions in the "remaining legal order" has formally been left to the legislature, but in substance the Court has already decided the key issues.47 First, the Court dictated that it is incompatible w i t h the State's duty to protect unborn life to treat abortions as justified in the criminal law. Justification must be based on ascertainable grounds, and the legislature shifted from the indicationsconcept to the counselling-concept precisely because this duty to ascertain was believed to present major obstacles.48 If "merely counselled" abortions could be 41 42 43 44 45 46 47 48

For the following see idD II, 1756-1757. Id., D II, 1756 et seq.; id., D I I I 4, 1760. Id., D IV 1, 1760. See below III.4. Judgment (note 29), D IV, 1764. Id., D I U 2, 3, 1758-1760. For the following see id., D I I I 2, 3, 1758-1760. Id., D I I 2, 1756.

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justified solely upon the woman's own assessment of her reasons w i t h no requirement of external review, the protection of unborn life would be dispensed w i t h entirely. A declaration that "merely counselled" abortion is nicht rechtswidrig (not unlawful) despite the lack of ascertainable grounds would be understood as a general "allowance". This would counteract the State's duty to reflect the wrongness of "merely counselled" abortion in the "remaining legal order". I n order to achieve decriminalization without signalizing that early abortion, after mandatory counselling but without formal indication, is allowed, the majority recommended declaring the general criminal abortion provision as "not applicable". Second, the wrongfulness of abortion must also be reflected in the mandatory counselling sessions, in the training of doctors, medical personnel, and social workers, and in the interpretation and application of public and private law. I n particular, the cost of "merely counselled" abortion may not, as a matter of constitutional law, be covered by public health insurance. Otherwise, the majority feared, legal consciousness would be "gravely harmed". 49 Private health insurance may not provide coverage for such abortions either. Finally, all State organs, such as public schools, and even public as well as private broadcasting, are obliged to support the protection of unborn life. 50 3. Consequences for the woman seeking counselling , and eventually , abortion From its view of the counselling regulation as a concept to protect the unborn, it follows for the Court that counselling itself must be based on a "normative" concept. While counselling must remain "result-open", it must also be "goaloriented" Czielorientiert ).51 It must be oriented towards the protection of the unborn, "encourage" the woman to accept the pregnancy, and seek to w i n her acceptance of "her task as a mother". 5 2 It is the State's responsibility to ensure compliance w i t h the procedural and organizational requirements for counselling set forth by the Court, but the State may entrust private organizations w i t h counselling as long as they are subject to close regulation and monitoring. 5 3 A t the same time it must be assured that the woman who ultimately decides against pregnancy can obtain a safe abortion performed by a licenced physician. 54 Thus, contracts for the abortion procedure and for medical treatment shall be valid, and assaults against the woman or the doctor in order to prevent the 49

For so Id., 51 For 52 Id., 53 Id., 54 For

the following see id., E V 2b dd, 1769. D I 3d, 1755. the following see id., D IV, 1760 et seq. D I I lc, 1758. D IV 3, 1761 et seq. the following see id., D I I I 3, E V 3b, 1760, 1770.

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impending abortion procedure are not justifiable. A n d although the State may not "participate" in wrongful abortion by providing health insurance coverage, 55 the Court said that the cost of abortion may be met by social security funds, and that continued pay in case of illness may not be withheld. I n keeping w i t h its focus on the State's duty to protect the unborn, the majority construed this concession mainly as an exception to the consequences of the wrongfulness of "merely counselled" abortion in the interest of the "effectiveness" of the counselling concept as a means to protect the unborn. 5 6 As to the performing physician, 57 the Court put particular emphasis on his or her duty to protect unborn life. The physician must base her decision on whether or not to participate in the abortion on her own, independent assessment of the woman's reasons. The Court pronounced that some of the physician's duties must be secured by criminal sanctions: the duty to ascertain the woman's reasons; the duty to ascertain whether the woman has complied w i t h the counselling and waiting period requirements; and the duty not to reveal the sex of the unborn during the first twelve weeks of pregnancy. Physicians have the right to refuse to participate in non-indicated abortions and may not be prejudiced in their educational and career opportunities if they do so. 4. Consequences for social policy: State must create a children-friendly society The Court also emphasized that as a matter of constitutional law, the State must take measures to create a family- and children-friendly society. 58 The situations of pregnant women, children, families, and single mothers must be improved w i t h respect to housing, poverty and joblessness, and particularly w i t h respect to the compatibility of education, employment, and the raising of children — not only because the family and the equal treatment of men and women are expressly protected in the Grundgesetz ,59 but also in light of the State's duty to protect unborn life. The Court therefore welcomed the social measures contained in the 55

Health insurance coverage is excluded only with respect to the abortion procedure itself. Also, the daily illness benefits during regular post-operative care in a hospital must not be grantedy Judgment (note 29), E V 2 c, 1769. Otherwise, medical services that immediately serve the health of the woman before and after the abortion are not excluded. Thus, health insurance coverage is not excluded where post-operative care becomes necessary due to complications; ibid. 56 Id.y E V 3b, 1770. 57 Id., D V of the opinion, 1762 et seq. 58 For the following see id.y D I 3, 1755. 59 Article 6 paras. 1 and 4, Article 3 para. 2; with respect to the latter, the Court even cited the International Covenant on Economic, Social, and Cultural Rights, Article 3 and 7 adopted 16 December 1966, 993 UNTS 3.

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1992 legislative act as "the right way" and urged that the legislature must "take account" of the importance of such measures for the preventive protection of life should it become necessary to reconsider State contributions because of scarce resources. 60 I V . The Minority opinions Vice Chief Justice Mahrenholz and Justice Sommer as well as Justice Böckenförde dissented. 1. Vice Chief Justice Mahrenholz and Justice Sommer 61 Mahrenholz and Sommer began their joint dissenting opinion by explaining their fundamental disagreement w i t h the majority: legal regulation of abortion touches fundamental questions of human existence, and the lawmaker stands at the limit of regulatory potential. There are better or worse regulations, but there is no "right" solution. While both Justices shared the majority's tenet that the State's duty to protect unborn life begins at the onset of pregnancy, they argued that this legal obligation is limited by a woman's constitutional rights. For both Justices, the State's duty to protect unborn life throughout pregnancy does not automatically result in an unqualified duty for the woman to carry the fetus to term. The Grundgesetz creates the State's constitutional duty to protect life; the extent to which a duty of the pregnant woman follows from this cannot be determined without taking her own constitutional rights into consideration. The State's duty to protect the unborn and the woman's basic rights must be balanced. The constitution does not address this balancing; it is left to the legislature. If the legislature leaves the ultimate decision in the early stage of pregnancy to women, provided they undergo mandatory counselling, the Grundgesetz w i l l not be offended, and the resulting abortions may be legalized. Mahrenholz and Sommer did not view the "counselling" regulation as a product of legislative frustration over the previous indication concept, but as the consequence of a changed understanding of women's personality and dignity. While the majority viewed the woman and the embryo in direct confrontation (not substantially different from other conflict situations), the two dissenters emphasized that this view remains incomplete, since it ignores the fact that pregnancy is a developmental process. Woman and embryo are a "duality in unity" that changes: in the early stage of pregnancy they appear entirely as "unity", later as "duality". 6 2 This developmental nature of pregnancy must be considered in balan60 61 62

Id., D I 3b, 1755. Mahrenholz / Sommer, Judgment (note 29), dissenting opinion, 1774-1778. Mahrenholz / Sommer y id. y dissenting opinion, I 1, 2, 1774-1775.

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cing the rights of woman and embryo. I n the early stage of pregnancy the legislature may rightfully conclude that mandatory counselling is more likely to protect the unborn than are penal sanctions and leave the decision ultimately up to the woman. It follows from this approach that abortions performed in accordance w i t h the procedural requirements of the 1992 counselling model would be justified and therefore legal. The two Justices criticized the majority's concept of decriminalized but unlawful abortion as contributing neither to the protection of the unborn nor to the reinforcement of society's consciousness of right and wrong. The dissenting Justices would have upheld the legislature's new counselling model, including the health insurance coverage. 2. Justice Böckenförde

63

Böckenförde agreed w i t h the majority that abortion can only be justified under circumstances where obligating the woman to carry the fetus to term would create an unreasonable burden for her. If this cannot be ascertained, as the new counselling regulation assumes, there is no right answer to this legal dilemma to be found in the Grundgesetz. The Constitution itself does not dictate that all "merely counselled" abortions be treated as wrong and ineligible for health insurance coverage. Rather, it is the responsibility of the legislature to decide whether the "indivisible entirety" of lawful and unlawful abortions should be regarded uniformly as wrong and excluded from social funding. Böckenförde, otherwise ranked among the conservative members of the Court, earned the applause of a largely surprised liberal camp when he went on to criticize the majority's stance on the categorical wrongfulness of all "merely counselled" abortions as unreasonable and harming women in their "dignity and righteousness". 64 Regarding the majority's concern for public consciousness, Böckenförde — much like his two dissenting colleagues — believed that public consciousness of the wrong of abortion could rather be harmed if the legal order emphasizes on the one hand that it is important to distinguish right and wrong, and on the other ignores the distinction by uniformly excluding health insurance coverage. I n Böckenförde' s eyes, the majority's stance leaves the impression that the "main thing" 6 5 was that abortion w i l l not be subsidized. According to Böckenförde, measures to protect the unborn must go beyond the normative level; and it must be realized that in seeking the best possible protection, any legal regulation of abortion will, to some extent, remain an imperfect order ("Notordnung"). 66

63 64 65 66

Böckenförde, Böckenförde, Böckenförde, Böckenförde,

id., id., id., id.,

dissenting dissenting dissenting dissenting

opinion, opinion, opinion, opinion,

1778-1779. 2 b, 1778. 2d, 1779. 4, 1779.

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V. What has been left up to the legislature? Faced w i t h a comprehensive and intricate judgment, its analysis and interpretation regarding the legislature's room of action is no easy task. From the multitude of legal and practical issues raised by the Court's decision, only two shall be briefly raised here. 1. Counselling Although the Court formally left the regulation of counselling to the legislature, its directives w i t h respect to the "normative" contents of counselling do not leave much leeway. The Court itself, arguably reaching far beyond its proper role, has extensively "regulated" the content, procedure and organization of counselling held due for decriminalized, yet non-indicated early abortion by virtue of the Grundgesetz. The Court began by stating that for counselling to be "successful", the woman's "cooperation" in searching for a "solution" must be sought. This justifies that counselling is "result-open", and that the woman can neither be compelled to talk and "cooperate" nor even to reveal her identity. But for the protection of the unborn, counselling must also be "goal-oriented" toward the continuation of pregnancy. To this end, "Counselling shall encourage, not intimidate; awake understanding, not lecture; strengthen the woman's responsibility, not patronize her." 6 7 As the opinion unfolds, however, we wonder at times about the Court's own adherence to these principles. N o t only does the Court define the counselling requirements in elaborate detail; also, some are difficult to reconcile w i t h the Court's own acknowledgment of the woman's freedom in counselling. The Court's euphemistic "encouragement", "understanding", and "responsibility" language can hardly conceal the discrepancies. "Normative" counselling entails that the woman must be made aware of the unborn's own right to life and of the fact that abortion may be considered only in exceptional circumstances where a woman would be burdened beyond reasonable sacrifice. To this end, the counsellor must enter into a dialogue with the woman, employing scientifically developed methods of 'conflict counselling'; an uninvolved it's-up-to-you demeanor is unacceptable. Counsellors must be adequately qualified for this task and must allocate sufficient time. Moreover, 'conflict counselling' requires that the woman reveal her motives; and while she cannot be compelled to do so, counselling should "work toward" this goal. Furthermore, the woman must be informed of the social and other „support measures offered by the state, or by institutions like churches and foundations. Counsellors must have the option to invite persons who are close to the woman and who may have influence on her, provided the woman consents. At the same time they must be wary of possible undue influence exerted by such persons, and if this is feared, ask the woman to come back alone. The woman may obtain the counselling certificate only when the counsellor 67

Judgement (note 29), D. IV. 1., p. 1761 (my translation).

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deems counselling completed, which may require more than one session. But where the woman is determined to have the abortion, withholding the certificate may not serve to make»her postpone the procedure until the end of the twelve-week term. The state carries full responsibility for the constitutionally required quality of the counselling procedure, regardless of whether counselling is provided by publicly or privately funded organizations. The state may approve facilities for counselling only if, with respect to organization, basic attitude on the protection of unborn life, and staff, they can guarantee adherence to the constitutional and legislative requirements. In particular, counselling facilities must not be integrated, organisationally, institutionally, or economically, with facilities providing abortion. They must be regularly screened by the state. To this end, counsellors should have the duty to make a final record summing up the "substantial content" of the counselling session including the support measures offered, without revealing the woman's identity. To assure effective control, counselling facilities are also required to lay down their experiences in regular reports. 68 The political forces are now haggling over how to square the requirements of "goal-orientation" with those of "result-openness". Whatever the legislature's wisdom on the issue, it should be observed that the Court's directives are binding only when a "merely counselled" abortion is sought or considered. Arguably, where circumstances creating an "unreasonable burden" can be verified, the woman is not subject to mandatory counselling as a matter of constitutional law, and the purpose of offering counselling where such circumstances exist must be to assist the woman in deciding whether she wants to continue with the pregnancy despite that burden. 69 2. Justification

and financing

The Court left it up to the legislature to define further circumstances that may create an "unreasonable burden". 7 0 Thus, the legislature could "return" to an extended indications concept, including the criminological and possibly a more broadly defined medical indication, 71 but also the social indication. Regarding the latter, however, the legislature would be faced w i t h a serious dilemma: the old problems w i t h the definition and third-party ascertainment (including the highly problematic issue of eventual review by the courts 72 ) of what constitutes "unreasonable burden" would remain. Some of them might be alleviated by allowing 68

Judgement (note 29), D. IV. 1.-3, pp. 1760-62. See Hermes / Walther (note 1). 70 Judgment (note 29), D I 2 c bb, 1754; E l l , 1764; E V 5a bb, 1771. 71 For the latter, see Albin Eser , Aufbruch zu neuem Weg, Halt auf halber Strecke, Kritische Vierteljahresschrift, Sonderheft 1/1993, 134 et seq., 139. 72 On legal review in the case against Dr. Theißen , of the town of Memmingen, the Federal High Court (Bundesgerichtshof BGH) held that a physician's medical judgment on the presence of an indication is subject to review regarding its reasonableness (Vertretbarkeit); BGH, Judgment of 3 December 1991-1 StR 120/90; Neue Zeitschrift f. Strafrecht (NStZ), 1992, 328. 69

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the counselling centers to ascertain whether an indication is given. But serious new problems might be created: if the legislature were to add a social indication while retaining the possibility of non-indicated abortion after counselling, a woman who — for whatever reason — could " o n l y " present a counselling, and not an indication certificate might be subjected to new forms of discrimination in obtaining the abortion and post-operative medical care. A solution that would avoid this would be to wait until after the abortion was performed and the woman filed for health insurance coverage, before determining whether the woman's reasons amounted to an "unreasonable burden". The Court does not address this option, but it appears compatible w i t h the Court's holding. However, procedures would have to be implemented to assure that indications would be ascertained w i t h "due legal reliability" (rechtsstaatliche Verläßlichkeit ),73 which again raises the specter of third-party approval of the woman's reasons, and eventual court review. While it is too early to predict the legislature's moves w i t h respect to the indications concept, it appears likely that the possibility of obtaining an abortion under the "counselling" regulation w i l l be retained, and that for low-income women a concept of financial aid w i l l be developed to ensure that they w i l l be able to afford professional medical care. I n fact, the Court left it to the legislature to extend social security benefits to low-income women in order to prevent them from seeking illegal ways and means. 74 But the legislature is not limited to a social security concept; other funding concepts outside of general health insurance may be developed. The Ministries of Family in the states of Hessen, Saarland and Brandenburg have announced such plans already, and the political controversy over these and other abortion issues is (again) in full force. 75

V I . Critique The Court's acceptance of a woman's ultimate authority to decide whether to terminate or continue her pregnancy was a practical victory for women faced w i t h unwanted pregnancy, but not a victory for women's rights. For once the Court accorded the fetus full constitutional rights from the first day of pregnancy, the recognition that State regulation of abortion implicates a woman's constitutional rights, too, remains largely rhetoric. A n d on top of it the majority's doctrinal approach itself offends women's dignity: that the "ultimate responsibility" for the abortion decision may rest w i t h the woman was accepted as a matter of 73 74 75

Judgment (note 29), E V 2b, 1768 et seq. Id. , E V 3b, 1770; see above III.3. See Süddeutsche Zeitung, 22 July 1993, 4.

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function only — that is, in the interest of promoting the efficacy of the new counselling regulation as a "protection concept" for the unborn. I n contrast to the Bundesverfassungsgerichts approach, other prominent high courts have recently given greater recognition to the rights of women. W i t h different nuances, they openly acknowledged the fundamental nature of a woman's right to make her own decision on reproduction. I n search of the proper limitations on this right, the developmental nature of pregnancy for them became the key factor. That during the early stage of pregnancy the woman's right to decide cannot be unduly restricted was recently reaffirmed by a majority of the United States Supreme Court in Planned Parenthood v . Casey. 76 This is particularly remarkable in light of two decades of strong political opposition to the milestone 1973 Supreme Court decision in Roe v. Wade which recognized that a woman's right to choose abortion is protected by the U.S. Constitution and shielded from state restrictions particularly during the early stage of pregnancy. 77 The recent reaffirmation in Casey of Roe's core, that although the state has a legitimate interest in protecting the fetus from the beginning of pregnancy, the woman's right to choose and obtain an abortion before fetal viability is constitutionally protected, 78 was largely due to the sensible jurisprudence of Sandra Day O'Connor , then the only woman 7 9 on the Court. The Canadian Supreme Court in its 1988 decision of R. v. Morgentaler 80 struck down a criminal statute exempting abortion from punishment only in case of endangerment of the woman's life or health (which w;as ascertained in a bureaucratic and complicated procedure). Four of the five Justices supporting the majority vote (there were two dissenters) regarded the regulation as a violation of a woman's 76 Planned Parenthood v. Casey , 112 S.Ct. 2791,2830 et seq. (1992). For the developments in abortion law and practice in the United States 1986 -1991 see Susanne Walther, Schwangerschaftsabbruch in den USA: Neuere Rechtsentwicklungen, Europäische Grundrechte Zeitschrift (EuGRZ), 1992, 45-60. 77 Roe v. Wade, 93 S.Ct. 705 (1973). 78 Cf. 112 S.Ct. 2791, 2804 (1992). However, a plurality of three Justices ( O'Connor , Kennedy , and Souter) substituted a newly developed "undue burden" test for the previously controlling "strict scrutiny" test (state restrictions on abortion must be narrowly tailored to serve a compelling state interest); under the "undue burden" test, state restrictions in the interest of the unborn are permissible, unless they "unduly burden" the woman's right to make her own decision. Under this test, the majority in Casey struck down a Pennsylvania statute that required spousal notification, while requirements on informed consent, a 24hour waiting period, one-parent consent, and reporting and recordkeeping requirements were upheld. 79 Recently she has been joined by Ruth Bader Ginsburg who was appointed to the Court after the retirement of Justice Byron White. 80 R. v. Morgentaler, 1 S.C.R. 30 (1988). For a discussion of this decision and its political background see Bernd Rasehorn, Ein Grundrecht auf Abtreibung und die Abschaffung des Abtreibungsparagraphen in Kanada, Kritische Justiz 1990, 332 et seq.

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constitutional right to the "security of the person" contained in s. 7 of the Canadian Charter of Rights and Freedoms. They found that the right to security of the person includes the right to have access to medical treatment without fear of punishment in case the pregnancy poses a threat to the woman's life or health.81 Justice Wilson, the only woman on the Court and the fifth majority vote, went further. With an eye to the United States Supreme Court's Roe v. Wade, 82 she based her opinion on the "right to liberty", contained as well in s. 7 of the Canadian Charter, and argued that it guarantees "every individual a degree of personal autonomy over important decisions intimately affecting his or her private life," and that "a woman's decision to terminate her pregnancy falls within this class of protected decisions."83 Justice Wilson also argued that the criminal code provision in question offended the freedom of conscience guaranteed in s. 2(a) of the Canadian Charter. 84 While the protection of the fetus is a "perfectly valid legislative objective,"85 a proper balance between the protection of the fetus and the rights of the woman must take into account the developmental nature of pregnancy: The value to be placed on the foetus as potential life is directly related to the stage of its development during gestation. The undeveloped foetus starts out as a newly fertilized ovum: the fully developed foetus emerges ultimately as an infant. A developmental progression takes place between these two extremes and it has a direct bearing on the value of the foetus as potential life. Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the state's interest in protecting the foetus would justify its prescribing conditions. The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines. 86

81

R. v. Morgentaler, 1 S.C.R. 30, 32 et seq. (1988). I n their joint opinion, Chief Justice Dickson and Justice Lamer opined that "forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person". Id., 32-33. Justices Beetz and Estey believed that "if an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or not treatment at all, her right to security of the person has been violated". Id., 34. 82 For a critique of this comparative perspective, see Mary Ann Glendon, A Beau Mentir Q u i Vient De Loin: The 1988 Canadian Abortion Decision in Comparative Perspective, Northwestern University Law Review, vol. 83, 1989, 569, 575 et seq. 83 84 85 86

Id., Id., Id., Id.,

26 GYIL 36

36-37. 37. 38. 38.

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Susanne Walther

VII. Conclusion It looks like the Bundesverfassungsgericht sought to appease a wide spectrum of political positions: conservatives may rejoice that abortion remains wrongful and will not be paid for by general health insurance; liberals may celebrate the fact that in the early stage of pregnancy a professional abortion can now be obtained without the threat of punishment and without third-party approval that an unreasonable burden exists. But whether the Court's compromise is a political success is irrelevant. It is simply not within the Court's jurisdiction to tailor what it holds to be "better" political compromises in quasi-legislative manner and substitute them for those that were worked out by parliament. In doing so, the Court has abandoned its proper role and compromised the constitutional principle of separation of powers. Federal Constitutional Court (BVerfG), Karlsruhe, Decision of the Second Senate of 28 May 1993 — 2 BvF 2/90, 4/92, 5/92 — Headnotes 1 : 1. Germany's Basic Law places a duty on the State to protect human life, including that of the unborn. This duty of protection is derived from Article 1, subsection 1 G G (Basic Law). The object and scope of this duty is more specifically governed by Article 2 subsection 2 GG. Unborn life is due human dignity. The legal order must guarantee the proper legal foundation for the development of the unborn in terms of its right to life. The unborn's right to life is not predicated on its acceptance by the mother but exists prior to this point in time. 2. The duty to protect the unborn is a duty owed to each individual, not just to human life in general. 3. The unborn is due legal protection even as against its mother. Such protection can be afforded to the unborn only if the legislature passes a law prohibiting abortion and places a basic legal obligation on women to carry pregnancies to term. The bar on abortion and the basic obligation to carry a pregnancy to term constitute two inseparable elements of this constitutionally required protection. 4. Abortions performed at any point during a pregnancy must be fundamentally considered a wrong and, thus, unlawful (affirming BVerfGE 39, 1 [44] = EuGRZ 1975, 126 [140]). The determination of the right to life of the unborn must not be delegated to the discretion of a third party who is not bound by law, not even where the third party is the mother herself and no matter how limited the time period may be in which such a right may be exercised. 5. The scope of the duty to protect the unborn is to be determined by weighing its importance and need for protection against the conflicting interests of other objects due legal protection. Those interests which come in conflict w i t h the unborn's right to life include — starting with a woman's right to have her human dignity protected and respected (Article 1

Translated by Deborah Anne Vester, Esq. (N.Y.), for the Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg im Brsg.

Abortion after German Constitutional

Court's 1993 Landmark Decision

403

2, subsection 1 GG) —, above all, a woman's right to life and physical integrity (Article 2, subsection 2 GG) and her right of personality (Article 2, subsection 1 GG). The constitutional rights of a woman, however, do not go so far as to allow her to claim under Article 4, subsection 1 G G a fundamentally protected legal right to kill an unborn by means of an abortion. 6. The State must fulfill its duty of protection by adopting adequate measures setting legal and factual standards whose objective — in consideration of conflicting legal interests — is to provide for appropriate and effective protection (minimum protection). For this purpose, it is necessary to create a regulatory scheme which combines elements of preventive as well as repressive protection. 7. The fundamental rights of a woman do not mandate the general suspension of a duty to carry out a pregnancy, even within a limited time frame. However, a woman's constitutional rights permit — and in certain cases might require — recognition of exceptional circumstances under which such a duty shall not be imposed on her. It is up to the legislature to determine the specific criteria of these factual exceptions according to a standard of reasonableness. Those burdens shall constitute exceptions which require such a degree of sacrifice of individual needs by a woman that it would be unreasonable to expect this from her (affirming BVerfGE 39, 1 [48 et seq.] = EuGRZ 1975, 126 [142 et seq.]). 8. Under minimum protection the State is precluded from freely dispensing with criminal punishment and its protective effect on human life. 9. The State's duty to protect the unborn also includes protecting the unborn from dangers emanating from the influence of the woman's immediate or general social milieu or both her and her family's present and foreseeable living circumstances and, as such, interfering w i t h the woman's willingness to carry out the pregnancy. 10. The State's duty of care furthermore includes maintaining and raising the public's consciousness of the unborn's legal right of protection. 11. The legislature acts constitutionally when it adopts a regulatory scheme for the protection of the unborn which uses counselling as a means of inducing pregnant women in conflict during the early stage of the pregnancy to carry their pregnancy to term. The legislature also acts within constitutional bounds when it dispenses with criminal prosecution for indicated abortions as well as the determination of such indications by third parties. 12. A counselling-based regulation must comply w i t h underlying constitutional conditions which impose affirmative duties on women for the benefit of the unborn. The State holds full responsibility for implementing the counselling procedure. 13. The State's duty to protect the unborn requires that the physician cooperate not only in the interest of the woman but also to the benefit of the unborn. 14. I t is unconstitutional to define by law the existence of a child as a source of damage or harm (Article 1, subsection 1 GG). For this reason, it is prohibited to acknowledge a maintenance obligation toward a child as a type of damage or harm. 15. Abortions performed in the absence of a determined indication as prescribed by the counselling regulation may not be deemed justified (not unlawful). According to inalienable fundamental principles of law, an exception can have the effect of a legal justification only if it is incumbent on the State alone to establish the criteria necessary to take the act in question out of the general rule. 16. It is unconstitutional to create an entitlement to statutory health insurance benefits for the performance of an abortion whose lawfulness has not been established. By contrast, it is not unconstitutional to grant social welfare benefits for abortions not incurring criminal

26*

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Susanne Walther

liability under the counselling regulation where a woman lacks financial means. Continued payment of salaries or wages in the case of an abortion is also constitutional. 17. The administrative power of the Länder remains unqualified where a federal law merely prescribes an obligation to be met by the Länder and not the specific regulations which can be implemented and enforced by the governmental administrative authorities of the Länder.

REPORTS

Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1991 und 1992 Von Ursula Heinz

Im Berichtszeitraum 1 waren aus früheren Jahren 8 Verfahren anhängig. Von diesen wurden im Falle betreffend die Land-, Insel- und Seegrenzstreitigkeit (El Salvador / Honduras: Nicaragua beitretend) und im Falle betreffend den Schiedsspruch vom 31. Juli 1989 (Guinea-Bissau gegen Senegal) die Endurteile gefällt (I und II). Zwei weitere Fälle erledigten sich durch Klagerücknahme: Auf Nicaraguas Antrag und mit Zustimmung der beklagten USA stellte der I G H am 26. September 1991 das Verfahren betreffend Form und Höhe des Schadensersatzes wegen militärischer und paramilitärischer Aktivitäten in und gegen Nicaragua ein.2 In gleicher Weise wurde am 27. Mai 1992 der Fall betreffend Grenz- und grenzüberschreitende bewaffnete Zwischenfälle auf Antrag Nicaraguas und mit Zustimmung Honduras' von der Liste der anhängigen Verfahren genommen.3 Nachdem die Replik und Duplik Dänemarks bzw. Norwegens im Fall betreffend die Seegrenze im Gebiet zwischen Grönland und Jan Mayen rechtzeitig eingingen, soll das mündliche Verfahren im Jahre 1993 stattfinden. 4 Im Fall betreffend den Luftzwischenfall vom 3. Juli 1988 (Islamische Republik Iran gegen Vereinigte Staaten von Amerika) hatte der I G H zunächst die Fristen für die Klagebegründung und Klageerwiderung verlängert. 5 Die Vereinigten Staaten erhoben sodann prozeßhindernde Einreden. Der Gerichtshof setzte daraufhin das Verfahren in der Hauptsache aus, forderte Iran zur Stellungnahme gegenüber den Einreden bis zum 9. Dezember 1991 auf 6 und verlängerte die Frist zunächst bis zum 9. Juni 1992, dann noch einmal bis 1 Der Bericht schließt an den Vorbericht von Stefan Schupp ert, Die Rechtsprechung des Internationalen Gerichtshofes in den Jahren 1989 und 1990, in: German Yearbook of International Law (GYIL) 34 (1991), 438-459, an. 2 Verfügung vom 26. September 1991, ICJ Reports 1991, 47. 3 Verfügung vom 27. Mai 1992, ICJ Reports 1992, 222. 4 Report of the International Court of Justice 1 August 1991-31 July 1992, General Assembly, Official Records, 47th Session, Suppl. No. 4, 9, paras. 48, 49. 5 Verfügung vom 12. Juni 1990, ICJ Reports 1990, 86. 6

Anordnung vom 9. April 1991, ICJ Reports 1991, 6.

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Ursula Heinz

zum 9. September 1992.7 Im Fall betreffend bestimmter Phosphatfelder in Nauru (Nauru gegen Australien) wies der I G H durch Urteil die prozeßhindernden Einreden, die Australien gegen die Zulässigkeit der Klage Naurus und die Zuständigkeit des Gerichtes erhoben hatte, im wesentlichen zurück (III) und bestimmte die Frist für die Klageerwiderung Australiens.8 Im Fall betreffend die Grenzstreitigkeit (Libyen gegen Tschad) bestimmte der I G H lediglich Fristen für die Schriftsätze, Gegenstellungnahmen und Repliken der Parteien.9 Acht neue Klagen wurden im Berichtszeitraum eingereicht. Eng im Zusammenhang mit dem am 12. November 1991 abgeschlossenen, seinerzeit von GuineaBissau eingeleiteten Verfahren wegen der Gültigkeit des Schiedsspruches vom 31. Juli 198910 steht die wiederum von Guinea-Bissau gegen Senegal am 12. März 1991 eingereichte Klage, mit der die Klägerin den Gerichtshof um die Festlegung der auf einer Karte zu ziehenden Seegrenzen zwischen beiden Staaten ersucht, die sämtliche zu beiden Staaten gehörende Meereszonen umfaßt. Fristen für die Schriftsätze wurden jedoch im Einvernehmen mit den Parteien noch nicht bestimmt, um den Parteien Gelegenheit zu geben, das Urteil des Gerichtshofes wegen der Gültigkeit des Schiedsspruches abzuwarten und zu berücksichtigen und eine Lösung im Verhandlungswege zu erzielen. Am 22. Februar 1991 erhob Portugal Klage gegen Australien wegen bestimmter Aktivitäten bezüglich Ost-Timors. In diesem Fall bestimmte der I G H Fristen für die Klagebegründung und -erwiderung sowie Fristen für die Replik und Duplik. 11 Ferner erhob am 8. Juli 1991 Qatar Klage gegen Bahrain wegen bestehender Streitigkeiten bezüglich der Souveränität über die Hwar-Inseln, souveräner Rechte über die Gebiete von Dibal und Qit'at Jaradah — die von der Klägerin als Sandbänke bezeichnet werden — und die Seegrenzen zwischen beiden Staaten. Bahrain bestritt die Zuständigkeit des Gerichtes, die Qatar auf eine von ihm vorgeschlagene und von Bahrain akzeptierte Formel stützt. Auf einer Sitzung mit dem Gerichtspräsidenten und Vertretern beider Staaten kam man überein, daß vor dem Verfahren in der Hauptsache die Fragen der Zuständigkeit und Zulässigkeit geklärt werden sollten. Dementsprechend setzte der I G H Fristen für die schriftlichen Einlassungen der Parteien zu diesen Fragen und Fristen für die Replik und Duplik. 12 Auf weltweites Interesse stießen die beiden von Libyen gegen die Vereinig7 Anordnungen vom 18. Dezember 1991 und 5. Juni 1992, ICJ Reports 1991, 187 bzw. 1992, 2225. 8

Verfügung vom 29. Juni 1992, ICJ Reports 1992, 345. Verfügungen vom 26. Oktober 1990, ICJ Reports 1990, 149; 26. August 1991, ICJ Reports 1991, 44; und 14. April 1992, ICJ Reports 1992, 219. 10 Siehe unten, unter II. 11 Verfügungen vom 3. Mai 1991, ICJ Reports 1991, 9, und vom 19. Juni 1992, ICJ Reports 1992, 228. 9

12

Verfügungen vom 11. Oktober 1991, ICJ Reports 1991, 50, und vom 26. Juni 1992, ICJ Reports 1992, 237.

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ten Staaten von Amerika und das Vereinigte Königreich eingeleiteten Verfahren und der am gleichen Tag beantragte Erlaß vorsorglicher Maßnahmen, um eine bevorstehende Resolution des Sicherheitsrates zu verhindern, durch die Libyen zur Auslieferung zweier mutmaßlicher für den Lockerbie-Anschlag verantwortlicher Terroristen veranlaßt werden sollte. Der Gerichtshof lehnte den Erlaß vorsorglicher Maßnahmen ab (IV) und setzte Fristen für die Klagebegründung und -erwiderung. 13 Eine weitere Klage wurde am 2. November 1992 von der Islamischen Republik Iran gegen die Vereinigten Staaten von Amerika wegen der Zerstörung dreier staatlicher iranischer Olbohrinseln durch amerikanische Kriegsschiffe in den Jahren 1987 und 1988 erhoben, woraufhin der Gerichtshof Fristen für die Klagebegründung und -erwiderung setzte.14 Schließlich wurde ein weiteres Verfahren anhängig, das sich jedoch im Berichtszeitraum durch Klagerücknahme erledigte: Am 17. Mai 1991 erhob die Republik Finnland Klage gegen das Königreich Dänemark wegen des geplanten Baus einer maximal 65 m hohen Brücke zwischen Seeland und Fünen über den Großen Belt, die die Durchfahrt von Schiffen und montierten Erdölplattformen mit höheren Aufbauten verhindern würde. Zusätzlich beantragte Finnland am 23. Mai 1991 eine einstweilige Anordnung, um Dänemark von weiteren Bauvorbereitungen und -maßnahmen abzuhalten. Nachdem der Gerichtshof öffentliche Anhörungen wegen der einstweiligen Anordnung abgehalten hatte, befand der Gerichtshof am 29. Juli 199115, daß angesichts der gegebenen Umstände der Erlaß einer einstweiligen Anordnung nicht nötig sei und setzte Fristen für die Schriftsätze im Hauptverfahren. 16 Außerdem erklärte er, daß er Verhandlungen zwischen den Parteien mit dem Ziel einer unmittelbaren friedlichen Streitbeilegung begrüßen würde. Nachdem Finnland am 3. September 1992 verkündet hatte, daß der Streit mit Dänemark beigelegt worden sei, wurde der Fall am 10. September 1992 mit Zustimmung Dänemarks von der Liste der beim I G H anhängigen Verfahren genommen. Noch nicht in die Liste der anhängigen Verfahren wurde eine von Ungarn gegen die Tschechische und Slowakische Bundesrepublik am 23. Oktober 1992 eingereichte Klage wegen der geplanten Umleitung der Donau aufgenommen. Ungarn nämlich forderte den Gegner zur Anerkennung der Zuständigkeit des Gerichtshofes auf; gemäß Art. 38 Abs. 2 der Verfahrensordnung des Gerichtshofes wird bis zur Erteilung einer solchen Zustimmung ein Verfahren nicht aufgenommen. Im Berichtszeitraum begann am 6. Februar 1991 die neunjährige Amtsperiode der fünf Richter, die alle drei Jahre von der Generalversammlung und dem Sicher13 14 15 16

Verfügung Verfügung Verfügung Verfügung

vom vom vom vom

19. Juni 1992, ICJ Reports 1992, 231 und 234. 4. Dezember 1992, ICJ Reports 1992, 763. 29. Juli 1991, ICJ Reports 1991, 12. 29. Juli 1991, ICJ Reports 1991, 41.

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Ursula Heinz

heitsrat gemäß Art. 13 des Statuts des I G H gewählt bzw. wiedergewählt werden. Wiedergewählt waren Robert Jennings und G. Guillaume, neue Mitglieder des Gerichtshofes wurden A. Aguilar Mawdsley, C. G. Weeramantry und R. Ranjeva. Der durch den Tod des Richters Elias am 14. August 1991 freigewordene Platz wurde am 5. Dezember 1991 mit Bola A. Ajibola wiederbesetzt. I. Fall betreffend den Land-, Insel- und Seegrenzstreit (El Salvador / Honduras: Nicaragua beigetreten) Urteil vom 11. September 1992, ICJ Reports 1992, 35117 Besetzung der Kammer: Richter Sette-Camara (Brasilien) als Kammerpräsident, Präsident Jennings (Großbritannien) und Vizepräsident Oda (Japan); Ad-hocRichter Valticos (für El Salvador) und Torres Bernärdez (für Honduras). A Am 11. Dezember 1986 reichten El Salvador und Honduras beim Gerichtshof ein zwischen ihnen geschlossenes Sonderabkommen ein, nach dessen Art. 1 die Vertragsparteien ihre in Art. 2 genannten Streitpunkte einer Kammer des Gerichtshofes unterbreiten. Gemäß Art. 2 des Sonderabkommens ersuchen die Parteien diese Kammer 1. die Grenzlinie in den Gebieten oder Abschnitten festzulegen, die nicht in Art. 16 des Allgemeinen Friedensvertrages vom 30. Oktober 1980 aufgeführt sind; 2. über die Rechtslage der Inseln und Seegebiete zu entscheiden. Nachdem die Kammer gebildet war, einem Antrage Nicaraguas auf Streitbeitritt stattgegeben hatte18 und die Parteien einschließlich Nicaraguas, das mit dem Beitritt zum Verfahren nicht Partei geworden war und dessen rechtliches Interesse nur für die Entscheidung über die Rechtslage der Golfgewässer anerkannt worden war, ihre Schriftsätze fristgemäß eingereicht hatten, fand zwischen dem 15. April und 14. Juni 1991 das mündliche Verfahren statt. Die Kammer zitiert die von den Parteien im schriftlichen und mündlichen Verfahren gestellten Anträge und die Stellungnahmen Nicaraguas.19 Danach machten die Parteien für sechs Abschnitte ihrer gemeinsamen Landgrenze einen unter17 Absatzzahlen ohne Quellenangabe beziehen sich auf die ICJ-Reports, in denen die jeweilige Entscheidung veröffentlicht ist. 18

Vgl. dazu Schuppert (Anm. 1), 445-450. I m Hinblick auf ihren Umfang wird hier von der wörtlichen Wiedergabe Abstand genommen. 19

Die Rechtsprechung des Internationalen

Gerichtshofes

409

schiedlichen Grenzverlauf geltend. Was den Inselstreit anbelangt, so beanspruchte El Salvador die Souveränität über sämtliche Inseln im Golf von Fonseca, insbesondere über die Inseln Meanguera und Meanguerita, mit Ausnahme der Insel Zacate Grande und der Farallonen, während Honduras dagegenhielt, daß eine Streitigkeit nur bezüglich der Inseln Meanguera und Meanguerita, die es für sich beansprucht, bestehe. Im Seestreit machte El Salvador geltend, daß die Kammer für eine Grenzziehung nicht zuständig sei, daß die Rechtslage der Seegebiete innerhalb des Golfes von Fonseca dem Rechtsstandpunkt entspreche, den der zentralmerikanische Gerichtshof in seinem Urteil vom 9. März 1917 eingenommen habe, und daß die Rechtslage der Gewässer außerhalb des Golfes derart sei, daß Hoheitsbefugnisse nur Staaten mit direkt an den Pazifik angrenzenden Küsten zustünden, nicht aber Honduras. Honduras hielt die Kammer hingegen für zuständig, innerhalb wie außerhalb der Bucht von Fonseca eine Abgrenzung der Seegebiete vorzunehmen. Dabei bestünden am Golf von Fonseca als einer umschlossenen historischen Bucht aufgrund einer Interessengemeinschaft, die aber kein Kondominium sei, gleiche Rechte der Anrainerstaaten. Die Stellungnahme Nicaraguas ging dahin, daß es bezüglich des Golfes von Fonseca mit Ausnahme seiner Eigenart als historische Bucht kein besonderes Regime gebe. Weder bestehe eine Interessengemeinschaft mit gleichen Rechten der Staaten — ein Konzept, das im Völkerrecht unbekannt sei — noch ein Kondominium. Außerhalb des Golfes habe Honduras keinerlei Rechte. B. Die Kammer gibt zunächst eine Einführung in die Streitigkeit (Abs. 27-39), die aus den drei Elementen Streit über die Landgrenze, Streit über die Rechtslage der Inseln im Golf von Fonseca und Streit über die Rechtslage der Meereszonen innerhalb und außerhalb des Golfes von Fonseca bestehe. Die beiden Parteien wie auch der beigetretene Staat seien mit dem Zusammenbruch des spanischen Reiches in Mittelamerika entstanden; ihre Territorien hätten den Verwaltungseinheiten jenes Reiches entsprechen sollen. Von Anfang an habe Einigkeit bestanden, daß sich die neuen internationalen Grenzen entsprechend der im ehemals spanischen Amerika angewandten uti-possidetis-Doklvm nach den kolonialen Verwaltungsgrenzen richteten. Nach der Unabhängigkeitserklärung Mittelamerikas im Jahre 1821 hätten Honduras und El Salvador — ebenso wie Costa Rica, Guatemala und Nicaragua — zunächst den Vereinigten Staaten von Zentralamerika angehört und seien mit deren Zerfall selbständig geworden. Der Inselstreit zwischen den Parteien gehe auf das Jahr 1854, der Landstreit auf das Jahr 1861 zurück. Grenzzwischenfälle hätten zu Spannungen und schließlich im Jahre 1969 zu einem bewaffneten Konflikt geführt. 1972 hätten sich die Parteien bis auf sechs Abschnitte über den größten Teil ihrer Landgrenze geeinigt. Ein im Jahre 1978 eingeleitetes Schlichtungsverfahren habe 1980 zu einem Allgemeinen Friedensvertrag geführt, in dem

410

Ursula Heinz

die nicht mehr streitigen Grenzabschnitte festgeschrieben worden seien und der die Bildung einer Gemeinsamen Grenzkommission für die Grenzbestimmung der ungeklärten sechs Abschnitte und die Entscheidung der Rechtslage der Inseln und der Seegebiete vorgesehen habe. Ferner habe der Vertrag bestimmt, daß, sofern nicht innerhalb von fünf Jahren ein abschließendes Abkommen erreicht werden sollte, innerhalb weiterer sechs Monate ein Sonderabkommen verhandelt und geschlossen werden sollte, um jegliche Streitigkeit dem Internationalen Gerichtshof vorzulegen. Da die Grenzkommission ihre Aufgabe nicht innerhalb der Fünf-Jahres-Frist habe erfüllen können, hätten die Parteien am 24. Mai 1986 das erwähnte Sonderabkommen geschlossen. Die Kammer befaßt sich, bevor sie auf die sechs umstrittenen Abschnitte der Landgrenze im einzelnen eingeht, zunächst allgemein mit dem Landgrenzstreit (Abs. 40-67). Sie betont zunächst noch einmal, daß man sich einig sei, daß das Grundprinzip für die Bestimmung der Landgrenze die uti-possidetis-Doktrin sei, wobei El Salvador allerdings unter Hinweis auf den Allgemeinen Friedensvertrag behauptet habe, daß daneben „arguments of a human nature" oder „effectivites" heranzuziehen seien. Unter Hinweis auf die Ausführungen im Grenzstreit zwischen Burkina Faso und Mali von 198620 erläutert die Kammer die uti-possidetisw/ns-Doktrin, die hauptsächlich auf die Sicherung der territorialen Grenzen zum Zeitpunkt der Unabhängigkeit abziele und diese Grenzen, wenn es sich dabei um Verwaltungsgrenzen zwischen Einheiten oder Kolonien desselben Souveräns handele, in internationale Grenzen umwandle. Die Bedeutung der uti-possidetis-Doktrin liege zum einen in der Regelung von Gebietsansprüchen durch die Lagebestimmung von Grenzen, zum anderen in der Zurückweisung der Möglichkeit von terra nullius. Das Problem, dieses Prinzip im ehemaligen spanischen Mittelamerika anzuwenden, liege darin, daß es Verwaltungsgrenzen unterschiedlicher Art oder verschiedenen Grades gegeben habe. Unstreitig sei, daß die Parteien die Nachfolge in bestimmte koloniale Verwaltungseinheiten angetreten hätten. Problematisch sei jedoch, die Gebiete und Grenzen der Provinzen, aus denen im Jahre 1821 El Salvador und Honduras hervorgegangen seien, zu identifizieren. Insofern hätten die Parteien auf sog. „ titles " (titulos) über Landzuteilungen der spanischen Krone verwiesen, von denen die Provinzgrenzen hergeleitet werden könnten. Die Kammer analysiert sodann die verschiedenen Arten und Bedeutungen dieser „titles" und kommt zum Schluß, daß „ titles" über Landzuweisungen einer Verwaltungsinstanz an Privatpersonen oder indianische Gemeinschaften nicht die gleiche Bedeutung wie Dekrete der spanischen Krone über die Zuweisung von bestimmten Gebieten an eine bestimmte Verwaltungseinheit hätten. Erstere seien vielmehr „colonial effectivites" vergleichbar, womit gemeint sei, daß das Verhalten der Verwaltungsinstanz als Beweismittel für die effektive Ausübung der Territorialhoheit in der betreffenden Region während der Kolonialzeit dienen könne. 20

ICJ Reports 1986, 544 (566).

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Die Kammer geht ferner davon aus, daß sie die streitigen Grenzabschnitte nach den gleichen Prinzipien und der gleichen Vorgehensweise festlegen solle, wie sie in dem Allgemeinen Friedensvertrag bei der Grenzfestlegung der nicht mehr streitigen sieben Abschnitte angewandt worden sei. Daraus folge, daß bestimmte topographische Gegebenheiten berücksichtigt werden könnten, jedoch nicht auf der Basis eines Konzeptes „natürlicher Grenzen", sondern in Anwendung der uti-possidetis-Doktrin, wobei man sich deshalb auf natürliche Gegebenheiten stützen könne, weil zu vermuten sei, daß diese auch für die Grenzen der Provinzen während der Kolonialzeit maßgeblich gewesen seien. Nach Art. 5 des Sonderabkommens solle die Kammer die Regeln des Völkerrechts einschließlich — sofern angebracht — der Bestimmungen des Friedensvertrages anwenden. Daraus schließt die Kammer, daß für sie auch solche Vertragsbestimmungen gültig seien, die speziell an die gemeinsame Grenzkommission gerichtet gewesen seien. Nach Art. 26 des Vertrages habe die Kommission als Grundlage für die Grenzfestlegung weltliche oder kirchliche Urkunden der spanischen Hoheitsmacht während der Kolonialzeit heranziehen sollen, die die Jurisdiktionen oder Grenzen von Territorien und Siedlungen aufzeigten, und sich ferner auf andere Nachweise rechtlicher, historischer, menschlicher oder sonstiger Art stützen sollen, die von den Parteien im Einklang mit dem Völkerrecht vorgebracht würden. El Salvador habe unter Hinweis auf diese Vorschrift behauptet, die Kammer müsse die Grenzen zwischen indianischen Siedlungen, die sog. „formal title-deeds to commons" erhalten hätten, und nicht zwischen den ehemaligen spanischen Provinzen ziehen. Mit dieser Vorschrift hätten, so die Kammer, die Parteien jedoch nicht eine besondere Methode für die Bestimmung der uti-possidetis-Grenzen auf der Basis von Grenzen zwischen indianischen Siedlungsgruppen vereinbart. Nicht diese, sondern die Grenzen zwischen kolonialen Verwaltungseinheiten seien internationale Grenzen geworden; auch diese „titles", ebenso wie „titles" einer Verwaltungsinstanz an Privatpersonen, könnten lediglich als Beweismittel, wenn auch nicht zwingende, für die kolonialen Verwaltungsgrenzen dienen, wo es an Urkunden mit Gesetzeskraft, die die Provinzgrenzen definierten, fehle. Dabei sei jedoch davon auszugehen, daß eine die Verwaltungsgrenzen überschreitende Vergabe von „titles" nicht beabsichtigt gewesen sei. Auch „titles" aus der nachkolonialen Zeit, sog. republikanische Titel, könnten als Beweismittel für die Lage der Grenzen von 1821 dienen. Die Kammer befaßt sich sodann mit den von El Salvador unter Hinweis auf Art. 26 des Allgemeinen Friedensvertrages vorgebrachten „arguments of a human nature" oder auf Effektivität gestützten Gründen, die auch Honduras teilweise zu seinen Gunsten anführt. Dabei hatte sich El Salvador auf menschliche Sachzwänge berufen, die mit seiner Bevölkerungsexpansion und dem Landbedarf einerseits und andererseits der spärlichen Bevölkerungsdichte in Honduras und dessen Reichtum an höherwertigen natürlichen Ressourcen zu tun hätten. Weder Billigkeits- noch wirtschaftliche Erwägungen können jedoch nach Meinung der Kammer rechtliche Wirkungen bei der Anwendung des uti-possidetis-Prinzips erzeu-

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gen. Im Zusammenhang mit Effektivitätsgesichtspunkten hatte El Salvador sich auf die angebliche Besetzung von umstrittenen Gebieten durch Salvadorianer, ihr dortiges Landeigentum, die Wahrnehmung öffentlicher Aufgaben und Ausübung von staatlicher Gewalt durch die Regierung El Salvadors in diesen Gebieten berufen und auf seinen sich aus der Praxis der effektiven Verwaltungskontrolle ergebenden Besitzwillen verwiesen. Honduras war hingegen der Ansicht gewesen, das Konzept der effektiven Kontrolle sei nur auf die Zeit vor der Unabhängigkeit anwendbar. Auch insoweit verweist die Kammer wieder auf die uti-possidetisDoktrin. Effektivitätskriterien der nachkolonialen Epoche könnten lediglich als Beweismittel für die zum Zeitpunkt der Unabhängigkeit entstandenen Grenzen dienen. Im Zusammenhang mit der Effektivität hatte sich El Salvador außerdem auf seine durch Gewaltakte verursachten Schwierigkeiten bei der Zusammenstellung von Beweismaterial berufen. Die Kammer stellt jedoch fest, daß nicht beigebrachtes Beweismaterial nicht zugunsten oder zu Lasten einer Partei verwertet werden könne. Einen Antrag El Salvadors auf Beweisaufnahme vor Ort gemäß Art. 66 der Verfahrensordnung des Gerichtshofes lehnte die Kammer ab. Schließlich befaßt sich die Kammer mit dem maßgeblichen Zeitpunkt für die Grenzentstehung. Dabei kommt sie zum Ergebnis, daß nicht ausschließlich der Zeitpunkt der Unabhängigkeit entsprechend der uti-possidetis-Doktrin ausschlaggebend sei. Maßgeblicher Zeitpunkt könne auch eine spätere gerichtliche Entscheidung oder ein Grenzvertrag sein. Wenn ein Schiedsspruch auf der Basis der utipossidetis-Doktrin über eine Grenze entschieden habe, sei dieser Spruch maßgeblich und könne nicht mehr rechtlich hinterfragt werden. In ähnlicher Weise sei das Jahr 1980, der Zeitpunkt des Abschlusses des Allgemeinen Friedensvertrages, für die dort fixierten Grenzabschnitte maßgeblich. Genauso könne der maßgebliche Zeitpunkt auf andere Weise, z. B. durch Duldung oder Anerkennung, entstehen, wenn es genügend Beweis dafür gebe, daß die Parteien sich auf eine Änderung oder Interpretation der uti-possidetis-Lage geeinigt hätten. Die Kammer wendet sodann bei der Bestimmung der Landgrenzen in den sechs umstrittenen Abschnitten (Abs. 68-322) diese Prinzipien und Methoden an und entscheidet über fünf Abschnitte einstimmig und den restlichen Abschnitt mit vier Stimmen gegen eine21 über einen Grenzverlauf, mit dem überwiegend die Ansprüche El Salvadors negiert werden. Sodann prüft die Kammer die Rechtslage der Inseln (Abs. 323 - 368) und befaßt sich zunächst mit dem Umfang ihrer Zuständigkeiten nach Art. 2 Abs. 2 des Sonderabkommens, demzufolge sie über die Rechtslage der Inseln zu entscheiden habe. Diese Bestimmung sei so auszulegen, daß der Kammer bezüglich aller Inseln im Golf von Fonseca Zuständigkeit übertragen worden sei. Bei der Ausübung der Zuständigkeit sei sie zu einer gerichtlichen Entscheidung jedoch nur für solche 2

Ad-hoc-Richter

.

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Inseln berufen, die zwischen den Parteien umstritten seien. Insoweit entscheidet die Kammer einstimmig. Zur Frage, welche Inseln umstritten seien, habe Honduras zwar vorgebracht, dies sei nur für Meanguera und Meanguerita der Fall. El Salvador habe jedoch Ansprüche auch auf El Tigre geltend gemacht, so daß über alle drei Inseln Streit bestehe. Honduras hatte außerdem vorgebracht, daß die Zuständigkeit der Kammer sich nur auf die zum Zeitpunkt des Abschlusses des Friedensvertrages von 1980, der eine dem Art. 2 Abs. 2 entsprechende Formulierung enthalte, umstrittenen Inseln beziehe; El Salvador jedoch habe erst 1985 El Tigre für sich beansprucht. Die Kammer ist jedoch der Ansicht, daß allein die Frage, ob über eine Insel Streit bestehe, entscheidend sei. Ihre Zuständigkeit umfasse — wie die Zuständigkeit der Gemeinsamen Grenzkommission nach dem Friedensvertrag — alle Inseln. Auch das Argument Honduras', der Anspruch El Salvadors auf El Tigre entbehre jeglicher rechtlicher Grundlage, so daß in Wahrheit insoweit kein Streit bestehe, läßt die Kammer nicht gelten: wenn die Kammer feststellen solle, daß kein Streit bestehe, müsse sie zuvor befinden, daß El Salvadors Anspruch völlig unbegründet sei, was nichts anderes als eine Streitentscheidung sei. Mit vier Stimmen gegen eine22 entscheidet die Kammer, daß zu den im Streit befindlichen Inseln El Tigre gehört, einstimmig, daß über Meanguera und Meanguerita gestritten wird. Sodann geht die Kammer auf die für die Zugehörigkeit der Inseln anwendbaren Rechtssätze ein. Honduras hatte vorgetragen, daß ausschließlich die uti-possidetisDoktrin zum Tragen komme, während El Salvador auch die Anwendung des neueren Rechts über die tatsächliche Besitzausübung und effektive Ausübung von Staatsgewalt für gerechtfertigt gehalten hatte. Auch für die Inseln ist nach Ansicht der Kammer Ausgangspunkt die uti-possidetis-Doktrin. Da es unter diesem Prinzip terra nullius nicht gebe, habe Souveränität nicht im Wege der Okkupation, sondern nur im Wege der Nachfolge der neuen Staaten in die ehemaligen Verwaltungseinheiten erlangt werden können. Bei der Frage, zu welchen Verwaltungseinheiten die umstrittenen Inseln gehört hätten, seien nicht nur Urkunden und Schriftstücke aus der Kolonialzeit, sondern auch koloniale Effektivität zu berücksichtigen. Bei den Inseln seien die Schriftstücke unklar und widersprüchlich; möglicherweise sei die Zugehörigkeit einiger Gebiete nach spanischem Kolonialrecht offengeblieben. Dann sei das Verhalten der neuen Staaten während der Zeit unmittelbar nach 1821 zu berücksichtigen, um daraus Rückschlüsse auf die Lage im Jahre 1821 zu ziehen. Die Kammer untersucht sodann die von den Parteien vorgelegten Beweismittel zur Begründung der Zugehörigkeit der Inseln zur einen oder anderen Verwaltungseinheit, für die sie die Nachfolge angetreten hätten, kommt jedoch zum Ergebnis, daß das Material zu lückenhaft und mehrdeutig sei, als daß daraus eine 22

Ad-hoc-Richter Bernärdez.

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sichere Schlußfolgerung gezogen werden könne. Es sei daher das nachkoloniale Verhalten der Parteien als Hilfsmittel für den Beweis der Situation des Jahres 1821 heranzuziehen. Besitz, gestützt durch Ausübung von Souveränität, könne einen auf das uti-possidetis-Prinzip zurückzuführenden Titel bestätigen. Was dabei El Tigre anbelange, so sei diese Insel seit 1849 im tatsächlichen Besitz von Honduras gewesen, so daß anzunehmen sei, daß Honduras von Spanien die Nachfolge in diese Inseln angetreten habe, zumindest jedoch, daß eine solche Nachfolge nicht im Widerspruch zu irgendeinem bekannten kolonialen Titel stehe. Einstimmig spricht die Kammer daher diese Insel Honduras zu. Bezüglich der Inseln Meanguera und Meanguerita kommt die Kammer dagegen zum Schluß, daß insoweit El Salvador die Nachfolge in die spanische Souveränität angetreten habe* da es nachweislich auf Meanguera seit dem Ausgang des 19. Jahrhunderts präsent gewesen sei, ohne daß Honduras protestiert habe, und Meanguerita, das eine kleine unbewohnte Insel in unmittelbarer Nachbarschaft zu Meanguera sei, unstreitig mit dieser Insel eine Einheit bilde. Die Entscheidung der Kammer über die Zugehörigkeit Meangueras erging einstimmig, die über die Zugehörigkeit Meangueritas mit vier Stimmen gegen eine.23 Auch im Rahmen der Seestreitigkeit befaßt sich der Gerichtshof zunächst mit seiner Zuständigkeit. Ihm stellte sich die Frage, ob er aufgrund des Art. 2 Abs. 2 des Sonderabkommens, nach dem er u. a. über die Rechtslage der Seegebiete zu entscheiden ersucht ist, eine Meeresgrenzbestimmung vorzunehmen habe. El Salvador hatte gemeint, daß die Kammer insoweit nicht zuständig sei, während Honduras auf eine Grenzziehung innerhalb und außerhalb des Golfes von Fonseca gedrängt hatte. Dabei hatte El Salvador den Standpunkt vertreten, daß die Gewässer des Golfes unter dem Kondominium der drei Küstenstaaten stünden und daher eine Grenzziehung unzulässig sei. Honduras war hingegen der Ansicht gewesen, daß am Golf nur eine Interessengemeinschaft bestehe, die einer richterlichen Grenzziehung bedürfe. Unter Anwendung von Art. 31 der Wiener Vertragsrechtskonvention interpretiert die Kammer zunächst die einschlägige Bestimmung des Sonderabkommens nach ihrem Wortlaut. Daraus könne eine Absicht der Parteien in Richtung auf eine Grenzziehung nicht hergeleitet werden. Wenn man die Bestimmung im Zusammenhang lese, sei zu bemerken, daß im Sonderabkommen für die Landstreitigkeit formuliert sei, daß die Grenzlinie zu bestimmen sei, während bezüglich der Inseln und Seegebiete nur von einer Bestimmung der Rechtslage die Rede sei. Hinzu komme, daß Honduras bezüglich der Inseln selbst anerkenne, daß es hierbei nicht um eine Grenzziehung gehe, sondern um eine Zuerkennung von Souveränität über abgetrenntes Territorium; es sei daher schwer vorstellbar, daß der Wortlaut „die Rechtslage zu bestimmen", der sowohl für die Inseln wie für die Seegebiete verwendet worden sei, jeweils etwas Unterschiedliches habe ausdrücken sollen. Honduras hatte ferner vorgebracht, daß nach dem 23

Ad-hoc-Richter Bernärdez.

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Sinn und Zweck des Sonderabkommens ein langdauernder Streit beendet werden solle, was mit einer bloßen Klärung der Rechtslage nicht erreicht werde. Die Kammer hält dem jedoch entgegen, daß sie sich bei der Interpretation an den im Text erklärten Willen halten müsse; Honduras habe jedoch auf die Umstände des Vertragsschlusses verwiesen, die nur ergänzend herangezogen werden könnten. Auf die Behauptung Honduras', die neutrale Fassung des Begriffs „Rechtslage" sei mit Rücksicht auf die Verfassung El Salvadors, das stets den KondominiumStandpunkt vertreten habe, gewählt worden, hält die Kammer nicht für stichhaltig. Daraus lasse sich vielmehr umgekehrt schließen, daß zwischen den Parteien Einvernehmen über ein Mandat an die Kammer, die Seegrenze zu bestimmen, gerade nicht erlangt worden sei; die Zuständigkeit der Kammer aber hänge vom einvernehmlichen Mandat der Parteien ab. Auch die Praxis der Parteien nach Abschluß des Vertrages könne für die Interpretation des Sonderabkommens, dessen Wortlaut eindeutig sei, nicht herangezogen werden. Mit vier Stimmen gegen eine24 entscheidet daher die Kammer, daß ihr durch Art. 2 Abs. 2 des Sonderabkommens von 1986 nicht das Mandat zu irgendeiner Grenzbestimmung in den Gewässern innerhalb oder außerhalb des Golfes übertragen worden ist. Die Kammer befaßt sich sodann mit der Rechtslage der Golf-Gewässer, die sich entsprechend dem Sonderabkommen nach den zwischen den Parteien anwendbaren Völkerrechtsnormen und, wo angebracht, nach den Bestimmungen des Friedensvertrages richten soll. Sie beschreibt die Lage der inselreichen Bucht, die sich zum Pazifik hin in südwestlicher Richtung öffnet und die Besonderheit aufweist, daß an ihre Küste drei Staaten grenzen, El Salvador an die nordwestliche, Nicaragua an die südöstliche und dazwischen Honduras an die innere Küste. Alle drei Küsten könnten mit tiefgehenden Schiffen vom knapp 20 Seemeilen breiten Eingang zwischen Punta Amapala und Punta Cosigüina her nur durch zwei Eingangszufahrten angefahren werden. Nach Art. 4 des Genfer Ubereinkommens über das Küstenmeer und die Anschlußzone und Art. 10 des Seerechtsübereinkommens von 1982 — die zwar für alle drei Staaten nicht in Kraft seien, aber Gewohnheitsrecht widerspiegelten — könnte heute die Bucht von Fonseca durch eine gerade Linie an ihrem Eingang abgeschlossen und als inneres Gewässer behandelt werden, wenn nur ein Staat an sie grenzte. Die Parteien, der beigetretene Staat und Kommentatoren im allgemeinen seien sich einig, daß der Golf eine historische Bucht und seine Gewässer dementsprechend historische Gewässer seien. Solche Gewässer seien im Fischereifall zwischen Großbritannien und Norwegen definiert worden „als Gewässer, die als Binnengewässer behandelt werden, diese Eigenschaft aber nur aufgrund eines historischen Titels haben";25 dies sei im Lichte der Ausführungen im Festlandsockelstreit zwischen Tunesien und Libyen so zu verstehen, daß das allgemeine Völkerrecht kein einheitliches Regime 24

Ad-hoc-Richter Bernärdez.

25

ICJ Reports 1951, 130.

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für „historische Gewässer" oder „historische Buchten" vorsehe, sondern nur ein besonderes Regime für jeden konkreten, als solchen anerkannten Fall von historischen Gewässern oder Buchten.26 Es sei daher erforderlich, die besondere Geschichte des Golfes zu untersuchen und aufzudecken, wie sein Regime danach beschaffen sei; dies sei um so wichtiger, als es sich um eine Bucht mit mehreren Staaten handele, für die es im Gegensatz zu einer Bucht, an die nur ein Staat angrenze, keine anerkannten und kodifizierten allgemeinen Regeln gebe. Die Kammer befaßt sich daher mit der Geschichte des Golfes, der von seiner Entdeckung im Jahre 1522 bis zum Jahre 1821 die Bucht eines einzigen Staates, nämlich der spanischen Krone, gewesen sei. Die heutigen Küstenstaaten hätten ihre Rechte am Golf folglich wie ihre Rechte am Land durch Nachfolge erworben. Da die uti-possidetis-Doktrin auf diese Gewässer ebenso wie auf das Land anzuwenden sei, sei die Rechtslage der Golfgewässer im Jahre 1821 zu untersuchen. Mit dieser Frage habe sich bereits der Zentralamerikanische Gerichtshof im Streit zwischen El Salvador und Nicaragua über den Golf von Fonseca in seinem Urteil vom 9. März 1917 befaßt, was als wichtiger Teil der Geschichte des Golfes zu berücksichtigen sei. Der Gerichtshof sei damals zum Ergebnis gekommen, daß durch die Praxis der drei Küstenstaaten eine gegenseitig anerkannte Küstengewässerzone von drei Meilen eingerichtet worden sei, in der jeder ausschließliche Jurisdiktion und Souveränität ausgeübt habe, wenn auch unter Gewährung des Rechtes der friedlichen Durchfahrt auf gegenseitiger Basis; alle drei Staaten hätten eine weitere Gewässerzone mit einer Breite von neun Meilen für Inspektionsrechte anerkannt; außerdem existiere ein Abkommen von 1900 zwischen Honduras und Nicaragua über ein Stück Seegrenze zwischen beiden Staaten, die jedoch kurz vor den Gewässern der Hauptzufahrt in die Bucht aufhöre. Ferner habe der Gerichtshof festgestellt, daß der Golf eine historische Bucht mit den Charakteristika eines umschlossenen Meeres sei, womit er anscheinend gemeint habe, daß er nicht Teil der Hohen See sei und seine Gewässer nicht internationale Gewässer seien. Die Kammer führt sodann aus, daß der Gerichtshof mit Küstengewässerzone nicht das Küstenmeer nach heutigem Verständnis gemeint habe, sondern das, was man heute als innere Gewässer bezeichne. Dem widerspreche auch nicht die Gewährung friedlicher Durchfahrt; denn der übliche Status einer Bucht als inneres Gewässer passe nicht unbedingt auf Buchten mit drei Anrainerstaaten. Außerdem müsse bei einer solchen Bucht die Schiffahrt Zugang zu jedem der Küstenstaaten durch die Hauptschiffahrtswege zwischen Bucht und Ozean haben; friedliche Durchfahrt sei nicht unvereinbar mit einem Regime historischer Gewässer, wie man heute am Beispiel der inneren Gewässer von Archipelstaaten und der inneren Gewässer, die durch gerade Basislinien zu solchen würden, sehen könne. Außerdem müsse aus praktischen Erwägungen eine friedliche Durchfahrt für die Gewässer außerhalb der in ausschließlicher Jurisdiktion stehenden Küstengewässer auch deshalb anerkannt 26

ICJ Reports 1982, 74.

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werden, weil diese notwendigerweise durchfahren werden müßten, um die Küstengewässerzone, in der friedliche Durchfahrt gewährt werde, zu erreichen. Die damalige Feststellung des Gerichtshofes, daß der Golf von Fonseca eine historische Bucht mit der Eigenschaft eines umschlossenen Meeres sei, sei auch heute von den betroffenen Staaten und der Allgemeinheit anerkannt; problema> tisch sei die genaue Art der Souveränität der drei Staaten in diesen historischen 4 Gewässern. Eine historische Bucht, die als ein von einem Staat umschlossenes Meer anzusehen sei, sei als inneres Gewässer dieses Staates zu betrachten. Ein von drei Staaten umschlossenes Meer erfordere jedoch Zugangsrechte für alle drei Küstenstaaten; herrschende, wenn auch nicht unwidersprochene Meinung sei zur Zeit des Urteils des Gerichtshofes im Jahre 1917 gewesen, daß in einer solchen Bucht, wenn sie nicht ein historisches Gewässer sei, das Küstenmeer dem Küstenverlauf folge und die übrigen Gewässer der Bucht Hohe See seien. Diese Lösung sei jedoch im Falle des Golfes von Fonseca nicht möglich, weil sie eine historische Bucht und damit ein geschlossenes Meer sei. Der Gerichtshof sei daher damals zum Ergebnis gekommen, daß der Golf von Fonseca — abgesehen von dem drei Meilen breiten Küstengewässergürtel — im gemeinsamen Eigentum (Kondominium) aller drei ihn umgebenden Staaten stehe. El Salvador habe dem beigepflichtet, während Nicaragua dem Kondominium-Konzept stets widersprochen habe — ebenso wie Honduras, das die Richtigkeit dieses Urteils angezweifelt habe, sich außerdem darauf berufen habe, daß es nicht Streitpartei gewesen sei, und vorgetragen habe, daß Kondominien nur durch Abkommen geschaffen werden könnten. Letzterem hält die Kammer jedoch entgegen, daß zwar normalerweise Kondominien durch Verträge entstünden, daß der Zentralamerikanische Gerichtshof jedoch die gemeinsame Souveränität aus der Staatennachfolge hergeleitet habe. Wenn ein einheitliches und ungeteiltes Seegebiet auf mehrere neue Staaten übergehe, spreche nichts gegen die Annahme einer gemeinsamen Souveränität. Allerdings müsse die Kammer ihre eigene Entscheidung über die Rechtslage der Golfgewässer treffen, da das damalige Urteil nur für die Streitparteien verbindlich sein könne, im vorliegenden Falle also nur für El Salvador; denn Honduras sei damals nicht Partei gewesen und Nicaragua sei in diesem Verfahren nicht Partei. Die Kammer schließt sich im Ergebnis jedoch der Ansicht des Gerichtshofes von 1917 an und stellt fest, daß die Gewässer des Golfes außerhalb des 3-MeilenGürtels entlang der Golfküste historische Gewässer seien und unter gemeinsamer Souveränität der drei Küstenstaaten stünden. Im Gegensatz zum Land habe es im Golf keine kolonialen Verwaltungsgrenzen und keinen Versuch, die Gewässer nach der uti-possidetis-Doktrin aufzuteilen, gegeben, so daß eine gemeinsame Nachfolge aller drei Staaten in das Seegebiet die logische Konsequenz der utipossidetis-Doktrin sei. Als normalen geographischen Abschluß zum Ozean hin zieht die Kammer die Grenzlinie für den Golf zwischen Punta Amalpa und Punta Cosigüina, die zugleich die Basislinie für das außerhalb des Golfes im Pazifik 27 GYIL 36

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geltende Regime sei. Aus historischen und praktischen Erwägungen heraus gelte innerhalb des Golfes das Recht der friedlichen Durchfahrt, womit der Golf jedoch nicht Küstenmeer im heutigen Sinne, sondern, wenn überhaupt, inneres Gewässer mit einem besonderen Regime sei. Von der gemeinsamen Souveränität seien ausgenommen der drei Meilen breite Küstenmeerstreifen, der unter der ausschließlichen Souveränität des jeweiligen Küstenstaates stehe, und die im Jahre 1900 erfolgte Begrenzung zwischen Honduras und Nicaragua, die El Salvador anerkannt habe. Diese Entscheidung der Kammer wurde mit vier Stimmen gegen eine27 getroffen. Schließlich befaßt sich die Kammer mit dem Rechtsregime der Gewässer jenseits der den Golf zum Pazifik hin abschließenden Linie, genau genommen mit dem Regime jenseits des mittleren Abschnittes dieser Abschlußlinie unter Abzug von jeweils drei Meilen ausgehend von Punta Amalpa und Punta Cosigüina. Aus dem Umstand, daß die Gewässer innerhalb des Golfes an dieser Abschlußlinie unter der gemeinsamen Souveränität der drei Küstenstaaten stünden und dort kein Küstenmeer im heutigen Sinne vorhanden sei, folge, daß diese Linie Basislinie für das Küstenmeer sei und alle drei Staaten von dieser Linie ausgehend Küstenmeer, Festlandsockel und Ausschließliche Wirtschaftszone beanspruchen könnten. Auch diese Entscheidung der Kammer erging mit vier Stimmen gegen^eine.28 Abschließend befaßt sich die Kammer mit der Erage, welche Wirkung ihr Urteil für das dem Streit beigetretene Nicaragua hat. Nicaragua habe in seinem Antrag auf Erlaubnis zum Streitbeitritt zwar erklärt, daß es beabsichtige, sich der bindenden Kraft der Entscheidung zu unterwerfen, in seinem schriftlichen Vorbringen nach Zulassung zum Streitbeitritt als Nichtpartei jedoch zum Ausdruck gebracht, daß es sich, wenn es nicht Partei im Verfahren sei, auch nicht für verpflichtet halte, das Urteil für sich als verbindlich zu behandeln. Diese Ansicht bestätigt die Kammer. Daran ändere auch die einseitige Unterwerfungserklärung Nicaraguas in seinem Antrag auf Streitbeitritt nichts; für einen beigetretenen Staat, der Partei werde, wirke nämlich die verbindliche Kraft eines Urteils auch in der Richtung, daß er den anderen Parteien die verbindliche Kraft des Urteils entgegenhalten könne. Daher sei, um als Streitbeitretender Prozeßpartei zu werden, eine Zustimmung der anderen Parteien erforderlich, die im vorliegenden Falle jedoch nicht erteilt worden sei. C. Vizepräsident Oda fügte dem Urteil eine Erklärung bei. Die Ad-hoc-Richter Valticos und Torres Bernärdez gaben individuelle Meinungen ab. Außerdem fügte Oda eine abweichende Meinung bei. 27

Vizepräsident Oda.

28

Vizepräsident Oda.

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In seiner Erklärung legt Oda dar, daß er Nicaragua sehr wohl als durch das Urteil gebunden ansieht, und verweist insoweit auf seine individuellen bzw. abweichenden Meinungen zu den Urteilen über die Erlaubnis zum Streitbeitritt in den Festlandsockelfällen Tunesien / Libyen 29 und Libyen / Malta 30 . Valticos äußert sich vornehmlich zur Entscheidungsfindung im Streit um die Landgrenze und meint, daß den Titelzuweisungen an indianische Gemeinschaften und dem Prinzip der Effektivität nicht immer die gebührende Bedeutung zuerkannt worden sei; in einigen Abschnitten hätten seiner Auffassung nach die Grenzen zugunsten El Salvadords gezogen werden müssen. Torres Bernärdez erläutert vor allem die Gründe für seine Gegenstimme bei der Entscheidung über die Zugehörigkeit der Insel Meanguerita und die Interpretation von Art. 2 Abs. 2 des Sonderabkommens durch die Kammer. Er meint, die Insel El Tigre sei nicht im Streit gewesen, so daß die Kammer über sie keine Entscheidung habe treffen dürfen. In bezug auf Meanguerita ist er der Ansicht, daß diese Insel wie auch Meanguera im Jahre 1821 zu Honduras gehört habe, im Verlaufe der Zeit jedoch sei Meanguera kraft des Effektivitätsprinzips auf El Salvador übergegangen, was aber nicht für Meanguerita gelte, so daß diese Insel nach dem uti-possidetis-Prinzip weiterhin zu Honduras gehöre. Die Kammer habe, unabhängig von der ihr von den Parteien übertragenen Zuständigkeit, eine Grenzbestimmung in den Seegebieten schon deswegen nicht vornehmen können, weil dort auch Nicaragua Rechte habe, das aber nicht Partei sei. Die Interpretation der einschlägigen Vorschrift des Sonderabkommens und eine Entscheidung über den Umfang ihrer Zuständigkeit sei daher überflüssig gewesen. Davon abgesehen meint er, daß nach Art. 2 Abs. 2 des Sonderabkommens die Kammer eine Grenzziehungskompetenz besessen habe. Die abweichende Meinung Odas bezieht sich auf die Entscheidungsfindung im Seestreit. Daß im Golf von Fonseca ein drei Meilen breiter Küstengewässerstreifen unter der ausschließlichen Souveränität der jeweiligen Küstenstaaten und die Gewässer jenseits davon unter gemeinsamer Souveränität der Küstenstaaten stehe, sei mit dem internationalen Seerecht unvereinbar. Die Golfgewässer bestünden vielmehr aus der Summe der Küstenmeere jedes Küstenstaates. Grundsätzlich seien die an Küsten angrenzenden Gewässer Küstenmeer; für „Buchten", die bestimmte geographische Besonderheiten aufwiesen, gelte das besondere Buchtenregime, demzufolge sie als innere Gewässer anzusehen seien. Für das Konzept der „historischen Buchten", das erst gegen Ende des letzten Jahrhunderts parallel zum Konzept der „Bucht" entstanden sei, gelte nicht ein vom normalen Buchtenregime abweichendes Regime eigener Art; vielmehr seien solche Buchten historische Buchten, die nicht die für das Buchtenregime erforderlichen geographischen Besonderheiten aufwiesen, aber aus historischen Gründen denselben Rechtsstatus 29 30

2*

ICJ Reports 1981, 22. ICJ Reports 1984, 90.

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wie Buchten erhielten. An Küsten angrenzende Gewässer seien nach geltendem Seerecht entweder Küstenmeer oder inneres Gewässer, eine andere Kategorie gebe es nicht — abgesehen von dem neu entstehenden Regime der Archipelgewässer, das hier aber nicht zum Tragen komme. Sowohl im Urteil des Zentralamerikanischen Gerichtshofes wie in diesem Urteil sei das Konzept der „historischen Bucht" falsch angewendet worden; denn in beiden Fällen sei man davon ausgegangen, daß die Bucht vor 1821 oder 1839 nicht nur einheitlich und ungeteilt, sondern vollständig unter der Gebietshoheit eines einzigen Uferstaates gestanden habe, obwohl es keinen Grund für die Annahme gebe, daß irgendeine Kontrolle über die Gewässer jenseits der herkömmlich anerkannten Kanonenschußweite ausgeübt worden sei. Damals habe es außerdem das Konzept einer Bucht mit bestimmten geographischen Gegebenheiten und einem besonderen anwendbaren Recht überhaupt noch nicht gegeben. Unabhängig davon sei nicht einzusehen, warum nicht die Nachfolgestaaten der spanischen Krone bzw. der Vereinigten Staaten von Zentralamerika ebenso wie über das Landterritorium Hoheitsgewalt über die entsprechenden Gewässer erhalten hätten, zumal eine ausschließliche Souveränität für den Küstengewässerstreifen anerkannt worden sei. Das Regime dieses Küstengewässerstreifens sei im Urteil der Kammer ebenfalls unklar geblieben. Die Kammer habe sich ferner hinsichtlich des Golfes auf das Konzept der „historischen Gewässer" gestützt, wobei schon nicht klar sei, ob damit der gesamte Golf oder nur der winzige mittlere Teil des Golfes jenseits dieses Küstengewässerstreifens gemeint sei. Vor allem aber habe seiner Meinung nach die Kammer dieses Konzept mißverstanden. Es sei ein durch das neue Seerecht mit dem System der geraden Basislinien, Buchten und Archipelgewässer überholtes Konzept, das ehemals zur Rechtfertigung bestimmter Meeresgebiete als Küstenmeer oder inneres Gewässer gedient habe, niemals aber eine eigenständige Institution gewesen sei. In Wahrheit hätten die drei Küstenstaaten sich mit der Beanspruchung von Rechten in ihren Küstengewässern dem im letzten Jahrhundert neu entstehenden Konzept des Küstenmeeres entsprechend verhalten, was auch für die Beanspruchung von Inspektionsrechten jenseits dieser Zone, die seit dem ersten Weltkrieg mit dem Regime der Anschlußzone anerkannt sei, zutreffe. Auch hätten sie durch ihr Verhalten nicht gezeigt, daß sie dem damals geltenden Konzept der „offenen See" jenseits der Küstengewässer im Golf ablehnend gegenübergestanden hätten. Außerdem demonstriere die 1900 gezogene Grenzlinie, daß sie die Golfgewässer für teilbar gehalten hätten. Nachdem die lateinamerikanischen Staaten in der Nachkriegsperiode ein 12 Seemeilen breites Küstenmeer beansprucht hätten und unter dem neuen Seerecht ein solches Regime anerkannt sei, bestehe der gesamte Golf aus den Küstenmeerzonen der drei Anrainerstaaten. Die Kammer sei zwar nicht in der Lage gewesen, die drei Küstenmeere voneinander abzugrenzen; insoweit verweise er jedoch auf Art. 15 des Seerechtsübereinkommens von 1982, demzufolge in erster Linie die Äquidistanzmethode zum Tragen komme. Was Honduras' — mit seiner von den Golfküsten El Salvadors und Nicaraguas eingeschlossenen

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Golfküste — Rechte innerhalb und außerhalb des Golfes anbelange, so habe es keinerlei Ansprüche auf Gebiete jenseits des Schnittpunktes der drei Küstenmeere. Die Kammer habe mit ihrer Entscheidung anscheinend das Recht der friedlichen Durchfahrt für Honduras sichern wollen, das aber jeder Staat in fremden Küstenmeeren ohnehin besitze. Honduras auch im Pazifik Festlandsockelrechte und Rechte auf eine Ausschließliche Wirtschaftszone zuzubilligen, sei mit der geographischen Realität unvereinbar. II. Fall betreffend den Schiedsspruch vom 31. Juli 1989 (Guinea-Bissau gegen Senegal) Urteil vom 12. November 1991, ICJ Reports 1991, 53 Besetzung des Gerichtshofes: Präsident Jennings (Großbritannien); Vizepräsident Oda (Japan); Richter Lachs (Polen), Ago (Italien), Schwebel (USA), Ni (China), Evensen (Norwegen), Tarassov (UdSSR), Guillaume (Frankreich), Shabuddeen (Guyana), Aguilar Mawdsley (Venezuela), Weeramantry (Sri Lanka), Ranjeva (Madagaskar); Ad-hoc-Richter Thierry (für Guinea-Bissau), Mbaye (für Sene-

gal). A. Am 23. August 1989 erhob die Republik Guinea-Bissau Klage gegen die Republik Senegal wegen eines Streits über das Bestehen und die Gültigkeit des Schiedsspruches, den ein Schiedsgericht am 31. Juli 1989 gefällt hatte, das aufgrund eines zwischen beiden Staaten am 12. März 1985 geschlossenen Schiedsabkommens gebildet worden war. Die Zuständigkeit des Gerichtshofes wurde von der Klägerin auf die Unterwerfungserklärungen beider Staaten gemäß Art. 36 Abs. 2 IGHStatut gestützt. Den am 18. Januar 1990 von Guinea-Bissau außerdem gestellten Antrag auf Erlaß vorsorglicher Maßnahmen lehnte der Gerichtshof durch Verfügung vom 2. März 1990 ab.31 Nachdem die Parteien innerhalb der festgesetzten Fristen ihre Klagebegründung und Klageerwiderung eingereicht hatten, eröffnete der Gerichtshof das mündliche Verfahren. Am 5. Februar 1991 endete die Amtszeit des damals zum Gerichtshof gehörenden senegalesischen Richters Mbaye, so daß Senegal nach Art. 31 Abs. 3 IGH-Statut berechtigt war, einen Ad-hoc-Richter zu wählen, und Mbaye als solchen wählte. Im schriftlichen und mündlichen Verfahren wurden folgende Anträge eingebracht: Guinea ersuchte den Gerichtshof, zu urteilen und zu erklären, — daß der sogenannte „Schiedsspruch" vom 31. Juli 1989 nicht existiere, weil einer der beiden Schiedsrichter, die die Mehrheit für den. „Schiedsspruch" 31

Siehe Schuppert (Anm. 1), 451.

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gebildet hätten, in einer beigefügten Erklärung seine im Widerspruch zur Stimmabgabe stehende Meinung ausgedrückt habe; — hilfsweise, daß diese sogenannte Entscheidung aus folgenden Gründen vollkommen null und nichtig sei: das Schiedsgericht habe es unterlassen, die zweite in dem Schiedsabkommen aufgeworfene Frage zu beantworten, obwohl sich aus der Antwort auf die erste Frage die Notwendigkeit der Beantwortung der zweiten Frage ergeben habe; das Schiedsgericht habe sich nicht an die Bestimmungen des Schiedsabkommens gehalten, nach dem das Schiedsgericht ersucht worden sei, über die Abgrenzung der Seegebiete insgesamt zu entscheiden, und zwar durch eine einzige Linie und Darstellung dieser Linie auf einer Karte; schließlich habe es nicht begründet, weshalb es diese unangebrachte Zurückhaltung im Rahmen seiner Entscheidungszuständigkeit geübt habe; — daß Senegal deshalb nicht berechtigt sei, Guinea-Bissau zu ersuchen, den sogenannten Schiedsspruch anzuerkennen. Senegal beantrage dagegen, 1. die Anträge Guinea-Bissaus auf Feststellung des Nichtbestehens und, hilfsweise, der Nichtigkeit des Schiedsspruches vom 31. Juli 1989 zurückzuweisen; 2. zu urteilen und zu erklären, daß der genannte Schiedsspruch gültig und für Senegal und Guinea-Bissau verbindlich und von ihnen zur Anwendung zu bringen sei. Der Gerichtshof befaßt sich zunächst mit dem Sachverhalt (Abs. 12 - 21) und stellt in diesem Zusammenhang fest, daß Frankreich und Portugal am 26. April 1960 ein Abkommen zum Zwecke der Festlegung der Seegrenze zwischen Senegal, das damals ein autonomer Staat innerhalb der durch die französische Verfassung von 1958 geschaffenen Communaute war, und der portugiesischen Provinz Guinea geschlossen haben. Mit diesem Abkommen hatten Frankreich und Portugal eine bestimmte gerade Grenzlinie zwischen den aneinander angrenzenden Küstenmeeren und die Verlängerung dieser Linie in gleicher Richtung als Grenzlinie für die Anschlußzonen und Festlandsockelbereiche vereinbart. Nachdem Senegal und Guinea-Bissau unabhängig geworden waren, kam es zwischen ihnen zu einem Streit über die Seegrenzen, der seit 1977 verhandelt wurde, wobei sich GuineaBissau auf den Standpunkt gestellt hatte, daß die Meereszonen ohne Bezugnahme auf das Abkommen von 1960, dessen Gültigkeit es bestreite und das ihm nicht entgegengehalten werden könne, abzugrenzen seien. Am 12. März 1985 schlossen die Parteien ein Schiedsabkommen, um den Streit einem Schiedsgericht zu unterbreiten. Nach Art. 2 dieses Schiedsabkommens sollte das Schiedsgericht über folgende Fragen nach den Regeln des Völkerrechts entscheiden: 1. Hat das am 26. April 1960 geschlossene Abkommen Rechtskraft für die Beziehungen zwischen Guinea-Bissau und Senegal?

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2. Im Falle einer Verneinung der ersten Frage, wie ist der Verlauf der Linie, die die zu Guinea-Bissau und Senegal gehörenden Meereszonen voneinander abgrenzt? Artikel 9 des Schiedsabkommens sah unter anderem vor, daß die Entscheidung einschließlich einer Markierung der Grenzlinie auf einer Karte ergehen sollte. Das Schiedsgericht, das gemäß dem Abkommen gebildet wurde und dem Mohammed Bedjaoui und Andre Gros als Richter sowie Julio A. Barberis als Präsident angehörten, verkündete am 31. Juli 1989 den Spruch, dessen Bestehen und Gültigkeit Guinea-Bissau im vorliegenden Falle bestreitet. Die Feststellungen des Schiedsgerichtes faßt der Gerichtshof wie folgt zusammen: Das Schiedsgericht sei zu dem Ergebnis gekommen, daß das Abkommen von 1960 gültig sei und beiden Staaten entgegengehalten werden könne; es müsse im Lichte des zum Zeitpunkt seines Abschlusses geltenden Rechts interpretiert werden; das Abkommen von 1960 sei nicht für die Abgrenzung solcher Meereszonen heranzuziehen, die es damals noch nicht gegeben habe, wie etwa die Ausschließliche Wirtschaftszone, Fischereizone oder wie immer man sie nenne; jedoch seien Küstenmeer, Anschlußzone und Festlandsockel ausdrücklich in dem Abkommen von 1960 erwähnt worden, und diese Zonen hätten zur Zeit seines Abschlusses existiert; weil für die Ausdehnung des Festlandsockels im Jahre 1960 das „dynamische" Kriterium der Ausbeutbarkeit gegolten habe, sei dieses Kriterium auch für die derzeitige Ausdehnung zugrunde zu legen; das Schiedsgericht habe unter Berücksichtigung dieser Schlußfolgerungen und wegen des Wortlauts der zweiten Frage davon Abstand genommen, die zweite Frage zu beantworten, und habe es außerdem nicht für notwendig gehalten, auf einer Karte den Verlauf der Grenzlinie zu markieren; das Schiedsgericht habe daher im Tenor seines Schiedsspruches die erste Frage bejaht und entschieden, daß das Abkommen von 1960 nur hinsichtlich der dort genannten Meereszonen für die Parteien gültig sei. Präsident Barberis hatte dem Spruch eine Erklärung beigefügt, derzufolge er lieber bei der Beantwortung der ersten Frage ausdrücklich darauf hingewiesen hätte, daß das Abkommen von 1960 für das Küstenmeer, die Anschlußzone und den Festlandsockel, aber nicht für die Ausschließliche Wirtschafts- oder Fischereizone gelte; denn bei einer solchermaßen teilweise verneinenden Antwort hätte das Schiedsgericht auch die zweite Frage teilweise beantworten und damit die Abgrenzung für die Ausschließliche Wirtschafts- oder Fischereizone vornehmen können. Bedjaoui, der gegen den Spruch gestimmt hatte, hatte seine abweichende Meinung beigefügt, nach der wegen der Nichtbeantwortung der zweiten Frage der Spruch unvollständig und mit dem Wortlaut und Sinn des Schiedsabkommens hinsichtlich der von den Parteien erbetenen Linie unvereinbar sei. Bei der öffentlichen Verkündung des Schiedsspruches am 31. Juli 1989 waren Barberis und Bedjaoui, nicht aber Gros anwesend gewesen.

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B. Der Gerichtshof befaßt sich sodann mit seiner Zuständigkeit, der Zulässigkeit der Klage und der möglichen Wirkung der Abwesenheit eines Schiedsrichters bei der Verkündung des Spruches (Abs. 22-29). Guinea-Bissaus Erklärung nach Art. 36 Abs. 2 IGH-Statut vom 7. August 1989 sei vorbehaltlos erfolgt. Senegal habe hingegen am 2. Dezember 1985 eine Erklärung, die eine frühere ersetzt habe, abgegeben, nach der es die Zuständigkeit des Gerichtshofes für Streitigkeiten, bei denen die Parteien übereingekommen seien, auf eine andere Art der Streitbeilegung zurückzugreifen, und für Streitigkeiten über Fragen, die nach dem Völkerrecht in die ausschließliche Zuständigkeit Senegals fielen, ablehnen könne. Diese Erklärung Senegals habe für alle nach Abgabe der Erklärung auftretenden Streitigkeiten gelten sollen. Senegal habe vorgetragen, daß wegen dieser Erklärung die Zuständigkeit des Gerichtshofes ausgeschlossen wäre, wenn Guinea Bissau die Sachentscheidung des Schiedsgerichtes anfechten würde. Der Gerichtshof stellt jedoch fest, daß sich beide Parteien in diesem Verfahren einig seien, daß es nicht wie im damaligen Schiedsverfahren um einen Streit über die Seegrenze, d. h. um eine Berufung oder Revision gegen den Schiedsspruch von 1989 gehe, sondern um einen Streit über den Schiedsspruch selbst, der nach Abgabe der Erklärung Senegals gefällt worden sei. Wegen dieser Umstände bejaht der Gerichtshof seine Zuständigkeit und verweist dabei auf seine Ausführungen im Fall „Arbitral Award Made by the King of Spain on 23 December 1906",32 bei dem er ebenfalls nicht als Berufungsinstanz zur Entscheidung über die Rechtmäßigkeit oder Rechtswidrigkeit des Schiedsspruches tätig gewesen sei, sondern zur Entscheidung darüber aufgerufen worden sei, ob der Schiedsspruch ein Nichts sei, das keinerlei Wirkung entfalte. Der Gerichtshof verwirft sodann das Vorbringen Senegals, nach dem die Klage Guinea-Bissaus unzulässig sei. Senegal hatte vorgetragen, daß die dem Schiedsspruch beigefügte Erklärung von Präsident Barberis nicht Bestandteil des Schiedsspruches sei, so daß Guinea-Bissau einen Mißbrauch des Prozeßverfahrens betreibe, wenn es sich auf diese Erklärung berufe; außerdem stehe der Prozeß in keinem Verhältnis zu den ihn veranlassenden Gründen und würde die Lösung des Konflikts nur verzögern. Der Gerichtshof hält allerdings das Vorgehen Guinea-Bissaus für eine angemessene Rechtsausübung. Schließlich befaßt sich der Gerichtshof mit dem Einwand Guinea-Bissaus, demzufolge die Abwesenheit des Schiedsrichters Gros bei der Verkündung des Schiedsspruches — einer äußerst wichtigen Sitzung — bestätige, daß es dem Schiedsgericht nicht gelungen sei, den Streit zu lösen. Der Gerichtshof kommt jedoch zum Schluß, daß die Abwesenheit von Gros nicht die Gültigkeit des Spruches berühre, 32 ICJ Reports 1960, 214.

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weil er unstreitig an der Abstimmung über den Schiedsspruch teilgenommen habe und der Schiedsspruch entsprechend dem Schiedsabkommen vom Präsidenten und Kanzler unterzeichnet und den Parteien in beglaubigter Kopie zugestellt worden sei. Im nächsten Abschnitt des Urteils prüft der Gerichtshof das von Guinea-Bissau behauptete Nichtbestehen des Schiedsspruches (Abs. 30 - 34). Der Haupteinwand der Klägerin war dahin gegangen, daß der Spruch von keiner wirklichen Mehrheit getragen worden sei, und hatte sich dabei auf die dem Spruch beigefügte Erklärung von Barberis gestützt. In dieser Erklärung sieht der Gerichtshof jedoch keinen Widerspruch zum Schiedsspruch, weil Barberis eine andere Urteilstenorierung lediglich vorgezogen, nicht aber für notwendig gehalten habe. Selbst bei Widersprüchlichkeit könne die Erklärung gegenüber seiner Stimmabgabe nicht ausschlaggebend sein. Dieser Einwand Guinea-Bissaus sei daher unbegründet. Im weiteren untersucht der Gerichtshof das hilfsweise Vorbringen GuineaBissaus, nach dem der Schiedsspruch wegen fehlerhafter Kompetenzausübung und unzureichender Begründung nichtig sei (Abs. 35 - 65). Kompetenzfehler hatte die Klägerin darin gesehen, daß das Schiedsgericht es zum einen unterlassen habe, die zweite in dem Schiedsabkommen gestellte Frage zu beantworten, und zum anderen, die dort vorgesehene Karte beizufügen; unzureichend begründet war nach Meinung der Klägerin der Spruch, weil weder für die Nichtbeantwortung der zweiten Frage noch für das Unterlassen einer einzigen Grenzlinienbestimmung noch für das Nicht-Markieren dieser Linie auf einer Karte Gründe angegeben worden seien. Der Gerichtshof befaßt sich zunächst mit dem angeblichen Fehlen einer Antwort auf die zweite Frage, welches die Klägerin auf dreifache Weise begründet hatte: das Schiedsgericht habe in Wahrheit überhaupt nicht entschieden, die zweite Frage nicht zu beantworten; selbst wenn, habe es eine solche Entscheidung nicht hinreichend begründet, und schließlich wäre eine solche Entscheidung ungültig. Der Gerichtshof weist jedoch den Einwand der Klägerin, die zweite Frage sei nicht beantwortet worden, zurück. Der Tenor des Schiedsspruches enthalte zwar neben der Antwort auf die erste Frage nicht die Entscheidung des Schiedsgerichts, die zweite Frage nicht zu beantworten — was ungewöhnlich und kritikwürdig sei, zumal das Schiedsabkommen vorgesehen habe, daß das Schiedsgericht „beiden Regierungen seine Entscheidung über die in Art. 2 gestellten Fragen bekanntgibt". Jedoch ergebe sich aus den Gründen des Schiedsspruches wie auch aus der beigefügten Erklärung von Barberis, daß das Schiedsgericht mit zwei Stimmen gegen eine entschieden habe, die zweite Frage nicht zu beantworten, weil es die erste Frage bejaht habe. Deswegen leide der Spruch nicht an einer fehlenden Entscheidung. Ebensowenig leide der Spruch an einer mangelhaften Begründung für die Nichtbeantwortung der zweiten Frage. Die Begründung sei zwar knapp, aus ihr lasse sich aber problemlos entnehmen, daß das Schiedsgericht wegen seiner positi-

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ven Beantwortung der ersten Frage den Schluß gezogen habe, die zweite Frage nicht beantworten zu müssen. Auch die Behauptung der Klägerin, daß die Begründung des Schiedsgerichtes dazu, ob es ersucht worden sei, die zweite Frage zu beantworten, ungültig sei, weist der Gerichtshof zurück. Guinea-Bissau hatte zum einen argumentiert, daß nach dem Sinn und Zweck des Schiedsabkommens unabhängig von der Bejahung oder Verneinung der ersten Frage auch die zweite Frage zu beantworten gewesen sei, zum anderen, daß die zweite Frage hätte beantwortet werden müssen, weil die erste Frage in Wahrheit teilweise verneint worden sei. Zum ersten Argument führt der Gerichtshof aus, daß Guinea-Bissau in Wahrheit die Interpretation des Schiedsabkommens in bezug auf die Entscheidungskompetenz des Schiedsgerichts, wie sie im Schiedsspruch zum Ausdruck komme, rüge und eine andere Interpretation vorschlage, obwohl ein Schiedsgericht — sofern nichts Gegenteiliges vereinbart sei — nach allgemein anerkanntem Völkerrecht berechtigt sei, den Umfang seiner Entscheidungskompetenz zu bestimmen und zu diesem Zwecke die Dokumente, die für seine Zuständigkeit maßgeblich seien, auslegen könne. Dieses Recht habe das Schiedsgericht auch in dem Schiedsabkommen ausdrücklich erhalten. Der Gerichtshof weist darauf hin, daß es nicht seine Aufgabe sei zu beurteilen, welche von mehreren möglichen Interpretationen vorzuziehen sei, weil er nicht als Berufungsinstanz tätig, sondern zur Entscheidung über die Nichtigkeit ersucht worden sei. Er könne nur beurteilen, ob das Schiedsgericht mit dem Erlaß des umstrittenen Schiedsspruches einen handfesten Verstoß gegen seine ihm durch das Schiedsabkommen zugewiesene Zuständigkeit begangen habe, sei es durch Überschreitung oder Nichtausübung seiner Kompetenz. Ein solcher Verstoß könne aus einer unrichtigen Interpretation der für seine Kompetenz maßgeblichen Bestimmungen resultieren. Der Gerichtshof legt sodann die Interpretationsmethoden unter Verweis auf sein Gutachten über die Kompetenz der Generalversammlung zur Aufnahme eines Staates in die Vereinten Nationen,33 sein Urteil über die prozessualen Einreden im Südwestafrika-Fall 34 und die Wiener Vertragsrechtskonvention dar, nach denen in erster Linie der Wortlaut maßgeblich sei; er verweist auf die im Gulf of Maine-Fall hervorgehobene Pflicht des Gerichtshofes, den Wortlaut der Bestimmungen, mit denen Parteien eines Schiedsabkommens die Aufgaben des Schiedsgerichtes definieren, zu beachten, und kommt zum Schluß, daß im vorliegenden Fall wegen des eindeutigen Wortlautes des Schiedsabkommens, nach dem die zweite Frage „im Falle einer Verneinung der ersten Frage" zu beantworten gewesen sei, ein handfester Verstoß gegen die Interpretationsregeln nicht vorgelegen habe. Dies gelte um so mehr, als GuineaBissau selbst, das bereits über einschlägige Erfahrungen bei dem Entwurf eines in dem Punkte anders formulierten Schiedsabkommens verfügt habe, diese Formulierung initiiert habe. Zu einem anderen Ergebnis könne man auch nicht bei 33 34

ICJ Reports 1950, 8. ICJ Reports 1962, 336.

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Berücksichtigung des Umstandes kommen, daß die Parteien mit dem Schiedsverfahren eine Beilegung des Streites über sämtliche Seegrenzen angestrebt hätten. Beide Parteien seien vielmehr offensichtlich davon ausgegangen, daß im Falle der Bejahung der ersten Frage die in dem Abkommen von 1960 vereinbarte Grenzlinie für alle Meereszonen gelten würde und im Falle der Verneinung eine völlig neue Grenzbestimmung durch das Schiedsgericht getroffen werden würde. Kein Einvernehmen habe es jedoch zwischen den Parteien darüber gegeben, was geschehen solle, wenn im Falle einer bejahenden Antwort auf die erste Frage die Grenzfrage lediglich für einen Teil der Meereszonen beantwortet werden würde. Hinsichtlich des Arguments Guinea-Bissaus, daß das Schiedsgericht die erste Frage in Wahrheit teilweise verneint habe und damit die zweite Frage hätte beantworten müssen, kommt der Gerichtshof zum Schluß, daß das Schiedsgericht eben nicht den Urteilstenor in der Formulierung angenommen habe, die Barberis bevorzugt hätte, vielmehr habe das Schiedsgericht die erste Frage vollständig bejaht und damit ohne Verstoß gegen seine Kompetenz von der Beantwortung der zweiten Frage Abstand genommen. Schließlich geht der Gerichtshof auf den Einwand Guinea-Bissaus ein, der Schiedsspruch sei wegen des Fehlens einer mit der Grenzlinie versehenen Karte und wegen fehlender Angabe von Gründen für die Nichtbeifügung einer Karte null und nichtig. Auch in diesem Punkt, so der Gerichtshof, sei die Begründung des Schiedsgerichtes zwar kurz, aber ausreichend. Die Grenzlinie nach dem Abkommen von 1960 sei spezifiziert und allgemein bekannt gewesen, so daß das Schiedsgericht — da es wegen der Nichtbeantwortung der zweiten Frage eine andere Grenzlinie nicht habe definieren müssen — zu Recht keine Notwendigkeit gesehen habe, eine Karte beizufügen. In seinen Schlußbetrachtungen (Abs. 66-68) bemerkt der Gerichtshof, daß der Schiedsspruch nicht eine vollständige Abgrenzung der Meereszonen zwischen beiden Staaten bewirkt habe, daß mittlerweile Guinea-Bissau ein neues Verfahren mit dem Ziel der Abgrenzung aller Meereszonen eingeleitet habe und daß Senegal im vorliegenden Verfahren erklärt habe, es habe keine Einwände gegen eine auf dem Verhandlungswege herbeigeführte Abgrenzung der Ausschließlichen Wirtschaftszone. Er hält es für sehr wünschenswert, die durch den Schiedsspruch von 1989 nicht erledigten Streitpunkte dem Willen der Parteien entsprechend so schnell wie möglich einer Lösung zuzuführen. Aus diesen Gründen urteilt der Gerichtshof 1. einstimmig, den Einwand Guinea-Bissaus, daß der am 31. Juli 1989 erlassene Schiedsspruch des Schiedsgerichtes, das gemäß dem Abkommen vom 12. März 1985 zwischen Guinea-Bissau und Senegal errichtet wurde, nicht bestehe, zurückzuweisen;

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2. mit elf Stimmen gegen vier 35 , den Einwand Guinea-Bissaus, daß der Schiedsspruch vom 31. Juli 1989 vollkommen null und nichtig sei, zurückzuweisen; 3. mit zwölf Stimmen gegen drei 36 , den Einwand Guinea-Bissaus, daß die Regierung Senegals nicht berechtigt sei, die Regierung von Guinea-Bissau zur Anwendung des Schiedsspruches vom 31. Juli 1989 aufzufordern, zurückzuweisen; und in bezug auf den diesbezüglichen Einwand Senegals festzustellen, daß der Schiedsspruch vom 31. Juli 1989 gültig und für Senegal und Guinea-Bissau verbindlich und anwendbar ist. C. Richter Tarassov und Ad-hoc-Richter Mbaye fügten dem Urteil Erklärungen bei, Vizepräsident Oda und die Richter Lachs, Ni und Shababuddeen gaben individuelle Meinungen ab, die Richter Aguilar Mawdsley und Ranjeva fügten eine gemeinsame abweichende Meinung und Richter Weeramantry und Ad-hocRichter Thierry weitere abweichende Meinungen bei. Tarassov unterstützt die Urteilsfindung des Gerichtshofes, der nur zur Entscheidung über die Gültigkeit oder Nichtigkeit des Schiedsspruches von 1989, nicht aber zur Entscheidung über die Seeabgrenzung selbst berufen gewesen sei, unterwirft jedoch den damaligen Schiedsspruch einer scharfen Kritik, weil er den Streit der Parteien nicht endgültig beigelegt habe. Mbaye bezweifelt die allein auf Art. 36 Abs. 2 IGH-Statut gegründete Zuständigkeit des Gerichtshofes für eine die Gültigkeit eines Schiedsspruches bestreitende Klage und begrüßt es, daß der Gerichtshof in diesem Falle seine Zuständigkeit auf die Umstände, daß Guinea-Bissau die Zuständigkeit angenommen und Senegal sie nicht bestritten habe, gegründet habe. Oda meint, die Einwände Guinea-Bissaus hätten erheblich kürzer zurückgewiesen werden können: die von Präsident Barberis dem Schiedsspruch beigefügte Erklärung habe nicht im Widerspruch zu dem in Abstimmung angenommenen Schiedsspruch gestanden, sondern ihn erhärtet; im übrigen könne dem Schiedsgericht nicht die Schuld dafür gegeben werden, daß das Schiedsabkommen mangelhaft abgefaßt worden sei; außerdem bezweifele er, ob das Verfahren vor dem Gerichtshof einen Sinn gehabt habe, weil das eigentliche Ziel der Parteien, eine Grenzlinie für die Ausschließlichen Wirtschaftszonen zu erhalten, auch mit einer Nichtigkeitserklärung des Schiedsspruches nicht habe erreicht werden können. Bei ihren weiteren Verhandlungen müßten die beiden Staaten von einer der beiden Annahmen ausgehen, daß entweder für den Festlandsockel und die Ausschließliche Wirtschaftszone unterschiedliche Regime existierten, so daß es im Bereiche dieser Zonen zwei verschiedene Grenzlinien geben könnte, oder, wenn sie auf eine 35 36

Richter Aguilar Mawdsley, Weeramantry, Richter Aguilar Mawdsley, Weeramantry;

Ranjeva; Ad-hoc-Richter Thierry. Ad-hoc-Richter Thierry.

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einzige Grenzlinie Wert legten, daß die bereits für die Abgrenzung der Festlandsockelgebiete existierende Linie eventuell geändert werden müßte. Ebenso wie Tarassov kritisiert Lachs den Schiedsspruch von 1989, der zwar nicht ungültig, aber unbefriedigend sei. Nach Meinung von Richter Ni war die Entscheidungsfindung des Schiedsgerichtes korrekt. Er unterstützt das Urteil des Gerichtshofes. Richter Shahabuddeen meint, der Gerichtshof hätte nicht nur zum Ausdruck bringen können, daß das Schiedsgericht keinen handfesten Verstoß gegen Interpretationsregeln vorgenommen habe, sondern auch, ob der Gerichtshof die Interpretation des Schiedsabkommens durch das Schiedsgericht für richtig — was seiner eigenen Ansicht entspräche — oder falsch halte. In ihrer gemeinsamen abweichenden Meinung betonen die Richter Aguilar Mawdsley und Ranjeva, daß eine richterliche Entscheidung ihrer Funktion nur dann in vollem Umfange gerecht werden könne, wenn sie von einer Rechtsüberzeugung getragen werde. Dem Schiedsspruch von 1989 mangele es hieran. Im Gegensatz zum Gerichtshof sind sie der Meinung, daß das Schiedsgericht mit der Nichtbeantwortung der zweiten Frage einen Kompetenzverstoß durch eine Kompetenzausübung unterhalb des ihnen auferlegten Mandats oder durch Unterlassen begangen habe. Das Schiedsgericht hätte bei der Auslegung des Schiedsabkommens Wortlaut, Sinn und Zweck beachten müssen. Der Gerichtshof als das Hauptrechtsprechungsorgan der internationalen Gemeinschaft müsse garantieren, daß die Rechte der Parteien beachtet würden und daß andere internationale Gerichte einen gewissen Qualitätsstandard bei ihrer Urteilsfindung einhielten. Richter Weeramantry meint ebenfalls, das Schiedsgericht hätte im Lichte des Schiedsabkommens über die Abgrenzung sämtlicher Meereszonen entscheiden und damit auch die zweite Frage beantworten müssen. Durch deren Nichtbeantwortung habe es einen Kompetenzverstoß begangen, was zwar nicht zum Nichtbestehen, aber zur Nichtigkeit seines Spruches führe. Die Nichtigkeit beziehe sich auch auf den Inhalt der Antwort auf die erste Frage, weil mit dieser Antwort die unentschiedene Frage der Abgrenzung der übrigen Zonen präjudiziert werde. Auch Thierry ist der Ansicht, der Schiedsspruch von 1989 sei null und nichtig, weil das Schiedsgericht seiner Aufgabe, eine Grenzziehung zwischen sämtlichen Meereszonen beider Parteien vorzunehmen, nicht nachgekommen sei und Art. 2 des Schiedsabkommens im Lichte seines Sinnes und Zweckes fehlerhaft interpretiert habe. III. Fall betreffend bestimmte Phosphatfelder in Nauru (Nauru gegen Australien) Urteil vom 26. Juni 1992 über prozeßhindernde Einreden, ICJ Reports 1992, 240 Besetzung des Gerichtshofes: Präsident Jennings (Großbritannien), Vizepräsident Oda (Japan), Richter Lachs (Polen), Ago (Italien), Schwebel (Vereinigte

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Staaten), Bedjaoui (Algerien), Ni (China), Evensen (Norwegen), Tarassov (Rußland), Guillaume (Frankreich), Shahabuddeen (Guyana), Aguilar Mawdsley (Venezuela), Ranjeva (Madagaskar). A In dem am 19. Mai 1989 von Nauru gegen Australien eingeleiteten Verfahren geht es um die Wiedergutmachung für vor der Unabhängigkeit Naurus von Australien betriebenen Phosphatabbau in Nauru. Beide Parteien haben sich der obligatorischen Zuständigkeit des Gerichtshofes nach Art. 36 Abs. 2 IGH-Statut unterworfen. Nachdem Nauru innerhalb der vom I G H bestimmten Frist die Klagebegründung eingereicht hatte, erhob Australien innerhalb der für seine Klageerwiderung bestimmten Frist prozeßhindernde Einreden gegen die Zulässigkeit der Klage und Zuständigkeit des Gerichtshofes. Daraufhin setzte dieser gemäß Art. 79 Abs. 3 Verfahrensordnung das Verfahren in der Hauptsache aus und forderte Nauru zur schriftlichen Stellungnahme zu den Einreden Australiens auf, 37 die Nauru innerhalb der festgesetzten Frist einreichte. Das mündliche Verfahren fand sodann im November 1991 statt. Im schriftlichen Verfahren wurden folgende Anträge eingebracht: Nauru ersuchte in seiner Klagebegründung den Gerichtshof, zu urteilen und zu erklären, daß die Beklagte für den Bruch folgender rechtlicher Pflichten verantwortlich sei: 1. der Verpflichtungen aus Art. 76 der UN-Charta und den Art. 3 und 5 des Treuhandabkommens für Nauru vom 1. November 1947; 2. der Verpflichtung, die internationalen Standards einzuhalten, die, wie allgemein anerkannt, bei der Ausführung des Selbstbestimmungsprinzips anwendbar seien; 3. der Verpflichtung, das Recht des Volkes von Nauru auf dauernde Souveränität über seine natürlichen Reichtümer und Ressourcen zu beachten; 4. der Verpflichtung des allgemeinen Völkerrechts, Verwaltungszuständigkeiten nicht so auszuüben, daß sie zu einer Rechtsverweigerung im eigentlichen Sinne führen; 5. der Verpflichtung nach allgemeinem Völkerrecht, Verwaltungskompetenzen nicht rechtsmißbräuchlich auszuüben; 6. der Verpflichtung, das allgemeine Völkerrechtsprinzip zu beachten, demzufolge ein Staat, der für die Verwaltung eines Hoheitsgebiets verantwortlich sei, verpflichtet sei, den Zustand des Hoheitsgebiets nicht so zu verändern, daß irreparabler Schaden oder wesentliche Nachteile für das vorhandene oder mögliche 37

Verfügung vom 8. Februar 1991, ICJ Reports 1991, 3.

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rechtliche Interesse eines anderen Staates hinsichtlich dieses Hoheitsgebietes verursacht würden; ferner zu urteilen und zu erklären, daß die Republik Nauru gegen Australien einen Rechtsanspruch auf das australische Kontingent des überseeischen Vermögens der britischen Phosphatkommissionäre habe, das entsprechend dem dreiseitigen Abkommen vom 9. Februar 1987 zusammengestellt und verteilt worden sei; zu urteilen und zu erklären, daß die Beklagte verpflichtet sei, angemessenen Schadensersatz zu leisten für den Verlust, den Nauru infolge der Verstöße gegen die obengenannten Verpflichtungen und der unterlassenen Anerkennung des Anspruches Naurus auf das überseeische Vermögen der britischen Phosphatkommissionäre erlitten habe. Im Rahmen der prozeßhindernden Einreden beantragte Australien: aufgrund der Tatsachen und der Rechtslage, die im Zusammenhang mit den prozeßhindernden Einwendungen vorgebracht worden seien, daß der Gerichtshof urteile und erkläre, daß er aus allen oder einem der in diesem Einwendungsverfahren vorgebrachten Gründen nicht zuständig für die Klage Naurus sei. In seiner schriftlichen Stellungnahme zu den prozeßhindernden Einreden beantragte Nauru: die Einreden Australiens zurückzuweisen und zu urteilen und zu erklären, daß a) der Gerichtshof für die Klage Naurus zuständig und b) die Klage unzulässig sei. Auch im mündlichen Verfahren beantragte Australien, zu urteilen und zu erklären, daß die Klage von Nauru gegen Australien unzulässig und der Gerichtshof unzuständig sei, wohingegen Nauru beantragte, die prozeßhindernden Einreden zurückzuweisen und zu urteilen und zu erklären, daß der Gerichtshof für die in der Klagebegründung erhobenen Begehren zuständig sei und daß diese Begehren zulässig seien, alternativ, daß einige oder alle prozeßhindernden Einreden Australiens nicht ausschließlich prozeßhindernder Art seien und folglich einige oder alle Einreden in das Hauptverfahren gehörten. B. Der Gerichtshof befaßt sich zunächst mit den (fünf) Einreden Australiens, die sich auf die Umstände des Streits zwischen den Parteien wegen der Sanierung der vor dem 1. Juli 1967 abgebauten Phosphatfelder beziehen (Abs. 8-38).

432

Ursula Heinz

In dem Zusammenhang geht er anfangs auf die Frage seiner Zuständigkeit ein, d. h. auf die Erklärungen der Parteien, mit denen sie sich der Zuständigkeit des Gerichtshofes nach Art. 36 Abs. 2 IGH-Statut in den Jahren 1975 (Australien) und 1988 (Nauru) unterworfen hatten. Nach der Erklärung Australiens gilt seine Unterwerfung nicht für einen Streit, bezüglich dessen die Parteien vereinbart oder zu vereinbaren haben, daß sie auf andere Methoden der friedlichen Beilegung zurückgreifen. Australien hatte zur Begründung der Unzuständigkeit des Gerichtshofes vorgetragen, daß Nauru nach dem 1. Weltkrieg dem Mandatssystem des Völkerbundes und nach dem 2. Weltkrieg mittels eines Treuhandabkommens dem Treuhandsystem der Vereinten Nationen — mit Australien, Neuseeland und Großbritannien als Verwaltungsmacht — unterstellt worden sei; jede Streitigkeit, die im Verlaufe der Treuhandschaft zwischen Verwaltungsmacht und Urbevölkerung entstehe, falle in die ausschließliche Zuständigkeit des Treuhandrates und der Generalversammlung und sei mit der bedingungslosen Beendigung der Treuhandschaft als beigelegt anzusehen; im vorliegenden Falle sei über die Frage der Sanierung der abgebauten Phosphatfelder zwischen der örtlichen Vertretung Naurus und den Vereinten Nationen sowie in direkten Kontakten während der Treuhandschaft verhandelt worden, und schließlich sei am 14. November 1967 zwischen der örtlichen Vertretung Naurus auf der einen Seite und Australien, Großbritannien und Neuseeland auf der anderen Seite ein Abkommen über die Phosphatindustrie Naurus geschlossen worden, was bedeute, daß Nauru auf Sanierungsansprüche verzichtet habe. Außerdem sei die Treuhandschaft vorbehaltlos beendet worden. Ohne sich mit diesen Argumenten im einzelnen zu befassen, weist der Gerichtshof diese Einrede gegen seine Zuständigkeit zurück: Erklärungen nach Art. 36 Abs. 2 IGH-Statut könnten sich nur auf Streitigkeiten zwischen Staaten beziehen, die Erklärung Australiens gelte daher nur für solche Streitigkeiten. Australien und das unabhängige Nauru hätten jedoch kein Abkommen über eine andersartige Beilegung des Streites über die Sanierung der Phosphatfelder geschlossen. Sodann befaßt sich der Gerichtshof im Rahmen der Zulässigkeit der Klage mit der zweiten Einrede Australiens, derzufolge die Bevollmächtigten Naurus vor der Unabhängigkeit Naurus auf Ansprüche wegen der Sanierung der Phosphatfelder verzichtet hätten, wobei erstens der Verzicht implizite, aber notwendige Folge des Abkommens vom 14. November 1967 sei und zweitens aus der Erklärung des Repräsentanten Naurus vor den Vereinten Nationen anläßlich der Beendigung der Treuhandschaft resultiere. Der Gerichtshof befaßt sich mit den Umständen anläßlich der Verhandlungen, die zu dem Abkommen vom 14. November 1967 geführt hatten, und mit dem Wortlaut des Abkommens selbst sowie mit den Diskussionen vor den Vereinten Nationen im Zusammenhang mit der Beendigung der Treuhandschaft und der Unabhängigkeit Naurus und kommt zu dem Ergebnis, daß in beiden Fällen weder ausdrücklich noch stillschweigend ein Verzicht erklärt worden sei, weshalb diese Einrede zurückzuweisen sei.

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Als nächstes prüft der Gerichtshof die dritte Einrede Australiens, derzufolge die Klage unzulässig sei, weil mit der Beendigung der Treuhandschaft Klagen beim Gerichtshof wegen Verletzungen des Treuhandabkommens ausgeschlossen seien. Australien hatte sich darauf berufen, daß sich alle angeblichen Pflichtverletzungen auf die Verwaltung des Treuhandgebietes bezögen, daß die ausschließliche Entscheidungskompetenz für Verletzungen des Treuhandabkommens und des Art. 67 der UN-Charta beim Treuhandrat und der Generalversammlung gelegen habe, daß mit der Beendigung der Treuhandschaft das ganze System der Verwaltungsüberwachung geendet habe und daß mangels eines ausdrücklichen Vorbehaltes hinsichtlich einer Pflichtverletzung und unerledigten Verantwortlichkeit der Verwaltungsmacht diese Beendigung umfassend sei und als vollständige Entlastung von jeglicher weiteren Verantwortlichkeit gelte. Der Gerichtshof erkennt zwar an, daß die Resolution 2347 (XXII) vom 19. Dezember 1967, derzufolge in Übereinstimmung mit dem Treuhandrat das Treuhandabkommen für das Territorium von Nauru mit der Erlangung der Unabhängigkeit Naurus am 31. Januar 1968 außer Kraft trat, endgültige Rechtswirkung hat — er verweist dabei auf seine Ausführungen im Fall Nordkamerun (ICJ Reports 1963, S. 32) —, so daß das Treuhandabkommen über Nauru zum besagten Zeitpunkt abgelaufen und nicht mehr in Kraft sei; daher könnte die Zulässigkeit einer Klage gegen die Verwaltungsmacht wegen einer angeblichen Pflichtverletzung bei der Verwaltung des Territoriums fraglich sein. In Anbetracht der besonderen Umstände, unter denen die Treuhandschaft über Nauru beendet worden sei, könne dies jedoch dahingestellt bleiben. Aus den Tatsachen ergebe sich, daß sich bei der Beendigung der Treuhandschaft jeder der Meinungsunterschiede zwischen Nauru und dem Verwaltungsrat über die Sanierung der vor dem 1. Juli 1967 abgebauten Phosphatfelder bewußt gewesen sei. Deshalb könne die besagte Generalversammlungsresolution, auch wenn sie nicht ausdrücklich irgendwelche diesbezüglichen Rechte Naurus vorbehalten habe, nicht als Entlastung der Verwaltungsmacht von solchen Ansprüchen verstanden werden. Wegen der besonderen Umstände dieses Falles müsse daher die dritte Einrede Australiens zurückgewiesen werden. Mit seiner vierten Einrede hatte Australien geltend gemacht, daß die Klage Naurus wegen Zeitablaufs unzulässig sei, da Nauru erst im Dezember 1988 formell seinen Standpunkt bezüglich der Sanierung der Felder gegenüber Austragen und den beiden anderen Staaten der ehemaligen Verwaltungsmacht dargetan habe und somit eine unangemessen lange Zeit seit seiner Unabhängigkeit am 31. Januar 1968 habe verstreichen lassen. Der Gerichtshof erkennt zwar an, daß die Verzögerung einer Klage auch im Falle des Fehlens einer einschlägigen vertraglichen Bestimmung zu ihrer Unzulässigkeit führen könne, allerdings gebe es im Völkerrecht insofern keine besonderen Fristen, so daß diese Frage nach den Umständen des Einzelfalles zu beurteilen sei. Hierbei stellt er fest, daß Nauru spätestens am 4. Februar 1969 über den Standpunkt Australiens zur Sanierung der Felder brieflich informiert worden sei und Nauru hierzu erst am 6. Oktober 1983 schriftlich 28 GYIL 36

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Stellung bezogen habe. In der Zwischenzeit sei die Angelegenheit jedoch bei zwei Treffen zwischen dem Präsidenten Naurus und kompetenten australischen Repräsentanten zur Sprache gebracht worden. Angesichts der Art der Beziehungen zwischen beiden Ländern und der unternommenen Schritte sei daher die Klage nicht wegen Zeitablaufs unzulässig. Das Gericht werde allerdings zur rechten Zeit dafür sorgen, daß sich Naurus Verzögerung nicht bei der Tatsachenfeststellung und rechtlichen Bewertung zum Nachteil Australiens auswirken werde. Schließlich prüft der Gerichtshof die fünfte Einrede Australiens, nach der sich Nauru in bezug auf die Sanierung widersprüchlich und bösgläubig verhalten habe. Der Gerichtshof kommt zum Schluß, daß auch diese Einrede zurückzuweisen sei, weil Nauru im Rahmen der Rechtsschutzmöglichkeiten seinen Anspruch angemessen eingereicht habe und er angesichts des Hauptsacheverfahrens im gegenwärtigen Verfahrensabschnitt nicht das Verhalten Naurus zu beurteilen habe; dieses stelle sich jedenfalls nicht als ein Mißbrauch des Prozeßverfahrens dar. In einem neuen Abschnitt (Abs. 39-57) befaßt sich der Gerichtshof mit der gewichtigsten Einrede Australiens, die es auf den Umstand stützt, daß Neuseeland und Großbritannien nicht VerfaKrensbeteiligte seien, obwohl diese zusammen mit Australien die Verwaltungsmacht im Rahmen des Treuhandabkommens gebildet hätten. Diese Einrede hatte Australien auf zweierlei Umstände gestützt: zum einen darauf, daß ein Anspruch Naurus nur gegenüber allen drei Staaten gemeinsam erhoben werden könne. In Anbetracht des Treuhandabkommens und seiner Durchführung, so der Gerichtshof, komme der Verwaltungsmacht als solcher jedoch keine eigene Rechtspersönlichkeit zu; vielmehr habe Australien selbst als einer der drei Staaten, die die Verwaltungsmacht gebildet hätten — wobei Australien eine besondere Rolle gespielt habe —, Verpflichtungen innegehabt, so daß der Gerichtshof nicht gehindert sei, die Frage einer Verletzung solcher Verpflichtungen durch Australien zu überprüfen. Ob im Falle einer Haftung die drei Staaten gesamtschuldnerisch oder anteilmäßig hafteten, sei dem Verfahren in der Hauptsache vorzubehalten. Zum anderen hatte Australien diese Einrede damit begründet, daß mit einer Entscheidung des Gerichtes über Pflichtverletzungen Australiens zugleich über die Frage von Pflichtverletzungen der beiden anderen Staaten entschieden werde, womit gegen das Prinzip, nach dem die Zuständigkeit des Gerichtshofes von einer Zustimmung der Staaten abhänge, verstoßen werde. Zur Beurteilung dieses Einwandes zieht der Gerichtshof seine früheren Ausführungen in den Fällen Monetary Gold Removed from Rome in 1943 (Preliminary Question), 38 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) 39 und Land, Island and Maritime Frontier Dispute (El Salvador / Honduras) 40 heran und kommt zu dem Ergebnis, daß er nicht 38

ICJ Reports 1954, 22, 32.

39

ICJ Reports 1984, 431. ICJ Reports 1990, 116.

40

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gehindert sei, eine Entscheidung zu treffen, die die rechtlichen Interessen eines nicht am Verfahren beteiligten Staates berühre, wenn die Interessen von Drittstaaten nicht den Hauptgegenstand des Urteils bildeten. Während im Monetary GoldFall die Feststellung einer Haftung des nicht am Verfahren beteiligten Staates Albanien Voraussetzung für die Beurteilung der geltend gemachten Ansprüche gewesen sei, sei im vorliegenden Fall die Feststellung einer Haftung der beiden nicht beklagten Länder nicht Voraussetzung für die Beurteilung der Verantwortlichkeit Australiens. Im übrigen seien die Interessen von Drittstaaten dadurch gewahrt, daß sie nach Art. 63 IGH-Statut einem Verfahren beitreten könnten und daß nach Art. 59 IGH-Statut das Urteil nur für die Parteien des Verfahrens verbindlich sei. Mit diesen Erwägungen weist der Gerichtshof auch diese (sechste) Einrede zurück. Im nächsten Abschnitt (Abs. 58-71) befaßt sich der Gerichtshof mit der (siebenten) Einrede Australiens, die sich auf die Unzulässigkeit der Geltendmachung von Ansprüchen Naurus hinsichtlich des überseeischen Vermögens der britischen Phosphatkommissionäre bezieht. Da Nauru diesen Anspruch erst in der schriftlichen Klagebegründung und nicht schon in der ursprünglichen Klageschrift erhoben habe, sei seine Geltendmachung im Hinblick auf Art. 40 Abs. 1 IGH-Statut, demzufolge in der Klageschrift der Streitgegenstand anzugeben sei, und im Hinblick auf Art. 38 Abs. 2 Verfahrensordnung, nach dem die Klageschrift genaue Angaben über die Natur des Anspruchs enthalten müsse, unzulässig, die Einrede Australiens insoweit also begründet, so daß es sich erübrige, auf die anderen Einreden Australiens gegenüber dem Vorbringen Naurus hinsichtlich des überseeischen Vermögens der britischen Phosphatkommissionäre einzugehen (S. 267). Aus diesen Gründen urteilt der Gerichtshof 1. a) einstimmig, die mit dem Vorbehalt Australiens bei seiner Erklärung über die obligatorische Anerkennung der Zuständigkeit des Gerichtshofes begründete Einrede zurückzuweisen; b) mit zwölf Stimmen gegen eine41, die mit dem angeblichen Verzicht Naurus vor seiner Unabhängigkeit auf alle Ansprüche auf Sanierung der vor dem 1. Juli 1967 abgebauten Phosphatfelder begründete Einrede zurückzuweisen; c) mit zwölf Stimmen gegen eine42, die mit der Beendigung der Treuhandschaft über Nauru durch die Vereinten Nationen begründete Einrede zurückzuweisen;

41

Vizepräsident Oda.

42

Vizepräsident Oda.

28*

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d) mit zwölf Stimmen gegen eine43, die mit der Wirkung des Zeitablaufs auf die Zulässigkeit der Klage Naurus begründete Einrede zurückzuweisen; e) mit zwölf Stimmen gegen eine44, die auf den angeblichen Mangel von Naurus gutem Glauben begründete Einrede zurückzuweisen; f) mit neun Stimmen gegen vier 45 , die mit der Tatsache der Nichtbeteiligung Neuseelands und Großbritanniens am Verfahren begründete Einrede zurückzuweisen; g) einstimmig, der auf die Neuheit des Anspruchs auf das überseeische Vermögen der britischen Phosphatkommissionäre begründeten Einrede stattzugeben; 2. mit neun Stimmen gegen vier 46 , festzustellen, daß der Gerichtshof gemäß Art. 36 Abs. 2 IGH-Statut für die Behandlung der von Nauru am 19. Mai 1989 eingereichten Klage zuständig ist und daß diese Klage zulässig ist; 3. einstimmig, festzustellen, daß der von Nauru in seiner Klagebegründung vom 20. April 1990 gestellte Antrag bezüglich des überseeischen Vermögens der britischen Phosphatkommissionäre unzulässig ist. C. Richter Shahabuddeen fügte dem Urteil eine individuelle Meinung bei, die Richter Jennings , Oda, Ago und Schwebel gaben abweichende Meinungen ab. Richter Shahabuddeen bekräftigt vor allem die Entscheidung des Gerichtshofes über die Zurückweisung der Einrede Australiens, die auf die fehlende Beteiligung Neuseelands und Großbritanniens gestützt ist. Richter Jennings ist hingegen der Ansicht, daß die rechtlichen Interessen Neuseelands und Großbritanniens mit denen Australiens so unlöslich miteinander verknüpft seien, daß sie durch eine Entscheidung nicht nur berührt würden, sondern den Hauptgegenstand des Urteils bildeten. Damit aber werde das Prinzip, daß die Zuständigkeit des Gerichtshofes auf einer Zustimmung der Staaten beruhe, verletzt. Richter Oda meint vor allem, der Gerichtshof hätte den Einreden, die Australien auf einen angeblichen Verzicht, die Beendigung der Treuhandschaft, die Wirkung des Zeitablaufes und den Mangel an Treu und Glauben gestützt habe, stattgeben müssen. Im übrigen bedeute seine Gegenstimme bei der Zurückweisung der auf die Nichtbeteiligung Neuseelands und Großbritanniens , gestützten Einrede nicht, daß nach seiner Ansicht dieser Einrede hätte stattgegeben 43 44 45 46

Vizepräsident Oda. Vizepräsident Oda. Präsident Jennings; Vizepräsident Oda; Richter Ago, Schwebel. Präsident Jennings; Vizepräsident Oda; Richter Ago, Schwebel.

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werden müssen; er halte vielmehr diese Einrede für zu eng mit dem Hauptsacheverfahren verknüpft, als daß über sie im vorgängigen Verfahren hätte entschieden werden können. Richter Ago ist aus ähnlichen Überlegungen wie Jennings der Ansicht, die Einrede Australiens, die auf die Nichtbeteiligung Neuseelands und Großbritanniens gestützt sei, hätte nicht zurückgewiesen werden dürfen. Auch Richter Schwebel ist dieser Meinung, wobei er auf die vom Gerichtshof zitierten Präzedenzfälle, die dieser zur Unterstützung seiner Begründung heranzieht, eingeht. Der Hauptpräzedenzfall sei der Monetary Gold-Fall. Im vorliegenden Falle anders zu entscheiden als in jenem Falle, weil die Verantwortlichkeit Neuseelands und Großbritanniens nicht Voraussetzung für eine Verantwortlichkeit Australiens sei, halte er nicht für überzeugend. Entscheidend sei, ob sich die Festlegung von Rechten der erschienenen Partei zugleich als Festlegung von Rechten der nicht erschienenen Partei auswirke. Auch die Rückgriffe auf die Nicaragua-Entscheidung von 1984 und auf das Urteil im Land-, Insel- und Seegrenzstreit gingen fehl.

IV. Fälle betreffend Fragen der Auslegung und Anwendung des Montrealer Übereinkommens von 1971 aus Anlaß des Luftzwischenfalls in Lockerbie (Libyen gegen Großbritannien) und (Libyen gegen Vereinigte Staaten von Amerika) Vorsorgliche Maßnahmen Verfügungen vom 14. April 1992, ICJ Reports 1992, 3 und 114 Besetzung des Gerichtshofes: Vizepräsident Oda (Japan), als Präsident amtierend; Präsident Jennings (Großbritannien); Richter Lachs (Polen), Ago (Italien), Schwebel (Vereinigte Staaten), Bedjaoui (Algerien), Ni (China), Evensen (Norwegen), Tarassov (Rußland), Guillaume (Frankreich), Shahabuddeen (Guyana), Aguilar Mawdsley (Venezuela), Weeramantry (Sri Lanka), Ranjeva (Madagaskar), Ajibola (Nigeria); Ad-hoc-Richter El-Kosheri (für Libyen). A. Am 3. März 1992 reichte Libyen zwei getrennte Klageschriften gegen Großbritannien und die Vereinigten Staaten wegen eines Streites über die Auslegung und Anwendung des Übereinkommens zur Bekämpfung widerrechtlicher Handlungen gegen die Sicherheit der Zivilluftfahrt (Montrealer Übereinkommen) ein, eines Streites, der anläßlich des am 21. Dezember 1988 über Lockerbie in Schottland aufgrund eines Bombenanschlages abgestürzten Flugzeuges entstand. Libyen stützte die Zuständigkeit des Gerichtshofes auf Art. 36 Abs. 1 IGHStatut i. V. m. Art. 14 Abs. 1 des Montrealer Übereinkommens, das für alle Partei-

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en verbindlich sei, und trug vor: zwei libysche Staatsangehörige seien in Schottland und in den Vereinigten Staaten beschuldigt und angeklagt worden, für das Anbringen eines während des Fluges PanAm 103 explodierten Sprengsatzes verantwortlich zu sein, wobei solche Handlungen zu den von Art. 1 des Montrealer Übereinkommens erfaßten strafbaren Handlungen gehörten. Libyen selbst sei allen seinen Verpflichtungen aus dieser Konvention vollständig nachgekommen, habe aber die Beschuldigten nicht an Großbritannien bzw. die Vereinigten Staaten ausgeliefert, weil es hierzu weder aufgrund eines Auslieferungsvertrages noch nach dem Montrealer Übereinkommen verpflichtet sei, es führe vielmehr selbst eine gerichtliche Untersuchung durch; die gegnerischen Parteien hingegen drohten Sanktionen für den Fall der NichtÜbergabe der Beschuldigten an sie an, verweigerten ihre Mitarbeit bei der Aufklärung der Verbrechen, verstießen damit gegen das Montrealer Übereinkommen und verletzten die Rechte Libyens aus diesem Übereinkommen. In seinen Klageschriften beantragte Libyen daher, zu urteilen und zu erklären, daß es selbst seinen Verpflichtungen aus dem Montrealer Übereinkommen in vollem Umfange nachgekommen sei, daß Großbritannien bzw. die Vereinigten Staaten ihre Verpflichtungen nach Art. 5 Abs. 2 und 3, Art. 7, Art. 8 Abs. 2 und Art. 11 des Übereinkommens verletzt hätten und weiterhin verletzten und daß Großbritannien bzw. die Vereinigten Staaten verpflichtet seien, unverzüglich diese Verletzungen und jegliche Gewaltanwendung und -androhung gegen Libyen, Verletzungen seiner Souveränität, territorialen Integrität und politischen Unabhängigkeit zu beenden und zu unterlassen. Später am gleichen Tage ersuchte Libyen den Gerichtshof ferner um die Bezeichnung vorsorglicher Maßnahmen nach Art. 41 IGH-Statut, weil die gegnerischen Parteien Sanktionen für den Fall der Nichtüberstellung androhten und damit die Rechte Libyens aus dem Montrealer Übereinkommen irreparablen Schaden erleiden würden. Es beantragte als vorsorgliche Maßnahmen, a) Großbritannien bzw. den Vereinigten Staaten zu untersagen, irgendwelche Handlungen gegenüber Libyen vorzunehmen, durch die es gezwungen oder genötigt werden solle, die Beschuldigten irgendeiner Gerichtsbarkeit außerhalb Libyens zu überstellen; und b) sicherzustellen, daß keine Schritte eingeleitet würden, die auf irgendeine Weise die Rechte Libyens im Hauptverfahren vereiteln könnten. Großbritannien und die Vereinigten Staaten beantragten dagegen, daß der Gerichtshof die Bezeichnung vorsorglicher Maßnahmen ablehne. B. Der Gerichtshof verweist zunächst auf das Vorbringen der Parteien zu seiner Zuständigkeit, die Libyen für das Hauptverfahren auf Art. 14 des Montrealer

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Übereinkommens stützt. Diese Bestimmung sieht vor, daß Streitigkeiten zwischen Vertragsstaaten über die Auslegung und Anwendung des Übereinkommens zunächst auf Verlangen eines dieser Staaten einem Schiedsverfahren zu unterwerfen sind und dem Internationalen Gerichtshof unterbreitet werden können, wenn sich die Parteien nicht binnen sechs Wochen nach dem Verlangen eines Schiedsverfahrens über seine Ausgestaltung einigen können. Libyen hatte vorgetragen, daß alle in dieser Vorschrift genannten Voraussetzungen erfüllt seien, daß es um den einstweiligen Schutz von Rechten ersuche, die den Gegenstand des Hauptverfahrens bildeten, und daß diesen Rechten ein irreparabler Schaden drohe; außerdem gebe es keinen Kompetenzkonflikt zwischen dem Sicherheitsrat und dem Gerichtshof. Demgegenüber hatten die gegnerischen Parteien geltend gemacht, daß weder die Voraussetzungen des Art. 14 des Montrealer Übereinkommens erfüllt seien noch die Voraussetzungen für die Bezeichnung vorsorglicher Maßnahmen; die von Libyen behaupteten Rechte gebe es nicht und, selbst wenn, bestehe keine dringende Gefährdung dieser Rechte; außerdem würden die von Libyen beantragten vorsorglichen Maßnahmen in die Kompetenz des Sicherheitsrates eingreifen und ihn bei seinem Tätigwerden im Zusammenhang mit Libyens Staatsterrorismus hindern. Zum Sachverhalt führt der Gerichtshof ferner aus: Am 27. November 1991 hätten Großbritannien und die USA eine gemeinsame Erklärung abgegeben, die folgenden Wortlaut habe: „Die britische und amerikanische Regierung erklären heute, daß Libyen verpflichtet ist, — alle des Verbrechens Beschuldigten der Gerichtsbarkeit zu überstellen; Verantwortlichkeit für die Handlungen libyscher Amtspersonen zu übernehmen; — seine Kenntnisse über das Verbrechen, einschließlich der Namen der Verantwortlichen, zu offenbaren und vollständigen Zugang zu allen Zeugen, Schriftstücken und anderen Beweismitteln, einschließlich der restlichen Zeitzünder, zu gewähren; — angemessene Entschädigung zu zahlen. Wir erwarten von Libyen, daß es sich umgehend und vollständig dementsprechend verhält." Anschließend habe sich der Sicherheitsrat der Vereinten Nationen mit dieser Erklärung, die als Sicherheitsrats-Dokument S / 23308 geführt werde, befaßt und am 21. Januar 1992 die Resolution 731 (1992) angenommen. In dieser Resolution drücke der Sicherheitsrat seine tiefe Besorgnis über die Untersuchungsergebnisse aus, durch die libysche Amtsträger belastet würden und die sich in den Dokumen-

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ten des Sicherheitsrates — einschließlich des Dokumentes S / 23308 — fänden, wo Forderungen an Libyen im Zusammenhang mit dem Lockerbie-Attentat gestellt würden; außerdem werde in dieser Resolution die Tatsache mißbilligt, daß die libysche Regierung den darin enthaltenen Ersuchen um volle Zusammenarbeit bei der Feststellung der Verantwortlichkeit für die terroristischen Handlungen gegen den PanAm-Flug 103 noch nicht wirksam entsprochen habe; in Ziff. 3 der Resolution werde die libysche Regierung nachdrücklich gebeten, diesen Ersuchen sofort voll und wirksam zu entsprechen, um so zur Beseitigung des internationalen Terrorismus beizutragen.47 Während des mündlichen Verfahrens hätten alle Parteien darauf hingewiesen, daß möglicherweise die Verhängung von Sanktionen gegen Libyen durch den Sicherheitsrat unmittelbar bevorstehe. Libyen habe auf die Bezeichnung vorsorglicher Maßnahmen gedrängt, um die gegnerischen Parteien von Initiativen innerhalb des Sicherheitsrates abzuhalten. Drei Tage nach Abschluß des mündlichen Verfahrens habe der Sicherheitsrat die Resolution 748 (1992) vom 31. März 1992 angenommen.48 In dieser drücke der Sicherheitsrat seine Besorgnis darüber aus, daß die libysche Regierung dem Ersuchen seiner Resolution 731 (1992) immer noch nicht voll und wirksam entsprochen habe, ferner seine Überzeugung, daß die Unterbindung von Handlungen des internationalen Terrorismus, einschließlich solcher mit direkter oder indirekter staatlicher Beteiligung, für die Wahrung von internationalem Frieden und Sicherheit unabdingbar sei; er stelle fest, daß Libyens Verhalten, das weder durch konkrete Maßnahmen dem Terrorismus abgeschworen noch den Ersuchen in Resolution 731 (1992) voll und wirksam entsprochen habe, eine Bedrohung des internationalen Friedens und der internationalen Sicherheit darstelle. Im operativen Teil der Resolution, der ausdrücklich auf Kapitel V I I der Charta gestützt werde, habe der Sicherheitsrat beschlossen, daß die libysche Regierung nunmehr vollständig und ohne weitere Verzögerung Ziff. 3 der Resolution 731, die Ersuchen betreffend, die u. a. im Dokument S / 23308 enthalten seien, befolgen müsse; daß sich die libysche Regierung verpflichten müsse, alle Formen von terroristischen Handlungen und jedwede Unterstützung von terroristischen Gruppen endgültig einzustellen, und daß sie umgehend durch konkrete Maßnahmen ihren Verzicht auf den Terrorismus unter Beweis stellen müsse; daß am 15. April 1992 alle Staaten die nachstehenden Maßnahmen ergreifen würden, die solange Anwendung fänden, bis der Sicherheitsrat beschließe, daß die libysche Regierung den beiden vorgenannten Beschlüssen Folge geleistet habe; ferner würden alle Staaten, einschließlich der Nichtmitgliedstaaten der Vereinten Nationen, und alle internationalen Organisationen aufgefordert, streng in Übereinstimmung mit den Bestimmungen dieser Resolution zu handeln, ungeachtet etwaiger Rechte oder Pflichten aus einem vor dem 15. April 1992 geschlossenen internationalen Übereinkommen oder Vertrag oder einer vor diesem Datum gewährten Lizenz oder Bewilligung. 47 48

Deutscher Text der Resolution in: Vereinte Nationen 1992, 67. Deutscher Text der Resolution in: Vereinte Nationen 1992, 68.

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Der Gerichtshof führt sodann zur Begründung seiner Verfügung aus, daß er bei seiner Entscheidung über die Bezeichnung vorsorglicher Maßnahmen zwar den ihm vorgetragenen Sachverhalt prüfen müsse, jedoch nicht zu endgültigen Tatsachenfeststellungen und Rechtserkenntnissen kommen könne; das Recht der Parteien, um diese Fragen im Hauptsacheverfahren zu streiten, müsse von der Entscheidung in diesem vorläufigen Rechtsschutzverfahren unberührt bleiben. Zu berücksichtigen sei, daß alle Parteien als Mitglieder der Vereinten Nationen gemäß Art. 25 UN-Charta verpflichtet seien, die Beschlüsse des Sicherheitsrates anzunehmen und durchzuführen; in Anbetracht des gegenwärtigen Verfahrensstandes, wo es sich um die Bezeichnung vorläufiger Maßnahmen handele, gehe er prima facie davon aus, daß diese Verpflichtung auch für den in Resolution 748 (1992) enthaltenen Beschluß gelte; nach Art. 103 UN-Charta hätten die Verpflichtungen aus der Charta Vorrang vor Verpflichtungen aus anderen internationalen Ubereinkünften einschließlich des Montrealer Ubereinkommens; er sei im gegenwärtigen Verfahrensstand nicht berufen, endgültig die Rechtswirkung der Sicherheitsratsresolution 748 zu beurteilen; wie auch immer die Lage vor der Annahme dieser Resolution gewesen sei, jetzt sei es jedenfalls nicht angebracht, die von Libyen geltend gemachten Rechte aus dem Montrealer Übereinkommen durch die Bezeichnung vorsorglicher Maßnahmen zu schützen; darüber hinaus könnten mit einer Bezeichnung der von Libyen beantragten Maßnahmen die Rechte, die gemäß der Sicherheitsratsresolution 748 (1992) prima facie Großbritannien bzw. den Vereinigten Staaten zustünden, beeinträchtigt werden. Bei seiner Entscheidung über das Ersuchen um vorsorgliche Maßnahmen sei der Gerichtshof nicht berufen, über irgendeine der anderen Fragen, die ihm in diesem Verfahren gestellt worden seien, einschließlich der Frage seiner Zuständigkeit für das Hauptverfahren, zu urteilen. Die jetzige Entscheidung präjudiziere keinesfalls solche Fragen und lasse die Rechte der Parteien, wegen solcher Fragen Beweis anzutreten, unberührt. Aus diesen Gründen stellt der Gerichtshof mit 11 Stimmen gegen fünf 49 fest, daß es in Anbetracht der Umstände des Falles nicht angebracht sei, daß er seine Befugnis nach Art. 41 IGH-Statut zur Bezeichnung vorsorglicher Maßnahmen ausübe. C. Vizepräsident Oda und Richter Ni fügten der Verfügung Erklärungen bei; die Richter Evensen, Tarassov, Guillaume und Aguilar Mawdsley gaben eine gemeinsame Erklärung ab; die Richter Lachs und Shahabuddeen fügten individuelle Meinungen, die Richter Bedjaoui, Weeramantry, Ranjeva, Ajibola und Ad-hocRichter El-Kosheri abweichende Meinungen bei. Oda meint, die Entscheidung hätte nicht nur auf die Sicherheitsratsresolution 748 gestützt werden sollen; dies verleite nämlich zu der Annahme, der Gerichtshof 49

Richter Bedjaoui y Weeramantry,

Ranjeva, Ajibola; Ad-hoc-Richter El-Kosheri.

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wäre möglicherweise vor der Annahme der Resolution zu rechtlichen Schlußfolgerungen gelangt, die mit dem Vorgehen des Sicherheitsrates unvereinbar seien. Seiner Ansicht nach war der Erlaß vorsorglicher Maßnahmen vor allem deshalb zurückzuweisen, weil sich die von Libyen im vorläufigen Verfahren geltend gemachten Rechte mit denen des Hauptverfahrens nicht deckten; in jenem gehe es Libyen eigentlich um sein grundlegendes Recht, nicht zur Auslieferung von eigenen Staatsangehörigen gezwungen werden zu können, während es in diesem Verfahren um besondere Rechte aus der Montrealer Konvention gehe. Ni verweist auf die jeweils eigenen Funktionen des Sicherheitsrates und Internationalen Gerichtshofes, die es nicht ausschlössen, daß sich beide Organe mit der gleichen Angelegenheit befaßten. Er meint, daß Libyens Ersuchen schon wegen Nichteinhaltens der von Art. 14 Abs. 1 des Montrealer Ubereinkommens geforderten Sechsmonatsfrist hätte abgewiesen werden müssen. In ihrer gemeinsamen Erklärung bekräftigen Evensen, Tarassov, Guillaume und Aguilar Mawdsley die Entscheidung des Gerichtshofes, meinen allerdings, daß der Sicherheitsrat nicht genügend berücksichtigt habe, daß Libyen nach dem Montrealer Übereinkommen nur verpflichtet sei, im Falle einer Nichtauslieferung den Fall seinen zuständigen Behörden zum Zwecke der Strafverfolgung zu unterbreiten. Lachs befaßt sich mit dem Verhältnis der beiden einzigen Organe der Vereinten Nationen, die Entscheidungen mit verbindlicher Kraft treffen könnten, zueinander. Er verweist darauf, daß in der Charta keine völlige Gewaltentrennung vorgesehen sei, sondern eine Wechselwirkung, derzufolge diese beiden Organe im Einklang miteinander und ohne Beeinträchtigung der Befugnisse des jeweils anderen Organs handeln müßten. Shahabuddeen bekräftigt die Entscheidung des Gerichtshofes in vollem Umfang. Die beklagten Parteien allerdings, denen es darum gegangen sei, die beschuldigten Libyer vor ein unparteiisches Gericht zu bringen — was in Libyen nicht zu erwarten gewesen sei —, hätten ihrerseits mit ihrer Entschädigungsforderung ein Vorurteil über die Schuld der Libyer, über die ja erst ein Gericht befinden sollte, abgegeben. Bedjaoui meint, daß prima facie die von Libyen geltend gemachten Rechte bestünden und die Voraussetzungen für die Bezeichnung vorsorglicher Maßnahmen vorgelegen hätten. Allerdings seien diese Rechte Libyens durch die Resolution 748 (1992) zunichte gemacht worden. In diesem vorläufigen Rechtsschutzverfahren wäre es verfrüht gewesen, über die substantielle Frage der Rechtmäßigkeit und Gültigkeit der Resolutionen des Sicherheitsrats zu befinden; die Resolutionen seien daher prima facie als rechtmäßig und gültig anzusehen. Er hat Zweifel, ob der Gerichtshof die erst nach Abschluß des mündlichen Verfahrens angenommene Resolution überhaupt in seine Entscheidungsfindung hätte einbeziehen dürfen, sieht aber andererseits, daß die Resolution eine Anordnung vorläufiger Maßnahmen wirkungslos gemacht hätte. Er ist der Ansicht, daß der Gerichtshof, der bei der Bezeichnung vorsorglicher Maßnahmen nicht an die Anträge der Parteien

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gebunden sei, solche hätte erlassen müssen, etwa in Form einer Ermahnung oder eines Appells an alle Parteien, den Streit nicht zu verschärfen oder zu einer freundschaftlichen Beilegung des Streites beizutragen, entweder direkt oder durch das Sekretariat der Vereinten Nationen oder der Arabischen Liga. Weeramantry verweist auf die Besonderheit dieses Falles, bei dem sich der Internationale Gerichtshof und der Sicherheitsrat mit derselben Angelegenheit befaßt hätten. Auch er weist auf die jeweils eigenständigen Funktionen beider Organe hin; die Resolution 748 (1992) sei zwar für alle Staaten verbindlich. Ebenso wie Ranjeva und Adjibola ist er jedoch der Ansicht, daß damit der Gerichtshof nicht gehindert gewesen sei? vorsorgliche Maßnahmen, die nicht der Resolution widersprochen hätten, zu bezeichnen, wie etwa eine an alle Parteien gerichtete Aufforderung zur Vermeidung einer Streitverschärfung. El-Kosheri meint, daß der Sicherheitsrat mit der Annahme der Resolution 748 einen Kompetenzmißbrauch begangen habe, insoweit als diese Resolution eine Auslieferung von Libyen verlange, die mit dem Montrealer Übereinkommen und dem aut dedere aut iudicare-Prinzip nicht vereinbar sei; dieser Teil der Resolution könne daher für die Rechtsprechung des Gerichtshofes selbst auf prima facie- Basis keine rechtliche Wirkung entfalten, so daß der Gerichtshof nach herkömmlichem Muster vorsorgliche Maßnahmen hätte bezeichnen müssen. Dabei befürwortet er Maßnahmen, nach denen die beiden Verdächtigten in den Gewahrsam eines anderen Staates zu nehmen seien, in dem im allseitigen Einvernehmen ein angemessenes Gerichtsverfahren zu erwarten sei, und nach denen die Parteien sicherstellen müßten, daß sich der dem Gerichtshof vorgelegte Streit nicht verschärfen oder die ordnungsgemäße Rechtsprechung beeinträchtigt werde.

Die Tätigkeit der International Law Commission in den Jahren 1991 und 1992 Von Johannes Niewerth

Die International Law Commission (ILC) hielt im Berichtszeitraum ihre 43. und 44. Tagung in Genf ab. Die 43. Tagung fand vom 29. April bis 19. Juli 1991 statt und wurde von Abdul Koroma (Sierra Leone) geleitet. Sie war die letzte Tagung der ILC in ihrer 1986 für fünf Jahre gewählten Besetzung. Die 44. Tagung fand unter der Leitung von Christian Tomuschat (Deutschland) vom 4. Mai bis 24. Juli 1992 statt. Thematische Projekte waren weiterhin 1 die Erarbeitung von Konventionsentwürfen über — Immunität der Staaten und ihres Eigentums (I), — Recht der nicht-schiffahrtlichen Nutzung internationaler Wasserläufe (II), — Verbrechen gegen den Frieden und die Sicherheit der Menschheit (III), — völkerrechtliche Haftung für Schäden aufgrund nicht-völkerrechtswidriger Handlungen (IV), — Beziehungen zwischen Staaten und internationalen Organisationen (zweiter Teil) (V), — Staatenverantwortlichkeit (VI). Die 34 Mitglieder der ILC, die die Generalversammlung für die fünfjährige Amtszeit, beginnend mit dem 1. Januar 1992, gewählt hatte, sind aus der Gruppe der afrikanischen Staaten: Mohamed Bennouna (Marokko), Salifou Fomba (Mali), Kamil Idris (Sudan), Peter Kabatsi (Uganda), Abdul Koroma (Sierra Leone), Ahmed Mahiou (Algerien), Guillaume Pambou-Tchivounda (Gabun), Edilbert Razafindralambo (Madagaskar) und Doudou Thiam (Senegal); aus der Gruppe der asiatischen Staaten: Husain Al-Baharna (Bahrain), Awn Al-Khasawneh (Jordanien), John de Saram (Sri Lanka), Mehmet Güney (Türkei), Andreas Jacovides (Zypern), Mochtar Kusuma-Atmadja (Indonesien), Pemmaraju Sreenivasa Rao (Indien), Jiuyong Shi (China) und Chusei Yamada (Japan); aus der Gruppe der 1

Vgl. dazu den Vorbericht von Ursula E. Heinz und Arnim Findeklee, Die Tätigkeit der International Law Commission in den Jahren 1987 bis 1990, German Yearbook of International Law 34 (1992), 460-485.

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osteuropäischen Staaten: Vaclav Mikulka (Tschechoslowakei), Vladlen Vereshchetin (Rußland) und Alexander Yankov (Bulgarien); aus der Gruppe der lateinamerikanischen und karibischen Staaten: Julio Barboza (Argentinien), Carlos Calero Rodrigues (Brasilien), Patrick Lipton Robinson (Jamaika), Alberto Szekely (Mexiko), Edmundo Vargas Carreno (Chile) und Francisco Villagran Kramer (Guatemala); aus der Gruppe der westeuropäischen und anderen Staaten: Gaetano ArangoRuiz (Italien), Derek William Bowett (Vereinigtes Königreich), James Crawford (Australien), Gudmundur Eiriksson (Island), Alain Pellet (Frankreich), Robert Rosenstock (Vereinigte Staaten) und Christian Tomuschat (Deutschland). I. Immunität der Staaten und ihres Eigentums Während ihrer 43. Tagung beendete die ILC die 2. Lesung ihres Entwurfs zur Immunität der Staaten und ihres Eigentums. Den überarbeiteten Entwurf nahm sie an und empfahl der Generalversammlung in ihrem Bericht, eine internationale Konferenz einzuberufen, die auf der Basis des Entwurfes eine Konvention beschließen möge.2 Dies kann insbesondere deshalb als Erfolg gewertet werden, weil die Frage, unter welchen Umständen ein Staat vor den Gerichten eines anderen Staates verklagt werden kann, in Zeiten zunehmender wirtschaftlicher Verflechtung an Bedeutung gewinnt.3 Der Entwurf gliedert sich in Introduction (Art. 1 - 4), General Principles (Art. 5-9), Proceedings in which State Immunity cannot be invoked (Art. 10-17), State Immunity from Measures of Constraint in Connection with Proceedings before Court (Art. 18-19) und Miscellaneous Provisions (Art. 20-22). Zentrale Vorschrift ist Art. 5, der bestimmt, daß ein Staat und sein Eigentum vor den Gerichten anderer Staaten grundsätzlich Immunität genießen. Dieser Grundsatz basiert auf dem Rechtsgedanken/w inparem non habet iudicium, wonach aus der souveränen Gleichheit der Staaten folgt, daß kein Staat über einen anderen zu Gericht sitzen darf. 4 Staat sind dabei gem. Art. 2 Abs. 1 lit. b des Entwurfs auch die Länder eines Bundesstaats, sonstige Untergliederungen und andere Einheiten, soweit sie zur Ausübung hoheitlicher Befugnisse berechtigt sind. Ebenso wie in dem während der 1. Lesung beschlossenen Entwurf wird dieser Grundsatz aber dadurch eingeschränkt, daß in bestimmten Fällen ein Staat seine 2

Report of the International Law Commission (ILC) on the work of its forty-third session, G A O R , Forty-sixth Session, Supplement No. 10 ( U N Doc. A / 4 6 / 1 0 ) , para. 10. 3 So auch Thomas Fitschen , Völkerrechtskommission: Vorläufiger Abschluß dreier Vorhaben — Überlegungen zu künftigen Themen, Vereinte Nationen 5/1991, 173-174 (174). 4 Vgl. Helmut Steinberger, State Immunity, in: Rudolf Bernhardt (Hrsg.), Encyclopedia of Public International Law, Vol. 10, Amsterdam / New York / Oxford 1987,428-446 (429).

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Immunität nicht geltend machen kann.5 Der Grundsatz der restriktiven Immunität hat sich damit durchgesetzt.6 Festgelegt wurde weiterhin, daß die Immunität eines Staates vor den Gerichten anderer Staaten entfällt, wenn er der Jurisdiktion ausdrücklich zugestimmt hat (Art. 7) oder wenn er den Prozeß selbst herbeigeführt hat (Art. 8) sowie auch dann, wenn sich daraus Gegenklagen ergeben (Art. 9).7 Kernstück des Grundsatzes der restriktiven Immunität im Sinne des Entwurfs ist Art. 10, der bestimmt, daß ein Staat sich auch dann nicht auf seine Immunität berufen kann, wenn er sich in kommerziellen Transaktionen mit einer ausländischen natürlichen oder juristischen Person befindet. 8 Der weitere Begriff der commercial transaction trat dabei an die Stelle des engeren commercial contract .9 Die Definition der commercial transaction erfolgt in Art. 2 Abs. 1 lit. c. 10 Trotz der weiteren Fassung folgt Art. 10 im wesentlichen dem Entwurf der 1. Lesung. Zugrunde liegt dem Artikel letztlich die Unterscheidung von acta iure imperii und acta iure gestionis \11 wobei nur letztere der staatlichen Jurisdiktion unterfallen sollen. Neu ist aber Abs. 3. Er sieht vor, daß die Immunität eines Staates nicht beeinträchtigt ist, wenn die commercial transaction ein staatliches Unternehmen betrifft, das eine rechtlich eigenständige Person darstellt. 12 Er kam erst nach langen Diskus5 Vgl. Report of the International Law Commission (ILC) on the work of its thirtyeighth session, G A O R , Forty-first Session, Supplement No. 10 ( U N Doc. A / 4 1 / 1 0 ) , Art. 7 ff. 6 Christian Tomuschat , Jurisdictional Immunities of States and their Property, in: KarlHeinz Böckstiegel u. a. (Hrsg.), Festschrift für Ignaz Seidl-Hohenveldern , Köln 1988, 603628 (628); vgl. im einzelnen Georg Dahm / Jost Delbrück / Rüdiger Wolfrum y Völkerrecht, Bd. I 1, 457-463. 7

Vgl. auch die praktisch gleichlautenden Artikel des Drafts von 1986. Art. 10 para. 1: If a State engages in a commercial transaction with a foreign natural or juridical person and . . . differences relating to the commercial transaction fall within the jurisdiction of a court of another state, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction. 9 ILC-Report 1991 (Anm. 2), Commentary on Draft Article 2, para. 20. 10 "Commercial transaction" means: (i) any commercial contract or transaction for the sale of goods or supply of services; (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons. 11 Tomuschat (Anm. 6), 612; ebenso Dahm / Delbrück / Wolfrum (Anm. 6), 467. 12 Art. 10 para. 3: The immunity from jurisdiction enjoyed by a State shall not be affected w i t h regard to a proceeding which relates to a commercial transaction engaged in by a State enterprise or other entity established by the State which has an independent legal personality and is capable of: * (a) suing or being sued; and 8

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sionen zustande, um die Besonderheit der Staatsunternehmen mit abgetrenntem Eigentum in sozialistischen Staaten sowie von Staatsunternehmen in Entwicklungsländern zu berücksichtigen.13 In ihrem Kommentar zu Artikel 10 begründet die ILC Abs. 3 damit, daß in diesem Fall das Unternehmen als eigenständige Einheit in eigenen Angelegenheiten und nicht in Angelegenheiten des Staates handele.14 Kritisch anzumerken ist jedoch, daß oft nur schwer abzugrenzen sein wird, wann ein staatliches Unternehmen tatsächlich unabhängig ist. Jedenfalls kann auch ein rechtlich unabhängiges Unternehmen in nicht unerheblicher Weise vom Staat kontrolliert sein. Die Gefahr besteht, daß sich der Staat hier, etwa durch Unterkapitalisierung eines Unternehmens, seiner Verantwortung entziehen kann.15 Während der ILC-Beratungen wurde insbesondere auf die Gefahr hingewiesen, daß durch Abs. 3 die Regelung für commercial transactions im ganzen gefährdet sei.16 Der Entwurf der ILC nennt als Ausnahmen zur Staatenimmunität weiter Arbeitsverträge (Art. 11), Staatshaftung (Art. 12), Eigentum und Besitz (Art. 13), geistiges Eigentum (Art. 14), Beteiligungen an Unternehmen (Art. 15), Eigentum an Schiffen (Art. 16) und schließlich die Einigung über ein Schiedsverfahren (Art. 17). Ein in dem Entwurf der 1. Lesung enthaltener Artikel, der auch fiskalische Angelegenheiten wie Zölle und Steuern von der Staatenimmunität ausnahm17, wurde hingegen trotz Widerstandes während der Beratungen gestrichen. Begründet wurde dies damit, daß der Artikel das Verhältnis zwischen zwei Staaten und nicht (wie die anderen Artikel des Entwurfs) das Verhältnis eines Staates zu ausländischen Rechtssubjekten betreffe. 18 Art. 18 des Entwurfs regelt schließlich die Immunität staatlichen Eigentums gegenüber Zwangsvollstreckungsmaßnahmen im gerichtlichen Verfahren. Als Ausnahmen hierzu werden Zustimmung und Vermögen zu kommerziellen Zwecken, sofern eine Verbindung zur Forderung besteht, genannt.19 (b) acquiring, owning or possessing and disposing of property, including property which the State has authorized it to operate or manage. 13 ILC-Report 1991 (Anm. 2), Commentary on Draft Article 10, para. 11. 14 ILC-Report 1991 (Anm. 2), Commentary on Draft Article 10, para. 9 : . . . They engage in commercial transactions on their own behalf as separate entities from the parent State, and not on behalf of that State . . . In such a case, the immunity of the parent State itself is not affected, since it is not a party to the transaction. 15 So wohl auch Stephen C. McCaffrey , The forty-third session of the International Law Commission, American Journal of International Law 85 (1991), 703-709 (704); die Mißbrauchsgefahr gesteht selbst die I L C im ILC-Report 1991 (Anm. 2), Commentary on Draft Article 10, para. 11 ein. 16 17 18 19

ILC-Report 1991 (Anm. 2), Commentary on Draft Article 10, para. 11. Vgl. ILC-Report 1991 (Anm. 2), Draft Article 16. Vgl. ILC-Report 1991 (Anm. 2), Commentary on Draft Article 10, para. 12. Eingeschränkt wird die Vermögensklausel durch die Bestimmung des Art. 19.

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Als Manko des Entwurfs muß weiter betrachtet werden, daß er keine Regelungen über die Beilegung eventueller Streitigkeiten über Auslegung und Anwendung der beabsichtigten Konvention enthält.20 II. Recht der nicht-schiffahrtlichen Nutzung internationaler Wasserläufe Vorläufig nahm die ILC auf ihrer 43. Tagung in 1. Lesung einen Entwurf zum Recht der nicht-schiffahrtlichen Nutzung internationaler Wasserläufe an. Der überwiegende Teil der Artikel war schon auf vorhergehenden Tagungen formuliert worden 21, so daß nur noch 7 Artikel ergänzt werden mußten. Der Entwurf wurde von der Generalversammlung den Staaten zur Stellungnahme vorgelegt, so daß sich die ILC während ihrer 44. Tagung nicht mit dem Projekt befassen mußte.22 Als neuer Berichterstatter für den ausgeschiedenen Stephen C. McCaffrey wurde mit Robert Rosenstock nach Kearney , Schwebel und McCaffrey erneut ein USAmerikaner ernannt. Wichtigste Neuerung ist die Formulierung einer Begriffsbestimmung in Art. 2. 23 Internationaler Wasserlauf ist danach ein Wasserlauf, dessen Teile sich in verschiedenen Staaten befinden. Der Wasserlauf wird als System von über- und unterirdischen Wassern definiert, die durch ihren physikalischen Zusammenhang ein gemeinsames Ganzes bilden und einen gemeinsamen Ausfluß haben. Anrainerstaat ist ein Staat, auf dessen Gebiet sich ein Teil eines internationalen Wasserlaufes befindet. 24 Die nun angenommene Begriffsbestimmung des Wasserlaufs als System von Wassern war während der Arbeiten der ILC lange Zeit umstritten. Die Gegner dieser Definition machten geltend, daß dadurch möglicherweise alle Wasser eines Staates erfaßt würden. Sie unterfielen damit alle zwangsläufig internationaler Regulierung, was mit dem Prinzip der Souveränität der Staaten unvereinbar sei.25 Die 20

So auch Fitschen (Anm. 3), 174. Vgl. dazu Heinz / Findeklee (Anm. 1), 480-483. 22 ILC-Report 1991 (Anm. 2), para. 58. 23 Dabei wurde ein Austausch der Art. 1 ( scope of the present articles) und 2 (use of terms) vorgenommen. Außerdem wurde der alte Art. 3, der den Anrainerstaat definierte, in Art. 2 inkorporiert, vgl. ILC-Report 1991 (Anm. 2), para. 42. 21

24 Art. 2; For the purposes of the present articles: (a) "international watercourse" means a watercourse parts of which are situated in different States; (b) "watercourse" means a system of surface and underground waters constituing by virtue of their physical relationship a unitary whole and flowing into a common terminus; (c) "watercourse State" means a State in whose territory part of an international watercourse is situated. 25 ILC-Report 1991 (Anm. 2), para. 46.

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Mehrheit der Mitglieder der ILC setzte sich aber mit dem Argument durch, Flüsse, Seen, Gletscher, Reservoire und Kanäle könnten eine hydrologische Einheit darstellen. Ein menschlicher Eingriff an irgendeinem Punkt dieser Einheit könne deshalb im gesamten System Auswirkungen haben.26 Die ILC folgte damit den Vorstellungen des Berichterstatters Stephen C. McCaffrey in dessen 7. Bericht. 27 Auch Grundwasser kann nach diesem Konzept Teil eines Wasserlaufes sein.28 Die Akzeptanz des "System"-Konzeptes ist nach Ansicht des Berichterstatters darauf zurückzuführen, daß nach Fertigstellung anderer Artikel deutlich wurde, daß die Nutzung eines internationalen Wasserlaufes nur dann vom Entwurf erfaßt wird, wenn durch die Nutzung ein anderer Staat betroffen wird. 29 Die Ergänzung, daß die Wasser eines Systems einen gemeinsamen Ausfluß haben müssen, wurde auf Vorschlag einiger Mitglieder aufgenommen, die sich auf eine ähnliche Formulierung in den Helsinki-Regeln der ILA beriefen. 30 Die ursprünglich vorgesehene Einordnung der Wasserläufe als mit einem beschränkt internationalen Charakter ausgestattet wurde als überflüssig fallengelassen. 31 Angenommen wurde von der ILC weiter Art. 10, wonach keine Nutzung eines internationalen Wasserlaufes Vorrang vor einer anderen Nutzung hat. Hinzu kamen außerdem die Vorschriften des 6. Teils (miscellaneous provisions). Art. 26 bestimmt, daß von den Anrainerstaaten Verhandlungen über eine gemeinsame Verwaltung der Wasserläufe aufzunehmen sind. Art. 27 schreibt den Staaten Kooperation bei der Regulierung des Wasserflusses vor. Art. 28 betrifft die Aufrechterhaltung und den Schutz von Anlagen im Zusammenhang mit internationalen Wasserläufen. Art. 29 regelt den Schutz von internationalen Wasserläufen in Zeiten von bewaffneten Konflikten. Art. 32 bestimmt schließlich, daß Anrainerstaaten das Gebot der Nichtdiskriminierung von ausländischen natürlichen oder juristischen Personen zu beachten haben, die durch eine Handlung bezogen auf einen internationalen Wasserlauf einen Schaden erlitten haben.32 26

ILC-Report 1991 (Anm. 2), Commentary on Draft Article 2, para. 5: Because the surface and underground waters form a system, and constitute by virtue of their physical relationship a unitary whole, human intervention at one point in the system may have effects elsewhere in it. 27 U N Doc. A / CN.4/436, para. 10 ff.; vgl. auch Stephen C. McCaffrey , The International Law Commission and its Efforts to Codify the International Law of Waterways, Schweizer Jahrbuch für Internationales Recht 49 (1990), 32-55 (46). 28 ILC-Report 1991 (Anm. 2), para. 48 ff.; wobei jedoch Grundwasser, das keine Verbindung zu Oberflächenwasser hat, ausscheidet, ILC-Report 1991 (Anm. 2), Commentary on Draft Article 2, para. 5. 29

McCaffrey (Anm. 15), 706. ILC-Report 1991 (Anm. 2), para. 45; Commentary on Draft Article 2, para. 7: This requirement was included in order to introduce a certain limitation upon the geographic scope of the articles. 3 * ILC-Report 1991 (Anm. 2), para. 52 ff. 30

29 GYIL 36

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Neben Art. 32 hatte der Berichterstatter zur Durchsetzung der Artikel des Entwurfs in seinem 6. Bericht weitere Vorschläge gemacht. So sollten Anrainerstaaten Geschädigten einen Rechtsweg zur Erlangung von Schadensersatz garantieren. Dabei sollte Ausländern gegenüber Inländern eine Gleichbehandlung zugute kommen.33 International sollte auf staatliches Ersuchen durch eine zu gründende internationale Organisation ein fact-finding durchgeführt werden. Eine Schlichtung von Streitigkeiten sollte durch eine Verpflichtung zur friedlichen Streitbeilegung ermöglicht werden. Dafür waren in der Reihenfolge Beratungen und Verhandlungen, dann Vermittlung durch eine dafür vorgesehene Kommission und schließlich Schiedsgerichtsbarkeit vorgesehen.34 Diese Artikel zur Durchsetzung der Regelungen wurden nicht in den Entwurf übernommen.35 Es bleibt zu wünschen, daß die ILC diese Punkte wiederaufgreift, wenn sie sich mit dem Entwurf in 2. Lesung befaßt. Angesichts der Tatsache, daß viele grundlegende Vorschriften des Entwurfs sehr flexibel formuliert sind 36 , könnte ihnen durch die Regelung eines Durchsetzungsmechanismus mehr Effektivität verliehen werden. 37 III.,Kodex über Verbrechen gegen den Frieden und die Sicherheit der Menschheit Zum Thema Verbrechen gegen den Frieden und die Sicherheit der Menschheit beschloß die ILC auf ihrer 43. Tagung in 1. Lesung den Entwurf eines Kodex. Diesem Entwurf kommt wegen seiner Wichtigkeit und Aktualität ganz besondere Bedeutung zu. 38 Die ILC diskutierte zunächst ausführlich den 9. Bericht des Berichterstatters Doudou Thiam. 39 32

Art. 32: Watercourse States shall not discriminate on the basis of nationality or residence in granting access to judicial and other procedures, in accordance with their legal systems, to any natural or juridical person who has suffered appreciable harm as a result of an activity related to an international watercourse nor is exposed to a threat thereof. 33 Sixth Report on the Law of the non-navigational Uses of International Watercourses by Stephen C. McCaffrey , U N Doc. A / CN.4/427, 53 ff. 34 Sixth Report (Anm. 33), Addendum, U N Doc. A / CN.4/427 / Add. 1, 29 ff. 35

ILC-Report 1991 (Anm. 2), para. 35; die I L C nennt als Grund für die Nichtbefassung Zeitmangel. 36 Bei dem Entwurf handelt es sich ohnehin nur um ein Rahmenabkommen, vgl. McCaffrey (Anm. 27), 45. 37 McCaffrey verweist etwa auf Art. 5, der den Grundsatz der equitable utilization vorschreibt. Die Unbestimmtheit dieses und anderer Artikel könne die Effektivität der Regelungen des Entwurfs im ganzen gefährden, McCaffrey (Anm. 15), 706. 38

Siehe dazu Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, Dordrecht / Boston / London 1992; zum ehemaligen Jugoslawien: Stefan Oeter y Kriegsverbrechen in den Konflikten um das Erbe Jugoslawiens, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 53 (1993), 1-48.

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Im ersten Teil seines Berichtes hatte Thiam gefordert, daß der Kodex wegen des Grundsatzes nulla poena sine lege Strafen vorsehen müsse. Zwar sei es schwierig, wegen der unterschiedlichen Rechtsordnungen zu einem einheitlichen internationalen System von Strafzumessung zu gelangen. Da es sich aber bei allen zur Diskussion stehenden Verbrechen um Delikte ganz besonderer Schwere handele, sei es möglich, eine generelle Formel zu finden, wonach ein Strafrahmen mit Mindest- und Höchststrafe festgesetzt werden könne.40 Dabei ging der Berichterstatter von der lebenslangen Freiheitsstrafe als Höchststrafe aus.41 Im zweiten Teil seines Berichts regte Thiam eine intensivere Diskussion darüber an, wie die Gerichtsbarkeit eines möglicherweise zu gründenden Internationalen Strafgerichtshofes (IStGH) aussehen könne und welche Voraussetzungen für die Eröffnung eines Strafverfahrens erforderlich seien.42 Trotz der Bedenken einiger Mitglieder, die auf nationale Besonderheiten hinwiesen43, folgte die Mehrheit der Mitglieder der ILC dem Ansatz des Berichterstatters, daß der Kodex Strafen vorsehen müsse.44 Sehr umstritten war jedoch die Frage, ob eine gemeinsame Formulierung des Strafrahmens ausreiche oder ob für jedes Verbrechen eine Strafe vorgesehen sein müsse. Die Befürworter separater Strafen argumentierten, es bestehe zwischen den einzelnen Straftatbeständen des Kodex sehr wohl ein Unterschied. 45 Die andere Seite hielt dem entgegen, diesem Unterschied könne durch die jeweilige Strafzumessung Rechnung getragen werden. 4 6 Auch der Umfang des Strafrahmens war Gegenstand langwieriger Diskussionen. Während einige Mitglieder sich mit dem Hinweis für die Todesstrafe aussprachen, daß der Kodex sonst für viele Staaten nicht akzeptierbar sei47, folgten andere der Meinung des Berichterstatters. Sie begründeten dies mit einem weltweiten Trend zur Abschaffung der Todesstrafe. 48 Auch die lebenslange Freiheitsstrafe wurde von einigen Mitgliedern abgelehnt.49 Wegen dieser Meinungsver. schiedenheiten beschloß die ILC schließlich, eine Entscheidung auf die 2. Lesung zu vertagen.50 39

U N Doc. A / CN.4/435 und Add. 1 und Corr. 1. Thiam stellte einen solchen Artikel als Vorschlag an das Ende des ersten Teils (Draft Article Z), vgl. ILC-Report 1991 (Anm. 2), para. 67. 41 Vgl. ILC-Report 1991 (Anm. 2), para. 75. 42 Vgl. ILC-Report 1991 (Anm. 2), para. 68. 43 Vgl. ILC-Report 1991 (Anm. 2), para. 79. 44 Vgl. ILC-Report 1991 (Anm. 2), para. 78. 45 Vgl. ILC-Report 1991 (Anm. 2), para. 81. 46 Vgl. ILC-Report 1991 (Anm. 2), para. 82. 47 Vgl. ILC-Report 1991 (Anm. 2), para. 85. 48 Vgl. ILC-Report 1991 (Anm. 2), para. 84. 49 Vgl. ILC-Report 1991 (Anm. 2), paras. 88, 89. 50 Vgl. ILC-Report 1991 (Anm. 2), para. 171, die einzelnen Artikel enden deshalb bisher mit der Formel: "shall, on conviction thereof, be sentenced (to . . . ) . " 40

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Hinsichtlich der Gerichtsbarkeit eines IStGH war die ILC durch Res. 44/39 der Generalversammlung vom 4. Dezember 1989 dazu ermächtigt, im Rahmen ihrer Arbeit an dem Entwurf auch diese Frage zu analysieren.51 Der Berichterstatter hatte daher einen vorläufigen Entwurf zur Strafbarkeit von Individuen vorgelegt. Die ILC teilte ihre Diskussion in mehrere Punkte auf. Zunächst befaßte sie sich mit der Frage der Natur oder Reichweite der Gerichtsbarkeit eines IStGH. Dazu wurde zum einen die Ansicht vertreten, der Gerichtshof müsse die ausschließliche Gerichtsbarkeit haben. Die Vertreter dieser Ansicht verwiesen vor allem auf die Klarheit ihrer Lösung.52 Andere favorisierten unter Hinweis auf die staatliche Souveränität eine konkurrierende Zuständigkeit von nationalen Gerichten und dem zu schaffenden IStGH. 53 Eine dritte Meinung sprach sich dafür aus, dem internationalen Gericht nur eine Revisionszuständigkeit zuzugestehen.54 Bezüglich der Zuständigkeit ratione materiae folgte eine Ansicht dem aus pragmatischen Erwägungen engen Ansatz des Berichterstatters, wonach der Gerichtshof nur diejenigen Verbrechen aburteilen solle, die in internationalen Konventionen bereits bestimmt seien.55 Andere traten im Sinne einer Gleichbehandlung dafür ein, die Gerichtsbarkeit auf alle im Kodex bezeichneten Verbrechen auszudehnen. 5 6 Hinsichtlich der Übertragung der Zuständigkeit wurden drei Ansichten vertreten. Eine Ansicht lehnte eine separate Übertragung von Zuständigkeit als mit der Bedeutung der Strafbarkeit der Verbrechen des Entwurfs nicht vereinbar ab. Ähnlich wie beim Internationalen Gerichtshof (IGH) müßten die Staaten gleichzeitig mit dem Beitritt zum Statut des Gerichtshofs dessen bindende Gerichtsbarkeit anerkennen.57 Eine zweite Ansicht unterstützte den Ansatz des Berichterstatters, wonach der Staat, in dem das Verbrechen begangen worden sei, Zuständigkeit übertragen könne.58 Zusätzlich müßten auch die Staaten Zuständigkeit übertragen können, deren Staatsangehörige Angeklagte oder Opfer oder die selbst Opfer 51 Erneuert durch G A Res. 45/41 vom 28. November 1990 u. 46/54 vom 9. Dezember 1991; zur Problematik eines I S t G H M. Cherif Bassioumi / Christoph er L. Blakesley, The Need for an International Criminal Court in the New International World Order, Vanderbilt Journal of Transnational Law 1992, 151-182; M. Cherif Bassioumi, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, Dordrecht / Boston / Lancaster 1987; für das ehemalige Jugoslawien: Pay an Akhavan, Punishing War Crimes in the former Yugoslavia, Human Rights Quarterly 1993, 262-289. 52 53 54 55 56 57 58

Vgl. Vgl. Vgl. Vgl. Vgl. Vgl. Vgl.

ILC-Report ILC-Report ILC-Report ILC-Report ILC-Report ILC-Report ILC-Report

1991 1991 1991 1991 1991 1991 1991

(Anm. (Anm. (Anm. (Anm. (Anm. (Anm. (Anm.

2), 2), 2), 2), 2), 2), 2),

para. 115. para. 114. para. 116. paras. 107, 119. para. 121. para. 126. paras. 108, 123.

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seien, wenn ihr nationales Recht in diesen Fällen eine Gerichtsbarkeit vorsehe.59 Die dritte Ansicht wendete sich schließlich lediglich gegen eine Aufnahme des Territorialitätsprinzips in die Übertragungsklausel. 60 Eine große Mehrheit unterstützte den Berichterstatter hingegen in seiner Ansicht, daß der Gerichtshof auch zuständig sein müsse, eine Vorschrift des internationalen Strafrechts auf Ersuchen auszulegen.61 Dies werde wesentlich zur Harmonisierung und Vereinheitlichung des internationalen Strafrechts beitragen. Der letzte vom Berichterstatter angeregte Erörterungspunkt betraf dann die Eröffnung eines Strafverfahrens als solchem. Der Berichterstatter hatte auch hierzu einen vorläufigen Entwurf formuliert. 62 Zu der Frage, wer ein Gerichtsverfahren anstrengen könne, wurde neben den vom Berichterstatter vorgesehenen Staaten63 auch an einen internationalen "Staatsanwalt"64 sowie an internationale Organisationen65 gedacht. Zum Verhältnis von Sicherheitsrat und Gerichtshof im Falle von Verbrechen aufgrund eines Verstoßes gegen das Verbot der Aggression schlug der Berichterstatter vor, daß in diesen Fällen zunächst der Sicherheitsrat entscheiden müsse, ob ein solches Verbrechen vorliege. 66 Diesen Ansatz lehnten viele Mitglieder mit dem Hinweis auf Entscheidungsschwächen des Sicherheitsrates, die etwa auf das Vetorecht zurückzuführen seien, sowie seinen politischen Charakter ab.67 Im Hinblick auf diese Bedenken schränkte der Berichterstatter seinen Ansatz insofern ein, als eine Entscheidung des Sicherheitsrates nur dann präkludierende Wirkung habe, wenn durch sie tatsächlich das Vorliegen einer Aggression festgestellt werde. 68 Zu keinem der Punkte aus dem 9. Bericht des Berichterstatters konnte aber eine solche Einigkeit erzielt werden, daß es zu einem Beschluß der ILC gekommen wäre. Jedoch wurden dem schließlich verabschiedeten Entwurf eine Reihe neuer Artikel beigefügt, sowie seine Struktur überarbeitet. Der Entwurf, der an die Staaten 59 Durch diese Ansicht werden Territorialitäts- und Personalitätsprinzip miteinander verbunden, vgl. ILC-Report 1991 (Anm. 2), para. 108. 60

Vgl. ILC-Report 1991 (Anm. 2), para. 125.

61

Vgl. ILC-Report 1991 (Anm. 2), para. 109, 132. Criminal proceedings > 1. Criminal proceedings in respect of crimes against the peace and security of mankind shall be instituted by States. 2. However, in the case of the crimes of aggression or the threat of aggression, criminal proceedings shall be subject to prior determination by the Security Council of the existence of such crimes. 63 ILC-Report 1991 (Anm. 2), para. 141. 64 ILC-Report 1991 (Anm. 2), para. 147. 65 ILC-Report 1991 (Anm. 2), para. 149. 66 ILC-Report 1991 (Anm. 2), para. 143. 67 ILC-Report 1991 (Anm. 2), paras. 154, 157. 62

68

ILC-Report 1991 (Anm. 2), para. 164.

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zur Stellungnahme weitergeleitet wurde 69 , besteht nunmehr aus zwei Teilen. Der 1. Teil besteht aus den Kapiteln Definition and characterization 70 und General principles 71, der 2. Teil enthält sodann die Crimes against the peace and security of mankind. 72 Der neue Art. 3 bestimmt, daß ein Individuum, das ein Verbrechen gegen den Frieden und die Sicherheit der Menschheit begangen hat, dafür verantwortlich ist und bestraft werden muß. Dabei begründen auch Teilnahme und Versuch die individuelle Verantwortlichkeit. Gemäß Art. 4 wird die Verantwortlichkeit nicht durch eine Motivation ausgeschlossen, die nicht durch die Begriffsbestimmung des jeweiligen Deliktes gedeckt ist. Gemäß Art. 5 berührt die Verfolgung eines Individuums die mögliche Verantwortlichkeit eines Staates nicht. Art. 11 stellt klar, daß auch ein Befehl nichts an der Verantwortlichkeit des Individuums ändert, es sei denn, es konnte sich dem Befehl nicht widersetzen. Art. 14 schließlich befaßt sich mit Rechtfertigungs- und Entschuldigungsgründen.73 Dem 2. Teil des Entwurfs wurden schließlich einige neuformulierte Verbrechen gegen den Frieden und die Sicherheit der Menschheit beigefügt. In Art. 19 ist der Völkermord geregelt.74 Art. 20 befaßt sich mit der Apartheid, Art. 21 mit systematischen oder massenhaften Verletzungen von Menschenrechten, Art. 22 mit besonders schweren Kriegsverbrechen und Art. 26 mit der vorsätzlichen Herbeiführung weiträumiger, langandauernder und schwerer Umweltschäden. Insgesamt ist die endgültige Verabschiedung des Entwurfs in 1. Lesung als Erfolg zu werten. Negativ ins Gewicht fällt jedoch, daß die ILC augenscheinlich mehr darum bemüht war, den Entwurf fertigzustellen, als eine Präzision zu erreichen, die dem Grundsatz nulla poena sine lege genügt hätte.75 69

ILC-Report 1991 (Anm. 2), para. 174.

70

Art. 1 und 2.

71

Art. 3 bis 14. Art. 15 bis 26. 73 Art. 14 nennt diese nicht ausdrücklich, sondern überläßt es dem Gericht, festzustellen, ob solche Gründe vorliegen. Die I L C gibt zu, daß sie während der 1. Lesung noch nicht in der Lage war, sich auf einzelne Gründe zu einigen, vgl. ILC-Report 1991 (Anm. 2), Commentary on Draft Article 14, para. 1. 72

74

1. A n individual who commits or orders the commission of an act of genocide shall, on conviction thereof, be sentenced (to . . . ) . 2. Genocide means any of the following acts committed w i t h intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

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Während ihrer 44. Tagung mußte sich die ILC nicht weiter mit dem 1. Entwurf befassen, da dieser den Staaten zur Stellungnahme vorlag. Sie befaßte sich aber weiter mit Fragen einer internationalen Strafgerichtsbarkeit. In diesem Zusammenhang lag ihr der 10. Bericht des Berichterstatters Doudou Thiam vor. 76 Zunächst wurde die Frage behandelt, ob ein internationales Strafgericht überhaupt sinnvoll sei. Einige Mitglieder der ILC zeigten sich insbesondere unter Hinweis auf die Realität des unveränderten Beharrens der Staatengemeinschaft auf dem Grundsatz staatlicher Souveränität skeptisch.77 Die Mehrheit argumentierte jedoch, daß die jüngsten Ereignisse der Weltpolitik gezeigt hätten, daß es eine internationale Instanz geben müsse.78 Hinsichtlich der Struktur eines IStGH sprach sich die Mehrheit für ein zwar permanent bestehendes aber nur für den konkreten Fall ad hoc zusammentretendes Gericht aus.79 Bezüglich der Gerichtsbarkeit wurden wie auf der vorhergehenden Tagung die Fragen behandelt, ob die Gerichtsbarkeit bindend oder freiwillig sei80, ob sie ausschließlich oder konkurrierend sei81 und ob sie mit den Strafen des Kodex verbunden sein solle.82 Diskutiert wurde ebenfalls die Frage, wer ein internationales Strafverfahren eröffnen könne.83 Schließlich wurde erneut die Frage behandelt, welche Staaten Zuständigkeit übertragen müßten.84 Als neuer Diskussionsgegenstand kam die Frage hinzu, ob ein IStGH auch Schadensersatzklagen mitbe75 McCaffrey führt dies darauf zurück, daß es sich erstens um das letzte Jahr der Amtsperiode der I L C handelte und daß zweitens der Golf-Konflikt zur Beschleunigung der Fertigstellung beitrug, vgl. Mc Caffrey (Anm. 15), 707. 7 U N Doc. A / CN.4/442. 77 Report of the International Law Commission (ILC) on the work of its forty-fourth session, G A O R , Forty-seventh Session, Supplement No. 10 ( U N Doc. A / 4 7 / 1 0 ) , paras. 30, 31. 78 79

ILC-Report 1992 (Anm. 77), para. 29. ILC-Report 1992 (Anm. 77), para. 33.

80 Hinsichtlich dieses Punktes gab es nunmehr eine Ansicht, die dafür eintrat, daß der dem Statut beitretende Staat, die Wahl haben müsse, hinsichtlich welcher Delikte er die Gerichtsbarkeit anerkenne. Eine andere Meinung schränkte dies dahingehend ein, daß der Gerichtshof für bestimmte Delikte zwingende Gerichtsbarkeit haben müsse, vgl. ILC-Report 1992 (Anm. 77), para. 37. 81 Auch hier zeichnete sich im Sinne des Berichterstatters eine gemischte Lösung ab, wonach für einige besonders schwere Delikte eine ausschließliche Zuständigkeit gegeben sein müsse, vgl. ILC-Report 1992 (Anm. 77), para. 41. 82 Hierzu wurde vorgeschlagen, Zuständigkeiten des Gerichtshofes sowohl vor Gültigkeit des Kodex als auch erweitert danach vorzusehen. Ansonsten zeichnete sich auch hier eine Wahlmöglichkeit der Staaten ab, vgl. ILC-Report 1992 (Anm. 77), paras. 48, 49. 83 Dabei war besonders umstritten, ob nur betroffene Vertragsstaaten, alle Vertragsstaaten oder sogar jeder Staat antragsbefugt sein solle, vgl. ILC-Report 1992 (Anm. 77), paras. 5360. 84 Vgl. ILC-Report 1992 (Anm. 77), paras. 64-67.

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handeln könne. Dies war vom Berichterstatter vorgeschlagen worden und wurde von einigen Mitgliedern unterstützt, während es andere entschieden ablehnten.85 Am Ende der Diskussion des 10. Berichts beschloß die ILC, zur weiteren Erörterung der aufgeworfenen Fragen eine Arbeitsgruppe zu gründen. 86 Diese Arbeitsgruppe hielt im folgenden 16 Arbeitstreffen ab. Anschließend gab sie einen Bericht mit detaillierten Empfehlungen zu den aufgeworfenen Problemen ab.87 Die Ergebnisse dieses Berichts können wie folgt zusammengefaßt werden: 1. Der IStGH sollte durch ein Statut in Form eines multilateralen Vertrages gegründet werden. 2. Seine Gerichtsbarkeit sollte sich auf Individuen und nicht auf Staaten erstrecken. 3. Seine Gerichtsbarkeit sollte sich nur auf die Verbrechen internationalen Charakters beschränken, die sich aus wirksamen internationalen Verträgen ergeben. Ein solcher Vertrag kann auch der Kodex sein. Ein Staat kann aber Vertragspartei des Statuts werden, ohne Vertragspartei des Kodex zu sein. 4. Der IStGH sollte keine zwingende Gerichtsbarkeit in dem Sinne haben, daß jeder Mitgliedsstaat des Statuts seiner Rechtssprechung ipso facto unterworfen ist. 5. Bei dem IStGH sollte es sich um einen ständig verfügbaren ad hoc Mechanismus handeln. 6. In jedem Fall muß der IStGH die rechtsstaatlichen Verfahrensregeln des due process , der Unabhängigkeit und Unparteilichkeit garantieren. Durch diese klaren Ergebnisse hat die Arbeitsgruppe das Projekt eines IStGH entscheidend vorangebracht. 88 Nach Kenntnisnahme des Berichts der Arbeitsgruppe beschloß die ILC, daß sie nunmehr den Auftrag der Generalversammlung von 1989, die Frage der Errichtung eines IStGH oder eines anderen internationalen Strafrechtsmechanismus zu analysieren, erfüllt habe. Für eine weitere Arbeit im Sinne eines detaillierten Entwurfs zur internationalen Strafgerichtsbarkeit bedürfe es eines expliziten Auftrages der Generalversammlung. 89 Dieser ist insbesondere deshalb erforderlich, weil ohne klare Anweisung der Generalversammlung nicht sicher ist, ob die ILC nicht jahrelang an einem Projekt arbeitet, das ohnehin keine Aussicht auf Erfolg hat.90 85

Vgl. ILC-Report 1992 (Anm. 77), paras. 88-92. Vgl. ILC-Report 1992 (Anm. 77), para. 98. 87 Dieser Bericht ist U N Doc. G A O R / A / 47/10 als Annex beigefügt. 88 So Thomas Fitschen, Völkerrechtskommission: Tagung in neuer Zusammensetzung — Leitlinien für einen internationalen Strafmechanismus, Vereinte Nationen 5/1992, 171. 89 Vgl. ILC-Report 1992 (Anm. 77), para. 104. 86

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IV. Völkerrechtliche Haftung für Schäden aufgrund nicht-völkerrechtswidriger Handlungen Zur völkerrechtlichen Haftung für Schäden aufgrund nicht völkerrechtswidriger Handlungen legte Berichterstatter Julio Barboza auf der 43. Tagung seinen 7. Bericht vor. 91 Dieser Bericht enthielt keine neuen Artikelentwürfe, sondern war dazu bestimmt, die Debatte innerhalb der ILC auf bestimmte Punkte zu konzentrieren. Zwar zeigten sich manche Mitglieder der ILC über das Fehlen einer weiteren Fortentwicklung des Themas enttäuscht92, andererseits wurde festgestellt, daß sich seit 1988 zehn Artikel im Drafting Committee befänden. 93 Wegen der Priorität anderer Vorhaben habe es sich mit ihnen immer noch nicht befaßt.

Die Themen, die der Berichterstatter zur Diskussion vorschlug, waren Titel, Natur und Anwendungsbereich des Projekts und als Prinzipien Verhinderung und Verantwortlichkeit für grenzüberschreitende Schäden und Schäden an Staatengemeinschaftsräumen (global commons)? 4 Hinsichtlich des Titels des Projekts war man sich wegen der größeren Reichweite der Begrifflichkeit mehrheitlich darüber einig, nicht weiter von schädigenden acts, sondern von activities zu sprechen.95 Die Natur des Projekts, bindende Konvention oder bloße Programmsätze, war nach wie vor so umstritten, daß man sich darauf einigte, eine klare Entscheidung darüber auf einen späteren Zeitpunkt zu verschieben.96 Zum Anwendungsbereich des Projekts sprach sich eine Mehrheit dafür aus, activities involving risk und activities with harmful effects gemeinsam zu behandeln, da beide für die Staaten identische Verpflichtungen erforderten. Eine Liste gefährlicher Aktivitäten und Substanzen solle jedoch nicht geschaffen werden. 97 Hinsichtlich der vorgesehenen Prinzipien konzentrierte sich die Debatte auf Vorbeugung (prevention) und Schadensersatz ( reparation ). Bei der Vorbeugung wurde zwischen Verfahrensmaßnahmen wie assessment, notification , information , initiative und consultation und einseitigen Vorsichtsmaßnahmen unterschieden. Dabei ging eine starke 90 Zwar hatte die G A in Res. 46/54 die I L C gebeten, ihr "to provide guidance on the matter", Rosenstock hebt aber richtig hervor, daß auch in den 50'er Jahren schon Entwürfe eines Statuts vorgelegen haben. " A lack of clear guidance" durch die Generalversammlung sei auch deshalb nicht wünschenswert, weil die G A als politisches Organ für eine solche Entscheidung verantwortlich sei, vgl. Robert Rosenstock, The forty-fourth Session of the I L C , American Journal of International Law 87 (1993), 138-144 (139). 91

U N Doc. A / CN.4/437 und Corr. 1. Vgl. ILC-Report 1991 (Anm. 2), para. 186. 93 Aus diesem Grund hatte der Berichterstatter keine weiteren Artikelentwürfe vorgelegt, vgl. Vgl. ILC-Report 1991 (Anm. 2), para. 182; U N Doc. A / C N . 4 / 4 3 7 , para. 1. 94 Vgl. U N Doc. A / CN.4/437. 95 Vgl. ILC-Report 1991 (Anm. 2), paras. 198, 199; Heinz / Findeklee (Anm. 1), 475. 96 Vgl. ILC-Report 1991 (Anm. 2), paras. 202-212. 97 Vgl. ILC-Report 1991 (Anm. 2), paras. 213-221. 92

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Tendenz dahin, erstere nur als Empfehlungen, letztere hingegen als Ausfluß des due diligence- Prinzips bindend zu formulieren. 98 Beim Schadensersatz war es unwidersprochene Ansicht, daß das unschuldige Opfer einen entstehenden Schaden nicht allein tragen könne. Dabei ging der Trend in Richtung einer kombinierten Verantwortlichkeit von privatem Handelnden (primary liability ) und Staat (residual liability) ." Zur Frage, ob auch Probleme des Schadens an Staatengemeinschaftsräumen (global commons) im Projekt behandelt werden sollen, wurde noch keine Einigkeit erzielt. 100 Auf ihrer 44. Tagung befaßte sich die ILC mit dem 8. Bericht des Berichterstatters. 1 0 1 Sie setzte eine Arbeitsgruppe ein. Auf der Grundlage der Ergebnisse dieser Arbeitsgruppe gab sie folgende Empfehlungen ab: Der Anwendungsbereich des Projektes könne noch nicht abschließend festgelegt werden. Sowohl Vorbeugung als auch nachträgliche Maßnahmen (remedial measures wie mitigation , restoration , compensation) müßten aber erfaßt sein102, wobei die Vorbeugung zuerst zu behandeln sei. Auch müsse eine Beschränkung auf Aktivitäten erfolgen, die ein substantial risk of causing transboundary harm beinhalteten.103 Auch die Frage der rechtlichen Natur der entworfenen Artikel wurde auf einen späteren Zeitpunkt verschoben.104 Bezüglich des Titels des Projekts beschloß die ILC, weiterhin mit dem Begriff activities zu arbeiten. Eine endgültige Entscheidung war indes auch dies nicht. 105 Der weitere Fortgang des Komplexes muß kritisch beurteilt werden, insbesondere da es bisher nicht gelungen ist, den Anwendungsbereich, die rechtliche Natur und den Titel des Entwurfs festzulegen. 106 V. Beziehungen zwischen Staaten und Internationalen Organisationen (Zweiter Teil) Während der 43. Tagung diskutierte die ILC den 5. und 6. Bericht des Berichterstatters Leonardo Diaz-Gonzalez. 107 In diesem schlug er neue Artikel für den 98

Vgl. ILC-Report 1991 (Anm. 2), paras. 228-232.

99

Vgl. ILC-Report 1991 (Anm. 2), paras. 236-253. Vgl. ILC-Report 1991 (Anm. 2), paras. 254-259. 101 U N Doc. A / CN.4/443 und Corr. 1 und Corr. 2.

102

Vgl. ILC-Report 1992 (Anm. 77), paras. 344, 345. Vgl. ILC-Report 1992 (Anm. 77), para. 346. Vgl. ILC-Report 1992 (Anm. 77), para. 347. 105 Vgl. ILC-Report 1992 (Anm. 77), para. 348.

103

106

So auch McCaffrey (Anm. 15), 708. U N Doc. A / CN.4/438 und Corr. 1/2; A / CN.4/439); das Drafting Committee hat 1992 zu den Entwürfen nicht Stellung genommen und wird, angesichts seiner Arbeitsüberlastung, auch in den nächsten Jahren nicht dazu kommen, vgl. Peter H. F. Bekker, The works 107

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Teil IV des Entwurfs vor, der die Immunität der Kommunikation behandelt. Im 5. Bericht waren die vorgeschlagenen Artikel 12-17 enthalten, die sich mit Archiven, Veröffentlichungen und Kommunikation befaßten. Der 6. Bericht enthielt die Artikel 18-22 zur steuerlichen Immunität und zur Ausnahme von Zollverpflichtungen. Alle Artikel wurden nach Erörterung an das Drafting Committee weitergeleitet. 108 Angesichts der Tatsache, daß viele Aspekte des Projekts bereits in bestehenden Verträgen geregelt sind, fehlte es der I L C augenscheinlich an Enthusiasmus für dieses Thema. 1 0 9 Daher stellte sich die Frage nach Sinn und Zweck eines Abkommens überhaupt. 110

VI. Staatenverantwortlichkeit Der 43. Tagung der ILC lag der 3. Bericht des Berichterstatters Gaetano Arangio-Ruiz vor. 111 Sie konnte den Bericht aber aus Zeitgründen nicht behandeln.112

Auf der 44. Tagung legte der Vorsitzende des Drafting Committee der ILC einen Bericht vor, in dem der in 1. Lesung angenommene erste Teil von Entwurfsartikeln enthalten war. 113 Diese Artikel behandelten cessation , reparation , restitution in kind , compensation , satisfaction und assurances sowie guarantees of non repetition. Die ILC beschloß aber, sich mit einer Annahme dieser Artikel in 1. Lesung erst auf ihrer nächsten Tagung zu befassen, da Kommentierungen zu den einzelnen Artikeln noch nicht verfaßt waren. Es lag ihr jedoch zusammen mit dem unerledigten 3. Bericht nun auch der 4. Bericht des Berichterstatters vor. 114 Wie durch die beiden Berichte vorgegeben, konzentrierte sich die Debatte auf Gegenmaßnahmen (countermeasures). Begrifflich war man sich mit dem Berichterstatter darüber einig, daß countermeasures mit Repressalien gleichzusetzen seien. Retorsionen wurden damit aus dem Begriff der Gegenmaßnahmen ausgeschlossen.115 Für den neutralen Begriff countermeasures entschied man sich, um ihm jeden Anstrich von Vergeltung zu of the I L C on Relations between States and International Organizations, Leiden Journal of International Law 1993, 3-16 (14); U N Doc. A / CN.4 / L.473. 108 Vgl. ILC-Report 1991 (Anm. 2), para. 272. 109 So McCaffrey (Anm. 15), 708; Bekker (Anm. 107), 13. 110 So Fitschen (Anm. 3), 174; McCaffrey (Anm. 2), 708; gem. G A Res. 47/33 vom 25. November 1992 wird sich die I L C in dieser Amtsperiode nicht mehr mit dem Projekt befassen, vgl. Bekker (Anm. 107), 4. m U N Doc. A / CN.4/440 und Add. 1. 112 Vgl. ILC-Report 1991 (Anm. 2), para. 308. 113 114 115

U N Doc. A / CN.4 / L.472. U N Doc. A / CN.4/444 und Corr. 1 und Add. 1, 2 und 3. Vgl. ILC-Report 1992 (Anm. 77), para. 150.

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nehmen und klar zu machen, daß bewaffnete Repressalien in keinem Fall erlaubt seien.116 Zunächst war bereits umstritten, ob in dem Kodifikationsvorhaben überhaupt Artikel zu Gegenmaßnahmen vorgesehen sein sollten. Die Gegner einer Regelung brachten vor, daß Gegenmaßnahmen zwar in der Praxis vorkämen, aber gegen die modernen Prinzipien des Völkerrechts verstießen. Insbesondere seien durch ihre Kodifizierung die Starken gegenüber den Schwachen bevorteilt. 117 Die größere Zahl der Befürworter machte demgegenüber geltend, man könne die Gegebenheiten des internationalen Lebens nicht ignorieren und müsse deshalb auch das Problem der Gegenmaßnahmen regeln. 118 Diese Gruppe war sich indes nicht einig, wie eine Regelung aussehen solle. Manche folgten dem Berichterstatter in seiner Ansicht, Gegenmaßnahmen restriktiv zu regeln. 119 Andere sprachen sich insbesondere deshalb für einen weiten Spielraum der Staaten aus, weil es um die Fähigkeit eines verletzten Staates gehe, das Recht wiederherzustellen. 120 Ausgangspunkt war jedenfalls ein restriktives Verständnis von Gegenmaßnahmen, denen nach Ansicht des Berichterstatters alle verfügbaren Streitbeilegungsmechanismen vorausgehen müssen.121 Diskutiert wurde schließlich die Frage, welche Staaten Gegenmaßnahmen bei Verletzungen von erga omnes-Verpflichtungen ergreifen dürfen. Im Sinne einer restriktiven Handhabung der Gegenmaßnahmen sprach sich auch hier eine Minderheit dagegen aus, allen Staaten in gleicher Weise diese Möglichkeit zuzugestehen.122 Die Mehrheit folgte hingegen dem Berichterstatter, der argumentiert hatte, durch Verletzungen von erga omnes Verpflichtungen seien alle Staaten verletzt. 123 Am Ende der Debatte wurden die im 4. Bericht des Berichterstatters enthaltenen Formulierungsvorschläge an das Drafting Committee weitergeleitet. 124 Trotz dieser Fortschritte kann die Fortentwicklung des Projekts nur als bedingt positiv bezeichnet werden, weil die ILC wegen der fehlenden Kommentierungen nicht in der Lage war, erste Artikel bereits zu verabschieden.125

116

Vgl. ILC-Report 1992 (Anm. 77), para. 139. Vgl. ILC-Report 1992 (Anm. 77), para. 124. 118 Vgl. ILC-Report 1992 (Anm. 77), para. 130. Vgl. ILC-Report 1992 (Anm. 77), para. 131.

117

120

Vgl. ILC-Report 1992 (Anm. 77), para. 133; siehe auch Rosenstock (Anm. 90), 141. Vgl. ILC-Report 1992 (Anm. 77), paras. 160-163, 183-205. 122 Vgl. ILC-Report 1992 (Anm. 77), para. 271. 123 Vgl. ILC-Report 1992 (Anm. 77), para. 267; Draft Article 5 bis: Whenever there is more than on injured State, each one of them is entitled to exercise its legal rights under the rules set forth in the following articles. 121

124

Vgl. ILC-Report 1992 (Anm. 77), para. 119.

125

So auch Fitschen (Anm. 88), 171.

Bericht über die Tätigkeit des Europarates im Jahre 1992 Von Daniela Krantz

I. Organisatorische Fragen; Allgemeines 1. Im Berichtszeitraum 1 kam das Ministerkommitee des Europarates (MK), welches sich aus den Außenministern der Mitgliedstaaten zusammensetzt, zum ersten Mal am 7. Mai 1992 unter Vorsitz des Staatspräsidenten der Schweiz, Rene Felber, zu seiner 90. Sitzung zusammen.2 Die 91. Sitzung fand am 5. November 1992 unter Vorsitz des türkischen Außenministers Hikmet Qetin statt. Schon am 10. und 11. September 1992 hatte dieser das MK zu einer außerordentlichen Sitzung in Istanbul zusammengerufen. 3 2. Die Parlamentarische Versammlung (PV) hielt vom 3. bis 7. Februar 1992 den dritten Teil der 43. Sitzungsperiode ab.4 Der erste Teil der 44. Sitzungsperiode der PV fand vom 4. bis 8. Mai 1992,5 der zweite Teil vom 29. Juni bis 1. Juli 19926 und der dritte Teil vom 30. September bis 8. Oktober 19927 statt. 3. Am 5. Mai 1992 sprach sich die PV auf der 2. Sitzung der 44. Sitzungsperiode für die Aufnahme Bulgariens in den Europarat aus.8 1 Der folgende Bericht schließt an den Bericht von Johannes Niewerth, Bericht über die Tätigkeit des Europarates im Jahre 1991, in: German Yearbook of International Law (GYIL) 35 (1992), 507-544, an. 2 Council of Europe, Parliamentary Assembly, Documents, Working Papers (Doc.) 6672.1.1.; da bei Redaktionsschluß die offizielle Sammlung der Documents nicht zur Verfügung stand, werden diese nach Gliederungspunkten zitiert. 3 Doc. 6672.1.2. 4 Council of Europe, Parliamentary Assembly, 43rd Ordinary Session (Third Part), Sittings 19 to 26, Official Report of Debates (Debates); da bei Redaktionsschluß die offizielle Sammlung dieser Dokumente nicht vollständig zur Verfügung stand, werden sie nach Sessions, Sittings und der Tagesordnung zitiert. 5

Debates, 44th Ordinary Session (First Part), Sittings 1 to 8. Debates, 44th Ordinary Session (Second Part), Sittings 9 to 10. 7 Debates, 44th Ordinary Session (Third Part), Sittings 11 to 21. 8 Opinion 161 (1992). Alle Ansichten, Empfehlungen, Entschließungen und Anordnungen (Opinions, Recommendations, Resolutions, Orders) der PV sind veröffentlicht in: Council of Europe, Texts adopted by the Assembly, des jeweiligen Teils der Sitzungsperiode. Sie werden als Opinion, Empfehlung, Entschließung und Order zitiert. 6

462

Daniela Krantz

4. Auf der 90. Sitzung des MK am 7. Mai 1992 trat Bulgarien dann als 27. Mitgliedstaat dem Europarat bei und unterzeichnete zugleich die Konvention zum Schutz der Menschenrechte und Grundfreiheiten (MRK) sowie die Protokolle 2, 3, 5 und 8.9 II. Behandlung allgemeinpolitischer Themen im Europarat 1. Zentral- und Osteuropa Wie auch schon in den Jahren zuvor, 10 standen als allgemeinpolitische Themen die Beziehung des Europarates zu den europäischen Nichtmitgliedsländern und die Zusammenarbeit mit Ländern in Zentral- und Osteuropa im Vordergrund. 11 a) Beziehungen zu europäischen Nichtmitgliedstaaten aa) Ein Hauptthema stellten die Probleme im ehemaligen Jugoslawien dar. So appellierte das MK am 23. März 1992 an die Streitparteien, unter allen Umständen die vier Genfer Konventionen von 1949 über den Schutz der Opfer nicht internationaler bewaffneter Konflikte zu respektieren. 12 Hierzu war es von der PV in einer Empfehlung 13 aufgefordert worden. 14 Außerdem schloß es sich einer Empfehlung 15 der PV 16 an, nach der alle Bemühungen zur Beendigung des sinnlosen Krieges unterstützt werden sollten und in der die neuanerkannten Staaten aufgefordert wurden, die Grundlagen für eine demokratische, parlamentarisch organisierte Gesellschaft unter Achtung der Menschenrechte zu schaffen. 17 In diesem "Zusammenhang forderte das MK den Generalsekretär auf, diese Empfehlung den • Regierungen der Mitgliedstaaten der Konferenz für Sicherheit und Zusammenarbeit in Europa (KSZE), der Kommission und dem Rat der Europäischen Gemeinschaften sowie dem Generalsekretär der Vereinten Nationen zu übermitteln. 18 In einer während der außerordentlichen Sitzung des MK in Instanbul am 11. September 1992 beschlossenen Deklaration verurteilte das MK die ständige Verletzung 9 10

Doc. 6672.11.l.a. vgl. hierzu Niewerth (Anm. 1), 508 ff.; Pardo-Lopez, G Y I L 34 (1991), 488 ff.

11 Vgl. hierzu insgesamt die umfassenden Tätigkeitsberichte des M K , Doc. 6602, 6672 und 6750; im folgenden wird nur eine schwerpunktmäßige Zusammenfassung vorgenommen. 12 Empfehlung 1176 (1992), Doc. 6602. Addemdum. A . 13

Empfehlung 1176 (1992), Doc. 6554.

14

Debates, 43rd Ordinary Session (Third Part), 22nd Sitting, 3. Empfehlung 1175 (1992), Doc. 6559. Debates, 43rd Ordinary Session (Third Part), 22nd Sitting, 3. Empfehlung 1175 (1992), Doc. 6602. Addendum. V I I . A.

15 16 17 18

Empfehlung 1175 (1992), Doc. 6602. Addendum. V I I . A.

Bericht über die Tätigkeit des Europarates im Jahre 1992

463

von Menschenrechten und anderer Prinzipien des Europarates. 19 Während seiner 91. Sitzung am;5. November 1992 wies das MK unter anderem nochmals auf die schon in der Deklaration vom 11. September 1992 erklärte Verurteilung jeglicher Aktionen zur „ethnischeh Säuberung" hin. 20 Aüßtfrdem wiederholte es seine Zusage für eine Unterstützung des bosnischen Staates innerhalb seiner derzeitigen Grenzen, die Notwendigkeit einer Übereinkunft der drei Streitparteien (Serben, Kroaten und Moslimen) und eine Unterstützung des auf demokratischen Grundsätzen basierenden Verfassungsentwurfes für Bosnien-Herzegowina.21 Weiterhin befürwortete das'MK die Einrichtung eines Kontrollorgans zur Uberprüfung von Menschenrechtsverletzungen, wie es während der Genfer Verhandlungen vorgeschlagen worden war. 22 In einer dritten Deklaration vom 9. Dezember 1992 verurteilte es außerdem ausdrücklich die systematische Vergewaltigung von moslemischen Frauen und Kindern in Bosnien-Herzegowina.23 Daneben beschäftigte sich das MK hauptsächlich mit der Aufnahme neuer Staaten in den Europarat bzw. der Mitgliedschaft in Konventionen des Europarates. So forderte das MK die PV am 26. März 1992 auf, zu dem Antrag Sloweniens auf Mitgliedschaft im Europarat Stellung zu nehmen.24 Am 2. Juli 1992 wurde Slowenien Vertragspartei der Europäischen Kulturkonvention und einer Anzahl weiterer Konventionen und Übereinkommen im Bereich Kultur, Erziehung und Sport. 25 Außerdem wurde es eingeladen, Mitglied in einer Reihe anderer Konventionen im Gesundheitsbereich zu werden. 26 Am 27. März 1992 stimmte das MK der Auffassung zu, daß die Russische Föderation als Vertragspartei der sieben Konventionen des Europarates, denen die ehemalige Sowjetunion beigetreten war, anzusehen sei.27 Während der 90. Sitzung des MK am 27. Mai 1992 beantragte der hierzu eingeladene Außenminister der Russischen Föderation, Andrei V. Kozyrev, die Mitgliedschaft im Europarat. 28 Daraufhin forderte das MK die PV zu einer diesbezüglichen Stellungnahme auf. 29 19

Declaration on the Conflict in the Former Yugoslavia, Doc. 6672. Addendum. V I I I . 3.

20

Declaration on the Situation i n the Former Yugoslavia, Doc. 6750. Addendum I.VIII.2.

21

Doc. 6750.1.3.e.

22

Doc. 6750.1.3.e.

23

Declaration on the Practice of Systematic Rape in Bosnia-Herzegovina, Doc. 6750. Addendum I.VIII.2. 24

Doc. 6602.1.1.i; Entschließung R (92) 4.

25

D o c . 6672.I.3.C.

26

D o c . 6672.I.3.C.

27

Doc. 6602.1.I.e.

28

Doc. 6672.1.3.b.

29

Entschließung R (92) 27, Doc. 6672. Addendum. V I I I . 6.

Daniela Krantz

464

Weiterhin wurden Estland, Lettland und Litauen vom MK eingeladen, Mitglieder der Europäischen Kulturkonvention zu werden. 30 Während der 90. Sitzung des MK am 7. Mai 1992 beantragten die drei Länder daraufhin ihre Mitgliedschaft. 31 Am 4. Mai 1992 brachte Albanien seinen Wunsch zum Ausdruck, Mitglied des Europarates zu werden. 32 Das MK wandte sich daher am 21. Mai mit der Aufforderung um diesbezügliche Stellungnahme an die PV. 33 Am 14. Juli 1992 beantragte die Ukraine ihre Aufnahme in den Europarat, woraufhin das MK den PV am 23. September 1992 zu einer Stellungnahme aufforderte. 34 Ebenso forderte das MK die PV im Dezember 1992 auf, sich zu einer Mitgliedschaft Kroatiens im Europarat zu äußern.35 Außerdem wurden Weißrußland 36 und die Ukraine 37 eingeladen, Mitglieder der Europäischen Kulturkonvention zu werden. bb) Die PV beschäftigte sich 1992 neben der Krise im ehemaligen Jugoslawien38 und dem Beitritt Bulgariens39 ebenfalls ausführlich mit der Entwicklung in Zentralund Osteuropa. Wie auch schon 199140 forderte es die Mitgliedstaaten zur Unterstützung der osteuropäischen Länder beim Aufbau einer ausreichenden Infrastruktur im Transportbereich auf, um so Hilfestellung bei den wirtschaftlichen Reformen und der europäischen Integration zu geben.41 Weiterhin setzte sich die PV mit der durch die radikale Veränderung der politischen und sozialen Verhältnisse ingang gesetzten Flüchlingsbewegung aus Ländern Zentral- und Osteuropas auseinander.42 Zunächst einmal forderte sie die Tschechische und Slowakische Föderative Republik, Ungarn und Polen, welche durch die restriktive Flüchtlingsgesetzgebung der EG-Mitgliedsländer zu neuen 30 31 32 33 34 35 36 37 38 39 40 41

Doc. 6602.1.1.b. Doc. 6672.1.1. Doc. 6672.1.3.a. Doc. 6672. Addendum. V I I I . 6. Entschließung R (92) 9. Entschließung R (92) 29, Doc. 6672. Addendum. V I I I . 6. Doc. 6750.1.3.f. Doc. 6750.1.3.d. Doc. 6750.1.3.m. Siehe unter Il.l.a.aa. Siehe unter 1.3. Vgl. Niewerth (Anm. 1), 510.

Entschließung 977 (1992), vgl. Doc. 6539; siehe auch Debates, 43rd Ordinary Session, (Third Part), 25th Sitting, 4. 42 Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor), vgl. Doc. 6633; siehe auch Debates, 44th Ordinary Session (Second Part), 10th Sitting, 2.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

465

Flüchtlingsländern geworden waren, auf, durch Verbesserung der Verwaltung und Gesetzgebung die Einhaltung der Menschenrechte für die Flüchtlinge zu garantieren. Weiterhin appellierte sie an die Mitgliedsländer des Europarates, die neuen Flüchtlingsländer durch praktische Zusammenarbeit zu unterstützen, die sowohl in finanzieller Hinsicht bestehen könne als auch durch die Aufnahme von Asylbewerbern und Flüchtlingen aus sog. sicheren Drittstaaten. Außerdem sollte versucht werden, die Gründe für die Flüchtlingbewegung zu beseitigen.43 Weiterhin rief die PV die Mitgliedstaaten des Europarates zu verstärkter Hilfeleistung in Albanien auf, um so die Massenflucht der albanischen Bevölkerung zu stoppen.44 b) Programme über Zusammenarbeit mit und Unterstützung von Ländern in Zentral- und Osteuropa Die Richtlinien des Europarates über Programme für Zusammenarbeit und Unterstützung für Länder in Zentral- und Osteuropa folgten 1992 den gleichen Grundsätzen wie schon in den Jahren zuvor. 45 Der Europarat reagierte im Rahmen der ihm zustehenden Möglichkeiten auf bestimmte Anfragen, die von den von diesen Programmen profitierenden Ländern vorgelegt worden waren. 46 Bevorzugt behandelt wurden dabei Projekte mit den Themen Menschenrechte und rechtliche Zusammenarbeit. Dies galt besonders für solche Programme, die mit neuen Partnerländern organisiert worden waren. Jedoch gab es auch Projekte im Bereich Kommunalpolitik, Medien, soziale und wirtschaftliche Angelegenheiten, Gesundheit, Erziehung, Kultur und Jugend.47 aa) Am 11. Februar 1992 ermächtigte das MK das Sekretariat 48 mit der Vorbereitung und Durchführung von Programmen über Zusammenarbeit mit und Unterstützung von Litauen und forderte Litauen außerdem zur Mitgliedschaft in allen zwischenstaatlichen Ausschüssen auf, an denen es Interesse habe.49 Am 27. März 1992 lud das MK außerdem Estland und Lettland ein, an diesen Ausschüssen als Beobachter teilzunehmen50 und ermächtigte den Generalsekretär des Europarates, 43

Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6633; siehe auch Debates, 44th Ordinary Session (Second Part), 10th Sitting, 2. 44 Empfehlung 1179 (1992); vgl. Doc. 6555; siehe auch Debates, 43rd Ordinary Session (Third Part), 23rd Sitting, 8. 45 46 47

Vgl. hierzu Niewerth (Anm. 1), 508 ff.; Pardo-Lopez, G Y I L 34 (1991), 488 ff. Doc. 6602.1.2. Doc. 6602.2.

48

Das Sekretariat hat die Aufgabe, das M K und die PV bei deren Arbeit als dauerndes Organ am Sitz zu unterstützen, vgl. Art. 10 und 37 der Satzung des Europarates. 49 Doc. 6602.1.l.b. 50 Doc. 6602.1.1.b.

30 GYIL 36

466

Daniela Krantz

die Planung und Durchführung von Programmen der Zusammenarbeit mit Estland fortzuführen. 51 Das MK ermächtigte den Generalsekretär außerdem, Kontakte zu Weißrußland, der Ukraine, Moldavien,52 Litauen,5-.Georgien, 54 Aserbaidschan, Armenien, 55 Kroatien, 56 Slowenien,57 Kasachstan und Kirgistan 58 aufzunehmen, um die Möglichkeiten für eine Teilnahme an Programmen der Zusammenarbeit und Unterstützung zu untersuchen, wobei es jedoch ausdrücklich darauf hinwies, daß die Regierungen dieser Länder darauf aufmerksam gemacht werden sollten, daß diese Kontakte nicht als Hinweis auf eine mögliche Mitgliedschaft im Europarat zu verstehen sei.59 In diesem Zusammenhang fanden 1992 eine Reihe von Treffen mit Vertretern aus Armenien, Aserbaidschan, Moldavien, Rußland, der Ukraine, Slowenien, Kroatien und Albanien statt60 und es wurden zahlreiche Kooperationsprogramme mit den oben genannten Ländern organisiert. 61 Aufgrund dieser Entwicklung ließ sich 1992 eine gefestigte Zusammenarbeit mit und Unterstützung von praktisch allen Ländern Zentral- und Osteuropas feststellen. 62 bb) Die PV setzte sich 1992 mit der Frage auseinander, inwieweit es europäischen Nichtmitgliedsländern gestattet werden könnte, die Instrumentarien des Europarates zum Schutz der Menschenrechte in Anspruch zu nehmen.63 Sie lehnte es ab, daß eine Unterzeichnung der EMRK, des Europäischen Übereinkommens zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung und der Europäischen Sozialcharta von Nichtmitgliedstaaten des Europarates zugelassen werden sollte. Gleichzeitig sprach sie sich jedoch dafür aus, diesen Ländern die Möglichkeit zu geben, den Europäischen Gerichtshof für Menschenrechte und das unabhängige Expertenkommitee der Europäischen Sozialcharta um Stellungnahmen anzurufen. Außerdem solle es dem Europäischen Kommitee si Doc. 6602,1.1.b. " Doc. 6602.1.1.f. 53 Doc. 6750.1.3.j. 54 55 56 57 58

Doc. Doc. Doc. Doc.

6750.1.3.h. 6602.1.1.g. 6602.1.1.ii. 6602.1.1.i.

Doc. 6750.1.3.i. Doc. 6602.1.1.f. und g. 60 Doc. 6672.1.4. 61 Doc. 6750.1.3. 62 Doc. 6672.1.4.; Doc. 6750.1.4.; vgl. hierzu auch den Jahresbericht über Programme der Zusammenarbeit und Unterstützung von Ländern in Zentral- und Osteuropa, Doc. 6750. Addendum II. 63 Debates, 44th Ordinary Session (First Part), 3rd Sitting, 9. 59

Bericht über die Tätigkeit

des Europarates im Jahre 1992

467

zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung gestattet werden, Inhaftierungslager in diesen Ländern zu besichtigen.64 2. Beziehungen des Europarates zur Europäischen Gemeinschaft Weiterhin beschäftigte sich das MK 1992 mit der Beziehung des Europarates zur Europäischen Gemeinschaft (EG). So hielten die Ministerdelegierten am 11. März 1992 unter anderem ihr jährliches Treffen zwecks Meinungsaustausch über die Zusammenarbeit des Europarates und der Europäischen Gemeinschaft ab.65 Einen Schwerpunkt bildete in diesem Jahr der Maastrichter Vertrag und die Entwicklung von Beziehungen zu Zentral- und Osteuropa.66 Außerdem war die Kommission der Europäischen Gemeinschaften bei der 90. Sitzung des MK am 7. Mai 1992 und während der außerordentlichen Sitzung in Istanbul am 10. und 11. September 1992 repräsentiert. Bei dieser Gelegenheit wurde betont, welch bedeutende Rolle die Zusammenarbeit zwischen dem Europarat und der EGKommission spiele.67 3. Der Europarat und die KSZE Ein weiteres Thema bildete 1992 die Zusammenarbeit zwischen Europarat und der KSZE. a) So wurde zum Beispiel auf einem Treffen der Außenminister der KSZE am 30. und 31. Januar 1992 in Prag beschlossen, die Zusammenarbeit mit dem Europarat zu verbessern. 68 Der Europarat wurde unter anderem dazu eingeladen, mit einem Beitrag an der Eröffnungssitzung des KSZE-Treffens in Helsinki vom 24. März bis zum 8. Juli 1992 teilzunehmen.69 Auch wurde in der Abschlußerklärung zur Konferenz von Helsinki vom 9. und 10. Juli 1992 in bisher noch nie gekannter Deutlichkeit auf die Zusammenarbeit mit dem Europarat hingewiesen.70 Diese Kooperationsbereitschaft wurde von dem MK auf seinem außerordentlichen Treffen in Istanbul am 10. und 11. September 1992 ausdrücklich begrüßt. 71 b) Auch die PV sprach sich 1992 für eine verstärkte Zusammenarbeit zwischen dem Europarat und der KSZE aus, um so den Vertragsstaaten der KSZE die 64

Empfehlung 1183 (1992); vgl. Doc. 6585; siehe auch Debates, 44th Ordinary Session (First Part), 3rd Sitting, 9. 65 66 67 68 69 70 71

3*

Doc. 6602.1.3. Doc. 6602.1.2. Doc. 6672.1.5. Doc. Doc. Doc. Doc.

6602.1.4. 66o2.I.2. 6672.1.6. 6672.1.6.

468

Daniela Krantz

Möglichkeit zu geben, von den Erkenntnissen des Europarates auf dem Gebiet der Menschenrechte zu profitieren und um doppelte Bearbeitungen zu vermeiden.72 4. Sonstige politische Themen a) Die Ministerdelegierten widmeten sich auch 1992 wieder wichtigen Teilbereichen der Sozial73-, Gesundheits74- und Umwelt- 75 und Sport- 76 und Kommunalpolitik. 77 Außerdem setzten sie sich mit Fragen des Schutzes der Jugend78 und nationaler Minderheiten 79 auseinander80. b) Die PV befaßte sich im 3. Teil ihrer 43. Sitzungsperiode mit Fragen der kulturellen Zusammenarbeit,81 der paneuropäischen Zusammenarbeit auf dem Gebiet der Landwirtschaft, 82 nationalen Minderheiten, 83 der Einrichtung einer Weltraumpolizei, 84 Gütertransport, 85 Klimawechsel,86 Sekten und neuen religiösen Bewegungen,87 Umweltschutz88 und Bürgerbeteiligung bei politischen Entscheidungen. 8 9 72

Empfehlung 1184 (1992); vgl. Doc. 6607; siehe auch Debates, 44th Ordinary Session (First Part), 4th Sitting, 7. und 5th Sitting, 6. 73 Empfehlung R (92) 2; Empfehlung R (92) 4; Empfehlung R (92) 6. 74 75 76 77 78 79

Empfehlung R (92) 8. Empfehlung R (92) 8. Empfehlung R (92) 13; Empfehlung R (92) 14. Empfehlung R (92) 5. Empfehlung R (92) 7; Empfehlung R (92) 11. Empfehlung R (92) 10.

80

Wegen der Fülle sonstiger allgemeinpolitischer Aktivitäten, Expertensitzungen, Konferenzen, usw. wird in diesem Zusammenhang nur auf die Darstellung in den Tätigkeitsberichten des M K für das Jahr 1992 verwiesen, vgl. Doc. 6602, Doc. 6672 und Doc. 6750. 81 Empfehlung 1172(1992); Vgl. Doc. 6538; Empfehlung 1173 (1992); vgl. Doc. 6545; siehe auch Debates, 43rd Ordinary Session (Third Part), 19th Sitting, 11. 82 Empfehlung 1174 (1992); vgl. Doc. 6547; siehe auch Debates, 43rd Ordinary Session (Third Part), 20th Sitting, 4. 83 Vgl. Debates, 43rd Ordinary Session (Third Part), 21 st Sitting, 5., 7. und 9; vgl. auch Doc. 6556, 6562 und 6558. 84 Entschließung 978 (1992); vgl. Doc. 6549; siehe auch Debates, 43rd Ordinary Session (Third Part), 25th Sitting, 5. 85 Entschließung 977 (1992); vgl. Doc. 6539; siehe auch Debates, 43rd Ordinary Session (Third Part), 25th Sitting, 4. 86 Vgl. Debates, 43rd Ordinary Session (Third Part), 25th Sitting, 6.; vgl. auch Doc. 6550. 87 Empfehlung 1178 (1992); vgl. Doc. 6535; siehe auch Debates, 43rd Ordinary Session (Third Part), 23rd Sitting, 7. 88 Entschließung 979 (1992); vgl. Doc. 6536; siehe auch Debates, 43rd Ordinary Session (Third Part), 26th Sitting, 6. 89 Entschließung 980 (1992) und Empfehlung 1180 (1992), vgl. Doc. 6537; siehe auch Debates, 43rd Ordinary Session (Third Part), 26th Sitting, 7.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

469

Während der 44. Sitzungsperiode setzte sie sich mit den Problemen Klimawechsel,90 Umweltschutz,91 Nord-Süd-Interdependenz, 92 körperlich Behinderte,93 Wanderarbeiterschaft, 94 sportlicher Zusammenarbeit,95 Jugend,96 Technischer Fortschritt, 97 OECD 9 8 , Europäische Entwicklung,99 Kontrolle von Menschenrechtsverletzungen, 1 0 0 dem Maastrichter Vertrag, 101 Armut in den Europaratsstaaten 1 0 2 und der Tätigkeit des Roten Kreuzes 103 auseinander. 5. Ansprachen vor der PV Im Jahre 1992 wurden zudem eine Reihe von Ansprachen vor der PV gehalten. So sprach am 4. Februar der polnische Präsident Lech Walesa, 104 am 5. Februar der israelische Staatspräsident Chaim Herzog, 105 am 4. Mai der französische 90 Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6550; siehe auch Debates, 44th Ordinary Session (Third Part), 19th Sitting, 6. 91 Vgl. Debates, 44th Ordinary Session (First Part), 6th Sitting, 6.; vgl. auch Doc. 6599; Empfehlung 1186 (1992); vgl. Doc. 6599; siehe auch Debates, 44th Ordinary Session (First Part), 7th Sitting, 3., 4. und 6.; Debates, 44th Ordinary Session (Third Part), 13th Sitting, 7. 92 Entschließung 981 (1992) und 982 (1992); vgl. Doc. 6594; siehe auch Debates, 44th Ordinary Session (First Part), 3rd Sitting, 5. und 7. 93 Empfehlung 1185 (1992), vgl. Doc. 6581; siehe auch Debates, 44th Ordinary Session (First Part), 6th Sitting, 4. 94 Empfehlung 1187 (1992); vgl. Doc. 6590; siehe auch Debates, 44th Ordinary Session (First Part), 8th Sitting, 7. und 8. 95 Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6664; siehe auch Debates, 44th Ordinary Session (Third Part), 1 I t h Sitting, 10. 96

Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor; vgl. Doc. 6665; siehe auch Debates, 44th Ordinary Session (Third Part), 12th Sitting, 5. 97 Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6663; siehe auch Debates, 44th Ordinary Session (Third Part), 12th Sitting, 6. 98 Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6651; siehe auch Debates, 44th Ordinary Session (Third Part), 14th Sitting, 5., 6. und 8. 99 Vgl. Debates, 44th Ordinary Session (Third Part), 16th Sitting, 6; siehe auch Doc. 6671 und 6673; Entschließung und Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6673 und 6671; siehe auch Debates, 44th Ordinary Session (Third Part), 17th Sitting, 4. 100 Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6659; siehe auch Debates, 44th Ordinary Session (Third Part), 18th Sitting, 5. 101 Entschließung und Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6668 und 6652; siehe auch Debates, 44th Ordinary Session (Third Part), 19th Sitting, 6. 102 Empfehlung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor; vgl. Doc. 6592; siehe auch Debates, 44th Ordinary Session (Third Part), 20th Sitting, 5. 103 Entschließung (offizielle Nummer lag bei Redaktionsschluß noch nicht vor); vgl. Doc. 6670 und 6070; siehe auch Debates, 44th Ordinary Session (Third Part), 21st Sitting, 5. 104 Debates, 43rd Ordinary Session (Third Part), 20th Sitting, 6. 105

Debates, 43rd Ordinary Session (Third Part), 22nd Sitting, 4.

470

Daniela Krantz

Staatspräsident Frangois Mitterrand, 106 am 6. Mai der albanische Präsident Sali Berisha, 107 am 30. Juni der ungarische Präsident Josef Antall, m am 1. Oktober der schwedische Premierminister Carl Bildt, 109 am 2. Oktober der Generalsekretär der OECD Jean-Claude Paye, 110 am 6. Oktober der slowenische Premierminister Drnovsek mund am 6. Oktober 1992 die Generalsekretärin des Europarates Catherine Lalumiere 112 zu den Vertretern der PV. III. Rechtsvereinheitlichung und rechtliche Zusammenarbeit zwischen den Mitgliedsstaaten; Verträge und Empfehlungen 1. Im Jahre 1992 wurden vom Europarat drei neue Konventionen geschaffen. Am 22. Juni nahm das MK die Europäische Charta zum Schutze von Regionalund Minderheitssprachen an. 113 Neben dem allgemeinen Schutz solcher Sprachen verpflichten sich die Vertragsparteien im 3. Teil der Charta, den Gebrauch auch im öffentlichen Leben, d. h. an Schulen, vor Gericht, bei der Verwaltung, in den Medien und kulturellen Einrichtungen zu unterstützen. Die Europäische Konvention über cinematographische Co-Produktionen wurde vom MK am 25. Juni 1992 angenommen.114 Gem. Art. 1 hat die Konvention zum Ziel, die Vertagsparteien zur Förderung europäischer cinematographischer Co-Produktionen zu verpflichten. Am 10. Dezember 1992 wurde schließlich das 2. Protokoll zur Ergänzung der Konvention zur Verminderung von Fällen mehrfacher Staatsangehörigkeit und militärischer Verpflichtungen in Fällen mehrfacher Staatsangehörigkeit vom MK angenommen.115 Art. 1 des Protokolls enthält Regelungen über die Wiedererlangung der ursprünglichen Staatsangehörigkeit, nachdem zwischenzeitlich die Staatsangehörigkeit eines anderen Vertragsstaates erlangt worden war. 2. Das Ad-Hoc-Commitee of Experts on Bioethics (CAHBI) beschäftigte sich 1992 mit dem Entwurf einer Konvention über Bioethik und den diesbezüglichen Protokollen. 116 Außerdem wurde die Arbeit an dem Entwurf einer Konvention 106

Debates, 44th Ordinary Session (First Part), 1st Sitting, 15.

107

Debates, 44th Ordinary Session (First Part), 4th Sittiing, 5. Debates, 44th Ordinary Session (Second Part), 9th Sitting, 10. Debates, 44th Ordinary Session (Third Part), 13th Sitting, 8.

108 109 110 111 112 113 114 115 116

Debates, 44th Ordinary Session (Third Part), 14th Sitting, 5. Debates, 44th Ordinary Session (Third Part), 18th Sitting, 6. Debates, 44th Ordinary Session (Third Part), 19th Sitting, 5. Doc. 6672. Addendum. V I I I . 4. Doc. 6672. Addendum. V I I I . 3. Doc. 6750. Addendum I. V I I I . 3. Doc. 6602.III. Field IX.4. und Doc. 6750.III. Field IX.4.

Bericht über die Tätigkeit

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471

über Haftung für Schäden aufgrund umweltgefährdender Aktivitäten fortgesetzt.117 Das Commitee of Experts on Family Law (CJ-FA) bereitete 1992 eine Konvention über die Rechte Minderjähriger vor. 118 3. Weiterhin empfahl das MK 1992 den Vertragsstaaten rechtsvereinheitlichende Regelungen für die Bereiche Gesundheit,119 Lehre, Forschung und Ausbildung auf den Gebieten Recht und Informationstechnologie, 120 Gemeinschaftssanktionen und Maßnahmen,121 Haftstrafen 122 sowie für Videospiele mit rassistischem Inhalt 123 und erließ eine Entschließung über Stipendien für ausländische Studienaufenthalte von Juristen. 124 IV. Schutz der Menschenrechte 1. Aufgrund des Beitritts der Tschechischen und Slowakischen Föderativen Republik (CSFR) am 21. Februar 1991 und Polens am 26. November 1991125 wurden am 5. Mai 1992 zwei neue Richter auf die Dauer von neun Jahren in den Europäischen Gerichtshof für Menschenrechte (EGMR) gewählt.126 Die parlamentarische Versammlung (PV) stimmte für den Slowaken Bohumil Repik und den Polen Jerzey Makarczyk. 127 Damit bestand der EGMR aus 26 Richtern. Für Bulgarien als 27. Mitglied des Europarates lag 1992 noch kein Kandidatenvorschlag vor. 128 Am 27. Mai 1992 bestätigte der EGMR den Norweger Rolv Ryssdal in seinem Amt als Präsident des Gerichtshofs, dessen Mitglied er seit 1973 und dessen Präsident er bereits seit 1985 ist. Als neuer Vizepräsident wurde der Deutsche Rudolf Bernhardt gewählt, der dem Gerichtshof seit 1981 angehört. Rudolf Bernhardt war 1992 Professor an der Universität Heidelberg und einer der Direktoren * 1 7 Doc. 6602.III. Field IX.7.; Doc. 6672.III.IX.7.und Doc. 6750.III. Field.IX. 118 119 120 121 122 123 124

Doc. 6750.III. Field IX.6. Empfehlung R (92) 1; Empfehlung R (92) 2; Empfehlung R (92) 3. Empfehlung R (92) 15. Empfehlung R (92) 16. Empfehlung R (92) 17 und Empfehlung R (92) 18. Empfehlung R (92) 19. Entschließung R (92) 2.

125

Vgl. hierzu Niewerth (Anm. 1), 508. Gem. Art. 38 M R K besteht der E G M R aus ebensoviel Richtern, wie der Europarat Mitglieder zählt. Dabei darf dem Gerichtshof jeweils nur ein Angehöriger eines Staates angehören. 126

127

Vgl. Dokumentation, EuGRZ 1992, 219. Gem. Art. 39 Abs. 1 M R K werden die Mitglieder des Gerichtshofes von der Beratenden Versammlung mit Stimmenmehrheit aus einer Liste von Personen gewählt, die von den Mitgliedern des Europarats vorgeschlagen werden; jedes Mitglied hat drei Kandidaten vorzuschlagen, von denen mindestens zwei eigene Staatsangehörige sein müssen. 128

472

Daniela Krantz

des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht in Heidelberg. 129 Aus der Europäischen Kommission für Menschenrechte (EKMR) schied 1992 der Vertreter Portugals, Angelo Vidal d :Almeida Ribeiro, aus. Bis zum 31. Dezember 1992 war Portugal damit nicht in der EKMR vertreten. Auch für Ungarn und Bulgarien waren keine Kommissionsmitglieder gewählt worden. Neu hinzu kam ein Vertreter für San Marino, der jedoch 1992 seine Tätigkeit noch nicht aufgenommen hat. 130 Ansonsten veränderte sich die Zusammensetzung der EKMR 1992 nicht. 131 2. Insgesamt registrierte die EKMR 1992 5875 vorläufige Akten und 1861 Beschwerden.132 Während die Zahl der vorläufigen Akten damit kaum höher lag als im Vorjahr (1991: 5550, d. h. knapp sechs Prozent weniger), stieg die Zahl der Beschwerden um mehr als zwölf Prozent (Vorjahr: 1648 Beschwerden). Hiervon kamen die meisten Beschwerdeführer aus Frankreich (263), gefolgt von 233 Türken und 195 Italienern. Deutsche Antragsteller nahmen mit 122 Anträgen den sechsten Platz ein. 133 Der stärkste Anstieg war bei den Türken zu vermerken, von denen 1991 nur 55 Anträge gestellt worden waren. 134 Von den 1861 Beschwerden richteten sich die meisten gegen Frankreich (353), gefolgt von Großbritannien mit 222 und Italien mit 196 Beschwerden. Deutschland stand mit 137 gegen sich gerichteten Beschwerden wiederum an sechster Stelle.135 Wie auch schon in den Vorjahren 129

Neben den oben genannten bestand der E G M R 1992 aus folgenden Mitgliedern: Thor Vilhjamsson (Island), Feyyaz Gölcüklü (Türkei), Franz Matscher (Österreich), Louis-Edmond Pettiti (Frankreich), Brian Walsh (Irland), Ronald St. John Macdonald (Kanadier für Liechtenstein), Carlo Russo (Italien), Sir John Freeland (Vereinigtes Königreich), Luzius Wildhaber (Schweiz), Alphonse Spielmann (Luxemburg),Jan de Meyer (Belgien), Nicolas Valticos (Griechenland), Sibrand Karel Martens (Niederlande), Elisabeth Palm (Schweden), Isi Foighel (Dänemark), Raimo Pekkanen (Finnland), Andreas Nicolas Loizou (Zypern), Jose Maria Morenilla (Spanien), Manuel Antonio Lopes (Portugal), Frederico Bigi (San Marino) und Andräs B. Baka (Ungarn). 130 Vgl European Commission of Human Rights, Survey of Activities and Statistics (Survey) 1992, 3. 131 Die Mitglieder der E K M R waren in protokollarischer Reihenfolge: CarlAage Norgaard (Dänemark / Präsident), Jochen A. Frowein (Deutschland / 1. Vize-Präsident), Stefan Trechsel (Schweiz / 2. Vizepräsident), Felix Ermacora (Osterreich), Guiseppe Sperduti (Italien), Edwin Busuttil (Malta), Gaukur Jörundsson (Island), A. Seref Gözübüyük (Türkei), Albert Weitzel (Luxemburg), Jean-Claude Soyer (Frankreich), Henry G. Schermers (Niederlande), Hans Danelius (Schweden), Gro Hillestad Thune (Norwegen), Sir Basil Hall (Vereinigtes Königreich), Luis Fernando Martinez Ruiz (Spanien), Christos L. Rozakis (Griechenland), Jane Liddy (Irland), Loukis Loucaides (Zypern), Jean-Claude Geus (Belgien), Matti Paavo Pellonp'aä (Finnland) und Benedikt Marxer (Liechtenstein), vgl. Survey, 3. 132 133 134 135

Survey, Survey, Survey, Survey,

2. 14. 14. 20.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

473

machte die EKMR von ihrem Recht nach dem 8. Zusatzprotokoll der MRK Gebrauch, während der acht im Jahre 1992 über die Dauer von 16 Wochen von ihr abgehaltenen Sitzungen136 in zwei Kammern über die Zulässigkeit der Beschwerden zu beraten. 137 Sie entschied über 1704 Fälle (Vorjahr: 1659), von denen 189 für zulässig erklärt wurden (28 weniger als 1991).138 Am Ende des Jahres 1992 warteten noch 2465 Anträge auf ihre Beurteilung, davon waren 1574, d. h. 57 Prozent, noch gar nicht untersucht worden. 139 Darüber hinaus fertigte die EKMR 1992 201 Berichte an, davon allein 167 gem. Art. 31 Abs. 1 MRK, 32 gem. Art. 28 Abs. 2 MRK und 2 gem. Art. 30 Abs. 2 MRK. 1 4 0 Außerdem leitete sie 45 Fälle an den EGMR weiter. 141 3. Der EGMR fällte 1992 79 Urteile, d. h. sieben Urteile mehr als im Vorjahr und fast dreimal soviele wie 1990. Die große Arbeitsbelastung hatte zur Folge, daß nur 2 Urteile hiervon gem. Art. 51 der Verfahrensordnung des Gerichtshofs wegen ihrer Bedeutung für die Auslegung der Konvention im Plenum entschieden wurden. 142 Alle anderen wurden in Kammern gefällt. 4. Zulässigkeit von Individualbeschwerden

gem. Art. 25, 26 MRK

Trotz des Antrages der EKMR, keine Stellungnahmen zu Fragen der Zulässigkeit abzugeben, hat sich der Gerichtshof auch 1992 unter Hinweis auf seine mittlerweile gefestigte Rechtsprechung143 wieder mit der Zulässigkeit von Individualbeschwerden auseinandergesetzt.144 a) Aktivlegitimation gem. Art. 25 MRK Die Möglichkeit einer Konventionsverletzung, die für die Verletzteneigenschaft im Sinne von Art. 25 MRK Voraussetzung ist, ist nicht dadurch ausgeschlossen, daß kein Schaden vorliegt; ein Schaden ist nur im Zusammenhang mit Art. 50 136

Survey, 6. Survey, 2. 138 Survey, 6. 139 Survey, 2. 140 Survey, 6. 141 Survey, 6. 142 Dies waren die Rechtssachen B. vom 25. März 1992, Judgments, vol. 232-C; Drozd and Janousek vom 26. Juni 1992, Judgments, vol. 240. 137

143

Seit dem Urteil De Wilde, Ooms und Versyp vom 18. Juni 1971, Judgments, vol. 14, Rn. 44 - 52; vgl. zur Begründung Urteil Pine Valley Developments Ltd. ua. vom 29. November 1991, Judgments, vol. 122, Rn. 39. 144 Urteil Pfeifer and Plankl vom 25. Februar 1992, Judgments, vol. 227, Rn. 33; Urteil B. vom 25. März 1992, Judgments, vol. 232 C, Rn. 36.

474

Daniela Krantz

MRK relevant. 145 Folglich nimmt eine Strafmilderung der betreffenden Person die „Opfereigenschaft" nur dann, wenn die nationalen Behörden entweder ausdrücklich oder der Sache nach eine Konventionsverletzung anerkannt und Wiedergutmachung dafür geleistet haben.146 Dagegen ist die Opfereigenschaft dann noch nicht gegeben, wenn eine Ausreiseanordung ergeht, die als solche noch nicht vollziehbar ist, sondern noch weitere Verfahrensschritte voraussetzt.147 b) Rechtswegerschöpfung und Sechsmonatsfrist gem. Art. 26 MRK Grundsätzlich ist eine Klage vor dem EGMR gem. Art. 26 MRK nur zulässig, wenn der innerstaatliche Rechtsweg in bezug auf die streitige Konventionsverletzung erschöpft ist. Eine Regierung kann die Erschöpfung des innerstaatlichen Rechtsweges jedoch nicht mit Argumenten bestreiten, die der von ihr selbst im innerstaatlichen Verfahren vertretenen Auffassung widersprechen. 148 In den Urteilen B.149 und Castells 150 entschied der Gerichtshof, daß die Voraussetzung der Rechtswegserschöpfung auch dann erfüllt sei, wenn der Bf. vor den nationalen Instanzen zwar nicht ausdrücklich eine Konventionsverletzung geltend gemacht habe, sich aber abstrakt gegen die Verletzung von Rechten gewandt habe, die von der Konvention geschützt werden. Die gem. Art. 26 MRK weiter einzuhaltende Sechsmonatsfrist beginnt nach Auffassung des Gerichtshofs erst dann zu laufen, wenn das Urteil in letzter Instanz ergangen ist, unabhängig davon, ob die Einlegung des Rechtsmittels von vornherein aussichtlos war oder nicht. 151 Macht eine Regierung erst im Verlauf der mündlichen Verhandlung eine Einrede bezüglich der Nichteinhaltung der Sechsmonatsfrist geltend, so muß diese als verspätet zurückgewiesen werden. Art. 48 Abs. 1 der Verfahrensordnung des Gerichtshofes verlangt, daß eventuelle Einreden vor Ablauf der Frist geltend gemacht werden, die für die Einreichung des Schriftsatzes gewahrt werden muß. 152

145

Urteil LUdi vom 25. Juni 1992, Judgments, vol. 238, Rn. 34. Urteil Liidi (Anm. 145), Rn. 34; vgl. auch Urteil Eckle vom 15. Juli 1982, Judgments, vol. 51, Rn. 64 ff. 146

147

Urteil Vijayanathan and Pursparah vom 27. August 1992, Judgments, vol. 241-B, Rn.

46. 148

Urteil Urteil 150 Urteil 151 Urteil 152 Urteil 246, Rn. 46. 149

Kolopompar vom 24. September 1992, Judgments, vol. 235 C, Rn. 32. B. (Anm. 144), Rn. 42. Castells vom 23. April 1992, Judgments, vol. 236, Rn. 27. B. (Anm. 144), Rn. 42. Open Door and Dublin Well Woman vom 29. Oktober 1992, Judgments, vol.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

5. Verfahrensgarantien

475

gem. Art. 6 MRK

Wie auch 1991153 hatte sich der EGMR 1992 in materieller Hinsicht vorwiegend mit Klagen wegen einer Verletzung der Verfahrensgarantien des Art. 6 MRK zu beschäftigen. a) Geltungsbereich In dem im Plenum gefällten Urteil Drozd and Janousek 154 hatte der Gerichtshof einen Fall zu entscheiden, in dem die Verletzung von Art. 6 Abs. 1 und 3 MRK durch das andorranische Strafverfahren gerügt wurde. Hauptproblem war, ob sich der Geltungsbereich der MRK überhaupt auf Andorra erstreckt. Der Gerichtshof prüfte diese Frage anhand zweier Schritte: Zunächst wurde die Zuständigkeit des EGMR ratione loci untersucht; 155 anschließend behandelte er dieses Problem unter dem Gesichtspunkt der Zuständigkeit ratione personae. 156 Ausgangspunkt für den ersten Prüfungspunkt war die Frage, inwieweit sich der räumliche Geltungsbereich der Konvention auch auf Andorra erstrecken könnte. In diesem Zusammenhang war zu beachten, daß der Status Andorras zu diesem Zeitpunkt noch auf Verträge aus dem 13. Jahrhundert zurückging. 157 Die Gebietshoheit wurde durch zwei Mitregenten gemeinsam ausgeübt. Diese waren der Präsident der Französischen Republik als Rechtsnachfolger der Grafen von Foix und der französischen Könige und der Bischof der spanischen Stadt Urgel. 158 Der Gerichthof stellte zunächst klar, daß eine unmittelbare Anwendung der MRK auf Andorra mangels eigener Mitgliedschaft im Europarat ausgeschlossen sei (vgl. Art. 66 Abs. 1 MRK). 1 5 9 Anschließend untersuchte das Gericht die völkerrechtliche Einordnung Andorras. 160 Es lehnte es ab, das Gebiet Andorras als gemeinsames französisches und spanisches Territorium anzusehen. Auch komme Andorra nicht der Status eines französisch-spanischen Kondominiums zu. 161 Damit sei eine Zuständigkeit ratione loci zu verneinen. 162 153

Vgl. Niewerth Urteil Drozd 155 Urteil Drozd 156 Urteil Drozd 157 Erst im März 1993, E M R K Art. 1 158 VgL Schindler, 154

(Anm. 1), 518. and Janousek (Anm. 142). and Janousek (Anm. 142), Rn. 84 ff. and Janousek (Anm. 142), Rn. 91 ff. 1993 wurde eine demokratische Verfassung beschlossen, vgl. Kunig, JK / 1. in: Encyclopedia of Public International Law, Bd. 12, 1992, 8.

159

Urteil Drozd and Janousek (Anm. 142), Rn. 89. 160 V g l hierzu auch Schindler, in: Encyclopedia of Public International Law, Bd. 12,1992, Stichwort „Andorra", 8 ff; Heuer, in: Schlochhauer, Wörterbuch des Völkerrechts, Bd. 1,45 ff. 161 Urteil Drozd and Janousek (Anm. 142), Rn. 89; vgl. hierzu Dahm / Delbrück / Wolfrum, Völkerrecht 1 / 1 , 2 . Auflage 1989, 341 ff.; Berber, Völkerrecht I, 2. Auflage 1975, 310; Epping, in: Ipsen, Völkerrecht, 3. Auflage 1990, § 5, Rn. 23. 162

Urteil Drozd and Janousek (Anm. 142), Rn. 89.

476

Daniela Krantz

Weiter prüfte der Gerichtshof die Anwendbarkeit der Konvention unter dem Gesichtspunkt der Zuständigkeit ratione personae. Er stellte zunächst klar, daß sich der Geltungsbereich der MRK nicht strikt auf das Staatsgebiet der Vertragsstaaten beschränke. Vielmehr gelte sie überall dort, wo von den Vertragsparteien Herrschaftsgewalt ausgeübt werde, unabhängig davon, ob dies im In- oder Ausland geschehe.163 Maßgebend für die Frage der Anwendbarkeit der MRK im Fall Drozd and Janousek sei daher die Frage, ob die Gerichtsbarkeit des andorranischen Tribunal de Corts Frankreich oder Spanien zugerechnet werden könne. Hierfür sprach, daß der französische Staatspräsident einen französischen Richter zum Vorsitzenden dieses Gerichts ernannt hatte. Außerdem waren als Beisitzer ein weiterer französischer Richter und ein spanischer Jurist tätig. Der Gerichtshof entschied jedoch, daß die französischen Richter nicht in ihrer Eigenschaft als französische Justizorgane gehandelt hätten. Vielmehr übe das Tribunal de Corts autonome Rechtsprechungsfunktionen aus; seine Urteile unterlägen daher weder der französischen noch der spanischen Herrschaftsgewalt. 164 Eine Zuständigkeit des EGMR ratione personae sei daher ebenfalls ausgeschlossen.165 Damit kam eine Verletzung der Verfahrensgarantien des Art. 6 Abs. 1 und 3 MRK nicht in Betracht. b) Entscheidung über zivilrechtliche Ansprüche oder Verpflichtungen Weiter hatte sich der Gerichtshof mit der Frage auseinanderzusetzen, was unter zivilrechtlichen Ansprüchen oder Verpflichtungen im Sinne des Art. 6 Abs. 1 MRK zu verstehen ist. Voraussetzung hierfür ist grundsätzlich das Bestehen einer Rechtsstreitigkeit („contestation" over „rights"). 166 In den Urteilen Edition Periscope167 und Salerno 168 bejahte der Gerichtshof das Bestehen einer solchen Rechtsstreitigkeit in dem Fall, in dem die nationalen Gerichte über die Begründetheit der geltend gemachten Ansprüche entschieden hätten. Dies sei ein ausreichender Hinweis dafür, daß das gegenüber dem Staat geltend gemachte Recht grundsätzlich bestehe. Weiterhin muß es sich bei den geltend gemachten Ansprüchen um zivilrechtliche Ansprüche im Sinne des Art. 6 Abs. 1 MRK handeln. Wie auch schon in seiner 163

Urteil Drozd and Janousek (Anm. 142), Rn. 91; vgl. auch die Entscheidungen der E K M R X. vom 25. September 1965 N r . 1611 / 62, Yearbook Nr. 8, 159; Hess vom 28. Mai 1975, N r . 6231 / 73, Decisions and rapports (DR) 2, 75; Cyprus vom 26. Mai 1975, D R 2, 125; Cbrysostomos, Papachrysostomomou, Loizidou vom 4. März 1991, Nr. 15299 / 89,15300 / 89 und 15318 / 89, EuGRZ 1991, 254 ff. 164

Urteil Drozd and Janousek (Anm. 142), Rn. 96. Urteil Drozd and Janousek (Anm. 142), Rn. 96. 166 Urteil Edition Periscope vom 26. März 1992, Judgments, vol. 234-B, Rn. 35; vgl. hierzu auch Neves e Silva vom 27. April 1989, Judgments, vol. 153-A, Rn. 37. 165

167 168

Urteil vom 26. März 1992, Judgments, vol. 234-B, Rn. 37, 38. Urteil vom 12. Oktober 1992, Judgments, vol. 245-D, Rn. 16.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

477

bisherigen Rechtsprechung169 verwies der Gerichtshof in diesem Zusammenhang darauf, daß es für diese Frage nicht darauf ankomme, wie der in Frage stehende Anspruch in dem jeweiligen Vertragsstaat eingeordnet werde bzw. vor welchem Gericht er geltend zu machen sei, sondern daß Art. 6 Abs. 1 MRK ein autonomer Zivilrechtsbegriff zugrundeliege.170 Zu diesem seien daher auch erbrechtliche Ansprüche jeglicher Art zu zählen, auch wenn sie von dem entsprechenden Staat verwaltungsrechtlich eingeordnet würden. 171 Voraussetzung sei allein, daß der Ausgang des jeweiligen Verfahrens maßgeblich über Ansprüche zivilrechtlichen Charakters entscheide.172 Im Urteil Tomasi entschied der Gerichtshof deshalb, daß auch solche Schadensersatzansprüche, die im Wege eines sog. Adhäsionsverfahrens („action civile" gem. Art. 85 des französischen Code du Procedure Penale) im Strafverfahren selbst geltend gemacht werden, als zivilrechtliche Ansprüche im Sinne des Art. 6 Abs. 1 MRK anzusehen seien.173 Ebenso ordnete er in den Urteilen Francesco Lombardo 174 und Giancarlo Lombardo 175 Rentenansprüche von Angestellten des öffentlichen Dienstes als zivilrechtlich im Sinne des Art. 6 Abs. 1 MRK ein, da diese mit Ansprüchen aus privatrechtlichen Arbeitsverträgen vergleichbar seien. c) Grundsatz des fairen Verfahrens Im Mittelpunkt seiner Rechtssprechung zu Art. 6 MRK standen Fragen über den Grundsatz der Fairness im Verfahren. aa) Prinzip der Waffengleichheit Der Grundsatz des fairen Verfahrens, der Art. 6 Abs. 1 MRK zugrunde liegt, gebietet es, gewisse Sorgfaltspflichten zu erfüllen. 176 Diese gelten auch für das Prinzip der Waffengleichheit, welches eine spezielle Ausgestaltung des sog. fairtrial-Prinzips darstellt. 177 Diese Sorgfaltspflichten gelten gerade auch dann, wenn 169 Vgl x. B. die Urteile Ringeisen vom 15 Juli 1971, Judgments, vol. 13, Rn. 94 und König vom 28. Juni 1978, Judgments, vol. 27, Rn. 90. 170 Urteil Editions Periscope vom 26. März 1992, Judgments, vol. 234-B, Rn. 40; X. vom 31. März 1992, Judgments, vol. 234-C, Rn. 30. 171

Urteil Editions Periscope (Anm. 170), Rn. 40; vgl. hierzu auch das Urteil Feldbrugge vom 29. Mai 1986, Judgments, vol. 99, Rn. 32. 172 Urteil X. (Anm. 170), Rn. 30; Francesco Lombardo vom 26. November 1992, Judgments, vol. 249-B, Rn. 17. 173 174 175 176 177

33.

Urteil Tomasi vom 27. August 1992, Judgments, vol. 241-A, Rn. 121. Urteil Francesco Lombardo vom 26. November 1992, Judgments, vol. 249-B, Rn. 17. Urteil Giancarlo Lombardo vom 26. November 1992, Judgments, vol. 249-C, Rn. 16. Urteil Goddi y Colozza und Brozicek vom 9. April 1984, Judgments, vol. 76, Rn. 28. Ständ. Rspr., so auch im Urteil Vidal vom 22. April 1992, Judgments, vol. 235-B, Rn.

478

Daniela Krantz

eine Verurteilung in der Rechtsmittelinstanz nach einem Freispruch in der Ausgangsinstanz erfolgt. 178 Im Fall Vidal sah der EGMR diese Sorgfaltspflichten als verletzt an, wenn ein Appellationsgericht einen mit Gründen versehenen Antrag des Beklagten auf Vernehmung von Entlastungszeugen übergehe und allein aufgrund der bisherigen Aktenlage entscheide, ohne dies zumindest in dem Urteil zu begründen. 179 Zwar obliege es im allgemeinen den nationalen Gerichten und nicht dem Gerichtshof für Menschenrechte, die ihnen vorliegenden Beweise zu würdigen und die Relevanz der Beweise, die die Angeklagten vorbringen wollen, zu beurteilen. 180 Dagegen sei es aber Aufgabe des Gerichtshofes, sich zu vergewissern, ob das Verfahren in seiner Gesamtheit, einschließlich der Beweisaufnahme, fair gewesen sei.181 Nach ständiger Rechtsprechung des EGMR gebietet es der Grundsatz der Waffengleichheit außerdem, daß alles Beweismaterial in Anwesenheit des Angeklagten in einer öffentlichen Verhandlung mit dem Ziel einer kontradiktorischen Erörterung vorgelegt wird. 182 Ausnahmen von diesem Grundsatz dürfen die Rechte der Verteidigung nicht berühren. Daher muß der Angeklagte grundsätzlich eine angemessene und ausreichende Gelegenheit erhalten, einen Belastungszeugen zu widerlegen und ihm Fragen zu stellen.183 Die Nichtzulassung eines V-Mannes der Polizei als Zeugen in einem Strafverfahren, obwohl seine Aussagen für den Ausgang des Verfahrens relevant sind, stellt deshalb für den EGMR eine Verletzung des Rechts auf Zeugenbefragung gem. Art. 6 Abs. 3 lit. d. i. V. m. Art. 6 Abs. 1 MRK dar, wenn eine Zeugenvernehmung unter Wahrung der Anonymität des V-Mannes möglich gewesen wäre. 184 Dagegen seien bei Unauffindbarkeit eines Zeugen im Zeitpunkt der Hauptverhandlung die Rechte der Verteidigung dann ausreichend gewahrt, wenn angemessene Nachforschungen nach dem Verbleib des Zeugens ergebnislos geblieben waren, dem Angeklagten jedoch die Möglichkeit gegeben wurde, seinen eigenen Standpunkt zu den im Vorverfahren gemachten Zeugenaussagen darzulegen und diese nicht das einzige Beweismittel darstellen, auf das die Verurteilung gestützt werde. 185

178

Urteil Vidal (Anm. 177), Rn. 34. Urteil Vidal (Anm. 177), Rn. 34. 180 Urteil Vidal (Anm. 177) Rn. 33; vgl. auch Urteil Barberä, Messegue and Janbargo vom 06. Dezember 1988, Judgments, vol. 146, Rn. 68. 179

181

Urteil Vidal (Anm. 177), Rn. 33. Urteil Lüdi (Anm. 145), Rn. 47; vgl. auch Urteil Asch vom 26. April 1991, Judgments, vol. 203, Rn. 27. 182

183 184 185

Urteil Lüdi (Anm. 145), Rn. 47. Urteil Lüdi (Anm. 145), Rn. 49, vgl. auch Urteil Asch (Anm. 182), Rn. 27. Urteil Artner vom 28. August 1992, Judgments, vol. 242-A, Rn. 22, 24.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

479

bb) Recht des Angeklagten auf Anwesenheit in der Hauptverhandlung Obwohl das Recht des Angeklagten, an der Hauptverhandlung teilzunehmen, nicht ausdrücklich in Art. 6 MRK aufgeführt ist, ergibt sich dies aus dem Ziel und Zweck dieser Regelung in ihrer Gesamtheit.186 Um dieses Recht für den Angeklagten zu gewährleisten, müssen von den Vertragsstaaten entsprechende Sorgfaltspflichten erfüllt werden. 187 Diese sind verletzt, wenn der Angeklagte für unauffindbar erklärt wird und eine Verurteilung trotz Abwesenheit stattfindet, obgleich ihm eine Mitteilung über die Anklage nicht persönlich zugestellt wurde und seine ausländische Adresse den Behörden bekannt war oder zumindest bei entsprechender Sorgfalt hätte festgestellt werden können.188 In einem solchen Fall reicht eine vage Kenntnis des Angeklagten von der Durchführung eines Strafverfahrens gegen ihn nicht aus, um auf seinen Verzicht auf die Teilnahme an dem Verfahren zu schließen.189 cc) Einspruchsfrist Das Recht auf ein faires Verfahren ist nicht verletzt, wenn jemand durch eigenes Verschulden nicht in der Lage ist, die Einspruchsfrist gegen einen Strafbefehl einzuhalten.190 Dies gilt auch bei einer so kurzen Frist wie einer Woche nach Zustellung des Strafbefehls, wenn bei unverschuldeter Fristversäumung Wiedereinsetzung in den vorigen Stand zu gewähren ist. 191 dd) Begründung von Urteilen Im Fall Hadjianastassiou entschied der EGMR, daß die Vertragsstaaten verpflichtet seien, dem Angeklagten die Möglichkeit zu geben, von einem ihm eingeräumten Berufungsrecht sinnvoll Gebrauch zu machen. Daher seien die nationalen Gerichte verpflichtet, in ihren Urteilen mit ausreichender Deutlichkeit die Gründe anzuführen, auf die sie ihre Entscheidung stützen und diese dem Angeklagten noch innerhalb der Rechtsmittelfrist vollständig bekanntzugeben.192 Den Vertragsstaaten verbleibe zwar ein erheblicher Ermessensspielraum, wie sie ihrer Verpflichtung aus Art. 6 MRK, den Angeklagten ein faires Verfahren zu ermöglichen, nachkämen.193 Dem Gerichtshof obliege es jedoch, zu überprüfen, ob die diesbe186 187 188 189 190 191 192 193

Urteil Urteil Urteil Urteil Urteil

T. vom 12. Oktober 1992, Judgments, vol. 245-C, Rn. 26. T. (Anm. 186), Rn. 29. T. (Anm. 186), Rn. 29. T. (Anm. 186), Rn. 28. Hennings vom 16. Dezember 1992, Judgments, vol. 251-A, Rn. 26.

Urteil Hennings (Anm. 190), Rn. 26. Urteil Hadjianastassiou vom 16. Dezember 1992, Judgments, vol. 252, Rn. 34. Urteil Hadjianastassiou (Anm. 192), Rn. 33.

480

Daniela Krantz

züglich angewandte Methode im Einzelfall zu einem mit der Konvention vereinbarenden Ergebnis führe. 194 d) „vor einem unabhängigen und unparteiischen, auf Gesetz beruhenden Gericht" Der EGMR hatte im Fall Hauschildt 1989195 festgelegt, daß die Frage der Unparteilichkeit eines Gerichts sowohl nach subjektiven als auch nach objektiven Kriterien zu beurteilen sei. Als subjektives Kriterium diene die Frage nach der persönlichen Überzeugung des Richters. 196 Im Urteil Thorgeir Thorgeirson bestätigte der Gerichtshof seine bisherige Rechtsprechung, daß die persönliche Unparteilichkeit des jeweiligen Richters bis zum Beweis des Gegenteils zu unterstellen sei.197 In objektiver Hinsicht sei die Frage zu stellen, ob, völlig ungeachtet des persönlichen Verhaltens des Richters, nachweisbare Tatsachen vorlägen, die Zweifel an seiner Unparteilichkeit weckten.198 Im Fall Pfeiffer and Plankl 199 hielt der EGMR es für die Verletzung der Unparteilichkeitsgarantie in objektiver Hinsicht für ausreichend, wenn in einem Strafverfahren ein Richter an der Hauptverhandlung teilgenommen hatte, der zuvor als Untersuchungsrichter tätig geworden war. Er entschied, daß es nicht einmal auf die einzelnen, von dem betreffenden Richter während der Voruntersuchung wahrgenommenen Funktionen ankomme, wenn, wie im vorliegenden Fall, das nationale Recht generell die Ausgeschlossenheit dieses Richters vorsehe und dadurch zu erkennen gebe, daß berechtigte Zweifel an seiner Unparteilichkeit bestehen könnten. 200 Dagegen reiche es für eine Verletzung der Unparteilichkeitsgarantie nicht aus, wenn ein Staatsanwalt gesetzlich berechtigt sei, an solchen Verhandlungstagen nicht persönlich zu erscheinen, an denen nicht die Begründetheit der Anklage untersucht werde und das Gericht trotz der Abwesenheit keine Funktionen der Staatsanwaltschaft zu übernehmen habe.201

194 195

Urteil Hadjianastassiou (Anm. 192), Rn. 33.

Urteil Hauschildt vom 24. Mai 1989, Judgments, vol. 154, Rn. 46. Urteil Hauschildt (Anm. 195), Rn. 46. 197 Urteil Thorgeir Thorgeirson vom 25. Juni 1992, Judgments, vol. 239, Rn. 50; vgl. auch Urteil Hauschildt (Anm. 195), Rn. 47. 198 Urteil Hauschildt (Anm. 195), Rn. 48. 199 Vgl. Anm. 144. 200 Urteil Pfeiffer and Plankl (Anm. 144), Rn. 36; vgl. auch Urteile Oherschlick vom 23. Mai 1991, Judgments, vol. 212-A, Rn. 50; Piersack vom 01. Oktober 1982, Judgments, vol. 52, Rn. 31. 201 Urteil Thorgeir Thorgeirson (Anm. 197), Rn. 53. 196

Bericht über die Tätigkeit

des Europarates im Jahre 1992

481

e) Anspruch auf Entscheidung innerhalb einer angemessenen Frist Wie schon 1991202 hatte sich der Gerichtshof in mehreren Fällen mit der Frage zu beschäftigen, ob die nationalen Gerichte die bei ihnen anhängigen Verfahren innerhalb einer angemessenen Frist im Sinne des Art. 6 Abs. 1 MRK entschieden hatten. Bei der Untersuchung dieser Frage unterschied der Gerichtshof wiederum zwei Prüfungsschritte: Zunächst stellte er die zu berücksichtigende Zeitspanne fest, anschließend ermittelte er die Angemessenheit dieser Frist im Einzelfall anhand bestimmter Kriterien. 203 Als zu berücksichtigende Zeitspanne bestimmte er den Zeitraum von der Anhängigkeit des Verfahrens vor dem nationalen Gericht bis zur endgültigen Rechtskraft des Urteils 204 bzw. bis zur Anrufung des EGMR wegen Ausstehens einer Entscheidung.205 Bezüglich der anzuwendenden Kriterien zur Ermittlung der Angemessenheit der jeweiligen Frist griff der Gerichtshof auf seine bisherige Rechtsprechung zurück und berücksichtigte so im jeweiligen Einzelfall unter anderem das Verhalten der Parteien, die Komplexität des Falles, etc.206 f) Das Recht, den Beistand eines Verteidigers seiner Wahl zu erhalten In der Rechtssache Croissant 207 hatte sich der EGMR mit einer Beschwerde zu befassen, die sich gegen einen Kostenfestsetzungsbeschluß richtete, durch den ein Angeklagter verpflichtet wurde, dem Staat die Gebühren für und Auslagen von drei für ihn bestellten Pflichtverteidigern rückzuerstatten. Zwei der Verteidiger waren auf den Antrag des Angeklagten, einer gegen dessen Willen durch das Gericht bestellt worden. In bezug auf die Bestellung eines dritten Pflichtverteidi202

Vgl. Niewerth (Anm. 1), 520 ff. Vgl. Urteile Nibbio, Borgese, Biondi, Monaco, Lestini, G., Andreucci, Arena, Cormio vom 26. und 27. Februar 1992, Judgments, vol. 228-A bis 228-1; Diana, Ride , Casciaroli y Manieriy Mastrantonio, Idrocalce, Cardarelli, Golino y Taiuti vom 27. Februar 1992, Judgments, vol. 229-A bis 229-1; Maciariello, Manifattura FL, Steffano y Ruorolo y Vorrasi, Cappello y Caffe Roversi, Ganay Barbagallo vom 27. Februar 1992, Judgments, vol. 230-A bis 230-1; Cifola y Pandolfelli and Palumbo y Pierazzini y Tusa y Cooperativa Parco Cuma y Serrentino, Lorenzi / Bernado & Gritti y Tumminelli vom 27. Februar 1992, Judgments, vol. 231-A bis 231-H; Editions Periscope vom 31. März 1992, Judgments, vol. 234-B, Rn. 43, 44; X. vom 31. März 1992, Judgments, vol. 234-C, Rn. 31, 32; Boddaert vom 12. Oktober 1992, Judgments, vol. 235-D, Rn. 35 ff.; Tomasi vom 27. August 1992, Judgments, vol. 241-A, Rn. 124 ff.; Cesarini vom 12. Oktober 1992, Judgments, vol. 245-B, Rn. 16 ff.; Salerno vom 12. Oktober 1992, Judgments, vol. 245-D, Rji. 17 ff.; Francesco Lombardo vom 26. November 1992, Judgments, vol. 249-B, Rn. 18 ff.; Giancarlo Lombardo vom 26. November 1992, Judgments, vol. 249-C, Rn. 17 ff.; Olsson (No. 2) vom 27. November 1992, Judgments, vol. 250, Rn. 98 ff. 203

204

So z. B. im Urteil Borgese vom 26. Februar 1992, Judgments, vol. 228-B, Rn. 15. So z. B. im Urteil Biondi vom 26. Februar 1992, Judgments, vol. 228-C, Rn. 15. 206 Vgl. z. B. Urteil X. (Anm. 170), Rn. 32 ff.; vgl. hierzu auch die ausführliche Darstellung der entwickelten Kriterien bei Niewerth (Anm. 1), 520 ff. 205

207

Urteil vom 25. September 1992, Judgments, vol. 237-B, Rn. 27.

31 GYIL 36

482

Daniela Krantz

gers gegen den Willen des Angeklagten stellte der Gerichtshof zunächst fest, daß die Beiordnung von mehr als einem Verteidiger nicht im Widerspruch zur Konvention stehe und in bestimmten Fällen im Interesse der Rechtspflege erforderlich sein könne.208 Grundsätzlich seien dabei die Wünsche und Interessen des Angeklagten zu beachten.209 Eine Bestellung auch gegen den Wunsch des Angeklagten sei dann möglich, wenn sachdienliche und ausreichende Gründe im Interesse der Rechtspflege dies geböten.210 g) Recht auf kostenlosen Rechtsbeistand Das Recht auf kostenlosen Rechtsbeistand gem. Art. 6 Abs. 3 lit. c. MRK ist kein absolutes Recht.211 Eine finanzielle Hilfe muß deshalb nur dann gewährt werden, wenn der Angeklagte nicht genügend Mittel zur Bezahlung hat. 212 Soweit die Bestellung von Verteidigern mit dem Grundsatz des fairen Verfahrens vereinbar ist, ist daher auch die Verpflichtung zur Kostentragung durch den Angeklagten bei Verurteilung grundsätzlich rechtmäßig.213 Jedoch wird das Recht auf kostenlosen Rechtsbeistand verletzt, wenn dem Angeklagten ein solcher verweigert wird, obwohl im Rechtsmittelverfahren schwierige, vom Angeklagten selbst nicht überschaubare Rechtsfragen auftauchen, die für den Ausgang des Prozesses von Bedeutung sind. 214 h) Unschuldsvermutung, Art. 6 Abs. 2 MRK Der EGMR hatte 1988 im Urteil Salabiaku entschieden, daß Art. 6 MRK die Vertragsstaaten verpflichte, die in ihrem Strafrecht enthaltenen Tatsachen- und Rechtsvermutungen unter Berücksichtigung der Bedeutung des Regelungsgegenstandes und unter Beachtung der Rechte der Verteidigung auf ein angemessenes Ausmaß zu beschränken.215 Diese Aussage konkretisierte der Gerichtshof nun dahingehend, daß die Anwendung gesetzlicher Vermutungen jedenfalls zulässig sei, wenn sie nicht automatisch erfolge, so daß dem Angeklagten nicht jede Verteidigungsmöglichkeit genommen werde. Diesem Erfordernis genüge es, wenn der Angeklagte in irgendeiner Form Gelegenheit erhalte, die Vermutungen zu widerlegen und das entscheidende Gericht eine sorgfältige Abwägung der Verteidigungsargumente vornehme. 216 208

Urteil Croissant (Anm. 207), Rn. 27.

209

Urteil Croissant (Anm. 207), Rn. 27, 28. Urteil Croissant (Anm. 207), Rn. 29. Urteil Croissant (Anm. 207), Rn. 33.

210 211 212 213 214 215

Urteil Urteil Urteil Urteil

Croissant (Anm. 207), Rn. 33. Croissant (Anm. 207), Rn. 36. Tuan Tran Pham Hoang vom 25. September 1992, Judgments, vol. 243, Rn. 40. Salabiaku vom 07. Oktober 1988, Judgments, vol. 141-A, Rn. 28.

Bericht über die Tätigkeit

6. Freiheitsrechte

des Europarates im Jahre 1992

483

gem. Art. 8 und 10 MRK

Einen weiteren Schwerpunkt der Rechtsprechung des EGMR im Jahr 1992 bildeten die Freiheitsrechte der Art. 8 und 10 MRK. Die Untersuchung einer Verletzung dieser Rechte erfolgte entsprechend der in seiner ständigen Rechtsprechung entwickelten Prüfungsreihenfolge (Anwendbarkeit, Eingriff in den Schutzbereich und Rechtfertigung gem. der jeweiligen Absätze 2). 217 Dabei wurde die Prüfung der Anwendbarkeit und des Eingriffs zumeist zusammengefaßt. 218 Die Rechtfertigung wurde entsprechend der bisherigen Rechtsprechung des Gerichtshofs anhand von drei Voraussetzungen geprüft: Der Eingriff mußte durch Gesetz vorgesehen sein, ein legitimes Ziel verfolgen und in einer demokratischen Gesellschaft notwendig sein.219 a) Achtung der privaten Sphäre gem. Art. 8 MRK aa) Recht auf Achtung des Privatlebens Der Gerichtshof mußte 1992 zu verschiedenen Problemen in bezug auf das Gebot zur Achtung des Privatlebens gem. Art. 8 MRK Stellung nehmen. (1) Der Begriff „Privatleben" i. S. v. Art. 8 Abs. 1 MRK Zunächst hatte sich sich der EGMR mit der Auslegung des Begriffes „Privatleben" i. S. d. Art. 8 Abs. 1 MRK zu befassen. Ausgangspunkt hierfür war die Frage, ob das Recht auf Achtung des Privatlebens auch Schutz vor Durchsuchungen einer Anwaltskanzlei biete.220 Die beklagte französische Regierung hatte einen Eingriff in den Schutzbereich des Art. 8 MRK bestritten, da die Konvention eine klare Unterscheidung zwischen Privatleben und Wohnung einerseits und Geschäftstätigkeit und -räumlichkeiten andererseits enthalte.221 Der Gerichtshof lehnte diese Auffassung ab. Zunächst einmal hielt er es weder für möglich noch für notwendig, eine abschließende Definition des Begriffes „Privatleben" zu geben.222 Fest stehe jedoch, daß der Begriff nicht nur auf einen Freiraum beschränkt sei, in dem der Einzelne seine persönliche Lebensführung nach Belieben gestalten 216

Urteil Tuan Tran Pham Hoang (Anm. 214), Rn. 34, 35.

217

Vgl. Urteil Margareta and Roger Andersson vom 25. Februar 1992, Judgments, vol. 226-A, Rn. 71 ff. 218 Urteil Rieme vom 22. April 1992, Judgments, vol. 226-B, Rn. 54 ff; vgl. hierzu auch Niewerth (Anm. 1), 533. 219 Urteil Margareta and Roger Andersson (Anm. 217), Rn. 74 ff.; Urteil Beljoudi vom 26. März 1992, Judgments, vol. 234-A, Rn. 68. 220 Urteil Niemitz vom 16. Dezember 1992, Judgments, vol. 251-B. 221 Urteil Niemitz (Anm. 220), Rn. 27. 222

31*

Urteil Niemitz (Anm. 220), Rn. 29.

484

Daniela Krantz

und davon die von diesem Kreis nicht erfaßte Außenwelt völlig ausschließen könne. Die Achtung des Privatlebens müsse daher in einem gewissen Grad auch das Recht erfassen, Beziehungen zu anderen Menschen herstellen zu können.223 In diesem Zusammenhang sei zu beachten, daß die meisten Personen ja gerade in ihrem Berufsleben eine signifikante oder sogar die größte Möglichkeit zur Entwicklung der Beziehungen mit der Außenwelt hätten.224 Der in der englischen Fassung verwendete Begriff „home" werde außerdem in einigen Vertragsstaaten einschließlich Deutschlands so verstanden, daß auch Geschäftslokale hiervon erfaßt werden. 225 Diese Auslegung stehe auch im Einklang mit der französischen Bezeichnung „domicile", da dieses Wort noch einen weiteren Bedeutungsumfang habe als die englische Bezeichung.226 Weiterhin sei zu beachten, daß es in vielen Fällen gar nicht möglich sei, eine klare Trennlinie zwischen Privat- und Berufsleben zu ziehen.227 Daher werde auch der Arbeitsplatz vom Schutzbereich des Privatlebens erfaßt. 228 (2) Positive Verpflichtungen aus dem Gebot der „Achtung" des Privatlebens In der im Plenum zu entscheidenden Klage der Beschwerdeführerin (Bf.) B.y 229 die sich gegen die französische Regierung richtete, hatte sich der Gerichtshof mit der Frage zu beschäftigen, ob die Nichtanerkennung einer Geschlechtsumwandlung eine Verletzung von Art. 8 MRK darstelle. Die Bf. hatte geltend gemacht, daß die Ablehnung ihres Antrags auf Änderung ihres Geschlechtsstandes und ihres Namens im Geburtsregister und in ihren Ausweispapieren sie zwänge, intimste Informationen Dritten preiszugeben. Gleichzeitig sei sie dadurch auf große Probleme in ihrem Berufsleben gestoßen.230 Der Gerichtshof wies zunächst darauf hin, daß der Begriff der „Achtung" („respect") in Art. 8 Abs. 1 MRK auslegungsbedürftig sei. Dies sei gerade dann der Fall, wenn es um die Frage gehe, welche positiven Verpflichtungen sich hieraus für die Staaten ergeben könnten.231 Die jeweiligen Anforderungen seien unter 223 224 225

Urteil Niemitz (Anm. 220), Rn. 29. Urteil Niemitz (Anm. 220), Rn. 29.

Urteil Niemitz (Anm. 220), Rn. 30. Urteil Niemitz (Anm. 220), Rn. 30. 227 Urteil Niemitz (Anm. 220), Rn. 29, 30. 228 Damit vertritt der E G M R ausdrücklich eine gegenteilige Auffassung wie der E u G H im Hoechst-Urteil, Rs. 47/87 u. 227/88, Slg. 1989, 2859, Rn. 18. 229 Urteil B. (Anm. 144). 230 Urteil B. (Anm. 144), Rn. 43. 231 Urteil B. (Anm. 144), Rn. 44; vgl. auch die Urteile Rees vom 17. Oktober 1986, Judgments, vol. 106, Rn. 35 und Cossey vom 27. September 1990, Judgments, vol. 184, Rn. 36. 226

Bericht über die Tätigkeit

des Europarates im Jahre 1992

485

Beachtung der besonderen Umstände im Einzelfall anhand einer Abwägung zwischen den Interessen der Allgemeinheit sowie denen des Individuums zu ermitteln. 232 Deshalb sei auch der vorliegende Fall im einzelnen zu prüfen, obwohl der EGMR in den Urteilen Rees233 und Cossey, 234 die sich beide gegen das Vereinigte Königreich gerichtet hatten, bei ähnlicher Sachlage eine Verletzung des Art. 8 MRK abgelehnt hatte. Der EGMR verneinte, daß es zwischenzeitlich wissenschaftliche und gesellschaftliche Entwicklungen gegeben habe, die ausreichten, um eine Pflicht zur Anerkennung der Geschlechtsumwandlung zu begründen.235 Auch lasse sich noch keine einheitliche Praxis in den Vertragsstaaten erkennen. 236 Weiter war zu prüfen, inwieweit Unterschiede der französischen und englischen Rechtssysteme eine andere Entscheidung rechtfertigen könnten.237 In diesem Zusammenhang wies der Gerichtshof zunächst auf die unterschiedliche Funktion des Geburtsregisters in Frankreich und Großbritanien hin. Im Gegensatz zu Großbritannien sei das französische Geburtsregister durchaus darauf ausgelegt, daß spätere Änderungen, wie zum Beispiel Adoption u. ä., dort einzutragen seien. Eine Gesetzesänderung sei hierfür nicht erforderlich. 238 Gleichzeitig sei zu beachten, daß durch die durchgeführten chirurgischen Operationen irreversible körperliche Veränderungen herbeigeführt worden seien. Die Entscheidung zu dieser äußerlichen Geschlechtsumwandlung sei daher im Rahmen des Gebots auf Achtung des Privatlebens gem. Art. 8 MRK zu beachten. Weiterhin sei zu bedenken, daß es nach der Entscheidung einiger französischer Gerichte durchaus möglich sei, trotz der Nichtanerkennung der Geschlechtsumwandlung einen neuen Vornamen zu erhalten, der besser zu der neuen äußeren Erscheinung passe. Zwar seien von den Gerichten bisher nur sog. neutrale Vornamen zugelassen worden. 239 Jedoch könne noch nicht von einer ständigen Rechtsprechung in diesem Zusammenhang ausgegangen werden, da die Cour de Cassation noch keine Gelegenheit gehabt habe, diese Urteile zu bestätigen.240 Dies sei ein weiterer Unterschied zu der Rechtslage in den genannten Fällen, der im Rahmen des Art. 8 MRK zu beachten sei.241 232 233 234 235 236 237 238 239 240 241

Urteil Urteil Urteil Urteil Urteil Urteil Urteil Urteil

B. (Anm. 144), Rn. 44. Rees (Anm. 231). Cossey (Anm. 231). B. (Anm. 144), Rn. 48. B. (Anm. 144), Rn. 48. B. (Anm. 144), Rn. 49 ff. B. (Anm. 144), Rn. 52. B. (Anm. 144), Rn. 58.

Urteil B. (Anm. 144), Rn. 58. Urteil B. (Anm. 144), Rn. 58.

486

Daniela Krantz

Schließlich müsse man auch die Unannehmlichkeiten beachten, denen die Bf. täglich ausgesetzt sei, da ihre Ausweispapiere auf eine männliche Person ausgestellt seien.242 Unter Berücksichtung all dieser Umstände, die den Fall B. von den Urteilen Rees und Cossey unterschieden, entschied der Gerichtshof, daß die Bf. in ihrem täglichen Leben Situationen ausgesetzt sei, die mit ihrem Recht auf Achtung ihres Privatlebens gem. Art. 8 Abs. 1 MRK nicht vereinbar seien. Daher sei selbst bei Anerkennung eines erheblichen Beurteilungsspielraumes des Staates nicht ersichtlich, inwieweit die Nichtanerkennung der Geschlechtsumwandlung durch Interessen der Allgemeinheit gerechtferigt werden könnte.243 (3) „Notwendig" „in einer demokratischen Gesellschaft" Im Urteil Lüdi entschied der Gerichtshof, daß Telefonüberwachung zwar ohne Zweifel einen Eingriff in das Privatleben darstelle, jedoch, soweit die Maßnahme gesetzlich legitimiert sei und zur Verhinderung von strafbaren Handlungen diene, in jedem Fall „notwendig" „in einer demokratischen Gesellschaft" sei.244 Gleichzeitig lehnte er es ab, daß bei Einsatz eines V-Mannes zur Verhaftung eines Dealers dessen Recht auf Achtung seines Privatlebens überhaupt betroffen sei, da sich der Dealer bewußt auf eine strafbare Handlung eingelassen habe und damit nicht schutzwürdig im Sinne des Art. 8 MRK sei.245 bb) Recht auf Achtung des Familienlebens In seinen Urteilen zum Recht auf Achtung des Familienlebens gem. Art. 8 Abs. 1 MRK verwies der EGMR auf seine ständige Rechtsprechung, daß das Zusammenleben als solches sowie der entsprechende Kontakt zwischen Eltern und Kind ein wesentliches Merkmal des Familienlebens darstelle. 246 Das Recht auf Achtung des Familienlebens umfasse daher grundsätzlich auch das Recht auf Zusammenleben der Familienmitglieder. 247 Die natürliche Institution Familie werde nicht dadurch aufgehoben, daß die Erziehung des Kindes öffentlichen Anstalten zugewiesen worden sei.248 Deshalb 242 243 244

Urteil B. (Anm. 144), Rn. 62. Urteil B. (Anm. 144), Rn. 63. Urteil Lüdi (Anm. 145) Rn. 39.

245

Urteil Lüdi (Anm. 145), Rn. 40. Urteil Margareta and Roger Andersson (Anm. 217), Rn. 72; Urteil Rieme (Anm. 218), Rn. 54; Urteil Olsson (No. 2) (Anm. 203), Rn. 77. 246

247 Urteil Margareta and Roger Andersson (Anm. 217), Rn. 91; Urteil Rieme (Anm. 218), Rn. 68; vgl. auch die Urteile Olsson vom 24. März 1988, Judgments, vol. 130, Rn. 81 und Eriksson vom 22 Juni 1989, Judgments, vol. 156, Rn. 58.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

487

sei die Untersagung fast jeglichen Kontaktes zwischen Mutter und Kind für eineinhalb Jahre, d. h. auch brieflich und telefonisch, dann nicht gem. Art. 8 Abs. 2 MRK notwendig in einer demokratischen Gesellschaft, wenn hierfür nicht besonders wichtige Gründe geltend gemacht werden könnten.249 Dagegen könne es eine staatliche Behörde bei Vorliegen solch wichtiger Gründe auch für eine Zeit von fünf Jahren untersagen, die Erziehung wieder dem Elternteil zuzusprechen.250 Des weiteren entschied der Gerichtshof im Urteil Beljoudi, 251 daß die Ausweisung eines Algeriers, der fast sein ganzes Leben mit seiner Familie in Frankreich verbracht hat, zwischenzeitlich die französische Staatsangehörigkeit hatte und mit einer französischen Frau verheiratet ist, einen so erheblichen Eingriff in das Recht auf Achtung des Familienlebens darstelle, daß diese selbst bei Verfolgung eines legitimen Zieles durch die staatlichen Behörden auf jeden Fall unverhältnismäßig und damit nicht „notwendig" „in einer demokratischen Gesellschaft" sei.252 cc) Gebot der Achtung des Briefverkehrs In gewissem Umfang ist die Kontrolle des Briefverkehrs zwischen Untersuchungshäftlingen untereinander oder mit Dritten mit Art. 8 MRK vereinbar; Zensurmaßnahmen dürfen jedoch nicht über das hinausgehen, was der mit ihnen verfolgte Zweck verlangt. 253 In seinem Urteil Pfeifer and Plankl 254 verwies der Gerichtshof auf seine bisherige Rechtsprechung, daß es „in einer demokratischen Gesellschaft" nicht „notwendig" sei, Privatbriefe anzuhalten, die darauf angelegt seien, die Gefängnisbehörden verächtlich zu machen.255 Zwar stelle das Unleserlichmachen von Passagen einen weniger schwerwiegenden Eingriff dar als das Zurückhalten des gesamten Briefes, jedoch sei auch diese Maßnahme als ein unverhältnismäßiger Eingriff anzusehen, soweit er nicht durch das Vorliegen besonderer Umstände gerechtfertigt werden könne.256 Ebenso sei es nicht „notwendig", regelmäßig die Korrespondenz eines Häftlings mit seinem Anwalt zu öffnen und zu lesen, ohne daß besondere Verdachtsmomente vorlägen. 257 248

Urteil Rn. 54. 249 Urteil 250 Urteil 251 Urteil 252 Urteil 253 254 255 256 257

Margareta and Roger Andersson (Anm. 217), Rn. 72; Urteil Rieme (Anm. 218), Margareta and Roger Andersson (Anm. 217), Rn. 95 bis 97. Rieme (Anm. 218), Rn. 67 ff; vgl. auch Urteil Olsson (No. 2) (Anm. 203), Rn. 81. Beljoudi (Anm. 219). Beljoudi (Anm. 219), Rn. 79.

Urteil Pfeifer and Plankl (Anm. 144), Rn. 46. Urteil Pfeifer and Plankl (Anm. 144), Rn. 47. Vgl. Urteil Silver u. a. vom 25. März 1983, Judgments, vol. 61, Rn. 64 u. 99c. Urteil Pfeifer and Plankl (Anm. 144), Rn. 47. Urteil Campbell vom 25. März 1992, Judgments, vol. 233, Rn. 53.

488

Daniela Krantz

dd) Gesetzliche Legitimation i. S. v. Abs. 2 MRK „Gesetzlich vorgesehen" im Sinne von Art. 8 Abs. 2 MRK bedeutet, daß der Eingriff in den Schutzbereich einer ausreichend zugänglichen und ausreichend präzise formulierten Rechtsgrundlage bedarf. 258 In diesem Zusammenhang verlangt der Grundsatz der Rechtsstaatlichkeit, daß das innerstaatliche Recht angemessenen Schutz gegen willkürliche Eingriffe in die in Art. 8 Abs. 1 gewährleisteten Rechte vorsieht. Bei Ermessensbestimmungen müssen die Grenzen des Ermessens so geregelt sein, daß sie ein Mindestmaß von Schutz gegen Willkür bieten.259 Diese Bedingung ist nicht erfüllt, wenn die betreffende Regelung keine Angaben über Art und Zweck, Dauer und Umfang der Beschränkungen bzw. Anfechtungsmöglichkeiten gibt. 260 Andererseits sind jedoch Regelungen zulässig, welche abstrakt ihren Regelungsbereich umschreiben und damit auf immer neue Situationen, die von diesem Tatbestand erfaßt werden, angewendet werden können, soweit der Anwendungsbereich klar umrissen bleibt. 261 b) Recht der freien Meinungsäußerung Der Gerichthof wies auch 1992 wieder auf die Bedeutung des Rechts auf freie Meinungsäußerung gem. Art. 10 MRK als wesentliche Grundlage einer demokratischen Gesellschaft und deren Entwicklung hin. 262 Der Schutzbereich des Art. 10 MRK beziehe sich deshalb nicht nur auf harmlose oder neutrale Äußerungen oder Ideen, sondern erfasse gerade auch solche, die angreifen, kritisieren oder schokkieren. 263 Ohne Pluralismus, Toleranz und Weltoffenheit als unersetzbaren Bestandteilen sei eine demokratische Gesellschaft nicht denkbar. 264 aa) Vorwiegend hatte sich der Gerichtshof mit der Frage zu beschäftigen, inwieweit in einer öffentlichen Auseinandersetzung geäußerte Kritik an politischen Maßnahmen von allgemeinem Interesse zulässig sei.265 Hierbei verwies er auf die in seiner bisherigen Rechtsprechung entwickelten Prinzipien. 266 258 Urteil Herczegfalvy vom 24. September 1992, Judgments, vol. 242-B, Rn. 88; vgl. auch das Urteil Kruslin vom 25. April 1990, Judgments, vol. 176-A, Rn. 26, 27 und Urteil Huvig vom 25. April 1990, Judgments, vol. 176-B, Rn. 25, 26. 259

Urteil Herczegfalvy (Anm. 258), Rn. 89; vgl. auch Urteile Silver u. a. (Anm. 255), Rn. 88; Malone vom 2. August 1984, Judgments, vol. 82, Rn. 67 f. 260 Urteil Herczegfalvy (Anm. 258), Rn. 91. 261 Urteil Castells (Anm. 150), Rn. 35; vgl. auch Observer and Guardian vom 26. November 1992, Judgments, vol. 216, Rn. 53. 262 Urteil Castells (Anm. 150), Rn. 42; Urteil Thorgeir Thorgeirson (Anm. 197), Rn. 63. 2 « Urteil Castells (Anm. 150), Rn. 42. 264

Urteil Castells (Anm. 150), Rn. 42; vgl. auch die Urteile Handyside vom 7. Dezember 1976, Judgments, vol. 24, Rn. 49 und Observer and Guardian (Anm. 261), Rn. 59a. 265 Urteil Schwabe vom 28. August 1992, Judgments, vol. 242-B, Rn. 29. 266

Urteil Schwabe (Anm. 265), Rn. 29.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

489

In diesem Zusammenhang stellte der EGMR zunächst klar, daß der Schutz der Meinungsfreiheit sowohl für die Teilnahme an politischen Diskussionen als auch für Stellungnahmen zu sonstigen öffentlichen Angelegenheiten gelte. Einschränkungen seien allein unter den in Art. 10 Abs. 2 MRK geregelten Voraussetzungen möglich.267 Hierbei sei zu beachten, daß Eingriffe jedoch nur insoweit zulässig sein könnten, als diese nicht generell von einer Teilnahme an der Diskussion öffentlicher Probleme abschreckten.268 Im Urteil Castells wies der EGMR darauf hin, daß das Recht auf freie Meinungsäußerung in besonderem Maße für gewählte Volksvertreter gelten müsse, da diese als Repräsentanten ihrer Wählerschaft deren Interessen zu vertreten haben.269 Daher seien an Einschränkungen der Meinungsfreiheit eines Oppositionsmitgliedes des Parlamentes ganz besonders hohe Anforderungen zu stellen.270 Dies müsse auch dann gelten, wenn die Kritik nicht im Parlament selbst, sondern im Wege eines Artikels in einer Wochenzeitschrift geäußert werde. In diesem Zusammenhang sei in besonderem Maße auch das Recht der Pressefreiheit zu beachten. Durch die Pressefreiheit werde Politikern die Möglichkeit eröffnet, ihre Ansichten der Öffentlichkeit mitzuteilen, um so jedem die Teilnahme am politischen Geschehen zu ermöglichen. 271 Auch seien die Grenzen zulässiger Kritik an der Regierung in einer demokratischen Gesellschaft weiter als gegenüber Privaten. 272 bb) Weiter entschied der Gerichtshof im Urteil Open Door and Dublin Well Woman, daß das Verbot der Verbreitung von Informationen über die Möglichkeit der Vornahme von Schwangerschaftsunterbrechungen im Ausland (hier: Großbritannien) durch irische Gerichte eine unzulässige Einschränkung des Rechts auf freie Meinungsäußerung darstelle, da eine solche Einschränkung in einer demokratischen Gesellschaft nicht notwendig sei. Ausgangspunkt für diese Entscheidung war wieder der Grundsatz, daß sich die in Art. 10 MRK geschützte Meinungsfreiheit auch auf Informationen und Ideen beziehe, die den Staat oder auch irgendeinen Teil seiner Bevölkerung beleidigten oder störten. 273 Weiterhin sei zu beachten, daß es nach irischem Recht keine Straftat darstelle, ins Ausland zu reisen, um dort eine Abtreibung vornehmen zu lassen.274 Außerdem sei weder die Schwangerschaftsunterbrechung als solche befürwortet noch zu ihr geraten worden. 275 Unter 267 268 269 270 271

Urteil Thorgeir Urteil Thorgeir

275

(Anm. 197), Rn. 64. (Anm. 197), Rn. 68.

Urteil Castells (Anm. 150), Rn. 42. Urteil Castells (Anm. 150), Rn. 42.

Urteil vol. 103, Rn. 272 Urteil 273 Urteil 274

Thorgeirson Thorgeirson

Castells (Anm. 150), Rn. 43; vgl. auch Urteil Lingens vom 8. Juli 1986, Judgments, 42. Castells (Anm. 150), Rn. 46. Open Door and Dublin Well Woman (Anm. 152), Rn. 71.

Urteil Open Door and Dublin Well Woman (Anm. 152), Rn. 72. Urteil Open Door and Dublin Well Woman (Anm. 152), Rn. 75.

490

Daniela Krantz

Berücksichtigung dieser Umstände sei ein absolutes Verbot jeglicher Informationsverbreitung über Abtreibungsmöglichkeiten unverhältnismäßig.276 Im Fall Hadjianstassiou hatte sich der Gerichtshof mit der Frage zu beschäftigen, inwieweit die Freiheit der Meinungsäußerung auch für Soldaten gelte. In diesem Zusammenhang sei zu beachten, daß sich aus den besonderen Bedingungen des Militärlebens bestimmte Pflichten und Verantwortungen ergeben könnten.277 Außerdem könne die Enthüllung des Interesses eines Staates an einem bestimmten Waffensystem sowie die Beschreibung der entsprechenden technischen Kenntnisse, woraus gewisse Anhaltspunkte für den Entwicklungsstand der Herstellung gewonnen werden könnten, geeignet sein, einen erheblichen Schaden für die nationale Sicherheit herbeizuführen. Deshalb sei die Verurteilung eines Offiziers wegen Weitergabe militärischer Informationen nicht unverhältnismäßig im Sinne von Art. 10 Abs. 2 MRK. 2 7 8 7. Das Recht auf Freiheit und Sicherheit gem. Art. 5 MRK Einen dritten Schwerpunkt in der Rechtssprechung des EGMR bildeten 1992 Fragen bezüglich des Rechts auf Freiheit und Sicherheit gem Art. 5 MRK. a) Rechtmäßigkeit der Haft gem. Art. 5 Abs. 1 lit. a MRK Grundsätzlich setzt die Rechtmäßigkeit der Haft gem Art. 5 Abs. 1 lit. a MRK voraus, daß die Freiheitsentziehung nach innerstaatlichem Recht gesetzlich vorgeschrieben ist. 279 Im Urteil Drozd and Janousek entschied der Gerichtshof, daß hierfür auch gewohnheitsrechtlich anerkanntes ungeschriebenes Recht ausreiche, da auch in diesem Fall die Rechtssicherheit gewährleistet sei.280 Damit wandte er erstmals im Rahmen des Art. 5 MRK die gleichen Grundsätze an, die in bezug auf die gesetzliche Legitimation eines Eingriffs in die Freiheitsrechte der Art. 8-11 MRK schon lange anerkannt sind. 281 Die Rechtmäßigkeit der Haft setzt weiterhin den Ausschluß jeglicher Willkür voraus. 282 Soweit ein nationales Gericht dazu angerufen wird, im Wege der Rechtshilfe Akte ausländischer Hoheitsgewalt zu überprüfen, ist zu beachten, daß dem 276

Urteil Open Door and Dublin Well Woman (Anm. 152), Rn. 74 und 80. Urteil Hadjianastassiou (Anm. 192), Rn. 46; vgl. auch das Urteil Engel u. a. vom 8. Mai 1976, Judgments, vol. 22, Rn. 100. 278 Urteil Hadjianastassiou (Anm. 192), Rn. 47. 279 Urteil Drozd and Janousek (Anm. 142), Rn. 104. 280 Urteil Drozd and Janousek (Anm. 142), Rn. 107. 277

281 282

So erstmals im Urteil Sunday Times vom 27. Oktober 1978, Judgments, vol. 30, Rn. 30 ff. Urteil Drozd and Janousek (Anm. 142), Rn. 104, 110.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

491

fremden Staat nicht die eigenen Standards aufgezwungen werden dürfen. Der Konventionsstaat muß daher lediglich nachprüfen, ob die Verurteilung das Ergebnis einer flagranten Rechtsverweigerung ist. 283 b) Anwendbarkeit des Art. 5 Abs. 1 lit. c MRK Im Urteil Herczegfalvy entschied der Gerichtshof, daß bis zum Urteil 1. Instanz die Untersuchungshaft auch dann ausschließlich unter Art. 5 Abs. 1 lit. c MRK zu subsumieren sei, wenn sie in der Form der vorläufigen Unterbringung in einer psychiatrischen Klinik vollzogen werde. Die Anwendbarkeit von Art. 5 Abs. 1 lit. c MRK lebe nach Aufhebung des Urteils durch die Rechtsmittelinstanz im zweiten Rechtszug wieder auf, wenn die Untersuchungshaft auch dann noch andauere.284 c) Rechtmäßigkeit und Dauer der Auslieferungshaft gem. Art. 5 Abs. 1 lit. f. Weiter mußte sich das Gericht mit Fragen der Rechtmäßigkeit und Dauer der Auslieferungshaft gem. Art. 5 Abs. 1 lit. f. beschäftigen. Im Urteil Kolompar legte der Gerichtshof fest, daß als effektiver Beginn der Auslieferungshaft das Datum anzusehen sei, von dem an sie den alleinigen Haftgrund darstelle. Dies gelte auch dann, wenn sich eine Auslieferungshaft mit einer schließlich auf eine Strafe angerechneten Untersuchungshaft überlagere. 285 Die Auslieferungshaft selbst sei nur dann rechtmäßig, wenn sie während ihrer gesamten Dauer den Anforderungen des Art. 5 Abs. 1 lit. f. entspreche. Somit könnten Verfahrensverzögerungen zum Wegfall dieser Bedingung führen. 286 Dies gelte jedoch nur dann, wenn sie dem Staat und nicht dem Betroffenen selbst zuzurechnen seien.287 d) Rechte des Untersuchungshäftlings gem. Art. 5 Abs. 3 MRK aa) Angemessenheit der Haftdauer Wie auch schon 1991288 untersuchte der Gerichtshof im Fall Tomasi sehr ausführlich die Angemessenheit der Haftdauer bei Untersuchungshäftlingen gem. Art. 5 Abs. 3 MRK. 283 284 285 286 287

Urteil Drozd and Janousek (Anm. 142), Rn. 110. Urteil Herczegfalvy (Anm. 258), Rn. 60, 65. Urteil Kolompar (Anm. 148), Rn. 36. Urteil Kolompar (Anm. 148), Rn. 40 ff.

Urteil Kolompar (Anm. 148), Rn. 42. 288 Vgl. Niewerth (Anm. 1), 530 f.

492

Daniela Krantz

Dies geschah entsprechend seiner bisherigen Rechtsprechung ähnlich wie bei der Prüfung der Angemessenheit der Verfahrensdauer gem. Art. 6 Abs. 1 MRK in zwei Schritten: Zuerst wurde die Haftdauer festgestellt, anschließend ihre Angemessenheit untersucht. 289 Ausgangspunkt der Untersuchung der Angemessenheit war das Bestehen eines begründeten Verdachts als conditio sine qua non. 2 9 0 Anschließend untersuchte das Gericht entsprechend den von ihm entwickelten Prinzipien das Vorliegen zulässiger Gründe für die Fortdauer der Untersuchungshaft. Hierzu zählen die Schwere des Vergehens, die Notwendigkeit des Schutzes der öffentlichen Ordnung, das Risiko der Ausübung von Druck auf Zeugen oder Absprache mit Mitbeschuldigten und Fluchtgefahr. 291 Außerdem ist die Durchführung des Untersuchungsverfahrens als solches bzw. die Komplexität des zu ermittelnden Sachverhalts zu berücksichtigen. 2 9 2 bb) Recht auf Vorführung vor einen „gesetzlich zur Ausübung richterlicher Funktionen ermächtigten Beamten" Weiterhin mußte sich das Gericht mit der Frage beschäftigen, ob ein Staatsanwalt ein „gesetzlich zur Ausübung richterlicher Funktionen" ermächtigter Beamter i. S. v. Art. 5 Abs. 3 MRK ist. Grundsätzlich setzt dies die objektive Unparteilichkeit des Beamten voraus. 293 Diese erscheint bei Personen zweifelhaft, die im Verlauf des späteren Verfahrens verpflichtet sind, als Ankläger aufzutreten. 294 e) Recht auf gerichtliche Haftkontrolle gem. Art. 5 Abs. 4 MRK Weiter beschäftigte sich der Gerichtshof mit dem Recht auf gerichtliche Haftkontrolle gem. Art. 5 Abs. 4 MRK. Die gerichtliche Überprüfung der Rechtmäßigkeit einer Unterbringung gem. Art. 5 Abs. 4 MRK muß nach ständiger Rechtsprechung in Übereinstimmung mit den materiellrechtlichen und den Verfahrensbestimmungen des nationalen Rechts erfolgen und das Ziel des Art. 5 MRK beachten, den Einzelnen gegen Willkür zu schützen.295 In seinem Urteil Herczegfalvy entschied der Gerichtshof, 289 290 291 292

Urteil Tomasi (Anm. 173), Rn. 83 ff. Urteil Tomasi (Anm. 173), Rn. 84. Urteil Tomasi (Anm. 173), Rn. 86 ff. Urteil Tomasi (Anm. 173), Rn. 100 ff.

293

Urteil Brincat vom 26. November 1992, Judgments, vol. 249-A, Rn. 20. Urteil Brincat (Anm. 293), Rn. 20; vgl. auch Urteil Huber vom 23. Oktober 1990, Judgments, vol. 188, Rn. 43. 294

295 Urteil Herczegfalvy (Anm. 258), Rn. 75; vgl. auch Urteil Koendjbiharie vom 25. Oktober 1990, Judgments, vol. 185-B, Rn. 27.

Bericht über die Tätigkeit

des Europarates im Jahre 1992

493

daß dies nicht nur bedeute, daß die gerichtlichen Entscheidungen möglichst rasch, sondern auch in angemessenen Abständen ergehen müßten.296 Die letztgenannte Bedingung sei nicht erfüllt, wenn bei einer gesetzlich vorgesehenen jährlichen Überprüfung die tatsächlichen Entscheidungen im Abstand von 15 Monaten bzw. 2 Jahren ergingen und in der Zwischenzeit gestellte Enthaftungsanträge unerledigt blieben.297 Nach seiner Rechtsprechung setzt Art. 5 Abs. 4 MRK weiter voraus, daß das Verfahren zur Überprüfung des Freiheitsentzuges einen gerichtsförmigen Charakter hat und dem Betroffenen Garantien gewährt, die der Art des fraglichen Freiheitsentzuges angemessen sind. 298 Zu diesen Garantien gehört es, daß eine Person, die in einer psychiatrischen Einrichtung untergebracht ist, weil sie Straftaten begangen hat, für die sie aufgrund ihrer Geisteskrankheit nicht verantwortlich ist, in den nachfolgenden Verfahren zur Überprüfung ihrer Unterbringung rechtlichen Beistand erhält. 299 Für die Frage, ob ein Rechtsbeistand in diesen Fällen zu bestellen ist oder nicht, ist es ohne Bedeutung, ob die untergebrachte Person einen entsprechenden Antrag gestellt hat. 300 8. Verbot der unmenschlichen und erniedrigenden Behandlung gem. Art. 3 MRK Außerdem hatte der Gerichtshof sich noch mit einer Klage zu beschäftigen, in der eine Verletzung des Art. 3 MRK gerügt wurde. Der EGMR entschied, daß bei der Überprüfung der Behandlung von Patienten in psychiatrischen Kliniken im Hinblick auf eine Verletzung des Verbots der unmenschlichen und erniedrigenden Behandlung wegen der typischen Unterlegenheit und Hilflosigkeit dieser Patienten erhöhte Wachsamkeit erforderlich sei.301 Soweit die Patienten nicht in der Lage seien, eigene Entscheidungen zu treffen, sei es Aufgabe der Ärzte, auf der Grundlage der anerkannten Regeln der medizinischen Wissenschaft über die anzuwendenden therapeutischen Methoden einschließlich Zwangsmaßnahmen zu entscheiden.302 Im allgemeinen könne eine the-

296

Urteil Herczegfalvy (Anm. 258), Rn. 75. Urteil Herczegfalvy (Anm. 258), Rn. 77. 298 Urteil Megyeri vom 12. Mai 1992, Judgments, vol. 237-A, Rn. 22; vgl. zu den vom Gerichtshof entwickelten Grundsätzen auch die Urteile X. vom 5. November 1981, Judgments, vol. 46, Rn. 52; Wassink vom 27. September 1990, Judgments, vol. 185-A, Rn. 30; Winterwerp vom 24. Oktober 1979, Judgments, vol. 33, Rn. 60. 297

299

Urteil Megyeri (Anm'. 298), Rn. 23. Urteil Megyeri (Anm. 298), Rn. 23 und 26. 3 °i Urteil Herczegfalvy (Anm. 298), Rn. 82. 302 Urteil Herczegfalvy (Anm. 298), Rn. 82. 300

494

Daniela Krantz

rapeutisch notwendige Maßnahme keine unmenschliche oder erniedrigende Behandlung darstellen, doch müsse die medizinische Notwendigkeit überzeugend dargetan werden. 303

303

Urteil Herczegfalvy

(Anm. 298), Rn. 82.

Activities of the Nordic Council 1990-1992 By Tomas H. Sveinsson*

I. The Nordic Region and the Nordic Cooperation — Introduction The Nordic region — 'Norden' — consists of Denmark, with the autonomous territories of the Faeroe Islands and Greenland, Finland, with the autonomous Aland Islands, Iceland, Norway and Sweden. Its population totals about 23 million. The Nordic countries constitute a free labour market and Nordic citizens can travel throughout the region without passports and retain their social security rights when moving from one country to another. Laws and regulations have been introduced to facilitate cooperation in areas such as trade and communications, and resources are also coordinated in such sectors as energy and industry. In addition, the Nordic countries work together on legislative issues, culture, research and education, and assume a shared responsibility for the environment. The initiative for much of this has been taken by the Nordic Council, a forum for cooperation between the Parliaments and Governments of the Nordic countries. The Council was set up in 1952. It is a formalised forum for cooperation between all countries in the Nordic Region. The Council consists of 87 elected MP's and a number of government representatives. The Council initiates and encourages Nordic cooperation and monitors its results. This cooperation is based on the Helsinki Treaty from 1962, under which the Nordic States have undertaken to seek to preserve and further develop cooperation in legal, cultural, social, economic, transport and communications and environmental spheres. Lately foreign policy and security matters have also been on the agenda. In 1971 the Nordic Council of Ministers was established, in which the Governments of the Nordic countries work together. To promote cooperation in specific areas, special agreements have been signed, including a Common Labour Market (1954, 1982), Passport Waiver (1954, 1957/1973), Cultural Agreement (1971), a * Secretary to the Standing Committee of Environment, The Nordic Council, 1986-92.

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Tomas H. Sveinsson

Transport Agreement (1972), an Environmental Protection Convention (1974), Nordic Investment Bank (1975), a Language Convention (1981) and a Convention regarding the Working Environment (1989). The highest decision-making body of the Nordic Council is the Plenary Assembly. Among other things, it adopts recommendations and statements of opinion, revises and determines the Nordic Council's Rules of Procedure and elects the Council's Presidium and chairmen and vice-chairmen of the standing committees. Between sessions, the Presidium is the Council's highest decision-making body. It consists of 11 members. On behalf of the Plenary Assembly, the Presidium can make representations or issue opinions on matters relating to Nordic cooperation which need to be considered before the next session. Each year the Presidium submits a report to the Council's Plenary Assembly. The report covers the activities of the Council between sessions. Since 1992 the Council holds two sessions each year (one regular session per year before that) in March and November. The spring sessions rotate between the Nordic capitals. The members of the Nordic Council are assigned to five specialised standing committees and a Budget Committee. The five standing committees are the Legal, Economic, Environmental, Cultural, and Social Committees. The function of the standing committees is to prepare the business of the Council prior to decisions by the Plenary Assembly or the Presidium. During the period of this report, from 1990-1992, the committees have considered three committee proposals, one hundred and eleven member proposals and twenty-three Council of Ministers proposals. Furthermore, the committees have stated their views on each Committee's relevant sections of the Council of Ministers' Annual Reports, the Council of Ministers' Plan for Nordic Cooperation, and the Council of Ministers' draft budget and proposals for various cooperation programmes. The topics of discussion that have been most prominent during this period are matters concerning the Nordic Council's international dimension and role in a changing Europe, such as the place and role of the Nordic cooperation in the framework of a future EE A agreement, and cooperation with adjacent areas to the Nordic region. Emphasis has been placed on cooperation with the three Baltic Republics of Estonia, Latvia, and Lithuania, and other States in the Baltic Sea region. This new international dimension of the Nordic Council has called for a change in the Council's organisation and the Helsinki Treaty. The Plenary Assembly and the national parliaments of the Nordic countries have discussed in depth how the internal structure of the Nordic Council should be constituted to achieve maximum efficiency and to strengthen the Nordic cooperation within the framework of this new dimension.

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The Nordic Council has been the host to several international conferences dealing with a variety of topics such as "The Role of Parliamentarians in the New European Architecture" (1990), "Energy for Europe — Recourses, Economy, Cooperation" (1991), and "The 2nd Parliamentary Conference on Cooperation in the Baltic Sea Area" (1992). The standing committees have also hosted a number of Nordic conferences concerning matters such as "The Living condition of the Disabled in the Nordic Region", "Transport Economics and Macro Planning of the Infrastructure", and "Unemployment and the Level of Health". This report provides a summary of the reports of the Presidium, the work of the Committees and other activities during 1990-1992. II. Reports of the Presidium In the 39th session , held in 1991, the Presidium comments on the place of the Nordic Council and the Nordic cooperation in a changing Europe, and on international developments. An account is given of the visit by a Nordic Council delegation to the Soviet Union, primarily to the Baltic Republics, in October 1990, and the report raises the question of institutionalised cooperation between the Nordic Council and the Baltic Republics. This visit was the first of its kind. The Presidium also comments on interaction between parliamentarians and ministers, the reconstructing of cultural cooperation, and environmental issues. Emphasis is placed on the importance of dynamic Nordic cooperation based on strong parliamentary involvement. Problems which it was once believed could be solved at a national or regional level now often require large-scale, concentrated international solutions. Environmental problems are one example. At the same time, there are growing needs and growing opportunities to find pragmatic regional solutions to problems affecting ordinary people's everyday life. The international dimension to the Nordic Council's activities was in its infancy in 1990. That year saw a development of the Nordic Council's international activities. This was not without numerous and prolonged discussions among the Presidium about how far the Council could go. The Nordic Council's relationship to Eastern Europe raised many questions of principle. Invitations to visit the Supreme Soviet and the new Parliaments of the Baltic republics posed fresh challenges to the Council. Debate at the Council's session in 1990, within the Presidium, in national Parliaments and in reports on Nordic cooperation was dominated by the growing international element in the work of the Nordic Council and the limitations and opportunities embodied in the Helsinki Treaty as regards Council involvement in international cooperation.

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Concerning the EC-EFTA negotiations on a European Economic Area (EEA), the Presidium, in November 1990, wrote to the Nordic Prime Ministers, asking them to do what they could to ensure that formal Nordic cooperation has a place in the framework of any future EEA agreement. The Presidium wished a clause to be included in such an agreement, safeguarding the continuation of Nordic cooperation based on the Helsinki Treaty. In November 1991 the Nordic Council held an extraordinary Session , the 4th of its kind in the history of the Council. The main theme of this session was the future of Nordic cooperation. The Presidium submitted a memorandum setting out its basic views on Nordic cooperation after 1992 and its development in the 1990s. This memorandum, together with six member proposals, formed the basis for debate at the session. It emphasised the new opportunities and conditions for Nordic cooperation created by developments in Europe, the goals and areas of cooperation that should be given priority in the years ahead, and the budgetary and organisational consequences. The Presidium discussed the future shape of Nordic cooperation with the Prime Ministers, and on the same day the Prime Ministers issued a declaration concerning future Nordic cooperation, the Mariehamn Declaration. In the annual report that the Presidium submitted to the Plenary Assembly at the 40th Session in March 1992, the Presidium comments on, among other things, the Nordic Council as a foreign policy actor in relation to the Baltic States and Eastern Europe, the Council's Baltic Sea policy, and Nordic cooperation in the future. The Presidium's activities in 1991 focused on: — international and foreign policy issues, — Nordic cooperation after 1992, and — follow-up of the Council's consideration of the Organisational Review Committee's recommendations. The purpose of the Baltic States programme, which was presented by the Presidium at the session in March 1991, was to place the many member's proposals concerning the Baltic States and Eastern Europe in a wider context and to establish an overall level of aspiration for cooperation with the Baltic States over the next few years. The elaboration of a Baltic Sea policy was a natural extension of work on the Baltic States programme. The rapid developments occurring in the Baltic Sea area created new opportunities for cooperation and common solutions to joint problems. The Presidium wished to give priority to tangible, practical collaboration through existing cooperative bodies.

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The Presidium asked the Nordic Council of Ministers to study, jointly with the Presidium, the practical feasibility of increased cooperation in the Baltic Sea region and subsequently to submit a Council of Ministers' proposal on the subject. The Council of Ministers replied that it was not prepared to carry out such a study. However, individual foreign ministers spoke out in favour of Baltic Sea cooperation, and the Danish and German Ministers of Foreign Affairs issued an invitation to a meeting of Foreign Ministers of the Baltic Sea States in March 1992. The Presidium was of the opinion that it was gratifying that the Nordic Foreign Ministers were considering the question of Baltic Sea cooperation. However, the Presidium considered it unfortunate that parliamentarians and Governments could not discuss the subject together within the Nordic Council framework before the governments individually or jointly took political decisions. In the report it is pointed out that the Council's role as an independent actor on the international scene was strengthened in 1991, particularly in relation to the Baltic States and Eastern Europe. At the beginning of the year, the Presidium issued a statement expressing its deep concern at the situation in the Baltic States. High level political representatives of the three States attended the Council's session in March 1991 as specially invited guests. Their presence at the session clearly underlined the view which Nordic MPs and Governments took of their demands for independence and democracy. Representatives of the Baltic Parliaments held discussions with the Presidium in September 1991, regarding continued cooperation between the Baltic States and the Nordic region. In its contacts with the Baltic Parliaments, the Nordic Council has sought to focus cooperation on practical projects in areas such as the environment, culture, communication etc. Cooperation between the Nordic Council and the newly formed Baltic Interparliamentary Assembly was also discussed during the Autumn of 1991. The presiding bodies of the Council and the Baltic Assembly set up a working group to submit proposals concerning the substance and form of parliamentary cooperation and relations between the Nordic and Baltic regions. In 1992 those two bodies made a formal Agreement on Parliamentary Cooperation. According to the Agreement they will cooperate on such issues as the development of democratic institutions, environmental protection, trade and market economy, and energy. Developments in areas to the East of the Nordic region were one of the Presidium's major concerns during 1991. However, the Presidium believes that West European integration will be the key challenge in future Nordic cooperation. The economic and political integration of Europe places new demands on Nordic cooperation. This was discussed in a meeting with the Nordic Prime Ministers, during the year 1991. The Council urged the Council of Ministers to 3*

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analyse issues of importance to the future of cooperation and to submit a proposal for a programme. The Presidium takes the view that the Council's own organs must also analyse the future of Nordic cooperation in parallel with the Council of Ministers. The basic design of Nordic cooperation involves a dialogue between parliamentarians and ministers. By and large this dialogue works well. But the Presidium points out that a certain inconsistency can be discerned in the views which the Council of Ministers put before the 40th, Session concerning the relationship between ministers and MPs. On the one hand, the Council of Ministers claims, in its plans for Nordic cooperation, that it considers it important to safeguard the parliamentary influence on Nordic intergovernmental cooperation. But in the same document, there are also indications that the ministers might prefer to confine cooperation to their own circle. It refers to the value of informal networks and an intention to place greater emphasis on them. The Presidium has difficulty in seeing how parliamentarians can be given a stronger influence if the Council of Ministers intends to place the main emphasis on information passing through informal networks. Also, when the Council of Ministers argues that Nordic action plans can no longer be regarded as useful instruments, it becomes even more difficult to see how MPs are to influence government-level cooperation. In the economic and industrial sector, in particular, the Council of Ministers has tended to give priority to Nordic networks at the expense of cooperation at a political decision-making level. The main theme of the 41st Session , held in November 1992y was the future of Nordic cooperation. At the time of the Nordic Council's special session in 1991, the Prime Ministers issued a statement announcing the appointment of a group of personal representatives to carry out a reassessment of Nordic cooperation. At the same session the Nordic Council also outlined its fundamental views on how Nordic cooperation could be developed. The working group, set up by the Prime Ministers, submitted an interim report during the 40th Session in March 1992. The group made its final report to the Prime Ministers in August 1992. On the same date, the Prime Ministers issued a statement on the future of Nordic cooperation, the Bornholm Declaration. During the autumn of 1992, the group's reassessment of Nordic cooperation was discussed in the national parliaments. After their Bornholm meeting, the Prime Ministers set up a new working group to plan how the report should be followed up. During the 41st Session this group presented a range of proposals to the Prime Ministers.

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Once again, in the Presidium's report to the 42nd Session , held in March 1993, on activities in 1992, the main theme is the organisation of the Nordic cooperation, with emphasis on international questions and in particular the Baltic region. In its report the Presidium notes that, year after year, the Council has urged the Ministers for Nordic Cooperation to give a clear indication of the direction, scope and priorities of cooperation between the Nordic countries, but to no avail. "In the end," the Presidium goes on, "the call went to the Prime Ministers direct. It must be regarded as auguring well for Nordic cooperation that the Prime Ministers responded to this challenge and produced within such a short time a basis for discussing and deciding upon the substance and organisation of future cooperation. All in all, the Prime Ministers' declaration and the report they considered during the 41st Session in November 1992, are a positive answer to the Nordic Council's call for the Prime Ministers to assume greater responsibility for the running and follow-up of Nordic cooperation." The Presidium pointed out that the Nordic Council is unique in that it is a forum for cooperation among both governments and parliamentarians. This has put it in a much better position to achieve results than other international bodies that do not include government representatives. The proposal to amend the Helsinki Treaty in such a way as to make the Council an organ for cooperation between MPs only could have unfortunate consequences for interaction between the representatives of national governments and parliaments. Since 1987, the Council has recommended the Council of Ministers and the governments of the Nordic countries to create scope for the discussion of foreign and security policy issues within the Nordic Council. The Prime Ministers have now made it clear that they intend to give priority to and develop Nordic cooperation in the area of foreign and security policy. At the 40th Session in March 1992 and the 41st session in November 1992, Prime Ministers, Foreign Ministers and parliamentarians alike focused on European integration and its consequences. At the 40th Session a guest speaker was invited to address a session of the Nordic Council for the first time in its history. Chancellor Helmut Kohl of Germany spoke about European developments up to and beyond the year 2000, about the scope for regional cooperation in the new Europe, and about the Nordic Region. Cooperation and contacts between the Nordic Council and the countries and areas neighbouring on the Nordic region were broadened during 1992. The main links continued to be with the three Baltic States but contacts were also established with the North-Western areas of Russia. To further democracy in neighbouring States, the Presidium has set up a scholarship for parliamentarians from Estonia, Latvia, Lithuania, Poland and Russia.

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The Presidium notes that peaceful and democratic development in the Baltic States depends to a significant extent upon progress in the economic sphere. In a variety of contexts the Nordic Council has urged the Council of Ministers to provide financial support as a means of promoting such progress. The Presidium is also concerned about pollution and the possibility of ecological disasters in the States neighbouring on the Nordic region, and has raised these problems with the Nordic Environment Ministers. It is worrying that so little tangible action is being taken to reduce degradation of the environment, the Presidium observes. The Presidium also notes that there are new opportunities for parliamentary cooperation regarding the use of Arctic resources and the prevention of environmental abuse of this region. An international parliamentary conference on Arctic cooperation was held in Reykjavik, Iceland, in August 1993. One of the conclusions of the Prime Ministers' assessment of the Nordic cooperation that was presented in 1992 is the intention of stepping up cooperation in the areas of culture and education. The Presidium notes that the Prime Ministers and the parliamentary members of the Nordic Council agree that Nordic cultural cooperation should be further strengthened, partly with a view to reinforcing the sense of a Nordic identity in the wake of European integration. However, though it is agreed that cultural cooperation should be intensified, there is less agreement on where the necessary funding should come from. The Prime Ministers' aim is that 50 per cent of the total Nordic budget should be allocated to culture, research and education by 1996, with the first increase for this sector in 1994. At the same time the Council of Ministers has decided that 25 per cent of the overall budget should be spent on efforts to protect the environment. The Presidium points out that, while the parliamentarians share the view that priority should be given to culture, with the environment in second place, this does not mean they agree that 50 per cent of the budget should be reserved for cultural cooperation in the longer term, irrespective of what tangible projects are involved. In its report, the Presidium points out that unemployment is rising rapidly in the Nordic countries. The Social Committee of the Council has drawn attention to the growing numbers of young people out of work, and to the serious consequences this is having for both young people themselves and society as a whole. The Presidium has discussed this issue with the Prime Ministers. It has also asked the Prime Ministers to make unemployment and its consequences, especially the growth of racism, a key theme at the 42nd Session in March 1993. To tackle the problem of unemployment, political determination and cooperation are needed, the Presidium points out.

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At the 42nd session in March 1993, the Prime Minister of Sweden, Mr. Carl Bildt, spoke on behalf of the Nordic Prime Ministers. In his speech he said that the fight against unemployment was among those problems that the Prime Ministers put greatest emphasis on solving. He pointed out that the common Nordic Labour Market was important in this connection. The common Labour Market increases the freedom of choice, he said. He stated that the Nordic countries, for example through cooperation in marketing, through investments in the infrastructure and by removing unnecessary trade barriers between the Nordic countries, would in the long run produce positive effects and stabilise the rate of employment at a satisfactory level. Another important aspect is education and research, he said. He also noted the EEA agreement and the possibilities the agreement would create, when ratified. Racism he said is the worst plague of our times. He underlined the necessity for openness and tolerance for other cultures and towards those with backgrounds and experiences other than those of the Nordic Peoples. The new President of the Nordic Council, Mr. Jan P. Syse , Norway, stated that the unemployment in the Nordic Countries threatened the "Nordic Model". He said that Nordic cooperation was necessary in addition to national activities and encouraged the members of the Council to show creativity, new ideas and a new way of thinking. He pointed out that the parliamentarians, under no circumstances, can be passive and just wait for growth in the economy. They must, through political activities, see to it that this problem is solved. Although the members of the Council did not all agree upon ways to solve these problems, they all agreed upon a common goal which is full employment and understanding for the Peoples of other nations and cultures. III. Work of the Standing Committees Members of the Nordic Council are assigned to five specialised standing committees and a Budget Committee each with 13 members. Since 1 May 1991 the five specialised committees are the Legal, Economic, Environmental, Cultural and Social Committees. The function of the standing committees is to prepare the business of the Council prior to decisions by the Plenary Assembly or the Presidium. They can take initiatives of their own by putting forward committee proposals without having to wait for members' or Council of Ministers' proposals to be submitted first. Each committee meets between five and eight times a year. Committees take majority decisions, but minority views are sometimes appended to their reports. The standing committees consider member, committee, Government and Council of Ministers' proposals put before the Nordic Council, the annual reports of

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Nordic institutions and committees, statements by Governments and the Council of Ministers on recommendations previously adopted by the Council, written submissions and other business. Examination of the annual report of the Nordic Council of Ministers on Nordic cooperation (CI), the Council of Ministers' plan for Nordic cooperation (C2) and the Council of Ministers' draft budget and proposals for various cooperation programmes forms the core of the standing committees' work. The standing committees summarise their views in written reports which form the basis for the Plenary Assembly's decisions on relevant matters. In the case of proposals from the Presidium, committees, members, Governments and the Council of Ministers' responses include proposals to the Plenary Assembly, either that it should adopt a recommendation or that the Council should take no further action. 1. Legal Committee The Legal Committee is responsible for — legislative and constitutional matters, — equality between women and men, — consumer affairs, — food related questions, and — the Council's internal rules. In addition to expressing views on sections of the Council of Ministers' annual reports (Cl) and future plans (C2) the Legal Committee has during the period of this report dealt with twelve member proposals, one committee proposal and six Council of Ministers' proposals.

The Council of Ministers' proposals range from proposals concerning a programme of work relating to Nordic legislative cooperation and research in Europe integration law to two proposals concerning amendments to the Helsinki Treaty. The second Council of Ministers' proposal concerning amendments to the Helsinki Treaty , deals, inter alia , with Nordic cooperation in the European and international context, the new role of the Prime Ministers in Nordic cooperation, and decision-making powers relating to the Council of Ministers' budget and the place of the Government ministers on the Nordic Council. The Nordic Council's Presidium and Budget Committee have for a number of years wanted the Council to be given a real say in the preparation of the Nordic budget, the setting of priorities and the allocation of resources within a budget framework laid down by the Council of Ministers. Article 64 of the Helsinki Treaty was worded as follows: "Before the Council of Ministers arranges for the

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budget to be prepared, the relevant body within the Nordic Council shall be given an opportunity to express its views." In the proposal it was proposed that the three paragraphs of this article should have the following wording: — "The Nordic Council of Ministers shall submit its budget proposal to the Nordic Council for comment. — The Nordic Council may propose priorities within the financial framework defined by the Council of Ministers. — Unless there are exceptional reasons to the contrary, the Council of Ministers shall follow the Council's recommendation concerning budget allocations within the stated financial framework." As regards the parliamentarians budget power, the Legal Committee was of the opinion that there are no constitutional obstacles to complying with the Nordic Council's wishes. The Committee therefore concluded that political considerations were behind the Council of Ministers' failure to do so. However, the Committee did not wish to delay the adoption of amendments to the Helsinki Treaty which, while they do not go far enough, are nevertheless better than the existing rules. Under the circumstances, therefore, the Committee accepted the wording proposed by the Council of Ministers. At the same time the Committee stressed that it will monitor very closely the way the Council of Ministers administers this new budget procedure. In particular, the Committee emphasises that the expression "exceptional reasons" must be defined as referring to circumstances of an entirely extraordinary nature. Should the Council of Ministers decide in these very special situations not to adhere to the budget priorities decided on by the Nordic Council, it must submit a special statement to the Council explaining its reasons. Other proposals range from a committee proposal concerning a Nordic model to estimate the value of unpaid work to member proposals concerning support for the development of the legal systems of Estonia , Latvia and Lithuania and concerning cooperation between the Nordic countries and Eastern Europe. The committee proposal concerning support for the development of the legal systems of Estonia , Latvia and Lithuania , was based essentially on a report drawn up after a visit by a delegation from the Committee to representatives of the legal committees of the three Baltic Parliaments in December 1991. During that visit, attention was drawn to four particular areas in which there was a need and a desire for support from the Nordic countries. All three countries needed to introduce legislation in new areas of law, as well as to modernise their old legislation. A desire to gain insight into European legislation through Nordic legislative cooperation was expressed. The Nordic legislation programme, which has guided

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Nordic cooperation in this area in the last few years, was felt to be of particular interest. Baltic parliamentarians expressed a desire for advice and expert assistance from the Nordic countries in the drafting of future legislation. There was also a need for theoretical competence in various areas of law. One way of meeting this need would be to translate relevant legal literature. The Baltic parliamentarians also expressed an interest in and a need to acquire greater competence in areas relating to human rights and international law. The members' proposal concerning a Nordic convention on biotechnology and genetic engineering calls on the Council of Ministers to draft a Nordic convention on biotechnology and genetic engineering with an effective system to monitor its implementation. The Legal Committee endorses the sponsors' view that there needs to be a strategy which makes use of the potential of new technology, while defining the limits to its use. The Committee believes it could be advantageous for the Nordic countries to adopt a common position on the issues involved. Legislation on certain areas of biotechnology is being prepared in a number of European countries, including the EC member States. Most Nordic countries have some form of legislation on individual areas of the technology, and some of them are drafting further legislation. The Committee agrees with those bodies consulted on the member's proposal who doubt whether a Nordic convention is the most effective way of resolving the various issues raised in the proposal. In one area a convention might be the best approach, while in another it may for example be better to harmonise national legislation among Nordic countries. It is also important for the Nordic States to try to achieve regulations approximating as closely as possible to those of nonNordic countries, for one thing to create as similar terms of competition as possible in a future European Economic Area and on world markets. In the member's proposal concerning a Nordic model to estimate the value of unpaid work , the sponsors point out that the Nordic Council has taken a series of initiatives in recent years concerning the equality of women in family life, employment and economic development. Much has been achieved in the Nordic countries in this area, but according to this proposal further progress is necessary. No attempt has yet been made at the Nordic level to determine the economic value of the unpaid work which people do in their own or other's households. Responsibility for child care and housework, and also for care of the older generation, continues to be shouldered largely by women. To improve the status of home responsibilities, the value of this unpaid work needs to be assessed and incorporated in national accounts, the proposal argues. The sponsors therefore wish to see a joint Nordic project to develop and elaborate an accounting system relating to unpaid work and to incorporate it in national accounts.

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The Legal Committee notes that time-studies have a key role to play, in both theoretical and practical terms, in the elaboration of a model to estimate the value of unpaid household and caring responsibilities. There is a clear need to make earlier Nordic time-studies comparable in terms of content and timing, so as to develop a statistical basis for such a model. It is also important for the Nordic countries to seek to influence the time-studies which the Statistical Office of the European Communities is expected to launch. Several bodies consulted on this proposal are sceptical about incorporating unpaid work in national accounts. In the Committee's view, the time is not yet ripe for a Nordic initiative in this area. The issues involved are being considered within both the OECD and the UN, and the Nordic countries should follow developments in those organisations. But that, argues the Committee, does not mean they cannot attempt to agree on common Nordic principles for a model to evaluate unpaid work. 2. Economic Committee The Economic Committee is responsible for — fiscal and monetary issues, — industry and energy, — trade, — development assistance, and — European integration. In addition to stating its views on sections of the Council of Ministers' annual reports (CI) and future plans (C2) it has during the period of this report dealt with twenty nine member's proposals. Furthermore the Committee each year revues the accounts and activities of the Nordic Investment Bank (NIB). The Bank is owned by the five Nordic States. NIB helps to finance projects in the Nordic countries and in the developing countries. In 1992 the NIB showed a profit of 45 million SDR and a net liquidity of 1.119 million SDR. The Committee also stated its views on two Council of Ministers' proposals concerning a capital increase for the Nordic Development fund and Nordic cooperation after 1992. The Nordic Development Fund (NDF), which is under the administrative umbrella of the NIB, was founded on 1 February 1989 in the framework of Nordic cooperation to promote economic and social progress in the developing countries. The Fund was provided with a capital of 100 million SDRs. The Fund grants long-term, interest-free loans to finance development assistance projects of Nordic

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interest. The NDF was set up for a period of five years, and a decision on its continued existence was to be taken no later than four years after its creation. An evaluation of the fund's activities was carried out between March and July 1991 as a basis for a decision by the Council of Ministers on whether the Fund should continue to operate after 31 January 1994. In December 1991 the Council of Ministers decided in principle that the NDF should continue to operate beyond 31 January 1994 and proposed that the Fund's capital should be increased by 150 million SDRs to 250 million SDRs from 1 January 1993. The Economic Committee considered it fully justifiable to put the Development Fund on a permanent footing, partly in light of its encouraging record so far, and partly in view of the long-term nature of its operations. The Committee noted that the proposed increase in the NDF's capital of 150 million SDRs is only half the amount which the evaluation report considered necessary for the Fund to be seen as a serious cofinancing partner. The Economic Committee also believes the capital increase is insufficient to develop collaboration with major international financial institutions, to increase the size of individual loans and, in general, to make the NDF an interesting and serious cofinancing partner. The Committee supports the Council of Ministers' decision to evaluate the results achieved by the NDF in 1995, and considers that its capital requirements should be reassessed at the same time.

The member's proposals ranged from proposals concerning a Nordic nuclearweapon-free zone and simplified customs procedures for private recreational fly in the Nordic region to Eastern European-Nordic cooperation and new opportunities and challenges for the Nordic region in the new Europe. A member's proposal concerning a programme of Nordic cooperation after 1992 calls on the Council of Ministers, in consultation with the Nordic Council, among other things, to set in hand a study of issues that will be of key importance in the future, and on the basis of its findings, submit a draft programme of Nordic cooperation after 1992. The Economic Committee believes that Nordic cooperation will continue to play an important political role. However, having examined how cooperation is presented in the Council of Ministers' various reports and statements, it observes that their perspective beyond 1992 is very limited and shows very little coherence. Like the sponsors of this member's proposal, the Committee takes the view that an analysis, discussion and political debate should be started as a means of arriving at the necessary decisions on the future content and role of the Nordic cooperation. In the Committee's view, the main political factors which will be critical to Nordic cooperation are the Nordic country's relations with the European Community, progress in EC integration, and the EC-EFTA relationship. The Committee con-

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siders it important that an EEA agreement, and subsequently, an amended Treaty of Rome, should legitimise regional cooperation at the intergovernmental level. A member's proposal concerning measures to strengthen the Nordic Fund for Technology and Industrial Development calls for action by the Council of Ministers to strengthen the Fund and its activities to promote Nordic industrial cooperation. The Fund's purpose is to stimulate technological development in industry in the Nordic countries. The Fund is mainly involved in a number of R&D projects, with a focus on areas such as materials and biotechnology. The proposal's sponsors believe that the changes occurring in Europe and the European integration process necessitate changes in the Nordic countries' research and development programmes. It is pointed out that there are many fields in which the Nordic region holds a strong position and in which only limited European interest can be expected, such as wood processing, environment, Arctic technology, gas, winter transport etc. Therefore the sponsors believe that Nordic-based efforts are needed in these areas. The Economic Committee points out that it has several times before urged the Nordic Industry Ministers to put forward a coherent Nordic industrial programme. It has also pointed out that a number of areas of cooperation suffered-serious consequences when support via the economic action plan came to an end in 1992. One such area is industrial research and development. The Committee is disappointed that the Council of Ministers has failed to put forward a more coherent plan of Nordic industrial policy cooperation, with the Industry Fund as one of its key instruments. The Committee now has to respond to a member's proposal which it is unable to set in its larger context. The Committee stands by the view that cooperation in industrial R & D should be given priority in order to strengthen the Nordic countries' competitiveness and industrial development, particularly in relation to the European market. The Economic Committee calls on the industry ministers to reach an early decision on changes necessary to the future of the Fund and, in reaching that decision, to take account of the Committee's views concerning organisational improvements and finance, among other matters. 3. Environmental

Committee

The Environmental Committee is responsible for — questions relating to transport and communications, road safety, — environmental protection, — agriculture, forestry, — fisheries, — regional policy,

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— postal services, and — telecommunication. In addition to stating its views on the Council of Ministers' annual reports (CI) and future plans (C2) the Committee has during the period of this report dealt with one committee proposal, twenty member's proposals and three Council of Ministers' proposals. The Council of Ministers' proposals concern a long term monitoring of the Nordic external environment , a Nordic fisheries cooperation programme and Nordic road safety action plan. The Council of Ministers' proposal concerning a long-term monitoring of the Nordic external environment is intended to highlight the need for joint Nordic environmental monitoring. The areas that were proposed to be given highest priority in a Nordic monitoring programme are those relating to transboundary pollution and in particular the transport effects of air and marine pollutants. In addition, it is considered appropriate to harmonise the work being done under other programmes and to cooperate on the development and testing of monitoring methods. Monitoring should be set in hand to establish the effects of pollution on human health. The Nordic countries should also cooperate with Eastern Europe in monitoring the environmental effects in the Nordic countries of that region's emissions. The Environmental Committee points out that the problems of acidification, algal blooms and seal deaths observed in the Nordic region in the 1980s and early 1990s illustrate the need for long-term, continuous monitoring of the environment. The Committee therefore welcomes the Council of Ministers' plan. The Committee believes that the greatest needs exist as regards monitoring the state of forests, emissions from certain industries, and road vehicles' emissions. In geographical terms, the focus should be on the whole of the Baltic Sea area, including St. Petersburg and the Baltic States, and the feasibility of cooperation with the countries of Eastern Europe should be examined.

The member's proposals range from a proposal concerning retention of inland postage rates for mail within the Nordic region to actions to remedy safety proble at the Sosnovy Bor and Ignalina nuclear power stations. The Environmental Committee has been greatly concerned about nuclear safety in the neighbouring areas of the Nordic region. One of the member's proposals that the Committee has dealt with concerns nuclear safety in the northern region. This proposal calls for a binding programme to prevent discharges of radioactivity from civil and military activities on the Kola peninsula. It is pointed out that this is a region with large quantities of nuclear weapons, nuclear power stations and nuclear-powered ships, and at the same time it includes some very significant spawning and nursery grounds for cod and other important fish species.

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The Committee agrees that this question is of great importance, and points out that the use of nuclear-powered ships and dumping of radioactive wastes have become more widespread since this proposal was submitted. However, the Committee also notes that efforts are now being made in various international fora, such as the Group of 7 and the CSCE, to prevent radioactive discharges. It therefore feels that a new action programme is not called for and that the Nordic countries should rather give priority to these efforts in the relevant international forum in which they are represented. The Committee considers it particularly important for binding international agreements to be concluded and for the Nordic countries to take the lead in the IAEA on the elaboration of a global convention on nuclear safety and waste management. A member's proposal concerning the Nordic railway system calls on the Council of Ministers to report on national rail transport development programmes in Denmark, Finland, Norway and Sweden, and to draw up an investment plan for an integrated Nordic rail network. The Council of Ministers is also asked to propose a package of measures and investments needed to link the Nordic and European railway networks and generally to take steps to make the railway a competitive alternative for the carriage of freight. The Committee is of the opinion that rail transport may offer a commercially profitable and competitive alternative for the future and is without doubt the best inland transport option in ecological terms. Much can still be done to expand and improve rail service in the Nordic region. The Council of Ministers should report without delay on current development work in the railway sector in the Nordic countries, and assess what can be done to encourage Nordic cooperation in this area. The Nordic railway operators would benefit considerably from collaboration, for example on investments. With a sufficient underlying market, rail transport would be both environment-friendlier and cheaper than other modes of transport on land. In addition, safety would be improved if more traffic was carried by rail. The Committee has called for a common Nordic transport policy and a plan of the necessary infrastructure investments, and has stressed the importance of a decision on a fixed link across the Sound (Öresund). The aim must be to ensure that future transport between the Nordic region and the rest of Europe is organised in a way that makes sense from the standpoint of the railway. 4. Cultural Committee The Cultural Committee is responsible for — cultural cooperation, — research, — school and adult education,

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— voluntary organisations, — youth issues, — sport, and — the media. In addition to stating its views on sections of Council of Ministers' annual reports (CI) and future plans (C2) it has during the period of this report dealt with one committee proposal, 27 member's proposals and eight Council of Ministers' proposals.

Among the Council of Ministers' proposals there are proposals concerning plans to intensify Nordic cooperation in the areas of culture , research and educat the funding of Nordic institutions , new guidelines for the Nordic Science Policy Council and adult education. In the Council of Ministers' proposal on intensified and restructured cooperation in the areas of culture , education and research , the Ministers state that culture, research and education are areas which are to receive a greater emphasis in Nordic cooperation in the years ahead. This, the Ministers state, will result in the establishment of two separate Councils of Ministers, one for culture in general, the other for research and education. The 1971 Nordic Cultural Agreement is to be retained. A new cultural fund, as proposed in a report of a group appointed by the Nordic Prime Ministers to examine the future of Nordic cooperation, will not be set up. The Cultural Committee welcomes the fact that this Council of Ministers' proposal largely coincides with the Committee's own priorities and wishes. However, it feels that the Council of Ministers has not gone far enough and has failed to put forward proposals involving firmer commitments in individual areas, particularly the media, cooperation relating to children and young people, and languages. The Committee is disappointed at the lack of vision for cooperation in the field of broadcasting. Plans for media cooperation are not ambitious enough, and the Council of Ministers should take decisions as soon as possible which will promote the transmission of television programmes from one Nordic country to another, especially programmes for young people and children. The Committee emphasises that media cooperation has an important part to play in promoting mutual understanding of languages in the Nordic region, and believes that original-language subtitling of programmes from other Nordic countries should have been introduced long ago. One weakness of this proposal, the Committee feels, is its lack of any detailed indication as to what tangible steps are to be taken to enhance mutual understanding of Nordic languages. The Council of Ministers should set goals and timetables for each area and each individual proposal, the Committee believes. In addition, much better information needs to be provided about proposals and programmes than has previously been available.

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The Cultural Committee points out that the creation of two Councils of Ministers, for culture and for education and research, could result in certain areas falling between two stools and lead to fighting over budget funds. The Committee assumes that the Nordic Council will be given a greater say in the allocation of funds, and wishes to have the opportunity to discuss with the Council of Ministers how new budget resources are to be used before a final budget proposal is put forward.

The member's proposals range from proposals concerning the establishment of a Nordic information centre in Flensburg, on a clearer emphasis on the Nordic dimension in school curricula , to a more extensive exchange of radio and televisio programmes. In a member's proposal concerning putting Nordjob on a permanent footing , it is stated that Nordjob has developed into the largest and best-known exchange scheme for young people, and the Nordic Council of Ministers should put it on a permanent footing as soon as possible and ensure that basic funding is available for it when the trial period ends. Over seven thousand people aged between 18 and 26 benefited from the scheme between 1985 and 1991. The current trial period will end in 1993, after which Nordjob is to be evaluated. The proposal's sponsors take the view that the scheme has developed favourably in both quantitative and qualitative terms. It has provided a test of the Nordic Labour Market and resulted in necessary liberalisation. The Cultural Committee feels that it would make no sense to withdraw funding for Nordjob at the end of the trial period, and supports the idea of making it a permanent programme. Knowledge about the other Nordic countries is of great importance in fostering an interest in Nordic cooperation among young people. The overall effect of Nordjob and the scholarship scheme Nordplus in terms of strengthening the Nordic cultural identity can scarcely be overestimated, the Committee believes. The trainee exchange element of Nordjob ("Nordpraksis") ensures that theoretical and practical studies are treated on an equal footing as regards Nordic exchanges. A member's proposal on an experimental external Nordic radio service — Radio Scandinavia — proposes that on a trial basis, the Nordic countries should collaborate on radio broadcasts to countries outside the region at the technical and programme-making levels. It is envisaged that broadcasting would primarily take place on the short-wave band. One of the reasons given for the proposal is the growing interest which is being shown, not only of the Nordic countries in Europe, but also in the other direction. It is in the interest of the Nordic region to be a visible and active partner as the new Europe takes shape. With the Nordic tradition of free press, news broadcast from the region would enjoy credibility. The Cultural Committee attaches importance to the dissemination of Nordic information abroad, and also refers to member's proposal on greater efforts to 33 GYIL 36

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provide information about Nordic cooperation outside the region. It considers it important to coordinate the Nordic countries' external radio broadcasting activities. The Committee points out that the present member's proposal can be viewed in the light of Article 36 of the Helsinki Treaty, which says that "By close collaboration among the Contracting Partners and their foreign information services, steps should be taken to disseminate greater knowledge of the Nordic countries and of the Nordic cooperation". The Committee places heavy emphasis on the need for a joint Nordic radio service to broadcast information about Nordic cooperation. 5. Social Committee The Social Committee is responsible for matters relating to — health care, — social services, — housing, — employment, and — the working environment. In addition to stating its views on relevant sections of the Council of Ministers' annual reports (CI) and future plans (C2) it has, during the period of this report, dealt with twenty three member's proposals and four Council of Ministers' proposals. The Council of Ministers' proposals range from a Nordic Rheumatism Year to a new Social Security Convention. In the Council of Ministers' proposal on a Nordic Social Security Convention it is pointed out that, to some extent, the Nordic Social Security Convention will be replaced by rules in the agreement on the European Economic Area (EEA) entered into between the EC and EFTA. The matters covered by the latter agreement include rules and rights in the social security field for employees who move to another EEA country. It is not possible to have two international agreements which regulate the same questions, and the existing Nordic Convention must therefore be revised and modernised to reflect the new situation. The new Convention will contain rules affecting Nordic nationals who are not covered by EEA rules and concerning the citizens of non-EEA countries, as well as rules to supplement those of the EEA agreement. The Nordic Social Security Convention has given Nordic nationals residing temporarily or permanently in a Nordic country other than their own the same social rights as the citizens of their country of residence. The basic principle of the EEA agreement is that the EFTA countries will take over the European

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Community's rules on social security for people working in another country. The biggest change will affect pensions. The existing Nordic convention provides that basic pensions should be paid by the country of residence, in accordance with that country's regulations. Under the EC rules which will supersede the Nordic Convention on this point, pensions are to be paid by all the countries in which an individual has worked, on the basis of salary and period of employment, irrespective of the person's country of residence on retirement. Transitional provisions will have to be elaborated to ensure that Nordic citizens drawing pensions do not end up worse off as a result of the changeover to the new system. The Cultural Committee notes that the proposed new Convention represents a necessary adjustment to take account of the EEA agreement. It understands that the new Social Security Convention needs to be drawn up without delay. The views which the Committee has put forward at its meetings with the Social Service Ministers should be taken into consideration when the Ministers draft the new Convention on social assistance and social services that is to go before the Council at its 1994 session. The EC's apparently less ambitious aims and lack of rules on children's rights should be considered when the new Nordic Convention is elaborated. The Committee feels that the two-stage approach taken by the Council of Ministers answers to the desire to avoid weakening the Nordic Social Security Convention. It will now be possible to take account of the Committee's wishes in terms of including more areas of social cooperation (e. g. relating to children and the family) in the forthcoming convention to cover questions concerning Nordic transport services for the disabled and the rights of Nordic citizens in the Nordic region. Finally, the Committee recalls the need to ensure that parliamentarians have a proper influence over developments in the EC, particularly when EC regulations begin to apply throughout the Nordic region.

The areas covered by the member's proposals include proposals on future care of the elderly , on measures to reduce alcohol consumption in the Nordic region on Nordic labour law in relation to the EC , on health care cooperation with the Baltic States and Eastern Europe , and on homosexual and lesbian research. The member's proposal on measures to reduce alcohol consumption in the Nordic region , calls on the Council of Ministers to elaborate a plan of action to reduce alcohol consumption in the Nordic countries. The plan should include information campaigns aimed at creating "alcohol-free zones" and measures to preserve a restrictive policy on alcohol in the event of closer links with the European Community. The sponsors of the proposal recall that the Nordic Council has previously asked the Council of Ministers to take action to achieve the W H O objective of a 25 per cent cut in alcohol consumption by the year 2000, and also criticised the Council of Ministers for its passive approach to this matter. They point out that 33*

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closer ties with the EC necessitates an active effort to retain the restrictive alcohol policies pursued in the Nordic countries up to now. The Social Committee recalls that the Council of Ministers has previously expressed the view that it is up tö each individual country to try to achieve the WHO objective of a 25 per cent cut in alcohol consumption, but it has undertaken to monitor developments and to propose suitable measures for implementation on a national basis. The Social Committee has criticised the Council of Ministers for its passive approach to this question. European integration is becoming increasingly relevant to alcohol issues. The Committee considers it important for those Nordic countries which are now applying for EC membership to secure acceptance by the European Community of the fact that Nordic alcohol policy is informed by the desire to promote public health. The Committee believes that the Nordic countries must make it clear to the EC that the Nordic alcohol-retailing monopolies exist for reasons of public health and are not aimed at protecting domestic-produced alcoholic beverages from competition. Forty-five European countries, including all the EC member States, have backed the action plan on alcohol-related problems that was adopted by the WHO Regional Committee. This plan says that it is important for countries with more ambitious alcohol policies to maintain those policies, unhindered by the European integration. The Social Committee takes the view that information campaigns to reduce alcohol consumption are primarily a national responsibility, but that the Council of Ministers can play its part by arranging for national experts to meet and exchange experiences. 6. Budget Committee The Budget Committee coordinates scrutiny by the five specialised standing committees of the Council of Ministers' budget proposals and plans, and performs the Nordic Council's supervisory role in relation to activities financed via the Council of Ministers' budget. The Budget Committee presents its views on the Council of Ministers' budget proposals for the year ahead in connection with the autumn session of the Nordic Council. The Budget Committee also coordinates the five specialised standing committees' responses to the Council of Ministers'-annual areports (CI) and submits a combined draft statement of opinion for adoption by the Plenary Assembly. In the case of future plans (C2), each specialised committee deals with matters in its own sphere of responsibility, while the Budget Committee submits an overall list of priorities and a budgetary assessment of planned cooperation over the next few years. The joint Nordic budget is small (649 million Danish kroner in 1992) but must primarily be regarded as complementing the commitments made in national

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budgets. Nor is the strength and substance of Nordic cooperation reflected by the scale of the Nordic budget alone. Measures designed to achieve deregulation, simplification, harmonised legislation, etc. can in fact be carried out without major expenditure via a common Nordic budget. In other areas, however, substantial joint Nordic funding is important in attaining common aims. An ambitious Nordic cultural policy, with student exchange, research, support for popular movements and broader media cooperation, will require Nordic-level financing if results are to be achieved. The same is true of Nordic assistance to the Baltic States, the Baltic Sea area and the Kola region. The massive investments required here point to a need to combine national allocations into a larger, effective Nordic commitment. The environment is another sphere in which many of the problems to be solved can be addressed more effectively on a collaborative basis, and where a combined Nordic appropriation and/or lending/support arrangements will yield better results than individual national efforts. During the three year period of this report (1990-1992) the Council of Ministers have put forward a "zero-growth" budget, i. e. one representing no real growth compared with the previous year. It is proposed that the regular budget for 1993 should be 649 million Danish kroner (DKk). The Council of Ministers call this a proposal for zero-growth, but since the Nordic Economic Action Plan will shortly be coming to an end and associated funding of DKk 52 million will consequently be withdrawn in 1993, the Budget Committee takes the view that this budget in fact represents negative growth, even allowing for the surplus of DKk. 27.4 million from 1991 which is being carried forward to 1993. According to the budget proposal for 1993, assistance to the Baltic States and East Europe will be provided both nationally and on a joint Nordic basis. The Council of Ministers decided in March 1992 to set up a Baltic investment programme. Over three years, some DKk 800 million over and above the regular Nordic budget will be made available in the form of investment support for small and medium-sized enterprises. Responsibility for these activities will rest with the Nordic Investment Bank and the Nordic Project fund, among other bodies. In response to the proposed budget, the Budget Committee points out that the industrial and economic sectors will be hardest hit by the ending of the Economic Action Plan. These sectors are of importance in enhancing the competitiveness of Nordic industry, and include such areas of cooperation as technical and industrial R&D, developing the Nordic home market, infrastructure, energy and regional development — areas which are given priority both within the EC and in a report of a working group the Prime Ministers set up. Consequently these facts ought to have been reflected in the draft budget. The Committee goes on to say that it has seriously considered suggesting that the Council of Ministers should redraft its budget proposal, but realises, with

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regret, that this would be impracticable. The Budget Committee therefore has no other choice but to tolerate the proposal as it stands but only with the clear provision that future budget proposals must reflect earlier discussions between the Committee and the Nordic Cooperation Ministers. Each year the Budget Committee commissions and supervises a review on some chosen sector or activities within the Nordic cooperation. In 1990, it commissioned a review of Nordic cooperation in the construction sector. The aim of the review was to shed light on the basic conditions for and efficiency of Nordic cooperation relating to the construction industry and to establish how its results are used. The Committee found that while cooperation in this sector has been efficient and of great value, political guidance has been inadequate and there has been a lack of common goals. It also points out that Nordic support for the construction industry is marginal compared with its turnover but that the support given is important in promoting a Nordic approach. The Committee suggests that a new cooperation programme should be drawn up giving political bodies, authorities and institutions alike an opportunity to analyse and determine priorities for work in this area and to decide what cooperation is most relevant from a Nordic point of view. Increased support for standardisation work is also proposed, with a view to giving the Nordic countries a greater say in European standardisation relating to the construction industry. In 1991 the Committee commissioned reviews of the Nordic "Break" project and of the responsibilities of Nordic institutions as employers. The purpose of the "Break" project was to develop and test methods of breaking down sex segregation in the Labour Market. In the light of the findings the Committee called on the Council of Ministers to continue efforts relating to equality between women and men, particularly as regards the role of women in economic development and the implication of combining family and working life. In addition, the Committee urges the Council of Ministers to make use of the network approach in other joint Nordic projects, taking due account of the views expressed in the review of the "Break" project. With regard to the review of responsibilities of Nordic institutions as employees, the Committee wants the Council of Ministers to carry out a study to establish whether the concept "employer responsibility" has the same meaning in all Nordic countries, whether it is regulated by laws and agreements, and, if this is the case, whether such laws and agreements apply to the various Nordic institutions. During 1992 the Committee commissioned a review of Nordic research cooperation in the agriculture and forestry sector.

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The Committee observed that both the Nordic Joint Committee for Agricultural Research (NKJ) and the Nordic Forest Research Cooperation Committee (SNS) work well, but that more precise action plans and directives are necessary. It also agreed that any activity needs to have clear aims and guidelines, and that it might be advantageous to concentrate on fewer areas. The Committee believes that NKJ and SNS should assume responsibility for preliminary drafting of joint Nordic applications to international research programmes. It feels that this is a good way of using Nordic networks and resources.

IV. Other Activities 1. Conferences and Seminars The Nordic Council and its standing committees have, during the period of this report, arranged a number of Nordic and international conferences. In 1990 as the winds of change swept over Europe, a divided Europe of the post-war and Cold War period underwent a fundamental change; at the same time, a new political European "architecture" created a common European home. It was in these circumstances that the Nordic Council's Presidium decided to arrange the seminar "The Role of Parliamentarians in the New European Architecture " which was held in Denmark in November 1990. This seminar had several aims. One was naturally to analyse the new European "architecture" with special emphasis on the Nordic perspective and on the development of parliamentary and democratic influence in the European decision-making process. Another aim was to provide a forum for discussions and informal contacts between Nordic Council's parliamentarians and standing committees and those invited to the seminar, who were parliamentarians and experts from the Supreme Soviet of the USSR, Estonia, Latvia, Lithuania, Murmansk, Karelia, Leningrad, Poland, Czechoslovakia, Hungary, Mecklenburg-Pomerania, Schleswig-Holstein and several European organisations including the Council of Europe, the European Parliament, Benelux, EFTA and the EC. In her summing up of the seminar, Ms. Kirsti Kolle Grondal , Norway, said the seminar had succeeded in its primary intention, "to get those attending to open up their hearts, make known their thoughts and venture to appraise the various visions of a future Europe and the various lines of development that had been presented." Finally she stated that popularly elected representatives were under an obligation to form an opinion of how parliamentarians could both preserve and strengthen the democratic orientation of developments. In 1990 the Social Committee held a Nordic conference on " The Living Condition of the Disabled in the Nordic RegionThe purpose of the conference was

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to give an overall view of the living conditions of disabled people in the Nordic region during the second half of the UN's decade of disabled persons. The conference dealt with the U N "World Program of Action Concerning Disabled Persons", the WHO programmes and aims concerning Health for All, and how far the Nordic countries had fulfilled these goals and what priorities should be focused on in the future. During this year the Communications Committee (since May 1991 the Environmental Committee) held a Nordic conference dealing with *Transport Economics and Macro Planning of the Infrastructure ". The purpose of this conference was to get specialists and representatives from the transport sector to discuss present and future problems of the sector with parliamentarians from the Nordic countries. In 1991, the Nordic Council in cooperation with the Council of Europe, organised " The 5th European Conference of Frontier Regions' '. In the Final Document from the Conference it is noted, among other issues, that transfrontier cooperation in Europe has clearly progressed in recent years, and that cooperation at local and regional levels — implemented through transfrontier organisations in the Nordic, Rhine, Alpine, Iberian regions, etc. — has become an important element in forging a united and pluralistic Europe. It is expected that transfrontier associations will be set up in all European border regions, based on the models laid down in the European Outline Convention. The Conference urgently called on the member States or the competent authorities to strengthen transfrontier cooperation by establishing a suitable legal framework at all levels and to remove the considerable juridical uncertainties which still surround transfrontier cooperation.

Later the same year, the Nordic Council held an international conference called "Energy for Europe — Recourses , Economy , Cooperation ". In his opening speech, the President of the Nordic Council, Mr. Anker Jorgensen , Denmark, stated that the Nordic Council had been inspired by the idea of a framework for energy cooperation ^involving the whole of Europe. An endeavour to bring together energy resources, manpower, technical know-how, financial resources and efforts to combat environmental problems under a common European umbrella was something entirely new, made possible by the new era of democratisation and cooperation in a once divided Europe. Mr. Jorgensen said that the two aims of this parliamentary conference were: — to encourage the countries and governments of Europe to agree on a farreaching energy cooperation plan — a European Energy Charter — and — to secure an input from parliamentarians in such a Charter, thereby strengthening popular support for the Charter as such and the ideas behind it. In the Final Declaration the parliamentarians, among other issues, underline the need for closer European cooperation on all aspects of energy policies, and

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a continuation of the current energy strategies of European States aiming at pursuing a higher degree of independence from imported oil, a reduction of the emissions causing changes in the global climate and limiting the quantities and further spread of Plutonium around the world. They concluded that most social goals have obvious energy links and that global energy strategies therefore must be formulated in ways that are supportive or at least not conflicting with the achievement of these goals, and that present nuclear power production and the further expansion of nuclear power production, due to its potential dangers, involves serious problems, among them the nuclear proliferation problem and problems with security and protecting the environment. In its final chapter of the Declaration, the parliamentarians recommend, among many other issues, that European countries establish an open competitive energy market to function in accordance with the overall social and environmental goals decided politically; — that special emphasis is put on the development of the energy sectors in Central and Eastern European countries and the republics of the Soviet Union aiming at bringing about a situation in which mature energy technologies will compete on equal conditions in the market and where the number of technologies or groups of technologies on the market therefore could be removed; — that attention should be paid to the problem of assuming full economic responsibility on the nuclear industry for possible accidents, and that the cost of nuclear energy therefore should include the real and full cost of insurance covering the risks; — that it is necessary to shift towards renewable energy resources and that the development of these resources should be promoted through expanded joint European research and development programmes, and; — that all European countries conclude a European Energy Charter taking into account the views expressed by European Parliamentarians in this unanimous declaration. In April 1992 The Nordic Council initiated "The 2nd Parliamentary Conference on Cooperation in the Baltic Sea AreaThe first conference was held in Helsinki, Finland, and was initiated by Mr. Kalevi Sorsa who was then Speaker of the Finnish Parliament. The aim of this Conference was in part, to discuss the political development of cooperation within the Baltic Sea area, to discuss communications and infrastructure as a necessary tool to develop the region and, to establish the constitutional framework for further parliamentarian cooperation in the region. There were more than a hundred participants in this Conference representing, in addition to the Baltic Sea countries and autonomous territories, the Council of Europe, the European Parliament, Benelux, the Baltic Assembly and the Nordic Council.

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The Conference decided to hold this type of conference on a regular basis and decided upon a mandate for "Parliamentary Conferences on Cooperation in the Baltic Sea Area". The main purpose of these Conferences will be to serve as the initiating and coordinating organ for cooperation and as a forum for discussing and promoting ideas for the parliaments and regional parliamentary bodies in the Baltic Sea area. It was decided to hold the next conference in Poland in 1993. The Conference adopted a resolution noting, among other things, the new era of European relations in which the confrontation and division of the past are being replaced by partnership and cooperation, and the need for cooperation among parliamentarians in order to promote new fields of cooperation and secure the strongest possible popular base and support for such cooperation. It agreed to accord highest priority to cooperation programmes in the areas of environment including improved nuclear safety, economy and trade, scientific research and technology, energy, infrastructure, culture, education, and the development of democratic institutions. Furthermore, the Conference called on the governments of the participating countries to recognise the "Parliamentary Conference in the Baltic Sea Area" as a parliamentary base for cooperation in the region, to move towards swift solutions of remaining problems between countries in the region and to appeal to other governments to contribute to such solutions. In October 1992 the Nordic Council sponsored an *International Culture Conference " in Helsinki, Finland. The background to this Conference was the realization that the peoples of Europe found themselves on a historic cross road, without any definite evaluation of old values. European and Nordic culture and identity were the main themes at this Conference which gathered more than 150 participants. This Conference will probably, first and foremost, be remembered by the first public appearance of the English, Indian-born author Mr. Salman Rushdie after his Iranian death sentence — fatma — had been declared. Mr. Rushdie talked to the conference about working conditions for authors in modern societies and in particular about his own situation. In April 1992 the Social Committee decided to arrange a Nordic conference dealing with "Unemployment and the Level of Health". The Committee was concerned with increased unemployment in the Nordic countries and its terrible side effects — increasing suicides, attempted suicides and psychosomatic symptoms — among the unemployed. The purpose of this Conference was to discuss political measures to increase the level of employment and thereby also the level of public health. In October 1992, the Nordic Council and the Nordic Council of Ministers arranged a seminar in St. Petersburg, Russia. The purpose of this seminarium was to present the Nordic cooperation within the framework of the Nordic Council

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and the Nordic Council of Ministers and the parliamentary working procedures in the Nordic countries . Invited to this seminar were parliamentarians and governmental officials from the North-Western part of Russia. The Nordic Council organized an international *Arctic Conference " which was held in Iceland in August 1993. The purpose of the conference was to initiate political discussions on: — The future of the Arctic region as seen from a Nordic as well as from an international perspective — Economic development and the exploitation of natural resources — Threats to the environment — Development of infrastructure and cooperation on education, research and culture — The situation of the indigenous population in the region — The need for a more permanent and formalised parliamentary cooperation on the development of the Arctic region. 2. Literature and Music Prizes Each year the Nordic Prize for Literature and the Nordic Prize for Music is awarded to Nordic individuals or, in the case of the Music Prize, to groups. At present each prize is 150 000,- Danish kroner. The Music Prize is awarded for the creation and/or performing of music. Every other year the prize is awarded to a performing musical artist or group. The Literature Prize is awarded for a novel, poetry, short-stories or essays that fulfil high literary and artistic demands.

New Findings on the Right of Self-Determination for Tibet? By Karl Josef Partsch*

In 1970 the U N General Assembly undertook to considerably limit the traditional principles of State sovereignty and territorial inviolability, so paving the way for the defeat of colonialism. States with administrative authority over colonial territories could no longer rely on these two basic principles if the populations of these territories based a claim for their own statehood on the right of selfdetermination. [Declaration on Friendly Relations between States — 24 October 1970: Resolution 2625 (XXV)] The United Nations thereby hoped to put into effect this principle which already appeared in the U N Charter. Following the Charter, these areas had a "status separate and distinct from the territory administering it", and they enjoyed the same right of self-determination as nation States. Can this innovation also be applied as a solution to the hotly contested status of Tibet in relation to China? Is Tibet's right of self-determination compatible w i t h the principle of China's territorial integrity?

After the Dalai Lama's flight into exile in India, the International Commission of Jurists looked into the problem. But they limited their assumptions to the premise that from the end of the Chinese empire in 1911 until its occupation by the army of the People's Republic of China in 1949/ 50, Tibet was a fully independent State and was the victim of a violation of international law. [Tibet and the Chinese People's Republic, Geneva 1960] The Declaration on Friendly Relations, which defined the right of self-determination more specifically, had not yet been passed. Therefore, little significance can be attached to Resolution 1723 (1961), which is the only one to mention Tibet's right to self-determination, as at that time it was unclear who could claim this right. Since then the Dalai Lama's government in exile has based its claims for independence on Tibet's earlier status, and on the fact that Tibet was treated as a colony by the People's Republic. China argued against this strongly, saying that Tibet had been under Chinese sovereignty for centuries and is a part of China, under whose law it enjoys autonomy. During discussions over the return of the * Translated from the German by David Gent and Betsy Baker.

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Dalai Lama to Tibet, China made it clear that it was not ready to negotiate Tibetan independence under any conditions. Above all, since the revolts in Tibet in 1989 there have been countless initiatives supporting the position of the government in exile. There are such groups in the United States (Washington, D.C. and San Francisco), and several in London and The Hague. Also, hearings under the auspices of the "Greens" in the German parliament (Bundestag) were organised and publicised by Petra Kelly and Gert Bastian. [1990 in "Tibet klagt an", 1991 in "The anguish of Tibet"]

Recently Lord Ennals, member of the House of Lords and the "UK All Party Parliamentary Group for Tibet", together with the International Commission of Jurists [Chairman: Judge Michael Kirby / Sidney], organised a "Conference on Issues related to self-determination and independence for Tibet" in London from 6-10 January 1993. The Conference brought together 40 people mainly from the Commonwealth States and the United States, but also 9 Tibetans in exile. Due to the anticipated focus of the conference, which was clear even from its title, the Chinese government not only refused to take part, but categorically demanded its cancellation. Nonetheless the Chinese government made available a detailed "white paper" (23 September 1992) on the status of Tibet and human rights conditions in China. The first two days of the conference were devoted to establishing the facts, in two committees [on questions of self-determination and human rights]. Here the Tibetan exiles were able to provide valuable information. In contrast, their presence prevented free discussion on the following days, when legal questions were discussed. The need for politeness resulted in certain problems being avoided. This was alleviated somewhat by the fact that the participants had earlier turned their attention to previously transmitted questions regarding the arguments of the government-in-exile. There was an entire group of questions on the theme "Denial of the right of self-determination to the Tibetan people", while the problem of territorial integrity received no such detailed treatment. The conclusion that Tibetans are a "people" in the Tibetan Autonomous Region (TAR) and in the neighbouring eastern provinces satisfied the participants. A definition of "people", derived from UNESCO [EuGRZ (1980) p. 80], was used which is barely distinguishable from Capotortis definition of national minorities. The discussion was not limited to the question of status, but included the extent of Tibetan territory, the Han-Chinese infiltration, and above all the observation and violation of human rights. The massive and systematic violation of human rights by soldiers and police as well as public authorities has been confirmed by the Commission on Human Rights several times. For the questions pursued here it depends, however, whether these human rights violations have an impact on the exercise of self-determination. This can only be accepted if there is agreement with the study of the San Francisco "Committee of Lawyers for Tibet" which

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states very generally that every population group of a State is entitled to this right, including populations which are not treated according to democratic principles. The Declaration on Friendly Relations properly also covers populations that are excluded from the exercise of their civil rights, especially the right to vote. However, this cannot be extended to all human rights. It is not necessary to go further into this area. It is more important to see from which points of view the Tibetan population are entitled to the right to self-determination. The People's Republic of China considers them to be a minority within China, with 0.4 % of the population. As such they would not be entitled to exercise this right. This would only be the case if they had become an independent State at the time of the invasion by the Chinese army, or had afterwards been granted the status of a colonial population. In fact the conference reached the conclusion that the People's Republic of China treats Tibet like an oppressed colony. This cannot be clearly denied. According to the practice of the Decolonisation Committee, however, it depends what status the area has under the law of the administering State. In the present case the population of the TAR as well as the Tibetan inhabitants of the autonomous prefectures and municipalities in the eastern provinces have full citizenship with the right to vote, not only for the regional parliament but also for the National People's Congress. Even the Dalai Lama and Pantschen Lama have been elected to the Congress and its standing committee — the Dalai Lama even serving as its vice-president — and have sat in Parliament. They represented an electorate who participated in the election of the highest organ of the State. Declaration 2625 (XXV) guarantees a right of self-determination only to colonies and territories when the population has no political power. The Declaration apparently had situations in mind such as apartheid in South Africa. The real problem is Tibet's alleged full sovereignty in the first half of the 20th century. The relationship between the Chinese emperor and the Dalai Lama is hard to understand when the European concepts of public international law are applied. According to the traditional interpretation, it was a relationship of priest and patron (in Tibetan "chö-yön"). As patron, the Chinese emperor exercised a secular rule or sovereignty, while the Dalai Lama independently exercised a spiritual authority, not only in Tibet but also in other parts of China which adhered to lamaist buddhism. He nominated the High Lama in Mongolia, for example. The Emperor, however, through a commission that he appointed and sent, possessed a far-reaching right of control over the Dalai Lama's administration of Tibet. This unique relationship, with a division of functions between worldly and spiritual rulers, can only be understood with great difficulty through concepts which have been developed elsewhere. Neither the term protectorate, suzerainty, or feudal State covers it sufficiently. The claim that this special relationship of mutual influence came to an end with the abdication of the emperor stands on

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weak foundations. This claim is doubtful because all Chinese constitutions passed since 1911 have claimed Tibet as'part of China or, respectively, the People's Republic of China, and subject to Chinese sovereignty. Whether this claim can be entirely justified in every respect historically is not clear; however, there certainly was a special relationship between the two entities. Great Britain also recognised this after the first revolution, as in the 1914 Simla negotiations for a 3-way treaty clarifying the legal relationship between Great Britain, China and Tibet, it agreed to identify the relationship between China and Tibet as a suzerainty. Certainly British interests in economic influence in Tibet led to this relationship being so weakly defined at that time. Although China did not sign the treaty, it was still agreed to by Great Britain and Tibet. There are differences of opinion as to whether British negotiators succeeded in effectively distancing themselves from this terminology by virtue of a separate British-Tibetan protocol to the treaty. In its final statement (the "International Lawyers statement on Tibet", London, 10 January 1993, paras. 5.1-5.7 [herein "The London Statement"]), the Conference referred to the "Tibetan Government in Exile"; to the then not yet well-known Verdict of the Permanent Tribunal of Peoples (Session on Tibet, Strasbourg, November 1992); and especially to the fact that before 1911 Tibet had a tributary relationship to China and hence must have had a special status (and a necessarily separate identity). Furthermore, the Peoples Republic of China invited Tibet to "join" the new State, as at that point it had never been asserted that Tibet had already become a part of China. With this, the Peoples Republic of China acknowledged that Tibet did not belong to China. It would have required a special act of self-determination to reach that result. The Conference put particular emphasis on Tibet's allegedly intensive activity in the field of international treaty-making. Although in the 19th century there were treaties with Ladakh, Kashmir and Nepal, in the period between 1911 and 1949/50 other than the 1914 treaty of Simla mentioned above and an exchange of notes with Great Britain over urgent border questions Tibet concluded only one treaty in 1913 with Mongolia, whose status was controversial at the time. Given the fact that official Chinese representatives also took part in the negotiations in Simla with Great Britain and Tibet, it can also be concluded that China, at least at that time, raised no objections against Tibet's exercise of international relations. Due to the border questions discussed there, China did not sign the treaty. It is certainly not unusual that in federal States or even in areas with a certain degree of autonomy, authorisation is given to conclude international treaties. Nepal maintained Permanent Representation in Tibet on the basis of a 1856 treaty. Great Britain left the tending of its interests to trade representatives, but they did not reside in Lhasa.

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The reference to Tibet's claim of sovereignty of currency is of little use. The Tibetan government had already begun to use coins and paper money during the Qing-Dynasty in the 19th century.

The Conference avoided going into the recognition of Tibet by other States, as the International Lawyers Commission in 1960 dealt with this question in great detail, drawing on the diplomatic practice of the United Kingdom and the USA. Assuming that the international status of an area is not created by a recognition by other States, but only confirmed, the silence of the international community can certainly only be interpreted as regarding prerequisites for recognizing Tibet as part of China not to be met. Certainly India, which is closest to the problem through its common border with Tibet and also through the granting of rights of residence [Gastrecht] to the Tibetan government in exile, regarded Tibet as a region of China as early as 1954 in a treaty with China. In 1988, the Indian Prime-Minister Rajiv Gandhi in a visit to Beijing said that the Tibetan problem was an "internal matter for China". It is possible to differentiate between States which are indifferent to the fate of Tibet, those which believe that recognition may be possible and, finally, a small group which dares verbally to admit the independence of Tibet. All three groups shy away from formal recognition, so as not to endanger relations with the most populated country in the world, which also has a right of veto in the Security Council of the UN, i. e. China. This could be seen as a reason, particularly if a legal duty of recognition is accepted, to interpret silence as an implicit recognition. But is it allowed by means of interpretation to presume that States have in fact performed an act when they can still decide whether or not to carry out that act? The final resolution of the conference, mentioned above, should be widely published. The resolution should go not only to the countless organs of the U N and the many official and unofficial international organizations with different proposals, but should also expand the agenda of the World Human Rights Conference in 1993 under "Rights of Peoples". Governments should also receive the resolution; and in particular the government of the People's Republic of China should be to undertake with the Tibetan government in exile, "without further delay and without conditions, to commence genuine negotiations to facilitate the exercise of the Tibetan people's right to self-determination." (London Statement, above , para. 8.9). When Rajiv Gandhi in 1989 was presented with similar demands by the German Green Party, he replied: We know the real problems in Tibet. But we believe a plausible solution may only be found through dialogue w i t h the Chinese government. We have welcomed initiatives in this direction.

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China itself has promised autonomy for all its minorities. Would it not still perhaps be a sensible alternative to the sizable demands already made to take the Chinese at their word and press more effectively for the creation of a more effective autonomy, than happened in 1984 with the law regarding regional autonomy for national minorities (UN Doc. CERD/C/126/Add. 1, Annex III)? That in addition everything possible should be done to ensure the respect for human rights in Tibet is self-evident. Additional remark: On 13 August 1993 the Agency of Reuter reported that the Dalai Lama had renounced to claim full independence for Tibet if Tibet would have guaranteed political autonomy that goes further than that presently granted to the country.

34 GYIL 36

Book Reviews Georg M. Berrisch: Der völkerrechtliche Status der Europäischen Wirtschaftsgemeinschaft im G A T T (Europarecht — Völkerrecht, Studien und Materialien; Bd. 38). Verlag V. Florentz GmbH, München 1992, 263 + X V S., kart. Die zentrale Kompetenznorm für ein Tätigwerden der Europäischen Gemeinschaft (EG) im Außenverhältnis ist Art. 113 EWGV, der die Handelspolitik betrifft. Seinem Absatz 1 zufolge wird seit dem Ablauf der Übergangszeit „die gemeinsame Handelspolitik nach einheitlichen Grundsätzen gestaltet". A n die Stelle der mitgliedstaatlichen Kompetenzen für diesen Sachbereich ist daher seit 1969 eine Gemeinschaftskompetenz getreten. Diese Entwicklung ist in den internationalen Organisationen, die sich mit Handelsfragen befassen — insbesondere im G A T T — und in denen die EG-Mitgliedstaaten Mitglieder waren, ohne unmittelbare formelle Konsequenzen geblieben. Die einzelnen Mitgliedstaaten sind nach wie vor Vertragsparteien des G A T T , während die EG, vertreten durch die Kommission, die sich aus dieser Mitgliedschaft ergebenden Rechte und Pflichten wahrnimmt — wenn man einmal von einzelnen Ausnahmen absieht. Die gelungene Dissertation von Berrisch befaßt sich mit den Rechtsfragen, die diese formlose völkerrechtliche Sukzession der Gemeinschaft in die Stellung der Mitgliedstaaten als Vertragsparteien des G A T T aufwirft. Anhand einer ausführlichen und fundierten Analyse der Praxis der Vertragsparteien in den einzelnen materiellen Arbeitsbereichen des G A T T (Zollverhandlungen, Abschluß von Abkommen, Ausnahmeregeln / Waiver, Streitbeilegungsverfahren) weist der Autor nach (156 ff.), daß es hier tatsächlich zu einer Funktionsnachfolge gekommen ist, die von den anderen Vertragsparteien auch akzeptiert worden ist. Anders als dies bislang vorherrschend vertreten worden ist, kommt er dabei zu der zutreffenden Einschätzung, daß sich die Stellung der Gemeinschaft nicht mehr als bloße de-facto-Mitgliedschaft charakterisieren läßt, sondern daß die Position der Gemeinschaft heute vielmehr die einer de-iure-Vertragspartei des G A T T ist, wenngleich sie der fehlenden formellen Konsequenzen wegen als eine Mitgliedschaft sui generis zu qualifizieren ist. I n der Tat läßt sich heute nicht mehr bestreiten, daß die Akzeptanz der Funktionsübernahme der Gemeinschaft durch die anderen Vertragsparteien des G A T T von rechtsgestaltender Qualität ist. Diese Untersuchung, der man anmerkt, daß der Autor das G A T T aus eigener Anschauung kennt, bildet den Hauptteil der Arbeit. Vorangestellt werden drei einleitende Abschnitte, in denen ein Uberblick über die historische Entwicklung des G A T T und das GATT-Recht (4 ff.), die Stellung der EG im Völkerrecht (33 ff.) und die Frage der Vereinbarkeit der Gemeinschaftsverträge mit dem G A T T gegeben wird (85 ff.). Nicht nur wegen der überzeugenden und eingehend begründeten rechtlichen Wertungen, sondern auch aufgrund der gelungenen umfassenden Darstellung des G A T T handelt es sich um eine fachlich hervorragende (und ansprechend geschriebene) Arbeit, die gerade dem im internationalen Wirtschaftsrecht tätigen Praktiker zu empfehlen ist, der sich einen Überblick über das G A T T und die sich aus der Beteiligung der Gemeinschaft ergebenden Rechtsfragen verschaffen will. Hans-Joachim Prieß

Book Reviews Isse Omanga Bokatola: L'Organisation des Nations Unies et la Protection des Minorites, Collection: Organisation internationale et Relations internationales, Vol. 25, Etablissements Emile Bruylant, Bruxelles, 1992, X I V + 291 S. Völkerrechtlicher Minderheitenschutz findet neuerdings zunehmende Beachtung. Das ist angesichts dessen, was in Osteuropa geschah, nicht erstaunlich. Die Genfer Dissertation beschränkt sich bewußt auf die Lösungen, die im Rahmen der Vereinten Nationen gefunden wurden, und läßt die Entwicklungen beiseite, welche in den Sonderorganisationen wie auch in Regionalorganisationen (Europas — einschließlich KSZE —, Amerikas und Afrikas) stattfanden. N u r die aus eigenen Staatsangehörigen bestehenden Minderheitengruppen sind einbezogen, obwohl nicht geleugnet wird, ihr Schutz gehöre in den Bereich der Menschenrechte. Stark in den Vordergrund gerückt werden die geschlossen siedelnden Minderheitengruppen mit einem starken Identitätsbewußtsein, die sich gegen jeden Versuch der Assimilierung wehren und mindestens nach Autonomie streben. Verstreut lebenden Minderheiten wird nur geringe Beachtung geschenkt. A n dieser Auswahl unter den eines Schutzes bedürftigen Gruppen orientiert sich auch der Außau der Arbeit. Ein erster Hauptteil (S. 60-160) ist radikalen Lösungen gewidmet, die geeignet sind, das Problem verschwinden oder verblassen zu lassen. Das geschehe auf staatlicher Seite durch physische Vernichtung, Grenzverlagerungen, Umsiedlung und gewaltsame Assimilierung. Als solche radikale Lösung wird auf Seiten der Minderheiten auch die Loslösung aus dem Staatsverband unter Berufung auf das Selbstbestimmungsrecht angesehen, welche der Verfasser unter bestimmten Voraussetzungen für rechtlich zulässig hält. Damit hat er etwas gewaltsam zwei Problemkreise in einen Hauptteil gezwängt, zu denen er selbst ganz unterschiedlich steht: Während er scharfe Kritik an den staatlichen Maßnahmen zur Unterdrückung von Minderheiten übt, finden die Sezessionsbestrebungen der identitätsbewußten Minderheiten warme Sympathie. Sie verführt ihn auch zu gewagten Auslegungen internationaler Instrumente. Luigi Condorelli, der Betreuer der Arbeit, fühlt sich in seinem sonst sehr positiven Vorwort (S. X I V ) zu einer Einschränkung veranlaßt. „Reconnaitre en droit international un droit de secession releve en effet de l'utopie". Freilich hat dieses Abstellen auf ein Endergebnis den Vorteil, daß alle einem Minderheitenschutz im Wege stehenden Hemmnisse mitleidlos herausgearbeitet werden, bevor gesagt wird, wie sie überwunden werden können. Der zweite Haiiptteil (S. 167-250) ist den „Kompromißlösungen" gewidmet, welche den Gegensatz zwischen den Prinzipien der staatlichen Einheit einerseits und der Selbstbestimmung andererseits zu überbrücken suchen. Sie findet er in dem als zu schwach empfundenen Schutzsystem der Vereinten Nationen. Vor diesen beiden Hauptteilen fehlt nicht eine Einführung in den historischen Hintergrund (S. 9 - 63), in der auch schon einiges Substantielles vorweggenommen wird. Hier seien nur drei Probleme herausgegriffen, bei denen der Verfasser eigene Wege geht: Die Fallgruppen der gewaltsamen Unterdrückung von Minderheiten, die Rechtfertigung von Sezessionen kraft Selbstbestimmung und schließlich die Ablösung eines bloßen Individualschutzes durch den Schutz von Gruppen als eigenen Subjekten des Völkerrechts. Es ist durchaus einleuchtend, neben der physischen Vernichtung auch die gewaltsamen Umsiedlungen innerhalb eines Staates und die Zwangsassimilierung von Minderheiten an das Hauptstaatsvolk als Untaten im Interesse der Geschlossenheit des Nationalstaates zu verstehen. Aber ist es richtig, dazu auch Aussiedlungen eines Teiles des bisherigen Staatsvolkes aus ihren Siedlungsgebieten zu rechnen, die infolge eines verlorenen Krieges an einen anderen

34*

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Staat abgetreten werden müssen (Fall der deutschen Ostgebiete jenseits der Oder-NeißeLinie)? I n diesem Fall ist keine Minderheit betroffen. Anders liegt es, wenn eine Minderheit aus ihren Siedlungsgebieten in das stammverwandte Nachbarland vertrieben wird (Fall der Sudetendeutschen). Der Verfasser macht keinen Unterschied zwischen diesen beiden Fällen (S. 80 - 81). I m ersten Fall handelt es sich um das Problem, ob und unter welchen Bedingungen Gebiets Veränderungen gegen den Willen der Bevölkerung zulässig sind, aber nicht um ein Minderheitenproblem. Die Frage, ob das Selbstbestimmungsrecht ethnischen, religiösen und sprachlichen Minderheiten das Recht verleiht, aus ihrem Staat auszuscheiden, ist außerordentlich umstritten. Der Verfasser erkennt, daß hier zwei wichtige Prinzipien des modernen Völkerrechts zueinander in einem Gegensatz stehen und zu entscheiden ist, welchem der Vorrang gebührt. Aus der Charta sei dies nicht zu entnehmen. Sein Versuch, aus einem Gegenschluß zu Absatz 3 der Präambel der Universellen Erklärung eine Unterstützung zu finden, hat ihn wohl kaum selbst überzeugt. Darüber, daß bei der Ausarbeitung des gemeinsamen Artikel 1 der beiden Menschenrechtspakte Minderheiten nicht als „Völker" angesehen wurden, setzt er sich hinweg. Es sei absurd, eine derartige Unterscheidung zu treffen — ein schwaches Argument. Als wichtigste Quelle sieht er dann doch die Erklärung über Freundschaftliche Beziehungen (Res. 2625 (XXV)) von 1970 an. Bei ihrer Auslegung sollte man sich an den Rat von R. Bernhardt erinnern, mangels besonderer Grundsätze für die Auslegung von Resolutionen solle man jedenfalls auf die Absichten der Autoren und den Text, wie er von Unbeteiligten verstanden werden könne, achten (EPIL (7) 325). I n Absatz 6 des Abschnittes über Selbstbestimmung findet sich eine wichtige Aussage zum Verhältnis von Selbstbestimmung zu territorialer Integrität. Koloniale und sonstige abhängige Gebiete besäßen nach der Charta einen Sonderstatus, der sie von ihren Verwaltungsstaaten abhebe. Ob sich das aus der Charta wirklich herleiten läßt, mag dahinstehen. Dieser Sonderstatus soll aber bewirken, daß diese Gebiete nicht von dem Grundsatz der territorialen Integrität ihrer Verwaltungsstaaten erfaßt werden. Da liegt der Gegenschluß nahe — sonst arbeitet der Verfasser gern mit solchen —, das gelte nur für sie, aber nicht auch für geschlossene Siedlungsgebiete von Minderheiten. Diese verblieben im Geltungsbereich dieses Prinzips und könnten sich ihm nicht durch eine Berufung auf Selbstbestimmung entziehen. Eigenartigerweise hat der Verfasser diesen Absatz 6 nicht herangezogen, sondern sich ausschließlich auf Absatz 7 gestützt. Dieser Absatz 7 ist sehr lang und nicht sehr elegant formuliert. Man kann sich des Eindruckes nicht erwehren, manche Interpreten seien vor der Beachtung seiner letzten beiden Zeilen erlahmt. Ganz offensichtlich hat dieser Absatz den Zweck, das südafrikanische Apartheidsystem, in dem der Mehrheit das Wahlrecht noch vorenthalten wird, den Kolonien gleichzustellen und auch dort der Selbstbestimmung Vorrang vor der Souveränität und damit vor territorialer Integrität einzuräumen. Das geht deutlich aus den beiden letzten Zeilen des Absatzes hervor, die mit „dementsprechend" (= „thus") beginnen und als wesentliches Kriterium für einen Vorrang von Selbstbestimmung vor territorialer Integrität die mangelnde Beteiligung des ganzen Volkes an der Repräsentation und damit an der politischen Willensbildung bezeichnen. U m den Ausnahmecharakter dieser Vorkehrung zu unterstreichen, bekräftigt der folgende Absatz 8 erneut das Prinzip der nationalen Einheit und territorialen Integrität. Es ist dem Verfasser zugute zu halten, daß er mit dieser Auslegung der Erklärung nicht allein steht, sondern daß seit der Erklärung von Algier (1976) auch andere Stimmen für ein neues und dynamisches Selbstbestimmungsrecht eintreten, um ein überholtes status-quo-

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Denken abzulösen, die er sorgfältig registriert (so auch kürzlich St. Oeter, Selbstbestimmungsrecht im Wandel, ZaöRV 52 (1992), 741-757, mit tiefergehenden Ausführungen). Er geht auch nicht so weit, anderen Staaten ein Recht zur gewaltsamen humanitären Intervention zugunsten von Sezessionsbestrebungen der Minderheiten zuzugestehen. Der Gebrauch von Gewalt sei auch in diesen Fällen dem Sicherheitsrat vorbehalten. N u r mittelbar dürften einzelne Staaten eine Sezession unterstützen. Schließlich wird das Problem des Gruppenschutzes behandelt. I n der Beziehung sind die Instrumente des Minderheitenschutzes der Vereinten Nationen bisher außerordentlich zurückhaltend gewesen. Die Klausel in Artikel 27 des Zivilpaktes, den Angehörigen von Minderheiten dürfe nicht das Recht vorenthalten werden, „gemeinsam mit anderen Angehörigen ihrer Gruppen" gewisse Befugnisse auszuüben, fügt einem Individualrecht allenfalls ein kollektives Element hinzu, ohne die Gruppe zum Subjekt des Völkerrechts zu erheben. Das hofft der Verfasser aus den Arbeiten der Menschenrechtskommission an einer neuen Deklaration über Minderheitenrechte entnehmen zu können. In der Tat ging ein jugoslawischer Antrag von 1978, welcher einer Arbeitsgruppe als Grundlage diente, in diese Richtung, indem er Gruppenrechte auf Achtung ihrer Identität, auf Leben, Freiheit und Sicherheit der Person sowie eine ganze Reihe anderer Rechte vorsah. Die Arbeitsgruppe hatte allerdings schon in ihrem Entwurf (E/CN.4/1990/41), der im Anhang auf S. 257-261 abgedruckt ist, offengelassen, wem diese Rechte zustehen sollten, den Angehörigen von Minderheiten oder diesen selbst. Zwei Alternativfassungen standen in Klammern in dem Entwurf. Schon die Menschenrechtskommission hat sich jedoch auf ihrer 48. Sitzung am 21. Februar 1992 (Resolution 1992/16 = E / C N . 4 / 1 9 9 2 / 4 8 ) dafür entschieden, diese Rechte nur den Angehörigen nationaler oder ethnischer, religiöser oder sprachlicher Minderheiten einzuräumen und jede Bezugnahme auf Gruppenrechte zu beseitigen. Die Generalversammlung hat diesen Entwurf bis auf unerhebliche stilistische Korrekturen unverändert am 18. Dezember 1992 durch Resolution 47/135 angenommen. Das konnte der Verfasser, der sein Werk im April 1991 abschloß (S. 1), nicht voraussehen. Eigenartigerweise hat er aber auf S. 257 (Fn. 1) das Dokument E / C N . 4 / 1 9 9 2 / 4 8 zitiert, aus dem die Gruppenrechte bereits verschwunden waren. I m endgültigen Text hebt sich Artikel 1 über den Schutz von Existenz und Identität der Minderheiten von den Artikeln 2 - 4 über die einzelnen Rechte ihrer Angehörigen deutlich ab. F. Ermacora („Vereinte Nationen", 40. Jahrg., Heft 5/92, S. 152) entnimmt dem Artikel 1 eine vielversprechende Aussage über den Gruppenschutz (a. A. K. Dicke, 48 EA Heft 4 (1993), S. 110). Die Begründung von Schutzpflichten durch Völkerrechtsnormen braucht noch keine Einräumung von Rechten an die Begünstigten darzustellen. Das lehrt die Entwicklung des internationalen Menschenrechtsschutzes mit aller Deutlichkeit. Daß aus der Pflicht zum Schutz der Identität keine weitreichenden Folgerungen abgeleitet werden können, ist im Artikel 1 selbst klargestellt. Die Staaten sollen die Bedingungen zu ihrer Förderung unterstützen („shall encourage conditions for the promotion of that identity"). Was das praktisch bedeutet, ist in den Artikeln 2 - 4 umschrieben, in denen die Rechte von Angehörigen der Minderheiten engherzig umschrieben sind. So bestätigt Artikel 1 zwar eine Verpflichtung der Staaten zu positiven Leistungen, begründet aber keine über die Kataloge der Artikel 2 4 hinausgehenden Rechte (wie z. B. auf eine Verwaltungsautonomie). Jedenfalls hat die Erklärung in der nach jahrelangen Arbeiten schließlich angenommenen Form den Spekulationen des Verfassers den Boden entzogen, ein Organ der Vereinten Nationen habe den Minderheiten als solchen Gruppenrechte zuerkannt. #

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Trotz der geübten Kritik bekennt der Rezensent, daß das Buch gut geschrieben ist. Der Verfasser engagiert sich mit Verve für seine Thesen. Er hat auch — vor allem die französischsprachige — Literatur ausgiebig herangezogen. Seine rhetorische Begabung wird ihm einen interessierten Leserkreis sichern. Karl Josef Partsch

Antonio Cassese (ed.): The International Fight Against Torture / La Lutte Internationale contre la torture. Nomos-Verlag, Baden-Baden 1991, 186 pp. The book under review contains the collection of the revised and updated papers presented at a workshop the editor convened as part of a research project on the international protection of human rights initiated in 1989 at the European University Institute, Florence. The workshop was attended by an interdisciplinary group of experts (medical doctors, legal scholars, diplomats) who are actively involved in either serving on international human rights monitoring bodies such as the U N Commission of Human Rights, the European Commission of Human Rights, and the Council of Europe Committee for the Prevention of Torture, or in the individual capacity of Special United Nations Rapporteur on Torture, or w i t h nongovernmental human rights organizations. The aim of the workshop — and eventually the book — was to undertake an in-depth study of one of the most heinous crimes against human dignity and integrity, i. e. the practice of torture, and to make the findings available to a broader public. Accordingly, the ten papers, although written by different authors, form a systematic whole examining the problem of torture through the basic empirical (medical, medical-ethical) facts, the therapeutic and educational strategies vis-ä-vis victims of torture, and a comprehensive description and analysis of the various universal and regional legal systems and instruments designated to combat torture. The book, written in English and French, is very readable and, therefore, has a high informational value for many, not only readers with a legal background. Two papers introduce the reader to the empirical phenomenon of torture and to the problem of medical ethics related to medical service in penitentiaries. Bent Sorensen and Inge Kemp Genefke, both very experienced in medical treatment of victims of torture, give a graphic description of the forms and purpose of physical and psychological torture and their effect on the victims. They also deal with strategies for treating victims of torture which have been developed by the International Rehabilitation and Research Center for Torture Victims in Copenhagen. Jacques Bernheim addresses questions of medical ethics with regard to medical service in prisons. Based on rich empirical data, Bernheim impressively highlights the special responsibility of doctors treating prison inmates. The data analysed in this paper show that even a randomly selected prison population includes many individuals with strong social-pathological backgrounds whose mental condition deteriorates in the precarious state of an inmate. Bernheim cites specific instances of inmate reactions to the prison environment, on the one hand, and encounters w i t h the medical staff on the other hand. He emphasizes that medical treatment of "normal" inmates demands a high degree of sensitivity and ethical approaches on the part of the medical staff. The experience of working in prison should be encouraged for medical students in order to increase awareness of these problems and thereby make the medical community refuse inhuman service in prisons, the worst of which is medical assistance in the performance of torture. Six papers by Joseph Voyame (La Convention des Nations Unies contre la torture et autres peines ou traitements cruels, inhumains ou degradants du 10 decembre 1984), Peter H.

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Kooijmans (The Role and Action of the U N Special Rapporteur on Torture), Pedro Nikken (L'action contre la torture dans le systeme interamericain des droits de Phomme), Love Kellberg (The Case-Law of the European Commission of Human Rights on Art. 3 of the ECHR), Nicolas Valticos (La jurisprudence de la Cour europeenne des droits de Phomme sur Part. 3 de la Convention europeenne des droits de Phomme) and by the editor, Antonio Cassese (The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) provide the reader with a comprehensive overview of the existing mechanisms of international (universal and regional) human rights law against torture. These authors who have been serving on monitoring bodies such as the various commissions concerned with torture or in the capacity of a Special Rapporteur on torture place special emphasis on the peculiar features of these mechanisms or instruments. As non-judicial approaches to the combat of torture, these international mechanisms require a high degree of conciliatory skills as well as firmness and courage on the part of the members of the respective monitoring bodies and of the individual officials. Building respect for these monitoring bodies and officials and trust in their credibility and impartiality is essential to the success of these important, yet still fledgling means of enforcement of the anti-torture rules of international law. These articles, full of experts' insights into the operation of international human rights protection are of particular value because they combine a strong commitment to the cause with a sober and objective evaluation of the present status of international human rights protection in a particularly crucial area which is free of the unnessessary pathos and rhetoric found in human rights literature and offical human rights documents. The book concludes with two informative contributions by Philippe de Sinner and Hernan Reyes (Activites du C I C R en matiere de visites aux personnes privees de liberte. Une contribution ä la lutte contre la torture) and Helena Cook (The Role of Amnesty International in the Fight against Torture). Jost Delbrück Stefan, Schepers: Le Droit federal en Europe — U n essai historique; Preface de Emile Noel. Institut Europeen d'Administration Publique, Bruylant, Bruxelles 1991, 138 pp. Hermann-Josef Blanke: Föderalismus und Integrationsgewalt — Die Bundesrepublik Deutschland, Spanien, Italien und Belgien als dezentralisierte Staaten in der EG. (Schriften zum Europarecht, herausgegeben von Siegfried Magiera und Detlef Merten, Band 7), Duncker & Humblot, Berlin 1991, 447 pp. Staatsrechtliche Auswirkungen der Mitgliedschaft in den Europäischen Gemeinschaften / Consequences institutionelles de l'appartenance aux Communautes europeennes — Zwölf Länderberichte verfaßt von / Douze etudes nationales redigees par: Alberto Aranovitz, Christophe Bernasconi, Bertil Cottier, Alexandra Gerber, Beatrice Metraux, AnneSophie Rieben, Ciaire Spirou, Martin Sychold, unter der Leitung von / sous la direction de Bertil Cottier, Publications de Plnstitut suisse de droit compare, tome 18. Schulthess Polygraphischer Verlag, Zürich 1991, 446 pp. Rudolf Wildenmann (ed.): Staatswerdung Europas? — Optionen für eine Europäische Union. (Studien zur gesellschaftlichen Entwicklung (SGE), herausgegeben im Namen des Vorstands des Vereins zur Erforschung gesellschaftlicher Entwicklungen (VGE) von Rudolf Wildenmann und Hans-Martin Pankowski, Band 9), Nomos-Verlag, Baden-Baden 1991, 461 pp. Die E G und die jungen Demokratien in Europa. Ein gemeinsamer Bericht westeuropäischer Außenpolitik-Institute, mit Beiträgen von Gianni Bonvicini, Ole Diehl, Karl Kaiser, Heinz

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Kramer, Cesare Merlini, Dominique Moisi y Friedemann Müller, J. M. C. Rollo, Q. Th. Roody Hans Stark, Javis Voorhoeve, Helen Wallace. (Aktuelle Materialien zur Internationalen Politik. Stiftung Wissenschaft und Politik / SWP, Redaktion Albrecht Zunker), Nomos-Verlag, Baden-Baden 1991, 82 pp. Christian, Deubner (ed.): Die Europäische Gemeinschaft in einem neuen Europa — Herausforderungen und Strategien. (Aktuelle Materialen zur Internationalen Politik, Stiftung Wissenschaft und Politik / SWP, Redaktion Albrecht Zunker, Band 29), NomosVerlag, Baden-Baden 1991, 253 pp. The books under review have all been published within the year 1991, little over a year to almost two years after the opening of the Berlin Wall and concurrently with the implementation of German unification, the downfall of the Soviet Union, and the drafting and adoption of the Maastricht Treaty. It is certainly not accidental that these themes are either directly or implicitly reflected in the six books reviewed here, but it has been sheer coincidence that they have come up for review together. However, such a coincidence sometimes makes unanticipated sense. I n this case, the thematic links between the books and their topicality lend themselves to a joint review: the books address the idea of federalism as a past and present structural design for European political unity in diversity, the impact of supranationalism on federal or decentralized States within the EC, and finally, the question of political challenges to implement strategies or schemes for European peace and security. Le droit federal en Europe by Stefan Schepers probes into the history of associational forms of State cooperation. After a short general introduction, the author provides the reader with an introduction to the conceptual framework of cooperative forms of State interaction ranging from a union of two or more States to the confederation and the federation. The different legal characteristics — of States only associated (or forming a union), of States becoming a part of a confederation, and ultimately, the legal characteristics of federations — are also treated in a concise overview without ploughing new doctrinal ground (17-35). The author correctly observes that it is dangerous to apply modern concepts of federalism to the ancient or medieval political landscape. Yet he finds it interesting to note that despite this methodological dilemma, a view far back into European history discloses a recurrent turn toward the forming of communal structures of cooperation between organized polities which are quite reminiscent of federalism ideas. The following four chapters take up, in turn, the history of the distribution of competences between the federal entity and the constituent entities, the history of the imposition of federal institutions upon the constituent entities, the separation of powers on the federal level, and ultimately, the history of the institution of a constitutional court in federal States including the case of a lack of such a court. Each of these chapters starts w i t h a short recapitulation of the treatment of the respective subjects in ancient Greece and in the Roman Empire. It then turns to the development of the concepts, institutions and features of modern federalism in constitutional history since the 17th century. The findings listed in the concluding remarks of the book as to specific types of realization of federalism, changes over time and certain defects of practically all historically formed federal systems, are not particularly new or surprising. Yet the value of the book lies in the concise recapitulation of the rich European experience in federalism which is very pertinent at this juncture of the search for a new political institutional order for the Continent. Against the background of Schepers study of federalism in European history, the reading of Hermann-Josef Blanke' s Föderalismus und Integrationsgewalt, a comparative study of four decentralized States within the EC (Germany, Spain, Italy and Belgium), is an interesting

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exercise. The book not only presents in-depth anaylses of the federal and quasi-federal / autonomy based constitutional settings of the four countries in point, but by offering this rich material it also bears witness to the creativity w i t h which European States have responded to the problem of protecting political and cultural diversity and preserving a national community as the political basis of the State. The first four chapters describe the federal and pre-federal structures constitutive of the special character of each of the four decentralized States: the federal system of Germany, the Spanish autonomy-based State, the regionalist State structure of Italy, and the newly established Belgian federal system. Given the different forms and features of realizing a decentralized State order, it is interesting to note that in all four States analysed a form of constitutional court control over the federal-State or Stateautonomous communities / regions relationship is provided for. The next four chapters, constituting part two of the book, are devoted to the study of the constitutional provisions on the exercise of foreign relations' powers and on the participation of the constituent entities (member States, autonomous communities, regions) in the conclusion and execution of treaties under international law. Again, the author examines the relevant constitutional law for each country in turn. The objects of inquiry are the allocation of the competence to conclude international treaties at the federal or central level and the regulation of the competence to implement or execute such a treaty. The author shows a remarkable sensitivity in pointing out the characteristic features of each of the systems under scrutiny. Having considered in some detail the constitutional framework within which the four differently structured decentralized States face the process of integration under the EC Treaty and its application, in part three of the book the author takes a more analytical approach. The overall theme of part three is the invasion of the sphere of competence of the constituent entities of the four decentralized States by the transfer of powers to the EC as well as compensatory measures w i t h regard to the loss of competence by the constituent entities. The chapters deal with different subject matters, and subsections of the respective chapters examine their treatment in the four States: Chapter I X details the domestic constitutional basis of the transfer of powers to the supranational level by the federal / central authorities and its impact on the State / autonomous / regional level. Chapter X describes the impact of EC-Law on the subfederal / regional sphere of competence and Chapter X I introduces the compensatory measures taken to make up for the losses of competences by the subfederal / regional entities. I n a follow-up, part four deals with the participation of the constituent entities of the four decentralized States in the decision-making process on the EC level. This time, the author goes back to a country by country approach and describes which internal constitutional or other procedures of participation of the constituent entities are provided for, e. g. participation of the Federal Council (Bundesrat) in Germany in the deliberation of the Federal Government's policy determinations for the EC level, or only proposed so far, as in the case of Spain. Furthermore, the ways and means of direct communication between the subfederal / regional entities w i t h the EC are described and analysed. Parts five and six, then, turn to the implementation of the EC Law within the member States, particularly by the subfederal / regional entities, and to the control of the implementation process. The final part is of particular interest. Here the author engages in a comparative analysis of the preceding findings. The comparison of the decentralized structures of Germany, Spain, Italy, and Belgium is based on the notion that there is no established abstract definition of a federal State. States, in general, and federal States, in particular, are the outcome of specific political and sociological determinants. Although it is possible to point out a set of characteristics usually found in federal States, no complete and ideal realization of a "federal concept"

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is found in the community of States. This being so, it is possible, according to the author, to compare the four decentralized States although only Germany's Länder are considered as states members proper of the Federal Republic. From this perspective, Belgium before entering the last stage of federation, Spain and Italy to a certain extent, may be called federal or at least quasi-federal systems. For the purpose of answering the core question of the book, i. e. how federal or quasi-federal systems can survive within the EC, such a qualification of the four countries examined may be acceptable. The answer to this question bears directly on the further question with regard to the future legal status and structure of the EC itself. As the author points out, on many counts, the EC — like the pre-federal States of Spain, Italy and until recently Belgium — acts already along federal lines. However, essential elements of a true European federal State are lacking, particularly w i t h regard to safeguarding the competential spheres of the subfederal entities. Such safeguards, the author argues, must be found on the EC level, because it would be impossible to leave the task of protecting the sub-federal entities from EC absorption to the EC member States themselves. Yet, the jurisprudence of the European Court of Justice offers little ground to support confidence in its willingness to fulfill the role, which the constitutional courts in the four decentralized member States play in controlling the allocation of powers between the subfederal / regional entities and the federal / central government. The author suggests that it could need a vigorous ruling of a domestic constitutional court on a necessary curbing of the unitary trends of the EC, as it happened in the case of the protection of fundamental rights (the Solange I decision of the Germany Constitutional Court and a similar decision of the Italian Corte Constituzionale) y in order to come to a balanced system of distribution of competences between the EC and the member States including their constituent entities. The principle of subsidiarity could be helpful in solving this problem. Blanke* s book is a thoughtful, richly documented study of the federalism problems on the member States and EC levels which is raising the central question with regard to the future legal nature and status of the EC as well as of the member States — questions so far clearly unanswered, which may be one of the central reasons why support by the people of the EC member States for the further integration has dwindled away dramatically in recent years. Almost precisely the same set of questions, i.e. the impact of EC membership upon the domestic constitutional order, is raised by the twelve State reports compiled by eight Swiss scholars under the guidance of Bertil Cottier , himself one of the rapporteurs. The twelve papers written in German and French, are organized identically based on a cluster of four major subject matters which in substance also formed the basis of enquiry in Blanke* s book: 1) Constitutional problems posed by adhesion to the European Community including a description of the constitutional basis for the transfer of powers to the EC and the constitutional adjustments made on the occasion of adhesion; 2) Incorporation and implementation of the EC Law; 3) Implementation and execution of the EC Law in decentralized entities (the German Länder , regions or autonomous entities in other States); 4) Compensation of the loss of competences on the part of domestic Parliaments and decentralized entities. This common organization of the State by State reports allows for an easy comparison of the different ways, EC-member States have chosen to solve the problems of adjusting their domestic legal orders to Community Law. Cottier concludes the book with just that comparative analysis which, however, is rather summarily done and — as the author rightly states — does not spare the reader to turn to the concise and informative reports themselves. Thus, one may wonder why the "Essai de synthese" has been added to the volume, after all. The book is a handy reader, but it lacks in perspective w i t h regard to the meaning of the harmonization of domestic legal orders for the European integration process — a deficit

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which makes reading this book less rewarding than that of H. J. Blanke; a deficit, however, only in the eyes of a reader who reflects on the meaning of the present integration process in terms of the future status and nature of the EC, a subject the EC itself is so eager to avoid addressing, (see Jacques Delors , Entwicklungsperspektiven der Europäischen Gemeinschaft, aus Politik und Zeitgeschichte B 1/1993, 4)but which is of great concern to the peoples of the EC member States who are to become citizens of the future European Union: w i l l it be a federal State, w i l l it ever be a State at all? The impressive 460 p. volume Staatswerdung Europas — Optionen für eine Europäische Union, edited and introduced by Rudolf Wildenmann, is a thought provoking, interdisciplinary study of the legal / constitutional, economic / financial, sociological and political implications of the transformation of the EC into the European Union (EU) under the Maastricht Treaty. The study as a whole is based on the assumption, as Wildenmann points out in his introductory essay, that whatever State-like form the E U may take on, it w i l l have to be based on the concept of a State of nationalities as distinct from a (European) nation State. Since neither the individual nations nor the political class within the member States seem to be prepared, as of now, to give up their identities, any forthcoming E U would develop along with the continued existence of the individual nation States. The first and the three last papers (in turn, by M. R. Laepsius , R. Bieler, F. Scharpf and B. Wieland) address the conceptual and constitutonal policy implications of reconciling the forming of the E U w i t h the continued existence of the Union member States as fully-fledged States. A major concern of Bieler w i t h regard to the constitutional development of the EC into the Union is the fact that the EC is based on a constitution which is in constant change and at the same time, in the process of change becomes more intensive in scope and depth of its regulatory impact on the member States. Unlike the constitutional setting of the member States, the EC constitution lacks a precise definition of where its evolution is headed, using the term " U n i o n " which is rather vague and deliberately left open by the framers of the Maastricht Treaty (Jacques Delors, ibid.). Laepsius considers this vagueness of the term "union", which it shares w i t h many other notions of political symbolism, as a virtue. I t lends itself to various visions of the future format of the EU, and at the same time it signals a process of ever closer association, the end of which is for the institutions of the Union / EC to determine. Thus, for the time being at least, the way towards the Union is the end or goal itself. While in the traditional State, the constitution guarantees stability in the process of social and constitutional change, the constitution of the EC creates the prerequisites for change which, in turn, stabilize the system. Thus, the Union as a process is open-ended — unless political determinations as to the end of the process are being made — and care must be taken that it does not get out of control, i. e. that the two major structural elements of the Union — an ever closer association of the peoples — and the continued existence of the member States as States are destroyed. A better balance between a stricter normative delimitation of the powers of the Union / EC and of the member States is therefore necessary. Bieler has his finger right on the crucial issues of the Maastricht process. This paper is nicely and congenially supplemented by Wieland in her discussion of problems of constitutional policy w i t h regard to Europe's way to Statehood. Scharpf s pointed and imaginative theses on the institutional safeguards for a well balanced distribution of powers between member States and a federated Europe complete the constitutional and conceptual part of the book. H. Schneider, in the longest of all papers, undertakes to display a wide panorama of the political issues confronting the process of building the EU. He, too, raises the question as to the future nature of E U — just a Union or the United States of Europe? —, but he asks this question against the background of the all-European responsibilities incumbent on the Western European States. Should the EC be enlarged again, how is European security to be maintained, what could

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the role of the CSCE be in this context, which concept of an all-European Security System could be an adequate answer to the challenges posed by the revolutionary changes in the Eastern European political landscape? Is collective security a possible answer or should alternative models for a new political order in Europe be looked for? Schneider really presents an impressive range of central questions with regard to the future of Europe and also offers a framework for further intensive debate of the issues involved. G Joerges ' paper on the EC regulatory framework — entitled Markt ohne Staat — Die Wirtschaftsverfassung der Gemeinschaft und regulative Politik (Market without Constitution? — The constitutional framework of the EC in the economic sphere and regulatory policy) is another highlight of the book, particularly, but not exclusively, for legal scholars and practitioners. Joerges discusses the role of the law, of legal science integration theories and of economic "Ordnungspolitik " in the formation and implementation of the "economic constitution" of the EC. The Europeanization of the regulatory policies does not aim at the formation of a European State in the sense of replacing domestic regulation by European regulation. According to Joerges , what is at issue, is the debate over how the EC can best cope with the tasks which in part have accrued at the EC level, but in part have been usurped by it. The major concern in the future must be the reconciliation of the "dynamic logic of market integration" and the "normative logic of social regulations". This paper finds its equivalent in the one written by D. Biehl who takes on the "financial constitution" of the EC, focussing on the present structure, its defects and possibilities for reform. The analysis and discussion of the structural and institutional aspects of the E U / EC are also the subject of a third paper focussing on the specific economic and financial matters, i. e. H. Besters 9 and L. Gleske's paper on the discussion of problems of monetary union as a center piece of the internal market and the EU. Other economy-oriented papers are dealing w i t h some open questions regarding the external trade regulations of the EC (H. Besters) and with the EC trade policies from the perspective of the world economy (M. E. Streit / St. Vogt). The role of associations (unions, employer and consumer associations), particularly the prospects of a common European collective bargaining policy (H. Markmann), determining factors in the development of the European social policy (K. Sieveking), and a critical discussion of an adequate framework for assessing opinion polls with regard to the approval or disapproval of the European integration process by the peoples of the EC member States (U. Niedermayer) complete the thorough treatment of the overall subject of this volume. The focus of the books reviewed so far was mainly on the EC and the E U whether in their present impact on the legal and economic orders of the member States or on the future format of this dominant institution in the family of the political organizations of democratic European States. The last two books included in this review shift the main focus away from the structural analysis of the EC to the major external challenges the EC and / or the E U must face in the years to come. Die E G und die jungen Demokratien in Europa (The EC and the young democracies in Europe) is a joint report of several West European Foreign Policy Institutes. It contains a list of 13 recommendations for the future determination of the foreign policy of the EC which must be responsive to the radically changed political landscape in Europe, particularly w i t h regard to Central East Europe. These recommendations — in part superseded by the rapid events following the time of the preparation of the book, i. e. mainly the downfall and disintegration of the Soviet Union, but nevertheless still of interest — are based on six policy analyses written by D. Moisi (IFRI), Jan Q. Th. Rood (Clingendael), Heinz Kramer / Friedemann Müller (SWP), Ole Diehl (DGAP), J. M. C. Rollo / Helen Wallace (RIIA) and Gianni Bonvicini (IAI). The core conclusions are as topical today as they were at the date of their inception, i. e. that the EC and within the EC the major economic powers have to take responsibility for the gradual inclusion of the newly

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established democracies in Central East Europe. The economic and political requirements for a successfull discharge of this responsibility are drawn out concisely in the papers. The EC is clearly accorded the role of a stabilizing center of gravity in the changing European context. This is also the subject of enquiry of the last book under review: Die Europäische Gemeinschaft i n einem neuen Europa, edited and introduced by Christian Deubner of SWP. It is a collection of 13 papers written by French and German political scientists and legal scholars. The papers are organized around those major themes which also form the headings of the three sections of the book: the EC and German re-unification, the EC facing the challenges by Central Eastern Europe, and perspectives of reform of the Community — Economic and Monetary Union, Foreign and Security Policy and the Institutions of the Community. The individual high-calibre contributions which cannot be dealt with here in detail, impressively reflect the current, sometimes rather confusing, but influential lines of thought of governments and statesmen which oscillate between legitimate concerns, based on past experiences, about the future role of a united Germany and positive assessments of the invigoration of the European intregation process by the unification of Germany and Europe. The authors are confident that the new dynamics in European politics brought about by the historic changes since 1989 offer a unique chance for Europeans to consider new and farther reaching concepts of organizing as well as reorganizing the political order ot Europe. The authors are well aware, of course, that such political options w i l l also involve an adaptation of the existing institutional framework for European cooperation, and that implementing such adaptation w i l l not make the institutionalizing process easier, but rather more complex and difficult. They rightly see the danger, that the increasing complexity of the European political institutions may alienate the people from the respective political processes, putting into jeopardy the intended effect of the institutionalization of European cooperation, i. e. the realization of a stable peace order in Europe. Reflecting on the massive amount of information offered by the six books reviewed, one is inclined to state that the analyses of the present conduct of European policies are much keener and of higher quality than the practical implementation of the concepts and strategies forming the subject of said analyses — quite an alarming state of affairs. Jost Delbrück Yoram Dinstein / Mala Tabory (Hrsg.): The Protection of Minorities and Human Rights. Martinus Nijhoff Publishers, Dordrecht / Boston / London 1991, X I I + 537 S. Die Rechtsfakultät in Tel Aviv organisierte im März 1990 ein Kolloquium über dieses Thema, als sich im Baltikum erste Regungen zum Abfall von der Sowjetunion zeigten. Der Band bringt die Beiträge von 23 Autoren aus Israel, West- und Osteuropa sowie den USA zur Minderheitendefinition (S. 1-144), zu den allgemeinen Lehren ihres Schutzes (S. 145354) und zu einigen ausgewählten Entwicklungen in einzelnen Ländern (S. 355 - 503). Angefügt sind zwei knappe, aber inhaltsreiche „Bemerkungen" von F. Capotorti zum Kollektivrecht von Gruppen und von S. Rosenne. Die Beiträge behandeln nicht nur das in Organen der Vereinten Nationen geschaffene Recht, sondern beziehen auch Verträge aus ihren Sonderorganisationen ( I L O : N. Lerner), dem Regionalschutz in Europa und der KSZE (B. de Witte; M. Tabory) sowie bilaterale Regelungen (Südtirol: O. Triffterer) und Situationen in einzelnen Staaten ein. Der Band umfaßt also einen vielschichtigen Themenkreis, der aus unterschiedlichen Sichten beleuchtet wird. Wer allerdings Aufschlüsse darüber erwartet, wie sich die politischen Ent-

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Wicklungen in Ost-Europa auf die Stellung von Minderheiten auswirkten, kann noch nicht allzu viel finden, da die Beiträge spätestens zu Beginn des Jahres 1990 geschrieben sind. Anstatt die einzelnen Beiträge gesondert vorzustellen, zieht es der Rezensent vor, die angeschnittenen Probleme querschnittartig zu behandeln. Vorauszuschicken ist, daß die allgemein in der Praxis der Vereinten Nationen übliche Beschränkung auf ethnische, religiöse und sprachliche Minderheiten in dem Werk beibehalten wurde, wobei aber auch die Probleme von Urbevölkerungen zur Sprache kommen (so allgemein L. Shaskolsky-Sheleff und zu Australien G Sh ach or- Landau). I. 1. I n mehreren Beiträgen wird betont, alle Versuche einer Definition von Minderheiten, die allgemein akzeptiert werde, seien gescheitert (M. N. Shaw, S. 2; Kartashkin, S. 382). Wie in Artikel 27 des Internationalen Paktes für bürgerliche und politische Rechte (im folgenden CCPR) bleiben „nationale Minderheiten" unerwähnt. In verschiedenen Sprachen habe der Begriff „national" eine unterschiedliche Bedeutung und könne nur Verwirrung stiften (M. Tabory, S. 196). Die KSZE hat dieses Merkmal allerdings wieder eingeführt, die neue Erklärung der Generalversammlung (gemäß Res. 47/135 vom 18. Dezember 1992) fand wohl eine glückliche Lösung, indem sie von „nationalen oder ethnischen Minderheiten" spricht und sie damit gleichstellt. Ob eine verbindliche Definition in einer zukünftigen besonderen Konvention über Minderheitenrechte notwendig sei, wird unterschiedlich beurteilt. Während V. A. Kartashkin das bejaht (S. 382), hat S.J. Roth (S. 92) die Frage offengelassen. 2. Umstritten ist vor allem die Frage, ob Angehörige geschützter Minderheiten die Staatsangehörigkeit des Aufenthaltsstaates besitzen müssen, obwohl Minderheitenschutz gleichzeitig Menschenrechtsschutz ist. Capotorti hält an der Forderung fest (S. 508), und sie wird auch jetzt noch als „allgemein akzeptiert" bezeichnet (M. N. Shaw, S. 26), obwohl der Autor selbst Zweifel äußert. Es gebe Fälle, die diese Beschränkung nicht rechtfertigten. Y. Dinstein weist mit Recht darauf hin, Artikel 27 setze den Besitz der Staatsangehörigkeit nicht voraus, obwohl sich der Menschenrechtsausschuß nicht dazu durchringen konnte, das ausdrücklich zu bestätigen (M. N. Shaw y S. 27). 3. O b von Minderheiten neben den objektiven Kriterien auch subjektive wie ein Identitätsbewußtsein zu fordern sind, wird zurückhaltend beurteilt. Schon Capotorti hatte gemeint, das Bewußtsein könne auch „impliziert" werden. Auch der objektive Befund, die Gruppe habe ihre Besonderheiten behauptet, reiche schon aus (M. N. Shaw, S. 28 f.). 4. Die identitätsbewußte Gruppe muß „existieren". Das wirft Probleme auf, zumal offen bleibt, seit wann das der Fall sein müsse. Es sollten keine übertriebenen Forderungen gestellt werden (M. N. Shaw, S. 37). Unbestritten ist, daß eine Mehrheitsgruppe tatsächlich zur Minderheit werden kann wie die Araber im Staate Israel durch die Vertreibung (O. Stendel, S. 359). Fraglicher ist, ob eine Gruppe eingewanderter Fremdarbeiter nach längerem Aufenthalt den Minderheitenstatus erwerben kann. Ist sie schon in der zweiten oder dritten Generation im Lande und hat sie sich auch als Gruppe konsolidiert, dürfte das zu bejahen sein. Allerdings sollte eine Entscheidung nicht davon abhängig gemacht werden, ob der Aufenthaltsstaat nach internem Recht die Gruppe als Minderheit anerkannt hat oder anzuerkennen verpflichtet wäre; denn nach internationalem Recht handelt es sich um eine reine Tatsachenfrage (dazu S.J. Roth, S. 92-94). 5. Politisch herrschende Gruppen haben keinen Anspruch auf Minderheitenschutz. Dafür wird meistens auf Südafrika verwiesen. Hier ist der Fall Syriens gewählt (I. Rabinowich,

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S. 491-503). Dort stützt sich der Militärdiktator auf die religiöse Randgruppe der Alawis (ca. 10 % der Gesamtbevölkerung), von der sunnitischen Mehrheit als „Ungläubige" angesehen, aber mit starkem Einfluß auf das Militär, das alle oppositionellen Regungen brutal niederschlug. 6. Während für Volksgruppen in multinationalen Staaten vielfach ein Sonderrecht angenommen wird, verneint dies K. Hailbronner (S. 117 -144) auf der Grundlage einer sorgfältigen Analyse der völkerrechtlichen Instrumente. Sie stützten noch nicht einmal einen Anspruch auf eine getrennte politische Willensbildung, wie sie in einigen nationalen Rechtsordnungen gewährt worden sei. 7. Daß die Probleme der Urbevölkerung nicht ausgeklammert sind, wurde schon erwähnt. Dennoch wird eine Aussonderung dieser Fragen wegen einer notwendigen Anerkennung von Gruppenrechten, die sich im allgemeinen Minderheitenschutz nicht so zwingend gebiete, empfohlen (Shador-Landau, S. 325-340 zu Australien), während dieses Problem auch als Bestandteil des Minderheitenschutzes angesehen wird (S. Rosenne, S. 514; N. Lerner, S. 213 231). II. 1. Daß die verschiedenen Arten von Minderheiten nicht streng voneinander getrennt werden können, wird allgemein angenommen. Ethnische Minderheiten seien in der Regel auch sprachliche. Religiöse Unterschiede könnten sowohl sprachliche wie ethnische Minderheiten — vor allem in muslimischen Staaten — voneinander trennen. Die Schutzbedürfnisse seien bei den einzelnen Arten unterschiedlich. 2. Obwohl die Instrumente keinen Unterschied zwischen Religionen und säkularen Überzeugungen machen, vertritt Y Dinstein (S. 146) die These, nur die religiöse Gruppe, welche mindestens ein höheres Wesen verehre, verdiene einen Schutz. Sie brauche zwar nicht mit Rechtspersönlichkeit ausgestattet zu werden, habe aber einen Anspruch auf Gruppenrechte (S. 157), um ihre Religion wirksam ausüben zu können. Die dafür notwendigen Institutionen müsse sie gründen und unterhalten können. Das Problem der religiösen Gemeinschaften in atheistischen Staaten ist damit ausgeklammert, aber keineswegs gelöst. I n diesem Zusammenhang wird bedauert, daß die Konvention über Rassendiskriminierung nicht auch die religiöse Diskriminierung einbeziehe (S. 167), was ursprünglich beabsichtigt war, dann aber unterblieb, um den arabisch-israelischen Konflikt nicht zu erfassen. 3. Bei den sprachlichen Minderheiten stellt sich in ähnlicher Weise das Problem einer positiven Förderung durch den Aufenthaltsstaat, insbesondere durch die Einrichtung von muttersprachlichem Unterricht in öffentlichen Schulen. In dieser Beziehung sind die weltweiten Instrumente außerordentlich zurückhaltend. Selbst in der KSZE hielt man es für ausreichend, den Angehörigen von Minderheiten freizustellen, einen Antrag auf Subventionierung von Privatschulen zu stellen. I m Europarat liefen allerdings Bestrebungen, die wesentlich darüber hinausgehen (B. de Witte, S. 279). Auch nur in wenigen Einzelstaaten werde in öffentlichen Schulen in der Muttersprache von Minderheiten unterrichtet, wenn auch gleichzeitig die Staatssprache berücksichtigt wird. Außer Südtirol wird vor allem Ungarn genannt (Valki, S. 456), während sich auch gerade in letzter Zeit in anderen Staaten erhebliche Rückschläge vollzogen (ders., S. 441 -452 vor allem zu Rumänien, aber auch zur Tschechoslowakei und der Ukraine). N u r selten gelang es, die Forderungen sprachlicher Minderheiten auf Gebrauch ihrer Sprache in Gerichtsverfahren durchzusetzen (auch in Südtirol erst neuerdings), während ihr Zugang zum öffentlichen Dienst durch die Freizügigkeit nach europäischem Gemeinschaftsrecht nicht gerade gefördert wurde (aufschlußreich B. de Witte, S. 298).

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O b den geschützten Minderheiten als „Völkern" ein Recht auf Selbstbestimmung mit einem eventuellen Sezessionsrecht zustehe, wird in den Beiträgen überwiegend verneint. Besonders hervorzuheben sind die Ausführungen von M. N. Shaw (S. 5), daß der Begriff des „Volkes" im soziologischen Sinne von dem im juristischen Sinne scharf zu unterscheiden sei. Bei einer juristischen Definition dürften die aus ihr herzuleitenden Folgerungen nicht unberücksichtigt bleiben. Allenfalls stehe der Minderheit eine gewisse innere Selbstbestimmung zu (ders., S. 8, ähnlich S.J. Roth, S. 116 und N. Lerner, S. 221 für Urbevölkerungen). Daß Kartashkin (S. 380) dem damals nicht zustimmen konnte, ist nicht verwunderlich. Er fühlte sich den Lehren Lenins verpflichtet, die auch Eingang in verschiedene sowjetische Verfassungen fanden. Hingegen sind die Ausführungen von F. Capotorti (S. 510 oben mit Fußnote 9) schwer mit seinen sonst geäußerten Auffassungen vereinbar. Den Gruppen von Ureinwohnern wird allerdings mehr oder weniger deutlich ein Recht auf Selbstbestimmung zugesprochen (J. Sheleff\ S. 313; C. Sh ach or- Landau, S. 340). Wie das praktisch verwirklicht werden soll, bleibt allerdings offen. IV. 1. I m Rahmen des traditionellen Minderheitenschutzes (s. Artikel 27 CCPR) werden nur den Angehörigen der Gruppe Ansprüche oder Rechte zugestanden, nicht den Gruppen als solchen. Daran hält auch die neue Erklärung der Generalversammlung (gemäß Res. Nr. 47/ 135 vom 18. Dezember 1992) fest, obwohl von den Antragstellern versucht worden war, Gruppenrechten einen weiteren Raum zu gewähren (dazu F. Capotorti, S. 507). Die endgültige Fassung lag allerdings noch nicht vor, als die Beiträge entstanden. Ein Individualschutz wurde jedoch gewährt, um mittelbar die Gruppe als solche zu schützen. Die den Individuen zuerkannten Rechte werden in der Regel auch nicht isoliert, sondern in Gemeinschaft mit Gruppenmitgliedern wahrgenommen und wirkten sich daher auch auf den Status der Gruppen aus (ders., a. a. O.), ohne die Stellung der einzelnen Mitglieder zu mindern. Sie allein entschieden auch über ihre Mitgliedschaft in der Gruppe, der ein Mitspracherecht abgesprochen wird (ders., S. 509 — anders wohl bei Ureinwohnern). Wenn in KSZE-Dokumenten ein Recht auf Kontakte mit stammverwandten Minderheiten in anderen Ländern eingeräumt werde, so sei dies als Gruppenrecht zu verstehen (M. Tahory, S. 208). Daß Y. Dinstein auch generell der religiösen Gruppe ein Kollektivrecht zuerkennt (S. 157), wurde schon erwähnt. 2. Ein wesentlicher Teil des Minderheitenschutzes wird schon durch die Garantien von Menschenrechten und das weitgehende Diskriminierungsverbot gewährt. Die praktischen Fälle, welche das Diskriminierungsverbot im Minderheitenbereich erfaßt, werden von Y. Dinstein (S. 164-168) untersucht. Außerdem steuern die Beiträge über den Abbau von Rassenschranken in den USA (L. C. Bollinger, S. 171 -185; A Soifer, S. 233-275) reiches Anschauungsmaterial bei. U m den Angehörigen dieser Gruppen allerdings nicht nur die Rechtsgleichheit mit anderen Personen zu gewährleisten, sondern ihren besonderen Interessen zu entsprechen, bedarf es besonderer Vorkehrungen, um sie vor Versuchen einer Assimilierung zu schützen und auch den Aufenthaltsstaat zu unterstützenden Maßnahmen zu verpflichten. Diese sind nicht als unzulässige Privilegien anzusehen (S.J. Roth, S. 94/95). Mehrfach wird die These vertreten, es bestehe ein Unterschied zwischen dem Individualschutz gegen Diskriminierung (gemäß Artikel 26 CCPR) und dem spezifischen Schutz der Minderheiten vor Unterdrückung ihrer Identität. N u r für diesen komme ein Gruppenschutz in Betracht.

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3. Das Verhältnis zwischen dem allgemeinen Menschenrechtsschutz und dem spezifischen Minderheitenschutz nimmt einen breiten Raum ein. Daß dieser spezifische Schutz notwendig sei, bejaht R. B. Bilder (S. 73), da nicht alle Staaten an die universellen Menschenrechtskonventionen gebunden seien, diese nur einen schwachen Schutz gegen Verletzungen gewährten und auch den besonderen Bedürfnissen von Minderheiten nicht ausreichend Rechnung trügen. U m vorhandene Lücken zu schließen, wird es für hilfreich gehalten, auf naturrechtliche Gedanken zurückzugreifen (A. P. Rubin, S. 33-36). Hingegen setzt sich S. Rosenne (S. 513 516) dafür ein, künftige Regelungen auf die besonderen Bedürfnisse einzelner Minderheiten zuzuschneiden, wie dies mit Erfolg in der Völkerbundszeit geschehen sei. Obwohl die Schrankenklauseln der Menschenrechtsgarantien für den Minderheitenschutz nicht ausdrücklich für anwendbar bezeichnet sind, seien sie doch zu berücksichtigen, wenn auch gewisse in den Klauseln gewählte Kriterien — wie „nationale Sicherheit" und „öffentliche Ordnung" — nur mit großer Vorsicht zur Einschränkung der Religions-, Meinungs-, Versammlungs- und Vereinigungsfreiheit anzuwenden seien, um nicht als Vorwand für eine aktive Assimilierungspolitik mißbraucht zu werden (S.J. Roth, S. 114; Y Dinstein, S. 161162 und S. 151). 4. Wie die bilateralen Verträge aus der Völkerbundszeit deutlich erkennen lassen, wird eine staatliche Unterstützung der Sprachenfreiheit als dringendstes Anliegen angesehen. Auf diesem Gebiet geben die internationalen Instrumente aller Ebenen bisher wenig her. Allerdings wurde nachzuweisen versucht, aus der Europäischen Konvention lasse sich sehr viel mehr entnehmen als die Kontrollorgane bisher erkannt hätten (eindrucksvoll B. de Witte, S. 279 - 287). O b die im Europarat und der KSZE diskutierten Anregungen einen wirksameren Schutz gegen Assimilierungstendenzen gewähren, ist noch offen. Der Beitrag über den Minderheitenschutz in der KSZE (M. Tabory, S. 187-211) konnte noch nicht die Ergebnisse des Kopenhagener Treffens vom 29. Juni 1990 berücksichtigen. Obwohl dort auf staatliche Unterstützungsmaßnahmen großer Wert gelegt wurde, konnte auch dort nicht dem Anliegen entsprochen werden, Kontakte außerhalb des Mitgliederkreises der Konferenz zu ermöglichen — so von Juden in der Sowjetunion mit Israel (M. Tabory, S. 193-194). Es wird als nachteilig angesehen, daß es den sprachlichen Minderheiten weitgehend überlassen bleibe, selbst für Erziehungseinrichtungen in der Muttersprache zu sorgen und ihnen noch nicht einmal ein Anspruch auf Subventionen durch den Staat zustehe. M i t Recht machten sie geltend, eine Unterrichtung über die Muttersprache ersetze nicht den Unterricht in ihr (S.J. Roth, S. 102-105). Eine besondere Situation besteht in der Sowjetunion. Dort hält eine ältere Generation der beträchtlichen jüdischen Minderheit, die dort zu bleiben bereit ist, an der jiddischen Sprache und Kultur fest, während die jüngeren Mitglieder es vorziehen, hebräisch zu lernen, um sich auf eine Auswanderung nach Israel zu rüsten (Z. Magen, S. 415 ff.). Die bei Abfassung des Berichtes noch gehegten Erwartungen, es könnten jährlich 400.000 Juden aus der Sowjetunion in Israel aufgenommen werden, haben sich im erwarteten Umfang nicht erfüllt, da Wohnungen und Arbeitsplätze in Israel fehlten. 5. Ob und in welchem Umfange Minderheiten autonome Zuständigkeiten in Anspruch nehmen können, stellt sich für die religiösen Gruppen, welche Fragen des persönlichen Status ihrer Mitglieder selbst regeln, anstatt sie staatlichen Stellen zu überlassen (Islam und mosaische Religion). Für die islamische Gemeinschaft in Israel „zwischen Hammer und Amboß" behandelt O. Stendel das Verhältnis zwischen religiösem und staatlichem Recht am Beispiel der Gleichheit von Mann und Frau, des ehelichen Mindestalters und der Vielehe (S. 370-375).

35 GYIL 36

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Wie der Oberste Gerichtshof Israels entschieden habe, setze sich das religiöse Recht gegenüber dem staatlichen nur durch, soweit es gewisse Verhaltensweisen nicht nur erlaube, sondern ausdrücklich gebiete. Fordern Minderheitengruppen eine allgemeine Rechts- und Verwaltungsautonomie, um ihre kulturellen Anliegen besser durchsetzen zu können, dann habe der Aufenthaltsstaat darüber nach internem Recht zu entscheiden. Völkerrechtlich bestehe kein Anspruch darauf (K. Hailbronner, S. 141). Hinsichtlich der Urbevölkerung wird diese Frage — insbesondere in bezug auf die Weitergeltung von Stammesrecht — teilweise anders beurteilt (L. Sheleff, S. 313, 324; G Shachor-Landau, S. 340 zu Australien; N. Lerner, S. 217).

V. Ethnische, religiöse und sprachliche Minderheiten sind der Rechtsordnung des Aufenthaltsstaates unterworfen, woraus sich gewisse Pflichten ergeben, ohne daß diese einer besonderen Regelung bedürften (skeptisch Roth, S. 116). So verlangten die Behörden in Australien bis vor kurzem, daß auch die Ureinwohner die im Lande geltenden Gesetze ausnahmslos befolgten (G Shachor-Landau, S. 327) und Israel gewährte Minderheitenparteien eine Teilnahme an Wahlen nur, wenn sie den jüdischen Staat Israel und seine demokratische Ordnung anerkennen (O. Stendel, S. 365). Dennoch wurde eine ständig steigende Zahl von Minderheitengruppen entweder durch ihre Unterdrückung oder aber auch nationalen oder religiösen Fundamentalismus dazu bewogen, in unterschiedlichen Formen Gewalt gegen die Inhaber von Staatsgewalt auszuüben und dadurch Schrecken und Furcht unter der Bevölkerung zu verbreiten. Y. Alexander zeichnet (S. 341-354) ein erschreckendes Bild des Minderheitenterrorismus, der sich in Zukunft eher vermehren denn vermindern werde. Wenn ein Staat gezwungen ist, in solchen Fällen Notstandsmaßnahmen zu ergreifen, hat er sie gemäß Artikel 4 CCPR dem Generalsekretär der Vereinten Nationen zu notifizieren. Das tat z. B. Jugoslawien wegen der Ubergriffe der Albanier gegen serbische Mitbürger im Kosovo (Dimitrievic, S. 431-433). Seine Maßnahmen dürfen allerdings keinen diskriminierenden Charakter haben, und deswegen ist es in einem derartigen Fall unzulässig, den Unterricht in der Minderheitensprache — auch in öffentlichen Schulen — zu suspendieren.

VI. Die Chancen einer Durchsetzung des Minderheitenschutzes gegenüber den auf ihre Souveränität bedachten Staaten auf der Grundlage des zur Verfügung stehenden Instrumentariums wird überwiegend skeptisch beurteilt (A. P. Rubin, S. 48; R. B. Bilder, S. 74 ff.; S. J. Roth, S. 116), wenn auch die etablierten Berichtssysteme nicht wirkungslos geblieben seien und auch eine Übernahme internationaler Schutzpflichten in das innerstaatliche Recht eine wesentliche Unterstützung darstellen könne. Die 1989 von Ungarn erhobene Forderung einer Kodifikation von Minderheitenrechten, zu deren Sicherung ein besonderes internationales Minderheitengericht eingesetzt werden könne, wird befürwortet (S.J. Roth, S. 116). Dieses könne allerdings nur geringere Verstöße bewältigen, während für schwerer wiegende doch auf eine humanitäre Intervention mit Genehmigung des Sicherheitsrates oder auch auf einen Ausbau der Völkermord-Konvention und den Gedanken einer Bestrafung von Verbrechen gegen die Menschlichkeit zurückgegriffen werden solle (Kartashkin, S. 383). Vergegenwärtigt man sich, wie schwach die neue Erklärung der Generalversammlung über Minderheiten ausfiel, erscheint es unwahrschein-

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lieh, daß die Staatengemeinschaft bereit sein wird, so schweres Geschütz aufzufahren, auch wenn Kartashkin auf einige neuere Vorgänge verweisen kann, die in die von ihm angedeutete Richtung weisen. Das imposante Sammelwerk enthält ein umfangreiches Material über den Rechtszustand zu Beginn des Jahres 1990 zusammen mit wertvollen Würdigungen durch sachverständige Autoren. Hervorzuheben ist besonders die gelungene Auswahl lohnender Themen aus verschiedenen Disziplinen durch die Herausgeber. Auf diesem Gebiet haben sich in den letzten Jahren ganz überraschende Entwicklungen vollzogen, die in den Beiträgen noch nicht berücksichtigt werden konnten. Es ist sehr die Frage, ob das als Nachteil gewertet werden sollte. Denn diese Entwicklungen haben selbst bei guten Kennern der Materie Verwirrungen gestiftet, und so mag es auch als ein Vorteil angesehen werden, daß diese Bestandsaufnahme des internationalen Standards durchgeführt wurde, bevor sich die neuen Perspektiven eröffneten. Karl Josef Partsch

Melanges Rene-Jean Dupuy: Humanite et D r o i t International. Editions A. Pedone, Paris 1991, 382 pp. Se sont reuni pour l'honneur de Rene-Jean Dupuy un grand nombre de juristes fameux. Les differents articles referent tous ä l'oeuvre de Dupuy, qui est dedicace primordialement ä Phumanite. Fidele au titre de Pouvrage, les articles concernent en premier lieu les aspects de Phumanite dans le droit international public. I i est interessant d'ailleurs de remarquer les differentes interpretations de la notion d'« humanite». Car c'est ä cause de ces distinctions linguistiques ainsi que politiques que les melanges Rene-Jean Dupuy se pretent ä la discussion d'un grand nombre de problemes du droit international contemporain et historique. Ce qui frappe d'ailleurs, c'est que la notion de droit humanitaire est completement exclue de Pouvrage. I i est ainsi, qu'il y a un grand nombre d'auteurs qui discutent la question, si le droit international se presente premierement dans le cadre d'un droit des nations ou meme un droit de Phumanite. Georges Abi-Saah prend un point de depart plutot historique, en decrivant les concepts de P«humanite» et de la «Communaute internationale» dans Pevolution de la doctrine et de la pratique internationale. Ainsi il releve Pevolution du droit international d'un droit regissant un territoire restreint jusqu'ä un regime universel. Jean Boulois traite cet aspect differemment en presentant dans une maniere plutot historique les idees de Frangois Rene de Chateaubriand concernant la nation, Phumanite et le droit international. Robert Charvin presente le concept de Phumanite en la mettant en relation avec la doctrine sovietique du droit international. Benedetto Conforti dans sa contribution souleve que l'ouverture du droit international sur les besoins de Phumanite cause un renouveau de la production normative dans ce domaine. Pierre-Mary Dupuy presente un discours plutot doctrinaire en discutant les interrelations entre humanite, communaute et efficacite du droit. Marcel Merle procede en proposant le concept de transnationalite pour mieux pouvoir introduire justement le concept de Phumanite dans le droit international. En mettant justement la valeur sur la notion de Phumanite, Oscar Schachter regarde celle-lä justement ä Porigine du droit international de l'environnement. Charles Zorgbibe presente un discours sur les Etats-Unis et l'heritage wilsonien en mettant en cause s'il s'agit lä d'une veritable communaute internationale ou simplement d'un concert des grands. En dernier dans ce groupe d'auteurs, il faut ajouter Particle de fonds de Thomas M. Franck qui discute les relations entre justice et legitimite dans le systeme international. Les contributions susmentionnees demontrent bien, que la

3*

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notion d'humanite se trouve ä Porigine de bien de preoccupations dans le domaine du droit international. Une deuxieme categorie de contributions concerne le concept du patrimoine commun de Phumanite. Daniel Bardonnet fait un recit historique en declarant la premiere apparition de ce concept dans le Pro jet de Convention de 1912 sur le Spitsberg. Claude-Albert Colliard traite le concept du patrimoine commun en Pexpliquant ä travers les exemples de l'espace extra-atmospherique et des grands fonds marins. Gilbert Guillaume ajoute le Statut de Pantarctique en reflechissant sur quelques problemes recents. Jean Touscoz prend une vue plus large en traitant la souverainete economique, la justice internationale et le bien commun de Phumanite. Le seul ä traiter le probleme de Passistance humanitaire est Mario Betatti qui met en valeur les tensions entre la souverainete et Passistance humanitaire en discutant la Resolution 43 / 131 de l'Assemblee Generale des Nations Unies. U n grand nombre d'auteurs s'occupent des droits de l'homme. En premier, Antonio Cassese discute la valeur actuelle des droits de l'homme. Gerard Cohen-Jonathan fait quelques observations sur le Comite des Droits de l'Homme des Nations Unies. Maurice Flory plaide pour un droit social international. Jean Imbert dans sa contribution prend un point de vue historique en decrivant la capacite de l'etranger de succeder en France entre 1789 et 1804. La question qu'il souleve est celle, s'il s'agit lä d'une concession humanitaire ou interessee. Paul Isoart procede egalement historiquement. I i presente un aspect de l'histoire des droits de l'homme en France entre 1880 et 1912. (La Republique conquerante (1880 — 1912): Droits de l'Homme ou Droits de la France). Keba Mbaye presente un rapport sur les tensions entre les Droits de l'Homme et les interets des pays en voie de developpement. Guiseppe Sperduti revitalise une vieille discussion sur la notion des droits et obligations de caractere civil dans Particle 6 § 1 de la Convention Europeenne des Droits de l'Homme. Nicolas Valticos examine les niveaux et etapes de la protection universelle des droits de l'homme en mettant en valeur les differentes collectivites, soit la Nation, l'Etat, la region et la communaute universelle. Georges Vedel fait un discours plutot conceptionnel en enquetant le contenu des droits de l'homme et leurs destinataires. En tout, la section « Droits de l'Homme» est bien assortie. D'autres auteurs prennent un point de vue plutot regional. Daniel Vignes discute les accords Lome I I I et I V en mettant le point capital sur la vue humaniste, soit les benefices des individus. Boutros Boutros Ghali presente une contribution sur l'histoire et les achevements de l ' O U A . Jean-Pierre Cot discute l'integration europeenne en discutant les pouvoirs et l'impuissance du Parlement Europeen. Joel Rideau dispute la notion des communautes de droit envers celle des etats de droit, en se referant en premier lieu ä la Communaute Europeenne. Une derniere groupe a decerner est celle qui s'occupe des juridictions internationales. Sir Robert Jennings contribu avec un article sur les Chambres de la Cour Internationale de Justice et des cours d'arbitrage. Manfred Lachs dans quelques aspects fait une replique en donnant quelques commentaires des Chambres A d Hoc de la Cour Internationale de Justice. A part des groupes d'auteurs assez homogenes decrit au-dessus, il faut mentionner aussi les articles qui se veulent plutot philosophiques ou tout simplement explicateur de l'oeuvre de Rene-Jean Dupuy. Maurice Torelli fait un discours interessant en comparant la Strategie juridique ä la Strategie militaire. Antonio Truyol y Serra decrit la vision de Leibniz sur l'Europe. C'est Claude Nigoul qui presente les maitres de Rene-Jean Dupuy dans sa profession

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et sa vie privee et fait de sorte de montrer sa conception du federalisme. Hubert Thierry enfin fait des reflexions sur la pensee de Rene-Jean Dupuy. Les hommages Rene-Jean Dupuy dans leur conception se presente en tant qu'etude complet sur Pimportance de la notion de Phumanite dans le droit international contemporain. Toutes les contributions sont d'une qualite extraordinaire, et c'est un plaisir d'en lire et d'en prendre des propos pas encore connus. Ces hommages sont vraiment dignes ä Poeuvre de Rene-Jean Dupuy. Wolf Plesmann

The Earth Summit: The United Nations Conference on Environment and Development ( U N C E D ) , Introduction and Commentary by Stanley P. Johnson. Graham & Trotman / Martinus Nijhoff, London et al. 1993, 532 pp. O n 3-14 June 1992 the United Nations Conference on Environment and Development ( U N C E D ) was held in Rio. Some 175 nations were represented; around 100 heads of States or governments attended; many ministers participated during the whole conference; and 1500 N G O s were officially accredited. I t is no small surprise that the conference, covered by more than 7000 journalists, was called the Earth Summit. Two international treaties were opened for signature at Rio: The United Nations Framework Convention on Climate Change, and The U N E P Convention on Biological Diversity. I n addition, U N C E D adopted three legally non-binding documents: (1) the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of A l l Types of Forests, (2) the Rio Declaration on Environment and Development, and (3) the 600 pages-strong Agenda 21. However, U N C E D was not only an event which produced certain results but also a remarkable negotiation process. It began on 22 December 1989 when the U N General Assembly adopted Res. 44/228 establishing U N C E D . Between December 1989 and June 1992, four meetings of the Preparatory Committee (PrepCom I - I V ) took place (Nairobi, August 1990; Geneva, March 1991; Geneva, August 1991; New York, April 1992). There were intense negotiations at the PrepComs but many issues could not be solved and were submitted for discussion and final negotiation at Rio. Stanley P. Johnson attempts w i t h the present volume to elucidate the Earth Summit in Rio as an event and, in particular, the U N C E D process (p. 9). Clearly, he has succeeded in this attempt. The method used by Johnson was to assemble the most important documents which are available in the public domain. They include, first of all, the above mentioned official documents adopted at Rio (sometimes also previous drafts). It is worth mentioning that Agenda 21 is reproduced in its entirety; in fact, it makes up the bulk of the present volume (125-508). Furthermore, selected ancillary material is reproduced; for example three documents of April 1992: the "Tokyo Declaration on Financing Global Environment and Development" adopted by a so-called "Group of Eminent Persons" which came together in Tokyo on the invitation of the Japanese Prime Minister, the "Kuala Lumpur Declaration on Environment and Development" adopted by the G77 countries, and finally a "list of clear and unavoidable next steps" issued by the World Commission on Environment and Development which re-convened in London. However, the present volume is more than a mere compilation of documents. Johnson provides a wealth of background and insightful information. He points out where, and why, conflicting views on certain issues existed (and continue to exist). I n his introduction he

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gives a general overview of U N C E D and the road to Rio. I n addition, he comments on particular issues in the respective sections of the volume. I n particular, each chapter of Agenda 21 is headed by an introductory comment. Johnson, who is not only the author of several books on environmental law and policy but has also written eight novels, correctly remarks that the U N documents are, despite their often lively subjects, written in "bland, polysyllabic bureaucratese" and that even the Rio Declaration is "from a purely literay point of view distinctly dull" (9). His own narrative style, in contrast, is straightforward, clear-cut, and lively. Two examples: "Agenda 21 is in reality the softest of all 'soft law', exhortatory in nature, a cafeteria where self-service is the order of the day."; and on the European Community Johnson comments that it "may . . . find a way out of its current constitutional muddle without sacrificing its environmental vocation on the altar of 'subsidiarity,' — a new form of appeasement and one which in the long run is likely to be just as pernicious for the environment as Munich was for peace." Johnson entitled his introduction: " D i d we really save the earth at Rio?" He lists the issues on the credit side as well as those on the debit side (in particular, the failure of Rio to strike the so-called "global bargain" as one of the most important issues of U N C E D ) . But Johnson does not try to answer the question as he believes that the only way to find an answer "is to look beyond the immediately tangible results, to wait and see what actually happens on the ground and in the air and oceans" (8). The present volume is recommended to anybody who is interested in U N C E D in particular, and international law and politics on environment and development in general. It w i l l enhance the reader's understanding of the underlying issues, and could, thus, contribute to a successful continuation of the U N C E D process so that Johnson's question might, eventually, be answered in the affirmative. Georg M. Berrisch

P. K. Menon: The Succession of States in Respect to Treaties, State Property, Archives and Debts. The Edwin Mellen Press, Lewiston / Queenston / Lampeter 1991, 265 p. The emergence of new States in the territory of the former Soviet Union and the former Yugoslavia, the unification of Germany, the break-up of the former Czech and Slovak Federal Republic and, recently, the secession of Eritrea from Ethiopia, have once again raised difficult questions as to the current law of State succession. Thus, a book like Professor Menon's treatise on State Succession in Respect of Treaties, State Property, Archives and Debts could be said to have appeared at the right moment, especially as — in the author's own words — "perhaps no branch of international law has produced more uncertainty and disagreement than the law of state succession." The book combines a series of four articles that the author had published earlier in the Revue de droit international et de sciences diplomatiques et politiques (vols. 59/1981, 64/ 1986, 65/1987) and in the Boston College Third World Law Journal, all of which are reprinted virtually unchanged. Despite what the title might suggest, the book does not deal w i t h the law of State succession in general, but focusses on the 1978 Vienna Convention on Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts. Professor Menon presents their context and main features in a concise and clear manner, referring to examples of State practice in this field as laid out in the reports of the International Law Commission's Special Rapporteurs. The four main chapters follow the structure of the conventions, and two appendices provide the texts. The book is completed by a selected bibliography and an index.

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Although the main emphasis of the book is the Vienna Conventions, the author does not elaborate on the fact that a number of their provisions were highly controversial among States participating at the Vienna Conferences and that their adoption was far from being unanimous (with the 1983 Convention, 54 States voted for and 11 against the final text and 11 States abstained). Neither does the book discuss the far-fetched criticism that both conventions have drawn in recent years. Menon also does not mention that in the meantime the 1983 Convention on Property, Archives and Debts has received only six signatures — all of them during the first two years after its adoption — and no more than a single ratification (Estonia, in 1991). The record of the 1978 Convention is only slightly better after 13 years: it has nine parties and 16 signatories as of 31 December 1991. This reluctance of States to accept the provisions of the Vienna Conventions raises doubts as to whether the elaboration of these texts has contributed to the progressive development of international law in this field. As the 1983 Convention is far from entering into force (15 ratifications/accessions are required), the attempt to codify the law of State succession in respect of property, archives and debts can well be "accounted a failure" (Sinclair). Whereas it is widely accepted that even an "unratified" multilateral treaty may reflect, or help to consolidate, customary international law, it is by no means clear whether and to what extent the Vienna Conventions or portions of them actually do belong to this category of treaties, given the open discord at the 1983 conference and the striking inconsistencies of State practice in this field. A book on the State succession in treaties, property, archives and debts, published in 1991, should not overlook these problems. The least one could have expected is an up-date of the selected bibliography. As it stands, its most recent article dates from 1979, leaving out a number of important commentaries that have appeared since then. The Vienna Conventions w i l l certainly remain an important reference for anyone having to deal w i t h legal questions arising from succession of States, and in this respect Menon's book will serve as a good guide. However, as the two Conventions do not represent the law of State succession, the reader w i l l have to look elsewhere in order to establish the status of customary international law in a field which w i l l continue to be highly problematic both from a doctrinal and a practical point of view. Thomas Titschen Hans von der Groeben / Jochen Thiesing / Claus-Dieter Ehlermann: Kommentar zum EWG-Vertrag, 4 Bde., 4. neubearb. Aufl., Baden-Baden, Nomos Verlagsgesellschaft, 1991, 6449 S., gbd. Der Kommentar zum EWG-Vertrag von von der Groeben ist ein Werk, das dem Leser nicht mehr vorgestellt zu werden braucht, wenn er sich auch nur am Rande einmal mit dem Europarecht befaßt hat. Vom Umfang her ist er in der neuen Auflage die mit Abstand ausführlichste Kommentierung des wichtigsten der drei Gemeinschaftsverträge; doch auch was das Gewicht seiner Autoren bei der praktischen Anwendung des Gemeinschaftsrechts betrifft, im Regelfall Beamte aus den Führungsebenen der Kommission, so setzt das Werk beeindruckende Maßstäbe. Der früher ausschließlich deutschsprachige Autorenkreis umfaßt nunmehr — und das ist zu begrüßen — auch Angehörige anderer Mitgliedstaaten und gewinnt dadurch an Repräsentativität. Was schließlich die Qualität der Kommentierung betrifft, so steht sie den ausgezeichneten Vorauflagen in nichts nach; das Werk wird, was die Darstellung und Analyse des geltenden Gemeinschaftsrechts unter Berücksichtigung der Judikatur betrifft, seiner Funktion in hervorragender Weise gerecht. Die seit dem Erscheinen der Vorauflage 1983 zu verzeichnende Entwicklung des Gemeinschaftsrechts und die vielen zum Teil umfangreichen Änderungen und Ergänzungen des

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EWG-Vertrages (EWGV) — genannt seien etwa die Einführung der Artikel 8a und 100a E W G V sowie der Titel über den wirtschaftlichen und sozialen Zusammenhalt, Artikel 130 a-e EWGV, über Forschung und technologische Entwicklung, Artikel 130 f - q EWGV, und über die Umwelt, Artikel 130 r - t E W G V — haben dazu geführt, daß die Neuauflage des Kommentars im Umfang weit über die 3. Auflage hinausgeht und jetzt vier Bände umfaßt. Einzelne Kommentierungen, wie etwa die Darstellung des Wettbewerbsrechts (von Schröter, Meng, Wenig, Drauz, Jakob-Siebert und Hochbaum) nebst den dazugehörigen Texten des Sekundärrechts (ca. 1300 Seiten) oder der Abschnitt über den Umweltschutz (Krämer) erreichen geradezu einen monographischen Umfang. Auch die neue Kommentierung des Artikel 168 a EWG-Vertrag betreffend das Gericht erster Instanz (Jung) ist hier zu nennen, die eine ausgezeichnete und umfassende Darstellung der Zuständigkeiten, des Verfahrens und der institutionellen Fragen betreffend dieses Gericht enthält. Behandelt wird auch die Einheitliche Europäische Akte (Hilf / Pache, Servantie, 6059 ff.), so daß der Kommentar sich wie auch bislang schon in einzelnen Bereichen über den EWG-Vertrag hinaus zu einem Kommentar auch weiterer primär- und sekundärrechtlicher Bestimmungen des Gemeinschaftsrechts entwickelt. Für die nächste Auflage läßt sich angesichts des Vertrages von Maastricht schon jetzt absehen, daß diese Tendenz anhalten wird. I n der Tat läßt sich nur auf diese Weise der engen Verzahnung von Regelungen Rechnung tragen, die in unterschiedlichen Rechtsakten niedergelegt sind. Allerdings bedingt die wohl unvermeidlich eklektische Vorgehensweise, daß der Kommentar in bestimmten Bereichen unter detaillierter Einbeziehung von Sekundärrecht und Judikatur enzyklopädisch angelegt ist, so bei den Artikeln 85 ff. EWG-Vertrag, während andere Gebiete des Gemeinschaftsrechts, etwa das Zoll- (Beschel/ Vaulont, Lux), das Regionalförderungs- (Beschel) und das Landwirtschaftsrecht (Kummer), nur im (allerdings ausgezeichneten) Uberblick dargestellt werden. Einzelheiten zu den hier aufgeworfenen praktischen Rechtsfragen bei der Anwendung des in diesen Bereichen inzwischen maßgeblichen Sekundärrechts und die diesbezügliche Judikatur des Gerichtshofes werden der Spezialliteratur überlassen. Als nicht unproblematisch erscheint auch die Gewichtung innerhalb einzelner Abschnitte: während die Fischereipolitik in einem eigenen Abschnitt neu auf 27 Seiten dargestellt wird (Booß), widmet der Kommentar den Ausfuhrerstattungen lediglich die Seiten 637-40. Die Kommentierung ist von hoher Aktualität. Zum Teil sind sogar noch Urteile aus dem Jahre 1991 berücksichtigt worden; so wird etwa in der Kommentierung zu Artikel 100 a EWG-Vertrag noch auf das Urteil des Gerichtshofes in der Rs. C-300/89, das sog. Titandioxid-Urteil, hingewiesen (Rn. 50). Für jeden, der sich mit dem Europarecht befaßt, ist der Kommentar daher ein unerläßliches und zuverläßliches Hilfsmittel und eine Fundgrube für die mittlerweile kaum noch überschaubare Kasuistik des Gerichtshofes zu den einzelnen Vorschriften des Vertrages wie zu einer Vielzahl sekundärrechtlicher Bestimmungen. Dies gilt insbesondere auch für den sehr praxisrelevanten Bereich des Artikel 30 (neu bearbeitet von Müller-Graff) und ebenso für die Kommentierung des Artikel 48 (neu bearbeitet von Wölker). I m Rahmen einer Rezension ist es naturgemäß nicht möglich, im einzelnen zu der großen Vielzahl inhaltlicher Fragen Stellung zu nehmen, die in dem Werk behandelt werden und jede Kommentierung einzeln zu würdigen. Je nach der Ausrichtung des Lesers wird sich sein Interesse mehr dem einen oder anderen Sachgebiet zuwenden. Nach einem guten Jahr nahezu täglicher praktischer Arbeit mit dem Kommentar auf einer Vielzahl unterschiedlicher Gebiete des materiellen und des institutionellen Gemeinschaftsrechts läßt sich jedoch aus der Sicht des Rezensenten nur uneingeschränkt Positives feststellen. Selbst wenn man im Einzelfall die vom jeweiligen Autor vertretene Rechtsauffassung nicht stets teilt, so wird sie

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doch immer wohl begründet und unter Heranziehung der einschlägigen Rechtsprechung dokumentiert. Insgesamt handelt es sich bei dem Kommentar daher um ein unentbehrliches Standardwerk, daß im besten Sinne des Wortes als „Großkommentar" bezeichnet zu werden verdient. Hans-Joachim Prieß

Armand Glesse / Raymond Vernon (eds.): The European Community after 1992: A New Role in'World Politics? Nomos-Verlag, Baden-Baden 1991, 570 pp. The European Community, which was created as an economic organization and has become a major economic force in the world, over the last years reached out to complement the economic integration with political cooperation among its member States. H o w far this cooperation goes and how it is likely to develop is dealt with in a compilation edited by Glesse and Vernon. This book contains numerous articles scrutinizing the EEC's role in world politics before and after 1992, the date set out in the Single European Act to achieve an internal market. It results from a conference held in Luxembourg City in May 1990 which more than 200 scholars, officials from governments and international organizations but also students from all over Europe attended. I n its first part different authors discuss the prospective development of the organizational framework of the European Community and the external challenge the Community has to face. Various contributions outline how a political union can be achieved and a common foreign and defence policy be pursued. The second part goes on to examine the EEC's relationship with non-EEC countries in detail. Contributions to this part try to figure out how the relationship w i t h the United States, Eastern European, Asian, Latin American, African, and Mediterranean countries w i l l develop. Finally, in the third part a number of articles attempts to evaluate the policies of the Community, such as the trade policies, the monetary policies, and the environmental policies, to name only a few, in a global setting. The contributions to this book together cover a variety of aspects of the EEC's role in world politics and are, as the list of contributors shows, written by experts. However, two major deficiencies of this compilation cannot be neglected. First, because of the brevity of the articles, the analysis in some lack sufficient depth. Second, as the editors in their foreword explain already, most of the contributions to this book were submitted in mid-1990 and only a few were updated, so that neither the changes in the former Soviet Union or former Yugoslavia, nor the signature of the Maastricht Treaty could be considered. Despite these deficiencies the book contains a number of valuable proposals for the formation of a political union and a better integration of the EEC into world politics which could serve as a guideline for European policy-makers. Michael Hempel

Ignaz Seidl-Hohenveldern Berlin 1992, 434 S.

(Hrsg.): Lexikon des Rechts, Völkerrecht, 2. Aufl., Neuwied /

The second edition of this encyclopedia is an extremely useful compilation of articles covering almost every subject of public international law. As the editor has indicated in the preface, public international law has gained much importance in recent years. I n comparison to the first edition, some subjects of the encyclopedia have been considerably enlarged, for example the whole law of cooperation, especially the institutionalized cooperation in the

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framework of the United Nations and international environmental law. The encyclopedia contains concise articles which makes it especially useful for the researcher and practitioner. For example, the articles on international treaties (in general, 356-363 by Rudolf Geiger); capacity to conclude treaties (364-372 by Dieter Blumenwitz); treaty-making procedure (373-384 by Theo Öhlinger); and interpretation of treaties (385-389 by Rudolf Bernhardt ), give a very precise overview on the law of treaties. The encyclopedia also contains useful and current articles on the law concerning asylum (1-14 by Norbert Wühler), the law of foreigners (20-24 by Karl-Matthias Meessen), the law of extradition (25-26 by Otto Kimminich), an overview of Germany's legal situation since 1945 which already includes the most recent historical events concerning Germany's reunification (40-51 by Dieter Blumenwitz), the law of diplomats and diplomatic protection (52 - 62 by Hermann Meyer- Lindenberg / Ignaz Seidl-Hohenveldern and Georg Ress), sovereignty (293-295 by Ignaz Seidl-Hohenveldern) and international organisations (145-154 by Rüdiger Wolfrum). This book can be strongly recommended and it is to be hoped that an English edition of this very useful book w i l l be provided by the publisher. Stephan Hobe Bess C. M. Reijnen: The United Nations Space Treaties Analysed. Edition Frontierres, Gif-sur-Yvette 1992, 313 pp. The latest book from Gisberta Reijnen of Utrecht University Faculty of Law, a renowned writer of international space law, offers a very helpful analysis of the basic space treaties negotiated in the United Nations. The fact that six major international treaties concerning the peaceful use of outer space have been concluded by the United Nations, is a vivid example of the activities carried out in the past by the General Assembly of the United Nations, in general, and the Committee on the Peaceful Uses of Outer Space w i t h its two subcommittees, in particular. It is evidence of the fact that the United Nations has taken up a specific responsibility for the progressive development of international space law. The book is structured into seven chapters and also contains a selective bibliography. After an introductory chapter on the background and history of the United Nations space treaties, several international treaties and agreements are analyzed in detail: the Nuclear Test Ban Treaty of 1963, the Outer Space Treaty of 1967, the Rescue Agreement of 1967, the Liability Convention of 1971, the Registration Convention of 1974, and the Moon Agreement of 1979. The author starts w i t h a general chapter which provides the background and history of the United Nations Space Treaties. As the author has correctly stated in her introduction, space law has to a great extent been shaped by notions derived from the law of the sea and by provisions of the 1959 Antarctic Treaty. Therefore, the fact that the introductory chapter begins with general comments on the concept of a common heritage of mankind, which to a certain extent has also been introduced into international space law, is in itself very useful. W i t h regard to this the author discusses Article 1 paragraph 1 of the Outer Space Treaty, the 1973 and 1982 I T U Conventions, and the notion of equity, which is correctly considered to be of key importance to international space law. The notion of equity is explicitly expressed in Article 33 paragraph 2 of the 1982 International Telecommunication Convention, which grants equitable access to scarce resources of the geostationary satellite orbit and frequency bands (12-17). I n addition, a brief history of the United Nations Space Treaties is given (18 25). The documents annexed to the first chapter prove to be most useful, in that they provide an insight into the motives of both the great space powers and the first considerations made in the U N General Assembly in the beginning of space flight.

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I n chapter I I the author discusses provision by provision the Nuclear Test Ban Treaty of 1963. This treaty demonstrates the early perception of both of the great space powers of outer space's potential uses for military purposes. The next chapter, chapter I I I , deals with the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of January 1967, the Magna Charta of Outer Space. The author states correctly (89) that the common interest principle of Article 1 paragraph 1 of the Outer Space Treaty refers to the theory of equitable sharing of benefits gathered from the exploration and use of outer space. This means the sharing of the benefits not only between active space powers but also by taking into consideration the less advanced countries. It can be asked, however, whether mentioning the interest of all countries irrespective of the degree of economic and scientific development really emphasizes formal equality of States or rather asks for material equality. It seems to be the very ratio of this provision to include the rather dynamic concept of imposing an obligation, however weak, upon technologically and economically advanced countries to cooperate with the developing countries in order to avoid a de facto monopoly in the exploration and use of outer space by the former. This is not only the concept of the Outer Space Treaty, but has further been developed by the inclusion of the common heritage principle in the 1979 Moon Treaty of which Article 1 paragraph 1 of the Outer Space Treaty is a legal forerunner. W i t h respect to Article 2 one feels that perhaps a discussion of the customary nature of the non-appropriation principle is missing, a principle which could have consequences for the legal claim of the States which have signed the Bogota Declaration. As the non-appropriation principle has already become a principle of customary international law, those claims would be void anyway. But the author correctly points to the importance of the actual delimitation discussion in the United Nations which might gain momentum with the new technology of the aerospace plane. The discussion of Article 4 correctly states the shortcoming of that provision, namely the non-inclusion of any prohibition covering non nuclear, non mass destruction weapons and the exclusion of outer space, apart from the Moon and Other Celestial Bodies, from the limitation imposed upon the States by that provision. There was, as the author notes (105), a silent understanding between both space powers concerning the least possible restrictions on their freedom to act. Articles 6 and 7 are basically further elaborated in the Liability Convention and Article 8 contains the important obligation of registration for the State having jurisdiction and control over space objects. Article 9 introduces the important prohibition of avoidance of harmful contamination. The author summarizes possible means of pollution such as the overusage of slots and the unlimited use of radio frequencies (126), and the problem of back contamination (127 et seq.), and rightly asks the question, how could harmful contamination be proven. W i t h regard to the great problem of space debris; this is certainly one of the most important questions. I n reference to this problem the author correctly refers to attempts to place the problem of space debris within a legal framework (129). Again, very useful documents are annexed to chapter I I I , for example, the Principles governing the use by States of artificial earth satellites for international direct television broadcasting ( U N G A res. 37/92 of 10 December 1982), the Principles relating to remote sensing from the earth to space, of 3 December 1986, and a list of objects launched in space by different countries. Chapter IV, then, discusses the Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched to Outer Space of 3 December 1968. Here, a

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very interesting discussion of the 1978 Cosmos 954 and the 1991 Saljut 7/Cosmos 1686 accidents is given (164-170). I n chapter V, the author discusses the Convention on International Liability for Damage Caused by Space Objects of 29 November 1971. She introduces parallels between this Convention and the 1952 Rome Surface Damage Convention as regards damage caused by aircraft to the surface of the earth. It is correctly mentioned that the space object definition of Article 1 lit. d is insufficient and causes problems as to the inclusion of space debris (182183). One might ask whether the rather progressive principle of Article 2 of absolute liability has in fact been referred to at several occasions by the International Court of Justice, for example in the Trail Smelter Case and the Corfu Channel Case. But it would also have been of importance to analyse this provision against the background of international customary law and ask the question whether one can already state a regime of absolute liability for ultrahazardous activities. The author, then, correctly points to the importance of the settlement of dispute provisions of Articles 13, 14, 15, 16, 17, 18, 19 and 20. It is well known that these settlement of dispute procedures are the most realistic, although, unfortunately, decisions of the claims commission are only final and binding if the parties have so agreed. I n chapter V I the Convention on Registration of Objects Launched into Outer Space of 12 November 1974 is discussed. The author correctly advocates a mandatory rather than a voluntary registration system. This could be of considerable help to prevent pollution of outer space, or at least, to make uses and users of outer space more transparent. Again, we find an annex to chapter V I , the U N Convention on Conditions for Registration of Ships of 7 February 1986, which in its Article 11 places great emphasis on the contents of a register. Also, documentation concerning the elaboration of principles relevant to the use of nuclear power sources in outer space, which have recently (in 1992) been adopted by the U N General Assembly, is given (256-277). Finally, in chapter V I I , the Agreement governing the Activities of the States on the Moon and other Celestial Bodies of 5 December 1979 is discussed. After the legislative history, the analysis of the agreement highlights the importance of Article 11 of the Moon Agreement. The author correctly points out that an important step has been made in international space legislation by including the common heritage concept in the Moon Agreement although doubts can be raised to the ius cogens quality as stated by the author (307). The author here, could have referred back to her remarks made at the beginning of the book (9-12), where comparisons were made with the inclusion of the common heritage concept in the Law of the Sea Convention. The selected bibliography at the end gives some useful hints w i t h respect to some classical books on space law. I n conclusion, it can be said that the book shows the author's continuing concern with the subject. Some of the analytical parts of the book could be strengthened to make it even more interesting, but the information provided by the author makes this volume a very useful tool for any academic reader as well as for the practitioner. This is even more so, due to the fact that up to now there has been almost no systematic analysis of the outer space treaties in legal literature. For this reason it can be expected that within a short period of time the book by Bess Reijnen w i l l take its place among the standard works in space law. Stephan Hobe

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Bruce Hurwitz: State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects. Martinus Nijhoff Publishers, Dordrecht / Boston / London 1992, 245 pp. The author tackles an extremely current problem, namely that of State liability for outer space activities. Due to the fact that many space orbits are frequented by pieces of uncontrolled space debris, the question of liability for outer space activities is of increasing importance. The author begins with a thorough analysis of the 1972 Convention on International Liability for Damage Caused by Space Objects. I n the second chapter, which deals w i t h terminology, he analyses the concepts of "damage", the "launching State" and "space object". Particularly w i t h respect to the latter, he correctly questions whether abandoned or uncontrolled objects in outer space are also covered by the term space objects. The next chapter deals with the classification of liability. W i t h regard to absolute liability, as stated in Article 2 of the Liability Convention, the author seems to conclude that for ultrahazardous activities a common regime of absolute liability has already been established. He, then, carefully analyses the claims procedure of Articles 8 - 20 of the Liability Convention. He correctly states (60), that the non-mandatory nature of the decisions of the claims commission is a major weakness of the Convention. But he also puts forward a realistic viewpoint; the possibility of granting the Commission the right to reach a binding decision does, at least, exist. I n chapter V I , the author points to the importance of Article 21 for environmental protection and at the same time criticises its weaknesses. I n chapter V I I and V I I I , the applicability of the Convention to international organizations, Article 21 of the Convention and the relationship to other treaties (Article 23 of the Convention) as well as the final provisions of Articles 24-28 are discussed. Chapter X then, provides a conclusion, and deals w i t h proposed amendments to the Convention. The author holds that the concepts of "damage" and "hazard" as contained in Article 21 of the Convention should be interpreted as including indirect damage and injury as well as nuclear damage, electronic damage and damage caused by future space activities developed since 1972 (80). "Space objects", on the other hand, should be interpreted as including any non-natural object and fuel should be considered a component part of a space object. According to the author, decisions of claims commissions should not be postponed without the permission of the parties to the claim, or of the Secretary General of the United Nations if he appointed the chairman that served as a single member commission. The absolute liability regime should be imposed upon such environmental damage, and international organizations should be recognized as having equal international legal personality to that of a State which presents a claim against it. Articles 2 and 3 should be amended to include the fact that the provisions concerning aircraft and flight should be under the fault liability regime and not the absolute liability regime, since aircraft would usually be able to prevent collisions with a space object. The provisions of the Convention regarding environmental protection should be reinforced in order to make it mandatory to cease activities which endanger the international environment. A mandatory insurance system and a compensation fund should be established in order to guarantee payment of compensation to victims of injury or damage caused by space objects. A l l the planned improvements to be realized either by extensive interpretation of existing notions or by amendments to the respective convention are most inspiring and should be seriously considered. Part I I of the book deals with the interpretation of the Liability Convention on the Cosmos 954 incident of 1978. I n chapters X I and X I I the facts of Canada's claim are presented, and

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in chapter X I I I , the applicable law is set out. Although the author states that the Cosmos 954 incident is a reafirmation of the principles established in the Trail Smelter Arbitration, he concludes that the State parties created within the framework of the Convention a regime for international regulation of nuclear materials despite the obvious dangers involved w i t h their use. I n part I I I the work of the United Nations International Law Commission on International Liability for acts not prohibited by international law is discussed. The author makes it clear that the deliberations of the International Law Commission on liability have touched upon a great number of topics which are dealt w i t h in the 1972 Liability Convention including: future agreements ensuring that the victim would not be left without legal recourse, the strict liability regime with limited compensation, the State responsibility for actions by nationals acting as private individuals, terminological dilemmas including the definition of damage, harm and injury, the need for providing information to an injured and threatened State, establishing a fact-finding machinery, holding negotiations in determining the amount of reparations, exoneration from liability, prevention of damage, joint liability, exhaustion of local remedies and revocation of the act of State doctrine, and finally, the role of international organizations. These are summarized in the final chapter where the contribution of a Liability Convention to international law is considered (207-209). The author states that space law in general and the Liability Convention in particular play an important role in the ILC's deliberations. He concludes that the Liability Convention provides a solid basis for the creation of a new regime of liability and that some of the principles established could be applied to other areas as well. I n conclusion, the work to which the documents are annexed, (like the Convention on International Liability, the 1988 and the 1989 Draft Articles submitted to the International Law Commission on International Liability for Injuries, Consequences Arising out of Acts not Prohibited Under International Law) can be warmly recommended to the reader. I t contains an important analysis of basic liability provisions which by their importance transcend the scope of space activities. But as it is well known, space activities are ultrahazardous activities not prohibited by international law, and thus, contribute a great deal to the progressive development of international law in that area. Clarifying these problems is the great merit of this book, which can be strongly recommended to the reader. Stephan Hohe

Karl-Heinz Böckstiegel / Marietta Benkö: Space Law. Basic Legal Documents. Martinus Nijhoff Publishers, 3 Volumes. The work under review contains an important and comprehensive compilation of all relevant materials on international and national space law. It is divided into three volumes. Part A of Volume 1 contains the principal instruments of international space law, for example, the texts of the Outer Space Treaty, the Rescue and Return Agreement, the International Liability Convention, the Registration Convention, the Moon Treaty, and actual space law disputes. Part B of Volume 1 focuses on special areas such as direct television broadcasting and provides all relevant resolutions and conventions as well as (European) cases. It also contains all relevant information on remote sensing. Volume 1, Binder 1/1, contains relevant material on the protection of the environment and the use of nuclear power sources in outer space, as well as materials concerning the use of the geostationary orbit, disarmament treaties and resolutions. Volume 2, Part C deals with the law of international organizations' activities in space. Here, the basic documents of the European Space Agency , the European Telecommu-

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nication Satellite Organization (EUTELSAT), the European Organization for the Exploitation of Meteorological Satellites (EUMETSAT), the International Telecommunication Union (ITU), the International Telecommuncation Satellite Organization (INTELSAT), the International Maritime Satellite Organization (INMARSAT), the Arab Cooperation for Space Communications (ARABSAT), and the International System and Organization of Space Communication (INTERSPUTNIC) are presented. Part D then deals with problems of international cooperation such as the Ariane Launcher Programme, the Spacelab Programme, the COSPAS / SARSAT project, the International Space Station C O L U M B U S and the Mars / Phobos project. I n Part E recourse is made to national legislation. However, the Binders are not merely a collection of material. They also contain a list of basic literature on each subject, as well as in some cases very useful introductions, for example in some projects of international cooperation. This makes the work a most useful tool for anyone who wants to deal either academically or as a practitioner with the problems of space law. One can be assured that one w i l l find virtually all the relevant material w i t h respect to space law. Therefore, the editors can be congratulated for having undertaken such a tremendous effort in compiling and neatly editing all relevant material. Although the work is relatively costly, it can be strongly recommended to anyone looking for guidance in the field of space law. Stephan Hobe

Dieter Kugelmann: Der Rundfunk und die Dienstleistungsfreiheit des EWG-Vertrages. Schriften zum Europäischen Recht, Duncker & Humblot, Berlin 1991, 278 S. Die Arbeit, eine in Mainz erschienene Dissertation, hat sich — basierend auf der Annahme der Ausstrahlung von Rundfunk als Dienstleistung im Sinne des EWG-Vertrages — zur Aufgabe gestellt, „das Verhältnis der Vorschriften über den freien Verkehr von Dienstleistungen zum Rundfunk und zum Rundfunkverfassungsrecht herauszuarbeiten" (24). Das ist insbesondere wegen des grenzüberschreitenden Charakters und der vielfachen regulativen Ansätze in Europaparlament, Kommission, aber auch im Europarat nicht ohne Reiz. Die Arbeit ist in drei Kapitel gegliedert, wobei im Kapitel 1 Aktivitäten der Gemeinschaft auf dem Gebiet des Rundfunks dargestellt, in Kapitel 2 die Einordnung des Rundfunks in das System des freien Dienstleistungsverkehrs und in Kapitel 3 die Einschränkungen des freien Dienstleistungsverkehrs beschrieben werden. I m ersten Kapitel stellt der Autor überwiegend deskriptiv die Aktivitäten der Gemeinschaft auf dem Gebiet des Rundfunks dar. Sie kulminieren in der Richtlinie des Rates zur Koordinierung bestimmter Rechts- und Verwaltungsvorschriften der Mitgliedstaaten über die Ausübung der Fernsehtätigkeit vom 3. Oktober 1989. Die Richtlinie wird einmal von der Motivationslage her und zum anderen nach den einzelnen Vorschriften detailliert geschildert (41 53). I m zweiten Kapitel wendet sich der Autor dann der Einordnung des Rundfunks in den freien Dienstleistungsverkehr zu. Befaßt sich der erste Teil dieses zweiten Kapitels noch mit allgemeineren Grundsätzen wie der Kompetenz der Europäischen Gemeinschaften im Rundfunkbereich, so wendet sich der Autor im zweiten Teil der Verortung der Ausstrahlung von Rundfunk im EWG-Vertrag, namentlich in den Artikeln 59 und 60 zu. Systematisch werden die Voraussetzungen dieser Vorschriften wie Leistung, Entgeltlichkeit und Grenzüberschreitung geschildert und detailliert die Problematik grenzüberschreitenden Rundfunks erörtert. Letzteres geschieht anhand der verschiedenen Leistungsbeziehungen, des Kriteriums der

Book Reviews Grenzüberschreitung anhand der technologischen Spezifika und des Problems der Entgeltlichkeit. Der Autor gelangt dabei zu dem Ergebnis, eine Leistung sei nicht nur dann entgeltlich, wenn ihr ein synallagmatischer Vertrag zugrundeliege; das Entgelt müsse aber auch typischerweise gerade die Gegenleistung für die Leistung sein, also zum Zweck der Leistungserbringung entrichtet. I m übrigen erbringe ein Rundfunkveranstalter, der mittels Satellit Programme ausstrahle, dem in einem anderen Mitgliedstaat ansässigen Empfänger eine grenzüberschreitende Leistung. Dazu vermittelten die Werbetreibenden, die gegenüber dem Rundfunkveranstalter für die Ausstrahlung ihrer Werbesendungen Zahlungen vornähmen, dieser Leistung die Komponente der Entgeltlichkeit. Insgesamt sei eine Einordnung als Dienstleistung im EWG-Vertrag gerechtfertigt. I n der darauffolgenden Analyse der Kompetenz der Gemeinschaft zum Erlaß der Fernsehrichtlinie (149-156) unterstreicht der Autor zutreffend, daß die Gemeinschaft nur dann die Kompetenz zum Erlaß einer Richtlinie nach Artikel 57 Absatz 2 i. V. m. Artikel 66 des EWG-Vertrages habe, wenn sie ihrem Harmonisierungsauftrag im Bereich des Empfangs von Dienstleistungen nachkomme. Er entwickelt überzeugend, daß die Richtlinie diese Voraussetzungen erfüllt. Zudem stellt der Verfasser als Konsequenz heraus, daß eine Reihe von Fernsehveranstaltern, die die Versorgung der Bevölkerung ihres Sitzstaates mit Fernsehsendungen beabsichtigten — wie TF1 oder Antenne 2 in Frankreich, BBC oder I T V im Vereinigten Königreich — von der Fernsehrichtlinie nicht betroffen seien (155). I m dritten Kapitel der Arbeit wendet sich dann der Autor den Beschränkungen dieser Dienstleistungsfreiheit zu. Er weist in der Rechtsprechung des Europäischen Gerichtshofes unterschiedliche Aspekte, teilweise Tendenzen zu einem weiteren, teilweise Tendenzen zu einem engeren Beschränkungsbegriff nach, wobei für Rechtssachen im Zusammenhang mit der Ausstrahlung von Rundfunk der Beschränkungsbegriff des Rechtfertigungsgrundes des Allgemeininteresses wie in der Rechtssache Debauve (RS 52/79) Anwendung finde. Der Autor gelangt zu der Auffassung, daß der Beschränkungsbegriff über bloße Diskriminierung hinausgehe und jede Behinderung des freien Dienstleistungsverkehrs umfasse. Einziger Rechtfertigungsgrund für diskriminierende Beschränkungen sei Artikel 56 Absatz 1 i. V. m. Artikel 66 EWG-Vertrag. Zur Rechtfertigung innerstaatlicher, diskriminierender Vorschriften im Rundfunkbereich könne vorrangig auf Gründe der innerstaatlichen öffentlichen Ordnung zurückgegriffen werden, wobei die Mitgliedstaaten bei der inhaltlichen Festlegung dieses gemeinschaftsrechtlichen Begriffes einen Beurteilungsspielraum besäßen und den Organen der Gemeinschaft, vornehmlich dem E u G H , eine Kontrollkompetenz zukomme. Letzte Schranke biete dann der Grundsatz der Verhältnismäßigkeit. Dieser Grundsatz wird im zweiten Teil des dritten Kapitels (245 - 263) eingehend behandelt. Der Autor stellt die strukturelle Unterschiedlichkeit des Grundsatzes der Verhältnismäßigkeit im nationalen Recht gegenüber den europarechtlichen Anforderungen des EWG-Vertrages heraus, zeigt indes aber auf, daß die Grundsystematik der Einteilungen Geeignetheit, Erforderlichkeit und Proportionalität sowie die Notwendigkeit der Herstellung praktischer Konkordanz auch im europarechtlichen Bereich Anwendung findet. Zu Recht weist der Autor dabei darauf hin, daß der E u G H bei der Prüfung eines Rechtssatzes bzw. einer Maßnahme am Grundsatz der Verhältnismäßigkeit gerade auf der Stufe der Erforderlichkeit den Ermessensspielraum des Normgebers zu beachten habe. Diese Rechtsprechung gerate jedoch mitunter, wie in der Rechtssache Kabelregeling, bedenklich in die Nähe der Rundfunkpolitik. Hier hatte der Gerichtshof eine konkrete diskriminierende Regelung in den Niederlanden für unverhältnismäßig gehalten, da es an der Erforderlichkeit der Regelung, die ein Verbot der Weiterverbreitung von Programmen aus anderen Mitgliedstaaten aussprach, falls diese Programme speziell an das niederländische Publikum gerichtete Werbemitteilungen enthielten, fehle. Insofern sei bei der Anwendung des Grundsatzes der Verhältnismäßigkeit vom E u G H trotz des weiten Spielraums

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die Sicherung des Wesensgehalts der Freiheit und hier der Dienstleistungsfreiheit für den Rundfunkbereich zu gewährleisten. Die Arbeit, deren wesentliche Ergebnisse am Ende in Thesen aufgeführt werden, versteht sich auch als Versuch, über den engeren Gegenstand des Rundfunks hinaus auf die Konzeption der Artikel 59 ff. EWG-Vertrag gestaltend einzuwirken. Dafür wird mit dieser Abhandlung Gelegenheit geboten, deren Grundanliegen, eine gewisse Systematik in das System der Freiheiten und Begrenzungen des EWG-Vertrages zu bringen, als erfüllt angesehen werden kann. So ist die Studie als anregende Lektüre durchaus empfehlenswert. Stephan Hohe

Rudolf Geiger: EG-Vertrag. C. H . Beck, München 1993, X X V I I I + 986 S. Rudolf Geiger hat dem vorhandenen Großkommentar zum Europarecht von von der Groeben / Thiesing / Ehlermann / Grabitz einen Kurzkommentar hinzugefügt, der in der Reihe der Beck'schen Kurzkommentare erschienen ist. Der große Vorzug des Kommentars besteht darin, daß er bereits die durch den Maastrichter Vertrag dem EWG-Vertrag hinzugefügten Änderungen berücksichtigt. Dadurch wird dem Ratsuchenden erstmals ein einheitliches Bild des z. Zt. geltenden und demnächst in Kraft tretenden Rechts vermittelt. Der Kommentar besticht durch seine Übersichtlichkeit, für die nicht nur durch Zwischenüberschriften, sondern auch die durchgehende Randnumerierung bei der Kommentierung der Artikel gesorgt ist. Dazu erleichtern einführende Hinweise auf vornehmlich neuere Literatur die Orientierung. Die Kommentierung selbst ist, der Natur des Kommentars gemäß, eher knapp gehalten, stellt jedoch die wesentlichen Grundzüge der gesetzlichen Regelungen klar heraus. Dies zeigt sich beispielsweise bei der Kommentierung der Freiheiten (Artikel 48 ff.) (144-224), die in sehr luzider Weise unter Einbeziehung der Rechtsprechung gestaltet ist. Vielleicht wäre, um den Orientierungscharakter des Werkes noch weiter zu stärken, zu überlegen, auch die jeweiligen Fundstellen für das Sekundärrecht im Kommentar aufzunehmen. Von nicht zu unterschätzendem Wert ist namentlich die Kommentierung der durch den Maastrichter Vertrag dem EWG-Vertrag beigegebenen neuen Bestimmungen. Hier wird beispielsweise in der Kommentierung zu Artikel 3 a (Wirtschafts- und Währungsunion) auf nur wenigen Seiten (22-26) alles für eine erste Orientierung Wesentliche gesagt. Auch wird nachfolgend bei der Diskussion des Artikel 3 b der Grundgedanke der Subsidiarität (28) herausgestellt. Die Kommentierung der Bestimmungen zur gemeinsamen Verkehrspolitik, insbesondere der standstill-Verpflichtungen des Artikel 76, beinhaltet bereits das Urteil des E u G H zur Schwerverkehrsabgabe, wobei hier in Kürze (232-233) der Meinungsstand über Sinn und Zweck dieser Vorschrift erläutert wird. Auch die Kommentierung der Organe (487, 675) ist überzeugenderweise gelungen. Ferner erweist es sich als sehr zweckmäßig, daß dem Werk als Anhänge noch der Vertrag über die Europäische Union (788 ff.), die Protokolle gemäß der Schlußakte von Maastricht (813 ff.), die Schlußakte von Maastricht (864 ff.), das Protokoll über die Vorrechte und Befreiung der Europäischen Gemeinschaften (882 ff.), der Beschluß und A k t zur Einführung allgemeiner und unmittelbarer Wahlen der Abgeordneten in der Versammlung (890), das Protokoll über die Satzung des Gerichtshofs der Europäischen Wirtschaftsgemeinschaft (897 ff.), die Verfahrensordnung des Gerichtshofs der Europäischen Gemeinschaften (913 ff.) sowie die zusätzliche Verfahrensordnung des Gerichtshofs der Europäischen Gemeinschaften

36 GYIL 36

Book Reviews (963 ff.) beigegeben worden sind. Schließlich ist auch das abschließende Sachregister (969 987) Ausdruck der hervorragenden Übersichtlichkeit des Gesamtwerkes, das mit Sicherheit ein Standardwerk nicht nur zur Erstkommentierung werden wird. Stephan Hohe

International Boundary Cases: The Continental Shelf. Research Center for International Law, University of Cambridge, Grotius Publications Bd. I und I I , 1992, X V I + 1793 + X I I S. Das Research Center for International Law sieht seine Aufgabe darin, Wissenschaftlern und Praktikern den Zugang zu völkerrechtlichen Dokumenten zu erleichtern. Bisher von ihm herausgegeben werden die International Law Reports und die Berichte über die Judikatur des Iran-US Claims Tribunal; stärker auf einen konkreten Sachkomplex bezogen sind die Dokumentensammlungen zum zweiten Golfkrieg und die nunmehr vorliegende Dokumentation zur Grenzziehung im Festlandsockelbereich. Weitere Dokumentationen dieser A r t sind in Vorbereitung. Die vorliegenden beiden Bände beschränken sich, worauf auch der Titel verweist, auf die Wiedergabe von internationalen Gerichtsentscheidungen zur Festlandsockelabgrenzung. Nicht aufgenommen in die Sammlung sind daher die schiedsgerichtliche Entscheidung Guinea-Bissau / Senegal, da sie sich auf den Komplex Staatennachfolge konzentrierte und das Schiedsgericht keine Festlandsockelgrenze zu ziehen hatte. Aus ähnlichen Gründen fehlt die schiedsgerichtliche Entscheidung im Grisbadarna-Fall, da sie sich auf Seegrenzen allgemein, nicht aber auf eine Festlandsockelgrenze bezog. Schließlich fehlen die für die Festlandsokkelabgrenzung wichtigen Entscheidungen nationaler Gerichte. Die Dokumentation beginnt mit einer systematischen Analyse des Völkerrechts zum Festlandsockel, die sich vor allem an der internationalen Judikatur zu diesem Komplex orientiert. Damit dient sie als Einleitung zu der Dokumentation und erleichtert den Zugang zu den Urteilen, vor allem das Verständnis für die in den Urteilen liegende Entwicklung. Hierin wird auch die durch das Seerechtsübereinkommen eingeleitete Entwicklung integriert. Dieser Ansatz ist aus der Sicht einer Dokumentation von internationalen Gerichtsurteilen verständlich, verhindert aber eine Auseinandersetzung mit Artikel 83 SRÜ. Folgende Urteile werden in der Dokumentation aufgenommen: Arbitral Award im Falle Petroleum Development Ltd. v. Sheikh of Abu Dhabi (1951); Urteil des I G H im Falle Federal Republic of Germany v. Denmark bzw. v. The Netherlands (1969); Anglo-French Continental Shelf Arbitration (1977/1978); Aegean Sea Continental Shelf Case (1976/1978); Jan Mayen Continental Shelf Case (1981); Gulf of Maine Case (1982/1984); Tunisia v. Libyan Arab Jamahiriya (1981 /1982/1985); Guinea / Guinea Bissau Arbitration (1985); Libyan Arab Jamahiriya v. Malta (1984/1985). Die Urteile bzw. Schiedsentscheidungen werden vollständig wiedergegeben; Fundstellenangaben und der Verweis auf die Paginierung des Originaltextes erleichtern die Benutzung der Dokumentation. Ein ausführlicher Index schließt die Dokumentation ab. Auch wenn die veröffentlichten Entscheidungen in der Regel gut zugänglich sind, erleichtert doch diese Dokumentation durch ihre kompakte Form die Arbeit über die Problematik der Festlandsockelgrenzen. Sie wird daher ihren Platz in völkerrechtlichen Bibliotheken finden. Rüdiger Wolfrum

Book Reviews Keba Mbaye: Les Droits de PHomme en Afrique. Editions A. Pedone, Paris 1992, 312 pp. Avec son oeuvre sur les droits de Phomme en Afrique Keba Mbaye sut remplir une lacune dans la theorie des droits de Phomme jusqu'ä maintenant seulement partiellement traitee par des articles. I i reussit de presenter les droits de Phomme en Afrique dans leur dimension originale sans d'autant moins negliger leur relation avec la theorie des droits de Phomme dite occidentale. En faisant cela il demontre clairement sa vision universelle des droits de Phomme. Des le debut Mbaye met en question le titre et le sujet meme de son oeuvre, car le traitement des droits de Phomme «en Afrique» pourrait supposer la notion d'un regime regional de droits de Phomme — confligeant alors avec la conception universaliste des droits de Phomme. Mbaye ne questionne pas que la base d'un regime de droits de Phomme est son applicability universelle. I l demontre tout de meme que Pevolution de ces droits a connu des stades consecutifs partout dans le monde. En cela, l'Afrique n'atteint pas le niveau des etats industrialises dans tout les aspects des droits de Phomme; l'Afrique sut tout de meme introduire une nouvelle dimension dans les droits de Phomme: celle des droits des peuples. Mbaye divise son oeuvre en deux parties principales: En premier lieu, il traite de la theorie des droits de Phomme en Afrique, et dans une deuxieme partie il s'occuppe de la promotion et la protection des droits de Phomme en Afrique par un systeme africain en presentant la Charte Africaine des Droits de PHomme et des Peuples, dite la Charte de Banjul. Dans le Chapitre I de la Premiere Partie Mbaye s'occuppe extensivement avec les fondements des droits de Phomme en Afrique, tout en les rangeant dans le cadre des progres faites sur le niveau universel. C'est ainsi que les originalites du concept africain surgit clairement de son discours, specialement la notion des droits des peuples mais aussi l'importance que les instruments africains donnent aux devoirs de l'individu envers la communaute. Mbaye donne une grande importance au developpement historique, qui mena ä la conception contemporaine des droits de Phomme, autant au niveau universel qu'au niveau africain. Mais il decrit aussi les problemes que l'acceptance des droits de Phomme pose encore dans leur application dans les differents Etats. Le Deuxieme Chapitre est consacre ä la promotion et protection des droits de Phomme en Afrique par un systeme universel, c'est ä dire aux instruments et mecanismes onusiens. U n Troisieme Chapitre traite de la promotion et la protection des droits de Phomme par le systeme CEE-ACP et le systeme arabe. Apres que la Premiere Partie est domine par la notion d'universalisme des droits de Phomme, la Deuxieme Partie est consacre pleinement au systeme africain. Apres une breve introduction historique Mbaye procede en mettant en lumiere les caracteristiques de la Charte de Banjul. Apres, il donne un rapport complet des droits et devoirs proclames ainsi que des procedures devant la Commission Africaine des Droits de PHomme et des Peuples. U n dernier chapitre est consacre aux droits des refugies. En tant que connaisseur de la theorie occidentale et celle de l'Afrique, Keba Mbaye sut decrire le systeme des droits de Phomme en Afrique dans une maniere illuminant ses specialites et ses problemes specifiques aussi pour celui qui ne connaissait jusqu'ä maintenant que la doctrine europeenne. Aussi illustre-t-il ses propos theoriques avec beaucoup de cas d'Afrique noire, ce que rend la lecture un plaisir. Avec son oeuvre Mbaye contribue non seulement ä une meilleure comprehension des «droits de Phomme en Afrique», mais ä la theorie universelle des droits de Phomme. Wolf Plesmann

3*

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Book Reviews

Joachim W. Müller: The Reform of the United Nations. Vol. I: A Report; Vol. II: Resolutions, Decisions and Documents (special volumes of the series "Annual Review of United Nations Affairs"), Oceana Publications, New York, etc. 1992, X V I I + 560, X I + 586 S. Entgegen dem Titel handelt es sich nicht um eine wissenschaftliche Analyse des Reformprozesses der Vereinten Nationen von 1985 bis 1990, sondern um eine zweibändige Dokumentation über diesen. Band I enthält zunächst eine Aneinanderreihung von Fakten über das System der Vereinten Nationen, frühere Reformausschüsse, die Vorgeschichte der Reform von 1985 und die Finanzkrise der Organisation sowie die Bildung der Gruppe „Gruppe der 18" (S. 1-51). Die Darstellung ist im wesentlichen deskriptiv; eine Bewertung erfolgt nur in Ansätzen. Die Auswertung der einschlägigen Literatur bleibt an der Oberfläche. Die folgenden fünf Abschnitte dokumentieren chronologisch die Aussprachen über Reformschritte von 1986 bis 1990. Sie werden jeweils kurz unter dem Stichwort „Financial Situation" eingeleitet. Für 1986 steht der Bericht der „Gruppe der 18" im Vordergrund; die Jahre 1987 bis 1989 konzentrieren sich auf die Zwischenberichte des Generalsekretärs und das Jahr 1990 auf dessen analytischen Schlußbericht. Anhänge sind hierzu vier Tabellen zum Beitragsschlüssel, das Programmbudget 1990 bis 1991 und Beiträge zum regulären Haushalt sowie Beiträge zu den Friedenstruppen. Ein sehr knapper Dokumentenführer und eine unvollständige Bibliographie schließen diesen Band ab. Während Band I die abgedruckten Auszüge aus Redebeiträgen oder Dokumenten noch durch überleitende Passagen miteinander verbindet, handelt es sich bei Band I I um eine reine Dokumentation. Sie ist in zwei Teile gegliedert: im ersten Teil sind die Resolutionen der Generalversammlung und des ECOSOC, beginnend mit G A Res. 40/237, mit der die Generalversammlung am 18. Dezember 1985 die „Gruppe der 18" einsetzte, und endend mit G A Res. 45/254, mit der sie am 21. Dezember 1990 den Schlußbericht des Generalsekretärs billigte, abgedruckt. Teil I I enthält 45 der der Generalversammlung vorgelegten Berichte. Verfasser der Berichte sind die „Gruppe der 18" (4), der Generalsekretär (25), das A C A B Q (13), das CPC (9), der 5. Hauptausschuß (1), die Reformsonderkommission des ECOSOC (1) und das A C C (1). Die Dokumente sind chronologisch geordnet, lediglich die Stellungnahme von A C A B Q und CPC zu Berichten des Generalsekretärs sind unmittelbar auf diese folgend abgedruckt. Dem analytischen Schlußbericht des Generalsekretärs „Implementation of G A Res. 41/213" kommt dabei ohne Zweifel eine besondere Bedeutung zu. Sie schildert das Erreichte sowie die weiter zu unternehmenden Schritte. Sinn einer derartigen Dokumentation kann es allein sein, denjenigen Wissenschaftlern, die sich mit Fragen der Vereinten Nationen beschäftigen, aber nicht über eine ausreichende U N Bibliothek verfügen, den Zugang zu relevantem Material zu vermitteln. Dies wird geleistet, allerdings ist zu berücksichtigen, daß der Reformprozeß der Vereinten Nationen noch in keiner Weise abgeschlossen ist und insofern diese beiden Bände bereits jetzt historischen Charakter haben. Rüdiger Wolfrum

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Ernst-Ulrich Petersmann / Günther Jaenicke (eds.): Adjudication of International Trade Disputes in International and National Economic Law. University Press Fribourg Switzerland, Fribourg 1992 (= Progress and Undercurrents in Public International Law Vol. 7), V I I I + 405 pp. + Annex. The book offers a collection of twelve studies on various aspects of the settlement of international trade disputes, written by both academic experts and practitioners, all having been actively involved in dispute settlement proceedings in the field of international trade. I n the volume's first article (1 - 42), Peter Behrens provides a concise overview and comparison of alternative methods of dispute settlement in international economic relations, alternative methods here being understood as any method of dispute resolution other than litigation. The preference for extra-judicial settlement constitutes a general phenomenon in the entire field of economic transactions. The reasons may be greater flexibility, confidentiality and speed of the procedure. Notwithstanding the various differences in the practice and usages of international trade, Behrens finds the existing dispute settlement schemes to be limited to a few models from which all of them receive their basic structure. After a short analysis of the constituent elements of a "dispute" and its settlement, the author sketches the principal alternative methods of conflict resolution, namely negotiation, inquiry, conciliation (mediation) and arbitration. The main advantage of these extra-judicial methods, which explains their popularity with persons involved in international trade, lies in the fact that the parties concerned maintain better control over the procedure. Alternative methods allow for the delegalizing of a conflict, offering opportunities for a negotiated outcome at nearly every stage of the procedure. A negotiated outcome based on the principle of consensuality is less antagonizing than a lawsuit and probably causes less damage to the long-term relationship between the parties. After this introduction to alternative dispute settlement procedures, Günther Jaenicke analyses the role played by the Permanent Court of International Justice and the International Court of Justice in litigation of international trade conflicts (43 - 58). Although these Courts at the time of their creation had been expected to become the primary instruments of adjudication of international disputes, their role in the litigation of trade conflicts has remained very limited. The Courts have not yet considered any dispute between States relating to the 1 import and export of goods, international transport, financial transactions or the transboundary supply of services or technology. It is only after the definition was extended to include disputes relating to the treatment of corporations or individuals doing business in another State, that a number of cases were brought to the PCIJ and the ICJ, five of which are briefly presented by the author. Jaenicke concludes that States do not seem to accept international adjudication in cases where their general economic policy might become subject to the International Court's review. States are, however, more prepared to accept the compulsory jurisdiction of international courts when the interpretation or application of well defined legal rights and obligations becomes controversial, as the inclusion of compromissory clauses for the settlement of disputes in many bilateral treaties of commerce or investment demonstrates. As a way of rendering the ICJ more attractive to States in this field, Jaenicke advocates the creation of a specialized chamber for trade disputes. Karl-Heinz Böckstiegel provides a short overview of dispute settlement by intergovernmental arbitration (59-75). Considering State practice throughout history, the author notes the same hesitation of States to submit to intergovernmental arbitration as had been stated by Jaenicke in the preceding article. This is especially true for the multilateral systems of arbitration set up for an unforeseeable number of disputes, such as the General Act of 1928, the Treaty of Bogota of 1948 or the European Convention of 1957. States seem to be more

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willing to submit to arbitration sytems if these are applicable to rather specific fields of international cooperation, where the very functioning of this cooperation requires that disputes are not left open but brought to a final decision in due course. This is demonstrated by the dispute settlement mechanisms in the I M F , the ICSID and M I G A as well as in the field of international aviation. The dispute settlement schemes of the 1982 Convention on the Law of the Sea in the author's view constitute a remarkable development in that they offer a highly flexible approach, where arbitration is a subsidiary but compulsory method. After a shortlist of arbitration cases concerning economic questions, specific mention is made of the Iran-United States Claims Tribunal in The Hague, established in 1981. Among the more than 3,800 cases brought before it, some 94 are truly intergovernmental disputes and the remainder are claims by private enterprises or individuals against the other State. Ernst-Ulrich Petersmann presents yet another international mechanism for the adjudication of trade disputes: his excellent study covers the settlement of international and national trade disputes through the G A T T , concentrating on the case of anti-dumping law (77-138). A t the outset, Petersmann gives a brief introduction to the functions of G A T T rules and particularly those relating to dispute settlement for trade policies of G A T T members. Narrowing in on his subject, the author then recalls the general diplomatic and legal means at the disposal of States for the settlement of disputes. This overview is followed by a concise survey of the specific dispute settlement system available under Art. X X I I I of the GATT. Readers who are unfamiliar w i t h details of the substantive G A T T anti-dumping rules w i l l be grateful for the subsequent outline of the relevant provisions. Petersmann then examines the three complaints — out of about 150 formal .complaints raised under Article X X I I I between 1948 and 1990 — related to anti-dumping duties imposed under Article V I and discusses at length the Panel reports issued on complaints by Italy against Sweden in 1955, Finland against New Zealand in 1985 and Japan against the EEC in 1990. I n addition to the general G A T T dispute settlement procedure, Article 15 of the 1979 Antidumping Code established specific procedures in anti-dumping matters. It provides for bilateral consultations, good offices, conciliation by the Committee on Antidumping Practices and, if the latter procedure has failed, the establishment of a panel to examine the dispute. So far only two disputes have led to the creation of a panel, the reports of which are also discussed. Petersmann continues with some remarks on the difficult issue of the relationship between G A T T dispute settlement rulings and domestic court decisions and reflects on a number of procedural problems raised by the practice of dispute settlement. I n his concluding remarks the author points out that the G A T T dispute settlement procedures have on the whole proved to be a suitable framework for a case-oriented, progressive elaboration of agreed interpretation on several problems. Although this procedure cannot serve as a substitute for the needed reform of anti-dumping law, it may provide a means for giving more precision to the relevant rules if the Uruguay negotiations fail to produce progress in this field. The book deserves widespread circulation on the basis of this article alone. I n his article on dispute settlement mechanisms in the I M F , the World Bank (including the ICSID) and M I G A , Rudolf Dolzer compares the dispute settlement schemes within the confines of global financial institutions (139-158). The characteristics, however, are remarkably different: whereas the respective articles in the agreements setting up the I M F and the I B R D rely on decision-making by the States parties on the basis of weighted voting, thus reflecting the political interests at stake, the ICSID and M I G A rather rely on a formalized third-party settlement. After giving a brief outline of the different systems, w i t h special emphasis on the ICSID procedure, Dolzer concludes that the main reason for the differences is to be found in the particular interests affected by the respective decision, and not — as one might have expected — on a different degree of specificity of the substantive rules. The

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author then raises the question whether — in light of the interdependence of national economies, the need for predictability of decisions and aspirations towards fairness and equity — the power-oriented models of voting and decision-making as practiced in the I M F and the World Bank are still appropriate. However, since the sectoral characteristics of each of the dispute settlement schemes differ, patterns found in one treaty cannot easily be transferred to the other. I n the author's view, future efforts to improve the system must try to seek a new synthesis. I n the volume's longest article, George Ress and Jörg Ukrow examine the possibilities of bringing direct actions before the European Court of Justice in the field of EEC anti-dumping law. The authors provide an overview of the anti-dumping law of the EEC including Article V I and EEC Regulation N o . 2423/88 and comment on its development from the time the original six members signed the G A T T . Having laid out the framework of substantive EEC anti-dumping law, the authors discuss the possible forms of judicial legal protection in antidumping matters. Since it is not regulated in special legislation, the general rules, namely direct actions under Articles 173 and 175 of the EEC Treaty, come into play. Ress and Ukrow present and discuss the recent case law of the ECJ relating to its jurisdiction under Article 173. The material is presented according to the persons affected by anti-dumping measures, i. e. the importers of the dumped goods, their exporters and manufacturers or the branch of industry concerned. The authors add to this outline a detailed analysis of the Court's opinion that the imposition of anti-dumping duties by regulation can be a regulation and a decision at the same time. Another chapter is dedicated to some basic reflections about the underlying idea of an effective remedy against anti-dumping law decisions in a human rights context. Although none of the anti-dumping decisions of the ECJ refers expressly to the European Convention of Human Rights, fundamental rights contained therein may well be affected by the imposition of anti-dumping duties. Thus Article 13, though not directly applicable to the relations between individuals and the Community, should not be ignored when deciding how to render effective the system of judicial review under the Treaty in anti-dumping matters. I n their concluding remarks the authors criticize that, contrary to proposals from member States, the European Parliament and the Court, anti-dumping matters had been excluded from the transfer of jurisdiction to the Court of First Instance when the latter was established in 1988. Whereas the previous articles had focused on dispute settlement schemes provided for by multilateral treaties in the field of economic law, Rainer M. Bierwagen analyzes a recent example of a bilateral mechanism between two States whose economies are closely interrelated (259-296): in the Canada-United States Free Trade Agreement (FTA) of 1988, the dispute settlement mechanism constitutes a centerpiece of the whole set of regulations. It provides for a joint Trade Commission whose task is to resolve disputes that may arise over the FTA's interpretation or application. This may take the form of either mediation through the Commission's offices or arbitration by a panel or an expert panel, the panelists to be chosen from a roster of individuals w i t h sufficient expertise. Where the most prominent and most controversial fields of trade legislation, namely anti-dumping and subsidies are concerned, the parties have agreed, however, to a very specific regime governing the procedure for amendments to their respective laws and for the review of decisions made by domestic administrative agencies. As regards the former issue, Chapter 19 of the F T A sets up a system of advance notification and consultation and, if need be, review by a panel. For the latter, the FTA creates an alternative to court proceedings by allowing certain decision to be reviewed also by a binational panel. William J. Davey , in his paper on the United States Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (297-322), examines the jurisdiction and

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operation of the two United States courts that are most involved in adjudicating international trade disputes embracing public law. The functioning of both courts is of specific importance for international trade since they mainly review United States government measures implementing United States statutes that authorize trade restricting measures to be taken, but also decide other cases concerning international trade and customs issues where the government is a party. Summing up his observations on the CIT's jurisdiction, the standards of review utilized and the parties entitled to seek redress, Davey concludes that in the field of the administration of imports the law provides broad-based opportunities for judicial review of the executive's actions. A short explanation of the Court of Appeals for the Federal Circuit is then followed by some observations on the recognition of international agreements under United States law. I n a final evaluation of judicial review of international trade matters by the two courts, the author pinpoints both strengths and weaknesses: whereas almost all parties affected by most import restrictions can obtain court review, there are shortcomings in the field of anti-dumping and countervailing duties cases. Problems of dispute settlement of international economic conflicts by national courts in Switzerland and Austria are dealt w i t h in a short contribution by Detlev Chr. Dicke (323-337). The title, however, seems somewhat broad, since the author actually focuses on specific problems posed by the Free Trade Agreements between the EEC and the two countries. Judicial review by national courts of decisions under municipal law within the scope of an international treaty depends upon whether the treaty or part of its provisions are directly applicable, vesting rights and obligations in individuals. The question whether or not a treaty is directly applicable in this sense is a question of treaty interpretation. Analyzing and comparing decisions of the European Court of Justice, the Swiss and the Austrian Supreme Court concerning the direct applicability of Free Trade Agreements and, in one case before the ECJ, also the G A T T , Dicke notes considerably different approaches to the problem, owing to different concepts underlying the Single Market and a Free Trade Area. Giorgio Sacerdoti and Gahriello Venturi take up another interesting feature of the G A T T by presenting the development of Italian case law on the question whether the G A T T is a self-executing treaty (339-355). Unlike other countries, Italy has accepted the Annecy Protocol of 1949 and has enacted legislation to transform the G A T T rules into national law. I n a number of decisions between the late sixties and 1981, Italian courts developed the doctrine of direct applicability of the G A T T , holding that various provisions were sufficiently determined to be self-executing, thus being immediately applicable without further legislative enactment. A l l of these decisions were rendered in connection w i t h obligations by Italy under Articles 11:1 .b and VIII:2. As regards the problem of possible conflicts between the treaty and subsequent domestic law, Italian courts enjoyed a wide discretion. A new development occurred, however, since the EEC replaced the individual members in the G A T T negotiations and enforcement. The application of the G A T T thus became more and more the European Court of Justice's domain. Beginning in 1972, the latter denied the selfexecuting character of the G A T T in a couple of decisions. For a few years Italian courts seemed to overlook the growing contrast since their cases dealt w i t h different provisions. I n a detailed analysis of a number of subsequent cases both before the ECJ and Italian courts, the authors explain how and to what extent the latter have reacted and adapted their doctrinal holdings accordingly. Mitsuo Matsushita in his article examines the formal and informal mechanisms for the settlement of trade disputes in Japan (357-382), his main subject is how claims against the Japanese government by exporters, importers and foreign governments can be brought and

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processed. The author begins w i t h a short introduction on Japanese laws affecting international trade. Besides formal trade law and other domestic laws, an informal regulatory activity by the government has to be noted whereby it seeks to persuade private enterprises to cooperate in the pursuit of certain policy objectives (the so-called "administrative guidance"). Administrative guidance is often used in addition to, or instead of, formal control by law. Being informal by definition, it is not reported in official gazettes. After briefly outlining the basis for claims against the government, the author then summarizes the available legal instruments for such claims and their requirements. The most interesting section for the reader who is not familiar w i t h Japanese law, however, is the part dealing with informal methods of trade dispute settlement. Since Japan is, in the author's own words, not a litigious society as compared with some western countries, informal dispute settlement mechanisms are generally much more frequently used than formalized ones. I n trade matters, the Office of Trade and Investment Ombudsman (the " O T O " ) is of specific importance. The O T O , established in 1982, is composed of 15 ministries and agencies dealing w i t h trade matters. T w o advisory committees advise the O T O on general policy matters and complaints filed with the O T O . Since the scope of possible complaints is not defined by law, any obstacle to trade or investment can be brought before the O T O . A complaint may be filed by any party which feels that its interests have been adversely affected by a governmental measure. Having examined a complaint, the O T O w i l l either issue a recommendation to the respective agency with a view to improving the operation of the regulation or explain and clarify the contents of the regulation, to the complainant. Within 10 years of its existence, the O T O has received 447 complaints, mostly in the field of technical trade barriers. The book's last article, by Gerhard Wegen and Thomas W. Welch , deals with the role of international commercial arbitration, and in particular of the International Chamber of Commerce, in dispute settlement in international economic law. The authors first give an introductory overview of the evolution of modern international commercial arbitration, touching the 1923 Geneva Protocol on Arbitration Clauses, the 1965 ICSID Convention, the U N C I T R A L Arbitration Rules of 1975 as well as regional and bilateral instruments. The 1958 New York Convention now provides assurances that once an arbitration award has been rendered, it is also enforceable. Wegen and Welch then explain the structure and process of the I C C and its International Court of Arbitration. Lastly, the authors discuss some recent issues of arbitration involving State entitites. I n this field problems have arisen as to the procedural law governing arbitration, but also — if the partners failed to designate the applicable law in advance — as to the question of substantive law. Furthermore, the question whether a State enterprise may be excused from breach of contract by claiming that an act of State constitutes force majeure has been a recurrent issue in arbitration practice. I n addition the concept of State immunity gives rise to difficulties: whereas it is generally accepted that a State acting in a commercial activity waives its sovereignty by agreeing to arbitration, this is not necessarily the case when it comes to the executory jurisdiction of other States' courts. I n their concluding remarks the authors advocate a more systematic publication of arbitration awards in order to create a global and comprehensive body of arbitration law. Concepts like sovereign immunity and the lex fori arbitration in their view are no longer compatible with the reality of modern international trade. The volume is rounded off by an Annex, compiled by Ernst-Ulrich Petersmann , containing a chronological list of complaints submitted to the G A T T Contracting Parties or the Council under G A T T Art. X X I I I . This very useful list indicates the 149 cases between 1948 and 1990 and provides the date and parties of the case, the body having dealt with the complaint,

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a brief description of the action that has been taken and a reference. The list w i l l be a very helpful tool to anyone having to deal w i t h dispute settlement in the GATT. Thomas Titschen

Subsidiarity: The Challenge of Change — Proceedings of the Jacques Delors Colloquium 1991. European Institute of Public Administration, Maastricht 1991, x + 161 pp. W i t h the principle of Subsidiarity as the topic for its Annual Conference in 1991, the European Institute of Public Administration had chosen a subject which was and still is not only one of the most interesting problems in European law but also one of the most disputed. Many articles have been written on the subject and yet it can be assumed that many w i l l appear in the near future, covering in particular the new norms on subsidiarity in the Treaty on European Union. Subsidiarity, as it has been defined for example in German constitutional law, demands that action be taken at the lowest possible level, a definition which also entails that a higher authority should only interfere when the lower entity cannot achieve a specific object. However, this simple sounding definition bears a great deal of uncertainty and ambiguity. I n the history of European law, subsidiarity has frequently also been defined in terms of effectiveness, i. e., the Community can take action where it can be done more effectively at the Community level. Maastricht at least opted for the latter approach. For its colloquium, to which the President of the EC Commission had agreed to lend his name, the European Institute had managed to attract a number of eminent scholars, lawyers, politicians, and EC officials, amongst others Jacques Delors himself, three Directors General of the Commission, the Prime Minister of Luxemburg, Jacques Santer , as well as the former President of the ECJ, Lord Mckenzie-Stuart. Thus, the discussion did not merely focus on the legal aspects of subsidiarity, although much was said about its legal implications, but also considered at length its political, economic, and social aspects. The colloquium was divided into two parts: first, there was a general introduction to the principle of subsidiarity. In his introduction, Prime Minister Santer , concentrated on the relationship between subsidiarity and the distribution of powers and compared the situation in the EC, and what impact subsidiarity might have there, w i t h the constitutional situation in the Federal Republic of Germany, a parallel which has often been drawn and assessed. I n this context, the unfortunate deficiency of the proceedings from today's point of view becomes visible, namely that the discussions could not take into consideration the provisions of the Maastricht Treaty and thus could not comment on how subsidiarity in this treaty stands in relation to traditional concepts for example the German Constitution and what impact it w i l l have on the distribution of powers within the European Union. I n the second part of the colloquium, some special areas were chosen to demonstrate what role subsidiarity can play there, that is Monetary Union, Environmental Policy, and the Social Dimension. O f particular interest is the question of subsidiarity and environmental law. Here, it should be borne in mind that subsidiarity was already applicable to environmental law since the entry into force of the Single European Act through Article 130r(4). Under Maastricht, subsidiarity has been removed from this provision. Subsidiarity in Article 130r(4) is seen as a norm for the distribution of powers between the Community and the member States. The commentators stressed that the need for environmental protection requires a high level of cooperation between the Community and the member States rather than a strict separation of competences. Thus, the question of subsidiarity w i l l have to be assessed under legal as well as political considerations.

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Although, as it has been said, the colloquium did not deal with the new provisions of subsidiarity under the Maastricht Treaty which is really the center of discussion at the moment, it gives a very valuable insight into the role subsidiarity plays under the present law. It must be said that this book is not entirely written for and by lawyers. Hence, some presentations lack the legalistic precision one would have hoped for. Nevertheless, on the whole the book provides for some very useful information on the factual and political basis. Stefan Schmitz

Eugene F. Scoles / Peter Hay: Conflict of Laws, Second Edition 1992. West Publishing Co. St. Paul, Minn., Hornbook Series, 1160 pp. After a period of ten years the authors present the second edition of their well-known treatment of principles and issues in conflicts of law. Both authors are famous legal scientists and former professors of law (University of Illinois) as well as members of the Hague Conference on Private International Law. Peter Hay is also Honorarprofessor of the AlbertLudwigs-Universität at Freiburg / Germany and his comprehensive work " A n Introduction to U.S. Law" is also published in Germany. Both this new edition and the first edition, published in 1982, present an analysis and explanation of the constantly emerging developments in the wide scope of conflict of laws. Consequently, the sources (including the important International Treaties) and the other material, particularly reported cases (about 5,400) and foreign statutes, have been updated through 1991 in order to give a complete reflection of the significant developments during the last decade, especially in the area of private international law. A l l this has been done from the United States' point of view, where international and interstate conflict of laws are generally so responsive to similar policies, that there is little difference in doctrinal approach. The authors begin with an attempt to define the subject and give an overview of the historical development of the special meaning of the term in the American legal system in contrast to the continental law conceptions. I n their opinion neither the term "Conflict of Laws" nor the expression "Private International Law", as used by Westlake in his early writings in 1858, is fully descriptive. According to Scoles and Hay, other than in civil-lawcountries, in the common-law-countries, including the United States, facts or contracts w i t h jurisdictions other than the forum raise conflict-of-law concerns primarily in three different situations: first, whether a court can appropriately entertain a case which has foreign contacts, i. e., jurisdiction. Second, if a court does hear a case, to what extent does the law of another State have claim to consideration, i. e., choice of law ? Third, if a court hears a case, what is the effect of that determination or judgment in another State, i. e., judgments ? The structure of the book is based on these three main subject areas of the American law of conflicts. The international conflict of law questions, which like those in the United States are primarily of an interstate nature, are considered also in light of special differences in access or result which arise between the interstate and international cases. I n showing the development of Conflict of Laws the authors begin w i t h the ancient Italian Statutists in the late middle-ages, continue with modern European approaches and end by presenting the current state of Conflict-of-Laws theories in the American discussion prior to and after the Second Restatement. Thus, the theories of Story ("Comity"), Beale ("Vested Rights") and Cook ("Local Law") are mentioned as well as the doctrines of Currie ("Governmental Interests") and Ehrenzweig ("Lex Fori "), followed by statements of other respectable law teachers that include the modern approaches in the legal discussion. I n summarizing the

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development and the effects of the Second Restatement, Scoles and Hay estimate that predictability is the most important goal after the reexamination of the current choice-of-law rules and, according to their view, stability cannot result from repeating them in each new case that arises. Comparatively unimportant under American conflicts law is the use of renvoi in answering the question: how much of the foreign law is applicable? Scoles and Hay explain the special use of renvoi to the surprised civil-law lawyer. The typical phenomena of American conflicts laws are aealt w i t h in a broad presentation: domicile and jurisdiction over the different subjects of law (things, persons, business associations, etc.). A vast part of the book is addressed to a very comprehensive treatment of the various matters of substantial law in respect to their application in conflict-of-law cases: Matrimonial Law (including Legitimation and Adoption), Torts, Contracts, Property, Succession, Trusts and Powers of Appointment, Estates and Corporations (including their Winding-up and Bankruptcy). Separate chapters deal with the problems concerning "Procedure" and the "Recognition and Enforcement of Foreign Judgments and Decrees," providing a particular illustration of the application of American domestic law in relation to affected foreign legal rights. A good example is given by Scoles and Hay in discussing the 1987 U.S. Supreme Court Case Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa: The Court had to decide on the applicability of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, which entered into force in the United States in 1972. The Convention contains one reservation applicable to American Law and practice: according to Art. 23 a contracting party may declare "that it w i l l not execute Letters of Request for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries." I n effect, these reservations follow prior international practice. The question was, whether the Convention provides the exclusive or at least primary remedy so that the reservation must be respected or may discovery be ordered in application of the usual state or federal rules? The American legal practice was divided. The Supreme Court held that the Convention is applicable both to third parties and to litigants subject to the U.S. court's jurisdiction. However, the Convention does not displace the procedural rules of the forum; rather, it provides a parallel, optional procedure for obtaining evidence abroad. The majority in the Court did not accept the dissenters' view (it was the famous Justice Blackmun) that there should be a general presump-. tion favoring the use of the Convention nor thought that the existence of a foreign "blocking statute" forbidding the production of evidence, without more, called for the use of the Convention. The authors see the lower U.S. courts for the most part refusing the requirement of first resort to the Convention under the Supreme Court's comity analysis. Finally, the very important problem of enforcing foreign judgments is very comprehensively explained in several sections, which include a theoretical approach to the basic problem of Policy of Reclusion. To facilitate the research of practitioners and others who use their book, Scoles and Hay included a very detailed index and several Tables of Statutes and Cases, which w i l l assist both, common and civil-law lawyers. Peter Bracker

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Telford Taylor: The Anatomy of the Nuremberg Trials, A Personal Memoir. Alfred A. Knopf, New York 1992, 703 pp., Index. This personal memoir by a major participant at the Nuremberg Trials benefits from the author's direct experience and from the perspective of his more than forty years of law practice and teaching international law at Columbia University and at the Benjamin Cardozo School of Law in New York. During the Second World War, Telford Taylor served in Europe as a U.S. Army intelligence officer; after the war he joined the American prosecution staff at the International Military Tribunal in Nuremberg, and in 1946 was promoted to brigadier-general and made Chief Prosecutor for the twelve ensuing Nuremberg Trials under American jurisdiction. This book focuses on the international military trial against Hermann Goering and 21 other accused. There is nor need in this review to recount the history of the London Charter establishing the Tribunal, nor to describe the indictment or judgment, which are aptly summarized by the author. What the reader may expect is to see how a former prosecutor views the trials in retrospect; how he perceives issues such as nullum crimen sine lege , which is associated with the new notion of "crimes against peace"; how he appreciates the conduct of the trial, taking account of the principle of equality of arms, access to documentation, the tu quoque defence and mitigating circumstances; how he stands vis a vis the verdicts; his view of the precedential value of the trials, their impact on the development of the laws of armed conflict, in particular the 1949 Geneva Conventions and 1977 Protocols thereto, and whether he thinks that the time is ripe for another international criminal tribunal. The reader gets answers to some of these questions, but much remains to be said. Undoubtedly Taylor is one of the few persons alive who can give us a systematic analysis of the complex legal issues, but this book is not so much intended as a legal treatise, but rather as a personal memoir, full of vignettes, anecdotes, lively excerpts from the transcripts of oral argument, analysis of the respective strategies, and evaluation of the performance of the various prosecutors, defence counsel, their witnesses, etc. After a brief introduction, Taylor tells a coherent tale in 22 chapters, devoting ample attention to the pre-history of the trials, an evaluation in the light of the laws of war, and focuses on special issues such as the charges against the SS and the General Staff-High Command (chapter 10), the criminal organizations (chapter 11), the French and Soviet Prosecutions (chapter 12); he takes the defendants in groups: Goering and Hess (chapter 13), "Murderers' Row" (chapter 14), bankers and admirals (chapter 15), and dwells on the closing arguments (chapter 17), defendants' last words (chapter 19), and on the judgment (chapters 20 and 21). Perhaps the most notorious confrontation in the trial was Goering 9s cross-examination by the American chief prosecutor Robert Jackson , which began late in the morning session of 18 March 1946 and lasted for several days. Taylor explains why the celebrated duel turned into an embarrassment for Jackson , and enhances our knowledge by drawing on his own impressions of the personalities involved, including the judges who ruled against Jackson and caused this rather self-righteous man to lose his bearings (335-347). Cross-examination by the British prosecutor Sir David Maxwell-Fyfe proved more successful, but Fyfe fell short of establishing Goerings complicity in the illegal execution of the air force fugitives from Stalag Luft I I I at Sagan, Silesia, which was carried out by Himmler upon a direct order from Hitler. The most shocking evidence in the trial was presented in connection with the extermination of the Jews by the Einsatzgruppen , the destruction of the Warsaw ghetto, and the conditions

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in the concentration camps, including the testimony of Auschwitz commandant Hoess. A n interesting aspect here is that none of the accused admitted knowledge of the gas chambers and that the prosecution assumed, but was unable to establish, their actual knowledge; moreover, many of the accused insisted that although they were aware of the manifold antiJewish measures adopted by Hitler, they had not learned about exterminations until the Nuremberg trial itself. I t would have been most interesting if Taylor had elaborated on this crucial issue of knowledge of the extermination and on the possibility to oppose it, since there was much germane testimony, e. g. on Hitler's Order Number One concerning secrecy on State affairs (International Military Tribunal (IMT), vol. X X , 510) and on the discovery by SS judge Georg Konrad Morgen of the killings at Lublin / Maidanek, which prompted him to seek an indictment against Adolf Eichmann (id., 511-14). W i t h regard to the defence of the High Command of the Wehrmacht, this reviewer disagrees with Taylor's statement that "as for the asserted preservation of the laws of war by the German Army, [defence counsel] Laternser and his witnesses gave no evidence in support of their claim* (p. 530). Laternser, in fact, presented 3,186 affidavits to the Tribunal, many of them describing the measures taken by A r m y Generals and Colonels to ensure the observance of the Hague and Geneva Conventions, including the prosecution by court martial of Wehrmacht soldiers who had committed crimes against the civilian population in occupied territory, as well as the disregard or non-transmittal of Hitler's illegal Commissar and Commando orders (see my chapter in: Alexander Demandt (ed.), Macht und Recht, Große Prozesse in der Geschichte, Munich 1990, 249-270). The originals of these affidavits are found at the Peace Palace at the Hague, but not a single one of them was reproduced in the published 42-volume I M T documentation. As to the verdicts, Taylor feels that Grand Admiral Dönitz should not have been convicted on the evidence, nor Julius Streicher, whose main crime was that of being repulsive, but the Tribunal may have been influenced "by the likelihood of a negative public reaction if Streicher got anything less than the worst" (599); according to Taylor, "mitigation" in the case of Seyss-Inquart could have justified a prison sentence of twenty years instead of death, but his case was apparently not pressed forcefully enough. O n the other hand, Taylor believes that the evidence fully justified the death sentence against Jodl, that the death sentence against Funk would have been appropriate, that Speer was at least as guilty as Sauckel for the use of forced labour in the war industry and could similarly have been sent to the gallows. A l l sentences were submitted to the Allied Control Council for clemency; but the Control Council was a political body, not a judicial appellate court. I n spite of the arguments made by defendants' lawyers, all sentences were confirmed. Goering's, Keitel's and Jodl's petitions to be shot rather than hanged were rejected. Taylor gives the reader an interesting review of the serious hypotheses concerning Goering's suicide, where he might have hidden the cyanide capsule, and whether the American lieutenant "Tex" Wheelis helped him (618-624). As to the execution by hanging of the ten remaining convicts in the early hours of October 16,1946, Taylor refers to press articles criticising the fact that apparently the drop was not long enough and that the men had not been properly tied, so that their heads struck the platform as they fell and they "died of slow strangulation" (London Star). Taylor spares the reader the more gruesome details that Jodl took 18 minutes to die, Keitel 24 minutes, and that Streicher kept moaning long after the fall. Over the dissenting vote of the Soviet judge, three of the accused were acquitted: Hans Fritzsche, Franz von Papen and Hjalmar Schacht. After their release, they were all subjected to further penal proceedings. The Spruchkammer in Nuremberg sentended Fritzsche to nine years of hard labor, loss of voting, pension, and public office rights; von Papen was sentenced

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by the same court to ten years in a labor camp. Similarly, Schacht was sentenced by a Stuttgart court to eight years in the Ludwigsburg labor camp; on appeal he was acquitted, but then subjected to further denazification proceedings in Lüneburg. Taylor reports on this without addressing the apparent violation of the principle of ne bis in idem (612-14). One of the most problematic aspects of the trial concerned the indictment against organizations such as the SS and the Gestapo. Obviously the organizations could not be "punished", since they had all ceased to exist. But the motivation for the indictment was to facilitate the punishment of the individual members of these organizations, an idea that flies in the face of the principles of presumption of innocence and individual guilt. Thus, mere membership in a "criminal organization" could lead to conviction and sentencing of individuals who under contemporary legal principles would not be deemed to have committed any criminal offence. The Nuremberg judgment held the SS, SD, Gestapo and leadership corps of the NSDAP to be "criminal organizations"; the Reich cabinet, the SA, the general staff and the High Command of the Wehrmacht ( O K W ) were not so found. Taylor concludes that the judgment against the organizations was of little consequence, since the process of denazification was subsequently applied to all Germans, who were thus punished and disenfranchised independently of the Nuremberg judgment. O n page 634 Taylor poses the final question: was the I M T a success? He believes that it was. I n this context he recalls the United Nations General Assembly Resolution of 11 December 1946, which "affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal," (GA res. 95 (I)). This meant, among other things, that the concept of "crimes against peace" had been recognized and that the precedent of individual responsibility for waging aggressive war had been established. This reviewer observes that although the criminalization of aggressive war for the future is indubitably a good thing, the violation of the ex post facto principle vis a vis the Nuremberg defendants, remains a flaw, and, as Taylor concedes, for a great many Germans, Nuremberg was not a success (639). Moreover, Nuremberg's criminalization of aggressive war has notoriously failed to deter politicians from launching countless aggressions since World War II. The chapter on the defendants' last words is interesting, not only from the human and psychological aspect, but also because of certain legal issues that the defendants raised. While Goering criticised the evaluation of the evidence by the Tribunal, Hans Frank put his finger on perhaps the most important flaw in the trial: the double-standard or double-morality of the victors. When testifying during the trial, Frank had acknowledged the enormity of the German crimes: "a thousand years would not suffice to erase the guilt brought upon our people because of Hitler's conduct of this war". N o w he rectified his prior statement: "Every possible guilt incurred by our nation has already been completely wiped out today, not only by the conduct of our wartime enemies toward our nation, and its soldiers, which has been carefully kept out of this trial, but also by the tremendous mass crimes of the most frightful sort which — as I have now learned — have been and still are being committed against Germans by Russians, Poles, and Czechs, especially in East Prussia, Silesia, Pomerania, and Sudetenland. Who shall ever judge these crimes against the German people?" Taylor wryly records that "when delivered, the passage caused no stir in the courtroom"(539). The reader would have welcomed greater elaboration by Taylor, especially in his capacity as professor of international law. Indeed, if the Nazis had been convicted of war crimes and crimes against humanity partly upon the specific indictment of having carried out compulsory population transfers, how w i l l history judge the Allied prosecutors and judges whose governments were, at the very same time when the Nuremberg trials were being conducted, engaged in the gruesome enterprise of expelling 14 million Germans from their homelands, a barbarous

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process which more than two million did not survive. It is to the credit of the British Jewish publicist Victor Gollancz that he vigorously protested against this Allied crime against humanity in his book Our Threatened Values , where he observed: " I f the conscience of mankind ever again becomes sensitive, these expulsions w i l l be remembered to the undying shame of all who committed or connived at them... . The Germans were expelled, not just w i t h an absence of over-nice consideration, but with the very maximum of brutality."(96) Taylor apparently does not perceive this matter as a "political wart on Nuremberg and the I M T " (639), as he does the presence of Soviet judges and prosecutors at I M T , including General Roman Rudenko , who had been a prosecutor at Stalin's purge trials in the 1930s, Stalin's invasion of Poland in September 1939 and the Soviet aggression against Finland (November 1939 — March 1940). Admittedly, the Soviet presence at Nuremberg did pose problems, not to speak about the failed attempt to pin the Katyn murders on the Germans (466-72). But Taylor somehow still seems to think that the Western Allies were on very solid moral ground. This reviewer would observe that by comparison with the enormity of the Allied decisions (at Teheran / Yalta / Potsdam) to uproot 14 million Germans and to use German labour as "reparations in kind" (effectively reintroducing slave labour, pursuant to specific agreement at Yalta on 11 February 1945), (Protocol on German Reparations, Foreign Relations of the United States, the Conferences at Malta and Yalta, 1945, 982-3), the abovementioned "political warts" are but historical arabesques. Although the bibliography is relatively short (only 77 titles), it is well chosen, including the important but neglected works by August von Knieriem , The Nuremberg Trials, and by H. K. Thomson and Henry Strutz (eds.), Doenitz at Nuremberg: A Reappraisal. Some critical English sources are missing, such as Lord Hankey's indignant Politics, Trials and Errors, and reference to germane studies on Allied war crimes (see Kimminich , German Yearbook of International Law, vol. 34,598 - 600); nor does the bibliography include important Germanlanguage sources such as Kurt Heinze and Karl Schilling's handbook Die Rechtsprechung der Nürnberger Militärtribunale, Robert Kempner's Das Dritte Reich im Kreuzverhör , and Otto Kranzbühler's thoughtful Rückblick auf Nürnberg. The notes at the end of the book are extremely helpful and thorough. It is perhaps an anomaly that in the 46 years following the Nuremberg and Tokyo judgments no other international military tribunal has been established to prosecute the grotesque violations of the Hague and Geneva Conventions that have been committed since then. There have been, of course, private tribunals established by concerned individuals in order to draw public attention to the abuses in some of those wars, such as the Bertrand Russell Tribunals of the 1970s concerning the Vietnam war and the Commission of Inquiry for the International War Crimes Tribunal, in which former U.S. Attorney General Ramsey Clark participated, and which examined the legality of United States actions during the war against Iraq in 1991, popularly known as "desert storm" (Ramsey Clark , The Fire This Time: U.S. War Crimes in the Gulf, New York 1992). This book is particularly timely in the light of the United Nations Security Council Resolution to establish a war crimes commission and a war crimes tribunal in connection w i t h the war in the former Yugoslavia (SC res. 780 of 6 October 1992, and SC res. 808 of 22 February 1993). It is to be hoped that Telford Taylor w i l l have the opportunity of writing another personal memoir of the twelve American trials held at Nuremberg from 1946 to 1949, for which he served as chief prosecutor. Also w i t h respect to these trials it is good to recall Taylor's concluding remark that "the laws of war do not apply only to the suspected criminals of

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5 77

vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street." (641) Who would disagree? Alfred de Zayas

Jacques Velu / Rusen Ergec: La Convention Europeenne des Droits de l'Homme. Extrait du Repertoire pratique du droit beige, Complement, tome V I I . Etablissements Emile Bruylant, Bruxelles 1990, 1185 S. Ein intimer Kenner des Straßburger Menschenrechtssystems ist der erste Generalanwalt beim Belgischen Kassationshof, Professor Jacques Velu, was zahlreiche monographische Arbeiten aus den letzten drei Dezennien ausweisen. Zusammen mit Rusen Ergec, der auch auf diesem Gebiet publiziert hat, legte er ein umfangreiches Werk über die Europäische Konvention vor. Schon die Reihe, in der es erschien, zeigt, daß es sich in erster Linie an die belgischen Praktiker richtet, um ihnen als Arbeitshilfe zu dienen, wenn sie mit der Anwendung der Konvention vor belgischen Gerichten befaßt sind. Daher nehmen die Hinweise auf belgisches Recht und sein Verhältnis zum Konventionsrecht in allen Teilen des Werkes einen breiten Raum ein. Es ist nicht leicht zu sagen, welchem Typ dieses Rechtsbuch zuzuordnen ist. Über eine Monographie geht es hinaus, da es die Konvention umfassend — auch in ihrem Verhältnis zu anderen Instrumenten des internationalen Menschenrechtsschutzes — darstellt. Nach einer breit angelegten Einleitung (25 - 67 = 5,4 % des Gesamtwerkes) werden in einem Hauptteil I (68-687 = 60 %) sowohl die allgemeinen Probleme der Konventionsanwendung (68215) als auch — teilweise in Gruppen zusammengefaßt — die einzelnen Menschenrechtsgarantien und ihre Auslegung durch die Straßburger Organe abgehandelt. I n einem Hauptteil I I (689-1136 = 34,6 %) folgt das Verfahrensrecht. Dennoch ist das Werk kein Kommentar im bei uns üblichen Sinne. Denn die Verfasser stellen ganz entschieden eine Darstellung der Straßburger Spruchpraxis und Judikatur in den Vordergrund, während sie sich bei einer Beurteilung ihrer Ergebnisse weitgehend zurückhalten. Ganz am Schluß des Werkes (1137) betonen sie, nicht mehr unternommen zu haben, als eine Rohskizze (ebauche) der Probleme zu zeichnen, die sich bei Anwendung der Konvention ergeben. Das klingt nicht nur wegen des Umfanges des Werkes, sondern auch angesichts der Fülle des ausgebreiteten Materials übermäßig bescheiden, mag aber doch zur Charakterisierung der Absichten der Verfasser herangezogen werden. Das Werk beginnt unmittelbar nach der Widmung an Walter J. Ganshof van der Meersch mit einer reichen Bibliographie von Arbeiten auch über andere Instrumente des internationalen und regionalen Menschenrechtsschutzes (1-24). Eine Trennung zwischen Werken auf französisch und in anderen Sprachen (Deutsch, Englisch, Flämisch (!), Italienisch, Niederländisch, Norwegisch und Spanisch) ist verständlich. Eine systematische Gruppierung nach nicht leicht verständlichen Kriterien erschwert es hingegen dem Benutzer, angesichts der Fülle des ausgebreiteten Materials sich leicht zurechtzufinden, zumal neueste Arbeiten außerhalb der alphabetischen Reihenfolge jeweils am Schluß einer Gruppe nachgetragen sind. Auch wer selbst auf diesem Gebiet gearbeitet hat, wird jedoch Publikationen finden, die ihm bisher entgingen. Andererseits mag man vermissen, daß neben den amtlichen Dokumentensammlungen nicht auch die wichtigsten Vertragssammlungen aufgeführt werden, in denen das Konventionsrecht erscheint. Von einzelnen Abhandlungen vermißt man nur die verdienstliche Arbeit von Nehemiah Robinson, Universal Declaration of Human Rights, its origin, significance and interpretation, New York 1950. Auch die einschlägigen Stichworte im Wör-

37 GYIL 36

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terbuch von Strupp-Schlochauer und in der Encyclopedia of Public International Law erscheinen weder in der allgemeinen noch in den sonst sehr ausführlichen Bibliographien zu den einzelnen Artikeln. Bei Artikel 6 umfaßt sie ganze sechs Seiten. Zum Technischen ist noch zu bemerken, daß dieses Werk nicht nur ohne Fußnoten auskommt, sondern auch alle Nachweise in den Text übernommen sind. Ein Sachregister (1147-1154) ist sparsam gehalten, während das sehr ins einzelne gehende Inhaltsverzeichnis (1155 -1185) sich durch die vielen Untergliederungen nicht leicht einem Überblick erschließt. Leider fehlt ein Abkürzungsverzeichnis für die Fundstellen belgischer Gerichtsentscheidungen. Aus räumlichen Gründen muß hier darauf verzichtet werden, auf Einzelausführungen des umfangreichen Werkes systematisch einzugehen. Zur Methode wurde schon oben einiges angedeutet. Der Leser soll genau wissen, wie die Straßburger Organe die Konvention und die Zusatzprotokolle angewendet haben und wie sie zu welchen Ergebnissen gelangten. Das ist so ausführlich unter reichlicher Benützung von Zitaten aus den Entscheidungen dargelegt, daß es sich häufig erübrigt, ihre Texte nachzuschlagen. Hingegen ist auf ihre Kritik weniger Wert gelegt, selbst wo sie von Mitgliedern der Spruchkörper selbst zu Protokoll gegeben wurde. Als Beispiel sei die massive Kritik genannt, die Sir Fitzmaurice an der Auslegung von Artikel 14 durch den Gerichtshof übte. Sie wird nur kurz erwähnt (115). Der Rezensent hätte auch erwartet, daß zur unterschiedlichen Vollstreckung von Disziplinarstrafen nach Standesgesichtspunkten in der Niederländischen Armee (Sache Engel u. a. ./. Niederlande vom 22. November 1967, Serie A N ° 22) mindestens ein Fragezeichen gesetzt worden wäre. I m übrigen ist aber in dem Abschnitt über Artikel 14 die dramatische Entwicklung zum autonomen Charakter dieser Vorschrift plastisch geschildert. Dabei konnten die Verfasser, worauf sie besonderen Wert zu legen scheinen, sich sehr ausführlich mit mehreren Verfahren gegen Belgien beschäftigen. Besonders hinzuweisen ist auch auf die Abschnitte über Auslegungsprobleme (51-61) und über den Eigentumsschutz (672-687), während die fast nur auf Belgien konzentrierten kurzen Bemerkungen über das Verhältnis von Konventionsrecht zu Landesrecht (82 - 85) vieles offen lassen. I n der Zusammenfassung ihrer Ergebnisse (1136-1145) stellen die Verfasser fest, die Konvention habe sich als bemerkenswerte Grundlage für einen wirkungsvollen Menschenrechtsschutz erwiesen. Sie sei flexibel genug, um auch einer dynamischen Auslegung Raum zu lassen. Das gelte auch für ihre Schrankenklauseln, bei deren Auslegung der sozialen Dimensibn ein Vorrang vor einer traditionalistischen Berücksichtigung der Staatsraison eingeräumt worden sei. Die Organe hätten auch den Grundsatz der Subsidiarität des europäischen Rechts gegenüber dem nationalen Recht angemessen beachtet, so daß es sich erübrige, den Menschenrechtskatalog der Konvention — wie in Belgien vorgeschlagen — in die nationale Verfassung zu übernehmen (1139). Zu den seit längerer Zeit schwebenden Reformvorschlägen nehmen sie Stellung (11391145). I m Vordergrund steht für sie der Gedanke einer Vereinigung der Kommission mit dem Gerichtshof, obwohl sie die Gefahr einer Verkümmerung der Vermittlungsfunktion nicht verkennen. Die drastisch geschilderte Verfahrensdauer mache jedoch Abhilfe nötig, zumal die Organe selbst schon gegen die Grundsätze verstießen, deren Beachtung sie von den Mitgliedstaaten verlangten. Eine Besetzung des Gerichtshofes mit hauptamtlichen Richtern sei kaum zu vermeiden. Obwohl das Buch sich an einen speziellen Leserkreis wendet, sollte es auch darüber hinaus Beachtung finden. Das verdienen die sorgfältig formulierten Analysen des Rechtsgehaltes der Konvention. Aus ganz praktischen Gründen kommt hinzu, daß es die Spruchpraxis und

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Judikatur bis zum Jahre 1989 erfaßt. Seit 1986, als der Kommentar von J. A. Frowein und W. Peukert erschien, hat der Gerichtshof bis 1989 mehr als 80 Urteile gefällt, die hier verwertet sind. Karl Josef Partsch

Books Received (Inclusion in this list neither assures nor precludes later review)

Gilbert Apollis: Recueil d'Etudes ä la memoire de Gilbert Apollis. Editions A. Pedone, Paris 1992, 257 pp. Belgium Review of International Law: Vol. X X V , 1992-1. Editions Bruyant, Brussels 1992, 315 pp. Ralph Beddard: Human Rights and Europe. Grotius Publications Ltd., Cambridge 1993, 278 pp. Geraldine Beliard/ Eric Riquier / Xiao-Yan Wang: Glossaire De Droit International Prive, Editions Bruyant, Brussels 1992, 289 pp. Lawrence Boisson de Chazoumes: Le contre mesures dans les relations internationales economiques. Editions A . Pedone, Paris 1992, 246 pp. Rosa M. Riquelye Cortardo: La intervenciön de terceros estados en el proceso internacional. Editorial Tecnos, Madrid 1993, 155 pp. Yves Daudet: Rencontres internationales de Plnstitut d'Etudes Politique d'Aix en Provence — Aspects du systeme des Nations Unies dans le cadre de l'idee d'un nouvel ordre mondial. Colloque des 22 et 23 novembre 1991. Editions A. Pedone, Paris 1992, 203 pp. Yves Daudet: Rencontres internationales de Plnstitut d'Etudes Politique d'Aix en Provence — Actualites des conflits internationaux. Colloque des 4 et 5 decembre 1992. Editions A . Pedone, Paris 1993, 197 pp. Robert C. Effros: Current Legal Issues Affecting Central Banks. Vol. 1. International Monetary Fund, Washington 1992, 642 pp. Said El-Naggar: Economic Development of the Arab Countries, International Monetary Fund, Washington 1993, 290 pp. Hans-Michael Empell: Nuklearwaffeneinsätze und humanitäres Völkerrecht — Die Anwendbarkeit des I. Zusatzprotokolls zu der Genfer Konvention von 1949 auf Nuklearwaffeneinsätze, Forschungsstätte der Evangelischen Studiengemeinschaft, Heidelberg 1993, 215 pp. Cesdro Guitierrez Espada: Hacia un Compendio de Derecho Internacional Publico. D M . Murcia, Barcolona 1992, 525 pp.

Books Received

581

Hazel Fox/Michael Meyer: Armed Conflict and the New Law. Effecting Compliance. Vol. II. British Institute of International and Comparative Law, London 1993, 251 pp. Francesco Francioni: International Environmental Law for Antarctica. Guiffre Publishing, Milano 1992, 281 pp. Ronaldo Bermejo Garcia: El Marco Juridico Internacional en Materia de Uso de la Fuerza: Ambigüedas y Limites. Civitas, Madrid 1993, 422 pp. Eyassu Gayim: The Eritrean Question — the Conflict Between the Right of Self-determination and the Interests of States. Swedish Institute of International Law, Uppsala 1993, 716 pp. D. W. Greig / Philip Alston: The Australian Yearbook of International Law. Vol. 12. Faculty of Law, Australian National University 1992, 555 pp. D. W. Greig / Philip Alston: The Australian Yearbook of International Law. Vol. 13. Faculty of Law, Australian National University 1992, 524 pp. Andrea de Guttry / Natalino Ronzitti: The Iran-Iraq War (1980 -1988) and the Law of Naval Warefare, Grotius Publications Ltd., Cambridge 1993, 597 pp. Lauri Hannikainen: Cultural and Educational Rights in the Aland Islands. A n Analysis in International Law. The Advisory Board for International Human Rights Affairs, Helsinki 1993, 102 pp. Horst Hannum: Guide to International Human Rights Practice. 2nd Edition. University of Pennsylvania Press, Philadelphia 1992, 308 pp. Hans Joachim Heintze: Remote Serving Under Changing Conditions — Proceedings of the Immenstaad Workshop 1992. Institut für Friedenssicherung, Bochum 1992, 222 pp. International Monetary Fund: World Economic Outlook. IMF, Washington 1993, x + 197 pp. Stefan Kadelbach: Zwingendes Völkerrecht. Schriften zum Völkerrecht, Band 101. Duncker & Humblot, Berlin 1992, 383 pp. Pierrick le Jeune: La cooperation policiere europeenne contre le terrorisme. Editions Bruyant, Brussels 1992, 281 pp. Alexandre Kiss / Dinah Shelton: Manual of European Environmental Law, Grotius Publications Ltd., Cambridge 1993, 561 pp. Patrick R. Myers: Succession Between International Organisations. A Publication of the Graduate Institute of International Studies, Geneva. Keegan Paul International, London / New York 1993, 185 pp. Inger Osterdahl: Freedom of Information in Question — Freedom of Information in International Law and the Calls for a New World Information and Communication Order. Swedish Institute of International Law, Uppsala 1992, 383 pp.

Books Received Fatsah Ouguergouz: La charte africaine des droits de l'homme et des peuples. Presses Universitaire de France, Paris 1993, xxix + 479 pp. Photini Pazartzis: Les engagements internationaux en matiere de reglement pacifique des differends entre etats. Librairie Generale de Droit et de Jurisprudence, Paris 1992, 349 pp. William A. Shabas: The Abolition of the Death Penalty in International Law. Grotius Publications Ltd., Cambridge 1983, 384 pp. Louis B. Sohn / T. Buergenthal: The Movement of Persons Across Borders. Studies in Transnational Legal Policy No. 23. American Society of International Law, Washington 1992, xxii + 193 pp. Amsatou Sow Sidibe: Le Pluralisme Juridique un Afrique- L'exemple du droit successoral senegalais, Bibliotheque Africaine et Malgache, tome 2, Editions Juridiques Associees, Paris 1993, 383 pp. Werner Stocker: Das Prinzip des „Common Heritage of Man" als Ausdruck des Staatengemeinschaftsinteresses im Völkerrecht. Vol. 81. Schulthess Polygraphischer Verlag A G , Zürich 1993, xxxviii + 236 pp. Jacob W. F. Sundberg: Human Rights in Sweden. Annual Reports 1982-84. Institutet för offentlig och internationell rätt, Stockholm 1985, 114 pp. Jacob W. F Sundberg: Human Rights in Sweden. Annual Report 1985. Fred B. Rothman & Co., Colorado 1987, 160 pp. Jacob W. F. Sundberg: Human Rights in Sweden. Annual Report 1986. Fred B. Rothman & Co., Colorado 1988, 163 pp. Jacob W. F. Sundberg: Human Rights in Sweden. Annual Report 1987. Fred B. Rothman & Co., Colorado 1989, 166 pp. Jacob W. F. Sundberg: Human Rights in Sweden. Annual Report 1988. Fred B. Rothman & Co., Colorado 1991, 152 pp. Jacob W. F. Sundberg: Sporrang Lönnroth Moot Court Competition 1990 Report. Stockholm Institute of Public International Law, Stockholm 1990, 72 pp. Jacob W. F. Sundberg: Sporrang Lönnroth Moot Court Competition 1991 Report. Stockholm Institute of Public International Law, Stockholm 1991, 72 pp. Vito Tanzi: Transition to Market — Studies in Fiscal Reform, International Monetary Fund 1993, 387 pp. Publications of Swiss Institute of Comparative Law: The Responsiveness of Legal Systems to Foreign Influences. Reports presented to a colloquium on the occasion of the tenth anniversary of the Swiss Institute of Comparative Law. Schulthess Polygraphischer Verlag, Zürich 1992, 444 pp.

Books Received

583

Institute of International Public Law & International Relations of Thessaloniki: Sources of International Law. Thesaurus Acroasium, Vol. X I X . Institute of International Public Law and International Relations, Greece 1992, 617 pp. Danfred J. Titus: The Applicability of the International Human Rights Norms to the South African Legal System. T. M . C. Asser Instituut, The Hague 1993, 255 pp. M. Weiler: Iraq & Kuwait: The Hostilities and Their Aftermath. Cambridge International Documents Series, Vol. 3. Grotius Publications Ltd., Cambridge 1993, 780 pp.

List of Contributors Berrisch , George M.

Dr., L L . M . (McGill), Partner Schön, Nolte, Finkelnburg & Clemm, Brussels, Belgium

Bracher, Peter

Rechtsreferendar, Bundesrepublik Deutschland

Delbrück, /osr

Prof. Dr., Direktor des Instituts für Internationales Recht an der Universität Kiel, Bundesrepublik Deutschland

Dinstein , Yoram

M.Jur. LL.M., Dr. Jur., Yanowicz Professor and President, University Tel-Aviv, Israel

Elbe , Frank

Ambassador of Germany to India, New Delhi

Eriksson , Afo/d Kirilova

Professor, Faculty of Law, Uppsala University, Sweden

Fitschen

Legationsrat, German Mission to the United Nations, New York, New York

y

Thomas

Heinz, Ursula

Dr., Wiss. Assistentin am Institut für Internanationales Recht an der Universität Kiel, Bundesrepublik Deutschland

Hempely

L L . M . (Indiana), Rechtsreferendar, Bundesrepublik Deutschland

Michael

Hendry ,

D.

Hobe y Stephan

KrantZy

Daniela

Kwiatkowska, Barbara Maffeiy

Maria Clara

Meessen, Karl Matthias

Legal Counsellor, Office of the United Kingdom Permanent Representative to the European Communities, Brussels Dr., L L . M . (McGill) Wiss. Assistent am Institut für Internationales Recht an der Universität Kiel, Bundesrepublik Deutschland Wiss. Mitarbeiterin am Institut für Internationales Recht an der Universität Kiel, Bundesrepublik Deutschland Prof. Dr., Associate Director N I L O S , Netherlands Dr., Researcher in International Law, University of Modena, Italy Prof. Dr., Universität Augsburg, Bundesrepublik Deutschland

List of Contributors

585

Newcity, Michael

Professor, Center for East-West Trade, Investment and Communications, Duke University, USA

Niewerthy Johannes

ehem. Wiss. Mitarbeiter am Institut für Internationales Recht an der Universität Kiel, Bundesrepublik Deutschland, z. 2. Charlottesville, USA

Partsch , Karl Josef

Dr., em. Professor des öffentlichen Rechts an der Universität Bonn, Bundesrepublik Deutschland

Plesmann , Wolf

Mitglied des Graduiertenkollegs nationales, europäisches und internationales Umweltrecht, Bundesrepublik Deutschland

Prieß, Hans-Joachim

Dr., L L . M . (Indiana), Deringer, Tessin, Herrmann and Sedemund, Brussels, Belgium

Schmitz, Stefan

L L . M . (Cambridge), Bundesrepublik Deutschland

Sveinsson y Tomas

Member of the Secretariat of the Presidium of the Nordic Council, Sweden

Vidas, Davor

Dr., The Fridtjof Nansen Institute, Norway

Walther,

Dr., LL.M., M P I für ausländisches und internationales Strafrecht, Freiburg, Bundesrepublik Deutschland

Susanne

Watts, Sir Arthur

Wolfrum y Rüdiger

de ZayaSy Alfred

K C M G , Q C ; M A , L L . M (Cambridge); Associate Member, Institut de Droit International; Barrister at Law, London, Great Britain Prof. Dr., Direktor, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, Bundesrepublik Deutschland J.D. (Harvard), Dr. phil., Attorney at Law (New York / Florida), Centre for Human Rights (on leave), United Nations Office at Geneva, Switzerland