German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 38 (1995) [1 ed.] 9783428485215, 9783428085217

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GERMAN YEARBOOK OF I N T E R N A T I O N A L LAW

V O L U M E 38 • 1995

DUNCKER

& HUMBLOT

• BERLIN

GERMAN YEARBOOK OF INTERNATIONAL Volume 38 • 1995

LAW

Founders: Rudolf Laun • Hermann von Mangoldt Editor: Jost Delbrück Assistant Editor: Eric Johnson Walther-Schücking-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 PUniversite de Paris I I Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes fitudes Internationales, Geneve Antonius Eitel New York; Bonn Luigi Ferrari Bravo Universitä di Roma Louis Henkin Columbia University, New York Tommy T. B. Koh Singapore John Norton Moore University of Virginia, Charlottesville

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Hague Christian Tomuschat Humboldt-Universität zu Berlin Sir Arthur Watts London Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 38 • 1995

DUNCKER & HUMBLOT / BERLIN

Gedruckt mit finanzieller Unterstützung der Ministerin für Wissenschaft, Forschung und Kultur des Landes Schleswig-Holstein

Beginning i n 1995, the Institut für Internationales Recht an der Universität K i e l has changed its name to the Walther-Schücking-Institut für Internationales Recht an der Universität K i e l

The Views Presented are those of the Contributors and do not Reflect or Represent the Views of the Editor , Assistant Editor , or Walther-Schücking-Institut für Internationales Recht

This Yearbook may be cited: G Y I L 38 (1995)

Please address communications to: Editors German Yearbook of International Law Walther-Schücking-Institut für Internationales Recht an der Universität Kiel Olshausenstrasse 40 D-24098 Kiel

All rights reserved © 1996 Duncker & Humblot GmbH, Berlin Printed by Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 3-428-08521-3 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 ©

Contents

Articles Carl-August Fleischhauer: The United Nations at Fifty

9

Albert Bleckmann: General Theory of Obligations under Public International Law ...

26

Stephen C. Neff: The Prerogatives of Violence - I n Search of the Conceptual Foundations of Belligerents' Rights

41

Stefan Oeter: State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession w i t h Respect to State Property and Debts in Cases of Separation and Dissolution of States

73

Doris König: Putting an End to an Endless Constitutional Debate? The Decision of the Federal Constitutional Court on the ' O u t of Area* Deployment of German Armed Forces 103 Emmanuel Spiry: From 'Self-Determination' to a Right to 'Self-Development' for Indigenous Groups 129 Maureen A. Convery: The Privacy of Telephone Conversations under German Law and Article 8 of the European Convention of Human Rights: Improving Human Rights Enforcement through Domestic Decisions 153 Ulf Bernitz: The Incorporation of the European Human Rights Convention into Swedish Law - A Half Measure 178

Special Theme: Migration Rüdiger Wolfrum: International Law on Migration Reconsidered Under the Challenge of New Population Movements 191 Michael Hasenau: Changing Features of Economic Migration and International Law 208

6

Contents

Otto Kimminich: The Conventions for the Prevention of Double Citizenship and their Meaning for Germany and Europe in an Era of Migration 224

Karin Oellers-Frahm and Andreas Zimmermann: France's and Germany's Constitutional Changes and their Impact on Migration Law. Policy and Practice 249

Gerald L. Neuman: Recent Trends in United States Migration Control

284

Arthur C. Helton: The Legal Dimensions of Forced Migration in the Former Soviet Union 306

Commemoration Alexander Böhmer: One Hundred Years: The Kiel Canal in International Law

325

Reports Dorte Pardo Lopez: Die Rechtsprechung des Europäischen Gerichtshofes für Menschenrechte im Jahre 1994 347

Christian Feist: Die Tätigkeit der International Law Commission in den Jahren 1993 und 1994 376

Britta Buchenau und Anja Stein: Die Tätigkeit des Ministerkomitees und der Parlamentarischen Versammlung des Europarates in den Jahren 1993 und 1994 389

Book Reviews Ahernathy: Law in the United States: Cases and Materials (Johnson)

412

Beigbeder: International Monitoring of Plebiscites, Referenda and National Elections (Turack) 414

Blomeyer / Schachtschneider (Hrsg.): Die Europäische Union als Rechtsgemeinschaft (König) 416

Dicke: Effizienz und Effektivität internationaler Organisationen: Darstellung und kritische Analyse im Reformprozeß der Vereinten Nationen (Tomuschat) 418

Contents Eser / Heine (eds.): Umweltstrafrecht in England, Kanada und den USA (Pardo Lopez)

420

Fleck (Hrsg.): Handbuch des humanitären Völkerrechts in bewaffneten Konflikten (Gading) 422

Franck: Fairness in the International Legal and Institutional System. General Course on Public International Law, Recueil des Cours, Collected Courses of the Hague Academy of International Law (Hobe) 426

Friedrich: Das Gesetz des Krieges: Das deutsche Heer in Rußland 1941- 1945: Der Prozeß gegen das Oberkommando der Wehrmacht (de Zayas) 429

Gayim: The Eritrean Question: The Conflict between the Right of Self- Determination and the Interests of States (Hannikainen) 431

Grabitz / v. Bogdandy / Nettesheim (Hrsg.): Europäisches Außenwirtschaftsrecht Der Zugang zum Binnenmarkt: Primärrecht, Handelsschutz und Außenaspekte der Binnenmarktharmonisierung (Tietje) 433

Helm-Busch: Executive Agreements im US-amerikanischen Verfassungsrecht (Johnson)

436

Hobe: Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums (Malanczuk) 439

Hummer / Simma / Vedder / Emmert: Europarecht in Fällen (Hobe)

443

James: The Application of Economic Techniques in Environmental Impact Assessment (Pardo Lopez)

443

Jarras / Pieroth: (Hobe)

Grundgesetz für die Bundesrepublik Deutschland: Kommentar 444

Kasoulides: Port State Control and Jurisdiction: Evolution of the Port State Regime (König) 447

Kluth: Die demokratische Legitimation der Europäischen Union (König)

Koenig / Pechstein: Die Europäische Union, der Vertrag von Maastricht (Böhmer) —

448

455

8

Contents

Langer: Grundlagen einer internationalen Wirtschaftsverfassung - Strukturprinzipien, Typik und Perspektiven anhand von Europäischer Union und Welthandelsorganisation (Tietje) 456 Lijnzaad: Reservations to U N Human Rights Treaties - Ratify and Ruin (Feist)

460

Martin: Droit international public (Hobe)

463

Merten (Hrsg.): Die Subsidiarität Europas (König)

465

Netherland Institute for the Law of Sea: International Organizations and the Law of the Sea: Documentary Yearbook, vol. 8 (König) 467 Nettesheim: Ziele des Antidumping- und Antisubventionsrechts - Eine Darstellung am Beispiel des Rechts der USA mit Bezügen zum Recht der Europäischen Gemeinschaften (Tietje) 468 Salter: European Environmental Law. Volumes 1 and 2 (Pardo Lopez)

470

de Schlichting: Le francais juridique; Vorwort von Jaques Mauro ( Genet)

472

Schomerus / Schräder / Wegener: Umweltinformationsgesetz. Kommentar (Pardo Lopez) 473 Schwarze: Die Jurisdiktionsabgrenzung im Völkerrecht: Neuere Entwicklungen i m internationalen Wirtschaftsrecht (Böhmer) 474 Weis (ed.): The Refugee Convention, 1951: The Travaux Preparatoires Commentary by Dr. Paul Weis (Balian)

Analysed w i t h a 477

Villger: Handbuch der Europäischen Menschenrechtskonvention (EMRK) (Pardo Lopez)

479

Zimmermann: Das neue Grundrecht auf Asyl (Hobe)

480

Books Received

483

List of Contributors

486

ARTICLES

The United Nations at Fifty By Carl-August Fleischhauer""

I.

Fifty years ago, in the spring and early summer of 1945, while in Europe the Second World War ended and while it was drawing to a close in the Far East, the founding conference of the United Nations took place in San Francisco. The United Nations Conference on International Organization, as its official name read, opened w i t h the participation of 50 States on 25 April 1945, and it ended w i t h the signing of the United Nations Charter only two months later, on 26 June 1945. Another four months later 29 of the signatories of the Charter, including the five Permanent Members of the Security Council, had deposited their instruments of ratification, and the Charter, in accordance w i t h its Article 110, entered into force on 24 October 1945. Important groundwork had been laid through the Joint Declaration of the President of the United States and the Prime Minister of the United Kingdom of 14 August 1941, known as the 'Atlantic Charter', and the ensuing Joint Declaration of 26 'United Nations' of 1 January 1942, as well as the two phases of the Dumbarton Oaks Conference (AugustOctober 1944). Difficult obstacles had been overcome by the United States, the United Kingdom and the then Soviet Union at the Yalta Conference (February 1945). Even so, the drawing-up of such a monumental instrument as the Charter of the United Nations by a big conference in only two months, immediately followed by signature, and then ratification by the required number of States in only four more months, is an extraordinary achievement. The speed w i t h which the Charter was drawn up and brought into force shows that the vast majority of States coming out of the horrors of the War felt an acute necessity for the speedy creation of a new forum for handling and transacting matters of vital concern to all peoples and the States representing them despite the little-encouraging experi-

* Dr. jur.; Judge of the International Court of Justice; former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations. The views expressed are exclusively those of the author. The article takes account of events up to 1 July 1995, date on which the article was submitted for publication.

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ences w i t h the League of Nations. "We the peoples . . . " in the preamble of the Charter, in those days even more ununsual in an intergovernmental text than today, vividly expresses the anxiety and the hope that accompanied the birth of the Organization. Today, fifty years later, we can first note that the United Nations continues to exist and, what is more, continues to be a living reality. Its life has never been easy and it is not easy today; but the Organization has a central place and plays an important role in world affairs. Secondly, we can note that the organizational structure which was created in San Francisco remains unchanged. Questions are asked, inside and outside of the Organization, whether this structure is still adequate and, in particular, whether the structure and composition of the Security Council are still representative and continue to correspond to today's needs. The fact is, however, that except for the increase in the number of non-permanent members of the Security Council, brought about in the mid-sixties, which augmented the total membership of that organ from 11 to 15, and some consequential amendments, as well as the increase in the membership of the Economic and Social Council (ECOSOC) first from 18 to 27 and then from 27 to 54, the structural set-up of the Charter has not been altered. Thirdly, we can note that the purposes of the United Nations, as enunciated in Article 1 of the Charter, have not been changed either. These purposes are: to maintain international peace and security (Art. 1, para. 1), to develop friendly relations based on respect for the principle of equal rights and self-determination of peoples (Art. 1, para. 2), to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and the promotion and encouragement of respect for human rights and for fundamental freedoms for all (Art. 1, para. 3), and to make the United Nations a centre for harmonizing the actions of nations in the attainment of these common ends (Art. 1, para. 4). The fact that the purposes of the Charter have not been changed and that they are also unchallenged is certainly due, in part, to the political and procedural difficulty of amending the Charter and to the relative generality of the wording. The fact is nevertheless remarkable, in particular as the conditions under which and the surroundings in which the Organization today operates are completely different from what they were in 1945. While the Charter entered into force for 29 Member States, there are today no less than 185 Members. The Security Council is dealing w i t h conflicts of a nature nobody would have thought of fifty years ago and international co-operation under the auspices of the United Nations is extending to more and more subject-matters. Decolonization has nearly been accomplished, although development remains a goal still to be achieved in many respects. The United Nations Secretariat has grown from a small operation to a vast administration concentrated no longer on the execution of topical programmes mandated by United Nations bodies but running, in addition, vast peace operations in distant countries involving ever new responsibilities.

The United Nations at Fifty

11

II. Among the purposes enumerated in Article 1 of the Charter, the maintenance of international peace and security is the area where the activities of the United Nations have aroused, and are arousing, the greatest public attention and acclaim (bestowal of the Nobel Peace Prize 1988 on the peace-keeping forces of the United Nations), and where there is, particularly at present, the most severe public criticism. The collective security system foreseen in the Charter is basically straightforward and simple to the point of being simplistic. Under that system, it is the Council which has the "primary responsibility for the maintenance of international peace and security" (Art. 24 of the Charter). Under Chapter V I of the Charter (entitled 'Pacific Settlement of Disputes') the Council has certain recommendatory functions w i t h regard to disputes "the continuance of which is likely to endanger the maintenance of international peace and security" (Art. 33, para. 1). However, under Chapter V I I , if the Council determines "the existence of any threat to the peace, breach of the peace or act of aggression" (Art. 39), it can make decisions on measures to be taken in order to maintain or restore international peace and security. Such measures are immediately enforceable and can range from a variety of sanctions not involving the use of armed force (Art. 41), to the use of military force. The system foreseen by the Charter thus centres around the idea that, once the Security Council has made the determination of the existence of a breach of or a threat to the peace or an act of aggression, the community of States unite around the Council in order to repel it. Obviously, under conditions of the Cold War, when the Veto Powers in the Security Council blocked each other, that system could not work. I n all of the first forty years of the United Nations it was hardly possible to have recourse to Chapter V I I at all. But the EastWest confrontation of the Cold War era did not only affect the role of the Security Council under Chapter V I I , it also hampered the full use of other methods provided for under the Charter for the peaceful settlement of disputes (Art. 33), and among them in particular the use of the International Court of Justice. The obstacles to the use of the International Court of Justice, which is the "principal judicial organ of the United Nations" (Art. 92) and to which "legal disputes should as a general rule be referred" (Art. 36, para. 3), arose from distrust of the independent role of an independent organ in a world divided on ideological lines. They were compounded by the initial lack of familiarity w i t h this institution on the part of many of the newly independent States which had become Members of the Organization in the process of decolonization. I n addition, one of the decisions of the Court, its 1966 judgment in the South West Africa Cases,1 caused considerable indignation, especially among those States. 1 Judgment of 18 July 1966 (Ethiopia vs. South Africa; Liberia vs. South Africa, Second Phase), ICJ Reports 1966, 6.

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Carl-August Fleischhauer

The Cold War, however, did not lead to the exclusion of the United Nations from questions of peace and security. The fifties saw a temporary shift of weight in matters concerning peace and security from a blocked Council to the then much smaller General Assembly. 2 Beyond that the Cold War led to an increase in the role of the Secretary-General in preventive diplomacy and dispute settlement on the one side and to the emergence of what has become known as United Nations Peace-Keeping on the other. United Nations peace-keeping as it evolved during the Cold War is done in two ways, namely either by the creation of observer forces or observer groups in order to supervise cease-fire or peace agreements, or by the putting together of internationally composed United Nations forces for the purpose of stationing them as disengagement forces between the parties to the conflict. This type of United Nations peace operation does not involve the use of force, except in case of self-defense. It obviates the taking of enforcement action under Chapter V I I as it is based on the principle of consent. Consent has to be secured from the parties to the dispute, the troop-contributing States and the Security Council which, although not acting under Chapter V I I , still has to authorize the operation as such. Peace-keeping in this form has had remarkable success and is still used in today's more complex composite peace operations. However, it has its shortcomings. Above all, its purpose is the neutralization of a conflict rather than the solution, and it is a fact that some of the conflicts effectively contained through U n i ted Nations peace-keeping missions have continued to exist in their neutralized form for a considerable length of time. Moreover, the principle of consent leaves it in the hands of each party involved to determine when and under what conditions it is ready to give its consent, which in practice can lead to unwelcome delays. Also, if consent is given, it can then be withdrawn. The withdrawal of consent given to a peace-keeping operation or the stationing of a peace-keeping force can have disastrous effects as the experience of the Sinai Force in 1967 and the outbreak of the Seven Day War shows. Even the unilateral withdrawal of a national contingent from a peace-keeping operation can cause great difficulties. The gradual ending of the Cold War changed the role of the United Nations in matters relating to the maintenance of peace and security. Between 1988 and 1990 it became possible to refloat and execute the stalled peace-plan for Namibia embodied in Security Council resolution 435 of 29 September 1978. W i t h the active assistance of the Organization Namibia gained independence in a much acclaimed fashion. Namibia provided an example for a new and different type of United Nations operation displaying elements of traditional peace-keeping operations but serving a new style of peace-making. That operation was based on a plan established in complicated negotiations and agreed to by the parties as well as the Security Council, and which the United Nations helped to implement by 2 G A res. 377 (V) of 3 November 1950 'Uniting for Peace\

The United Nations at Fifty

13

assuming control of the Territory and assisting in the organization and supervision of free and fair elections. Another watershed followed only months after the successful termination of the Namibia operation when in August 1990 Iraq occupied Kuwait. This crisis was more traditional in nature inasmuch as it was caused by the use of military force by one State against the territorial integrity and political independence of another. It was new in the sense that it forced the United Nations for the first time since the Korean crisis of 1950 to confront the necessity of forcefully removing an invader from invaded territory. I n a show of determined leadership, the Security Council took action under Chapter V I I in order to repel what it determined under Article 39 of the Charter to be a breach of international peace and security. 3 The Council, acting under Chapter V I I of the Charter, in resolution 678 of 29 November 1990 authorized Member States cooperating w i t h the Government of Kuwait to use "all adequate means" to "uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area." This authorization led to operation 'Desert Storm' by a coalition of Member States formed on the basis of resolution 678. The authorization of action by Member States as contained in resolution 678 did not follow the Korean precedent of 1950 in that it did not prepare the ground for an operation under the United Nations flag, making 'Desert Storm' not a United Nations operation, but a new type of UN-authorized operation. Another of the lessons taught by the Iraq-Kuwait crisis is that, while the Charter is silent on the post-conflict situation, international peace and security are not necessarily restored by the elimination of the act constituting the immediate breach of the peace, threat to the peace or the aggression which gave rise to the application of Chapter V I I . The Council found that that was the case in the Iraq-Kuwait situation and therefore, through resolution 687 of 3 April 1991, it extended action under Chapter V I I beyond the military conflict phase of the crisis. As if a dam had broken, between June 1991 and December 1994 the Security Council called for, and authorized, in rapid succession, no less than 16 new United Nations operations, ranging from Mozambique to Cambodia, and from Tadjikistan to Haiti. Most of these operations belong to the new 'composite' type of peace operations in which the United Nations mandate is to help the parties to a conflict implement a settlement through carrying out a variety of functions ranging from the demobilization of forces through organization and supervision of elections and referenda to assistance in constitution-writing and verification of the respect for human rights. To a large extent these mandates are based, like the original peace-keeping operations, on the consent of those concerned. When necessary, however, the Council takes recourse to Chapter V I I , provided that the prerequisites stipulated in Article 39 of the Charter are satisfied. The new type of 3 SC res. 660 of 2 August 1990.

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Carl-August Fleischhauer

mandate is the international community's attempt to deal w i t h a new kind of threat to international peace and security, namely the partial or total implosion of existing States w i t h ensuing violence, disorder and destabilizing effects on surrounding States and regions. I n its statement of 31 January 1992, adopted at the conclusion of the first meeting held by the Security Council at the level of Heads of State and Government, the Council invited the then newly incoming Secretary-General, Mr. Boutros Boutros-Ghali> to prepare an "analysis and recommendations on ways of strengthening and making more efficient within the framework and provisions of the Charter the capacity of the United Nations for preventive diplomacy, for peace-making and for peace-keeping." 4 The Secretary-General thereupon circulated, on 17 June 1992, ' A n Agenda for Peace'5. That Report, under the heading 'Peacemaking' ("action to bring hostile parties to agreement, essentially through such peaceful means as those foreseen in Chapter V I of the Charter of the United Nations"), deals w i t h the roles of the Security Council, the General Assembly and the Secretary-General as well as w i t h the role of the International Court of Justice in this respect. 6 I n regard to the Court it notes that the docket of the latter has grown fuller "but it remains an underused resource for the peaceful adjudication of disputes. Greater reliance on the Court would be an important contribution to United Nations peacemaking." 7 The Secretary-General recommended in particular greater acceptance of the general jurisdiction of the Court under Article 36 of its Statute. " I n cases where domestic structures prevent this, States should agree bilaterally or multilaterally to a comprehensive list of matters which States are willing to submit to the Court and withdraw their reservations to its jurisdiction in the dispute settlement clauses of multilateral treaties." 8 W i t h respect to peace-keeping ("Peace-keeping is the deployment of a United Nations presence in the field, hitherto w i t h the consent of all parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well. Peace-keeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace." 9 ), the Report refers to the rapid evolution in the nature of peace-keeping operations in recent years and then concludes that the basic conditions for success remain unchanged: "a clear and practicable mandate; the co-operation of the parties in implementing that mandate; the continuing support of the Security Council; the readiness of Member States to contribute the military, police and civilian personnel, including spe4 U N Doc. A/47/50. 5 U N Doc. A/47/277, S/24111. 6 Id., para. 20, 6. 7 Id., para. 38,11. 8 Id. 9 Id., para. 20, 6.

The United Nations at Fifty

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cialists, required; effective United Nations command at Headquarters and in the field, and adequate financial and logistic support." 1 0 These conclusions have been tragically confirmed in the two most critical operations the United Nations has ever been mandated to undertake, the United Nations operation in Bosnia ( U N P R O F O R ) and the United Nations operation in Somalia ( U N O S O M I and II). Both operations were authorized in conflicts within States caused by the implosion of previously existing structures followed by particularly violent ethnic war, in Somalia accompanied by a severe famine. Neither of the two operations is, as public opinion sometimes seems to believe, a full-scale peace-enforcement action. Both operations started as peace-keeping operations based on the consent of the parties involved and were designed to give a breathing space for efforts at peace-making, coupled w i t h humanitarian tasks. I n both cases it became necessary to authorize the peace-keeping forces under Chapter V I I to resort to armed force, in Bosnia in particular in defense of U N declared 'safe areas' 11 and in Somalia "to establish a secure environment for humanitarian relief operations." 12 I n both cases it also became necessary to authorize Member States to use force in support of the United Nations forces. I n the case of Somalia this led to the temporary establishment of the Unified Task Force ( U N I T A F ) that operated not as a U N operation but as a UN-authorized one parallel to and sometimes in very difficult co-ordination w i t h U N O S O M . I n Bosnia Member States have given armed support to the United Nations, as required by the Organization, through N A T O , raising new problems of co-ordination. There have been a considerable number of casualties on the side of the United Nations forces in both theatres. I n Somalia it was possible to redress the famine, but it proved impossible to make any progress in the direction of a national reconciliation. When it became clear that the situation would not change in the foreseeable future, the Council terminated U N O S O M ' s mandate, and in what might prove to be a heavy loss in the prestige of the Organization, the United Nations withdrew. I n the former Yugoslavia it has been possible so far to prevent the conflict from spreading to third countries, an achievement often overlooked by those who chastise the Organization for its alleged incompetence in carrying out the operation. While the carrying out of the humanitarian parts of the mandate proves difficult, the measure of humanitarian assistance which the United Nations is able to give to the stricken population is nevertheless important. H o w ever, efforts at peace-making continue in the framework of the Bosnia Conference as well as through the so-called Contact Group (France, Germany, Russia, United Kingdom, United States) without tangible results. The Bosnian Serbs, in particular, seek to exploit the limitations of the United Nations mandate and the 10 Id. , para. 50,14. SC res. 836 of 4 June 1993. 12 SC res. 749 of 3 December 1992.

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Carl-August Fleischhauer

limitations of the means of the Organization in order to undercut the efforts of the United Nations forces, to defeat them and to expose the entire Organization to public humiliation. I n the context of former Yugoslavia the Security Council, as one of the measures to restore peace and security, resorted to a completely novel device, namely the setting-up of a criminal court under Chapter V I I known as the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. This Tribunal has its seat, and has started to function, at The Hague (not to be confounded w i t h the the principal judicial organ of the United Nations, the International Court of Justice, which has a different mandate, a different status and a different composition). A similar tribunal was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and of Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States between 1 January 1994 and 31 December 1994. O n 3 January 1995, the Secretary-General published a 'Supplement to A n Agenda for Peace' which contains an analysis of quantitative and qualitative changes that have occurred in the United Nations activities in the field of peace and security since the first Report was published in 1992. 13 The Secretary-General concludes: The times call for thinking afresh, for striving together and for creating new ways to overcome crises. This is because the different world that emerged when the cold war ceased is still a world not fully understood. The changed face of conflict today requires us to be perceptive, adaptive, creative and courageous, and to address simultaneously the immediate as well as the root causes of conflict, which all too often lie in the absence of economic opportunities and social inequities. Perhaps above all it requires a deeper commitment to co-operation and true multilateralism than humanity has ever achieved before. 14

It is interesting to note that the Secretary-General, inter alia , states that neither the Security Council nor the Secretary-General at present has the capacity to deploy, direct, command and control operations of enforcement except perhaps on a very limited scale. 15 The Secretary-General adds, " I believe that it is desirable in the long term that the United Nations develop such a capacity . . . . " 1 6 The question might be asked, however, whether it would be better for the Organization to revert, in particular after its experiences w i t h the operations in Somalia 13 U N Doc. A/50/60, S/1995/1. 14 Id., 24, para. 103. is Id., para. 77,18.

16 Id.

The United Nations at Fifty

17

and in Bosnia, to the precedent of Iraq-Kuwait and to authorize Member States, where enforcement action becomes necessary, to carry out these actions, acting nationally or through regional arrangements, rather than carry them out itself either wholly or in part as United Nations operations under the United Nations' flag and command. The high degree of technology used in modern warfare and the sophisticated logistics necessary for modern enforcement action make it doubtful that Member States would ever permit the Organization to acquire sufficient means for swift enforcement, or would be ready to put such means at the disposal of the United Nations for operations carried out under the Organization's own responsibility. More importantly, enforcement action carried out by Member States nationally or through regional arrangements, upon authorization by the Organization, seems to be more compatible w i t h the character of the United Nations as an organization committed to peace than direct involvement of the Organization in military combat operations, even if these are meant to serve the maintenance of international peace and security. The Secretary-General also notes that in the cases of Somalia and Bosnia specific problems arose out of the fact that existing peace-keeping operations were given additional mandates that required the use of force and therefore could not be combined w i t h the existing mandates requiring the consent of the parties and the non-use of force. 17 The point in reference here is the particular responsibility of the Secretary-General in proposing and the Security Council in deciding on the mandates for the United Nations peace operations. The United Nations is not a world government and it does not give mandates to itself. It carries out what its competent organs, all composed of Member States, have decided it should carry out. O n the other hand, once a mandate is given to the Organization, the executive direction and command over the execution of the mandate lies w i t h the Secretary-General, who entrusts the command in the field to the chief of missions (special representative or force commander/chief military observer). I n this respect the Secretary-General stresses that neither must the Security Council micromanage an operation, nor must the character of a peace operation as an integrated whole be undermined, 18 for example by attempts of troop-contributing governments to give guidance or direct orders to their troop contingents forming part of a United Nations operation. As the United Nations enters its second half-century, its role in the maintenance of peace and security is still evolving and the question of how to make the best use of it has not yet been fully mastered. The role of the United Nations in the maintenance of peace and security, and how it is played both by Member States acting in United Nations organs and by the Organization as well, need constant attention and rethinking. I n giving that attention and in doing that re17 Id. , paras. 34 - 36, 9. is Id., paras. 38 -42, 9 - 11.

2 GYIL 38

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Carl-August Fleischhauer

thinking both for Member States and for the Organization, soberness, professionalism and the absence of nationalistic or ideological partiality are vital.

III. The central role which the Organization played and plays w i t h regard to the enhancement of respect for the principle of equal rights and self-determination of peoples, in particular as a vehicle for decolonization, is uncontested. This role was not really pre-designed in the Charter, which does not mention a full right to decolonization. Self-determination is referred to in Articles 1 paragraph 2 and 55 under the designation of "principle of equal rights and self-determination of peoples" without definition of its contents, its legal nature or its holders. N o r does the Charter give any indication as to the relationship between self-determination and the reservation regarding matters which are essentially in the domestic jurisdiction of any State as contained in Article 2 paragraph 7 or the duty to respect the territorial integrity of any State. It is the United Nations which through the views, opinions and convictions expressed by Member States in its fora, and landmark resolutions drawn up and adopted by the General Assembly, broke the ground and cleared the way for the recognition of a right of peoples to self-determination, encompassing a right to decolonization for the people of colonial territories. Among the resolutions adopted in this context by the General Assembly two stand out, namely resolution 1514 (XV) 'Declaration on the Granting of Independence to Colonial Countries and Peoples' of 14 December 1960 and resolution 2625 (XV) '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' of 24 October 1970. These resolutions are surrounded by other texts either of a general character, like General Assembly resolution 1541 (XV) of 15 December 1960 on 'Principles Which Should Guide Members in Determining Whether or N o t an Obligation Exists to Transmit the Information Called for under Article 73 e) of the Charter' or General Assembly resolution 1803 ( X V I I ) of 14 December 1962 'Declaration on Permanent Sovereignty over Natural Wealth and Resources', or referring to specific situations like, for example, resolution 1542 (XV) of 15 December 1960 on 'Transmission of Information under Article 73 e) of the Charter' of 1960 which dealt particularly w i t h former colonial possessions of Portugal and Spain. The activities of the United Nations regarding self-determination and decolonization have not exhausted themselves in the General Assembly's adoption of declarations and resolutions, however basic and important they may be. The two principal human rights conventions of the United Nations, the Covenant on Political and Civil Rights and the Covenant on Economic, Cultural and Social Rights, adopted by the General Assembly and opened for signature in 1966, contain in their respective Articles 1 identical pas-

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sages referring to the right to self-determination. Important statements on the right to self-determination have been made by the International Court of Justice in its two Advisory Opinions of 1971 and 1975 on Legal Consequences for States of the continued presence of South Africa in Namibia ( South West Africa) notwithstanding Security Council resolution 276 (1970) 19, and on Western Sahara 20. The Security Council and the General Assembly have co-operated, under the procedure following from Article 4 of the Charter, in swiftly admitting newly independent States that formerly were colonial territories as Members to the U n i ted Nations, thus completing their newly found statehood w i t h vote and voice in the most representative organization of the community of States. Moreover, the Security Council and General Assembly have worked in parallel in situations in which the realization of the right to self-determination proved difficult, such as Southern Rhodesia, the former Portuguese colonial territories and Namibia. Last, but by no means least, the General Assembly, through its Special Committee to study the Situation w i t h regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, the so-called 'Committee of Twenty-Four', monitors the process of the winding-up of the last colonial situations still existing. The contribution made by the Organization w i t h respect to the clarification, the development and the application of the right to self-determination, in particular in colonial situations, is such that the late Eduardo Jimenez de Arechaga , former President of the International Court of Justice, could remark: . . . [T]his passing reference to self-determination in Articles 1 and 55 has been shown to possess significant implications and to be pregnant w i t h legal meaning. This mention of the principle of self-determination became nothing less than the constitutional basis of the contribution of the Organization to the emancipation of colonial peoples, which is one of the outstanding achievements of the United Nations. 2 1

IV. The international cooperation achieved by the United Nations in solving international problems of an economic , social , cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all has become a permanent feature of modern international life. It is carried out by the United Nations alone or in co-operation w i t h the specialized agencies in the most varied forms: through the discussion of specific topics and 19 Advisory Opinion of 29 January 1971, ICJ Reports 1971,16. 20 Advisory Opinion of 16 October 1975, ICJ Reports 1975,12. 21 Eduardo Jimenez de Arechaga, International Law in the Last Third of a Century, Recueil des Cours: Academie de Droit International, vol. 159, 1978-1,101.

2*

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the adoption of resolutions thereon in the General Assembly; the preparation and convening of conferences on such topics or the setting-up for their study of standing or ad hoc bodies composed of delegates of Member States, governmental experts or experts nominated in their personal capacity; or addressing requests to the Secretary-General for the preparation of reports or studies as the basis for further work. A l l of these activities of the United Nations are mandated by Member States acting in the competent organs of the Organization. N o more than in regard to the maintenance of international peace and security is the United Nations in the promotion of substantive international co-operation a freewheeling international bureaucracy that sets its own programmes and goals at will. The work of the Organization in these fields is conceptual as well as practical. I n the choice of subject-matters, since the majority of States Members of the Organization consist of countries from the developing world, a strong accent is placed on development. I n this respect the Organization has been, in particular during debates on a New International Economic Order in the seventies, accused of being biased against the Western industrialized States and unrealistic. H o w ever, since the mid-eighties a climate more prone to objectivity and realism has set in. Another criticism of the Organization is directed at a perceived lack of direction in the international co-operation which it fosters and to a lack of co-ordination. That criticism overlooks that the Charter has set up an organization w i t h a markedly decentralized structure. Nevertheless, the improvement of co-ordination is addressed by the reforms that have been enacted at the United Nations over the past several years. The broad range of international co-operation established by the United Nations for solving problems in the economic field is demonstrated by the variety of institutions established in this field. These comprise the joint U N - F A O World Food Programme which deals w i t h emergency food needs and emergencies inherent in chronic malnutrition; the United Nations Conference on Trade and Development ( U N C T A D ) which often serves as a platform for dialogue between developing and developed countries; the United Nations Development Fund ( U N D P ) , which administers and co-ordinates the great majority of technical assistance programmes provided through the United Nations system and whose financial resources are derived primarily from voluntary contributions of participating States; the United Nations Capital Development Fund ( U N C D F ) , which is intended to provide, on the basis of voluntary contributions, funds for investment proper in development projects; and the United Nations Industrial Development Organization ( U N I D O ) , which was established like U N C T A D as an organ of the General Assembly but became a specialized agency in its own right in 1985. A major effort has been undertaken by Member States, mainly from the developing world, to make a New International Economic Order a political and a legal reality, giving special attention and preferential treatment to the particular needs of developing countries. These efforts were greatly hampered by the fact

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that there is no concurrent practice and, as the 'legislative' history of and the pattern of voting on the relevant resolutions show, no opinio juris in their support, at least not among the economically and financially potent members of the community of States. With the breakdown of the socialist economic order the debates on economic development and the structure of international economic co-operation for that purpose have become much less controversial than they were before. The General Assembly has in 1961,1970,1980 and 1990 respectively proclaimed Decades of Development, each w i t h a specific programme of action, and the abovementioned 'Agenda for Peace' was followed in 1994 by an 'Agenda for Development', 2 2 ' A n Agenda for Development', 23 and ' A n Agenda for Development: Recommendations'. 24 I n the social field the international co-operation under the auspices of the United Nations is possibly even wider than in the economic field. It reaches - to name only a few topics - from the formulation of the Declaration on Social Progress and Development (GA res. 2542 ( X X I V ) of 11 December 1969) to the establishment of the well-known United Nations Children's Emergency Fund ( U N I C E F ) ; through crime prevention and treatment of offenders, population problems (creation of the United Nations Fund for Population Activities ( U N FPA); 3rd International Conference for Population and Development, Cairo 1994), and the international control of narcotic drugs; to environment protection (establishment of the United Nations Environment Programme (UNEP)). The United Nations Conference on Environment and Development, convened by the General Assembly in Rio de Janeiro in 1992, addressed the two global problems on a global scale. One of the outcomes of that conference is the UN-Framework Convention on Climate Change, which held the first conference of its parties in April 1995 in Berlin and which w i l l establish its permanent secretariat in Bonn. Problems relating to the status and role of women in society are high on the social agenda of the Organization as witnessed by the institution of United Nations Decades for Women and the convening of World Conferences for Women (Mexico 1976, Copenhagen 1980, Nairobi 1985, Beijing 1995). A World Summit on Social Development was convened by the General Assembly in Copenhagen i m March 1995. I n the cultural field the United Nations has developed fewer activities of its own. The establishment of the United Nations Institute for Training and Research ( U N I T A R ) and the United Nations University has to be seen more under the auspices of economic development and social welfare than as contributions 22 Reports of the Secretary-General on T h e Need for an Agenda', U N Doc. A/48/689 of 29 November 1993. 23 U N Doc. A/48/935 of 6 May 1994. 24 U N Doc. A/49/665 of 11 November 1994, Note of the President of the General Assembly, U N Doc. A/49/320 of 22 August 1994.

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made for the purpose of enhancing international cultural or educational co-operation. I n the cultural field the Organization has rather co-operated w i t h U N ESCO, the specialized agency constituting the cultural arm of the United Nations family of organizations, and when the General Assembly proclaimed in 1986 the World Decade for Cultural Development, it did so upon the express recommendation of U N E S C O (GA res. 41/187 of 8 December 1986). I n the humanitarian field the United Nations has made an extremely important contribution through the establishment of the Office of the U N H i g h Commissioner for Refugees ( U N H C R ) (GA res. 319 (IV) of 3 December 1949 and 428 (V) of 14 december 1950), which provides care and maintenance to refugees and protects their interests. I n the attempts to manage the immense flow of refugees provoked by the crises which plague modern international society, U N H C R plays a role that can neither be overlooked nor missed. The achievements of the United Nations in the promotion of human rights and fundamental freedoms are outstanding. The General Assembly adopted, on 10 December 1948 (GA res. 217 (III)), the Universal Declaration of Human Rights. The Declaration proclaims in programmatic form fundamental freedoms, political rights, and economic, social and cultural rights. It was surrounded over the next thirty years by a set of conventions drawn up by the competent United Nations bodies, and adopted and opened for signature and ratification or accession by the General Assembly. These comprise the two International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights of 1966, the International Convention on the Elimination of all Forms of Racial Discrimination of 1965, the Convention on the Elimination of all Forms of Discrimination against Women of 1979 and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. The Universal Declaration and the corpus of human rights treaties created by the United Nations is significant in many ways, two of which should be highlighted here: firstly, it is now established beyond doubt that the obligation to observe and respect human rights and fundamental freedoms, even where a State's own nationals are concerned, is no longer a matter essentially within the domestic jurisdiction of States and, secondly, the way in which the individual conventions are implemented is subject to international control. A l l of the above-mentioned instruments establish special bodies for this purpose and in one instance, namely the Human Rights Committee under the Covenant on Civil and Political Rights, there is even the optional possibility to submit individual applications. The United Nations has reason to be proud of these achievements. With growing awareness of human rights and the need for their protection, one problem has recently come into the forefront of international attention that the system established by the human rights conventions does not master. This is the perpetration of massive human rights violations by dictatorial regimes behind the protection offered by the

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principles of non-intervention and non-use of force against the territorial integrity of any State, as contained in Article 2 paragraphs 1 and 4 of the Charter. I n such situations, in the last resort, only action under Chapter V I I of the Charter could permit breaking through the walls of sovereignty and territorial integrity. That presupposes that the Security Council is in a position to determine that a threat to the peace, a breach of the peace or an act of agression exists, and to act accordingly. The old problem of humanitarian intervention is posing itself anew.

V. N o article dealing w i t h the United Nations at Fifty can overlook the enormous contribution made by the Organization to the rule of law in international relations, in particular through the progressive development and codification of international law . The activities of the United Nations in this area go back to the specific mandate given to the General Assembly by Article 13 of the Charter to "initiate studies and make recommendations for the purpose of: a) . . . encouraging the progressive development of international law and its codification" (Art. 13, para. 1, subpara. a)), a mandate that seems to serve any of the purposes of the United Nations as enunciated in Article 1 of the Charter. From the outset, the General Assembly, for a variety of reasons, has given this mandate a very broad interpretation. There was the strong desire after World War I I to build a new international order based on international law. There was an enormous increase in State interaction which set in soon after the War and intensified the interdependence between States, creating the necessity for legal regulations in many new areas. A n d there was the emergence of a great number of new States, newly independent after release from their earlier colonial status. They brought new aspirations regarding the international legal order into which they were suddenly placed and a strong desire to participate in the writing-down of its largely unwritten rules, which had evolved without their presence and participation. Under the auspices of the United Nations, codification and progressive development of international law have become a regular subject of the debate between States. The subject-matter of that debate was soon extended beyond international public law into all other areas of international law. Its fora have not remained limited to the special bodies initially empowered to fulfil the mandate flowing from Article 13, the International Law Commission (ILC) and the United Nations Commission on International Trade Law ( U N C I T R A L ) . Codification and progressive development for special purposes today take place in many other bodies. Signal instruments like the Vienna Conventions on Diplomatic Relations and on the Law of Treaties, adopted by Plenipotentiary Conferences held in Vienna and using as basic documents drafts prepared by the International Law Commission and approved by the General Assembly; the U N C I T R A L Arbitration Rules, and

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the United Nations Convention on Contracts for the International Sale of Goods, both based on preparatory work done by U N C I T R A L ; as well as the 1982 United Nations Convention on the Law of the Sea, which entered into force in November 1994, bear witness to the importance of the United Nations' work and accomplishments in this field.

VI. To all these activities the yearly debate in the General Assembly has to be added, which consists of a general debate on world affairs as well as a debate on 150 or so topics on the United Nations agenda and in which all States, great and small, participate on the basis of equality. Thus, the United Nations, has become, as the fourth of its purposes declares, a centre for harmonizing the actions of nations in the attainment of the goals spelled out in paragraphs 1 to 3 of Article 1. I n order to be this centre, in particular in times of great changes in the international field and of vastly increased demands on the Organization, two things are equally essential: the Organization needs an effective internal administration, and the Organization needs secure financing. Both points are adequately covered in the Charter. Chapter X V of the Charter establishes in Article 97 the responsibility of the Secretary-General as the chief administrative officer of the Organization. Articles 100 and 101 lay down the ground-rules for a qualified and efficient independent international civil service: the absence of instructions from any government or from any other authority external to the Organization as well as the highest standards of efficiency, competence and integrity. The finances of the Organization are dealt w i t h in Article 17 of the Charter. According to that provision, it is the General Assembly which approves the budget of the Organization and it is the Assembly which determines the scale of assessment of Member States. I n both respects there is reason for concern. As to administration, the General Assembly for a long time has worked to limit the freedom of the Secretary-General in the running of the house. I n addition the United Nations administration has been greatly influenced for some time now by reform programmes. There is no doubt that the United Nations administration is in need of reform. That is so because the United Nations administration has to adapt to the changed role of the Organization in a changed world. Also, mistakes in management policies committed as far back as 20 or 25 years are taking their revenge now. H o w ever, Member States have to beware that United Nations reform is not an aim in itself. Plans drawn up hastily and without real knowledge of earlier efforts at reform, the needs of the Organization or its inner workings risk reform in the wrong place and the creation of paralysis rather than the enhancement of efficiency. As to finances, the attitude of Member States towards their dues to the United Nations becomes ever more deficient. Although the payment of the as-

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sessed contributions both to the regular United Nations budget and to the budgets of operations for the maintenance of peace and security is a legal obligation under international law, the Organization is owed huge amounts in contributions to both budgets. According to the spokesman of the Secretary-General in the Press Briefing of 9 May 1995, the amount owed by Member States at that date amounted to approximately 3 billion US Dollars, w i t h 1 billion for the regular budget and 1.9 billion for the operations for the maintenance of peace and security. The alarming fact is that the biggest debtors are not the poor least-developed countries. The sanction foreseen for arrears in Article 19 of the Charter (loss of voting power in the General Assembly " i f the amount of [the Member State's] arrears equals or exceeds the amount of the contributions due from it for the preceeding two full years") is consistently applied. But this remedy does not really work in the case of big contributors: this is one of the situations in which the patient w i l l be dead before the medicine can become effective. Whatever the policy underlying the negligence in the treatment of financial obligations to the Organization, it is a bad policy. It is damaging for the efficiency as well as for the capacity of the Organization to fulfil its role in the interest of Member States.

VII. Thus, at the 50th anniversary of the United Nations, the outlook is not altogether reassuring. Yes, the Organization exists, and yes, it has its established place and role in world affairs. Yes, the tasks that it fulfils are essential and yes, most would agree that if it were sidelined, it would have to be replaced, but in the torn and changing world of today it would not be possible to construct a replacement organization. Care is therefore necessary in order to make the most beneficial use of the World Organization. But States even after 50 years do not seem to have found the correct way to handle the United Nations, to use the Organization for their own maximum benefit. Overburdening the United Nations and at the same time under-financing it, exposing it to hateful attacks and to ridicule, certainly are not productive ways to put the Organization to the best possible use of the community of States. One is tempted to tell leaders of that community what Doctor Faustus, in Goethe's drama, tells Wagner, his assistant: "What thou hast inherited from thy fathers, be sure you earn it, so that it may become thy o w n . " 2 5

25

"Was D u ererbt von Deinen Vätern hast, erwirb es, um es zu besitzen", Johann Wolfgang v. Goethe, Doctor Faustus, Part I, translation in: Hugh Percy Jones, A New Dictionary of Foreign Phrases and Classical Quotations, 1902, 384.

General Theory of Obligations under Public International Law* By Albert Bleckmann

Introductiön Some time ago, I attempted to evolve a general theory to describe the rights of the subjects of public international law. 1 This task was not too difficult, since such theories already exist in national law; thus all that had to be done was to establish whether and how these theories could be incorporated into public international law. As a counterpart, so to speak, to a theory on the rights of the subjects of public international law, the question of a general theory of obligations of the subjects of public international law automatically comes to mind, whereby the content of such obligations is not at issue; indeed, the problem of the content of such obligations can be solved only by a thorough investigation of the individual rules, and not by a general theory; a theory of obligations can rather serve only to determine which legal subjects are generally bound by the individual rules of public international law. These problems are only partially solved by the doctrine of the subjects under public international law. 2 This doctrine merely determines abstractly the subjects bound to the rights and obligations established under public international law. It is not possible to deduce from this doctrine which of these subjects are bound by a particular rule of public international law. Some elaboration w i l l perhaps clarify this doctrine's inadequacy for determining obligational responsibility under public international law. We turn first to customary international law for clarification. Most of the rules of customary international law do not concern the causation of a particular result, but operate only on a course of action by the State. As examples, legal proceedings against other States are proscribed under sovereign immunity, 3 coercive

* For the assistance in translating the German text of Allgemeine Theorie der völkerrechtlichen Pflichten into English, I would like to thank Stephen Michael Jones. 1 Albert Bleckmann , The Subjective Right in Public International Law, German Yearbook of International law (GYIL), 1985,144 et seq. 2 Compare Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, Bd. 1/1, 2nd ed., 1989, 125 et seq.; Knut Ipsen, Völkerrecht, 3rd ed., 1990, 52 et seq.-, Alfred Verdross/ Bruno Simma, Universelles Völkerrecht, 3rd ed., 1984, 221 et seq.

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intervention is proscribed, 4 and the use of force against other States is proscribed. 5 Primarily bound by these provisions is not the State that causes the proscribed result, but the State that takes the proscribed action. However the difficulties in determining the obligations of subjects under public international law are not conclusively resolved. The question remains open whether public international law also prohibits the instigating or abetting of these acts by a third-party State. Thus, the International Law Commission felt it necessary to address this question comprehensively in Art. 27 of the draft on State Liability. 6 Other rules of customary international law do not concern merely a specific course of action, but address themselves to a result. These rules, however, seem primarily to obligate certain States only. For example, this is the case w i t h regard to the right of free passage through coastal waters. The question that here arises is whether this rule obligates the coastal State alone, or third-party States as well. The same applies to the freedom of shipping on international rivers, as generally embodied in the agreements between bordering States. The question may also be posed whether the obligations of the receiving State contained in the Diplomatic 7 and Consular 8 Conventions also apply to third-party States, thus forbidding the latter from any encroachment upon the diplomatic traffic between the dispatching and the receiving State. Numerous other examples could be cited. A further aspect of the problem of obligational responsibility under public international law arises w i t h respect to State liability in the case of action taken by entities subordinate to the State, and particularly w i t h respect to State liability in the case of action taken by individuals. Even if the liability obligation of the State may be presumed, the theoretical argument in support of this liabilitiy remains to a large extent unclear. 9 We turn now to international treaty law. A t first glance, according to the general principles of public international law, international agreements do not obligate third-party States (see for example Art. 34 et seq. of the Vienna Convention on the Law of Treaties 10 ) but seem to restrict obligational responsibility to the 3

Helmut Damian, Staatenimmunität und Gerichtszwang, 1985. Compare recently Klaus Bockslaff\ Das völkerrechtliche Interventionsverbot als Schranke außenpolitisch motivierter Handelsbeschränkungen, 1987. 5 Compare Ian Brownlie, Public International Law and the Use of Force by States, 1963. 6 Compare Shabtai Rosenne, The Public International Law Commission's Draft Articles on State Responsibility, 1991, 350 et seq.; Eckart Klein , Beihilfe zum Völkerrechtsdelikt, in: Commemorative Publication for Hans-Jürgen Schlochauer; 1981, 425 et seq.; M. L. Padelletti, Pluralitä di stati nel fatto illecito internationale, 1990. 7 Dated 18 April 1961. 500 U N T S 95, BGBl. I I 1964, 959. 4

s Dated 24 April 1963. 596 U N T S 261, BGBl. I I 1969, 1585. O n this problem, compare, for instance, Ingo v. Münch , Das völkerrechtliche Delikt, 1963,224 et seq.; the material for the draft of the I L C , Rosenne (note 6), 70 et seq. 10 Dated 23 May 1969. BGBl. I I 1985, 926. 9

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contracting parties. Thus the question arises whether the instigating or abetting by a State not a party to a treaty to a breach of that treaty is prohibited by public international law. A similar question arises whether State A may claim damages from State C in a case in which State C makes it impossible for State B to fulfill its obligations vis-a-vis State A . This is even a problem if all parties to the dispute are parties to the treaty, as is the case w i t h multilateral treaties. It is true that the principle of the equality of the parties leads to the presumption that all treaty parties are equally bound by all the treaty provisions. 11 A closer look, however, reveals that international treaty obligations arise only w i t h respect to a particular action. Extradition obligations, for example, are directed at the State on whose territory the person to be extradited is to be found. Thus there is the question of whether instigating or abetting by a State party to the treaty other than the State on whose territory the person is to be found is prohibited under public international law.

I. Approaches to a General Theory of Obligations under National Legal Systems If one examines national legal systems in search of a theory to describe obligational responsiblity that can be transferred to public international law as a solution to the aforementioned problems, the yield seems at first glance rather meager. This is because until now there also has not been a general theory of obligations in national legal regimes. If we look at public national law, the relevant provisions always establish obligations solely for the State; thus the question of which subjects bear the obligations does not arise. These obligations, however, because of the practical nature of government, fall to governmental departments and authorities. Under public national law, the problem of which subjects bear obligations is solved not by a general theory, but by the rules establishing the different jurisdictions of the individual governmental departments and authorities; the State's obligations are to be fulfilled by those governmental departments and authorities that, under the relevant rule of public law, have jurisdiction over the function, subject matter and place for the implementation of the laws. 1 2 This principle of obligational responsibility on the part of governmental departments and authorities is demonstrated, for example, in Germany, where under the systems of a number of German

11 Compare Kurt Herndl , Maas-Fall, in: Karl Strupp/ Hans-Jürgen Schlochauer (eds.), Wörterbuch des Völkerrechts, Bd. 2, 1961, 441 (re: 'principle of equality'); Albert Bleckmann, Commentary to Art. 2(1) of the U N Charter, in: Bruno Simma (ed.), The Charter of the United Nations: Commentary, 1994, 77. 12

Compare Rupert Stettner, Grundfragen einer Kompetenzlehre, 1983.

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Länder an administrative court action is to be instituted not against the State, but against the governmental department having the appropriate jurisdiction; 1 3 these regulations are seemingly based on the reasoning that legal rules expressly directed towards the State also establish obligations to the citizen for governmental departments and authorities. Although public international law in its three facets 14 (territorial, personal and organizational sovereignty) establishes at least to some extent the jurisdiction of the Member States of the community of nations, these rules cannot be drawn upon to solve the problems illustrated above of determining which States under public international law bear obligations. This allocation of jurisdiction under public international law does not solve the problem, for example, of whether not only a coastal State but also third-party States are bound by the right to free passage through coastal waters. I n general, the legal provisions of a particular rule bind those specific authorities having jurisdiction to take action under the rule. I n national private law, on the other hand, one does find approaches to a general theory not in contract law, but in tort law. I n law governing debts, a general theory of obligations is not necessary because each rule - and in particular the rules concerning individual contracts - clearly establishes the liable party. The legal situation w i t h regard to the law of property and tort law is quite different, however. I n this area, especially under German law, there is a distinction between merely relative rights and absolute rights. 15 Whereas relative rights bind only certain individuals, absolute rights represent values protected in all respects against encroachment from all sources. Such absolute rights may involve possession and ownership, but they also involve human rights, insofar as one accepts the principle that fundamental rights create legal responsibilities for third parties. 16 Such a principle has already been incorporated into public international law at least partially through the binding of third parties under the European Convention on Human Rights ( E C H R ) . 1 7 I n general, in light of national constitutional law and

13 Compare , e.g., § 5 of Nordrhein-Westfälisches Ausführungsgesetz zur Verwaltungsgerichtsordnung. 14 Compare Albert Bleckmann, Die Personalhoheit im Völkerrecht, in: Verfassungsrecht und Völkerrecht, Gedächtnisschrift für Wilhelm Karl Geck, 1989, 79 et seq. is Compare Otto Palandt, Kommentar zum BGB, 51st ed., 1992, Einl. vor § 854 w i t h further references. For English law, Smith and Keenan's English Law, 8th ed., 1986, 411 et seq. 16 Compare Albert Bleckmann, Neue Aspekte der Drittwirkung der Grundrechte, DVBl. 1988, 938 et seq.; Thomas Giegerich, Privatwirkung der Grundrechte in den USA, 1992; Andrew Clap ham, Human Rights in the Private Sphere, 1993. 17 Compare , e.g., Pieter van Dijk/Godfried J. H. van Hoof \ Theory and Practice of the European Convention on Human Rights, 2nd ed., 1990, 15 et seq.; Hans-Gerd Glatzel, Die Einwirkung der Rechte und Freiheiten der E M R K auf private Rechtsbeziehungen, 1968; Meo-Micaela Hahne, Das Drittwirkungsproblem in der E M R K , 1973.

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the E C H R , it should be pointed out that the effect of human rights rules on third parties has been generally accepted, although constructions of the concept differ; thus these European and national human rights rules represent values protected in all respects against encroachment from all sources. Although prevailing doctrine is of the opinion that the potential position of the State in enforcing such human rights rules in the common interest only comes into play if and when a wronged individual is not, or is no longer, able to adequately establish his or her human rights interests, 18 the overall development shows quite clearly that legal rights in the common interest essentially represent values protected in all respects against encroachment from all sources. Similarly to the absolute rights under private law, the legal rights under penal law are protected from third-party intrusion by the prohibition against instigating and abetting. 19 The differentiation between the perpetration of a crime on the one hand and instigating and abetting on the other seems necessary only in order to specify w i t h conceptual clarity the statutory definition of a crime in accordance w i t h general principles of law. The legal situation in public international law may be thought of as similar. A n intrusion upon rights protected by the principle of sovereignty 20 must be considered prohibited action under customary international law, similar in a sense to action prohibited under tort law in national private law. Under customary international law the rules relating to State immunity and the prohibition against intervention and the use of force are directed first and foremost at those States that have committed the offense according to its precise definition; however if sovereignty and those rights emerging therefrom are in fact absolute rights protected in all aspects from all sources, then instigating and abetting have to be considered the perpetration of an offense under public international law as well.

II. Transfer of National Legal Principles to the Sphere of Public International Law As we have already established, German law in particular distinguishes between absolute rights and merely relative rights. Absolute rights are directed against all persons, whereas relative rights obligate only particular individuals. I n order to determine whether rights of subjects under public international law are 18 Compare Albert Bleckmann, Grundrechtsschutz gegen sich selbst, in: Recht der Arbeit, 1988, 332 w i t h further references. 19 I n connection w i t h these theories of penal law, compare H. H. Jeschek , Lehrbuch des Strafrechts, Allgemeiner Teil, 3rd ed., 1982, 522 et seq. 20 Compare Albert Bleckmann, Das Souveränitätsprinzip im Völkerrecht, Archiv des Völkerrechts (AVR) 1985,450 et seq.

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relative or absolute rights, one must revert to the general theory describing the rights of subjects of public international law. 2 1 The whole of public international law of coexistence (now overlaid by public international law of cooperation 22 ), that is to say the whole of customary international law, has its origins in the two-State model of the public international legal system, which in turn is based on the principle of external sovereignty. 23 I n this form, a State's freedom of action flowing from the principle of sovereignty finds its limit in the right of other States to defense, which also flows from the principle of sovereignty. This right to defense can be deduced from the system of jurisdiction under public international law. Thus protected are a State's power of decision-making and freedom of action in the exercise of this jurisdiction (State immunity and the prohibition against intervention); action within the spheres of jurisdiction bestowed upon the States by public international law (territorial, personal and organizational sovereignty); and the interests connected w i t h this jurisdiction in territorial integrity, the legal status of nationals and the organization of the State. I n order to determine whether these rights are absolute or merely relative, one has to refer back to the protection provided by the system of public international law. In the era of a public international law of coexistence, the jurisdictional rules protected the interests only of those States whose sovereignty was affected by the case at hand. For these interests, and thus the legal situation, one could not determine w i t h adequate reliability whether the interests were protected merely against interference by States that themselves had committed the offense according to its precise definition under the applicable provisions of customary public international law. A t that time, prevailing doctrine - established case law in particular - still maintained the view that customary international law conclusively determined the States' right to defense. I n fact the two-State model was first developed along w i t h the recognition of concepts of estoppel, 24 and at a time when public international law of coexistence had long become eclipsed by public international law of cooperation. As a State's right to defense was conclusively under the rules of customary international law, it had to be decided whether legal practice in this area, firmly supported as it was by prevailing doctrine, illegalized not only the defined offense but also the instigating and abetting thereof. A t that time, however, this clearly was not yet the case. N o w that prevailing doctrine has accepted concepts of estoppel under public international law, the decisive question is whether it is possible to deduce from 21 22 23

Bleckmann (note 1). Verdross/ Simma (note 2), 41 et seq. w i t h further references. Compare Bleckmann (note 11), Rd. 11 et seq., 15 et seq. w i t h further references.

24 Nicolas E. Politis , Le probleme des limitations de la souverainite et la theorie de Tabus des droits dans les relations internationales, Rd. C, vol. 6 (125 I), 5 et seq., 77 et seq.

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Albert Bleckmann

the two-State model that the interests protected by the system of jurisdiction constitute rights protected not only in relation to the State committing the offense according to its precise definition but against any interference regardless of the source. Obviously, an answer to this question cannot be found as long as one assumes that the system of jurisdiction under public international law protects only the individual interests of the State exercising the right to defense. With the eclipse of a public international law of coexistence by one of cooperation, genuinely common interests have emerged under public international law of cooperation. Thus, as under domestic law, it is accepted more and more within the sphere of public international law that the jurisdiction system merely constitutes a means of realizing the welfare of peoples and thus ultimately of the individual. These interests of the individual are currently protected at least in part by the liberties and rights anchored in the Human Rights Covenants. Thus the interests of the individual ultimately represent the common interests of the public international law community. 2 5 One can then also assume that the jurisdiction system as a means of realizing these common interests of the public international law community lies within the common interest of that community. This may be thought to apply to the State's interest in territorial integrity, in the integrity of its nationals and in the State guarantees, all of which flow from the State's jurisdiction. This development of the common interests of the public international community is made abundantly clear by two facts. First, in the Barcelona Traction case, the International Court of Justice recognized that the fundamental provisions of public international law, which include above all human rights, establish obligations erga omnes.26 Second, the Vienna Convention on the Law of Treaties recognized that the fundamental provisions of public international law represent ins cogens, the infringement of which leads to the nullification of public international law agreements. 27 If in fact the obligations in the common interest establish the rights of all States of the public international law community, then, as the other side of this coin, a right in the common interest must obligate all States. Because the States' function is to enforce the liberties and rights protected by human rights treaties, the smooth functioning of State machinery is also in the common interest of the public international community. This follows from the fact that, according to the established jurisprudence of national courts, private 25

Albert Bleckmann, Die Entwicklung der Allgemeininteressen aus den Grundrechten der Verfassung, in: Georg Ress (ed.), Vorträge, Reden und Berichte aus dem Europa-Institut, 1991; Francois Rangeon, L'ideologie de l'internat general, 1986. 2 6 1970 ICJ 32. 27

Compare Damian (note 3).

General Theory of Obligations under Public International Law

33

contracts become void when they damage the common interests of foreign States safeguarded by corresponding law. 2 8 One may also assume, however, that the gradually developing doctrine of limited State i m m u n i t y 2 9 is based on the underlying purpose of protecting the functioning of foreign States; to that extent, the principle of State sovereignty can no longer be relied upon, since acta iure gestionis are subject to the territorial sovereignty of foreign States. Thus, we come to the conclusion that the States' functioning, and also the rights derived from State sovereignty, lie within the common interest of the public international community. Moreover, if those rules of public international law that are based on the protection of the States' functioning create obligations erga omnes, then one must assume that these rights are to be respected by all. The extremely strong protection by public international law would in fact be circumvented if all States, subordinate State organizations and individuals were not bound by the relevant provisions. Violation of these rights even by an individual produces effects that violate the common interest of the public international community. That the rights under public international law are protected by reason of the common interest of the public international community is also expressed clearly in the phrase 'common heritage of mankind', 3 0 which was originally coined in connection w i t h the future exploitation of resources in extraterritorial areas (the High Seas, Antarctica) and in connection w i t h Outer Space, but which has also recently been applied to cultural assets and - for example, in the preambles of the Council of Europe, the European Convention on Human Rights and the N A T O pact - to the common universal or European cultural and legal traditions of the Member States. These rights certainly represent values that must be protected against interference from all sources. From this approach, it follows that rights under public international law constitute values protected against intrusion from all sources. This means that the rules of public international law ultimately prohibit not only specific action, but also a specific result . From this the conclusion must be drawn that any causation of the prohibited result is contrary to public international law. Even the provisions of customary international law that at first glance are concerned w i t h a certain action by a State - such as the rules on State immunity or the prohibition 28

Compare , e.g., R. Heit, Das fremde öffentliche Recht im internationalen Kollisionsrecht, 1959. 29 Compare Damian (note 3); Christian Gloria, in: Ipsen (note 2), § 6 Rd. 19 et seq. 30 Compare Wilhelm A. Kewenig, 'Common Heritage of Mankind* - Politischer Slogan oder völkerrechtlicher Schlüsselbegriff, in: Commemorative Publication for Hans-Jürgen Schlochauer (note 6), 385 et seq.; Alexandre Kiss, La notion de patrimoine commun de Phumanite, Rd. C 175 (1982 II), 99 et seq.; Werner Stocker, 'Common Heritage of Mankind' als Ausdruck des Staatengemeinschaftsinteresse im Völkerrecht, 1993.

3 GYIL 38

34

Albert Bleckmann

against intervention - also concern the causation of the prohibited result; these legal provisions prohibit not only the action in question but also any measure that brings about such a result. Thus the instigating or abetting of such an action is prohibited; there is no need to look to accepted State practice to establish the illegality of instigating and abetting under public international law. Moreover, if rights under the system of public international law constitute values protected against interference from all sources, then public international law also proscribes violations of these values by individuals. Hence, the concept that individuals are not bound by these legal provisions is due only to the particular way in which the doctrine of the rights of subjects under public international law is formulated, which we w i l l have to examine more closely below. Whereas the rights created by customary international law constitute absolute rights, rights under treaty law seem at first glance to be merely relative rights. Such a conclusion is supported by a comparison w i t h national law. Under the national private law of the States of the international community, interference by C in the contractual relationship between A and B is not in principle forbidden. This initial impression is deceptive, however. The claims of A against B are protected by national constitutional law in an all-embracing sense. This is only the case, though, if one subsumes such claims under the rubric of the security of property and accepts that third parties are bound by constitutional principles. 31 Under public international law the situation is fundamentally different. Let us first examine the case in which A , B, and C are all parties to a treaty and C interferes in the legal relations between A and B as established by the treaty. Insofar as one assumes in accordance w i t h the Vienna Convention on the Law of Treaties that multilateral treaties merely represent a bundle of bilateral legal relationships, one could draw an analogy to private contract law; the interference by C in the legal relationship between A and B would be legally irrelevant. Such a result is contradicted by the acknowledgment in numerous articles of the Vienna Convention that also C can have an interest in the realization of the rights in the relationship between A and B . 3 2 These provisions are based on the concept that rights derived from the principle of sovereignty are protected by the maintenance of sovereignty as a fundamental principle, or, in the case of the welfare interests of peoples, are protected specifically by the rights contained in the International Conventions on Human Rights. If, as a rule, rights protected under multilateral treaties are identical to those protected under customary international law, one must assume that treaty protection is directed towards all parties to the treaty. Furthermore, the Vienna Convention on the Law of Treaties does not sufficiently highlight the fact that multilateral treaties in particular are aimed at pushing through the common interests of the signatory States. Thus, multilateral treaties 31 32

See references (note 16). Compare , e.g., Art. 58 of the Vienna Convention on the Law of Treaties.

General Theory of Obligations under Public International Law

35

do not create bundles of bilateral legal relationships, but rather 'multipole' legal relations. As an example, reference can be made to the Treaty on the Non-Proliferation of Nuclear Weapons, 33 which certainly establishes the common interests of the public international community and thus not mere bilateral legal relationships. Even treaties that at first glance seem to create only bundles of bilateral legal relationships may create 'multipole' rights in all parties. Multilateral extradition treaties, for example, first and foremost create bilateral legal relations between the prosecuting State and the State in which the individual is to be found. However, if it is a question of combatting international crime, i.e. drug trafficking or terrorism, then ultimately all parties to the treaty have an interest in the suspect's extradition within the framework of the relationship w i t h the other parties. I n the case of such 'multipole' relationships, each party is bound by the bilateral relationship between two other parties. 34 Thus, this common interest also creates absolute rights protected in all respects against encroachment from all sources. N o t only is the State that through its actions directly violates the agreement bound by the multilateral agreement, but also the treaty party instigating and abetting such acts. The remaining question is whether multilateral agreements also bind States that are not parties to the treaty. By reverting to concepts of instigating and abetting under penal law, we can circumvent the doctrine that under the general rules of public international law such treaties do not bind non-party States. Such reasoning, however, depends on the existence of a direct violation of the treaty in order to establish an instance of illegal instigating or abetting. The more appropriate solution which comes to mind is not to proceed from the existence of a direct violation of the treaty, but from the concept that the non-party State has itself directly violated the principle of pacta sunt servanda. As the keystone of the whole of public international law, this principle protects the essential common interests of the public international community and is therefore binding on all States. Moreover, such a non-party obligation is supported ultimately from the concept that international agreements in general protect the same rights as are protected under customary international law. Thus even if the non-party State is not directly bound by the agreement, the result is that the non-party State still may not interfere w i t h rights protected under the agreement.

33 Agreement on the Non-Proliferation of Nuclear Weapons, 729 U N T S 161, BGBl. I I 1974, 786. 34 Compare Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United StatesUnited Kingdom), 1992 ICJ 114, and the security council resolution concerning the Lockerbie incident, SC res. 748 of 31 March 1992.

3*

36

Albert Bleckmann

I I I . O n the Intermediation by the State with Respect to Individuals We reached the conclusion above that the rights established under public international law and derived from State sovereignty are aimed at guaranteeing the proper functioning of the State, and thereby also at guaranteeing to individuals the execution of State obligations, and thus constitute values that must be protected in all respects against encroachment from all sources; the necessary consequence of this concept, as mentioned above, is that individuals are also bound by the relevant provisions of public international law. If under prevailing doctrine in public international law this binding of individuals is still to a large degree rejected, this rejection cannot be based upon a narrow interpretation of the subjects of public international law; under modern public international law, individuals are being more and more recognized as subjects of public international law. Thus, there really are no existing legal obstacles preventing the individual from being bound by obligations established under public international law. Admittedly, even today States largely intermediate between individuals and the applicable international law. However, until the present, the principles on which this intermediation w i t h respect to the individual is based have not been adequately examined. Above all, the question of the extent to which the State intermediates between the individual and public international law w i t h respect to rights must be answered separately from the question of the extent to which the State intermediates between the individual and public international law w i t h respect to obligations. We examine the question of rights before we examine the question of obligations. There are two aspects that must be discussed. First, w i t h respect to rights of the individual that are to be enforced within the framework of public international law, i.e. in relation to other States, one must take into consideration that in contrast to the domestic sphere rights within the sphere of public international law are not enforced by judicial proceedings, but as a rule by the process of the building of political will. I n the process of this building of political will, the individual does not carry much weight: if these rights of the individuals are to be effectively enforced via-a-vis other States in accordance w i t h general concepts of law, each State must enforce the interests of its nationals in the sphere of public international law. To this corresponds the right to diplomatic protection generally granted under the national laws of the States.35 Second, w i t h respect to individual rights arising out of public international law that are to be enforced nationally, these rights are established not by public international law, but by national courts applying national law that enforces public international law. Insofar 35 With regard to German law, compare for example Rudolf Geiger., Grundgesetz und Völkerrecht, 1985, § 85.

General Theory of Obligations under Public International Law

37

as public international law obligations created in the interest of individual are to be enforced by judicial proceedings in the public international law sphere as opposed to the national law sphere, the concrete procedures defined by international law, for example those of the European Convention on Human Rights, directly grant individuals rights under public international law. Such judicial proceedings protect individual rights to such a degree that the minimal weight of the individual in the context of the formation of political w i l l in the public international law community becomes irrelevant. With respect to obligations under public international law, the State's intermediation w i t h respect to individuals again must be discussed within the context of two aspects of public international law. O n the one hand, the authority to enforce public international law is entirely decentralized, i.e. in the hands of the State against whom the offense is committed. O n the other hand, the right to defense of the State exercising territorial and personal sovereignty over the individual - a right based on the principle of external sovereignty - forbids the State against whom the offense is committed from interfering w i t h the territorial and personal sovereignty of the foreign State on whose territory the individual is to be found; indeed if the State against whom the offense is committed proceeds against the individual it constitutes a violation of the sovereignty of the State in which the individual is to be found. The intermediation by the State w i t h respect to the individual under public international law inolves a further aspect. The enforcement of law presupposes either voluntary compliance or coercive measures backed by an adequate authoritative power. Unlike the States, however, individuals w i t h respect to public international law are neither under a general obligation to cooperate nor under pressure w i t h regard to the principle of reciprocity, both of which guarantee the voluntary enforcement of public international law by States. Thus the enforcement of public international law against individuals requires coercive measures for which the public international law community does not have the necessary resources. Even the State against which the offense is committed cannot legally enforce its rights under public international law against individuals if these individuals have no assets in that State and are to be found in the territory of another State. Hence, only the State in which the individual is to be found has the necessary authority as part of its territorial sovereignty to enforce public international law. The absolute rights of the State against which the offense is committed, however, require effective sanctions. If, in the interests of the State exercising territorial sovereignty, the State against whom the offense is committed is not permitted to take action against the individual, then, in the interests of the effectiveness of public international law, these sanctions must necessarily be applied by the State having territorial or personal sovereignty over the individual. Obviously, the sys-

38

Albert Bleckmann

tem of public international law would be inoperable if the voluntary cooperation of five billion individuals were required. The defining and enforcement of public international law must be assumed by those States that can provide the international community w i t h the power necessary to maintain the law. The States thus assume the guarantee for the correct and complete enforcement of the international legal order within their national boundaries. Thus the State exercising territorial jurisdiction has the obligation to protect the sovereignty of other States from individuals subject to that State's jurisdiction. The extensive obligation of the territorial State to take measures against individuals within its territory in order to protect the sovereignty of other States is supported by the same nationally and internationally recognized arguments that support the protective obligation of the State w i t h respect to the interference by third parties w i t h liberty. 3 6 Like national law and the European Convention on Human Rights that promote liberty in the interest of human dignity, the common interest of public international law is directed towards making it possible for the jurisdiction that can fulfill the welfare interests of the individual to effectively exercise that ability. However, this only establishes the common interests of the international community w i t h respect to the individual; the above-stated principles require that the protective function be assumed by the State legally and actually capable of doing so on the basis of its resources. 37 The direct connection between the individual and public internatinal law deduced above is not displaced by the sovereignty of the territorial State, but merely obscured by it. Thus, the individual's connection to public international law is revived to the extent to which the State against whom an offense is committed refrains from interfering in the sovereignty of the territorial State. It is thus overall plausible for a State against which an offense is committed to hold responsible an individual within its territory. O n the other hand, the territorial sovereignty of the territorial State presents no obstacle to sanctions under public international law, if these sanctions are applied by the authorities or courts of that State. 36 Compare , e.g., Albert Bleckmann, Staatsrecht II, Die Grundrechte, Bd. I I , 3rd ed., 1989, 276 et seq.; Johannes Dietlein, Die Lehre von den grundrechtlichen Schutzpflichten, 1992; Josef Isensee, Das Grundrecht des Abwehrrechtes als staatliche Schutzpflicht, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, Bd. V, 1992, 143 et seq.; Dietrich Murswiek, Die Pflicht des Staates zum Schutz vor Eingriffen Dritter nach der E M R K , in: Hans-Joachim Konrad (ed.), Grundrechtsschutz und Verwaltungsverfahren/Internationaler Menschenrechtsschutz, 1985, 213; Albert Bleckmann, Die Schutzpflichten nach der E M R K , in: Commemorative Publication for Rudolf Bernhardt, 1994. 37

With regard to the liability of the State for the actions of the individual under public international law, compare Rosenne (note 6), 70 et seq. (Art. 11); Astrid Epiney, Die völkerrechtliche Verantwortlichkeit von Staaten für rechtswidriges Verhalten im Zusammenhang mit dem Handeln Privater, 1992. For older literature, compare v. Münch (note 9), 176 et seq., 278 et seq.

General Theory of Obligations under Public International Law

39

I n those cases, however, in which either the territorial State or the State against which an offense has been committed holds the individual responsible without infringing public international law the relevant rules of public international law can and must be applied directly by the national courts. To that extent, admittedly, public international law does not determine punishment and does not govern the procedure. The only plausible outcome is that the courts of the relevant States determine the violation of public international law and award compensatory damages. These rules are subject to limitations only if the above-established bond between individuals and public international law is displaced by the rules of public international law. This is especially the case where international or regional human rights treaties grant liberties directly to individuals.

IV. O n the Intermediation by the State with Respect to Subordinate Public Entities Let us finally turn to the problem of the intermediation by the State w i t h respect to subordinate legal entities. According to prevailing doctrine, 38 the State is responsible for the actions taken by subordinate legal entities and agencies. One may assume that this principle is correctly based on the idea that these subordinate entities are themselves bound by public international law, while the enforcement of public international law lies within the jurisdiction of the State. If public international law is interpreted in this way, then it confirms the theory developed above, namely that general public international law protects values in all respects against encroachment from all sources. This explains above all a phenomenon that generally arises in public international law, but for which prevailing doctrine has yet to find an explanation. Indeed, we w i l l show in the following paragraphs that the fundamental bond between public international law and entities subordinate to the State is suppressed by intermediation on the part of the State. If, as in the case of national liberation movements, 39 the State does not have the ability to control certain subordinate entities, the bond between those entities and public international law is revived in its entirety. Indeed, public international law only becomes effective when all legal subjects are substantively bound to its rules. If through intermediation by the State such a bond is sufficiently achieved indirectly through national law, there is no need for a direct bond to public international law. If there is no such intermediation, a direct bond is required if public international law is to be effective. 40 38 39

Compare , e.g., v. Münch (note 9), 116 et seq. Compare Verdross/ Simma (note 2), side note 411 et seq.

40 Compare Hermann Mosier, Die Erweiterung des Kreises der Völkerrechtssubjekte, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 1962,1 et seq.

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Albert Bleckmann

The intermediation by the State w i t h respect to subordinate entities is based on the principle of internal sovereignty, which calls for a hierarchical structuring of State institutions, since only in this way is it possible for the w i l l of the sovereign power to be completely enforced in constitutional practice. 41 The principle of internal sovereignty therefore requires the State to be structured in such a way that subordinate agencies, authorities and corporate bodies are legally and practically bound by the w i l l of the sovereign power (Macht nur durch das Recht). It would be contrary to this principle, however, if the subordinate entities were able to engage in official international relations w i t h foreign States without constitutional restrictions. This would put these entities in a position in which they could play off the authority of the foreign State against their own State. The principle of internal sovereignty therefore requires that subordinate entities be completely isolated from the sphere of public international law. It must be pointed out that, in the sphere of public international law and above all in the sphere of the European Union, these principles are today to a very large degree breached by the contrary principle of the parallelism of internal and external jurisdiction. 4 2 The States' loss of sovereignty does not just lie in the transfer of responsibility to international and supranational communities (as is assumed by prevailing doctrine), but also in the gradual abolition of the States' internal structural homogeneity, as demonstrated internationally as well as nationally. 43 The subordinate entities must be directly bound by public international law to the same degree that the States lose the ability to control these entities under the principle of internal sovereignty.

41

Compare Bleckmann (note 20). Compare Albert Bleckmann, Der Grundsatz der Parallelität der Innen- und Außenkompetenzen im deutschen Verfassungsrecht, Neue Zeitschrift für Verwaltungsrecht ( N V W Z ) 1989, 311 et seq. 42

43

Compare Horst Dreier; Hierarchische Verwaltung im demokratischen Staat, 1991.

The Prerogatives of Violence - I n Search of the Conceptual Foundations of Belligerents' Rights By Stephen C. Neff

Introduction The rights of States have traditionally fallen into two broad categories. First are sovereign rights - the rights normally incidental to the sovereignty and independence of States whether in peace or war (such as the right of diplomatic protection of nationals abroad). Second are belligerent rights. These consist essentially of actions that are intrinsically unlawful - such as killing enemy nationals, occupying foreign territory or holding prisoners - but which spring into existence in time of war. There appears, however, not to be any very precise definition of belligerents' rights in international law. 1 For present purposes, they w i l l be taken to mean the set of inherent rights possessed by belligerent States, which entail some transgression of the rules of general international law, and which arise by virtue of the existence of the state of war itself This definition is best seen as provisional, since it may be overly strict - a possibility that w i l l be considered in due course. 2 The present discussion is concerned w i t h the basic question: what is the source of these belligerents' rights ? I.e., on what basis, if any, can the mere existence of a state of war legalize acts that are normally unlawful ? It w i l l be seen that there aVe two rival answers to this important question - and that neither is altogether satisfactory.

1 Black's Law Dictionary contains no definition. N o r does Clive Parry/John P. Grant/ Anthony Parry/Arthur D. Watts (eds.), Parry and Grant , Encyclopaedic Dictionary of International Law, 1986; nor does James R. Fox , Dictionary of International and Comparative Law, 1992. Nor, more surprisingly, does Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, 12 vols., 1981-90, notwithstanding a number of entries relating to belligerency and the laws of war. The nearest that Oppenheim comes to a definition is a simple statement that "each belligerent has the right to punish the subjects of neutrals for breach of blockade, carriage of contraband, and unneutral service, and, accordingly, to visit, search, and capture neutral merchantmen." Lassa F. L. Oppenheim, International Law: A Treatise, vol. 2: Disputes, War and Neutrality, 1952 (7th ed., Hersch Lauterpacht ed.), 674. 2

See the text at note 111.

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Stephen C. Neff

1. Two Sub-categories of Belligerents

3

Rights

Belligerents' rights may be usefully said to fall into two broad sub-categories: those exercised by the belligerents against one another, and those exercised against peaceful third parties {i.e., neutrals). I n the first category are such actions as the killing of enemy soldiers, the occupation of enemy territory and the taking and holding of prisoners of war. I n the second group are such rights as the confiscation of contraband carried by neutrals to the enemy, the confiscation of the ships and cargoes of blockade runners, and the visiting and searching of neutralflag vessels on the high seas. It is relatively easy to explain the origin and nature of the rights of belligerents inter se. They are the rules of the 'game' of warfare as such. Since the contending parties have (at least in theory) chosen to resort to arms to settle their dispute, they can be deemed to have chosen, at the same time, to accept the rules of the contest, which apply even-handedly. It is more difficult to justify the other category of belligerents' rights - those exercisable against neutrals. These obviously cannot be explained on a thesis of voluntary assumption. The neutrals have no say in whether a war takes place or not; and it seems, on the face of it, manifestly unfair that their rights can be abridged simply because two other States have chosen to do battle w i t h one another. Why should the neutrals not simply be permitted to continue exercising their normal sovereign right to trade w i t h persons w i t h whom they are at peace, free from molestation by the rival belligerents ? Why, in other words, should belligerents be entitled to exercise any special rights against neutrals at all ? Much of our discussion w i l l focus on this question.

2. Two Schools of Thought I n the area of belligerents' rights, experience long pre-dated systematic theoretical exposition. Such practices as the capture and condemnation of contraband cargoes and of blockade-running ships and cargoes, together w i t h the visiting and searching of neutral ships on the high seas, have a long (and controversial) history behind them, stretching back into the Middle Ages. The task of scholars, therefore, has been not to devise a rational set of rules on a clean slate, but rather to make sense out of this extensive pre-existing body of practice. O n l y in the middle of the Eighteenth Century did systematic thinking on the subject of belligerents' rights as such begin to develop, primarily in the context of debate over the relations between belligerents and neutrals. Two rival schools of thought emerged in the Eighteenth Century to explain and justify the rights of belligerents. They have never acquired widely accepted

The Prerogatives

of Violence

43

labels. But simple descriptive terms w i l l readily suffice. The first of the schools w i l l here be called the 'necessity' or, alternatively, the 'conflict-of-rights' school. The other one w i l l be termed the 'code-of-conduct' approach. There has never been a definitive resolution of the contest between them. More significant for present purposes is the fact that neither of these schools, on close examination, is really persuasive.

I. The Necessity or Conflict-of-Rights School 1. The Theory The medieval principle of necessity had deep roots in the just-war theory of the Middle Ages, when belligerents' rights were confined to the just party to a conflict. A n unjust party (i.e., a law-breaker) acquired no special rights by virtue simply of being at war, any more than a common criminal acquires legal privileges by resorting to violence. War was seen as a sanction or as a type of police action on the part of the just party, to compel a law-violating State to end its wicked ways. The principle of necessity functioned as a license to States enforcing their just rights to take whatever steps were necessary - including, as a last resort, the use of force - to bring lawbreaking States to heel. This could even include such drastic measures as killing innocent civilians, enslaving the enemy population, executing hostages and destroying crops. 3 A t the same time, however, the principle of necessity operated (at least in theory) as a check on the actions of belligerents. For one thing, it restricted the right of States to resort to war, by holding that war must only be waged as a last resort. It also restricted the measures that could be adopted in waging a just conflict, by forbidding unnecessary, wanton violence. 4 I n its early stages, this restrictive aspect of the principle of necessity was taken very seriously. It was readily recognized that acts justified by necessity could be held to be lawful only in a restricted sense, since they involved transgressions of ordinary rules of law. Alberico Gentili , for example, while positing that K [a] just and unavoidable necessity makes anything lawful," immediately qualified this by cautioning that violations of the normal rules of law on this ground were merely 3

See, to this effect, Francisco de Vitoria , O n the Law of War, in: A. Pagden/J. Lawrance (eds.), Francisco de Vitoria, Political Writings, 1991, 293, 314 - 326. 4 O f the five classic criteria for a just war in medieval scholastic doctrine, one was causa, which was the principle that force must only be used as a last resort. Another was animus , which was the requirement of a right attitude in the prosecution of the war, i.e., the combatants must be motivated by the desire to see justice done, not by the love of violence for its own sake. Philippe Contamine, War in the Middle Ages, 1984, 282 - 283 (Michael Jones trans.).

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to be "tolerated." They could not be said to be positively just. 5 Hugo Grotius was similarly cautious. He accepted that necessity could justify a belligerent in occupying neutral territory, but only subject to some stringent conditions: "that there is not an imaginary but a real danger that the enemy w i l l seize the place and cause irreparable damage; further, that nothing be taken except what is necessary for protection . . .; and, finally, that possession be had w i t h the intention of restoring the place as soon as the necessity has ceased."6 I n the course of time, two important changes took place. First was the emergence of a different view of the nature of warfare. War came gradually to be seen less as a sanction against law-breaking, w i t h a just side arrayed against an unjust one, and more as a clash of rival national interests, in which no overarching moral or legal issues were at stake. This change was a gradual one, not complete until the Nineteenth Century. War was now seen as a kind of voluntary resort to trial by battle by rival parties, a duel. 7 The significance of this change for present purposes is clear: the laws of warfare - including the principle of necessity - became equally applicable to both parties in the contest, rather than only to one. The second important change was an alteration in the character of the principle of necessity: its restrictive aspect was pushed into the background, while its licentious character came to the fore. The key figure in this development was Emmerich de Vattel , who, in his famous treatise on The Law of Nations of 1758, advanced a more sweeping version of the doctrine than any that had gone before. " A sovereign has the right," he pronounced, "to do to his enemy whatever is necessary to weaken him and disable him from maintaining his unjust position; and the sovereign may choose the most efficacious and appropriate means to accomplish that o b j e c t . . . . " The only restriction was that the means chosen not be "essentially evil and unlawful" 8 (i.e., that the rules regulating the conduct of war per se not be violated). The conflict-of-rights component of this thesis emerged most strongly in Vat tel's discussion of the rights of belligerents against neutrals, particularly on the subject of the law of contraband. A belligerent, contended Vattel , has a general right, based explicitly upon "the law of necessity," to "deprive [its enemy] . . . of everything that w i l l enable it to resist and do . . . harm." 9 This includes the right 5 Alherico Gentili, , The Three Books on the Law of War, 1933, 351 - 352 (John C. Rolfe trans.). 6

Hugo Grotius , O n the Law of War and Peace, 1925,195 (Francis W. Kelsey trans.). For the classic statement of this new view of the nature of war, see Oppenheim (note 1), 202: "War is a fact recognised, and with regard to many points regulated, but not established, by International Law. . . . When States are driven into, or deliberately wage, war for political reasons, no legally recognised act of self-help is performed by the w a r . . . . " 8 Emmerich De Vattel , The Law of Nations, 1916,280 (Charles G. Fenwick trans.). 9 Id., 271. 7

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to confiscate contraband goods being carried by neutrals to its enemy. There is apparently no need, in Vattel's view, actually to demonstrate that the delivery of the particular goods in question would pose a real threat. Instead, he took it for granted that a belligerent has "an important interest in depriving its enemy of all help from without. . . . " 1 0 The contraband goods are therefore 'good prize' (in the standard parlance) simply by virtue of their nature as contraband goods, in combination w i t h an intended enemy destination. A t the very same time, however, Vattel readily conceded that neutral parties did no wrong in carrying contraband goods to the enemy of one of the belligerents. " [ I ] f they [the neutral parties] do no more than attend to their commerce," he conceded, "they do not thereby declare themselves against me [the seizing belligerent]; they merely exercise a right which they are under no obligation to sacrifice to me." 1 1 These two competing sets of rights - that of the neutral to trade and that of the belligerent to halt contraband flows to its enemies - may seem to conflict w i t h one another. They do. But, paradoxical as it may seem, these conflicting sets of rights co-exist and overlap without either being diminished by the other. As Vattel explained: [I]f [neutral merchants] choose to expose themselves to the risk of carrying to [the other belligerent] articles useful in war, they have no cause for complaint in case their goods fall into my hands [i.e., the hands of the seizing belligerent], just as I do not declare war upon them for having attempted to carry them. They suffer, it is true, from a war in which they have no part; but that is an accident. I am not opposing their rights; I am merely exercising mine; and if our rights conflict and mutually injure each other, it is the result of unavoidable necessity.12

This belligerent right to capture and confiscate contraband of war is, accordingly, a striking example of a right of one party that is not matched by any corresponding duty of another. The belligerent has the right to seize the contraband cargo; but the neutral has no corresponding duty to refrain from carrying it in the first place. He simply runs the risk that the belligerent w i l l interrupt his commercial adventure by exercising his (the belligerent's) right of capture. 13 It should be noted that the positions of the two parties, in this scheme of things, are not perfectly symmetrical, because the principle of necessity only benefits the belligerent party. The neutral simply retains his normal sovereign right 10 Id. , 272. Id., 271. 12 Id. 13 For obvious reasons, this principle has sometimes been referred to as the 'commercial adventure' principle. The neutral has the legal right to carry contraband, subject only to the risk of seizure en route by the opposing belligerent. Concomitantly, the neutral's home State w i l l refrain from exercising any form of protection of the hapless neutral merchant.

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to trade w i t h one belligerent - subject, as just noted, to the risk that the other one w i l l interfere w i t h this trade. There is, in other words, no special set of either rights or duties incumbent upon neutrals by virtue of the existence of the war. The principle of necessity has sometimes been put in terms of self-defense. That tendency has been particularly pronounced in the Twentieth Century, and especially since the Second World War. 1 4 I n certain respects, the change is not a fundamental one, since the principle of necessity is an integral and essential feature of self-defense (along w i t h the principle of proportionality). But this shift from necessity per se to self-defense as a basis for belligerents' rights should, in strict logic, have one important effect: that any rights arising from self-defense should be confined to self-defenders and denied to aggressors. Such a proposition would amount, of course, to an effective return to the medieval just-war view, in which only the just party had any belligerents' rights. I n practice, however, the matter has not been carried through to this logical conclusion. Instead, the prevailing view is that the laws of war continue to exist (although their content can of course undergo change) and that they continue to operate even-handedly. This position may be logically defective, since it seems doubtful in principle whether, in a given conflict, both sides could be acting in self-defense. But it accords w i t h the sad reality of modern conflict, in which the identification of aggressors and defenders is often, in practice, extremely difficult. More or less by default, then, the previous position of allowing both sides to exercise belligerents' rights continues to prevail. 15

2. State Practice There has been an abundance of State practice invoking the principle of necessity. One of the most flamboyant instances was the destruction of the Danish fleet in Copenhagen harbor in 1801 by Admiral Nelson - not because Denmark committed any injury to Britain, but rather to prevent the Danish fleet from falling into the hands of the enemy. Another notable illustration was the German invasion of Belgium in 1914. The German ultimatum of 2 August 1914, demanding Belgian consent for the passage of its troops, disclaimed any hostile intentions towards Belgium and made no claim of any violation of law on Belgium's part. Rather, it stated the belief that France was preparing to attack Germany through Belgian territory and that ur-

14

See Elihu Lauterpacht , The Legal Irrelevance of the 'State of War', Proceedings of the American Society of International Law (ASIL Proceedings), vol. 62,1968, 58, 64 - 65. 15 Richard R. Baxter , The Legal Consequences of the Unlawful Use of Force under the Charter, ASIL Proceedings (note 14), 68, 72.

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gent necessity dictated that Germany strike first. The German concern was stated to be that Belgium, in spite of the utmost goodwill, w i l l be unable . : . to repel . . . a French invasion with sufficient prospect of success to afford an adequate guarantee against danger to Germany. It is essential for the self-defense of Germany that she [Germany] should anticipate any such hostile attack. 16

The Allies also invoked necessity, although in a different context: the 'blockade' of the Central powers, which involved significant measures of interference w i t h trade between neutral countries by Britain and France. 17 The British foreign minister, while conceding that, in principle, belligerents could not interfere w i t h trade between neutrals, nonetheless contended that a departure from this rule was permissible if "such interference is necessary to protect the belligerent's national safety. .. . " 1 8 I n the Second World War as well, the British again indicated a readiness to resort to the principle. As Churchill asserted in a private memorandum before he became prime minister: [W]e have the right, and indeed are bound in duty, to abrogate for a space some of the conventions of the very laws we seek to consolidate and reaffirm. . . . The letter of the law must not in supreme emergency obstruct those who are charged w i t h its protection and enforcement. 19

Perhaps the most dramatic example of this philosophy in practice - worthy of Lord Nelson himself - was the British sinking of the French naval fleet in Oran in July 1940, w i t h the deaths of over a thousand French servicemen. Churchill (now prime minister) justified the measure by referring to his suspicion of the Vichy government of France (with which Britain was not at war), together w i t h the importance of demonstrating Britain's resolve to the w o r l d . 2 0 16

Henri Davignon , Belgium and Germany: Texts and Documents, 1915, 9. For a good short survey of the World War I Allied 'blockade' policy, see Gerd Hardach, The First World War 1914 - 1918, 1977, 11 - 34 (P. Ross/B. Ross trans.). For a clear and succinct summary by the British government of its policy, see British Statement of the Measures Adopted to Intercept the Sea-borne Commerce of Germany, Cd. 8145,1916, reprinted in: American Journal of International Law (AJIL), Supp., 1916, 87 et seq. For longer accounts of the 'blockade' policy, see A. C. Bell , A History of the Blockade of Germany and the Countries Associated w i t h Her in the Great War, Austria-Hungary, Bulgaria, and Turkey, 1914 -1918, 1937; and Marion C. Siney , The Allied Blockade of Germany 1914 - 1916, 1957. 17

18

Note of 7 January 1915, in: Stephen Fess y The Problems of Neutrality when the World Is at War: A History of Our Relations w i t h Germany and Great Britain as Detailed in the Documents That Passed Between the United States and the Two Great Belligerent Powers, H.R. Doc. N o . 2111, 64th Cong., 2d Sess., 1917, 238 - 239. 19 Quoted in: Nils Orvik , The Decline of Neutrality 1914 - 1941,1953, 245 - 246. 20 Cordell Hull, , The Memoirs of Cordell Hull, 1948, 798 - 799. Hull reports that the United States disagreed with Churchill's conclusion that the attack was truly necessary.

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The post-World War I I period has been particularly rich in illustrations of the principle, in its modern form as the right of self-defense. The most striking applications have been cases of military operations in the territory of other States without their consent. The best-known one was the American intervention in Cambodia in 1970 during the Vietnam War. I n this instance, the legal adviser to the Department of State invoked the authority of Vattel himself in support of the action. 21 Self-defense was also the United States's justification for the mining of Haiphong Harbor in 1972-73. 22 Another striking example was the entry of Israeli armed forces into Lebanon in 1982. 23 O n numerous occasions, South African forces moved against domestic enemies based in the territories of surrounding States. These too were justified as self-defense. It is interesting to note that States have tended to acquiesce in these measures and even positively to endorse this continuing resort to belligerents' rights under the rubric of self-defense. It appears that no legal objections were raised, for example, to the American mining of Haiphong. During the Iran-Iraq conflict of the 1980s, Britain conceded the lawfulness of Iran's exercise of the right of visit and search in 1985, not as a belligerent right per se, but as an adjunct of the right of self-defense. 24

3. Comments There is much to be said for the necessity view of the rights of belligerents. Three points in its favor may be particularly noted. First, the theory easily resolves the puzzle of why the rights of neutrals should be abridged simply because belligerents choose to go to war - the answer being that, properly speaking, the rights of the neutrals are not abridged at all. They co-exist w i t h and overlap those

21 Letter United States to U N Security Council, 5 May 1970, U N Doc. S/9781 (1970), reprinted in: Department of State Bulletin, vol. 62, 1970, 652. For the reference to Vattel , see John Stevenson , Statement of the Legal Adviser, AJIL, 1970, 933, 938 - 940. 22 Letter United States to president of the U N Security Council, 8 May 1972, U N Doc. S/10631 (1972), in U N Security Council Official Records (SCOR), vol. 27, Supp. for April June 1972, 44. Strictly speaking, the letter did not refer explicitly to self-defense, speaking instead more vaguely of the right to take "appropriate measures" to prevent the delivery of sea-borne supplies to N o r t h Vietnam. The tenor of the argument, though, clearly suggests that self-defense was the legal justification. For a discussion of this incident in terms of the traditional law of blockade, see Howard Levie , Mine Warfare at Sea, 1992,144 - 157. 23 Letter Israel to the president of the Security Council, 4 June 1982, U N Doc. S/15161 (1982), in: U N SCOR, vol. 37, Supp. for April - June 1982,142. 24 90 Parliamentary Debates, 6th ser., 1986, W-426. It is interesting that Britain apparently did not expect any demonstration on Iran's part of an actual nexus between the visit-andsearch policy and the fending off of Iraqi aggression. It seemed sufficient that Iran was engaged in an armed conflict in which it was (at least arguably) not itself the aggressor.

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of the belligerents. The belligerent may acquire additional prerogatives; but the neutrals suffer no diminution of their own. # A second important consideration in favor of the necessity theory is that it enjoys considerable judicial support, most notably in the area of contraband. I n the American courts, for example, Chancellor Kent forthrightly endorsed Vattel's approach to the question of contraband in the following terms: [T]he fact is that the law of nations does not declare the trade [in contraband items] to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet, at the same time, from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and this they may do from the principle of self-defense. The right of the hostile power to seize . . . does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral, in articles contraband of war, is . . . from necessity, subject to inconvenience and loss. 25

The American Supreme Court supported this view in 1878: [The neutral] has the legal right to carry, to sell and to buy; but the conquering belligerent has a corresponding right to capture and condemn. He enters into a race of diligence with his adversary, and takes the chances of success. The rights of the two are in law equal. The one may hold if he can, and the other seize. 26

Third and finally, the necessity view is dynamic and flexible in character, infinitely adaptable to the ever-changing circumstances of international armed conflict. It provides, in effect, an automatic mechanism for adjusting belligerents' rights to prevailing circumstances. I n Vattel's words: [C]ertain acts of hostility may be justifiable or not, according to circumstances. What is perfectly innocent or just in one war, owing to peculiar conditions, is not always so on 27 other occasions; right keeps pace w i t h necessity, w i t h the demands of the situation

A t the same time, however, there are a number of grounds for misgivings about the necessity theory as an explanation of belligerents' rights (some of these being the 'flip sides', as it were, of its virtues). Three key drawbacks may be singled out. First, it may be argued that the necessity theory is actually not, strictly speaking, a theory of belligerents' rights at all. The reason is that the principle of necessity is a feature of general international law; and is not peculiar to the law of armed conflict. Consequently, it really falls into the category of sovereign rights. This is most convincingly demonstrated by the recognition of necessity as a gen25 Seton y Maitland & Co v. Low , 1 Johns. Cas. 1, quoted in: Atlantic Fruit Co. v. Solan, 238 F. 217 (S.D.N.Y. 1916). 26 Young v. £/.£., 97 U.S. 39 (1878). 27 Vattel (note 8), 279.

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eral principle of the law of State responsibility by the International Law Commission ( I L C ) . 2 8 This leads to an ironic result: that, even though necessity is a theory strongly favorable to belligerent interests, it is not actually a theory of belligerents' rights properly speaking, if this expression is taken to mean (as provisionally defined above) rights accruing to belligerents by virtue of a state of war . A second reason for scepticism about the necessity approach is that it may strike some as intellectually contrived and artificial. It reconciles the competing rights of belligerents and neutrals by the dubious device of simply proclaiming both sides to be perfectly in the right, even when their rights conflict, and then simply leaving the two to get on as best they can under the circumstances - to engage in a "race of diligence," in the words of the American Supreme Court. But this w i l l often amount, as a practical matter, to little more than a thinly disguised license to belligerents to infringe the rights of neutrals, since the belligerents, who are already at war, w i l l often be in the strongest position. There can be little doubt that, in a 'race of diligence', the belligerent w i l l generally prove fleeter of foot. This point relates closely to the third criticism of the necessity theory: its flexible character. Proponents of broad rights for belligerents w i l l naturally see this as a virtue. By the same token, champions of neutral rights w i l l see it as a vice of the most dangerous character. Proponents of neutral rights have consistently objected that the necessity theory is so flexible, so open-ended, posing so great a threat to peaceful neutrals as to be fundamentally incompatible w i t h the rule of law, little more than a carte blanche for belligerents under the thin guise of legal right. As Gouverneur Morris , for one, protested: Miserable indeed must be the condition of man, if those who are invested w i t h power [i.e., belligerents] can prescribe their convenience for the conduct of others; measure out rights and duties by their particular interest; . . . and at their sovereign w i l l and pleasure change innocence to guilt! 2 9

It could only be scant comfort to the neutrals to be assured that, strictly speaking, their own rights are not really infringed in the slightest by belligerent measures. That the principle of necessity, by its nature, is biased towards belligerents is easily seen. O n l y the belligerent himself knows when imperative necessity is actually present. There is, accordingly, a dangerously self-judging element inherent 28

See Report of the International Law Commission to the General Assembly on the Work of Its 32nd Session, U N General Assembly Official Records (GAOR), vol. 35, Supp. 9, U N Doc. A/35/10 (1980), reprinted in: Yearbook of the International Law Commission, vol. 2, pt. 2, 1980, 34, 34 - 52, U N Doc. A/CN.4/SER.A/1980/Add.l (1980). 29 Gouverneur Morris , A n Answer to 'War in Disguise,' or, Remarks upon the New Doctrine of England Concerning Neutral Trade, 1806, 33.

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in the principle of necessity. This is most apparent in the law of contraband, in which some writers have asserted a right on the part of belligerents unilaterally to declare goods to be contraband of war on the ground that, in the particular struggle at hand, they w i l l contribute towards his enemy's victory. 3 0 N o r is this an idle fear. Since the middle of the Nineteenth Century, there has been a steady growth in the length of contraband lists at the hands of belligerents. U n t i l then, contraband lists in bilateral treaties had been very short, generally confined to such obvious articles as firearms and ammunition. A n important, and controversial, departure from this tradition occurred in 1885 in a conflict between France and China, when France declared rice destined for northern China to be contraband on the ground that "particular circumstances" existed. Rice was such an important commodity to the Chinese population that the French would run "the risk of depriving themselves of one of the most powerful means of coercion . . . at their disposal" if they held back from interfering w i t h rice deliveries. 31 I n the following years, the inexorable expansion of contraband lists continued apace, to the point of including such matters as fuel, electrical equipment and communications and transport equipment - together w i t h components for producing these goods. During the First World War in particular, contraband lists mushroomed in length. The lists of contraband goods grew so large that the United States, in 1917, inaugurated the practice of simply describing in very general terms the categories of goods that it would regard as contraband. 32 I n the face of such robust assertions by belligerents of their (supposed) prerogatives, there was little that individual neutral traders could do. There was, to be sure, the hope that their home State would go to war to defend their rights. Occasionally, this has occurred. The most striking examples occurred in 1812 and 1917, when the United States entered foreign wars in large part to vindicate the neutral rights of its nationals. 33 But so bold a defense of neutral rights is hardly to be expected of neutral countries as a matter of course. Recognition of the inherently stronger position of belligerents and of the lack of a true rule of law governing this area lay at the heart of the (so-called) 'new 30

See, for example, Joseph Chitty , A Practical Treatise on the Law of Nations, Relative to the Legal Effect of War on the Commerce of Belligerents and Neutrals; and on the Orders in Council and Licences, 1812, 119 - 120. The author conceded, however, that the declaration of items as contraband cannot be merely arbitrary - the contribution of the goods to the enemy's war effort had to be genuine. 31

Note France to United Kingdom, 10 March 1885, in: Correspondence w i t h the French Government in 1885 Respecting the Treatment of Rice as Contraband, Cd. 5520, 2, 5. 32 Robert Tucker , The Law of War and Neutrality at Sea, 1955, 266 - 267. 33 O n the disputes over neutrality issues leading up to the War of 1812 and the attempts to resolve them, see Bradford Perkins , Prologue to War: England and the United States 1805 - 1812, 1961. O n the disputes of 1914-17, see Alice Morrissey , The American Defense of Neutral Rights, 1914 - 1917,1939.

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neutrality' writing of the 1930s in the United States. The dominant figure here was Charles Warren , w i t h support from Herbert Briggs, James W. Garner and James Brown Scott. 34 These lawyers wrote w i t h the American experience of 1914-17 clearly in mind. (Warren and Scott had both served in prominent American government posts during that period.) 3 5 They stressed that the determining factor in time of war was the brute fact that belligerents would, in reality, do whatever they believed necessary to bring about victory, regardless of the prevailing state of the law at the outset of the conflict. As a consequence, neutrals would inevitably be left in the unhappy position of simply coping as best they could. These 'new neutrality' partisans accordingly denied that there could be any such thing as neutral rights, which Warren dismissed as a mere "legal fiction." 3 6 What passed under that name, he contended, was merely "a concession, express or implied, on the part of the belligerent that if the neutral's acts did not impair too seriously the belligerent's chance of winning the war, the neutral would be allowed to do 'business as usual'. " 3 7 By ill-advisedly insisting on their so-called traditional rights, neutrals would only lock themselves into the dilemma of either yielding on points of principle or else going to war to defend them. 3 8 Warren and his followers proceeded to draw the logical, if unhappy, conclusion that neutrals, in effect, should bow to the inevitable and concede that their traditional 'rights' would never be allowed to stand in the way of belligerents bent on victory. In order to avoid this risk of becoming engaged in the war for the vindication of so illusory a thing as a 'neutral right of trade' [Warren argued] the sane p o l i c y . . . would be [for the neutral] to admit frankly that, whether or not 'rights' exist in law, it is impracticable to assert them successfully during the war, and that it is impracticable to wrest admission of them from a belligerent... . 3 9

O n the whole, it is therefore fair to conclude that this necessity, or conflict-ofrights, approach is intrinsically favorable to the rights of belligerents. This does not, of course, necessarily compel the conclusion that it is invalid - but it explains why those who oppose an expansive view of belligerents' rights harbor a most intense suspicion of it. Such persons have gravitated instead towards the rival school of thought on the subject, the code-of-conduct one. 34

For Briggs' s position, see ASIL Proceedings, vol. 29, 1935, 84 - 86. For Garner's views, see ASIL Proceedings, vol. 27, 1933, 148 - 149. For Scott's views, see James Brown Scott , The Neutrality of the Good Neighbor, ASIL Proceedings, vol. 29,1935,1 et seq. 35

Warren had been a high official in the Department of Justice. Scott had been the chairman of the Neutrality Board of the State, War and Navy Departments. 36 Charles Warren , Troubles of a Neutral, Foreign Affairs, 1934, 377, 386. 37 Charles Warren , What Are the Rights of Neutrals Now, in Practice?, ASIL Proceedings, vol. 27,1933,128. 38 39

See Charles Warren , Prepare for Neutrality, Yale Review, 1935, 467. Warren (note 36), 389.

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II. The Code-of-Conduct School 1. The Theory Immediately after Vattel expounded the necessity theory in its full-blooded form, a rival theory entered the lists, at the hands of the Danish natural-law writer and diplomat, Martin Hübner. Hübner 9s principal concern was to provide a sound theoretical basis for the rights of neutrals, then under pressure in the Seven Years War. He did this in 1759, in the first major treatise on the law of neutrality, entitled De la saisie des batiments neutres, OH DU droit quont les nations belligerantes d'arreter les navires des peuples amis 40 A clearer and more forceful presentation of the thesis came in the Nineteenth Century from the fluent pen of the French admiralty lawyer Laurent Basile Hautefeuille , whose classic (and controversial) Les droits et les devoirs des nations neutres went through three editions from 1848 to 1868. Other noted adherents of this view of belligerents' rights included the American Henry W. Halleck and, more recently, Oppenheim.41 The supreme intellectual monument of this school is the magisterial treatise by the Swedish scholar and diplomat Richard Kleen , Lois et usages de la neutralite d'apres le droit international conventionnel et coutümier des £tats civilises (1898-1900), which remains unsurpassed to this day as a comprehensive treatment of the law of neutrality. These writers were all fierce critics of the idea of a conflict of rights or overlapping of rights between belligerents and neutrals. They maintained instead that the role of international law was to strike a fair balance between the two, w i t h the rights of the one beginning precisely where those of the other ended. As Hautefeuille insisted: The rights of peoples in war, the duties of neutrals, the rights of these latter and the duties of the former, limit one another mutually, without ever mingling w i t h one another, without denying one another, without interfering w i t h one another; they are . . . correlative w i t h each other; they always touch one another, but they never conflict; they harmonise with one another as perfectly as the diverse parts of the material world. 4 2

40 This seminal work has never been translated into English. Furthermore, it is so long out of print that copies of it are exceedingly rare. It may be noted that it does not treat the whole of the law of neutrality, but merely one important aspect of it: the law relating to captures of neutral ships at sea. 41

See Henry W. Halleck , International Law; or, Rules Regulating the Intercourse of States in Peace and War, 1861, 628 - 629; and Oppenheim (note 1), 673 - 675. 42 L.-B. Hautefeuille , Les droits et devoirs des nations neutres, vol. 3, 1868 (3rd ed.), 415. See also Richard Kleen , Lois et usages de la neutralite d'apres le droit international conventionnel et coutumier des fitats civilises, vol. 1,1898, 197 - 200. See also the statement by Oppenheim that a [t]hese rights and duties [of belligerents and neutrals] are correlative - the duties of neutrals to the rights of belligerents, and the duties of belligerents to the rights of neutrals." Oppenheim (note 1), 673.

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This approach insisted strongly on the proposition that the rights and duties of the two groups are strictly correlative, i.e., that all rights on the one side are the counterparts of duties on the other, and vice versa. I n Hautefeuille's view, it is "an eternal and absolute truth, that there does not exist, in the moral order, a right without a correlative d u t y . . . . " 4 3 Instead, he insisted, there is a "perfect harmony between the rights and duties of all peoples... . " 4 4 One conclusion of the highest importance emerged directly from this line of thought: that there can be no ground for lawful action either by a belligerent against a neutral or vice versa until and unless there was a violation of law by the other. There could be no question, as there was under the necessity theory, of one party exercising a right against another which committed no wrong. A n y infringement of rights by any party against any other can only be justified as a response to delictual conduct, i.e., as a sanction against a law-breaker. 45 Furthermore, it is clear that, on this view of the matter, neither a belligerent nor a neutral can have any legal ground for complaint so long as the other side is acting within its allotted sphere of rights as created and allocated by the code. The effect which the exercise of these rights has on the other party is of no relevance. As a consequence, all neutral commerce that is within the law must be left unmolested, regardless of any effect on the outcome of the conflict. By the same token, all interferences w i t h neutral commerce which the law permits to belligerents must be patiently suffered, regardless of the inconvenience to neutral trading interests. 46 It is important to be clear how this code-of-conduct school differs from the necessity one. The necessity school does not deny the existence, at any given time , of a set of rules for neutrals and belligerents. For this reason, it can sometimes be difficult for the naked eye to distinguish between the two schools. The key difference lies in their respective perceptions of the nature and role of these rules of war and neutrality. The necessity school denies that a code of conduct can have any permanent validity, or that it can be the ultimate source of the rights of belligerents. A set of rules, on the necessity view, can be no more than a summation, or snapshot, of the extent of the rights of the belligerents as they stand at a particular time. It can have no real long-term stability, because the rights of the belligerents are always susceptible of expansion (and, in theory, of contraction) by the force of necessity. I n other words, necessity is the true source of the belligerents' rights, not the code itself.

43 Hautefeuille (note 42), 26 - 27. 44 Id., 27. 45 See, for example, Kleen (note 42), 140 - 141,144 - 147. 46 Id.

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The code-of-conduct school, in contrast, maintains that the necessity of the belligerent, however acute, cannot, in and of itself, automatically give rise to any rights. Hautefeuille was particularly insistent on this point, vigorously denouncing the (so-called) principle of necessity as an utter juridical nullity. 4 7 The rights that belligerents have (over and above their normal sovereign rights) are conferred only by the rules of international law itself, not by the belligerent's own state of need, however great. Belligerents' rights are therefore not, on this view, true inherent rights of belligerent States. Rather, they are rights 'given' to the belligerent States by the international community at large through the code of conduct itself. To the adherents of this code-of-conduct school, the code is therefore no mere snapshot, but rather is truly the engine that drives the system. It is the source of the rights and duties, delimiting the boundaries between the rights and duties of both belligerents and neutrals and thereby precluding any unilateral expansion of the rights of either at the expense of the other. O n this view, the rights and duties of neutrals are not merely their normal rights and duties - rights of States carried over directly into wartime. Instead, both belligerents and neutrals become subject, by virtue of the state of war, to a qualitatively distinct code of rules which lies dormant during time of peace but which springs into action upon the outbreak of war. The code is therefore, by its nature, not a catalogue or summation of inherent rights of either belligerents or neutrals. Rather, it is the outcome of a set of empirical compromises between the competing interests of the two categories of States. The allocation of 'rights' to belligerents and neutrals by the code is heavily conditioned by historical inheritance and by the relative bargaining power of States concerned. As a consequence, the code must be, to some extent, arbitrary. The British lawyer John Westlake clearly perceived this point. When the interests of belligerents and neutrals clashed, he contended, there could be no clear principled reason for preferring one to the other. The only thing that the international community could do was to make the best demarcation that it could under the circumstances. "[T]he result of such a system placed on such a basis," he reasoned, "can only be a working compromise between demands, reached w i t h reference at once to their justice and to the forces behind them, but veiled under a philosophically sounding nomenclature of rights." 4 8 I n other words, the code actually creates the 'rights' of the two sets of parties - out of, so to speak, the raw material of the clashing interests. Before the compilation of the code, belligerents and neutrals possessed only competing demands vis-a-vis one another, not true rights.

47 Hautefeuille (note 42), 27 - 37. 48 John Westlake, International Law, vol. 2, War, 1913 (2nd ed.), 195.

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Another very important difference between the two schools should be noted: the code-of-conduct approach falls far more squarely within the concept of the rule of law than the necessity theory does. The code-of-conduct theory sees belligerents' rights as merely one sub-section of the ordinary rules of the 'game' of armed conflict. I n sharp contrast, the necessity school (as noted above) sees the rights of belligerents as a function of the right of States at war to take extraordinary measures to defeat their foes. Belligerents' rights, on the necessity thesis, are therefore, in essence, emergency measures justified and delimited not by the 'ordinary' rules of law but rather by the exigencies of the emergency itself. Belligerents' rights on the code-of-conduct view might therefore be said to be 'tame' rights, in the sense of being securely bounded by the general rules of law. O n the necessity view, they are 'wild', in the sense of being open-ended and, so to speak, free to roam (in the sense explained earlier). The laws of contraband and blockade provide illustrations of these points. The code-of-conduct school holds contraband to be merely 'conventional' in character. I n other words, the general agreement of States determines what is contraband and what is not, not the necessity of the belligerents or the circumstances of particular conflicts. A n d that determination has a general force and validity, remaining fixed until the community modifies its definition. 4 9 There can consequently be no question of any inherent right on the part of belligerents to determine what is contraband and what is not. Furthermore — and here lies a key divergence between the two theories - the code-of-conduct school contended that the law of nations does forbid neutral nationals from carrying war-related materials to either side in a conflict. Neutrals who do this are violating the law, and belligerents are entitled to capture and then condemn their cargoes as a sanction for their law-breaking - though not, significantly, as an inherent right on the belligerents' part to promote their own victory in the contest. 50 The law of blockade offered a fertile field for creativity. Hübner and his successors predictably denied that the so-called right of blockade was rooted in any general right of belligerents to injure their foes at the expense of neutral trade.

49

It was, of course, permissible for States to make their own arrangements in the matter inter se by treaty. Neither school disputed this point, and the practice became very common among the maritime powers. See the text at note 52. The two schools differed, however, on what the residual position was, in the absence of a treaty. The necessity school contended that the residual principle was the right of belligerent States to prevent their foes from augmenting their strength. Vattel (note 8), 271 - 272. The code-of-conduct school contended that underlying the treaty law on contraband was a body of general international law specifying what goods were contraband and what were not. 50 See Cornelius Bynkershoek , Questions of Public Law, 1930, 61 - 62, 67, 87 (Tenney Frank trans.); Martin Hübner ; De la saisie des bätiments neutres, ou du droit qu'ont les nations belligerantes d'arreter les navires des peuples amis, vol. 1, 1759, 189 - 196; and Kleen (note 42), 378 - 383.

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The right, according to Hübner, , had a quite different juridical basis: it was an offshoot of the law of occupation of territory. By throwing a naval blockade around a port, a belligerent became the effective occupant of the area of the sea enclosed by the blockading fleet. As an effective occupant - but not as a belligerent per se - the blockading State now possessed a sovereign right to make rules and regulations concerning the occupied 'territory'. One permissible rule was the complete exclusion of shipping. As a result, a neutral vessel attempting to run the blockade committed an ordinary criminal offense against the domestic law (as it now was) of the occupying power. 5 1

2. State Practice There is abundant, if piecemeal, historical evidence for the crafting of a code of conduct regulating both aspects of the conduct of belligerents - actions by belligerents inter se, and actions vis-a-vis neutrals. The principal early mechanism was the concluding of bilateral treaties. Beginning in the Seventeenth Century, the principal European maritime powers began concluding a network of bilateral friendship, commerce and navigation (FCN) treaties of a highly standardized character dealing w i t h issues of belligerents' and neutral rights. A common feature of these treaties was the inclusion of a list of the items that the two States Parties mutually agreed would constitute contraband of war in the event that one was at war w i t h a third State while the other was at peace. These F C N treaties also commonly set standards for lawful blockades and fixed procedures for the visiting and searching of neutral ships on the high seas.52 I n the Nineteenth Century, there were some significant advances. The detailed Convention of St. Petersburg of 1801, between Britain and Russia, set a new standard of comprehensiveness and stood as a sort of model agreement on the subject of maritime rights. 53 {Vernon Harcourt later hailed it as "perhaps, the most important document in the whole archives of international jurisprudence. . . . " ) 5 4 51 For the original exposition of this thesis, see Hühner (note 50), 113 - 117. For support for it, see Hautefeuille (note 42), 177 - 185. Notice that this thesis is really about the general law of occupation, not necessarily about the law of war per se. See, in contrast, Paul Fauchille , D u blocus maritime: fitude de droit international et de droit compare, 1882, 22 - 34, who contended that the blockading power's right is that of a belligerent occupant, not of an outright sovereign. O n this view, the law of blockade is unambiguously a belligerent right rather than a general sovereign right. 52 For one example amongst a legion of possibilities, see Treaty of Commerce and Marine, 18 July 1742, Denmark-Spain, Consolidated Treaty Series, vol. 36, 377 et seq. 53 Convention of St. Petersburg, 17 June 1801, Great Britain-Russia, Consolidated Treaty Series, vol. 56,105 et seq. 54 Vernon Harcourt , Letters by Historicus on Some Questions of International Law, 1863, 91 -92.

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By containing an explicit invitation to Denmark and Sweden to accede, this agreement foreshadowed the later use of multilateral treaties in the area of belligerent-neutral relations. The first fully fledged multilateral agreement pertinent to belligerents' rights was the Declaration of Paris of 1856, a stated goal of which was to introduce "fixed principles" to resolve various contentious points. 5 5 Its most important contribution was the stipulation that, as a matter of general law, "free ships make free goods" (i.e., enemy goods, unless they are contraband, cannot be captured on board neutral vessels) - a proposition which Britain now accepted after many years of strenuous resistance. The Nineteenth Century also witnessed increasing efforts to limit the rights of belligerents vis-a-vis one another. The Declaration of St. Petersburg of 1868 laid down the general principle that there should be no employment of arms "which uselessly aggravate[s] the sufferings of disabled men." 5 6 The Brussels projet of 1874 was a preliminary codification of the general laws of war (in the form of a set of principles rather than of a formal legal convention). 57 This was put into treaty form in 1899 at the first Hague Peace Conference and revised at the second one in 1907. 58 These rules dealt w i t h such matters as the treatment of prisoners of war and of occupied territory, the mounting of attacks and bombardments, ruses of war, the treatment of spies, respect for flags of truce and armistices and the treatment of neutral property and persons. The second Hague Peace Conference also drafted conventions on various other aspects of the rights and duties of belligerents (and neutrals). 59 There were also some private 'codification' (or restatement) efforts during this period, chiefly by the Institute of International Law,

55 Declaration of Paris, 16 April 1856, Consolidated Treaty Series, vol. 115, 1 et seq., reprinted in: Adam Roberts/Robert Guelff (eds.), Documents on the Laws of War, 1989 (2nd ed.), 23 - 27. 56 Roberts/Guelff (note 55), 2 9 - 3 1 . 57 Project of an International Declaration Concerning the Laws and Customs of War, 27 August 1874, AJIL, Supp., 1907, 96 - 103. 58 Regulations Respecting the Laws and Customs of War on Land, 27 July 1899, AJIL, Supp., 1907, 134 - 153; and Regulations Respecting the Laws and Customs of War on Land, 18 October 1907, Consolidated Treaty Series, vol. 205, 227 et seq., reprinted in: Roberts / Guelff (note 55), 48 - 56. 59 See Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, Consolidated Treaty Series, vol. 205, 299 et seq., reprinted in: Roberts/Guelff (note 55), 61 - 69; and Hague Convention X I I I Concerning the Rights and Duties of Neutral Powers in Naval War, 18 October 1907, Consolidated Treaty Series, vol. 295, 395 et seq., reprinted in: Roberts/Guelff (note 55), 109 - 119. See also Hague Convention I V Respecting the Laws and Customs of War on Land, 18 October 1907, Art. 54 of the 'Hague Rules', Consolidated Treaty Series, vol. 205, 227 et seq., reprinted in: Roberts/Guelff (note 55), 43, 57 (regarding submarine cables connecting neutral and belligerent States).

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which devised a code of prize law in 1883 and a set of rules of naval warfare in 1913. 60 I n the period between the two world wars, further progress was made. I n the Western Hemisphere, the American States concluded a convention on maritime neutrality in 1928. 61 Agreement was reached (after two unsuccessful attempts) on rules governing submarine warfare, in the London Naval Protocol of 1936. 62 Private codification efforts also continued. The Harvard Research Project, for example, compiled a code on the rights and duties of neutral States in 1939 which constituted as authoritative a summation of the state of the law as was possible at the time. 6 3 Codification efforts continued in the post-World War I I period. The Geneva Conventions of 1949 updated the rules relating to prisoners of war and added a body of law for the protection of civilians in armed conflict. 6 4 These were supplemented by two Additional Protocols in 1977, which added new rules largely pertinent to unconventional forms of warfare and to civil strife. 65 Additional conventions deal w i t h the protection of cultural property, as well as w i t h prohibitions against biological and toxin weapons, environmental modification as a weapon of war, certain indiscriminate conventional weapons and (more recently) chemical weapons. 66 O n the private front, the San Remo International Institute 60

Hans Wehherg (ed.), Institut de Droit International, Tableau general des resolutions (1983 - 1956), 1957, 209 - 223, 231 - 258. 61 Habana Convention on Maritime Neutrality, 20 February 1928,135 LNTS 187 et seq. 62 Proces verbal Relating to the Rules of Submarine Warfare, 6 November 1936, 173 LNTS 353 et seq. 63 Rights and Duties of Neutral States in Naval and Aerial War, AJIL (Supp.), vol. 33, 1939,167- 817. 64 The four Geneva Conventions of 12 August 1949 concern wounded and sick on land, 75 U N T S 31 et seq.; wounded and sick at sea, id., 85 et seq.; prisoners of war, id., 135 et seq.; and treatment of civilians, id., 287 et seq. They are reprinted in: Roberts/Guelff (note 55), 169 - 337. 65 Protocol 1,12 December 1977,1125 U N T S 3 et seq., reprinted in: Roberts/Guelff (note 55), 387 - 446; and Protocol II, 12 December 1977, id, 609 et seq., reprinted in: Roberts / Guelff (note 55), 447-468. 66 See, respectively, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U N T S 240 et seq., reprinted in: Roberts/Guelff (note 55), 339 - 362; the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 U N T S 163 et seq.; the U N Convention on the Prohibition of M i l i tary or A n y Other Hostile Use of Environmental Modification Techniques, 18 May 1977, 1108 U N T S 151 et seq., reprinted in: Roberts/Guelff (note 55), 377 - 386; the U N Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 April 1981, 19 I L M 1523 et seq., reprinted in: Roberts/Guelff (note 55), 471 - 489; and the U N Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction, 13 January 1993, 32 I L M 800 et seq.

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of Humanitarian Law compiled a manual on international law governing armed conflicts at sea in 1994, which covered relations between belligerents inter se, as well as w i t h neutrals. 67 Treaties and scholarly summations have not been the sole means of elaborating the contents of the code. A n important additional source of law has been the judgments of prize courts. The leading figure in this regard is the notable British admiralty judge, Sir William Scott (later Lord Stowell), who handed down a series of key judgments during the Napoleonic Wars which duly became the primary basis of the law of belligerent-neutral- relations in the English-speaking world. 6 8 His judgments were very much in the spirit of the code-of-conduct approach rather than of the necessity one. He took the law to be, in principle at least, a set of fixed rules and hoary precedents which neither he nor the belligerents were free to alter. " I must take my stand," he affirmed, "on the ancient and universal practice of mankind; and say that as far as that practice has gone, I am willing to go; and where it has thought proper to stop, there I must stop likewise." 6 9 Scott's approach to the law was particularly evident in the area to which he made his greatest contribution: the law of blockade. I n the spirit of Hühner, Hautefeuille and Kleen, he insisted on wrongdoing on the part of neutrals before any infringement of their rights could be justified. He constantly spoke of blockade in terms of a criminal offense by neutral blockade runners (although he did not endorse Hübner 9s thesis that the law of blockade was rooted in the law of occupation of territory). He insisted, in effect, on a combination of mens rea (a "criminal intention," in his words) 7 0 and actus reus before a neutral ship and cargo could be condemned for blockade-running (or blockade violation , in the revealing terminology often used). A neutral must have knowledge of the blockade coupled w i t h the intention of running through it; and these mental elements must coincide w i t h the overt act of evading a blockade. 71 A t least up to 1945, States have more commonly sought to justify actions in terms of the code-of-conduct mode of thought than of necessity. When a choice between the two has been available, the code-of-conduct rationale has been more commonly chosen than the necessity one - because (it may be suspected) of 67

For a short account of this initiative, see Louise Doswald-Beck, The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, AJIL, 1995,192 et seq. 68 O n the life and career of Scott generally, see Henry Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1798 - 1828,1987. 69 The Flad Oyen, 1 C. Rob. 134,140 (1799). See Bourguignon (note 68), 243 - 279, for an insightful discussion of Scott's judicial philosophy. 70 The Charlotte Christine, 6 C. Rob. 101,104 (1805).

71 The Betsy, 1 C. Rob. 92a (1798). See also The Columbia, 1 C. Rob. 154 (1799); The Neptunus, 2 C. Rob. 110 (1799); The Shepherdess , 5 C. Rob. 262 (1804); and The Lisette, 6 C. Rob. 387 (1807). For a discussion of Scott's contribution to the law of blockade, see bourguignon (note 68), 201 - 223.

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States' fear of invoking so open-ended a doctrine as necessity when a more mild alternative was available. Two notable incidents during World War II, both involving apparent violations of Norway's neutrality, illustrate this point. One was the Altmark incident, in which the British entered Norwegian territorial waters (thereby violating Norwegian neutrality) to free British prisoners being carried on a German ship. The other incident was the British mining of Norwegian territorial waters in 1940 and the dispatching of troops to the country to forestall a German takeover (unsuccessfully, as it happened). I n neither case did Britain invoke the principle of necessity. Instead, it contended that Norway had violated its duty as a neutral not to permit its territory to be used as a base of belligerent operations. 72 Since 1945, doubts have been expressed as to whether the traditional code of belligerent and neutral rights and duties continues to exist. Some have contended that, since war as a legal institution has been abolished by the U N Charter, the whole corpus of belligerents' (and neutral) rights and duties must automatically have perished w i t h i t . 7 3 Support for this view is provided by the fact (noted above) that States have frequently used self-defense (i.e., the necessity thesis) to justify transgressions of general international law during the U N Charter era. The weight of scholarly opinion, however, favors the view that the laws of war and neutrality continue to exist in the event of de facto armed conflict. 7 4 It may 72 O n the Altmark incident, see Tucker (note 32), 236 - 239. I n defense of the legality of the British action, see Humphrey Waldock , The Release of the Altmark's Prisoners, British Yearbook of International Law (BYIL), 1947, 216 et seq. I n opposition, see Edwin S. Borchard , Was Norway Delinquent in the Case of the Altmark?, AJIL, 1940, 289 et seq.; and Julius Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes and War Law, 1959 (2nd ed.), 40. I n defense of the legality of the mining incident, see Derek Bowett, Self-defense in International Law, 1958, 168. O n the Norwegian incident generally, see Martin Gilbert , Finest Hour: Winston S. Churchill 1939 - 1941, 1983, 197 - 203, 207 284. 73 See Lauterpacht (note 14). See also Christopher Greenwood , Comment, in: Ige F. Dekker/Harry H. G. Post (eds.), The Gulf War of 1980-88: The Iran-Iraq War in International Legal Perspective, 1992, 212, 215 - 216. 74 See, for example, Bowett (note 72), 174 - 181; Ian Brownlie , International Law and the Use of Force by States, 1963, 404; Tucker (note 32), 171 - 178; Jose Perez Montero , La neutralidad en el presente, 1958; Stone (note 72), 382; Morris Greenspan , The Modern Law of Land Warfare, 1959, 522 - 526; Myres S. McDougal/Florio Feliciano , Law and Minimum World Public Order: The Legal Regulation of International Coercion, 1961, 398 - 400, 427 435; Yoram Dinstein , War, Aggression and Self-defense, 1988, 153; Josef Kunz , The Laws of War, AJIL, 1956, 313, 327 - 328; Wolfgang Friedmann , Some Impacts of Social Organization on International Law, AJIL, 1956, 475, 487 - 491; A. Galina , Neutrality in Contemporary International Law, Soviet Yearbook of International Law, 1958, 225 et seq.; Dietrich Schindler , Aspects contemporains de la neutralite, Recueil des Cours, 1967, 221, 248 - 249; John Norton Moore , Legal Dimensions of the Decision to Intercede in Cambodia, AJIL, 1971, 38, 52 - 53; Walter L. Williams , Jr., Neutrality in Modern Armed Conflicts: A Survey of the Developing Law, Military Law Review, 1980, 9, 17 - 27; and Bruce A. Harlow , The

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also be noted that, in the World Court's Namibia advisory opinion of 1971, one of the judges spoke of the Namibian liberation struggle in terms of the traditional law of war and belligerency and even provided a detailed exposition of the duties of neutral countries. 75 There are numerous examples of justifications of violent conduct on the basis of alleged prior wrongs instead of self-defense. When France attacked Algerian separatist forces in Tunisian territory in 1958, it alleged that Tunisia had violated international law by acting as a base of operations for the insurgents. 76 I n 1968, Israel justified a raid against the Beirut airport as a punitive measure against Lebanon for similarly acting as a base of hostile operations against i t . 7 7 Sometimes claims of self-defense are coupled w i t h allegations of violations by neutral States of their legal duties. I n the Cambodian crisis of 1970, for example, the United States contended that Cambodia had breached its duties as a neutral - although (as noted above) the intervention of troops was actually justified as self-defense rather than as a punitive measure against Cambodia. 78 The same was true of Israel in 1982 when it sent forces into Lebanon. It accused Lebanon of violating its duties as a neutral by acting as a base of hostile operations, 79 while at the same time invoking self-defense. 80 I n a number of instances since 1945, States have invoked traditional belligerents' rights as established law, without reference to necessity or self-defense or to any wrongful conduct by neutrals. Egypt, for example, confiscated contraband from ships transiting the Suez Canal to Israel in the 1940s and 1950s, on the ground that a state of war existed. I n so doing, it made ample use of precedents provided by the great powers in the world wars. 81 India and Pakistan both issued Law of Neutrality at Sea for the '80s and Beyond, Pacific Basin Law Journal, 1984, 42, 44 45. 75 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), International Court of Justice Reports (ICJ Reports) 1971, separate opinion of Judge Ammoun, 67, 92 99. 76 Letter France to the president of the Security Council, 13 February 1958, U N Doc. S/ 3952 (1958), in: U N SCOR, vol. 13, Supp. for January - March 1958,13. 77 Letter Israel to the president of the Security Council, 29 December 1968, U N Doc. S/ 8946 (1968), U N SCOR, vol. 23, Supp. for October - December 1968,180. 78

Stevenson (note 21), 936 - 940. " Letter Israel to the president of the Security Council, 21 April 1982, U N Doc. S/14489 (1982), in: U N SCOR, vol. 37, Supp. for April - June 1982, 35. 80

See the text at note 23. For a good survey of this matter, see Thomas D. Brown , Jr., World War Prize Law Applied in a Limited War Situation: Egyptian Restrictions on Neutral Shipping w i t h Israel, Minnesota Law Review, 1966, 849 et seq. The U N Security Council condemned the resort to these measures by Egypt, on the ground that no armed conflict subsisted between it and Israel. SC res. 95 of 1 September 1951, U N SCOR, vol. 6, Resolutions and Decisions of the 81

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contraband lists during their 1965 conflict and again in 1971. 82 Iran, in its conflict w i t h Iraq in the 1980s, exercised the traditional right of visit and search of neutral vessels on the high seas, w i t h the (sometimes grudging) acquiescence of the major powers. 83 I n general, therefore, State practice appears to support the view that, even in the U N Charter era, the laws of war and neutrality both become applicable upon the outbreak of a de facto conflict. 8 4

3. Comments The code-of-conduct approach to the question of belligerents' rights has much to recommend it. I n particular, it may be said to have two principal advantages. The first is that it is firmly within the spirit of the rule of law. It seeks to spell out w i t h some precision the rights and duties of belligerents and of neutrals and then to bar transgressions by either side. It leaves no room - at least in theory - for any usurpation of rights by unilateral action. The second point in favor of the code-of-conduct approach is its even-handedness, in the sense that it is not intrinsically or necessarily either pro-belligerent or pro-neutral. Whether the balance of favor is on the side the belligerents or of the neutrals depends on the actual contents of the code. It is true that Hübner; Hautefeuille and Kleen all inclined to the view that belligerents' rights ought to be strictly circumscribed and those of neutrals given a wide play. (Harcourt, for this reason, attacked Hautefeuille as a member of "the anti-belligerent school.") 8 5 But a pro-neutral bias is not intrinsic to the code-of-conduct approach per se. A t the same time, however, it is fair to say that this school takes a restrictive view of belligerents' rights, in the sense that it provides no automatic mechanism for expanding those rights to keep up w i t h changing circumstances. It rejects the idea (supported by the necessity advocates) that belligerents can take the initiaSecurity Council 1951, 10, U N Doc. S/INF/6/Rev.l (1951). But it made no comment on the ambit or legal nature of belligerents' rights as such. 82 O n the 1965 conflict, see Arnold McNair/Arthur Watts , The Legal Effects of War, 1966 (4th ed.), 457 - 458. O n the 1971 contest, see AJIL, 1972, 386 - 387. 83

The United States was cautious on the question, only conceding that there was "a basis in international law" for the Iranian visit-and-search policy. Richard W. Murphy , Review of Developments in the Middle East, Department of State Bulletin, March 1986, 39, 41. 84

For an excellent summation of the law of war as it currently stands, see Leslie C. Green , The Contemporary Law of Armed Conflict, 1993. For an excellent summation of the law of neutrality in the wake of the experiences of the two world wars, see generally Tucker (note 32). For a good general survey (although now rather dated) of the application of the law of neutrality in post-World War I I State practice, see Patrick M. Norton , Between the Ideology and the Reality: The Shadow of the Law of Neutrality, Harvard International Law Journal, 1976, 249 et seq. S5 Harcourt (note 54), 17.

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tive themselves to protect their interests. Protection is given only to the rights conferred by the code of conduct, not to the underlying interests as such. Hence the natural inclination of advocates of the rights of neutrals (such as Hühner.; Hautefeuille and Kleen) to support this school. A t the same time, it should be noted that the code-of-conduct approach suffers from some very serious weaknesses. Some are conceptual in character, others more practical. Three call for particular mention. The first concerns the nature of the theory itself. Like the necessity theory - but for a different reason - it is only doubtfully a theory of belligerents' rights properly speaking. The reason is that, as noted above, it rejects the idea of inherent rights of belligerents, in favor of one of conferred rights. It is really an explanation of how belligerents' interests are accorded legal protection by the international community at large as a matter of international public policy, not of natural right. A second weakness is that this school's stress on the delictual conduct of neutrals as the trigger for the exercise of belligerents' rights against them is, in some important respects, unpersuasive. This is most obvious in the case of contraband. The code-of-conduct view, holding the carriage of contraband by neutrals to be unlawful, runs contrary to the general view, which (as observed above) supports the necessity-theory position that neutrals carrying contraband are under no duty to abandon their trade. They merely run the risk of losing the 'race of diligence' against the belligerent which seeks to interrupt their traffic. The delictual focus of the code-of-conduct school also poses the problem that it would seem logically to imply that personal punishment of neutrals who carry contraband and run blockades could be appropriate, as a sanction for their lawbreaking. But here too, the accepted practice of States suggests otherwise. Contraband carriers and blockade runners risk having their goods confiscated (and, in the case of blockade runners, their ships too); but they are not liable to be made prisoners of war. This is not, strictly speaking, incompatible w i t h the delictual approach of the code-of-conduct school. Perhaps the code is simply lenient in the penalties that it prescribes. But it seems fair to say that this absence of personal punishment for (supposed) wrong-doing casts some doubt on the code-ofconduct approach. The third drawback to the code-of-conduct approach is the most obvious one: the immense practical problem of agreeing on the contents of the code. It has proved particularly difficult to effect any changes in rules of law once they are established. This problem has been especially acute in areas where technological developments have been important, such as contraband and blockade. Indeed, there is only one clear example of successful replacement of an old rule by a new one in the annals of the law of belligerent-neutral relations: the adoption by the Declaration of Paris of the rule that free ships make free goods. (This displaced

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the earlier customary l a w rule that belligerents were entitled t o capture enemy goods o n neutral s h i p s . ) 8 6 O t h e r attempts at r e f o r m i n g the l a w i n this area have a m o u n t e d t o l i t t l e m o r e t h a n a d i s p i r i t i n g l i t a n y o f failure. F o r example, the U n i t e d States led an effort i n the early and m i d - N i n e t e e n t h C e n t u r y t o p r o h i b i t belligerents f r o m all capturing o f private p r o p e r t y at sea (excepting o n l y contraband), w h e t h e r the p r o p e r t y was enemy o r neutral and irrespective o f the n a t i o n a l i t y o f the ship carrying it. I t received scholarly support f r o m the I n s t i t u t e of I n t e r n a t i o n a l L a w i n 1877, b u t i t never w o n the support o f States. 8 7 ( I n fact, the institute w i t h d r e w its support i n 1913.) 8 8 Similarly, the U n i t e d States sought t o have the ' A l a b a m a rules' o f the Treaty o f W a s h i n g t o n o f 1871 ( o n the use o f neutral t e r r i t o r y as a base of belligerent operations) adopted as general rules o f law. T h i s effort, l i k e the earlier one, w o n the support o f the institute b u t n o t o f States. 8 9 A proposal b y Kleen i n the 1890s f o r a c o d i f i c a t i o n and r e f o r m o f the l a w o f contraband failed t o w i n even the institute's s u p p o r t . 9 0 N o r d i d the H a g u e C o n v e n t i o n s d o m u c h t o resolve the m a n y contentious questions o f the rights and duties o f neutrals and belligerents o n the h i g h seas. T h e D e c l a r a t i o n o f L o n d o n o f 1909 covered m o s t ( t h o u g h n o t all) o f those issues. 9 1 B u t i t never entered i n t o force, because o f t h e failure o f B r i t a i n t o ratify it. 86 The earlier rule had been laid down in the Consolato del Mar , dating from approximately the Thirteenth Century, and endorsed by legal commentators many times since. See, for example, Grotius (note 6), 603, fn 1. 87 For an American proposal of 1823 to this effect, see Letter Secretary of State (Adams) to Minister in Great Britain (Rush), 28 July 1823, in: Carlton Savage , Policy of the United States towards Maritime Commerce in War: 1776 - 1914, vol. 1, 1934, 303 - 315. For a similar attempt in 1830, see Letter Secretary of State (van Buren) to Minister in Russia (Randolph), 18 June 1830, in id., 336 - 349. O n another attempt in the 1850s, see Alan Dowty, The Limits of American Isolation: The United States and the Crimean War, 1971, 229 - 234. O n a further attempt at the first Hague Peace Conference, see Frederick W. Holls, The Peace Conference at the Hague and Its Bearings on International Law and Policy, 1900, 306 - 321. For the endorsement by the Institute of International Law in 1877, see Wehberg (note 60), 205. 88 The adoption that year of a set of Laws of Naval War Governing the Relations between Belligerents marked a return, in Article 33, to the traditional rule that enemy property could be captured at sea. Wehherg (note 60), 231, 239. 89 For the text of these rules, see Treaty for the Amicable Settlement of Differences, 8 May 1871, Art. 1, Great Britain-US, Consolidated Treaty Series, vol. 143, 145 et seq. For the support by the institute, see Wehherg (note 60), 258 - 259. O n the failure of the plan to have the rules generally adopted by States, see John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party, 1898, 666 - 670. 90 For the Kleen proposal, see Richard Kleen, De la contrebande de guerre et des transports interdits aux neutres, d'apres les principes du droit international contemporain, 1893. 91 For the text of the declaration, see AJIL, Supp., 1909, 186 et seq. Four notable issues were left open for lack of agreement: the criteria for national character (whether nationality or domicile); the validity of the Rule of 1756 (purporting to forbid neutrals from entering

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A n effort by the United States to have the norms of the declaration respected by the belligerents during the First World War, notwithstanding its lack of legal effect, came to nothing. 9 2 Indeed, the declaration itself was formally denounced by the Allied powers in the course of the conflict. 93 The experience between the world wars was much the same, despite some modest successes noted earlier. The Hague Rules on aerial warfare of 1923, which contained provisions on belligerent-neutral relations, failed to w i n the support of States.94 Plans for a bilateral treaty on maritime rights between Britain (the chief claimant of belligerents' rights in the previous war) and the United States (the principal champion of the neutrals) came to nothing. 9 5 Furthermore, during the Second World War, the agreements reached proved all too weak in the face of the stresses of total war. The Nuremberg tribunal noted in 1946 that the laws of war had been violated "on a vast scale" in the recent conflict. 9 6 The rules on submarine warfare in particular had been so widely disregarded by all of the belligerents that the tribunal decided against assessing any sentence against the German defendants on that ground. 9 7 It could be contended that these practical difficulties of reaching agreement on and enforcing the code of conduct do not compel the conclusion that the codeof-conduct approach is, per se, to be rejected. There is some force to this argument. But it must be appreciated that the problems posed by the difficulties of agreement and enforcement are, in reality, so great as to undermine one of the main virtues that the code-of-conduct theory seems to offer: the careful confining of the prerogatives of both belligerents and neutrals within defined bounds. The difficulties of agreement and enforcement, in short, have had the practical effect of leaving belligerent States w i t h a great deal of license to take the reformation process into their own hands, largely through the application of analogies from the established law to take account of new situations. The result, not surinto trades during war from which they were excluded in peacetime); rules regulating the transformation of merchant vessels into warships; and whether compensation should be owing for neutral property destroyed on enemy ships. 92 See Richard W. van Alstyne , The Policy of the United States Regarding the Declaration of London at the Outbreak of the Great War, Journal of Modern History, 1935, 422 et seq.; and Edwin S. Borchard/William Lage, Neutrality for the United States, 1937, 59 - 82. A British prize court described the declaration as "a provisional agreement." The Louisiana , [1918] A.C. 461,469. 93 By the so-called 'Maritime Rights' Order in Council of 7 July 1916. For the text, see Bell (note 17), 717-718. 94 For the text of these would-be Hague rules, see Roberts/Guelff (note 55), 121 - 135. 95

For an informative account of this matter, see Barry D. Hunt , British Policy on the Issue of Belligerent and Neutral Rights, 1919 - 1939, in: Craig L. Symonds (ed.), New Aspects of Naval History, 1981, 279 et seq. 9

* 13 International Law Reports (I.L.R.) 203,211 (International Military Trib. 1946). Id. , 220.

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prisingly, has been a high degree of flexibility and fluidity in the law - w i t h results little different, in practice, from the necessity approach itself. The judgments of Scott provide the classic illustration of this process at work. He was fully aware that new situations would inevitably present themselves from time to time. I n such cases, the correct course, in his view, was to resort to analogy from accepted legal rules: A l l law [he reasoned] is resolvable into general principles: The cases which may arise under new combination of circumstances, leading to an extended application of principles, ancient and recognised, by just corollaries, may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken, the practice is not new , nor is it justly chargeable w i t h being an innovation on the ancient law: when, in fact, the Court does nothing more than apply old principles to new circumstances. 98

This appeal to "just corollaries" in "new circumstances" has enabled belligerents to claim an ever-widening range of rights without resorting to the dreaded principle of necessity. A notable example was the evolution of the continuousvoyage principle. It was first applied systematically during the French Revolution and Napoleonic wars against neutral traders who sought to 'disguise' unlawful trading voyages by artificially dividing them into two component parts, each of which was lawful when regarded in isolation. For example, under the so-called 'Rule of 1756', neutrals were forbidden to enter into trades in time of war which were closed to them in time of peace - the principal example being carriage between a belligerent powers' own ports. Clever neutrals wishing to carry goods from, say, port A to port B, both belonging to the same belligerent, sometimes attempted to circumvent this rule by interposing a neutral stop (say, port X ) in between and then contending that they had engaged in two separate (and lawful) voyages, one from A to X and the other from X to B. The continuous-voyage doctrine was applied by Scott and other prize-court judges to defeat this device by regarding the entire process, of going from A to X to B, as a single integrated continous voyage." During the American Civil War of 1861-65, however, the American prize courts extended the continuous-voyage doctrine by analogy to the spheres of contraband and blockade, thereby significantly shifting the juridical balance of power from neutrals towards belligerents. 100 Further examples are provided by the policies of the Allied powers during the First World War. Britain devised a number of innovative techniques in connection w i t h the economic component of its war against Germany, many of which 98 The Atalanta , 6 C. Rob. 440, 458 (1808) (emphasis in the original). 99 See Herbert W. Briggs , The Doctrine of Continuous Voyage, 1926, 11 - 30; and Bourguignon (note 68), 235 - 242. 100 For the application of continuous voyage to contraband, see The Bermuda , 70 U.S. (3 Wall.) 200 (1866); and The Peterhoff 72 U.S. (5 Wall.) 564 (1867). For its application to blockade, see The Springbok , 72 U.S. (5 Wall.) 1 (1867).

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were not part of the traditional law of blockade. For example, goods were intercepted on the basis that their ultimate origin was the enemy State (not merely that they emerged directly from a physically blockaded port). Normal blockade practices were also supplemented by the practice of blacklisting neutral firms having economic contacts of any kind w i t h the enemy. The traditional right of visit and search was expanded to allow belligerents not merely to search neutral vessels on the high seas but also to divert them into belligerent ports for searching - thereby exposing them to the risk of requisition by the belligerent State under its normal sovereign powers. 1 0 1 The British also devised various ancillary administrative procedures which they operated on neutral territory. 1 0 2 Justifications for these practices were not altogether consistent. Sometimes (as noted earlier) the principle of necessity was invoked. Sometimes the measures were justified as reprisals against unlawful actions by the enemy. 103 But the reprisal argument had the weakness of depending on the existence of earlier law violations by the enemy. Justification by analogy w i t h accepted law obviated any such reliance on the enemy's conduct and enabled the belligerents to rely entirely on their own rights. I n this vein, the Allied powers favored looking "below the surface" of accepted rules to "the underlying purpose" of them. 1 0 4 The true test, according to the legal adviser to the British Foreign Office, was "whether the new development is consistent w i t h the main underlying principles of law and necessitated by the changed circumstances in which it is applied." 1 0 5 I n other words, so long as the measures were within the general spirit of the existing law, they were permissible, even if the specific techniques were new. 1 0 6 These innovations of the First World War have gone far towards being accepted as part of the international code of conduct. Many of them were sup101 The leading British prize court case permitting this practice is The Falk , [1921] 1 A.C. 787. For an analogous French case, see The Federico , discussed in C. John Colomhos , Some Notes on the Decisions of the French Prize Courts, Journal of the Society of Comparative Legislation, vol. 16 (2nd ser.), 1916, 300, 303 - 304. 102

This is the process of issuing 'navicerts* to neutral shippers, which in effect were confirmations that the neutral in question was cooperating w i t h the blockade measures. See generally H. Ritchie , The 'Navicert' System during the World War, 1938. 103

For an excellent presentation of the British case on the ground of reprisal, see A. Pearce Higgins , Retaliation in Naval Warfare, B Y I L , 1927,129 et seq. For the leading British prize court case on the subject, dealing with the effect of reprisal measures on innocent third parties, see The Stigstad , [1919] A.C. 279. 104 British note of 23 July 1915, reprinted in: Fess (note 18), 300, 303. See also the British note of 24 April 1916, reprinted in: id., 350 et seq., in which the British insisted, at 363, that their blockade measures "do not in reality conflict with any general principle of international law... los H. W. Malkin, Blockade in Modern Conditions, BYIL, 1922-23, 87, 98. 106 F o r the principal legal defenses by Britain of its 'blockade' policies in the First World War, see the British notes of 23 July 1915, in: Fess (note 18), 300 - 304; and of 24 April 1916, in: id., 350 - 369.

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ported by the drafters of the Harvard Research Project of 1939, as well as by the San Remo manual of 1994. 107 They were repeated during the Second World W a r 1 0 8 and then imitated by various belligerent States after 1945. 109 The result, in the view of one commentator, is that "a belligerent may [now] lawfully halt virtually all neutral commerce w i t h the opposing belligerent... . , , n o I n sum, in the absence of an explicit, treaty-based code such as the Declaration of London, the process of reasoning by analogy from accepted principles has had the inevitable effect of leaving the initiative to the belligerents, much as the necessity school does. Once the belligerents succeed in claiming expanded rights, they then begin to have precedent on their side. As later belligerents follow suit, the innovations increasingly take on the character of settled customary law. What the necessity theory produces by open and unilateral initiative, the code-of-conduct theory can often duplicate, more stealthily, by creative appeal to precedent.

Conclusion One conclusion emerging from this discussion is that there is considerable room for doubt as to whether belligerents' rights exist at all, if we insist that they meet the two key criteria of our provisional definition: (1) that they be inherent rights of belligerent States; and (2) that they arise solely from the existence of a state of war (declared or not). Each of the rival schools lacks one of these two key elements. The necessity school satisfies the first of these tests, but not the second. It fails the second test because, as noted earlier, the principle of necessity is really one of general international law, not of the law of armed conflict as such. I n other words, it is actually a sovereign right rather than a belligerent one. As a consequence, the necessity school does not actually support the view that belligerents' rights and sovereign rights are distinct categories. We can go further and posit that, on the necessity view, there cannot really be a distinct corpus of belligerents' rights at all, since, as Vattel pointed out, conditions of necessity must vary according to circumstances. The necessity thesis might therefore be best characterised as a mechanism for expanding the frontiers of sovereign rights on an ad hoc basis, rather than as a defined body of rights. The code-of-conduct school is in the opposite position. It satisfies the second provisional requirement, that the rights arise solely from the existence of a state 107 Both of these initiatives, for example, supported the policy of diverting neutral vessels into belligerent ports for visit and search. 108 See generally W N. Medlicott , The Economic Blockade, 2 vols., 1952-59.

109 See the text at note 81. no Williams , Jr. (note 74), 45.

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of war. But it fails the inherency test. Instead, the rights of belligerents (and, perforce, the correlative rights of neutrals) are a rough compromise between the interests of these two groups, w i t h the resulting rights being allocated (so to speak) by the community at large. The conclusion seems inescapable that what the international community grants to belligerents (and to neutrals), it can also take away. If our provisional definition of 'belligerents' rights' is retained, then, we would have to conclude that such rights do not exist in the real world according to either of the schools of thought on the question. Belligerents' rights accordingly would form a kind of juridical empty set - i.e., the definition may make sense, but nothing in the real world matches it. One obvious solution to this problem is to conclude that our provisional definition of 'belligerents' rights' is excessively strict and to modify it by dropping one of the two key components of our provisional definition. 1 1 1 There is no fundamental bar to adopting either of these solutions - provided, however, that the implications of so doing are properly appreciated in each case. It may readily be seen that adopting either solution results in a serious impoverishment of the concept of belligerents' rights. Consider first the possibility of endorsing the necessity view by dropping the requirement that belligerents' rights spring into existence by virtue of a state of war (or armed conflict). The expression 'belligerents' rights' would then simply refer to one sub-set of actions taken under the rubric of the general principle of necessity. More specifically, 'belligerents' rights' would refer to actions springing from the principle of necessity in time of war as distinct from time of peace. But the distinction between peace and war would not be a fundamental one, since the principle of necessity - the underlying legal basis of the action in either case operates both in peace and in war. To adopt this solution, accordingly, is effectively to divorce belligerents' rights from war. Intuitively, this would seem a very odd result. Consider now the second possibility raised above: opting for the code-of-conduct approach by dropping the requirement that belligerents' rights be inherent rights of States. O n this alternative, the expression 'belligerents' rights' would refer to the corpus of rights which happen to be allocated to belligerents by the laws of war and neutrality. The distinction between time of war and time of peace is fundamental here, since the laws of war and neutrality are only activated when there is a war (or armed conflict). This alternative therefore is less counter-intuitive than the first one, in that it retains the connection between belligerents' rights and warfare. It should be appreciated, however, that even this second approach results in a seriously impoverished conception of 'belligerents' rights'. The reason is that bel111

A possibility alluded to earlier in the discussion (note 2).

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ligerents' rights, on this view, become entirely divorced from the supposition that belligerent States have the right to take extraordinary measures - such as the abridgement of the normal rights of third parties - to bring about victory in their struggle. Instead, belligerents have merely the right to make use of the fixed corpus of rights allocated to them under the laws of war and neutrality, and to make the best use possible of them under the circumstances. I n addition, it should be noted that these belligerents' rights have their source in armed conflict only in a rather limited way. The existence of war, or armed conflict, is merely the trigger for the activation of the general code of conduct (i.e., of the general law of war and neutrality). But the exigencies of the conflict do not themselves determine the scope or content of the rights. These are fixed objectively by the general law. Certain conclusions may now be stated w i t h some confidence. One is that, on either the necessity or the code-of-coduct view - though for different reasons there is no such thing as belligerents' rights in the strict sense of our provisional definition. Instead, the expression 'belligerents' rights', insofar as it refers to concepts in the juridical 'real world', can only be a loose expression. As a loose expression, it might be used in either of the two senses that we have identified. First, it might be used in (so to speak) a necessity sense, to refer to the set of permissible self-defense measures - bearing in mind, however, that there is, properly speaking, no such thing as a fixed set of permissible self-defense measures, since the rights of self-defenders are determined by the principles of necessity and proportionality. To the extent, therefore, that the expression 'belligerents' rights' is thought to refer to some corpus of fixed rights, it is wrong to use it, even informally, in this necessity sense; and it is accordingly best dispensed with. The second possible loose sense of 'belligerents' rights' is the use of the expression in a code-of-conduct sense, to refer to the set of rights which the law of war and neutrality accords to lawful belligerents. But here, of course, it is the law of war and neutrality as such which is crucial. Use of the term 'belligerents' rights' adds nothing to the analysis. To the extent, therefore, that 'belligerents' rights' is thought to refer to a set of additional rights that belong to belligerents outside the law of war and neutrality, it is misleading. The danger here is particularly great, because a misunderstanding of the concept of 'belligerents' rights' may foster an erroneous belief that belligerents possess some kind of inherent right to suspend or breach the laws of war and neutrality in cases of dire need. O n the code-of-conduct thesis, they do not - even Vattel cautioned that belligerents are never entitled to resort to methods that are "essentially evil." For these reasons, the term 'belligerents' rights' is probably best dispensed w i t h on the code-of-conduct view as well as the necessity one. The conclusion, then, is a simple one. The concept of belligerents' rights is a delusion. Insofar as the term 'belligerents' rights' is used in a loose manner in either a necessity or a code-of-conduct sense, it risks being misleading and even

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dangerous. Insofar as the expression is used in the strict sense suggested in this discussion, it refers to nothing in the real world, again on either the necessity or the code-of-conduct view. Violence, sadly, may be an inveterate feature of international relations. But we must reject any notion that violence as such is the source of special legal privileges beyond the law of war and neutrality itself.

State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of Separation and Dissolution of States By Stefan Oeter

Introduction The law of State succession is in flux. For a long time the impression had been dominant that questions of State succession were a matter of merely historical interest. The end of the colonial era had brought the last wave of change in the community of States, w i t h succession in its wake perceived as a special problem of decolonization. International order seemed to have achieved a stable balance, w i t h secession as a phenomenon completely outlawed by the international community, the dismemberment of States a highly theoretical, if not speculative issue, and the uniting of States an improbable Utopia. The Cold War had led to a phenomenon that one could call a 'freezing of history'; legal concepts for the mastering of change (like State succession) under such conditions obviously lacked any importance. The last years, however, have reversed this picture. State structures have again become unstable, w i t h some States falling apart, some coming together, some new States seceding from old ones, and other States falling into a state of complete anarchy. As a consequence, international legal doctrine was forced to revive the old concepts of State succession. But unfortunately the old concepts were never as clear as most lawyers had assumed through a sort of wishful thinking. Specialists in State succession (a highly endangered species until the end of the 1980s) always knew that the law of State succession never was much more than a set of more or less elaborate principles of adaptation to changed circumstances, abstract principles otherwise known under notions such as clausula rebus sic stantibus and duty to renegotiate bona fides } As a consequence, most theoretical writing on State succession did not help very much in the field; the best way of dealing w i t h the ongoing questions 1

For this theoretical insight in particular see the masterly work of Daniel P. O'Connell , State Succession in Municipal Law and International Law, vol. 2,1967, 2 - 3 .

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was to rely on common sense and to try to find agreement among the parties concerned. 2 Multilateral conventions w i t h the character of universal, law-making treaties are generally perceived as a special case in that regard. Concerning such multilateral treaties there is not much room for arrangements. Membership to multilateral treaties poses a simple binary question: Yes or no? Since most multilateral treaties are law-making, in the sense that they function as a surrogate for the missing category of statutory law in international relations, thus creating the basis for a type of public order of the international community, there is a general interest of the international community to keep all successors within the fundamental framework of legal obligations which constitute such treaties. State practice accordingly demonstrates a strong tendency to follow the road of quasi-automatic succession to some basic categories of multilateral law-making treaties. 3 Concerning bilateral treaties, on the other hand, State practice w i t h respect to continuation, modification or termination fell back on a practice of renegotiation according to the general ideas of clausula rebus sic stantibus, 4 w i t h a rather divergent practice coming out of this approach, a practice that is still difficult to synthesize.5 But although the ensuing results of such renegotiation are highly divergent in outcome, the general ideas remain rather clear and visible in the relevant practice. Adaptation of treaties to changed circumstances w i t h an underlying assumption of universal continuity could be called a general rule, but alongside we find a claim of extinction of treaties by the successor as a potential emergency brake. 6 The procedure that States normally follow in that regard has its inherent logic: States most often negotiate on a system of schedules whereby they reach consensus on which treaties shall remain in force unchanged, which treaties shall be terminated and which treaties need to be adapted to changed circumstances following further rounds of bilateral negotiations. 7 2

See Edwin D. Williamson/John E. Oshorn , A US Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, Virginia Journal of International Law, 1993, 261, 267. 3

See remarks by Edwin D. Williamson , Legal Adviser of the US State Department, at the ASIL Meeting 1992 Panel on State Succession and Relations with Federal States, in: American Society of International Law, Proceedings of the 86th Annual Meeting 1992, 1, 12 - 13 [hereinafter ASIL 1992 Meeting]. See also Oscar Schachter , State Succession: The Once and Future Law, Virginia Journal of International Law, 1993, 253, 259. 4 See Rein Mullerson , The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia, International and Comparative Law Quarterly ( I C L Q ) , 1993, 473, 489: "Therefore a requirement of agreement between the parties concerned and the operation of rebus sic stantibus become general rules, especially in cases of bilateral treaties.... w 5 See Williamson/ Oshorn (note 2), 263. 6 See Schachter (note 3), 258 - 259; the contributions of Edwin D. Williamson and James R. Crawford to the ASIL 1992 Meeting (note 3), 1,13,18.

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That sort of procedure undoubtedly is the most advisable way of dealing w i t h the matter of changed circumstances in the context of succession. Unfortunately, however, matters are not always as easy as the ideal case of bona fide renegotiation between civilized States tends to take for granted. Matters often are so contentious that the assumption of reaching a consensus proves to be a more than hazardous condition. This is particularly true when it comes to questions of the distribution of financial resources. Even in cases of peaceful dismemberment and/or secession, the arrangements on reallocation of property and debts tend to be laden w i t h conflict. Successor States must agree on the reallocation of resources and burdens, which is not easy in itself. A t the same time - and this is what makes these dealings extremely complex - the creditors need to be integrated into the new framework. The interests of creditors, however, may diverge significantly from the interests of all the successor States involved. 8 I n extreme cases this results in a nearly unsolvable quagmire of conflicting positions. This may happen in particular in cases of contentious secession where the event leading to succession is a political conflict fought out by the- use of armed force. Successor States w i l l not come to terms w i t h one another in such cases, particularly if it is disputed whether the old State has been dismembered (and thus has vanished) or whether some parts have seceded (in the perspective of one side illegally, of course). 9 Negotiation between the conflicting parties cannot solve the issue here. But the creditors want to know who their debtors are, w i l l try to make the best out of the situation and w i l l use their financial leverage in order to gain as much security on the repayment of debts as possible. A set of legal rules is urgently needed here, since negotiation in good faith cannot solve the problem any more. But clear legal rules are missing. The ensuing dilemma is undeniable. International lawyers cannot avoid arguing to some degree de lege ferenda in these cases. State practice may help here, but since practice is inconclusive as far as these issues are concerned, 10 a value judgment of what should be the best solution in political terms w i l l be needed. I n order to find some clarity on the possible solutions and on the various interests involved, an analysis of recent State practice may serve as a starting point in 7

See for the report on US practice Williamson/ Oshorn (note 2), in particular 269. As a general analysis of the rules on State succession concerning property and debts see Vladimir-Djuro Degan, State Succession: Especially in Respect of State Property and Debts, Finnish Yearbook of International Law, 1993,130 - 192. 8

9 O n the constructive differences between continuity of States and succession and on the different legal results see Mullerson (note 4), 475 et seq. 10 Already in the discussion of the Sixth Committee of the U N General Assembly on the ILC's work on State succession it was stressed that "the task of codification was particularly difficult in a field where there was no general doctrine and State practice and custom had not yet produced well-established and consistent precedents." Sir Francis Vallat, First Report on Succession of States in Respect of Treaties, Y I L C , vol. II, 1974, 22.

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this article. The analysis w i l l be restricted to cases of partition of States, however, i.e. cases of secession and dismemberment, since these are the delicate cases of succession w i t h respect to property and debts. Cases of the uniting of States create no difficulties in that regard, since the merger of States leads to the fusion of assets in one hand, w i t h no consequential debate on the reallocation of burdens analogous to the distribution of benefits. 11

I. Consensual Solution: The Case of the Czechoslovak Federation O f course a consensual renegotiation remains the best solution available. Negotiations led bona fide enable the parties concerned to find a new balance of rights and duties, of advantages and burdens that is perceived as adequate by all sides involved. There are cases where such a mutual understanding on the reallocation of burdens can be reached, as the case of the agreed dismemberment of the Czechoslovak federation has proved. Such a peaceful and pragmatic arrangement on succession in property and archives is a case easily handled since equity in the sharing of benefits and burdens may be achieved through mutual understanding. 12 To illustrate this observation w i t h an example: Czechoslovakia, as the old federal State, together w i t h its component States, the Czech Republic and Slovakia, agreed in late 1992 that the assets and liabilities of the federal State should pass over to the successors on the basis of the population ratio between the republics (two to one), 13 w i t h no further difficulty arising in the reapportionment of assets and liabilities. By a joint letter of 4 December 1992, the three Finance Ministers notified the I M F and the World Bank of the agreement on devolution and applied for succession to the membership of Czechoslovakia by the Czech and Slovak republics according to the agreed shares in assets and liabilities. 14 The I M F and the World Bank consented to the membership of the Czech Republic and Slovakia being substituted for Czechoslovakia's membership in both institutions, but the relative shares 11 As an illustration of that point see the author's analysis of recent German practice concerning State succession in the context of German Unification, Stefan Oeter, German Unification and State Succession, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), 1991, 349 - 383, in particular 380 - 381. 12

For the case of the dissolution of the Czech and Slovak Federal Republic see the analysis by Mahulena Hoskova, Die Selbstauflösung der CSFR: Ausgewählte rechtliche Aspekte, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1993, 689 et seq. 13

See Paul R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations, International and Comparative Law Quarterly, 1994, 776, 805. "

Williams (note 13), 804 - 805.

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were fixed by the I M F according to its usual criteria, w i t h the Czech Republic taking over a bit more than two-thirds of the old Czechoslovak obligation, namely 69.61 per cent, and Slovakia taking the remaining 30.39 per cent. 15 It is questionable, however, whether one can deduce some general principles from such agreed solutions. Consensual reallocation makes possible even highly atypical solutions, solutions that are perceived as just and equitable in the individual case but that cannot be traced back to any general principle. Advantages may be conceded in a package deal where the State favored in the reallocation of benefits and burdens compensates the others by concessions in different areas. Distribution of benefits and burdens thus need not necessarily correspond to general principles at all. Accordingly, one should be extremely careful in deriving general rules from such special arrangements.

II. Peaceful Succession with Conflicts on the Redistribution of Assets and Liabilities: The Breakup of the Soviet Union A process of peaceful partition of a State does not give any guarantee that there is also consensus on the practical issues of succession. Conflict may already exist on the legal qualification of the partition, i.e. whether the partition was brought about by the secession of parts of the former State leaving intact the legal personality of the old State continued in a rump State, or whether partition occurred in the form of complete dismemberment of the former State w i t h the consequence of extinction of its legal personality as an internationally recognized State. 16 Conflict may also exist on the adequate reallocation of benefits and burdens, in particular on the criteria according to which property and debts should be distributed among the successor States. A striking example of these difficulties is demonstrated by the breakup of the Soviet Union and the subsequent creation of the CIS States.17 The disintegration of the Union of Socialist Soviet Republics occurred w i t h practically no bloodshed. Each constituent member republic declared its independence and sovereignty, including the 'core' of the system, the Russian Republic, w i t h no serious resistance exercised by the remnants of central power. 1 8 15

See Louis Forget , La succession d'fitats en Europe de l'Est et les organisations financiers internationales: l'experience de la Banque Mondiale, in: Genevieve Burdeau/ Brigitte Stern (eds.), Dissolution, Continuation et Succession en Europe de PEst, 1994,106,114. 16 O n that debate see Mullerson (note 4), 475 - 479. 17

For the problems of State succession resulting from the dissolution of the USSR see Theodor Schweisfurth, Ausgewählte Fragen der Staatensukzession im Kontext der Auflösung der UdSSR, Archiv des Völkerrechts, 1994, 99 et seq.; Mullerson (note 4), 473 et seq.; Lech Antonowicz, The Disintegration of the USSR from the Point of View of International Law, Polish Yearbook of International Law, 1991 - 1992, 7 et seq.

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I n October 1991 most of the republics, coming together on the initiative of the lending institutions and foreign creditors, even signed a 'memorandum of understanding' concerning the debts of the Soviet Union, where they accepted a type of joint liability for all the debts. 19 The understanding of 28 October 1991 was reached (one must stress) under severe pressure from the foreign lenders, which threatened to cut off all foreign funds if an immediate solution to the question of succession to debts was not found. 2 0 I n the memorandum of understanding the republics (including Russia) declared themselves to be jointly and severally liable for all foreign debts of the Soviet Union, including public debts as well as private debts, w i t h a common administration of all the debts in the former foreign trade bank of the U n i o n . 2 1 The Vneshekonombank, which was later formally transformed into an 'international bank' of the CIS States, was entrusted as an 'authorized agent' of the community of successors w i t h the task of collecting the money from the successor States and paying it to the creditors. 22 The obligation towards the community of creditors later was reemphasized in the Agreement on the Foundation of the Commonwealth of Independent States, where the CIS countries guaranteed in Article 12 that they would fulfil together all the international obligations of the former USSR. 23 I n the meantime, however, the issues of succession to assets and liabilities developed in an entirely different direction than one could have foreseen in view of the original formula. The practically identical interests of all the creditor States and banks, which were oriented towards having an economically potent debtor, led to total accumulation of all claims of payments on Russia. The amount of these debts was considerable, some estimated 60 - 80 billion US$, 2 4 of which more than 60 per cent were bank loans not secured by any State guarantee, and only some 21 per cent inter-State debts in a proper sense.25 Russia did not see any 18 For the process of dissolution of the USSR see the detailed analysis by Theodor Schweisfurth y Vom Einheitsstaat (UdSSR) zum Staatenbund (GUS): Juristische Stationen eines Staatszerfalls und einer Staatenbundsentstehung, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1992, 541 et seq. 19 See Ulrich Schmid, Schuldengespräche mit G-7-Vertretern in Moskau, in: Neue Zürcher Zeitung, 20 November 1991,13. See also Patrick Juillard, La dette exterieure de l'ancienne Union Sovietique: succession ou continuation?, in: Burdeau/Stern (note 15), 201, 210 - 212. 20 See Schmid (note 19), 13; Juillard (note 19), 210. For the US position see Williamson (note 3), 15. 21 22

For the details of the memorandum of agreement see Juillard (note 19), 210-211.

Eric Gujer , Die Altschulden der UdSSR, in: Neue Zürcher Zeitung, 25 October 1991, 14; Schmid (note 19), 13. See also Schweisfurth (note 17), 122; Juillard (note 19), 211. 23 Schweisfurth (note 17), 122. 24 Schmid (note 19), 13. O n the recent 1995 debt conversion package negotiated by the London Club see Bis zur Duma-Wahl soll das Schuldenabkommen mit Rußland stehen, in: Frankfurter Allgemeine Zeitung, 8 March 1995, 15 (with an estimated amount of now 90 billion US$ of debts).

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alternative but to accept all the cumulative claims for payment, in view of its consent to the initial settlement of October 1991, and in view also of its constant need for borrowed funds from the West. Russia thus confirmed its full liability towards the foreign lenders 26 and began to concentrate the handling of the debt payments in the former Soviet foreign trade bank that factually had been taken over by the Russian government, although formally placed under the control of the Inter-State Council on Debts created in December 1991. 27 Some of the Western lenders went even further, in particular the German government, which held an important share of Soviet debts. They declared from the beginning that they perceived Russia as having taken over the identity of the former Soviet U n i o n . 2 8 I n their eyes the Soviet Union had not been extinguished as the result of complete dismemberment, but rather all the non-Russian republics had seceded, w i t h Russia continuing the identity of the Soviet U n i o n . 2 9 This legal position was clearly a result of mainly financial interests, at least in the case of Germany. Particularly the German Ministry of Finance had an interest in clarifying that Russia was legally liable for all Soviet debts. The commercial lenders had found a pragmatic solution in the memorandum of understanding of 1991, but the government lenders, w i t h Germany in the forefront, could not be as sure whether they would find a comparably suitable agreement w i t h Russia. Legally, Russia could have taken the position that as a mere successor it was bound to pay only an adequate share of Soviet debts, w i t h the remaining shares falling on the other successor republics. The other republics, however, were obviously incapable of making interest payments, not to mention repaying principal. After some initial confusion, where different parts of the Russian administration seem to have taken different positions, 30 Russia used the Western position of identity in order to consolidate its legal position in the framework of the new 25 See for these data Juillard (note 19), 205. See also the data in Carsten Thomas Ehenroth/Dietrich Grashoff Öffentliche Schulden im Prozeß desintegrierender Staatensukzession: Die Zuordnung von Staatsschulden auf Nachfolgestaaten, Zeitschrift für vergleichende Rechtswissenschaft, 1993, 1, 2. 26

See in particular the Joint Declarations of Russia and of the creditor States of 2 April 1993, analyzed by Juillard (note 19), 220 - 224. 27 See Friedemann Bartu , Verwirrspiel um die GUS-Auslands V e r p f l i c h t u n g e n , in: N e u e Zürcher Zeitung, 30 October 1992, 13; Schweisfurth (note 17), 122. 28 This position is argued by Williamson/ Oshorn (note 2), 264 - 265, as well as by Mullerson (note 4), 476 - 479, and Michael Bothe/ Christian Schmidt , Sur quelques questions de succession posees par la dissolution de PURSS et celle de la Yougoslavie, Revue generale de droit international public, 1992, 811, 818 - 824. O n the legal objections against the thesis of continuity, however, see most clearly Schweisfurth (note 17), 103 - 108. 29

See also Williamson (note 3), 14. 30 Schweisfurth (note 17), 103. See also the description concerning the evolution of the Russian position given by the former assistant legal adviser of the Russian Foreign Ministry, Kirill Guevorguian , at the 1993 Paris colloquium, in: Burdeau/Stern (note 15), 59.

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CIS. 3 1 Some days after the European Communities for the first time used the hypothesis of continuity in a diplomatic document, 32 President Yeltsin in his letter of 24 December 1991 to the Secretary-General of the United Nations stated that "the membership of the Union of the Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organizations of the United Nations system, is being continued by the Russian Federation (RSFSR) w i t h the support of the Commonwealth of Independent States." 33 Besides preserving permanent membership in the Security Council for Russia, declaring succession to the indentity of the Soviet Union had the advantage for the Russian government of thus gaining for Russia a legal basis for its claims of continuing dominance in former Soviet territory. A t the same time, Russia had found a legal justification for its attempts to create a fait accompli concerning assets and liabilities. Already w i t h a presidential decree of 18 December 1991, Russia had seized control of the foreign accounts and currency reserves of most Soviet institutions, and also of all the diplomatic and consular premises of the USSR. 34 The Russian government emphasized that this was a provisional act. O n the other hand, however, Russia tried to consolidate its grip over all the assets of the former Soviet Union and entrenched its legal claims, arguing for an exclusive takeover of the Soviet heritage by Russia. Accordingly, Russia tried to find a practical arrangement w i t h the other republics that recognized its preliminary position and that at the same time corresponded to its new legal claim. The process of negotiations between Russia and the other republics proved to be rather laborious, however. A first agreement had been reached between eight republics already before the formal dissolution of the USSR, on 4 December 1991, when they agreed (with the still existing Union) on a Treaty on Succession to the Soviet Union's State Debts and Assets. 35 I n this treaty the successor republics provided for a division of the USSR's assets and debts according to a certain scheme of agreed shares by which each republic's share of property would be equal to that republic's share of debt. I n a schedule which was annexed to the treaty the parties agreed on the specific quota for the allocation of shares. According to this scheme, Russia would take over 61.34 per cent of assets and liabilities, Ukraine 16.37 per cent, Byelorussia 4.13 per cent, Kazakhstan 3.86 per cent, Uzbekistan 3.27 per cent, down to 0.7 per cent for Turkmenistan. 36

31

See Guevorguian (note 30), 59. O n the European Communities' 24 December 1991 document see Schweisfurth 17), 105. 32

33

31 I L M 138. See Schweisfurth (note 17), 120. 3 s Mullerson (note 4), 479; Schweisfurth 34

(note 17), 122; Juillard (note 19), 212 - 216.

(note

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The concept of apportionment was reaffirmed in late December, when the heads of the CIS States on 30 December 1991 agreed that "each of them has the right to an appropriate, fair and ascertained share of the property of the former Soviet Union abroad." 3 7 But Russian practice was far from consistent. Some days later, on 4 January 1992, the Vneshekonombank , acting on behalf of the CIS States, concluded w i t h the creditor States an agreement that reaffimed the joint and several liability of the successors. 38 A t a second stage in Kiev on 20 March 1992 the Council of Heads of State of the CIS Member States adopted a formal decision on the complex of issues relating to succession to treaties, State property, State archives, and assets and liabilities of the former Soviet U n i o n . 3 9 With this document the heads of State of the CIS recognized again that all CIS Member States were successors to the rights and obligations of the former Soviet Union. Concerning the details of apportionment of assets and liabilities they agreed on a procedural scheme, establishing a commission of repesentatives w i t h full powers to negotiate and prepare proposals on issues of State succession. But resolving the inherent conflicts of interest proved to be nearly impossible. Work on succession did not make any real progress. Thus, on 15 May 1992, in Tashkent, the heads of States of the CIS countries signed a protocol concerning the work of the commission, whereby they obliged it to reactivate and intensify its work as far as possible. 40 The commission seemed to take the reminder seriously. I n the following months a series of documents and technical understandings were adopted. O n 6 July 1992, the CIS States even concluded an agreement where they reached a general consensus on the apportionment of all the assets of the USSR situated abroad (except financial assets), according to the general quota agreed upon earlier 4 1 Each republic was given a right to transfer its share completely to another State or to demand division in natura. Regulation of such division was left to further bilateral agreements. Also arrangements relating to exchange of shares, accumulation of shares or common use of certain premises were delegated to later agreements. Concerning the subsequent step, i.e. allocation of specific assets, the States entrusted the commission on succession matters created in March 1992 w i t h the task of drawing up a detailed scheme of allocation. 42 Negotiations on such a detailed scheme of allocation, however, apparently stalled in 36 The schedule with the agreed shares is reproduced in Ebenroth/Grashoff 27 - 28. 37 38 39

Mullerson (note 4), 479; Schweisfurth (note 17), 120. O n this agreement see Juillard (note 19), 216 - 220. Schweisfurth (note 17), 109 - 110; Mullerson (note 4), 479.

40 Mullerson (note 4), 479. 42

Schweisfurth (note 17), 120. See Schweisfurth (note 17), 121.

6 G Y I L 38

(note 25), 1,

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the following months. O n 9 October, the heads of State suddenly suspended the functioning of the commission and decided to resolve "issues related to succession to assets and liabilities of the former Soviet Union on a bilateral basis." 43 Russia consolidated its fait accompli created at the beginning by providing in a further presidential decree of 8 February 1993 that all rights and obligations concerning property of the USSR abroad were taken over by the Russian Federation. 4 4 The move was complemented by a series of bilateral agreements that Russia concluded in late 1992 and 1993 w i t h most of the other republics, on the basis of the understanding that Russia would take over all international liabilities as well as all assets. Russia promised to relieve the smaller republics of all external liability - if these republics renounced any right to a share of Soviet property and assets outside the territory of the respective republic. 45 Russia thus consolidated its legal position as the only heir of the Soviet Union by taking over all the assets linked w i t h foreign trade, the embassies and consulates, and the military goods of the Red Army, but accepting also exclusive personal liability for all the debts of the USSR. For most of the small republics the deal seemed to be advantageous. They were freed of any hindering debt, 4 6 could start from the ground in borrowing, and had to relinquish title only to goods they were mostly not interested in anyway. The same was not true, however, w i t h the new State of Ukraine. Ukraine had been a source of difficulties concerning succession since the beginning. 47 Ukraine had resisted any agreement to joint and several liability, and had resisted in particular any concentration of the handling of debt payments in M o s c o w 4 8 Later, the Ukrainian government had also criticized the general mode of settlement that Russia imposed on the other republics. The mode of reallocation of benefits and burdens in particular was criticized heavily, since Russia seized exclusive control and ownership of most of the assets of the former Soviet Union without granting the other republics adequate compensation (according to the Ukrainian viewpoint) 4 9 43

Mullerson (note 4), 479; Schweisfurth (note 17), 121. See Schweisfurth (note 17), 121. 4 * Schweisfurth (note 17), 121 - 124; Mullerson (note 4), 480. Compare Die Ukraine blockiert die Schuldenverhandlungen, in: Frankfurter Allgemeine Zeitung, 8 February 1993, 13 [hereinafter Die Ukraine - FAZ]. 46 The creditor States agreed to relinquish the successor States that had concluded an agreement w i t h Russia in April 1993. See Juillard (note 19), 223. 47 O n the rationale of Ukraine's resistance see John Morrison , Pereyaslav and After: The Russian-Ukrainian Relationship, International Affairs, 1993, 677, 687 - 688. See also Juillard (note 19), 219. 44

48

Schmid (note 19), 13; K. B.y Die stockende Bürgschaftsvergabe blockiert ukrainische Aufträge, in: Frankfurter Allgemeine Zeitung, 8 February 1992, 12; Bartu (note 27), 13; Die Ukraine - FAZ (note 45).

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Ukraine also claimed to participate in the distribution of Soviet assets, and demanded a share corresponding to its general quota concerning the distribution of gold and currency reserves, of all the military equipment of the Soviet military forces and of the premises of foreign representations of the USSR. General apportionment of assets and liabilities, together w i t h a synchronism in the redistribution of assets and liabilities was the general idea behind the Ukrainian claims. I n the result, Ukraine has been successful at least partially, 50 and at least in principle. The Russian government had to admit that successor States like U k raine - when accepting a share of the liabilities of the predecessor - have a general right also to participate in the assets of the predecessor. 51 Ukraine and Russia in a protocol of 16 January 1993 agreed on a separate servicing of Soviet debts according to the quota laid down in December 1991. The protocol was based on a wholesale rejection of any joint and several liability, 5 2 and it provided for a division of Soviet assets between Russia and Ukraine analogous to the distribution of liabilities. But the protocol did not really solve the problems. Apportionment of the assets proved to be laden w i t h conflicts in detail, as was demonstrated in the case of the Black Sea Fleet where the initial agreement to partition half-and-half subsequently was heavily attacked (and then finally sabotaged) by the Russian military. 5 3 Later Ukraine was forced to relinquish its claim to half of the Black Sea Fleet, although not on grounds of principle, but in exchange for certain economic concessions which Ukraine urgently needed. 54

I I I . Interim Result: Redistribution of Assets and Liabilities as a Multidimensional Task The practice on reallocation of property and debts in the case of the partition of the USSR has been described here in some detail since it teaches an important lesson. Redistribution of assets and liabilities has to couple various levels of problems and legal discussion that are clearly theoretically distinct. This is particularly true for the two different spheres of legal relations involved: the internal relations among the successor States, w i t h the debate on the legal qualification of 49 See Morrison (note 47), 688. 50

Concerning the distribution of military goods which was rather favorable to Ukraine see Morrison (note 47), 693 - 694. si Schweisfurth (note 17), 122 - 123. 52 See Schweisfurth (note 17), 123. 53 O n the Black Sea fleet dispute see Morrison (note 47), 693 - 696; Kendall Butterworth , Successor States - Property Rights - Russia and Ukraine Agree to Share Control of the Former Soviet Union's Black Sea Fleet, Georgia Journal of International and Comparative Law, 1992, 659 - 671. See also Schweisfurth (note 17), 128. 54 Morrison (note 47), 695; Schweisfurth

6*

(note 17), 128 - 129.

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the succession and the ensuing debate on adequate apportionment, and the external relations between foreign creditors and the debtor (becoming a multiplicity of debtors in the context of the succession).55 The foreign creditors always w i l l try to achieve an immediate agreement on the servicing of debts that integrates all successors into a framework of joint and several liability. Nevertheless, in practice such an early arrangement might heavily conflict w i t h the criteria of redistribution of assets and liabilities to be established in the relationship among the successors themselves. Accordingly, one should always bear in mind the various levels of legal dispute and their interdependence. The first level, the internal relationship among successors or between a rump State and seceding entities (as successors), primarily w i l l be a discussion on the adequate criteria of apportionment of assets and burdens, both in the context of the necessary synchronism. 56 Additionally there may be discussion of whether any distribution should take place at all in cases of secession, because the rump State might be tempted to claim continued possession of all the assets according to its continuing the legal personality of the initial territorial sovereign. Rather different is the second level of legal reasoning. I n its relations w i t h the successor States the foreign creditors w i l l claim a most far-reaching protection of their legitimate trust in the economic viability of the debtor, which means a privileged position guaranteeing an integration of all successor States in the servicing of the debts. 57 A n equitable solution from the perspective of this second, external level, which primarily w i l l tend to preserve the interests of the creditors, might diverge significantly from an equitable solution designed under the requirements of the first, internal level. Accordingly, we cannot assume that there exists only one relevant concept of equity, that a solution seen as equitable by the creditors w i l l be seen automatically as equitable by all the successor States, and vice ver-

IV. Conflicting Positions on the Distribution of Liabilities in Cases of Contentious Partition: The Case of Yugoslavia From the foregoing remark the basic starting point of any further analysis should be clear: a settlement like the one reached w i t h the Soviet republics in October 1991 is not likely to be a solution capable of overall generalization, since 55

For the interdependence of these levels of negotiation see Juillard (note 19), 206 - 207. 56 See Williamson/Osborn (note 2), 269 - 270. 57 See Juillard (note 19), 207 -208. 58 Concerning the problem of equity in State succession see Vladimir-Djuro Degan, Equity in Matters of State Succession, in: Essays in Honour of Wang Tieya, 1994,201 - 210.

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that solution copes w i t h the problem of equity only under one aspect, while neglecting other decisive dimensions. Pressing all the successor States into joint and several liability admittedly solves the problem of insolvency for the creditors as far as possible. A t the same time, however, such a solution may lead to a grossly unjust allocation of burdens between the successors, to distorted results that are perceived as so inequitable by the nations concerned that some of the successor entities w i l l be forced into desperate resistance. The final result of such a state of conditions is far from appealing: the feeling of injustice w i l l tend to create a fierce struggle between conflicting positions, w i l l create an ideological stalemate that threatens to make the whole question intractable. The problem may be exemplified w i t h a specific case study, a study on succession practice in the breakup of the former Yugoslavia. One fundamental difference must be stressed at the outset. Joint and several liability was demonstrated to be bearable in a case like the breakup of the Soviet Union, where the economically dominant 'core' State, the Russian Federation, was compensated for the accumulation of debts resulting from joint liability w i t h additional agreements that reserved for it all the assets of the old Union. Although the external sphere and internal arrangements fell apart here at the beginning, a synchronism between distribution of assets and liabilities could be reached in the course of further negotiations, owing to the strong negotiating position of the dominant rump of the old Union. The case of Yugoslavia, however, diverges from that pattern. We are confronted w i t h a completely different situation. Joint and several liability of all the successor States in that case would inevitably lead to unsatisfactory results. Joint and several liability logically would result in the accumulation of all the liabilities on the one republic that still is economically viable (and capable of servicing some debts), namely Slovenia. The only viable successor State thereby would run the risk of being driven into economic ruin, not like all the others by political turmoil and war, but by the lenders' run on the remaining assets.59 The need for some rescheduling of debt is obvious, as in cases of bankruptcy of commercial enterprises; public international law, however, still does not recognize any ordered procedure of insolvency. Contrary to the likely allocation of liabilities, the assets of the former federation were exclusively in the hands of the Serbian administration that in mid-1991 had taken control of the rump of central power. Serbia has consumed most of these assets for financing the war against the other successor republics. 60 Synchronism of assets and liabilities is excluded for once and for all. This means: the 59

For the economic data, in particular recent debt service ratios, see Mojmir Mrak, Slovenia: Creating its O w n Identity in the International Financial Community, Journal of International Relations (Ljubljana), 1994, 23, 31. 60 See Degan (note 8), 150.

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successor paying the debts would never have the chance to get any compensation from the successor seizing the assets, because the successor that usurped the assets is technically insolvent due to its irresponsible policies, even more, has ruined its economy by using the remnants of the central power for its war against the other members of the federation. The result briefly outlined is even more grotesque if one looks to the economic facts that characterized the starting point at the beginning of the 1990s. I n mid1991, when the conflict on the political restructuring of the Yugoslav federation escalated into armed conflict, the currency reserves in the hands of the Yugoslav federal authorities still were larger than the foreign debts of the federation that are now subject to dispute. 61 Out of the medium- and long-term debt of Yugoslav public entities of some (estimated) 15 billion US$ only some 3 billion US$ are said to have been national debts of the federal authorities proper. 62 Most of the foreign debts of Yugoslavia were debts of the various Yugoslav republics and of republican authorities (including public enterprises subject to control of the republics), i.e. 'local' debts in the sense of traditional terminology, but not 'national' debts of the federation in itself. 63 Such local debts generally are not affected by secession or dissolution, but remain w i t h the specific entity that contracted the debt. 6 4 A comparable principle exists in cases of separation and dissolution for so-called 'localized' debts. These localized or territorial liabilities, i.e. debts contracted for identifiable projects in a specific region, were traditionally regarded as debts of the central State subject to rules of succession.65 I n cases of breaking up a State into different new entities, however, State practice has established an analogous treatment of local and localized debts. 66 Accordingly, most 61 See Defizit in Jugoslawiens Leistungsbilanz: Zahlungen an den Pariser Klub Vorübergehend' ausgesetzt, in: Neue Zürcher Zeitung, 12 September 1991, 17 [hereinafter Defizit NZZ]. 62 See Defizit - N Z Z (note 61), 17; Rene Höltschi, Finanzprobleme der 'Bundesrepublik Jugoslawien', in: Neue Zürcher Zeitung, 23 September 1992,17; Mrak (note 59), 30. 63 Concerning the distinction of these three categories of debts see Williams (note 13), 786; Wilfried Fiedler , State Succession, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Inst. 10, 1987, 446, 452. For a fundamental analysis of the issue see O'Connell (note 1), 416 - 420. 64 That State practice unequivocally supports such a doctrinal hypothesis is demonstrated by Williams (note 13), 788 - 793. See also Fiedler (note 63), 452; Rudolf Streinz , Succession of States in Assets and Liabilities: A New Regime? The 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, German Yearbook of International Law (GYIL), 1983, 198,204. 65

See Fiedler (note 63), 452. See also the ILC's commentary on the draft of the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Report of the International Law Commission on the work of its 33rd session, 26th session, Supp. 10, U N Doc. A/36/10, 158 and 168. 66 See Carsten Thomas Ebenroth/ Oliver Wilken , Sezessionsbedingte Schuldüberleitung: Wirtschaftsrechtliche Dimensionen der Staatennachfolge, Recht der internationalen Wirt-

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of the Yugoslav debt fell automatically on individual republics that had become sovereign States in 1991/92. Serbia alone is said to bear - according to these principles - a debt burden of (estimated) nearly 5 billion US$, Croatia of some 3 billion US$, Slovenia 2 billion US$, and Bosnia-Herzegovina 1.5 billion US$. 6 7 These republican debts, as is obvious under the established rules of public international law mentioned above, must be qualified as so-called 'allocated' debts. 68 Allocated debts remain w i t h the entity concerned, since the local authority legally continues its existence and thus can - without any difficulty - continue also its position as a debtor, notwithstanding the local entities' attribution to one State or another. 69 With the process of secession or dismemberment the international legal status of the relevant territorial sovereign (at least in the case of Member States of a federation) w i l l necessarily change, but not the legal personality of the local authorities subject to its jurisdiction. Even in the case of the Yugoslav republics, where the constituent States of the federation changed their international legal status from local authorities to independent and sovereign States under international law, the change of status of the republics does not affect the attribution of its former debts. The territorial entity itself is continued in its existence, and continues also its liabilities, notwithstanding any potential change of international legal status. Thus, only 3 billion US$ out of an overall 15 billion US$ foreign debt really constitutes State debts whose fate is affected by the fact that the former debtor State was carved up into some half dozen new States. Only that limited category of federal debts is subject to any dispute on rules of State succession.70 These federal debts of 3 billion US$ were balanced, however, in mid-1991 by foreign currency reserves of more than 4 billion US$ in the hands of the central bank which until 1991 was under the control of the federal authorities. 71 The background of this strange phenomenon - strange at least for a State known as heavily indebted - is easily discernible. The administration of foreign currency earnings (and currency reserves) was centralized in the hands of the central bank, whereas the use (and attribution) of debts was decentralized and fell mostly on the republics and republican public enterprises.

schaft (RIW), 1991, 885, 891; Günter Dohm/Jost Delbrück/Rüdiger Bd. 1/1,2nd ed. 1989, 181. 67 See Defizit - N Z Z (note 61), 17; Mrak (note 59), 31.

Wolfrum,

Völkerrecht,

68 For such a distinction in the case of Yugoslavia see Mrak (note 59), 30-31. 69 Concerning local debts see Ebenroth /Wilken (note 66), 888. See also R K. Menon, The Succession of States and the Problem of State Debts, Boston College Third World Law Journal, 1986, 111, 114. 70 See Mrak (note 59), 31 - 33. 71 Defizit - N Z Z (note 61), 17.

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With the usurpation of power and the seizure of the federal authority by the Milosevic regime, i.e. the Serbian republican government, Serbia appropriated control over the currency reserves administered by the federation's central bank. 7 2 Serbia then used the currency reserves of the federation for its military campaign against the other republics, buying military goods and logistical supplies like oil. The remaining amounts later were transferred to black accounts in safe havens like Cyprus, in order to evade the international sanctions (and also to remove the accounts from potential seizures by creditors of the former Yugoslav federation). The legal consequences of such a factual situation are in dispute. Commercial banks seem to have claimed that all successor States of Yugoslavia were liable jointly and severally, which would have meant that they could have claimed payment of all the debts by one successor like Slovenia alone. 73 From a lenders' perspective such a legal claim might sound reasonable. From the perspective of the successor State envisaged as a potential victim of such a claim, however, the legal claim of joint liability must seem an affront, since it lacks any legitimacy in the eyes of the people concerned. Its legality w i l l be strongly disputed, because it w i l l inevitably be perceived as beyond any generally accepted idea of equity and fairness. Slovenia and Croatia have always disputed the validity of claims of joint and several liability and have never accepted full liability for all the debts of the former Yugoslavia. 74 This does not mean that they took the opposite extreme position, namely invoking the 'clean slate' doctrine. The clean slate doctrine developed in the context of rebellions against colonial powers, of wars of independence, and was mainly used in the context of decolonization. 75 Although the clean slate principle might be seen as having some justification in cases of forcible secession, because it excludes that the seceding entity becomes obliged to pay parts of the 'odious' debts raised in order to finance the suppression of its own rebellion, it is obviously unfair to foreign lenders. 76 After the secession the rump State charged w i t h the debt under the clean slate doctrine might be reduced to a fraction of its original territory, population and economic capacity. Such a State in its reduced size might be entirely incapable of servicing the debt. This might be a marginal risk in cases of decolonization, where the mother State always was disproportionate in size and economic potential to the peripheral colonial entity 72

See Sanktionen der Belgrader Nationalbank gegen Slowenien und Kroatien: 'Währungshüter' als Verfechter serbischer Interessen, in: Neue Zürcher Zeitung, 11 July 1991,13. 73 See Viktor Meier, Nach der Trennung die Abrechnung: Slowenien w i l l weg von der jugoslawischen Erblast, in: Frankfurter Allgemeine Zeitung, 2 March 1993,12. 74 See Meier (note 73), 12. 75 76

See Crawford (note 6), 16 - 17. O n the underlying conflict of interests see Ebenroth /Wilken

(note 66), 888.

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invoking the clean slate doctrine. I n cases of real partition or dismemberment, as in Yugoslavia, the ensuing risk of defaulting on debt becomes quite serious, however, even more so when the seceding parts are the more wealthy and economically viable parts of a country. The clean slate doctrine in these cases becomes unacceptable for the lenders and would cost a successor all the good w i l l of the international financial community.

V. Liability Pro Rata as the only Viable Solution Slovenia and Croatia thus were well advised to take the reasonable middle ground position, invoking liability pro rata of all the successor States. Such a claim to be liable only pro rata for the debts of the predecessor in cases of secession and dismemberment can be supported by reference to the (draft) Articles 40 and 41 of the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts adopted in 1983. 77 Article 40 para. 1 of the 1983 Vienna Convention, which is not yet in force, provides: When part or parts of the territory of a State separate from that State and form a State, and unless the predecessor State and the successor State otherwise agree, the State debt of the predecessor State shall pass to the successor State in an equitable proportion, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt.

A n d Article 41 of the same (draft) Convention provides an analogous formula for cases of dismemberment: When a State dissolves and ceases to exist and the parts of the territory of the predecessor State form two or more successor States, and unless the successor States otherwise agree, the State debt of the predecessor State shall pass to the successor States in equitable proportions, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt.

Admittedly, the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts of 1983 is no authoritative source of public international law. It has not been ratified by a sufficient number of States, leaving it w i t h little chance ever to enter into force as binding treaty law. 7 8 As a codification of customary international law, it has to be viewed w i t h some suspicion as well. 7 9 Like its counterpart, the (draft) Vienna Convention on State Succession in 77 U N Doc. A / C O N F . l 17/14 of 7 April 1983, reprinted in: 22 I L M 306. 78 See, e.g., Mullerson (note 4), 474; Began (note 8), 153 - 155; Dahm/Delbrück/ Wolfrum (note 66), 171. 79 Mullerson (note 4), 473: "The two conventions on State succession contain more clauses pertaining to the progressive development of existing customary law than to its

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Respect of Treaties of 1978 80 , the draft Convention on Succession in Property and Debts is too much centered on the problems of 'newly independent' States.81 I n the opinion of some eminent authors, the draft Convention is obsessed w i t h solving the problems of the immediate past that were in the minds of its drafters (namely the problems of decolonization), and tends to neglect the classical problems of State succession which are bound to come up again in the future. 8 2 A t a second look, however, the general criticism towards the two Vienna draft Conventions seems a bit exaggerated, and thus unfair. As James Crawford has stressed recently, a central feature of the conventions is the extent to which they develop doctrines of universal succession in relation to States other than 'newly independent' States.83 The resulting solutions are not as biased as is alleged generally. Admittedly, some of the rules, like the rule of Article 31 of the 1979 Vienna Convention on Succession in Treaties concerning succession in cases of the uniting of States, are obviously impracticable. 84 I n other contexts, however, as in the context of secession and dismemberment, the Vienna Conventions seem to have taken a reasonable approach. I n particular the 1983 draft Convention's Articles 40 and 41 deliver a convincing solution to some extremely complex problems, a solution that seems firmly grounded in international practice. The approach proposed by the two articles accordingly could have a serious chance of becoming the basis for future customary law, even if the draft Convention itself never comes into binding force as treaty law. The proposed liability pro rata respects the legitimate interests of all sides affected in such a case of contentious secession and/or dismemberment, and tries to strike a balance between the conflicting expectations of creditors and successors. A n approach to be welcomed in particular is the attempt to find a congruent solution in cases of secession and of dismemberment. The draft Convention here obviously deviates from traditional practice and doctrine, but it has a good point in doing so. 8 5 The case of Yugoslavia, which serves as a reference point here, demonstrates w i t h utmost clarity that it is extremely difficult to distinguish between these two categories of State succession.86 Although in theory the distinccodification." I n addition, see Detlef F. Vagts , State Succession: The Codifiers* View, Virginiajournal of International Law, 1993, 275,276. See also Degan (note 8), 162 - 170. so U N Doc. A/CONF.80/31 of 22 August 1978, reprinted in: 17 I L M 1488, and in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1979,279. 81 To that general criticism see Crawford (note 6), 16 - 17; Mullerson (note 4), 473. 82 For a strong criticism of the 1978 Convention see in particular Daniel P. O'Connelly Reflections on the State Succession Convention, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1979, 725. See also Vagts (note 79), 294 - 295. 83 Crawford (note 6), 16 - 17. 84 See Oeter (note 11), 354 - 359. 85 See also Degan (note 8), 185; Ebenroth/Wilken (note 66), 889. 86 For the difficulty see Degan (note 8), 135 - 136.

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tion sounds appealing, it is often almost impossible to draw a clear dividing line between secession and dismemberment. I n the case of Yugoslavia, for example, it is hard to decide whether the disintegration of the former Yugoslav federation constituted a case of complete dismemberment or a case of serial secession. Although there are good arguments for the dismemberment thesis, which was propagated i.a. by the Badinter Commission and later by the States of the European Union, it seems indisputable that at the beginning there existed a case of pure secession. With one republic after the other declaring its intention to secede, this process of serial secession87, however, might be viewed as resulting in a case of complete dissolution of the old federal State, which then would have ceased to exist as a legal entity. 8 8 A t the latest w i t h the sovereignty declaration of Serbia and Montenegro of 27 A p r i l 1992, where the two remaining republics declared the creation of a new federation, the old federation was perceived by most States as having been extinguished, w i t h the individual republics left as the only bearers of sovereignty. 89 Even if it would be possible to find a clear-cut dividing line and a precise date where secession ends up in dismemberment, the consequences would be open to debate. If one applies the clean slate doctrine to secessionist entities, as the Third Restatement of the American Law Institute does, and subjects successors born out of dissolution to devolution of liabilities in an equitable proportion, does it really make sense to subject to the legal regime of secession (i.e. the clean slate doctrine) the republics declaring secession first, but to the legal rules of dismemberment the republics declaring independence later? The distinction lacks plausibility, if applied in really hard cases. Just to the contrary, it makes sense to extend also to the context of secession the principle of liability pro rata , which is inevitable in cases of dismemberment. The clean slate principle, which traditionally was advocated in cases of secession, should be restricted in its applicability to the special case of so-called 'newly independent' States, where it undisputedly is the most reasonable solution. I n cases of ordinary secession it would create results 87 For the breakup of Yugoslavia as a process of serial secession see Waldemar Hummer ; Probleme der Staatennachfolge am Beispiel Jugoslawien, Schweizerische Zeitschrift für internationales und europäisches Recht, 1993, 425, 433. 88 See also Degan (note 8), 180 - 183; the observations of Ove E. Bring and M. Kelly Malone. Agora: U N Membership of the Former Yugoslavia, American Journal of International Law (AJIL), 1993, 240, 244, 246. For the opposite conclusion see Yehuda Z. Blum , U N Membership of the 'New' Yugoslavia: Continuity or Break?, American Journal of International Law, 1992, 830 et seq.; Hummer (note 87), 432 - 437. 89 See Opinion 11 of 16 July 1993, rendered by the Arbitration Commission of the U N / EC Peace Conference on Yugoslavia: "The Commission opines that 27 April 1992 must be considered the date of State succession in respect of the FRY because that was the date on which Montenegro and Serbia adopted the Constitution of the new entity and because the relevant international agencies then began to refer to 'the former SFRY\ affirming that the process of dissolution of the SFRY had been completed. w

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that are unfair to the creditors and that do not adequately reflect principles of equity. The unavoidable consequence was drawn by Articles 40 and 41 of the 1983 (draft) Convention: Liability pro rata is the only legitimate principle of reallocation of assets and liabilities also in cases of ordinary secession.90

V I . Criteria of Redistribution of Assets and Liabilities Even if one accepts the basic principle of liability pro rata enshrined in Articles 40, 41 of the 1983 (draft) Vienna Convention as a sound basis of customary law practice, the formula used in the two articles nevertheless leaves more questions open than it answers. As a next step inevitably the question arises as to what the following really means: "shall pass to the successor States in equitable proportions, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt." I n other words, one must wonder what the practical criteria are in reallocating assets and liabilities. 91 The problem starts w i t h the question of how to determine what constituted State property of the predecessor State. I n the Working Group on Succession Issues established in April 1992 within the framework of the U N / E C Conference on Yugoslavia, the question of an inventory of State property of the former Yugoslavia sufficed to paralyze the whole undertaking of a negotiated settlement on succession. Serbia/Montenegro created a deadlock by claiming a definition of State assets that proved unacceptable to all the other successors. 92 Linked w i t h its thesis of taking over the identity of the former Yugoslavia, the so-called Federal Republic of Yugoslavia (FRY) argued that not only the property of the Yugoslav Federation, but in essence all public property that had been financed by more than one republic should be regarded as State property. 93 I n a Draft Agreement on Succession between the Federal Republic of Yugoslavia and the Successor States of 4 May 1993, the FRY accordingly put forward the thesis that, besides the property, rights and interests of the federation proper, all those parts of the so-called 'social property' should be covered by an eventual succession arrangement that had been created entirely or partly by legal entities of two or more re90 See also Dahm/Delbrück/Wolfrum

(note 66), 179 fn 53.

91 O n that question see the detailed analysis of Ebenroth/Grashoff (note 25), 2 0 - 2 5 . 92 See Degan (note 8), 147 - 151. 93 See in detail Dragana Gnjatovic , Distribution of the State Property and Debts of the SFR Yugoslavia, Yugoslav Survey, 1994, 113 - 132. See also the Statement to the Working Group on Succession Issues of the International Conference on the Former Yugoslavia by the Delegation of Croatia, U N Doc. S/l 994/624 of 26 May 1994, 7; the Statement by the Federal Republic of Yugoslavia in the Working Group on Succession Issues of the International Conference on the Former Yugoslavia, U N Doc. S/1994/850 of 19 July 1994, 3 - 5.

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publics, or financed w i t h the federal budget, or financed w i t h funds of two or more republics. 94 This position, which was reaffirmed in May 1994 by a Serbian draft inventory of assets and liabilities of the SFRY, 95 extends the dispute on succession to all imaginable historical claims, since it includes any investment by the Yugoslav State since its foundation in 1918, 96 assessed according to 1990 prices. 97 This brings into dispute the question of amortization as well as of valuation at current market value of all major infrastructure investments in roads, railroads, telecommunications, power plants, water supply, and also major industrial plants. 98 As a response, Croatia in a submission of 21 May 1993 argued that State property in the sense of the laws of succession covers nothing more than specific property of the federation and of its subsidiary organs. This would include property of the federal organs proper, i.e. of the Federal Presidency, of the Federal Assembly and of the Federal Council w i t h all its secretariats and agencies, the property of the federation abroad (in particular diplomatic and consular premises), and also property of the Federal A r m y and all the assets and liabilities of the National Bank of Yugoslavia. 99 Both the Serbian and the Croatian submissions were reactions to the Draft Single Inventory of Assets and Liabilities of the SFRY as of 31 December 1990, of 26 February 1993, which had been prepared by the Peace Conference's Working Group on Economic Issues. 100 The Draft Single Inventory had found the approval of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, but had encountered fierce resistance by Serbia/Montenegro, which submitted a general reservation regarding the appropriateness of the group's w o r k . 1 0 1 Thus, between four of the five successors it is agreed practically to the last detail as to what constitutes State property of the former Yugoslavia; but the whole arrangement cannot enter into force until Serbia/Montenegro ceases w i t h its policy of obstruc-

94 Degan (note 8), 149 - 150. 95 See Dragana Gnjatovic , A n Inventory of State Assets and Liabilities of SFRY, Yugoslav Survey, 1994, 21. 96 "State Property in the SFRY. . . means everything made jointly, built up using joint resources, the so-called State capital, pursuant to the decision of relevant State agencies.. State property of the SFRY comprises all immovables and movables which were Stateowned in the Kingdom of Yugoslavia, . . . all immovables and movables resulting in the FPRY and SFRY from joint financing by all parties to the International Conference on the Former Yugsoslavia . . G n j a t o v i c (note 95), 23. 97 Id., 26. 98 Degan (note 8), 174 - 175. 99 Degan (note 8), 176. 100

O n the Draft Single Inventory see Degan (note 8), 176 - 177.

101 Degan (note 8), 176 - 177.

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The Chairmen of the Conference had tried to override Serbian resistance by asking for an opinion of the Arbitration Commission on the question: "What assets and liabilities should be divided between the successor States of the former Socialist Federal Republic of Yugoslavia in connection w i t h the succession process?" 103 But the Arbitration Commission's Opinion 14 of 13 August 1993 did not really decide the issue. 104 It mainly stressed the general obligation to cooperate, and emphasized that all the "assets and liabilities listed in the Inventory of 26 February 1993, upon which the successor States have reached agreement should accordingly be divided between them." Concerning non-agreed items, the Arbitration Commission avoided making a legal decision by pointing out "that it does not have sufficient information on which to base a decision as to each asset and liability listed in the Inventory"; moreover, it declared "that these are not legal issues which it could profitably seek to resolve as part of its consultative remit and that it should confine itself to determining the general principles to be applied." With these general principles it then carved out the basic legal guidelines of any future settlement, however. A t first, the Commission explained that " . . . immovable property situated on the territory of a successor State passes exclusively to that State . . . . The origin or initial financing of the property and any loans or contributions made in respect of it have no bearing on the matter." A n d secondly, as far as other assets are concerned, the Commission stressed the "commonly agreed principle" that assets are to be divided "if, at the date of succession, they belonged to the SFRY, and the question of the origin and initial financing of the property, debts and archives, or any loans or contributions made in respect of them, is irrelevant." If, to the contrary, they were not property of the federation, they fall automatically under the jurisdiction of the relevant republic. Even in the case of items of property that originally belonged to the federation and that only in the context of the 1974 Constitution were transferred to the constituent republics, the Arbitration Commission held this principle to be decisive. O n l y in the case of entities that exercised 'social ownership' either at the federal level or in two or more republics, should the property again be divided, to the extent the entity "exercised public prerogatives on behalf of the SFRY or of individual republics." The guidelines of a future arrangement are thus set by Opinion 14 of the Arbitration Commission; a detailed agreement between the successor States 102 See also Letter dated 26 May 1994 from the Permanent Representative of Croatia to the United Nations Addressed to the President of the Security Council, U N Doc. S/1994/ 624 of 26 May 1994; annexed Letter dated 17 May 1994 from the Head of the Delegation of the Republic of Croatia to the Working Group on Succession Issues of the International Conference on the Former Yugoslavia Addressed to the Co-Chairman of the International Conference [hereinafter Letter of 17 May 1994]. 103 See Degan (note 8), 177.

104 As to Opinion 14 of 13 August 1993 see Degan (note 8), 177 - 180.

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is still needed, however, which leaves Serbia the possibility of obstructing the whole procedure. 105 The problem of having no real surrogate for a mutual agreement between the successor States continues w i t h the criteria of equitable apportionment. The traditional criteria of apportionment - of 19th century practice, to be frank - seem to be dubious in their usefulness. Redistribution of liabilities either per capita or w i t h respect to the size of territory attributed to the successors obviously is grossly inadequate. 106 I n agrarian societies of pre-modern times size of population and of territory may have been a reliable indicator of productive capacity and economic performance. Nowadays, factors like the stock of capital goods and the standard of technology are so decisive that the aforementioned criteria lack any credibility. If one looks into the relevant literature, the criterion most often proposed seems to be the proportion of the G N P of the successor entity to the total G N P of the predecessor State. G N P as a statistical figure by definition is intended to aggregate economic data indicating economic performance and productive capacity of regional economies. G N P as a statistical figure gives a rather clear idea of differences in the distribution of wealth. G N P also constitutes a quite well-defined statistical figure which is relatively easy to handle in practice. 107 Nevertheless, the synchronism in the distribution of assets and liabilities which is the main aim of such an operation w i l l not be guaranteed by the use of G N P as a single criterion. 1 0 8 Foreign debts may have been raised w i t h the sole purpose of investing in certain underdeveloped regions or parts of the national economy. Benefits of foreign debts thus may be distributed unevenly in a country. I n other cases, certain export industries may have been propped up w i t h the help of foreign debts. Distribution of liabilities solely according to G N P would eliminate these considerations from the range of relevant factors. Doctrinal literature accordingly is full of proposals on how to surrogate G N P as an indicator by other conglomerates of data and factors, in the direction of creating more complex aggregate criteria. 1 0 9 The more complex such an aggregate standard, the more it can approach what the author of the proposal perceives as a just solution. A t the same time, however, any additional aggregation leads to a severe loss of feasibility, since the construction of (by definition abstract) standards needs a considerable amount of good w i l l to come to some reasonable result. los See Letter of 17 May 1994 (note 102), 2. 106 See Ebenroth/Grashoff 7

(note 25), 21.

i° For the advantages of G N P as an indicator of capacite contrihutive Grashoff (note 25), 23. i° 8 See the observations made by Ebenroth/Grashoff (note 25), 24. 109 See, e.g., Ebenroth/Grashoff (note 25), 24 - 25.

see Ebenroth/

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As an additional problem one should be reminded that any proposal on the further factors to be included necessarily reflects the economic interests of the parties involved. A striking example is an early proposal made in the case of the former Yugoslavia where it was argued by Slovenia that one should take the proportion of the successor entities in the export earnings as a standard for distribution of assets and liabilities. I n the first rounds of negotiations in 1991 this idea was favored by Slovenia, because one generally expected an excess of assets over liabilities at that time. The idea was dropped after it became clear that Serbia had consumed most of the central bank money. But even besides that sort of contingency, it was a problematical position from the beginning. Export earnings may be a good indicator of economic performance, but too many decisive considerations are left aside if one concentrates solely on such single items as origin of currency reserves and capacity to service foreign loans. The question of how to construct a set of precise technical criteria for redistribution w i l l not be discussed in detail here. Some ideas about the ongoing debate were only given in order to illustrate an important point of interest for the topic in general: the more a lawyer attempts to grasp all the arguments of equity inherently underlying the discussion of such cases, the more bulky become the criteria of redistribution. This is a point which should catch all the attention. The mode of redistribution always is the main problem, if not the basic problem of any system of liability pro rata . This is true for the debtors' side, the group of successor States, which must agree on a certain distribution of liabilities, and thus implicitly on quota criteria, on proportions of debt to be reallocated. Under this abstract formula 'must agree on a distribution of liabilities' there is hidden an enormous amount of problems. A n d if there is no agreement, how w i l l the lender institutions, the creditor States and banks that gave their money and want a return on the capital invested, cope w i t h the situation? Whom of the successor States can they select as a debtor obliged to service the loan ? The questions are difficult to answer in cases of lack of agreement. A comparable problem arises on the creditors' side, in the relationship between the various lenders. For them it is at least as difficult to agree on a specific redistribution of debts as for the successors - if it is possible at all. The case of Ukraine gives a good example of the difficulties involved. Every creditor wanted the economically most potent successor as its debtor when the dissolution of the Soviet Union became clear, and not an insolvent State like Ukraine w i t h practically no currency earnings. If one imagines a creditors' committee like the London or Paris Club discussing redistribution of debts in a case like the Yugoslav succession, one can easily assess the ensuing problem. The one creditor that would succeed in gaining a portion of debt against the economically more potent successor, like Slovenia in the

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Yugoslav case, would draw the winner, since he would have a chance of seeing his debt serviced in the long run. The other one, limited w i t h his debt to some economically and politically ruined State like Bosnia-Herzegovina, would be forced to write off his debt almost entirely. The differences in financial outcome produced by such a form of redistribution would be almost monetarily quantifiable, because the secondary markets value the different economic prospects of different debtors by real market discounts on their debts. Accordingly, the preparedness of creditors to compromise in such a direction is not very developed, to say the least. It seems that there is only one solution left in hard cases, and that is a means of last resort. Without an agreed solution there exists only the possibility to ration any individual debt according to the ordinary procedure used in national insolvency and bankruptcy procedures. As a result, creditors - if an agreement on the issue is lacking - may only claim pro rata repayment of debts from individual successor States. The losses caused by the breakdown of the former debtor State are thus distributed evenly among all the creditors, and the debtors are spared the fate of paying all the debts without any hope of getting back the amounts exceeding their personal quota. If one falls back to strict liability pro rata w i t h an allocation of debts, however, one has to take care that the criteria of apportionment are clear and easily operable. A n aggregate set of criteria that needs a further round of (negotiated) construction in detail would be bound to fail in that regard, would sabotage the whole solution of liability pro rata.

V I I . Quota Allocation by the I M F and the Apportionment of Debts I n the case of Yugoslavia, however, there was such an aggregate criterion of apportionment which proved to be operable. Due to the fact that the international financial institutions, the International Monetary Fund and the World Bank, had to cope first w i t h the question of how to allocate the former Yugoslavia's assets and liabilities, the criteria on quota allocation in the I M F set a precedent on how to distribute shares in Yugoslav national debts. When in early 1992 Slovenia and Croatia were recognized as independent and sovereign States, 110 on the basis of the finding of the Arbitration Commission of the Peace Conference on Yugoslavia, the Badinter Commission, that the Yugoslav Federation had "dissolved," 1 1 1 the I M F and the World Bank had to review their policy options very quickly. 1 1 2 110

Compare the references given by Williams (note 13), 780. Conference on Yugoslavia Arbitration Committee Opinions 5, 7, 9 and 10, reprinted in: 31 I L M 1488 et seq. 111

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The World Bank soon tried to ensure payment of Yugoslavia's outstanding loan obligations, which was easier in its case than in the case of the I M F due to the World Bank's mode of financing specified projects. 1 1 3 O f its loans granted to Yugoslavia, which totalled to some 4.8 billion US$, there were outstanding some 2 billion US$; 1 1 4 these liabilities, however, nearly all originated in allocated debts linked to projects localized in one or the other republic. The World Bank accordingly concluded interim agreements w i t h the successor republics whereby it apportioned the outstanding debts according to the physical location of the projects. 1 1 5 After in February 1992 it had persuaded Slovenia to agree to service the loans disbursed for projects in Slovenia, it concluded comparable interim agreements w i t h Croatia and the remaining part of Yugoslavia, complemented by additional agreements w i t h Bosnia-Herzegovina and Macedonia after the two republics' separation. 116 Later a final package of agreements on the restructuring of the debts was concluded w i t h the successor States. 117 For the I M F the task was much more difficult. 1 1 8 Starting from the hypothesis of a 'dissolution' of Yugoslavia, a starting point shared by all its dominant Member States, the I M F then decided in mid-1992 for a position of more or less automatic succession of the individual republics to the former Yugoslavia's membership. 1 1 9 O n 14 December 1992 the I M F announced that it "found that [Yugoslavia] has ceased to exist and has therefore ceased to be a member of the I M F . " 1 2 0 It decided for the option of partial succession, which meant that every republic could succeed individually to Yugoslavia's membership, on the basis of a share in the Yugoslav quota to be fixed by the Fund. Accordingly, the I M F declared that it considered the States of Slovenia, Croatia, Bosnia-Herzegovina, Macedonia and Serbia/Montenegro to be the successors to the assets and liabilities of Yugoslavia in the I M F and that it had allocated those assets and liabilities among the 112

A n extensive discussion of the IMF's and World Bank's available policy options is given by Williams (note 13), 794 - 801. See also the IMF's papers on Secession of Territories and Dissolution of Members in the Fund (14 July 1992) and on Issues of State Succession Concerning Yugoslavia in the Fund (20 November 1992); the observations on the matter from the Slovenian side by Mrak (note 59), 26. 113 See Forget (note 15), 113. 114 See Forget (note 15), 112; Williams (note 13), 779. us The apportionment was as follows: Macedonia, 153.98 million US$ (7.5 %); Croatia, 155.19 million US$ (7.6 %); Slovenia, 160.59 million US$ (7.8 %); Bosnia-Herzegovina, 439.24 million US$ (21.4 %); Serbia/Montenegro, 1141.05 million US$ (55.7 %). Williams (note 13), 779 fn 14. 116 Williams (note 13), 794; Forget (note 15), 112. 117 Forget (note 15), 112. us Accordingly, it took more than a year to come to a decision. See Mrak (note 59), 25 26. ii9 See Williams (note 13), 802 - 803; Mrak (note 59), 26 - 27. uo I M F Press Release 92/92 (15 December 1992). See also Forget (note 15), 110.

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successor States, as well as the quota of the former Yugoslavia, according to the previously determined quota allocation. 1 2 1 The quota some days before had been determined on the basis of each new State's economic size in relation to the other successor States and the former Yugoslavia, and according to the usual criteria used by the Fund in calculating a quota. 1 2 2 To Slovenia thus had been allocated 16.39 per cent of Yugoslavia's quota, to Croatia 28.49 per cent, to Bosnia-Herzegovina 13.20 per cent, to Macedonia 5.40 per cent and to Serbia/Montenegro 36.52 per cent. 1 2 3 Formal succession in membership, however, was made conditional by the I M F upon fulfillment of certain requirements. 124 The successor firstly had to notify the I M F that it agreed to its allocated share in the assets and liabilities. It secondly had to notify the I M F that it agreed " i n accordance w i t h its law, to succeed to the membership in accordance w i t h the terms and conditions specified by the I M F and has taken all the necessary steps to enable it to succeed to such membership and carry out all of its obligations under the Articles of Agreement." Thirdly, the I M F had to decide that the State "is able to meet its obligations under the Articles." And, fourthly, the State had to have no overdue financial obligations to the IMF. The I M F provided that the successor States would have a period of up to six months within which to meet these conditions. Within the specified period, Slovenia, Croatia, Bosnia-Herzegovina and Macedonia have succeeded in membership, while the request for succession to membership by Serbia/Montenegro was denied. 1 2 5 The World Bank soon followed w i t h a similar approach. 126 After the successor republics had been admitted to membership in the Fund, the road to formal membership also in the World Bank was paved (membership in the I M F being a precondition for membership in the World Bank). According to the same concept of partial succession to membership as in the IMF, and based on the shares fixed by the organs of the Fund, the World Bank in 1993 proceeded to include in its list of members the four successor States Slovenia, Croatia, Bosnia-Herzegovina and Macedonia. 1 2 7 Serbia/Montenegro, due to the denial of formal membership in the IMF, was logically barred from succession to World Bank membership. 128

121 IMF, Socialist Federal Republic of Yugoslavia Cessation of Membership, Allocation of Assets and Liabilities in the Fund, and Succession to Membership in the Fund (7 December 1992), 1 - 2. 122

IMF, Quota Calculations for the Successor Republics of Yugoslavia (7 December

1992). ™ See also Williams (note 13), 802. ™ See Williams (note 13), 803; Forget (note 15), 110. «5 Williams (note 13), 803. 126

Concerning the position of the World Bank see Forget (note 15), 111 - 112.

1 27 Forget (note 15), 111; Williams (note 13), 803 - 804.

7*

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The procedure of succession to membership in the I M F had a decisive influence on the ongoing negotiations concerning succession to debts, as can be seen in the status of negotiations between Slovenia and the lender institutions. 1 2 9 Slovenia had continued all the time to pay interest on its allocated debts of some 1.8 billion US$. A n exception was only the 410 million US$ of liabilities from commercial bank credits which had been rescheduled in September 1988 under the N e w Financial Agreement signed between the government of Yugoslavia and the London Club Consortium of Commercial Banks. Slovenia had suspended interest payments under this agreement in June 1992, because all the obligors were interlinked in this arrangement under a joint and several liability clause. After some of the successor States had stopped honoring their obligations, any future interest payment of Slovenia would not have been booked as a full interest payment on Slovenian debt but only as an interest payment of a certain percentage on the full amount of the rescheduled Yugoslav debt. 1 3 0 Slovenia, however, always had made clear that it was ready to negotiate on these debts. I n its Constitutional Law of 1991, by which the country's independence and sovereignty had been declared in June 1991, it had even provided that "the Republic of Slovenia shall take over the corresponding part of the SFRY national debt whose immediate beneficiary is not ascertainable," 131 thus reaffirming its preparedness to succeed to an equitable part of Yugoslav national debts. I n its basic parameters for negotiations laid down in July 1992, the Slovenian government had stated that it was willing to take over a certain share of unallocated debt of the former Yugoslavia (an agreed share or a share determined by arbitration), although it declared that "this share has to be in correspondence w i t h the distribution of the assets of this country." 1 3 2 With the Paris Club of government lenders negotiations came to a resolution in 1993. I n May 1993 both sides agreed on basic guidelines concerning debt arrangements between Slovenia and Paris Club creditor countries. These guidelines specified that the subsequent bilateral agreements between individual Paris Club creditors and Slovenia should be based on a set of principles. These principles included inter alia that such bilateral agreements should cover allocated debt on the one hand and 16.4 per cent of the unallocated national debt on the other hand. 1 3 3 The agreed share of 16.4 per cent of national debt repeats exactly the 128 Williams ( note 13), 804. 129

For the Slovenian position on external debts see Mrak (note 59), 30 - 33. 130 Id., 32.

131 Id. 132 Id., 32 -33. 133 Mrak (note 59), 33; Rene Höltschi, Finanzielle Erblasten Jugoslawiens: Sloweniens und Kroatiens Ringen mit dem Londoner Klub, in: Neue Zürcher Zeitung, 26 April 1995, 10.

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allocation of shares previously fixed by the I M F concerning succession in membership (and quota) of Yugoslavia. Corresponding bilateral agreements on the 313 million US$ debt vis a vis government lenders followed in late 1993 and in 1994. Croatia subsequently managed to get a comparable settlement w i t h the Paris Club countries in 1994. 134 The negotiations w i t h the consortium of commercial banks, which had started informally already in July 1992, proved to be much more difficult. A t the first official meeting of Slovenian representatives w i t h the London Club consortium in September 1992, only an interim arrangement could be found. The parties agreed only on the resumption of Slovenian interest payments concerning the debts rescheduled under the New Financial Agreement, and correspondingly on the acknowledgment of Slovenian payments. 135 The further round of negotiations starting in July 1993 needed a long time to come to a conclusion, since the interests and legal positions of the parties were too divergent to be bridged easily. 1 3 6 Commercial banks still asserted their claim to full payment of Yugoslav debts by Slovenia and Croatia based on a construction of joint and several liabilit y . 1 3 7 I n June 1995, however, the International Coordinating Committee for the Former Yugoslavia (ICC), led by the Chemical Bank, reached an agreement w i t h Slovenia: Slovenia is required to pay 18 % of the former Yugoslavia's federal debt, i.e. 837.9 million US$, which w i l l be transformed into two series of new bonds. 1 3 8 Probably at some later stage a solution w i l l be found also w i t h Croatia, an analogous solution according to the terms set by the Paris Club. That such terms would reflect the basic concepts of an equitable apportionment is obvious after what has been said above.

Conclusion To sum up the results that became clear in the course of the analysis: w i t h respect to cases of contentious secession/dismemberment there seems to be only one viable solution, liability pro rata. This is the approach that was proposed by the International Law Commission in its draft of the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts of 1983, and it is the approach argued by Slovenia and Croatia in the context of the dissolution of the Yugoslav federation. It looks as if this is the only viable solution, because 134 Höltschi (note 133), 10. 135 Mrak( note 59), 33. 136 Mrak (note 59), 33; Höltschi (note 133), 10. 137 Höltschi (note 133), 10. 138 Rene Höltschi, Slowenische Einigung mit den Geschäftsbanken, in: Neue Zürcher Zeitung, 15 June 1995, 10.

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only liability pro rata as a concept promises to bridge the gap between the legitimate expectations of creditors and the legitimate aspirations of successor States. The concept of liability pro rata is the only means of striking a sensible balance between the necessary protection of legitimate interests of creditors and the demands of successor States that basic ideas of natural justice and equity be respected. With the I M F the international community has a functioning organ that can decide on the adequate apportionment of shares in assets and liabilities. Since the I M F usually has to decide much quicker on apportionment, before the resolution of negotiations among successors as well as between the successors and the creditors, the I M F is taking more and more a pivotal role, functions as a spokesman of the international community on what should be perceived as equitable. This is a remarkable demonstration of the insight that international law concepts like equitable apportionment begin to function only when the international community develops an organ that defines what is equitable. With the act of developing a competent organ for deciding the issue, the international community gains a capacity to act on its own. This is a necessary step. Without an equitable apportionment as a compromise, as a means of balance between conflicting legal values, there is no chance to find a solution that w i l l be recognized by all sides as legitimate. A n d without fulfilling the basic requirement that the rule be perceived as legitimate, legitimate because it strikes a balance w i t h respect to the interests of all concerned, there is no chance to base a certain practice, a custom, on opinio juris . Without a rule that is generally perceived as legitimate, to phrase it a bit differently, there is no chance ever to develop customary law. But rules of customary law are urgently needed in the field of State succession. International actors in negotiations on the rescheduling of debts would be well advised to bear these basic facts in mind.

Putting an End to an Endless Constitutional Debate? The Decision of the Federal Constitutional Court on the "Out of Area' Deployment of German Armed Forces By Doris König*

Introduction O n 12 July 1994 the Federal Constitutional Court (Bundesverfassungsgericht) decided the issue of an 'out of area' deployment of German soldiers, i.e. a military engagement of German Armed Forces (Bundeswehr) outside the area covered by N A T O . The Court ruled that an 'out of area' deployment is constitutional as long as the Federal Diet (Bundestag), i.e. the German Parliament, has given its prior consent.1 This issue was highly controversial in political and legal debates in recent years. Due to painful experiences in German history and a subsequent widespread disposition towards pacifism or 'antimilitarism' especially among the young generation and on the left of the political spectrum, 2 this issue raised emotions in political discussions and created a wide gap between supporters of an 'out of area' deployment of German soldiers and their adversaries. The political controversy was at the heart of the constitutional debate. Both sides presented legal arguments in support of their political position. Since a compromise on the political level seemed impossible, the solution finally found was to bring the case before the Federal Constitutional Court. The following Article w i l l examine whether the Court's judgment gives sufficient answers to the legal questions brought before it and can end a seemingly endless constitutional debate. To help the reader understand the political and historical context surrounding the * Status of Manuscript June 1995. 1 Federal Constitutional Court, judgment of 12 July 1994 - 2 BvE 3/92, 5/93, 7/93, 8/93, published in: Entscheidungen des Bundesverfassungsgerichts (BVerfGE), vol. 90, 1994, 286 [hereinafter Judgment of 12 July 1994]. 2 According to a poll published by the Academy of the German Armed Forces on Information and Communication (Akademie der Bundeswehr für Information und Kommunikation) in 1993 47% of young (West) Germans are in favor of a participation of German Armed Forces in U N peace-keeping operations, but only 29 % are ready to take part in such operations, see Frankfurter Allgemeine Zeitung, 14 March 1995, 1; for a survey on the political positions within the major Parties represented in the Federal Diet (Bundestag) see Volker Löwe , Unendliche Geschichte, notwendiger Streit, Vereinte Nationen (VN), 1994, 1, 2 et seq.

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Court's decision a brief survey w i l l be given of the past German State practice in the field of U N peace-keeping operations and of the events that finally led to the political decision to deploy German soldiers in the former Yugoslavia and Somalia.

I. Background and Facts With the accession of the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR) to the United Nations in 1973, the participation of (West) German Armed Forces in U N peace-keeping operations became an issue of national and international concern. The division of Germany as a consequence of the Second World War and the Cold War between East and West as well as the Federal Republic's limited sovereignty prompted the federal government to act on this issue w i t h great caution. 1. German State Practice before 1992 Before 1992 (West) Germany restricted her support of U N peace-keeping operations to indirect contributions, i.e. financial contributions and logistical and humanitarian assistance.3 For example, German military aircraft were used in 1974 to transport African units of the United Nations Emergency Force ( U N E F I I ) 4 to Cairo and in 1978 to transfer the Norwegian contingent as well as the equipment of the Nepalese contingent of the United Nations Interim Force in Lebanon ( U N I F I L ) 5 to their operational bases.6 Members of the German Border Patrol (Bundesgrenzschutz) joined the United Nations Transition Assistance Group ( U N T A G ) 7 in 1989/90 to supervise the preparation and performance of free elections in Namibia. 8 A t no time, however, has the federal government 3 This position is stated in an answer from 17 September 1979 to the Secretary-General of the United Nations concerning Germany's attitude towards peace-keeping operations, U N Doc. A/AC.121/30/Add.l, reproduced in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), 1981, 633, 634.

* Enacted by SC res. 340 of 25 October 1973. s Enacted by SC res. 425 and 426 of 19 March 1978. 6

For further details see Dieter Fleck , UN-Friedenstruppen im Brennpunkt - Überlegungen zu einer Beteiligung der Bundesrepublik Deutschland, V N , 1974, 161; Dieter Fleck, UN-Friedenstruppen: Erfolgszwang und Bewährung, V N , 1979, 99; Jörg M. Mössner; Bundeswehr in blauen Helmen, in: Ingo von Münch (ed.), Staatsrecht - Völkerrecht - Europarecht, Festschrift für Hans-Jürgen Schlochauer zum 75. Geburtstag, 1981, 97; and Christian Tomuschat, Deutscher Beitrag zu den VN-Friedenstruppen, Außenpolitik, 1985, 272, 277. 7 Enacted by SC res. 435 of 29 September 1978. 8 For further details see Oskar Hoffmann, Bundeswehr und UN-Friedenssicherung, 1991, 287 et seq.; Detlef Buwitt, Erfahrungen des Bundesgrenzschutzes aus der U N T A G -

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(.Bundesregierung ), Social Democratic or Christian Democratic, agreed to participate in any active military actions of U N peace-keeping forces. Every government since 1980 based its rejection of a military engagement for purposes other than defense on the German Basic Law (Grundgesetz ). The Foreign Office and the Ministries of Defense, Justice and the Interior were of the opinion that the constitution prohibited any deployment of German Armed Forces outside the N A T O area. 9 Accordingly, the federal government declined a request by the US government in 1987 to assist in a shipping protection scheme in the Persian Gulf. 1 0 Nevertheless, after the end of the Iraq/Iran War in 1988 units from the Federal Navy (Bundesmarine) participated in minesweeping operations off the coasts of the Gulf riparian States.11 This action mainly served the purpose of showing good-will towards Germany's N A T O allies. The government justified this decision by arguing that minesweeping was not a military operation (Einsatz) in the true sense of Article 87a para. 2 of the Basic Law, because the state of war between Iran and Iraq was ended. A t the outbreak of the Gulf War in January 1991 the newly elected government of a reunited and fully sovereign Germany upheld its legal position and declared that no German soldier would be deployed in the Gulf area as long as combat action lasted. Instead, Germany took over a substantial part of the financial burden of the allied military operations, and military aircraft were sent to Turkey, a N A T O ally. 1 2 I n addition, Germany participated in several U N observer missions, i.e. in N i caragua in 1989/90 and in El Salvador in 1991, and provided humanitarian assistance in Cambodia, northern Iraq, Bosnia and Somalia in 1991/92. 13 Friedensmission in Namibia, in: Ernst Koch (ed.), Die Blauhelme - I m Einsatz für den Frieden, 1991,229. 9 This interpretation of the Basic Law drew support from legal opinions that had been formulated in the mid-seventies, i.e. by Bernd Nolle , Die Verwendung des deutschen Soldaten im Ausland, 1973, 61 et seq.; Eckart Klein , Rechtsprobleme einer deutschen Beteiligung an der Aufstellung von Streitkräften der Vereinten Nationen, ZaöRV, 1974, 429, 439 et seq., 443. These authors took the view that Article 87a para. 2 of the Basic Law allowed the deployment of German Armed Forces only in case of an armed attack on Germany itself or one of her N A T O allies, for further details see note 36 and accompanying text. 10

The Government announced on 8 October 1987 that it would deploy warships in the Mediterranian to replace US Navy vessels engaged in the Persian Gulf, published in: Europa Archiv (EA), 1987, Z 199; for further details see Thomas Giegerich, The German Contribution to the Protection of Shipping in the Persian Gulf: Staying out for Political or Constitutional Reasons?, ZaöRV, 1989, 1,15 et seq. 11

Cited in: Wolff Heintschel von Heinegg/ Ulrich R. Haltern , The Decision of the German Federal Constitutional Court of 12 July 1994 in Re Deployment of the German Armed Forces 'Out of Area', Netherlands International Law Review (NILR), 1994, 285,286. 12

See the governmental declaration by Chancellor Kohl before the Federal Diet on 30 January 1991, EA, 1991, D 126 - 127. 13 For further details see Rudolf Schmidt/Susanne Wasum-Rainer , Nicht nur Geld und gute Worte, Der deutsche Beitrag zu den friedenserhaltenden Maßnahmen der Vereinten

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2. Deployment of German Soldiers in the Former Yugoslavia and Somalia in 1992 Aware of international criticism of the German position during the Gulf War and various opinions that Germany should bear more responsibility for the maintenance of peace and security in the world, especially after having regained her full sovereignty, the federal government's position changed in 1992. Responding to the crisis in the former Yugoslavia and Somalia the federal government reconsidered its legal opinion and its political stand. O n 15 July 1992 it decided to participate in N A T O and W E U actions in order to enforce Security Council resolutions 713 and 757 1 4 implementing an arms and trade embargo against the former Yugoslavia. Five days earlier, N A T O and the W E U had agreed on a coordinated maritime operation to monitor compliance w i t h these resolutions. 15 Accordingly, Germany sent three naval reconnaissance aircraft and a destroyer to the Adriatic. 1 6 After the Security Council had authorized all States to enforce the embargo by the use of force 1 7 the federal government declared, however, that the German naval units were prohibited from stopping and searching foreign vessels by force. 18 This restriction was based on the government's view that German participation in enforcing the embargo could not be qualified as a military operation in the sense of Article 87a para. 2 Basic Law, as long as there was no use of force. Shortly afterwards, the government went one step further. I n 1992/93 the Security Council implemented a prohibition of overflight in the airspace of BosniaHerzegovina. 19 I n April 1993 the N A T O Council decided to offer its assistance Nationen, V N , 1992, 88; Deutsche Gesellschaft für die Vereinten Nationen ( D G V N ) , Beteiligung deutscher Streitkräfte an Friedenstruppen der Vereinten Nationen - Hintergründe, Optionen, Probleme (Text 38 der Reihe 'Zur Diskussion gestellt' der D G V N ) , 1991. 14 By SC res. 713 of 25 September 1991 the Security Council acting under Chapter V I I of the U N Charter implemented an embargo on all deliveries of weapons and military equipment to Yugoslavia; by SC res. 757 of 30 May 1992 the Security Council established a trade embargo against the Federal Republic of Yugoslavia (Serbia and Montenegro) on all exports and imports w i t h the exception of medical supplies and foodstuffs. is Judgment of 12 July 1994 (note 1), section A.II.l.b, 306. 16

Id ., section A.II.l.c, 307 et seq. SC res. 787 of 16 November 1992, by which the Security Council '[ajcting under Chapters V I I and V I I I of the Charter, calls upon States, acting nationally or through regional agencies or arrangements, to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions of resolutions 713 (1991) and 757 (1992)." is Judgment of 12 July 1994 (note 1), section A.II.l.e, 309. 17

19 I n SC res. 781 of 9 October 1992 the Security Council established a ban on military flights in the airspace of Bosnia and Herzegovina and requested the 'Force', i.e. the AWACS aircraft operated by N A T O , to monitor compliance w i t h the ban; by SC res. 816 of 31 March 1993 the Security Council extended the ban to cover flights by all fixed-wing and rotary-wing aircraft and authorized Member States to take, under the authority of the

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in enforcing the ban. 2 0 This decision led to a difference of opinion within the German government, because it meant that for the first time after the end of the Second World War German soldiers were to participate in combat operations. The cabinet members belonging to the Christian Democratic Party ( C D U ) decided, against the votes of the ministers associated w i t h the Free Democratic Party (FDP), that German fire control officers could continue their service on board N A T O - A W A C S (Airborne Warning and Control System) aircraft which were authorized to carry out enforcement actions by using force if need be 2 1 The next controversial decision was the deployment of German soldiers in Somalia. I n view of continuing political unrest and famine in Somalia the Security Council authorized, under Chapter V I I of the U N Charter, Member States to deploy armed forces there in order to establish a secure environment for humanitarian relief operations. 22 Germany was requested by the Secretary-General to participate in U N O S O M I I (United Nations Operation in Somalia). 23 Accordingly, the federal government decided on 21 A p r i l 1993 to send a battalion for transports and supplies to Belet Huen in order to give logistical support to an Indian peace-keeping unit. This battalion was expressly prohibited from using force itself - w i t h the exception of self-defense - or participating in the military actions of others. 24 Again this restriction was made because the government, for constitutional reasons, wanted to qualify this operation as a nonmilitary action.

3. Preliminary

Proceedings Before the Federal Constitutional

Court

The opposition Social Democratic Party (SPD) and the Free Democratic Party (FDP), the junior partner in the government, were of the opinion that an 'out of area' deployment of German Armed Forces was in violation of the constitution. Accordingly, their representatives filed four applications contending that the above-mentioned decisions of the federal government to send soldiers to the Security Council and subject to close coordination w i t h the Secretary-General and the Force, all necessary measures to ensure compliance with the ban. 20 Judgment of 12 July 1994 (note 1), section A.II.2., 309 et seq. 21 Id ., 310; for details see Federal Constitutional Court, judgment of 8 April 1993 - 2 BvE 5/93, 2 BvQ 11/93, BVerfGE, vol. 88,1993,173 [hereinafter Judgment of 8 April 1993]. 22 See SC res. 794 of 3 December 1992; this resolution followed SC res. 751 of 24 April 1992 by which the Security Council established U N O S O M I (United Nations Operation in Somalia) in order to facilitate the process of reconciliation and political settlement in Somalia and to provide urgent humanitarian assistance. Military operations started on 9 December 1992 and were carried out by U N I T A F (Unified Task Force) under US leadership. 23

By SC res. 814 of 26 March 1993 the Security Council decided on the transfer of military operations from U N I T A F to U N O S O M I I whose size and mandate was expanded. 24 Judgment of 12 July 1994 (note 1), section A.II.3.a, 311; also published in: Bulletin des Presse- und Informationsamtes der Bundesregierung (Bulletin) 32 of 23 April 1993, 280.

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Adriatic, Bosnia-Herzegovina and Somalia without the prior consent of the Federal Diet violated the rights of Parliament and its members. 25 I n addition, SPD and FDP members filed a motion for an injunction in order to prevent the participation of German fire control officers in AWACS units enforcing the overflight ban in Bosnia-Herzegovina. The Social Democrats also started preliminary proceedings against the deployment of a German battalion in Somalia. The Federal Constitutional Court dismissed the first motion on the grounds that the alleged disadvantages of a decision to grant the motion were far more serious than the disadvantages in case of its rejection. 26 It pointed out that there was no imminent danger to the lives of the soldiers concerned. As to the second motion, the Court granted an injunction and ruled that the participation of German Armed Forces could only be continued if and as long as the Federal Diet gave its consent. 27 The Court emphasized that in the case of Somalia, in contrast to the AWACS case, the soldiers' lives and health were at stake. This decision hinted at the outcome of the main proceedings, suggesting that decisions on 'out of area' deployments of German troops do not fall under the government's prerogative in foreign affairs (auswärtige Gewalt).

II. The Constitutional Controversy and the Issues before the Court 1. The ' Out of Area ' Deployment of German Armed Forces The legal debate on the constitutionality of an 'out of area' deployment of German Armed Forces centered on two questions. First, it was debated whether such deployment was permitted at all under the Basic Law. Second, even if an 'out of area' deployment was to be considered constitutional, it was disputed who could make the respective decisions, i.e. the government alone or both the government and Parliament. This section w i l l examine the main arguments in the legal discussion on both issues.

25

The Free Democrats' application was restricted to the AWACS decision. Judgment of 8 April 1993 (note 21), 179 et seq. According to section 32 of the Court's Rules of Procedure an injunction may be granted if it is indispensable to avert serious disadvantages, to prevent an imminent threat of force or for some other important reason of public interest. 2 7 Federal Constitutional Court, judgment of 23 June 1993, 2 BvQ 17/93, BVerfGE, vol. 89, 1994, 38; for a review of this decision see Norbert K. Riedel, Die Entscheidung über eine Beteiligung der Bundeswehr an militärischen Operationen der U N O , Die öffentliche Verwaltung (DOV), 1993, 994. 26

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a) C o n s t i t u t i o n a l Basis f o r the ' O u t o f A r e a ' D e p l o y m e n t o f G e r m a n A r m e d Forces T h e legal debate o n the c o n s t i t u t i o n a l i t y o f m i l i t a r y action outside the N A T O area concentrated o n t w o provisions o f the Basic L a w , n a m e l y A r t i c l e 87a para. 2 and A r t i c l e 24 para. 2, and t h e i r relationship w i t h each o t h e r . 2 8 I n contrast t o the official government p o s i t i o n before 1992 the m a j o r i t y o f Germany's constitut i o n a l scholars were o f the o p i n i o n that the c o n s t i t u t i o n p e r m i t t e d the ' o u t o f area' use o f G e r m a n s o l d i e r s . 2 9

aa) T h e I n t e r p r e t a t i o n o f A r t i c l e 87a paragraph 2 Basic L a w T h e starting p o i n t o f all deliberations o f c o n s t i t u t i o n a l scholars is the w o r d i n g o f A r t i c l e 87a para. 2, i.e. the d e p l o y m e n t o f A r m e d Forces f o r defense purposes. T h e Basic L a w does n o t elaborate o n the meaning o f the t e r m 'defense'. Scholars offered three different interpretations o f the 'defense' concept, a n a r r o w one, a b r o a d one, and one standing i n the m i d d l e between the t w o others. O n the one hand, some authors were o f the o p i n i o n that the t e r m 'defense' had the same meaning as the t e r m 'state o f defense' i n A r t i c l e 115a para. I . 3 0 A c c o r d i n g l y , the

28

Those two Articles read as follows: Article 24 (International Organizations) (1) The Federation may by legislation transfer sovereign powers to international organizations. (la)... (2) With a view to maintaining peace the Federation may become a party to a system of collective security; in doing so it shall consent to such limitations upon its sovereign powers as w i l l bring about and secure a peaceful and lasting order in Europe and among the nations of the world. Article 87a (Establishment and Purpose of the Armed Forces) (1) The Federation shall establish Armed Forces for defense purposes. Their numerical strength and general organizational structure shall be shown in the budget. (2) Other than for defense purposes the Armed Forces may only be deployed to the extent explicitly permitted by this Basic Law. 29 The scholars offered different rationales for why the 'out of area' use of the Armed Forces was allowed; for details see the statements of the participants of a colloquium on 'Legal Aspects of a Participation of the Federal Republic of Germany in U N Peace-keeping Forces' (translation by the author), in: Jochen Abr. Frow ein/Torsten Stein , Rechtliche Aspekte einer Beteiligung der Bundesrepublik Deutschland an Friedenstruppen der Vereinten Nationen, Materialien des Kolloquiums vom 17./18. August 1989, 1990, 31 et seq.; for a concise survey on the constitutional discussion in Germany see Daniel-Erasmus Khan/Markus Zöckler ; Germans to the Front? or Le malade imaginaire, European Journal of International Law (EJIL), 1992, 163, 166 et seq.; Christian Tomuschat , Les operations des troupes allemandes ä Pexterieur du territoire allemand, Annuaire fran^ais de droit international (AFDI), 1993, 451, 454 et seq.; Heintschel von Heinegg/Haltern (note 11), 290 et seq.

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A r m e d Forces c o u l d o n l y be d e p l o y e d i n the case o f an actual o r i m m i n e n t attack o n G e r m a n t e r r i t o r y . 3 1 T h i s restrictive i n t e r p r e t a t i o n (the t e r r i t o r i a l defense c o n ception) does n o t take i n t o account Germany's p o l i t i c a l and legal obligations t o wards its N A T O and W E U allies. E v e n t h o u g h N A T O members are, i n the case o f an armed attack against one o f them, according t o A r t i c l e 5 n o t obliged t o necessarily use armed f o r c e , 3 2 this treaty o b l i g a t i o n has t o be interpreted i n g o o d faith and i n v i e w o f the u n d e r l y i n g security interests o f all Parties. Since each P a r t y relies o n the fast and efficient assistance o f the other Parties, the abovem e n t i o n e d restrictive i n t e r p r e t a t i o n o f A r t i c l e 87a para. 2 o f the Basic L a w w o u l d be i n c o n t r a d i c t i o n t o the aims and interests o f the N A T O treaty. T h i s is equally true f o r A r t i c l e 5 o f the W E U treaty w h i c h even obliges its members t o " a f f o r d the Party . . . attacked all the m i l i t a r y and other aid and assistance i n their p o w e r . " 3 3 O n the other hand, the proponents of an expansive i n t e r p r e t a t i o n (the international l a w defense conception) contended that the t e r m 'defense' encompassed all forms o f m i l i t a r y action a l l o w e d b y international law, i.e. measures o f i n d i v i d u a l and collective self-defense i n accordance w i t h A r t i c l e 51 o f the U N Charter, peace-keeping operations, the use o f force under C h a p t e r V I I and all m i l i t a r y actions a u t h o r i z e d b y the Security C o u n c i l . 3 4 Such a broad understand30

Article 115a para. 1 reads as follows: Should federal territory be under armed attack or should such an attack be imminent the Federal Diet shall declare a state of defense w i t h the consent of the Federal Council. Such declaration shall be made at the request of the Federal Government and shall require a twothirds majority of the votes cast and at least the majority of the Members of the Federal Diet. 31 See, e.g., Alexander Coridaß, Der Auslandseinsatz von Bundeswehr und Nationaler Volksarmee, 1985, 44; Günter Dürig, Commentary on Article 87 Grundgesetz (GG), Nos. 22, 24, in: Theodor Maunz/Günter Dürig/Roman Herzog, Kommentar zum Grundgesetz, loose-leaf, 1994. 32 Article 5 of the N o r t h Atlantic Treaty reads as follows: The Parties agree that an armed attack against one or more of them in Europe and N o r t h America shall be considered an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them . . . w i l l assist the Party or Parties so attacked by taking forthwith, individually or in concert w i t h the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the N o r t h Atlantic area 33

Published in: 19 U N T S 51, and 211 U N T S 342; Bundesgesetzblatt (BGBl.) 1955 I I ,

283. 34

See, e. g.y Knut Ipsen, Der Einsatz der Bundeswehr zur Verteidigung, im Spannungsund Verteidigungsfall sowie im internen bewaffneten Konflikt, in: Klaus-Dieter Schwarz (ed.), Sicherheitspolitik, 3rd ed., 1978, 615, 625; Mössner (note 6), 105; Christoph von Bülow, Der Einsatz der Streitkräfte zur Verteidigung, 1984, 62 et seq.; Joachim Wieland, Verfassungsrechtliche Grundlagen und Grenzen für einen Einsatz der Bundeswehr, Deutsches Verwaltungsblatt (DVBl.), 1991, 1174, 1179; Hans Boldt, Einsatz der Bundeswehr im Ausland?, Zeitschrift für Rechtspolitik (ZRP), 1992, 218, 220; Rudolf Geiger, Grundgesetz und Völkerrecht, 2nd ed., 1994, § 67 I I I , 385; Dieter Blumenwitz, Der Einsatz deutscher Streitkräfte nach der Entscheidung des BVerfG vom 12. Juli 1994, Bayrische Verwaltungsblätter

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ing of the term 'defense' is disputable, since it is not covered by the normal meaning of the word and thus exceeds the limits of legal interpretation. 35 The majority of constitutional scholars took a mid position between these two opinions, i.e. that the term 'defense' included military action of German Armed Forces in the case of an armed attack not only against Germany itself but also against one of its N A T O or W E U allies. 36 The second point of controversy was the interpretation of the term 'use' or 'deployment' (Einsatz) of German Armed Forces. Some authors restricted this term to military engagements where the use or threat of armed force was envisaged. 37 Accordingly, merely logistical and humanitarian support for U N operations did not come within the scope of Article 87a para. 2. 3 8 Others tried to evade the application of Article 87a by arguing that the participation in U N operations under U N control was not the 'use' of German Armed Forces, because the German units became part of an international force. 39 Other authors rejected this argument by pointing out that German troops under U N control still retain their character as national contingents falling under German disciplinary and internal staff regulations. 40 The majority of authors, therefore, rejected the above-mentioned attempts to escape the application of Article 87a para. 2. They preferred a solution to the problem based on Article 24 para. 2.

(BayVBl.), 1994, 641, 678; Paul Kirchhof \ Der Verteidigungsauftrag der deutschen Streitkräfte, in: Ulrich Beyerlin/Michael Bothe/Rainer Hofmann/Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt, 1995, 797, 803 et seq. 35 See also Albrecht Randelzhofer; Commentary on Article 24 para. 2 GG, No. 53, in: Maunz et al. (note 31). 36

See, e. g.y Tomuschat (note 6), 272, 278; Christian Tomuschat, Commentary on Article 24 GG, no. 172, in: Kommentar zum Bonner Grundgesetz (Bonner Kommentar), loose-leaf, 1994; Karl-Andreas Hernekamp , Commentary on Article 87a GG, No. 5, in: Ingo von Münch (ed.), Grundgesetz-Kommentar, vol. 3, 2nd ed., 1983; Randelzhofer (note 35), N o . 47; Hansgeorg Kind y Einsatz der Streitkräfte zur Verteidigung - Ein Beitrag zur entstehungsgeschichtlichen Interpretation des Art. 87a GG, DÖV, 1993,139,145. 3 7 Seey e.g., Fleck (note 6), V N 1974,161 and Fleck (note 6), V N 1979, 99; Giegerich (note 10), 25; Hernekamp y (note 36), No. 12; Klein (note 9), 435. 38 This argument was taken up by the government w i t h respect to the engagements of German units in the Adriatic and in Somalia, see Judgment of 12 July 1994 (note 1), section A.IV.2.a, 327 et seq. 39 See, e.g., Michael Bothe, Peace-Keeping, in: Bruno Simma et al. (eds.), The Charter of the United Nations, A Commentary, 1994, Supplement to Article 38, 565, 596, No. 90 et seq.; Michael Bothe, comment during the discussion, in: Frowein/Stein (note 29), 49.

See Khan/Zöckler further references.

(note 29), 172; Heintschel von Heinegg/Haltern

(note 11), 293 w i t h

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bb) The Interpretation of Article 24 paragraph 2 Basic Law Since, according to the majority of the constitutional scholars, the participation in U N operations did not fall under the term 'defense', they had to find another constitutional basis for the participation of German soldiers in U N peace-keeping operations. The relevant provision was Article 24 para. 2 which authorizes the Federation to enter "a system of collective security". A minority of authors, on the one hand, were of the opinion that Article 24 para. 2 did not contain a military option, i.e. that this provision merely permitted membership in a system of collective security but not any use of armed force. 41 The majority of authors, on the other hand, argued that the authorization to join a system of collective security necessarily included the option to actively support military action within its framework. 42 I n international law the term 'collective security' describes a system in which "a potential aggressor from within the system must either be deterred from aggression against another Member State or be overcome in case of actual aggression." 43 It is generally agreed that the United Nations Organization is such a system of collective security. Accordingly, most scholars were of the opinion that German participation in measures under Chapter V I I and in peacekeeping operations were covered by the respective authorization in Article 24 ^ 44

para. 2. Apart from U N operations, it was disputed whether systems of collective selfdefense such as N A T O and W E U were covered by Article 24 para. 2. Whereas some authors wanted to exclude such alliances for the sake of a clear definition of the term 'collective security' in accordance w i t h its meaning in international law, 4 5 others pointed out that N A T O and W E U had to be included in order to 41 See, e. g.y Dieter Deiseroth , Die Beteiligung Deutschlands am kollektiven Sicherheitssystem der Vereinten Nationen aus verfassungsrechtlicher Sicht, Neue Justiz, 1993, 145, 149 et seq. 42 See, e.g., Gilbert Gornig, Die Verfassungsmäßigkeit der Entsendung von Bundeswehrsoldaten zu 'Blauhelm'-Einsätzen, Juristenzeitung (JZ), 1993, 123, 126; Tomuschat (note 6), 281; Ipsen (note 34), 625; Wieland (note 34), 1180; Norbert Riedel, Der Einsatz deutscher Streitkräfte im Ausland - verfassungs- und völkerrechtliche Schranken, 1989, 194. 43 See Jost Delbrück, Collective Security, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), installment 3,104,106 w i t h further references. 44 See, for instance, Jochen Ahr. Frowein , Der völkerrechtliche Status von VN-Friedenstruppen und seine Bedeutung für das deutsche Recht, in: Frowein/Stein (note 29), 1, 10 et seq.; Tomuschat (note 36), Nos. 173 and 188; Randelzhofer (note 35), Nos. 51 et seq. w i t h further references; Riedel (note 42), 212 et seq., 217, was of the opposite opinion that peacekeeping operations were not an integral part of the U N system of collective security and thus not covered by Article 24 para. 2. 45 See Rüdiger Wolf rum, Die Bundesrepublik Deutschland im Verteidigungsbündnis, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts (HStR), vol. V I I , 1992, § 176, 647, 655 et seq., N o . 17; Ondolf Rojahn, Commentary on Article 24 GG, N o . 50, in: Ingo von Münch (ed.), Grundgesetz-Kommentar, vol. 2, 2nd ed., 1983 (This position has been

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fulfill the underlying objective of this provision, namely to guarantee Germany's security. 46 I n its decision on the deployment of Cruise missiles and Pershings in Germany the Federal Constitutional Court had left the question whether N A T O could be considered a 'system of collective security' in the sense of Article 24 para. 2 unanswered. 47

cc) The Interrelationship between Article 87a paragraph 2 and Article 24 paragraph 2 Basic Law The interrelationship between Article 87a para. 2 and Article 24 para. 2 also has been highly controversial. This problem primarily resulted from the drafting history of Article 87a which was added to the constitution in connection w i t h the so-called state of emergency amendment (Notstandsverfassung) in 1968. 48 Mainly concerned w i t h the use of Armed Forces within the country in a state of emergency, the drafters obviously did not consider the implications this amendment would have on the deployment of German soldiers abroad. 49 Three different legal positions could roughly be discerned. First, a number of authors argued that Article 87a contained a comprehensive and final regulation of all uses of the German Armed Forces. They adhered to a restrictive notion of 'defense' and the phrase "explicitly permitted by this Basic Law." I n their opinion a German participation in U N operations was neither for 'defense' purposes nor was it "explicitly permitted" by Article 24 para. 2. Therefore, they came to the conclusion that such activities were unconstitutional. 50 Second, an increasing number of abandoned in the 3rd ed. of 1995, No. 88.); Torsten Stein , Landesverteidigung und Streitkräfte im 40. Jahr des Grundgesetzes, in: Kay Hailbronnerf Georg Ress/Torsten Stein (eds.), Staat und Völkerrechtsordnung, Festschrift für Karl Doehring, 1989, 935, 939; Riedel (note 42), 118 et seq.; Geiger (note 34), 387; Hans-Georg Franzke, Art. 24 I I G G als Rechtsgrundlage für den Außeneinsatz der Bundeswehr?, Neue Juristische Wochenschrift (NJW), 1992, 3075, 3077. 46

See Tomuschat (note 36), Nos. 136 and 137; Randelzhofer (note 35), Nos. 17 et seq.y 21; Ferdinand Kirchhof Bundeswehr, in: HStR, vol. I I I , 1988, § 78, 977, 989, N o . 21; Wilhelm G. Grewe y Auswärtige Gewalt, id., § 77, 921, 957 et seq., Nos. 77, 78; von Bülow (note 34), 77; Peter Badura y Staatsrecht, 1986, 255, No. 116, and 563, No. 4. 47 Federal Constitutional Court, judgment of 18 December 1984, BVerfGE, vol. 68, 1985, 1, 95 et seq. [hereinafter Judgment of 18 December 1984]. 48 17th Constitutional Amendment of 24 June 1968, BGBl. 1968 I, 709. 49

See also Heintschel von Heinegg/ Haltern (note 11), 297; Khan/Zöckler (note 29), 175 and fn 91, who point out that the entire question of participation in N A T O or in future U N peace-keeping or military activities was not even mentioned in the debate about the amendment. 50 Seey e.g., Biner Kurt Wenkholm Bahr, Verfassungsmäßigkeit des Einsatzes der Bundeswehr im Rahmen der Vereinten Nationen, 1994, 211 et seq.; Axel Hopf auf, Zur Entstehung des Art. 87a I I GG, ZRP, 1994, 321, 323 et seq. This is the position taken by the applicants, see Judgment of 12 July 1994 (note 1), section A.III.2.a, 315 et seq.

8 G Y I L 38

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authors in view of the drafting history saw the scope of Article 87a restricted to the internal use of the Armed Forces. They contended that this provision had absolutely no implication for the external use of the Armed Forces. Accordingly, they concluded that an 'out of area' deployment was not regulated in the Basic Law and, therefore, fell under the Government's prerogative in foreign affairs. It would be limited only by Article 26 which prohibits military aggression. 51 Third, some authors agreed w i t h the argument that Article 87a applied to all uses of the Armed Forces, internal and external. Accordingly, they saw that military action for other than 'defense' purposes, i.e. German participation in U N peace-keeping operations, had to be "explicitly permitted" by the Basic Law. I n their view Article 24 para. 2 had to be considered as such an "explicit" exception to the rule, although it does not explicitly provide for the use of the Armed Forces. They argued that the conflict between Article 87a para. 2, which would otherwise completely exclude any German military participation in U N peace-keeping operations, and Article 24 para. 2 had to be harmonized by this rather broad interpretation of the words "explicitly permitted" in order to allow a military engagement in a system of collective security. 52 As a result, in contrast to the second position which restricted the scope of Article 87a para. 2 to the internal use of the Armed Forces, the third opinion led to the conclusion that not all external uses of the German Armed Forces were permitted, but only those covered by Article 24 para. 2.

b) Competence to Decide upon an ' O u t of Area' Use of German Armed Forces The constitution does not explicitly regulate which organ is competent to decide on an 'out of area' use of German troops. Some scholars took the view that such a decision fell under the government's prerogative in foreign affairs and 51 See Stein (note 45), 941; Torsten Stein , Die verfassungsrechtliche Zulässigkeit einer Beteiligung der Bundesrepublik Deutschland an Friedenstruppen der Vereinten Nationen, in: Frowein/Stein (note 29), 17, 22 et seq.; during the discussion this argument was supported by Doehringy id., 42; Herdegen, id., 50, 67; Krüger-Sprengel, id., 53 et seq.; Rudolf \ id., 55 et seq.; and St einberger, id., 57; Randelzhofer (note 35), Nos. 63 et seq.; Matthias Pechstein, Der Golfkrieg - Völkerrechtliche und grundgesetzliche Aspekte, Jura 1991, 461, 466; Rupert Scholz, Deutsche UNO-Soldaten im Spannungsfeld von Politik und Grundgesetz, in: Koch (note 8), 205, 207 et seq.; Roland Thalmair, Die Bundeswehr im Ausland - eine offene Verfassungsrechtsfrage ?, ZRP, 1993, 201, 204; Roland Thalmair y Verfassungsmäßigkeit des Einsatzes der Bundeswehr im Rahmen der Vereinten Nationen, 1994, 71 et seq., 118 w i t h further references. 52 See, e.q., Tomuschat (note 6), 280 et seq.; Tomuschat, (note 36), No. 174; Hernekamp (note 36), No. 13; Frowein (note 44), 12 et seq.; this view was shared during the discussion by Wolfrum, Frowein/Stein, (note 29), 45; Doehringy id. 60, and Klein , id. 63; Holger Fibich , Auslandseinsätze der Bundeswehr, ZRP, 1993, 5, 7 et seq.

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could, therefore, be made b y the M i n i s t e r for the Defense o r because of the i m portance o f the matter b y the cabinet as a w h o l e . 5 3 O t h e r s were o f the o p i n i o n that i n v i e w o f the serious i m p l i c a t i o n s o f an ' o u t o f area' d e p l o y m e n t o n G e r m a ny's foreign p o l i c y relations and the danger f o r the lives and health o f the soldiers concerned the decision had t o be made b y P a r l i a m e n t . 5 4 A s far as p a r t i c i p a t i o n i n operations under U N o r N A T O c o m m a n d is concerned, i t was also argued that such an act was a transfer o f sovereign rights according t o A r t i c l e 24 para. I 5 5 and, therefore, required that Parliament f o l l o w the f o r m a l l a w - m a k i n g procedures.56

2. The Expansion

of NATO

and WEU Tasks

I n a d d i t i o n , i t was disputed w h e t h e r the various declarations o f N A T O and W E U b y w h i c h these organizations emphasize their readiness t o participate i n future peace-keeping and peace-enforcing o p e r a t i o n s 5 7 are o f a solely p o l i t i c a l nature o r w h e t h e r they are a legal m o d i f i c a t i o n o f the o r i g i n a l treaties. T h e applicants argued that these declarations and the subsequent N A T O and W E U opera-

53

For further details see Riedel (note 42), 250 et seq. w i t h further references; Norbert Riedel, Die Entscheidung über den Einsatz der Streitkräfte als Ausübung der auswärtigen Gewalt, Neue Zeitschrift für Wehrrecht (NZWehrR), 1989, 45, 48 et seq.; Dieter Blumenwitz, Der nach außen wirkende Einsatz deutscher Streitkräfte nach Staats- und Völkerrecht, NZWehrR, 1988, 133, 145; Gornig (note 42), 127; Angela Härchens, Der Einsatz der Bundeswehr im Rahmen der Vereinten Nationen, 1994,26 et seq. 54 Seey e.g., Tomuschat (note 36), No. 155; Ipsen (note 34), 626; Mössner (note 6), 112 et seq.; Rainer Fuchs, Die Entscheidung über Krieg und Frieden, Friedensordnung und Kriegsrecht nach dem Bonner Grundgesetz, 1981, 243 et seq., 297; Stefan Brunner, Die internationale Verwendung der Bundeswehr, ZRP, 1991,133, 136. 55 For the text of Article 24 para. 1 see note 28.

56 This argument was also brought before the Court by the applicants, see Judgment of 12 July 1994 (note 1), section A.III.2.e, 323 et seq. 57 For relevant declarations made by N A T O see London Declaration of the Heads of State and Governments of 6 July 1990, published in: Bulletin 90 of 10 July 1990, 777; Copenhagen Declaration of N A T O Ministers of Foreign Affairs of 6/7 June 1991, published in: Bulletin 66 of 11 June 1991, 527; Rome Declaration of the Heads of State and Governments of 7/8 November 1991, published in: Bulletin 128 of 13 November 1991, 1033; Athens Declaration of N A T O Ministers of Foreign Affairs of 10 June 1993, published in: Bulletin 55 of 19 June 1993, 577; Brussels Declaration of the Heads of State and Governments of 11 January 1994, published in: Bulletin 3 of 17 January 1994, 20. For W E U see Petersberg Declaration of the Ministers of Foreign Affairs and Defense of 19 June 1992, published in: Bulletin 68 of 23 June 1992, 649; Kirchberg Declaration of W E U Council of Ministers of 9 May 1994, published in: Bulletin 46 of 20 May 1994, 405. For an overview of the new strategic concepts of N A T O and W E U see, e.g., Wichard Woyke , Die N A T O vor neuen Herausforderungen, Außenpolitik, 1993, 120; Uwe Neriich, Neue Sicherheitsfunktionen der N A T O , EA, 1993, 663; Jürgen Schwarz, Zur Rolle von W E U und KSZE in den europäischen Strukturierungsprozessen, Zeitschrift für Politik (ZfP), 1994,1.

8*

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tions in the former Yugoslavia considerably changed the underlying treaties and that, therefore, the government needed Parliament's consent according to Article 59 para. 2 of the Basic Law before taking any action in fulfilment of the new tasks. 58

3. Summary of the Arguments before the Court I n short, the applicants contended that the participation of German troops in the U N peace-keeping operations in the Adriatic, Bosnia-Herzegovina and Somalia were a 'use' (Einsatz) of the Armed Forces in the sense of Article 87a para. 2. Since their deployment did not serve any "defense purposes" (Verteidigung ), it would be constitutional only if it could be based on 'explicit' permission in the Basic Law. Article 24 para. 2 could not be considered as 'explicit' permission, because this provision never contained a military option. Hence, the 'out of area' deployment had no basis in the constitution. Accordingly, the constitution had to be amended by a two-thirds majority in Parliament in order to allow the 'out of area' use of German troops. The second line of the applicants' argument was based on Article 59 para. 2. They contended that the various declarations on the new tasks of N A T O and W E U had to be regarded as amendments of the N A T O and W E U treaties and as such needed Parliament's consent. The government replied that its decisions to send troops to the Adriatic and to Somalia could not be considered a 'use' (Einsatz) of the Armed Forces in the sense of Article 87a para. 2, because the use of military force was prohibited. I n contrast, the AWACS case had to be regarded as a 'use' under Article 87a para. 2. This 'use', however, could be based on the authorization in Article 24 para. 2, namely to enter a system of collective security. Since Parliament had approved Germany's accession to the United Nations, N A T O and the W E U , no further parliamentary consent would be needed when German troops participate in military operations within the framework of these organizations. As to the new tasks of N A T O and W E U , the government took the view that the declarations mentioned above were of a merely political nature and that, therefore, Article 59 para. 2 was not applicable to them.

58 Judgment of 12 July 1994 (note 1), section A.III.2.d, 320 et seq.; Article 59 para. 2 reads as follows: Treaties that regulate the political relations of the Federation or relate to matters of federal legislation shall require the approval or participation of the appropriate legislative body in the form of a federal law....

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I I I . The Court's Decision The Court's decision is a compromise between the conflicting positions mentioned above. O n the one hand, the Court ruled that all three 'out of area' deployments of German Armed Forces were covered by the authorization in Article 24 para. 2. O n the other hand, it stated that any decision on the use of the Armed Forces needs the prior consent of the Federal Diet. Since the government had made its decisions without the prior consent of Parliament, the applicants were at least partly successful.

1. Constitutionality of the Participation of German Armed Forces in UN Operations a) Sedes materiae: Article 24 paragraph 2 Basic Law The Court considered Article 24 para. 2 to be the only relevant constitutional basis for the 'out of area' deployments under U N control. I n contrast to the arguments brought before it by the parties it did not choose Article 87a as a starting point for its reasoning. I n its view the latter provision was not intended to restrict the application of Article 24 para. 2 . 5 9 Taking into account the objectives of Article 24 para. 2 the Court interpreted the permission to "become a party to a system of collective security" broadly. Hence, it concluded that this authorization covers all tasks and missions typically connected w i t h the membership in such a system including the use of armed force against an aggressor as ultima ratio. 60 This expansive interpretation is, according to the Court, supported by the drafting history of Article 24 para. 2. Even though the establishment of German Armed Forces seemed remote in 1948, the members of the Constitutional Committee (Verfassungskonvent ) of Herrenchiemsee and of the Parliamentary Council (Parlamentarischer Rat) were aware of the military nature of the obligations deriving from systems of collective security. 61 Thus the Court confirmed the government's contention that Article 24 para. 2 contains a military option permitting the use of armed force within the framework of such systems.

59

For further details see section I l l . l . b . 60 Judgment of 12 July 1994 (note 1), section C.I.I., 345 et seq. 61 Id., w i t h further references.

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b) The Interrelationship between Article 24 paragraph 2 and Article 87a paragraph 2 According to the Court, Article 87a para. 2 does not in any way restrict the authorization in Article 24 para. 2. This result is based on the drafting history of both provisions. 62 The Court pointed out that the constitutional amendment in 1968 (state of emergency amendment) had as its goal the regulation of the internal use of the Armed Forces in case of an emergency. The possibility of relying on the Armed Forces in internal conflicts was to be strictly limited to situations explicitly regulated in the Basic Law. The legislators did not, however, intend to diminish Germany's chances to participate in a system of collective security, i.e., the U N system, which was provided for in the constitution from the outset. Hence, the matter of an external use of German Armed Forces within the scope of Article 24 para. 2 was not even discussed.63 Consequently, the Court saw no need to deal w i t h the controversial issues brought up in connection w i t h Article 87a para. 2, such as the meaning of the terms 'defense' (Verteidigung) or 'use' (Einsatz). Since, according to the Court's reasoning, Article 87a was not meant to limit the scope of Article 24 para. 2, it was also not necessary to decide whether the latter provision was explicit enough to fulfil the proviso "explicitly permitted by this Basic L a w " set up in Article 87a para. 2.

c) The Interpretation of the Term 'System of Collective Security' Whereas i n the Pershing judgment of 1984 64 the question whether N A T O is a 'system of collective security' could be left open, this time the Court had to make up its mind. Referring to the purposes such a system is supposed to serve it chose an expansive interpretation. I n contrast to a majority of authors who preferred a restrictive concept, 65 the Court concluded that the term 'system of collective security' as used in Article 24 para. 2 includes a system of collective defense such as N A T O . As long as such a system is designed to maintain the peace among its members and is based on mutual obligations in case of aggression, it does not 62

For details see id., section A.I.1.-3., 291 et seq.

63

Id., section C.II., 355 et seq.; but see Claus Arndt, Verfassungsrechtliche Anforderungen an internationale Bundeswehreinsätze, NJW, 1994, 2197, 2198, who as a member of the Legal Committee of Parliament in 1968 contends that by drafting Article 87a para. 2 it was the legislator's intention to restrict the Federal Republic's ability to join a system of collective security obliging her to take military action. A n accession to such a system should, according to Arndt, have only been permitted, if the government had made a reservation to the respective treaty or if the Basic Law had been amended to explicitly allow the use of the Armed Forces within the framework of such a system. 64 65

See note 47. See note 45.

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matter to the Court whether the aggressor comes from within the system or from the outside. 66 Since N A T O is an organization whose members "unite their efforts for collective defense and for the preservation of peace and security" (Preamble), promise each other assistance in case of an armed attack (Article 5) and are obliged to settle their disputes by peaceful means (Article 1), N A T O was considered to be a 'system of collective security' in the sense of Article 24 para. 2 . 6 7 Hence, the Court decided against a strict differentiation between systems of collective security and systems of collective defense based on Article 51 of the U N Charter. Although the Court's broad interpretation differs from the meaning of the term 'system of collective security' in international law, it is in accordance w i t h the intention and goal of Article 24 para. 2, i.e. to enable Germany to participate in a multilateral structure that guarantees peace and security for its members on the basis of mutual obligations. 68 After having stated the constitutional basis for Germany's participation in peace-keeping operations, the Court examined whether the deployment of German troops in Somalia, in the Adriatic and in the airspace over Bosnia-Herzegovina was in accordance w i t h Article 24 para. 2. The difference between the operation in Somalia, on the one hand, and the operations in the former Yugoslavia, on the other hand, was based on the fact that in Somalia the operation was under the control of the United Nations, whereas in the former Yugoslavia German troops operated within the N A T O and W E U framework.

aa) U N O S O M I I The Court came to the conclusion that the deployment of a German battalion in Somalia was in accordance w i t h Article 24 para. 2. Since peace-keeping operations have become an integral part of the U N system, they are covered by the constitutional authorization to become a Member of the United Nations. The Court pointed out that, provided that the competent U N organs are fulfilling tasks explicitly or implicitly laid down in the U N Charter, Article 24 para. 2 per66

Judgment of 12 July 1994 (note 1), section C.I.2.a and b, 347 et seq.

67 Id., section C.I.2.C, 350 et seq. 68 See also in favor of the Court's broad interpretation Blumenwitz (note 34), 645 et seq.; Georg Nolte , Bundeswehreinsätze in kollektiven Sicherheitssystemen - Zum Urteil des Bundesverfassungsgerichts vom 12. Juli 1994, ZaöRV, 1994, 652, 658; Werner Heun, Anmerkung zum Urteil des Bundesverfassungsgerichts vom 12. Juli 1994, JZ, 1994, 1073, 1074; Kirchhof (note 34), 812; for a critical comment see Dieter S. Lutz, Seit dem 12. Juli 1994 ist die N A T O ein System kollektiver Sicherheit - Eine Urteilsschelte, Neue Justiz, 1994, 505; Claus Kress, The External Use of German Armed Forces - The 1994 Judgment of the Bundesverfassungsgericht, International and Comparative Law Quarterly ( I C L Q ) , 1995, 414, 418; Werner Schroeder, Verfassungs- und völkerrechtliche Aspekte friedenssichernder Bundeswehreinsätze - BVerfG, N J W 1994,2207, Juristische Schulung (JuS), 1995, 398,402.

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mits the participation of German Armed Forces in peace-keeping operations authorized by the Security Council. 6 9 I n the Court's view these conditions were met in the case of U N O S O M II, even though this operation was based on a combination of competences contained in Chapters V I and V I I of the Charter. The integration of a German contingent into the U N peace-keeping forces under the limited operational command of the supreme commander of U N O S O M I I followed the organizational pattern developed for such operations in U N practice. Thus, it was covered by the Federal Diet's consent to accession to the United Nations in 1973.

bb) The N A T O and W E U Operations in the Adriatic and in Bosnia-Herzegovina The Court concluded that the participation of German Navy vessels in the monitoring operation in the Adriatic and of German fire control officers in AWACS flights over Bosnia-Herzegovina also had a constitutional basis in Article 24 para. 2 in connection w i t h Parliament's consent to the accession to N A T O and the United Nations. These operations could easily be regarded as actions in accordance w i t h the U N Charter, because the respective Security Council resolutions were based on Chapter V I I . The further question the Court had to answer was, however, whether the authorization in Article 24 para. 2 also covered a German participation in integrated N A T O and W E U units. Even though the Court had characterized N A T O as a 'system of collective security', it was important to attribute these actions to the United Nations - and not to N A T O or W E U alone - because the active military assistance of peace-keeping and enforcement operations is not yet regulated by the N A T O and W E U treaties. To overcome this difficulty the Court argued that the Member States fulfilled their own obligations towards the United Nations, i.e. to support the enforcement of the above-mentioned binding resolutions, by making use of the organizational structures of N A T O and W E U . Accordingly, N A T O and W E U had been integrated into the U N system. 70

2. Article 59 paragraph 2 Basic Law and the New Tasks of NATO and WEU The question whether the various declarations by N A T O and W E U 7 1 defining new tasks in the field of peace-keeping and peace-enforcing operations needs Parliament's prior consent according to Article 59 para. 2 was the most controversial 69 Judgment of 12 July 1994 (note 1), section C.I.4.a, 351 et seq. 70 71

Id., section C.I.5.a.bb, 354 et seq. See note 57.

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issue. The objective of this provision is to ensure that "treaties which regulate the political relations of the Federation or relate to matters of federal legislation" w i l l not become binding in international law without Parliament's prior approval. Thus the government's prerogative in foreign affairs is submitted to parliamentary control to a limited extent, i.e. Parliament may approve or reject a treaty negotiated by the executive in its entirety without having the power to modify it. Article 59 para. 2 does not, however, apply to acts and declarations that cannot be characterized as international treaties. Furthermore, it does not oblige the government to choose the form of an international treaty in order to bring about Parliament's participation. 72 The government is, therefore, free to cooperate w i t h other States on a political rather than a legal basis. Article 59 para. 2 could, therefore, only have been violated, if the government had agreed to new or extended legal obligations without seeking Parliament's prior consent. O n this issue, there was a parity of votes which, according to the Court's Rules of Procedure, 73 leads to the result that a violation of the constitution cannot be determined. Four judges 74 were of the opinion that Article 59 para. 2 has to be interpreted in a restrictive manner, i.e. as referring only to 'treaties' in the legal sense. Consequently, in their view this provision does not apply to political declarations, even though they affect the contents of existing treaties. I n international law, there is no clear-cut dividing line between a dynamic and progressive interpretation of a treaty on the one hand, which would be covered by the former consent of Parliament, and a modification of a treaty on the other hand, which would once again need Parliament's approval. The judges pointed out that Article 59 para. 2 has to be limited to unambiguous modifications of international treaties in order to allow a clear division of powers between the federal government and the Federal Diet in the field of foreign affairs. I n their view, any broader interpretation would impair the government's ability to act in foreign policy matters. They came to the conclusion that due to the Member States' intentions all N A T O and W E U declarations in question were just of a political nature, and thus not yet legally binding, i.e. not a formal amendment to the N A T O and W E U treaties. Therefore, there was no room for the application of Article 59 para. 2. 7 5 There is, however, a discrepancy between the characterization of the said declarations as purely political and the fact that N A T O and W E U members had already acted accordingly in Yugoslavia. The federal government actually fulfilled 72

Judgment of 12 July 1994 (note 1), section C.III.l.b, 358, with cross-reference to the Pershing decision (note 47), 85 et seq. 73

See section 15 para. 3 of the Court's Rules of Procedure (Bundesverfassungsgerichtsge-

setz). 74 7

Justices Klein, Graßhof Kirchhof and Winter. s Judgment of 12 July 1994 (note 1), section C.III.3, 359 et seq., 363.

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an obligation agreed upon by the N A T O and W E U partners who for political reasons did not (yet) want to formally amend the respective treaties. It is noteworthy that the four judges favoring a restrictive interpretation of Article 59 para. 2 accepted the view shared by the W E U Member States that for the enforcement of U N resolutions 787 and 816 no authorization in the treaty was needed, because they did not act within the scope of the treaty, but merely agreed to commonly give effect to U N peace-enforcing measures and thereby use the W E U institutional structures. 76 This line of argument is not convincing, because the W E U Members need a legal basis in the treaty itself, when they decide to carry out military operations coordinated within the W E U structures. 77 It would have been easier to argue, as the federal government did, that these new tasks can be derived from the treaty by means of a dynamic or progressive interpretation. As to N A T O , the judges seemed to accept the contention that the 'new strategic concept' is based on the treaty itself. 78 Instead of examining, however, whether such an expansive interpretation of the treaty is still covered by Parliament's approval of the Federal Republic's accession to N A T O , they let it suffice to state that this argument indicates the Member States' unwillingness to create new legal obligations. O n the whole, they chose a pragmatic solution that leaves ample room for the government to act on the international level. Hence, it is in line w i t h the Court's previous view that due to the principle of separation of powers laid down in Article 20 para. 2 Basic Law foreign policy matters belong to the core responsibilities of the executive, and that, therefore, the participation of Parliament has to remain a strictly limited exception to that rule. 7 9 I n contrast, the other four judges 80 were of the opinion that Parliament's rights had been imminently endangered by the government's actions in cooperation w i t h the other N A T O and W E U partners. According to their reasoning, the extension of N A T O ' s and WEU's tasks in the field of peace-keeping operations cannot be considered as implicitly laid down in the original treaties, but a step beyond. Although the declarations mentioned above cannot yet be characterized as a formal amendment, the federal government and the other Member States put the respective treaties 'on wheels', i.e. they brought about the imminent danger of legally binding changes of treaty obligations. Moreover, in their opinion, the declarations were not just statements of political intent, but had developed into legally binding agreements as can be seen by the subsequent common actions in

76

Id., section C.III.3.b.bb, 366 et seq. See also Nolte (note 68), 669 et seq. 78 Judgment of 12 July 1994 (note 1), section C.III.3.b.cc, 370 et seq.; for a broad interpretation of the N A T O and W E U treaties see Georg Nolte , Die 'neuen Aufgaben' von N A T O und W E U : Völker- und verfassungsrechtliche Fragen, ZaöRV, 1994, 95. 77

79

Judgment of 18 December 1984 (note 47), 86 et seq. w i t h further references.

80

Justices Limbach, Böckenförde,

Kruis and Sommer.

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Yugoslavia. Hence, the government was obliged to ask for Parliament's approval of the new security concepts of N A T O and W E U , even though these had not yet been agreed upon by means of a formal treaty amendment. I n their view, only such a broad interpretation of Article 59 para. 2 would be in accordance w i t h its purpose and objective, i.e. to protect Parliament from being confronted w i t h legal obligations it could not control and contradict afterwards. 81 This opinion emphasizes the need to guarantee Parliament's share of responsibility in foreign policy matters. The dissenting judges tried to adjust the interpretation of Article 59 para. 2 to recent developments in international law, i.e. the increasing part of 'soft law' that does not (yet) qualify as treaty law but, nevertheless, creates 'quasi-legal' obligations. 82 They realized the difficulty of drawing the border-line between 'non-legal' declarations and legally binding modifications of treaties by consensus. To avoid the difficult decision on the question whether the N A T O and W E U declarations had to be regarded as legally binding they stated that it should not be the task of Parliament or the Court to decide this issue, and rather relied on the concept of an imminent danger to Parliament's rights in the special case before i t . 8 3 From a theoretical point of view, this solution does not seem fully satisfactory. The difficult problem of differentiating between a dynamic interpretation of international treaties covered by Parliament's prior consent and the modification of treaty obligations short of a formal amendment that has implications for Parliament's rights needs further elaboration by both constitutional and international lawyers. There was consensus again, however, on the ruling that the agreement between the government and the U N on the integration of German troops into the U N peace-keeping forces in Somalia did not need any prior approval by Parliament. Even if this agreement was a treaty, it did not fall under Article 59 para. 2, because it related neither to the political relations of the Federation nor to matters of federal legislation. The participation in peace-keeping operations and the support of sanctions in accordance w i t h Chapter V I I had already been covered by Parliament's consent to the U N treaty in 1973. 84

si Judgment of 12 July 1994 (note 1), section C.III.4, 372 et seq., 309. 82 For further details on the problem of so-called 'non-legal* treaties in international relations and their implications on constitutional law see Wilhelm Wengler; 'Nichtrechtliche' Staatenverträge in der Sicht des Völkerrechts und des Verfassungsrechts, JZ, 1995, 21, 25 et seq.; for the problem of an evolutionary development of international treaties see Georg Ress, Verfassungsrechtliche Auswirkungen der Fortentwicklung völkerrechtlicher Verträge, in: Walther Fürst/Roman Herzog/Dieter C. Umbach (eds.), Festschrift für Wolf gang Zeidler, vol. 2,1987,1775,1778 et seq. 83 Judgment of 12 July 1994 (note 1), section C.III.4.C, 375 et seq. 84 Id., section C.III.5, 378 et seq.

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3. The Need for Parliament's Prior Consent to the Use of German Armed Forces Although the Court had concluded that the participation of German troops in peace-keeping and peace-enforcing U N operations was covered by the authorization of Article 24 para. 2, it was not ready to leave the decision on a specific military engagement in the hands of the government alone. It ruled that every use of the German Armed Forces needs the prior consent of Parliament. According to the Court, it can be derived from the constitution that the Armed Forces are not solely at the executive's disposal, but rather have to be integrated into the democratic constitutional order, i.e. that Parliament must have a decisive influence on their establishment and use. This conclusion the Court based on the drafting history of the constitutional provisions related to the use of the Armed Forces, and on the constitutional tradition in Germany since 1918. It stated that the provisions in the Basic Law dealing w i t h the Armed Forces were, according to the legislator's intention, supposed to regulate all the uses that seemed to be a realistic possibility at the time when they were written into the Basic Law. A l l these provisions - and Article 115a para. I 8 5 in particular - require Parliament's prior consent to the deployment of the German Armed Forces. 86 This was equally true for the modified Reichsverfassung of 28 October 1918 and the Weimarer Reichsverfassung of 11 August 1919. These constitutions and the Basic Law itself subject the Armed Forces to a strict parliamentary control. 8 7 Consequently, even in case of an armed attack on a N A T O or W E U ally Parliament has to consent to military assistance. I n addition, Parliament's prior consent is needed in all cases of military engagements within the U N framework, no matter whether peace-keeping or peace-enforcing operations are concerned. 88 O n l y acts of humanitarian or other assistance abroad are excluded. I n order to prevent an undue impairment of the Federal Republic's ability to defend itself or its allies, the federal government is entitled to decide on the use of the Armed Forces without Parliament's prior consent in cases of emergency. The matter must, however, be referred to the Federal Diet as soon as possible, and the Armed Forces have to be withdrawn immediately, if Parliament so demands. Parliament's decisions shall be made in accordance w i t h Article 42 para. 2 of the Basic Law, i.e. by a majority of the votes cast. Additionally, the Court suggested that the details of Parliament's participation should be regulated in a specific statute. 89

85

For the text of this provision see note 30. * Judgment of 12 July 1994 (note 1), section C.IV.l, 382. 87 Id., section C.IV.2, 383 et seq. 8

88 89

Id., section C.IV.3.a, 387 et seq. Id., section C.IV.3.b and c, 388.

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The Court's ruling is more .a result of a progressive development of the constitution than of its interpretation. From the provisions cited by the Court it does not necessarily follow that all uses of the Armed Forces need Parliament's prior consent. This is equally true for the Court's second line of argument, namely relying on constitutional history. Even though a tradition of a strict parliamentary control over the use of the Armed Forces can be found, this finding does not necessarily lead to the general principle of prior consent to every military engagement. 9 0 O n the contrary, it can be argued that the additional approval of Parliament is not necessary as long as military operations are under the Security Council's mandate and thus serve the purpose of enforcing the interests of the international community rather than a national interest of the Federal Republic. 91 Nevertheless, in view of Germany's history and the subsequent somewhat ambiguous relationship between its citizens and the Armed Forces the Court's solution seems to be a wise decision. O n the one hand, it guarantees Parliament's participation in a process of considerable importance to every citizen in general, and to the soldiers concerned in particular. O n the other hand, it makes sure that such a crucial decision needs the political backing of the majority in Parliament, which is especially important if there are casualties. I n addition, the decision reflects a tendency common to all proposals for a constitutional amendment referring to the 'out of area' use of German Armed Forces, namely the requirement of Parliament's prior consent. 92

90 See also Nolte (note 68), 674; Heintschel von Heinegg/Haltern (note 11), 308; Kress (note 68), 424; Schroeder (note 68), 404. 91 For the parallel problem in US constitutional law see, e.g., Thomas M. Franck/Faiza Pately Agora: The Gulf Crisis in International and Foreign Relations Law - U N Police Action in Lieu of War: 'The O l d Order Changeth", American Journal of International Law (AJIL), 1991, 63, 72 et seq., who are of the opinion that in cases of military action under U N mandate there is no need for consent by Congress under the War Powers Resolution; but see Michael J. Glennony The Constitution and Chapter V I I of the United Nations Charter, AJIL, 1991, 74, 88, in whose view a permissive Security Council resolution has no effect on the domestic allocation of war-making power. For a comparison of constitutional provisions on the use of Armed Forces in the US, USSR, Germany and Japan see Lori Fisler Damroschy Constitutional Control of Military Actions: A Comparative Dimension, AJIL, 1991, 92. 92 See, e.g., the constitutional amendments proposed by the Social Democrats, Bundestagsdrucksache (BT-Drs.) 12/2895 of 23 June 1992, and by the C D U / F D P coalition, BTDrs. 12/4107 of 13 January 1993. For a comment on these proposals see O/e Diehly UNEinsätze der Bundeswehr, EA, 1993, 219. Both proposals were brought into the discussions in the Joint Constitutional Commission (Gemeinsame Verfassungskommission) of Bundestag and Bundesraty see Kommissionsdrucksache 8 (SPD), published in: Report of the Joint Constitutional Commission, BT-Drs. 12/6000 of 5 November 1993, 141, and Kommissionsdrucksache 33 (CDU), published in: Report of the Joint Constitutional Commission, BTDrs. 12/6000 of 5 November 1993, 147 et seq.; for a survey on the discussion within the Commission see id. y chapter 8, 101 et seq.; since no proposal could get the necessary twothirds majority, the Commission did not make any recommendation on this issue.

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Concluding Remarks The judgment on the 'out of area' use of the German Armed Forces of 12 July 1994 is one of the most important decisions the Court has made. It gives an answer to the pressing question whether German troops can take part in U N peace-keeping operations. The Court makes it clear that military engagements within the framework of the U N are covered by the authorization in Article 24 para. 2 to join a 'system of collective security', in other words, that this provision contains a military option. German participation is, therefore, permitted, as long as the competent U N organs carry out tasks that are, at least implicitly, laid down in the Charter. Hence, the authorization in Article 24 para. 2 not only refers to enforcement action according to Chapter V I I , but includes traditional peacekeeping measures, i.e. monitoring and reporting the maintenance of cease-fires and providing a buffer between belligerents and establishing zones of disengagement, 9 3 as well as so-called 'second generation' or 'robust' peace-keeping operations, i.e. measures between peace-keeping w i t h the consent of all parties concerned and large-scale enforcement against an aggressor. 94 I n addition, the Court put an end to the legal debate on the meaning of the term 'system of collective security' by determining that N A T O , a defense alliance, is included. Therefore, the authorization in Article 24 para. 2 also covers a participation of German troops within integrated N A T O structures that the Member States make use of in order to support U N peace-keeping operations. The controversial question whether German Armed Forces can join multilateral operations like in the Gulf War that are authorized, but not controlled by the United Nations, is, however, still open. The answer depends on the decision whether such operations are within the framework of the U N system. International law scholars dispute the legal basis of military operations enforcing the Security Council's resolutions responding to Iraq's attack on Kuwait. 9 5 Whereas some authors are of the opinion that the use of force against Iraq was an act of collective self-defense in accordance w i t h Article 51 of the U N Charter, 96 others 93 For further details see, e.g., Thomas G. Weiss , Problems for Future U . N . Military Operations in ' A n Agenda for Peace", in: Winrich Kühne , Blauhelme in einer turbulenten Welt, 1993, 177, 179 et seq.; Frowein (note 44), 3 et seq.; Bothe, Peace-keeping (note 39), 572 et seq.; William J. Durch (ed.), The Evolution of U N Peacekeeping, 1993, each w i t h further references. 94

Winrich Kühne, Völkerrecht und Friedenssicherung in einer turbulenten Welt: Eine analytische Zusammenfassung der Grundprobleme und Entwicklungsperspektiven, in: Kühne (note 93), 17, 51 et seq.; Helmut Freudenschuss , The Changing Role of the U . N . Security Council: Trends and Perspectives, in: Kühne (note 93), 151,161 et seq. 95 See SC res. 661 of 6 August 1990, establishing economic sanctions against Iraq according to Article 41 U N Charter, and SC res. 678 of 29 November 1990, '[authorizing Member States cooperating w i t h the Government of K u w a i t . . . to use all necessary means to uphold [the earlier resolutions] and to restore international peace and security in the area.'

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characterize the operation as a peace-enforcing measure in accordance w i t h Articles 39, 42 and 48 of the U N Charter. 97 A parallel debate takes place on the constitutional level. Referring to the judgment some commentators contend that the authorization of Article 24 para. 2 to enter a system of collective security extends only to military operations under the command and control of the United Nations, and, therefore, military action as in the Gulf War was not covered. 98 Others support the view that such operations are based on Chapter V I I of the U N Charter and, consequently, fall within the scope of that provision. 9 9 Since Article 42 of the U N Charter does not require the United Nations itself to take military action and since Article 48 enables the Security Council to authorize some or all of the Member States to take appropriate enforcement measures, the more convincing arguments speak for the latter view. As the ongoing debate in the aftermath of the Court's decision shows, however, the legal and political controversy on this issue continues. The question is also open whether German troops can participate in N A T O and W E U peace-keeping and peace-enforcing operations outside the U N system. Such a situation may come up when the Security Council is blocked by a veto, or Article 51 of the U N Charter does not apply, i.e. in case of internal strife or serious violations of human rights as in Somalia, but, nevertheless, urgent action has to be taken to save lives and restore the peace. Since the Court characterized N A T O as a 'system of collective security' - and the same should apply to W E U - such operations should be covered by Article 24 para. 2 as well. A question the Court did not have to decide is, however, whether these actions can be considered as being taken within the N A T O and W E U framework, i.e. whether they can be based on the existing treaties. This question leads to the problems discussed - but not satisfactorily solved - by the Court from a different angle in connection w i t h the issue whether the government's approval of the new tasks of 96 See, e.g., Oscar Schachter ; United Nations Law in the Gulf Conflict, AJIL, 1991, 452, 457 et seq.; Eugene V. Rostow , Agora: The Gulf Crisis in International and Foreign Relations Law, Continued - U n t i l What? Enforcement Action or Collective Self-Defense ?, id., 506, 509 et seq.; Eckart Klein, Völkerrechtliche Aspekte des Golfkonflikts 1990/91, Archiv des Völkerrechts (AVR), 1991, 421, 429 et seq.; this was also the legal position of the governments of the United States and the United Kingdom which led the military campaign against Iraq. 97 See, e.g., Franck/Patel (note 91), 74; Ursula Heinz/Christiane Philipp/Rüdiger Wolfrum, Zweiter Golfkrieg: Anwendungsfall von Kapitel V I I der UN-Charta, V N , 1991, 121, 125 et seq.; Christopher Greenwood, Iraks Invasion in Kuwait, NZWehrR, 1991, 45, 55 et seq.; Jochen Ahr. Frowein, Article 42 U N C h , Nos. 22 et seq., in: Simma (note 39). 98 See Michael Bothe, in: Der Spiegel of 25 July 1994, 28 et seq.; Arndt (note 63), 2199; see also comments by two leading Social Democrats, Scharping und Verheugen, in: Frankfurter Allgemeine Zeitung, 15 July 1994. 99 See Nolte (note 68), 661; Blumenwitz (note 34), 644 et seq.; Kress (note 68), 422; w i t h caution Riedel (note 42), 138; not quite clear Heintschel von Heinegg/Haltern (note 11), 310.

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N A T O and W E U needed Parliament's consent because of their 'quasi-legal' quality. Since even the four judges that denied the necessity of Parliament's prior consent did not explicitly confirm the government's position that a basis for peace-keeping operations can be derived from the N A T O and W E U treaties by means of a dynamic interpretation, 1 0 0 it is open to speculation how the Court would answer that question. Another issue the Court did not have to decide is the question whether German troops can - together w i t h other States or alone - take military action outside the framework of any 'system of collective security'. This problem may, for example, come up in case of an armed attack on a n o n - N A T O State asking for assistance according to Article 51 of the U N Charter, the rescue of endangered German citizens abroad, or an operation against terrorists. As such actions are not within a system of collective security, they are not covered by Article 24 para. 2 Basic Law. Hence, this question has to be answered in view of Article 87a. Since the Court explicitly left open the many disputed issues related to that provision, this question remains highly controversial. I n summary, the Court did not put an end to the debate on an 'out of area' deployment of German Armed Forces. However, it decided the most pressing issue in the political debate, namely German participation in U N peace-keeping and peace-enforcing operations. Hence, it contributed to the social and political peace in Germany where the politicians could not find a compromise between the various Parties. By demanding only a simple majority of votes for Parliament's decision on a deployment of German troops, the Court opened the way to overcome the political deadlock on this issue. The Court left the details to be regulated by the legislators. N o w the ball is back in the court of the politicians.

100

This is critically pointed out by Nolte (note 68), 672 et seq.

From 'Self-Determination' to a Right to 'Self-Development' for Indigenous Groups B y E m m a n u e l Spiry Draw boundaries on the map/And call it the State Be King Minister/Protector and Father Send bailiffs and businessmen/Priest and soldiers To the people who own/The land you take. Use Bible and Booze/And bayonet Break promises and agreements/Be a diplomat Use articles of law/Against ancient rights Create prejudice/Discrimination A n d hate./Let no one question your authority That's how you suppress a people./Let language and culture Take their place in the museum/As research object A n d tourist attraction/Give lively speeches O n each festive occasion/Let it disintegrate and die That which was a nation./Let no one question your authority That's how you suppress a people. 1

Introduction T h e situation o f indigenous peoples a r o u n d the w o r l d has been a m p l y d o c u mented i n recent years. Observers seem t o agree that the l o w standards of l i v i n g , p o o r health conditions, and other expressions o f p o v e r t y that are salient features o f indigenous c o m m u n i t i e s all over the planet are n o t the result o f inherent backwardness and isolation, b u t rather the direct consequence o f the i m p a c t of ' m o d ern c i v i l i z a t i o n ' u p o n these p o p u l a t i o n s . 2 F o r decades, indigenous peoples have been powerless and helpless regarding this situation. T o be sure, indigenous re1

Ragnar Olsen and Mari Boine Persen , Oppskrift for Herrefolk (Recipe for a Master Race), Womad Music Ltd. for Realworld. Mari Boine Persen is a Lappish (or Sami) singer from Norway. 2

See, e.g., Rodolfo Stavenhagen, The Ethnic Question: Conflicts, Development, and H u man Rights, 1990, 93 et seq. More generally see Julian Burger, Report from the Frontier: The State of the World's Indigenous Peoples, 1987; Cobo Report, U N Doc. E/CN.4/Sub.2/ 476 and Add. 1-6, U N Doc. E/CN.4/Sub.2/1982/2 and Add.1-7, U N Doc. E/CN.4/Sub.2/ 1983/21 and Add.1-8.

9 GYIL 38

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bellions have occurred throughout history and all over the world; and of course indigenous peoples have been able to petition national governments, and sporadically even international organizations. Usually, however, indigenous peoples have had to trust in paternalistic government action for redress of ancient grievances or for projects conducive to development or improvement of their standards of living. Government responsibility for indigenous peoples has frequently taken the line of assimilation or incorporation. This ideology has found expression in international instruments and, in particular, the only international convention directly addressing the issue of indigenous rights per se, that is I L O Convention 1073, which went in that direction by stating, in Art. 2 (1) that: "Governments shall have the primary responsibility for developing coordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries." Thus, without laws or conventions adequately addressing the unique indigenous situations, w i t h apparently little success in the enforcement of the international law of human rights by the United Nations, without recourse to the International Court of Justice, and w i t h limited access to international hearings and commissions which require the exhaustion of domestic remedies, indigenous people have tended to look to the right to self-determination of peoples as the legal instrument for their liberation and the enforcement of their human rights. Therefore, we w i l l have to see, in Part I of this Article, if and to what extent the classical or 'colonial' right of peoples could be applied to the situation of indigenous populations, before turning to the newly defined right to self-determination, as it appears today after the events that have changed the face of the U n i ted Nations since 1985. I n Part II, we w i l l discover that the new international environment has opened new perspectives for indigenous rights and, more specifically, that it has generated a broader and wider definition of the concept of 'indigenous self-determination', encompassing at the same time external, secessionist elements and also an internal dimension, which largely remains to be explored.

I. Indigenous Populations and the Evolution of the Right to Self-Determination As we are going to see in section 1 of this Part, indigenous populations have never been the beneficiaries of any 'right to self-determination', at least under its 3

Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries ( I L O 107), 26 June 1957, 328 U N T S 247 [hereinafter I L O Convention 107].

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conventional or classical, that is purely external, form. However, to quote Deborah Cass: "Conventional theoretical approaches to self-determination are inadequate ... A t a time when an increasing number of claims are being made by indigenous peoples and ethnic minorities, not enclosed within the parameter of classical, colonial boundaries, the disjunction between theory and practice becomes critical." 4 Indeed, as we w i l l see in section 2 of this Part, today one can identify a new, multidimensional right to self-determination, less State-oriented and, therefore, closer to indigenous interests.

1. From the Classical , Post Second World War \Right of All

Peoples' ...

The following considerations concerning the principle and/or the right to selfdetermination begin chronologically from 1945, the historic time of the creation of the United Nations. A t its inception, the United Nations Charter clearly did not include any general 'right' to self-determination. The principle of equal rights and self-determination of peoples, w i t h all its ambiguity, is referred to only twice in the Charter. The development of friendly relations among nations, based on respect for the principle of equal rights and self-determination of peoples, is listed as one of the purposes of the U N . 5 I n addition, the Charter makes preambular mention of the principle of self-determination before enumerating several goals which the Organization "shall promote" in various fields. 6 Thus: "The conclusion is that self-determination . . . was not originally perceived as an operative principle of the Charter; the principle of self-determination was one of the desiderata of the Charter rather than a legal right that could be invoked as such." 7 However that may be - and paradoxically - the Charter itself provided for the future implementation of that principle through the system established to promote a transition to self-government for certain non-self-governing territories. 8 The difficulty was that there were no criteria in the Charter for determining what were non-self-governing territories, other than "territories whose peoples have not yet attained a full measure of self-government." 9 Despite this imprecision about the extent to which territories fit the definition, however, the debate was clearly limited to discussion of recognized, geographically separate territories. It 4 Deborah Cass, Rethinking Self-Determination, Syracuse Journal of International Law and Commerce, 1992,23. 5 U N Charter [hereinafter Charter], Art. 1(1). 6 Id., Art. 55. 7

Erica-Irene Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, Transnational Law and Contemporary Problems, 1993,2. 8 This system is provided for in Chapter X I I of the Charter, the International Trusteeship System, and Chapter X I I I , the Trusteeship Council. 9 Charter, Art. 73.

*

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was not argued that the definition of self-governing territory should be extended to include indigenous peoples within Member States.10 During the debate over the drafting of the U N Charter various delegates argued that it should specify and guarantee human rights. While this was not done in the Charter itself, the United Nations established a Commission on Human Rights to draft what was envisaged would be an international bill of rights. This effort culminated in the adoption by the General Assembly in 1948 of the U n i versal Declaration of Human Rights. As the parties drafting the Declaration could not agree on a general statement of the right to self-determination, one was not included. The next stage was the development, by the Economic and Social Council (ECOSOC), of legal measures to implement the Declaration. While the draft covenant produced in 1950 did not include any mention of a right to self-determination, the claim was made that it should. 11 Thus, the Assembly resolved in 1952 to include a proposed article on the right of peoples to self-determination, which it asked the Commission on Human Rights to prepare. 12 I n 1955, this proposed article was considered by the Third Committee of the General Assembly. The Committee, after appointing a Working Group to consider it and to make recommendations, adopted a revised version of the article which eventually became the general right declared in the present Art. 1 of the two Covenants. The mere statement that "all peoples have the right to self-determination," however, did not resolve the debate over the scope of the application of the right. O n the contrary, a large part of the debate now concentrated on the applicability of the principle to nations and ethnic groups within States and, even more specifically, on whether it applied to indigenous peoples within States. The proposal that self-determination applied to indigenous peoples within States was known as the 'Belgian thesis'. It was based on the arguments that, first, the Charter does not explicitly refer to colonialism, but only to non-self-governing territories, and second, that the treatment of indigenous communities is comparable to the treatment of colonized territories overseas. 13 This thesis, however, 10

See Ruth Russel , A History of the United Nations Charter: The Role of the United States 1940 - 1945, 1958, 811 (citing 6 U N C I O Doc. 296). 11 The claim was made, for example, by the Afro-Asian group of States. O n this point see Oji Umozurike , Self-Determination in International Law, 1972, 28 (listing the supporters of this claim and of those States rejecting it). See also Aurelius Cristescu , The Right to Self-Determination: Historical and Current Developments on the Basis of the United Nations Instruments, U N Doc. E/CN.4/Sub.2/404/Rev.l (1981), paras. 44 - 47. 12 G A Res. 545 (VI). The Commission's draft articles and resolutions for consideration by ECOSOC can be found in: Official Records of the Economic and Social Council, 14th Session, Supp. 4 (E/2256), para. 91. 13 The Belgian thesis was not motivated by any altruistic concern for the welfare and rights of indigenous peoples. Belgium was at the time an industrial, colonial power in Bel-

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encountered vigorous opposition. The fear expressed by various delegates - particularly those from Latin American States - was that the Belgian thesis would destroy territorial integrity and thus State sovereignty. Ultimately, the thesis was rejected. 14 It was this debate over the application of the principle of self-determination, including the debate over the Belgian thesis, that led to attempts by the General Assembly to clarify the application of the principle of self-determination to nonself-governing territories under the Charter. I n 1960, the Assembly adopted Resolution 1514(XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples 15 , which was the first international instrument to formally state that "all peoples have a right to self-determination," and which most scholars take as the point at which the principle of self-determination became a recognized right in international law. 1 6 Despite this general statement, however, the Declaration did not expand the scope of the right to self-determination to include minorities or indigenous peoples within States. As the title of the Declaration indicates, its purpose was to obtain the independence and self-government of colonies. It adopted the view of the majority of States which were merely dissatisfied w i t h the speed and process of decolonization that had been conducted after the war. Yet the definition of the peoples having the right to self-determination as those under "alien subjugation, domination and exploitation" 1 7 is ambiguous. Either indigenous peoples fit the definition through being under subjugation (etc.) by a dominant, alien culture from within their States, or 'alien' is limited to meaning that the subjugation originates from outside the State. The subsequent 18 Resolution 1541 19 suggests that the latter was intended.

gian Congo, and was exploiting Congo's resources (primarily copper from the province of Katanga) for its own use. Thus, Belgium argued for the right to self-determination for indigenous peoples at least partly in order to enable Katanga to secede from Congo so that Belgium could continue to exploit the copper in Katanga. 14 See, e.g., Michla Pomerance , Self-Determination in Law and Practice, 1982, 82. The Latin American States argued that the problems of the indigenous peoples were economic and not the result of colonialism ( U N Doc. A/C.4/SR.420, para. 40). They argued further that their populations had been fully integrated politically, so the application of the Belgian thesis would entail the disintegration of the present States ( U N G A O R , Official Records of the General Assembly, 7th Session, 4th Committee, 55). is U N G A O R , 15th Session, Supp. 16, U N Doc. A/4684 (1961) [hereinafter Res. 1514]. 16

I n this direction see, among others, Hurst Hannum. Autonomy, Sovereignty, and SelfDetermination: The Accomodation of Conflicting Rights, 1990, 33-34; Cristescu (note 11), para. 95; Pomerance (note 14), 1. 17 Resolution 1514 (note 15), Principle 1. is Passed the day after Res. 1514. 19 G A Res. 1541, U N G A O R 15th Session, Supp. 16, 29, U N Doc. A/4684 (1966).

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Resolution 1541 provides that the use of 'colonial countries' in the Declaration refers to non-self-governing territories, the resolution defining such a territory as one which is "geographically separate and is distinct ethnically and/or culturally from the country administering i t " and is arbitrarily placed " i n a position or status of subordination" to the administering State. Thus, the crucial element is the requirement of geographical separateness from the administering State although even this can be interpreted in two ways. 'Separate' could mean areas separate from the State in the sense of being completely outside it, or it could include delineated lands within international State borders, such as units within a national federation. Under the latter interpretation the right to self-determination for indigenous peoples w i t h distinct reserved lands could be recognized. However, the principle of territorial integrity - upheld in paragraphs 6 and 7 of the 1960 Declaration on Colonialism - creates a barrier to the wider interpretation of the peoples entitled to exercise self-determination under the Declaration. Therefore: "While pronouncing the right of all peoples to self-determination through the 'irresistible and irreversible' process of liberation and demanding a rapid end to all forms of colonialism and 'alien subjugation', the document in practice, however, remains linked to a notion of 'overseas' colonialism, and in particular the European domination of African and Asian countries. The United Nations has so far refused or avoided adoption of the illegal nature of the colonization of the Americas or of the notion of 'internal colonialism', such as would occur within the post-colonial Asian and African countries. The principles of territorial integrity and sovereignty of States as currently understood and practiced in international law bar the application of this Declaration to most indigenous cases." 20 I n 1966, the International Covenants on Human Rights 2 1 were finally adopted. They, too, recognize the right of 'all peoples' to self-determination. This recognition is contained in the first article of each Covenant. The difficulty w i t h the right as stated in the first article of each covenant is that it does not give any guidance on the priority of the principle of territorial integrity as stated, for example, in the 1960 Declaration on Colonialism. If 'all peoples' is to be interpreted as including minorities or indigenous peoples within States, then there is a direct clash w i t h the principle of territorial integrity. The difficulty w i t h imputing such a change by the adoption of the Covenants is that the travaux preparatories do not reveal any intention that international law be changed in this way. 2 2 It thus

20 Howard Bradley Reed , Human Rights and Indigenous People, German Yearbook of International Law (GYIL), 1992, 130. 21 International Covenant on Economic, Social and Cultural Rights, G A Res. 2200, U N G A O R , 21st Session, Supp. 16, U N Doc. A/6316 (1967); International Covenant on Civil and Political Rights, G A Res. 2200, U N G A O R , 21st Session, Supp. 16, U N Doc. A/6316 (1967).

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appears that, despite the agreement that the right to self-determination should be seen as the basis for all other rights, it is here limited to geographically separate, non-self-governing territories, and excludes peoples within independent States, whether subjugated or not. The issues of the definition of 'peoples' that the principle applied to, and whether it applied to situations other than geographically separate, non-self-governing territories, were addressed in the 1970 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 2 3 . However, this Declaration shows that the principle was still expected to apply only to colonial situations and to peoples subject to 'alien subjugation'. Where the explicit concern for the respect of territorial integrity of the State is involved, the right to self-determination does not in principle apply. The 1970 Declaration does evidence an extension of the application of the right to self-determination beyond colonialism: indeed, Principle 7 of the Declaration refers to "peoples under colonial or racist regimes or other forms of alien domination"(our emphasis). However, this stretching of the concept of 'alien subjugation' has included only those countries where European settlers maintained a dominant position, in spite of their relatively small numbers, based on racial discrimination. I n practice it has been reserved as a category for severely exclusionary regimes of racist minority rule, such as those that implement a policy of apartheid . A n d we know that apartheid remains linked w i t h South Africa, even though in Guatemala and Bolivia majority indigenous populations are politically and economically dominated by a minority of the Euro-American population. Thus, the conclusion from the international instruments and State practice under them is that the category of peoples entitled to self-determination under international law is limited to those subjugated under colonialism and related forms of foreign or racial domination, where the application of the right w i l l not violate the principle of territorial integrity of present States. This does not include indigenous peoples within States. This rather pessimistic conclusion is reinforced by the negative decision of the only international body to explicitly consider whether an indigenous people has the right to self-determination. The Inter-American Commission on Human Rights of the OAS, w i t h respect to the Miskito Indians, decided that: "The present status of international law does recognize observance of the principle of selfdetermination of peoples . . . . This does not mean, however, that it recognizes the right to self-determination of any ethnic group as such." 2 4 The Commission ac22

See Cristescu (note 11), paras. 27 - 33, 44 - 47. N o r did the inclusion of provisions on minority rights (such as Art. 27 of the Covenant on Civil and Political Rights): U N G A O R , 16th Session, Supp. 8, U N Doc. E/2447 (1953), para. 54. 23 G A Res. 2625, U N G A O R , 25th Session, Supp. 28 (1971), 9 I L M 1292.

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cordingly denied that the Miskito Indians were entitled to exercise separate selfdetermination. However, as we are now going to see in section 2, the principle of self-determination has experienced deep (even if not always visible) changes since the 1980s; indeed, today, this customary principle is less linked and intertwined w i t h the now obsolete notions of 'colonialism', 'foreign subjugation', or apartheid . Which has opened some new perspectives for indigenous populations.

2.... to the Emergence of a Post Cold War Right to ' Self-Determination ' As we have seen in section 1, the definition of colonialism in international law restricts the category of colonies, or non-self-governing territories, to those under alien subjugation that are also politically and geographically separate from, ethnically or culturally distinct from, and arbitrarily subordinated by the State in question. States that are not colonial powers are entitled to have their territorial integrity respected. This definition may be (and has been) critized in several ways. The first criticism argues that, even interpreting the requirements narrowly, there are some indigenous peoples currently within present States that satisfy the definition of Resolution 1541 of a 'non-self-governing' territory. That is, these indigenous peoples are geographically separate from the rest of the State, are culturally and ethnically distinct, and are arbitrarily subordinated within that State. Thus: "Colonialism currently remains linked to external, overseas domination or the 'Blue Water Test', and even under the limitations of this test the U N texts outlawing colonialism should clearly apply to Greenland and to several Pacific islands (including N e w Caledonia, French Polynesia and Guam), and could include immigration practices, dumping of toxic pollutants and nuclear tests and other military activities within the scope of illegal practices of 'colonizing' States." 25 Another example of a situation in which this argument has been made is w i t h respect to the Dane and Innuit peoples of the Canadian Northwest Territories. Ian Brownlie expressly considered this example and came to the conclusion that the Dane and Innuit people living in the Northwest Territories were non-self-governing within the terms of Resolution 1541 and were thus a 'unit of self-determination' within international law. 2 6

24 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OAS Doc. OEA/Ser.L/V, 11.62, Doc. 26, 78 - 79 (1984) [hereinafter Miskito Report]. 2 s Bradley Reed (note 20), 138. 26 Unpublished legal opinion, quoted by Catherine Iorms, Indigenous Peoples and SelfDetermination, Case Western Journal of International Law, 1992, 294.

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This opinion shows how the law actually devised by States could be used to enable the self-determination of at least some indigenous peoples. That is, the application of international law is feasible; it is just a matter of the States concerned having the w i l l to apply it in these situations. Thus, international law ought to be a framework sufficient in principle to meet the autonomy claims of indigenous peoples. It is the implementation of the law that blocks them. With careful thought it may therefore be possible to devise a concept of self-determination which, while not embracing the possibility of complete independence against the wish of the encompassing national State, does permit as wide a range of other forms of association as the self-determining people might select. After all, the right of self-determination is promised to 'all peoples'. W h y should one particular set of peoples - a particular sub-category of indigenous peoples - be denied any of the options that international law permits merely because one of these options may not be available, that is independence and full sovereignty? I n other words: self-determination is a process, not one particular outcome of that process - that is, decolonization or secession. I n so far as the United Nations has displayed a bias in favor of the independence outcome as the only proper outcome of the process for the classical colonial situation, it has adopted a corollary bias against the process itself in other situations where the independence outcome would be unacceptable. Another criticism, related to the previous one, argues that indigenous peoples have actually been colonized and subjugated by foreign peoples. Most indigenous peoples are in their present position because of colonialism of exactly the sort that the right to self-determination is designed to remedy. For example, the indigenous peoples of the Americas and various parts of the Pacific were colonized in this way. Today we would regard such colonialism as contrary to notions of human dignity and to international law because of the breaches of fundamental human rights that it entails. However, while the characteristics of the various colonial practices are the same, and while those characteristics continue today, in many instances, the mere fact that one set of practices occurred prior to an arbitrarily defined date is considered by States reason enough to ignore the realities and the causes of the present situations of indigenous peoples. " I t is a case of might, by passage of time, being made right." 2 7 Therefore, a question of the discriminatory application of international law arises, and has more specifically arisen since the end of the Cold War; indeed, as a consequence of this historic event, peoples that were joined together in States more than fifty years ago have reemerged as separate States w i t h the full recognition and protection of the U N . Wouldn't it be strange, and arguably racist, for the U N to recognize the breakup of a historical union of European peoples, but

27 Id. , 297.

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to condemn the breakup of a union elsewhere in the world simply because indigenous peoples are involved? Indeed, States and nations have long endured the ebb and flow of their boundaries. I n this respect, the modern doctrine of the territorial integrity of States represents but a vainglorious attempt to interdict history. I n this century alone, several cumbersome empires crumbled under the weight of war in Central Europe and the Third World. Their constituent ethnic parts, in the meantime, survived. The spectacle of the making and unmaking of States continues today as both political fusion and fission unfold in front of our eyes. It should be noted that these cataclysmic changes take place against a backdrop of remarkable inter-State tolerance and calm; thus: "There is a large and growing body of evidence indicating that the attitudes of the international community towards the right of minorities or indigenous peoples to assert a claim for self-determination are changing." 28 A n d as the International Court of Justice stated in the Nicaragua case, these facts constitute the most potent evidence of the state of customary international law. 2 9 A n d if now Quebec, whose ethnic 'depth' as Quebecois (as opposed to French) is chronologically shallower than that of any other cultural group presently claiming self-determination, also receives a hushed response from both Canada and the inter-State system to its secession threat, what then remains of the prohibition against secession other than the selective and arbitrary exercise of raw power? This last example leads us to emphasize, one more time, that "a self-respecting international law cannot apply as lofty a principle as self-determination in a racially discriminatory manner: 'yes' for Whites in Quebec, 'no' for indigenous peoples throughout Canada." 30 Therefore and overall, it has to be emphasized that: "Indigenous peoples are unquestionably 'peoples' in every social, cultural, and ethnological meaning of this term. They have their own specific languages, laws, values, and traditions; their own long histories as distinct societies and nations; and a unique economic, religious, and spiritual relationship w i t h the territories in which they have so long lived. It is neither logical nor scientific to treat them as the same 'peoples' as their neighbours, who obviously have different languages, histories, and cultures, and who often have been their oppressors." 31 However, the proper legal issue is not

28 Cass (note 4), 36. 29 Military and Paramilitary States), 1986 ICJ 14.

Activities In and Against Nicaragua (Nicaragua vs. United

30 Maivan Clech Lam, Making Room for Peoples at the U N , Cornell International Law Journal, 1992, 619. O f course, the very narrow majority (50.6 % for 'no', 49.4 % for 'yes') of negative votes on the question of the sovereignty of Quebec, after the vote on 30 October 1995, does not affect the relevance of this remark. 3

1 Daes (note 7), 6.

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the degree of difference that exists today, but the fact that two peoples have had, for millennia, separate histories which touched each other very little or not at all. However that may be, this new awareness has had two major consequences in the past few years, mainly on the level of the terminology used to qualify the indigenous communities. First, they are less and less associated, in practice, w i t h 'minorities'; indeed, even though there is clearly an overlap between the general case of minorities and the specific issue of indigenous groups, indigenous peoples claim to be more than, or different from, minorities. There appear to be a set of reasons for them to reject any identification as cultural minorities. I n particular, the N o r t h American model of minorities is non-territorial. It is the Irish, the Jews, the Polish and, above all, the African-Americans. It is not the French-Canadians or the Amerindians. The word, therefore, is associated w i t h groups seeking equality, integration and non-discrimination, not w i t h groups seeking cultural survival and self-government. Moreover, international law analysis, until perhaps the last couple of years, has asserted that minorities have cultural rights, but no political or territorial rights. I n particular, international legal writing has clearly indicated that minorities do not have the right to self-determination. Finally, indigenous peoples became minorities as a result of a history of colonialism or State expansion. I f their positions are argued purely as minority rights, the colonial origins of their situation become unimportant. As Patrick Thornberry states: " I n a broad sense, the history of indigenous peoples is a history of colonialism . . . . The indigenous groups have been subjected to all the excesses associated w i t h the colonial enterprise . . .. Their treatment reflects, in a striking manner, the racist and hierarchical assumptions about the lack of value in particular 'underdeveloped' or 'primitive' cultures and the attempt to extinguish or 'modernize' them." 3 2 The second question of terminology that has relevance in the area of self-determination, when one speaks about indigenous groups, is their qualification as 'populations' or 'peoples'; the latter supposedly encompasses a right to self-determination whereas the former is more 'neutral'. A t this level, important - though still equivocal - changes have occurred in the past years. Presumably the Working Group on Indigenous Populations ( W G I P ) 3 3 was so called to avoid the use of the term 'peoples'. Similarly the Martinez Cobo study 32

Patrick Thornberry , International Law and the Rights of Minorities, 1991, 333. Partly in response to recommendations contained in the Cobo Indigenous Study, see Cobo Report (note 2), and to a Conference on Indigenous Peoples and the Land held in Geneva in 1981, the creation of a pre-sessional Working Group on Indigenous Populations of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities was approved by ECOSOC; the group's first annual meeting was held in August 33

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was published under the title Study of the Problem of Discrimination against Indigenous Populations 34 . O n the other hand, the study was treated as coming under the 'discrimination' wing of the Sub-Commission's mandate, not the 'minorities' wing. So the indigenous 'populations' have not been identified as 'minorities'. I n the same direction, the rights proposed in the Draft Declaration elaborated by the W G I P are the rights of indigenous peoples. The term 'indigenous peoples' has also, if inadvertently, slipped into several resolutions of the Commission on Human Rights, ECOSOC and the General Assembly. 35 A t this level, the most recent development in this terminological battle, besides the debates taking place within the WGIP, has been in connection w i t h the revision of I L O Convention 107 which led to the adoption of I L O Convention 169 36 . During the revision process, indigenous peoples argued that the revised Convention should refer to indigenous peoples as 'peoples' rather than 'populations' and should include the right of indigenous peoples to self-determination. This inclusion was flatly rejected by the Member States revising the Convention; moreover, they also rejected the use of the term 'peoples' because it might imply that indigenous peoples were entitled to the right of "all peoples . . . to self-determination" under the International Covenant. 37 Despite this resistance, however, the indigenous peoples were persistent in their demands that they were peoples and that the word 'peoples' be used in the revised Convention. The States eventually agreed to use the term 'peoples' throughout the Convention. However, in order to destroy any implication concerning entitlement to self-determination, the Convention also provides that "the use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law." 3 8 This is taken as a statement by States that indigenous peoples are not recognized as having the international legal right to self-determination. The Convention instead considers that the appropriate locus for achievement of indi-

1982. The W G I P has become the primary focus of international activities by both governments and N G O s concerned w i t h indigenous peoples. Since 1985 it has begun to focus on developing a draft declaration on the rights of indigenous populations. 34

See Cobo Report (note 2). Gudmundur Alfredsson , The Right of Self-Determination and Indigenous Peoples, in: Christian Tomuschat (ed.), Modern Law of Self-Determination, 1993, 54. 36 Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries ( I L O 169), opened for signature 27 June 1989, reprinted in: Twenty-Four Human Rights Documents, Center for the Study of Human Rights, Columbia University, 1992 [hereinafter I L O Convention 169], 97 - 105. 37 O n both the aboriginal and governmental positions in the debate, see Russel Lawrence Barsh f Review of I L O Convention 107, American Journal of International Law (AJIL), 1986, 761, 762. 35

3

* I L O Convention 169 (note 36), Art. 1(3).

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genous peoples' aspirations and appropriate remedies for the abuses of indigenous peoples' human rights are all internal to the States in which they live. It is precisely these internal aspects of indigenous rights, including internal autonomy or self-government, that we are going to analyze now in Part II.

II. Towards a Right to 'Self-Development' for Indigenous Peoples We have seen, in Part I, that the old concept of self-determination was dead and that a new principle had emerged since the middle of the 1980s. However, we w i l l now have to analyze its content and, in particular, its implications for indigenous peoples. As we are going to see in section 1 of this Part, the new 'right of all peoples' is multidimensional: first, and we have already touched on this aspect, the right to self-determination has two distinct dimensions today: the old external one, a synonym for secession, and an internal one; and this newly defined internal aspect of self-determination is itself double-faceted, as it encompasses, at the same time, the notion of political self-government and, on the other hand, the right to maintain or develop traditional economic and social structures, as w i l l be seen in section 2 of this Part. This double dichotomy is accepted by most scholars. 39 Thus: "As w i t h sovereignty, there are internal and external elements of the substantive result of self-determination. The external element is thought of as the determination of the people's future status vis-a-vis other peoples and States. I n relation to non-self-governing territories, this is thought of as the act of liberation from 'alien' rule. The internal element is the selection of the form of government within the relevant territory," 4 0 and also the control over economic resources and traditional structures.

1. Indigenous Peoples and Internal Autonomy or Self-Government The basic argument here w i l l be the following: indigenous peoples should stop focusing their claims on external self-determination, and should rather try to obtain high levels of internal autonomy. Indeed: " A wide range of possibilities exists 39

A l l of these elements are not always presented as a piece, as in this Article, but the substance is quoted by many authors in enumerating the claimed rights of aboriginals. See, e.g., Garth Nettheim , 'Peoples' and 'Populations' - Indigenous Peoples and the Rights of Peoples, in: James Crawford (ed.), The Rights of Peoples, 1988, 188 et seq.; Stavenhagen (note 2), 100 et seq. 40 Iorms (note 26), 268.

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for developing within a remedial context a new institutional order within which all concerned can be said to be in control of their own destiny. O n l y in limited circumstances would secession be a cure better than the disease, and even then it would most likely be only a partial step towards the full realization of self-determination values." 41 Several types of criticism can be found against the attribution of a right to secede to indigenous peoples. The first criticism relates to the definition of a State. International law recognizes four criteria for sovereign, independent statehood: a permanent population, a defined territory, a government, and the capacity to enter into relations w i t h other States. It is generally claimed that indigenous peoples do not fulfill these criteria, in particular the last two. However, at that level, indigenous populations generally note that some States have signed 'treaties' w i t h them, in particular, at times the State into whose territory they have been incorporated. Nevertheless, these documents are generally not seen as international documents and, thus, as a badge of any so-called indigenous sovereignty. I n Island of Palmas ,42 Arbitrator Max Huber started w i t h the premise that indigenous communities are not States. With colonial protectorates in mind, Huber did not regard treaties w i t h indigenous peoples as constituting a basis for the sovereignty of the colonial power in international law. Rather, he explained that a colonial power's sovereignty as against other States is based not on any treaty w i t h the indigenous group, which is merely a form of the internal organization of a colonial territory, but on its suzerainty over the native State. However, at the same time, indigenous peoples still attach symbolic importance to the existence of such treaties as evidence of their sovereignty or nationhood. Within the WGIP, in particular, indigenous representatives repeatedly expressed the view that these treaties represent nation-to-nation relations, connote recognition of the legal capacity of indigenous peoples and in no way impair the right to exercise indigenous sovereignty. The representatives emphasized particularly the recognition of the sovereign capacity of indigenous peoples to enter into bilateral agreements w i t h other sovereign nations. 43 However that may be, the fact remains that the treaties indigenous peoples have concluded w i t h national governments are not regarded as international instruments, because indigenous peoples are not regarded as subjects of international law. To the extent such treaties w i t h indigenous peoples have been considered in international tribunals, they are regarded more as contracts than as trea41 James Anaya , A Contemporary Definition of the International N o r m of Self-Determination, Transnational Law and Contemporary Problems, 1993,163. « Island of Palmas (Netherlands vs. United States), 2 R.Intl.Arb. Awards 829 (1928). 43

See, e.g., Discrimination Against Indigenous Populations - Report of the Working Group on Indigenous Populations on its Sixth Session, U N Doc. E/CN.4/Sub.2/1988/24, Annex 1,110.

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ties between sovereign States. "Existing treaties w i t h indigenous peoples are not international instruments in that they do not recognize continuing indigenous sovereignty in the sense of independent statehood. Furthermore, these treaties are vulnerable to unilateral modification or abrogation by the central government." 44 Thus, in summary, existing treaties concluded w i t h indigenous peoples are not international treaties under either domestic or international law, and have not been regarded as international agreements for at least the last century. Indigenous peoples lack the necessary international legal personality. Accordingly, the existence of treaties does not in itself prove anything about indigenous sovereignty or statehood under contemporary international law. The second type of objection militating against the recognition of a right to external self-determination for indigenous peoples is based on policy grounds, namely policy concerning the consequences of the existence of a right to secession. O f those consequences, there are two types. The first is pragmatic, and includes: that the mere existence of a right to secession w i l l entail the infinite divisibility of States; that too many small or 'mini' States w i l l be created; and that any group w i l l be able to hold the electoral system for ransom in order to get its way by threatening to secede. The second type of policy argument concerns the violation of basic principles of international law. Secession would violate the territorial integrity of States and any determination of claims or assistance to claimant groups would violate the principle of non-intervention in States' domestic affairs, both of these being fundamental premises of the present system of States. International law is, after all, made by States for States, and in these instances it very much aims at maintaining the status quo and preserving the interests of States. This reaction is entirely predictable. However, perhaps the most persuasive argument against external self-determination for indigenous peoples would be related to the maintenance of peace and security, both internally and internationally. We have seen in history and in modern times how disruptive the breakup of old States and the creation of new States can be, and it remains a primary purpose of the U N to keep the peace. Therefore and overall, it is now clear that indigenous groups should give up invoking the right to external self-determination. Indeed, politicizing the debate through undue insistence on external self-determination for indigenous peoples could threaten State support for an indigenous people's right to internal self-determination. Moreover, not all indigenous groups are demanding self-determination in its fullest, external sense: many groups simply want greater control of their own affairs within the confines of the State. As was shown in the debates in 44 Andree Lawrey, Contemporary Efforts to Guarantee Indigenous Rights under International Law, Vanderbilt Journal of Transnational Law, 1990, 735.

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the WGIP, many specifically stress that they are not looking for the right to secede for themselves, only alternative forms of government that protect their interests and are more appropriate to the structure of indigenous societies. 45 The problem comes from the fact that 'self-determination' does imply the right, although not the necessity, of independent statehood, and governments tend to equate all demands for even internal self-determination w i t h secession: "To put it somewhat post-modernly, the persistence of the assumption demonstrates how the modernistically totalizing approach that 'a rose is a rose is a rose' compels us to find a thorn even when the alchemical circumstances of the late, and interdependent, 20th century have already transformed the defiant rose into an accommodating, if enigmatic, violet." 4 6 Therefore, we think that the label 'internal self-determination' is biased, and should be abandoned in favor of more 'neutral' and objective expressions, such as 'self-government' or, if we include economic rights, especially indigenous rights to land, 'self-development' or 'self-preservation'. Gudmundur Alfredsson seems to be of the same opinion when he says: "The label of 'internal self-determination' for autonomy and democracy does not in itself offer improvements while it can lead to disappointment. Political rights, political participation and autonomy certainly enhance equality for and dignity of indigenous peoples, but they fall short of granting the right of self-determination and the international lawmakers are not willing to grant that right. I am inclined to believe that we should call the rights offered by their correct names and not try to advance their image by doubtful labeling." 4 7 However that may be, once we have managed to choose an adequate label, self-government or autonomy rather than 'internal self-determination' 48 , the content of that concept still remains to be determined. Drawing on the debate at the U N , there would seem to be two main lines of thinking as to the content of 'autonomy': democratic government, and group autonomy as such. Both meanings would seem to appear in the draft declaration of the W G I P . 4 9 45 For example, the indigenous peoples' representatives have "emphasized that self-determination did not necessarily equate to separatism" (First Report of the WGIP, U N Doc. E/ CN.4/Sub.2/1982/33 (1982), para. 72). See also the Second Report of the WGIP, U N Doc. E/CN.4/Sub.2/22 (1983), para. 97: "The meaning of the right to autonomy or self-determination varied from one indigenous people to another and did not always mean sovereignty or statehood and that indigenous people should themselves be allowed to decide on the degree of autonomy or self-determination they should have." 4

* Clech Lam (note 30), 609. See Alfredsson (note 35), 34.

47

48 The phrase 'internal self-determination' is not part of the traditional literature on selfdetermination. It is a phrase that is in current use by the Human Rights Committee established under the provisions of the International Covenant on Civil and Political Rights. 49 See Discrimination Against Indigenous Peoples: Technical Review of the U N Draft Declaration on the Rights of Indigenous Peoples, U N Doc. E/CN.4/Sub.2/1994/2/Add.l.

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a) Democratic Government 'Democratic government' is political participation, or the right to take part in the conduct of public affairs through chosen representatives. Political participation can be seen as an essential element of a long-term strategy to achieve autonomy. 5 0 This is because recognition of indigenous self-determination w i l l require domestic public support as well as international debate and, ideally, international supervision. Political participation is necessary to educate both the State population and the international community about indigenous peoples' human rights problems and political goals. Without enormous resources to wage lobbying efforts, media campaigns, and educational initiatives, some direct access to the State apparatus is required to get public attention and to mobilize public opinion effectively. Hence, participation rights may be essential on the road to the recognition of self-determination. I n particular, for indigenous peoples which do not wish to become independent States, or which wish to retain an association or affiliation w i t h larger settler States, rights of political participation are critical for maintaining a relation of mutual support and respect. Without some political participation in national policy formulation, public decision-making, and public opinion formation, the autonomy or self-government of indigenous peoples in affiliation w i t h larger settler States w i l l be structured without the input and consent of the indigenous peoples. b) Group Autonomy I n the present context, 'autonomy' is understood to mean a legal regime whereby powers of self-government, including legislative competence concerning one or more specified areas - within the overall constitutional make-up of the State in question - are conferred on a distinct group of individuals. The powers conferred may be restricted to certain or all aspects of personal jurisdiction or may be extended to territorial jurisdiction. Indeed, autonomy can be both territorial and personal. If a group lives concentrated in one area, the autonomy would naturally be a territorial one: Danish legislation about Home Rule Government of Greenland is an example. 51 If the 50

Mary Ellen Turpel , Indigenous Peoples' Rights of Political Participation and Self-Determination, Cornell International Law Journal, 1992, 593. 51 The Greenland home rule arrangement (Danish Parliamentary Act 577 of 29 November 1978) forms part of a historic tradition in which the independence of Iceland from Denmark in 1948 and the passing of a Home Rule Act for the Faroe Islands in 1948 (Act 137 of 23 March 1948) are the other main elements. For more details, see Lars Adam Rehof H u man Rights and Self-Government for Indigenous Peoples, Nordic Journal of International Law, 1992, 27 et seq.

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group's members, however, are outnumbered by or intermixed w i t h other population groups, autonomy on a personal level, meaning group membership and participation in activities of the group irrespective of residence, is a legitimate and workable solution. Norwegian legislation setting up a consultative assembly for the Sami, the Sameting, is an example of the personal approach; the Sami can run for office and vote in elections for the assembly no matter where they live in the country. 5 2 However, beyond that distinction, self-government could, in theory, include a range of possibilities - a separate State or province within a federation; a self-governing territory; local government in a broad sense; local government in a narrow sense like that of a village c o u n c i l . . . . Nevertheless, many governments consider that the existence of such institutions distinct from the constitutional or legal mechanisms developed by the State constitutes a form of separatism, a threat to national unity. Most national legal systems do not recognize indigenous law and political institutions. O n the contrary, they may argue that if equality before the law, as established in all international human rights instruments, is to be a reality, then no particular ethnic group should have a right to its own legal and political institutions. Many observers, however, have pointed out that equality before the law is a pious fiction when indigenous and tribal peoples are concerned, and that one of the best instruments that these people have to defend their human rights is precisely the validity of their own institutions. 53 One sensitive issue that arises in this context is whether international human rights norms do or should apply to indigenous governments. I n Lovelace v. Canada, 54 we have a good example of the conflict between non-discrimination standards and an indigenous community's desire to control its own membership. O n the other hand, the Mikmaq nation in northeastern N o r t h America ratified the two international Covenants on Human Rights in 1987, although, since it is not a State, its ratification has not been internationally recognized. 55 However, it should be remembered that even if a community enjoys full internal self-government and autonomy, the surrounding or dominant State might still be internationally responsible for human rights within that autonomous community. 5 6 I n

52

I n 1987, the Norwegian parliament adopted Act 56 of 12 June 1987 on the establishment of the Sami Advisory Body (Sameting) and other Sami legal questions. The Act, which had been drafted on the basis of a Ministry of Justice Committee report on the legal status of the Sami ( N O U 1984:18), entered into force on 24 February 1989. For more details on this particular Act, see Rehof (note 51), 30, 31. 53 See, e.g., Stavenbagen (note 2), 114-118; Turpel (note 50), 592 - 593. 54 2 HRLJ 158 (1981). The case illustrates a conflict between the desire of an indigenous community to determine its membership and general principles of non-discrimination. 55 See U N Commission on Human Rights, Written Statement Submitted by the Four D i rections Council, U N Doc. E/CN.4/1987/N60/37 (1988).

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any event, customary international law would be applicable to any indigenous State and to indigenous or other autonomous communities within States.

2. Indigenous Peoples and the Right to Maintain or Develop Traditional Economic Structures Pure self-government, or internal autonomy, under one form or another, is certainly a prerequisite and a sine qua non condition for indigenous self-development or self-preservation; however, self-government without any sort of control over natural resources and, in particular, land, as well as a right to a minimum standard of economic development would certainly be meaningless. 57 This point has been underlined by several commentators and in numerous fora. 58 Thus, we are reminded that the Inter-American Commission on Human Rights ( I A C H R ) of the OAS considered "whether or not ethnic groups have additional rights (beyond those set forth in Article 27 of the Covenant on Civil and Political Rights), particularly the right to self-determination," 59 and finally rejected the Miskito Indian claims that they were beneficiaries of the right to selfdetermination. I n that very same case, however, the Commission went on to note that the absence of any right to self-determination does not grant the national State - Nicaragua in this case - "an unrestricted right to impose complete assimilation on those Indians." 6 0 "Although the current status of international law does not allow the view that the ethnic groups of the Atlantic zone of Nicaragua have a right to self-determination, special legal protection is recognized for the use of their language, the observance of their religion, and in general, all those aspects related to the preservation of their cultural identity. To this should be added the aspects linked to productive organization, which include, among other things, the issue of the ancestral and communal lands." 6 1 I n the same direction, U N Special Rapporteur Jose R. Martinez Cobo, in his Study of the Problem of Discrimination Against Indigenous Populations, 62 ar56

See Art. 27 of the Vienna Convention on the Law of Treaties: " A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." Vienna Convention on the Law of Treaties, 23 May 1969, U N Doc. A/Conf. 39/27, 8 I L M 679. 57 However, conversely, a certain degree of political autonomy for indigenous peoples is also necessary to achieve self-development; thus, affirmations such as: "For the most p a r t . . ., self-government is seen as depending on some degree of control over land." (.Nettheim (note 39), 121), are probably too bold and far-fetched; self-development cannot be reduced to land rights. 58 Stavenhagen (note 2), 100 - 107. 59 Miskito Report (note 24), 78. 60 Id., 81. Id., 81 - 82.

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gues that "measures taken to achieve participation must respect and support the internal organizational structures of these populations. Accordingly, governments must abandon their policies of intervening in the organization and development of indigenous peoples and must grant them autonomy, together w i t h the capacity for managing the relevant economic processes in the manner they themselves deem appropriate to their interests and needs." Therefore, land, and the rights associated w i t h land, are at the core of indigenous claims. The Cobo Study further states that "it is essential to know and understand the deeply spiritual special relationship between peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture." 6 3 The study further adds that "the recognition and protection of land rights is the basis of all indigenous movements and claims today in the face of continuous encroachment on their land." 6 4 Thus: "The findings by the Special Rapporteur allow us to discover the truly exceptional feature of indigenous peoples: their relationship w i t h their ancestral lands. This goes well beyond all considerations of an economic type. It is at the very heart of their spiritual vision, their Weltanschauung . It forms the essence of their identity, the bond between the common and the sacred . . . . The type of bond thus established between the land and the people is not within civilized history, because to this point the territorial location of a people has been considered only in the context of the exercise of specific political rights, and not from the standpoint of sacredness as an element of identity. It is in this bond w i t h the land that we find the original contribution of indigenous peoples." 65 However that may be, we w i l l only deal here w i t h the economic aspects of these land rights; indeed, the attentive reader would certainly understand that we are attempting to show, in Part I I of this Article, that indigenous self-development, just like State sovereignty, has two aspects to its internal dimension: first, political autonomy, that is the right to manage and deal w i t h political affairs without external interference 66 and, second, a purely economic right to maintain 62

Cobo Report (note 2), para. 268. 63 Id., para. 196. 64 Id., para. 215. 65 Marianne Betty Wilhelm, Autodetermination et Culture, 1992, 349. The quote untranslated reads: "Les precisions apportees par le Rapporteur special nous permettent de decouvrir la veritable specificite des peuples autochtones: leur relation avec les terres ancestrales. Celle-ci va bien au-delä de toute consideration d'ordre economique: elle est au coeur-meme de leur vision spirituelle, de leur Weltanschauung-, eile forme l'essence de leur identite, le lien entre le profane et le sacre . . . . Le type de lien etant ainsi etabli entre la terre et le peuple est inedit dans l'histoire, car jusqu'ici, Passise territoriale d'un peuple etait prise en consideration pour des motifs pratiques de mise en oeuvre de certains droits, mais non sous l'angle du sacre et en tant qu'element constitutif de l'identite. C'est la, dans ce lien avec la terre, que reside l'originalite des peuples autochtones."

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or develop traditional indigenous economic structures, this right being the indigenous equivalent of or counterpart to the State's sovereignty over natural resources, which is the second part of a State's internal sovereignty. As already stated, I L O Convention 107 6 7 is the only international instrument that specifically deals w i t h rights for indigenous and tribal populations. However paternalistic and assimilationist-oriented some of its provisions may be, it includes a strong provision on indigenous land rights; thus, Art. 11 provides that: "the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized." Nevertheless, although the 1967 I L O Conference unanimously accepted I L O Convention 107, only twenty-seven States have ratified it. The United States, Canada, Australia, and N e w Zealand have indigenous populations, but have not ratified it. Therefore, its usefulness has always been very limited. Thus, following review and consultation w i t h indigenous groups, the 76th session of the International Labour Conference accepted the revised I L O Convention in 1989 68 , which entered into force in 1991. The relevant articles of the Convention demand that indigenous peoples have the right to decide their own priorities for development including the land which they occupy; that governments have a responsibility to protect and preserve the land and environment that indigenous peoples inhabit; 6 9 that land not exclusively occupied by indigenous peoples but traditionally utilized for subsistence activities or cultural traditions shall be safeguarded, w i t h particular attention paid to nomadic peoples and swidden cultivators; that "adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned"; 70 that indigenous rights to natural resources shall be safeguarded, and indigenous peoples shall retain the right to participate in the management and conservation of these resources; that relocation from traditional land may occur only w i t h the free and informed consent of indigenous peoples which then may return when the conditions necessitating relocation no longer exist, and which shall receive compensation for any losses or injuries due to relocation; that traditional transmission of land rights shall be respected; that agrarian programs making additional land available to sectors of the population shall also make land available to indigenous peoples when their land base is too small to permit normal existence; that unauthorized intrusion upon or use of land of indigenous peoples shall be prevented by governments and adequate penalties shall be assessed.71 66

See Part I I section 1 of this Article. 67 I L O Convention 107 (note 3). 68 I L O Convention 169 (note 36). 69 Id. , Part I., Arts. 2 - 8 . 70 Id. , Part II, Art. 14(3).

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Therefore, as we can see, if this I L O Convention 169 is the only international instrument dealing directly w i t h indigenous peoples, it is of particular importance and interest for the assertion of indigenous economic rights. I n fact, if one tries to classify the above catalogue of rights associated w i t h indigenous economic structures, one discovers that the right to economic self-development has two aspects: the use of natural resources, and economic growth.

a) Land, Territory and Resources As noted, a claim for land rights appears to be at the heart of the claims of indigenous peoples on national and international law. Indigenous peoples have always had a special relation w i t h land. Land has been, and to a great extent still is, the source of their basic sustenance. Indigenous peoples are to a large extent agriculturalists, hunters, or gatherers. Thus, they are aware of the fact that unless they are able to retain control over land and territories, their survival as identifiable, distinct societies and cultures is seriously endangered. Traditionally, the greatest threat to their ancestral habitats came from the national governments; nowadays, multinational corporations also play an increasingly important role. More and more governments have been impelled to recognize the legitimacy of indigenous land claims, and protective legislation has been adopted in many States. Still, as resources become scarcer, as the world economy becomes more trans-nationalized, as the last 'frontier areas' become incorporated into so-called 'development', the indigenous and tribal peoples continue to be the most vulnerable victims of Statist and capitalist logic.

b) Economic Development O n this level, indigenous peoples generally stress the importance of 'bottomup' development strategies, which build upon existing social and economic institutions rather than replacing them w i t h supposedly superior or more modern ones. Indeed, much damage has been done to these peoples through economic development projects, particularly hydroelectric dams and other regional development schemes. The isolated, marginal areas often occupied by indigenous peoples constitute the last great and until recently unexploited reserves of natural resources. Neither State planners nor multinational companies nor international development agencies have hesitated to implement strategies to 'incorporate' these areas into the national and international economy.

7i Id. , Part I I , Arts. 14 - 19.

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I n the process, indigenous peoples have suffered genocide and ethnocide. Usually the grandiose development schemes that Third World governments are so fond of are not designed to benefit the local population but rather the urban and rural elites. Indeed, when local, frequently indigenous or tribal, populations exist, the idea is that they must be removed to make way for 'progress'.

Conclusion As a direct consequence of European colonial expansion, indigenous peoples have been deprived of their independence, their land, and their right to choose their role in the modern State. They are at the mercy of governments that may claim to have their best interests at heart, but have been singularly unsuccessful at promoting or protecting those interests. After centuries of 'enlightened' government policies, indigenous peoples are still among the most severely disadvantaged groups in their States, a part of the 'wretched of the earth' 7 2 . As a result, they doubt that national governments have the ability or the desire to provide a better future. Moreover, government policies traditionally have focused on assimilation, a goal that indigenous peoples categorically reject. They want to continue as distinct peoples and do not want to disappear into the general population. Precisely: "Self-determination is considered synonymous w i t h self-preservation for indigenous peoples. It would provide the freedom from State hegemony needed for their survival and for the transmission of their cultures to future generations." 73 Indeed, we have seen, all through this Article, that 'self-determination' is used today to refer to a people's control of its own destiny. As such it is used to refer to the protection of a wide range of rights, including: the right to use the native language; to develop the native culture; to use and own lands and resources; and to achieve political autonomy, self-government and ultimate independence, even where that may entail secession from an existing State. However, we have also seen that politicizing the debate through undue insistence on external self-determination for indigenous peoples could threaten State support for an indigenous people's right to internal self-determination. Therefore, realistically, indigenous claims should clearly - and exclusively - focus on self-determination within the existing State. Such a claim - if accepted - would be a significant advancement in the field of indigenous rights if governments acknowledged indigenous peoples as competent and entitled to manage their own affairs. Thus: " W i t h regard to indigenous peoples . . . the right to self-determination should ordinarily be interpreted as the right of these peoples to negotiate freely 72 This expression was launched as the title of a much-discussed and world-famous book by Frantz Fanon in 1961. 73 Turpel (note 50), 593.

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their political status and representation in the States in which they live," 7 4 a definition to which one should add economic self-preservation. "This process might best be described as a kind of belated State-building, through which indigenous peoples are able to join w i t h all the other peoples that make up the State on mutually agreed upon and just terms, after many years of isolation and exclusion." 75 Thus, we suggest that through continued pressure, indigenous peoples may be able to trigger the kind of crisis in thought that precedes change. "Such a change would . . . reinstate the belief that the State exists for the benefit of people, rather than the reverse. Only through such changes w i l l indigenous peoples achieve control of their destiny, or their self-determination. A n y other approach is tantamount to a rejection of a world order based on principle and an embrace of might as right." 7 6 Indeed and after all, shouldn't that 'cold and lunar monster' (in Nietzsche an terms) called the State be seen as an instrument of human society rather than its master?

74 Daes (note 7), 9. 75 Id. 76 Iorms (note 26), 347.

The Privacy of Telephone Conversations under German Law and Article 8 of the European Convention of H u m a n Rights: Improving H u m a n Rights Enforcement through Domestic Decisions By Maureen A. Convery

Introduction I n an October 1993 decision the Bundesgerichtshof (BGH), the highest German court for civil and criminal matters, was asked to consider whether the police could listen in on a private telephone conversation w i t h the consent of only one of the participants and then use this conversation to obtain a criminal conviction against the other participant to the conversation. 1 After examining the relevant criminal procedure laws and the protection of privacy afforded by the German constitution, the Court held that the police action was not prohibited. 2 I n particular it found that the right to privacy protected by the German constitution did not protect participants in private conversations from other private participants even if one of them allowed a State official to listen in. Shortly after the Bundesgerichtshofs decision the European Court of Human Rights (Strasbourg Court) issued its decision in a similar case concerning France entitled A. v. France in which it held that a private person who, w i t h the help of the police, recorded a telephone conversation to which he was a party violated the right to privacy guaranteed by Article 8 of the European Convention on Human Rights (ECHR). 3 The judgment suggests at first blush that if the German case were to be brought before the European Commission of Human Rights and Strasbourg

1 Entscheidungen des Bundesgerichtshofs, decision of 8 October 1993, 2 STR 400/93; the relevant parts of the decision are reprinted in: Neue Juristische Wochenschrift (NJW), 1994, 596 [hereinafter B G H decision]. 2 For commentaries on the decision, see Hans Lisken , Telefonmithören erlaubt?, NJW, 1994, 2069; Detlev Sternberg- Lieb en, Die "Hörfalle* - Eine Falle für die rechtsstaatliche Strafverfolgung?, Jura, 1995, 299; Christian Tietje, Kritik: Zulässigkeit des Telefonmithörens durch die Polizei, Monatsschrift für Deutsches Recht, 1994,1078. 3 Case of A. v. France , EurCourtHR, Judgment of 23 November 1993, Ser. A., No. 277, 38 [hereinafter A. v. France Judgment]; Case of A. v. France , Commission Opinion, 2 September 1992, id ., 52 [hereinafter Commission's Opinion].

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Court, 4 Germany could be found in violation of its obligations under the Convention and not allowed to permit such interference. A closer look shows, however, that even if A. v. France does address the legal situation considered by the B G H , it does not create a legally binding obligation upon a non-party to the decision and that Germany, therefore, may not be obliged to comply w i t h such a decision. This article considers first, whether the decision in A. v. France and the norms developed through the ECHR's Article 8 jurisprudence w i t h regard to the protection of private telephone communications define obligations that are applicable in the German case. Second, it examines the BGH's analysis of the applicable German law to determine if the interference can be justified under Article 8. Third, it considers whether Germany has any obligation to consider decisions of the Strasbourg Court to which Germany is not a party or whether the system of human rights enforcement in Europe depends upon a State Party taking some account of such decisions to ensure the effective protection of human rights.

I. Does Article 8 of the European Convention on Human Rights Protect against an Interference in a Telephone Conversation that is Made with the Consent of One of the Participants? The Commission and Court have developed a significant body of jurisprudence and in several cases have specifically considered safeguards needed for the protection of telephone callers' privacy under Article 8. The cases indicate that telephone conversations are protected from interference and that for an interference to be justified under the exception in Article 8(2) there must be a law limiting the use of such an interference.

4 Under Article 25 E C H R individuals may lodge a complaint w i t h the Commission alleging a violation by a State Party that has accepted this jurisdiction. Article 26 sets out two conditions that must be satisfied before complaints are declared admissible: all domestic remedies must have been exhausted and the complaint must be lodged within six months from the date of the final decision. A complaint may then be referred to the Court by the Commission if the State Party involved has accepted the Court's jurisdiction. For a detailed explanation of the procedure see generally Pieter van Dijk/Godftried J. H. van Hoof\ Theory and Practice of the European Convention on Human Rights, 2nd ed., 1990, 61 et seq. The Eleventh Protocol to the E C H R , which was signed by 31 of the 32 Member States of the Council of Europe but has not yet entered into force, would merge the Commission and Court and create one permanent European Court of Human Rights. For a commentary see Henry G. Scbermers , The Eleventh Protocol to the European Convention on Human Rights, European Law Review, 1994, 367.

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1. Does the Scope of Article 8(1) Include All Telephone Conversations ? The jurisprudence related to Article 8 leaves little doubt that telephone conversations come within its protection of privacy. Beginning w i t h its first decision on the issue in 1977, the Case of Klass and Others , which challenged German legislation permitting the surveillance and monitoring of communications, the Commission and Court have held consistently that the privacy of telephone conversations is safeguarded by Article 8(1).5 Article 8(1) states, "Everyone has the right to respect for his private and family life, his home and his correspondence." 6 Although the language does not expressly mention telephone conversations, the Court in Klass held that both the notions of 'private life' and 'correspondence' include such conversations. 7 Subsequent decisions have reaffirmed the Klass decision. 8 The States Parties in each of these previous cases - Germany, Great Britain, and France - accepted the applicability of Article 8 to telephone conversations without dispute. 9 This understanding could be taken as an accepted interpretation of the scope of Article 8. 1 0 The application of Article 8 to private telephone conversations seems even less open to question since France's attempt to challenge this interpretation in A. v. France was clearly rejected by the Commission and Court. 1 1 The case concerned 5

Case of Klass and Others , EurCourtHR, Judgment of 6 September 1978, Ser. A, N o . 28. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U N T S 222, entered into force 3 September 1953. 7 Klass Judgment (note 5), 21. The Commission observed that respect for private life or correspondence in a broader sense protected against wiretapping. Case of Klass , Commission Opinion, in: Pleadings, Oral Arguments and Documents, vol. 26,1977-78,1982, 37. 6

8 I n the 1983 Malone case the system for the surveillance of communications in England and Wales was challenged. Both Court and Commission noted that the applicability of Article 8 to telephone conversations had been established by Klass. Malone Case, EurCourtHR, Judgment of 2 August 1984, Ser. A , No. 82, 30; Malone Case, Commission Opinion, 17 December 1982, id ., 52. In 1990 two cases involving French magistrates' power to order wiretapping of telephone communications were again held as coming within Article 8. Kruslin Case, EurCourtHR, Judgment of 24 April 1990, Ser. A., N o . 176, 20; Huvig Case, EurCourtHR, Judgment of 24 April 1990, id., 52. 9 Germany's acceptance was noted in the Klass judgment (note 5), 21; England's in the Malone judgment (note 8), 52; and France's in the Kruslin judgment (note 8), 20 and in the Huvig judgment (note 8), 52. Great Britain explained that its endorsement was based upon "the authority of the Court's judgment in the Klass case." Malone Case, Pleadings, Oral Arguments and Documents, vol. 67, 1988, 36. 10 Under Article 31(3)(a) of the Vienna Convention on the Law of Treaties any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation may be taken into account in interpreting the treaty. U N Doc. A / C O N F . 39/27, 1969; reprinted in: 8 I L M 679. A practice not entered into by all parties may nonetheless indicate an agreed interpretation when no party has objected to such a known practice. See Lord McNair, The Law of Treaties, 1961, 429 - 430.

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a woman, A., who claimed that her right to privacy under Article 8 was violated when an acquaintance recorded a telephone conversation of theirs without her consent. The acquaintance had alleged to police that A. was planning a murder. He telephoned A. and encouraged her to speak about the plans. Unknown to A. the acquaintance made the call from a police station and recorded it so that he could provide the police w i t h proof of his allegations. 12 Neither the acquaintance nor the police superintendent had authorization to record the telephone conversation. 13 France contended that because the telephone conversation concerned only the preparations for a criminal activity, it could not be regarded as concerning her private life. France did not deny that telephone conversations are in principle within the terms 'private life' and 'correspondence' but claimed that as this conversation did not relate to private life it was not protected by Article 8. 1 4 Both the Commission and Court rejected France's contention that only telephone conversations that may be deemed private are protected by Article 8. 1 5 I n the Commission, the majority and dissenting opinions were in agreement on this point. The majority decision leaves little question that all telephone conversations regardless of their content are protected, noting that they are " i n principle confidential in every State governed by the rule of law." 1 6 The Court, possibly seeking to avoid any discussion that could be seen as attempting to interpret French laws on privacy, did not discuss whether the telephone conversation was private or must be private in content to fall within the protection for 'private life'. Rather, it 11

A. v. France Judgment (note 3), 49; Commission's Opinion (note 3), 54. The acquaintance had a long police record and the superintendent thought that he may be especially interested in helping the police so that a non-residence order against him would be reviewed sympathetically. See Case of A. v. France , Government's Memorial, 11 June 1993,1. 12

13 French law gives examining magistrates authority to wiretap (including intercept, record and transcribe) private conversations for law enforcement purposes. Under the 1991 Wiretapping Act this practice, which had been followed for several years without specific authorization, was finally set down in law. For a detailed analysis of the development of this authority see generally Edward A. Tomlinson , The Saga of Wiretapping in France: What I t Tells Us about the French Criminal Justice System, Louisiana Law Review, 1993, 1091, and especially 1141. 14 Commission's Opinion (note 3), 53. The government's argument may be based upon an understanding of privacy introduced into French law by the French Privacy Act of 1970. Under the French Privacy Act a statutory right of privacy was created, introducing two new provisions into French law. One provision added a new Article 9 to the Civil Code and proclaimed generally everyone's right to respect for his or her private life. The second provision added a new Article 368 to the Penal Code, protecting private conversations by making the listening, recording or transmitting of "words pronounced in a private place" without the consent of the person a criminal offense, if "done w i t h the intent to infringe on the intimacy of another's private life." Under this provision, intimacy was understood as intrusion into sexual life or personal finances. See Tomlinson (note 13), 1113. 15 16

A.v. France Judgment (note 3), 49; Commission's Opinion (note 3), 54 - 55. Commission's Opinion (note 3), 54 - 55.

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h e l d that telephone conversations clearly come w i t h i n A r t i c l e 8 o n another basis. A s the interference " u n d o u b t e d l y concerned" respect for correspondence, i t came w i t h i n A r t i c l e 8's p r o t e c t i o n o f correspondence and the C o u r t observed that under these circumstances i t was n o t necessary t o consider w h e t h e r i t also affected A. 's 'private l i f e ' . 1 7 France offered a second argument as t o w h y A r t i c l e 8 d i d n o t apply, m a i n t a i n i n g that because the tape was made w i t h the consent o f one o f the participants the recording c o u l d n o t be seen as an invasion o f p r i v a c y . 1 8 T h e government questioned h o w the recording c o u l d be an interference i n A ' s private life " g i v e n that M r . G., w i t h w h o m she had the conversation, was entitled t o recount i t t o anyone he wanted, p o l i c e m a n o r o t h e r w i s e . " 1 9 N e i t h e r the C o u r t n o r the C o m mission agreed that the consent o f one p a r t y brings the conversation outside the scope o f A r t i c l e 8 . 2 0 T h e C o u r t d i d n o t elaborate i n its o p i n i o n , b u t a m a j o r i t y o f the C o m m i s s i o n t h o u g h t that the argument confused the question of w h a t is w i t h i n the scope o f A r t i c l e 8(1) w i t h w h a t m a y be a basis f o r j u s t i f i c a t i o n u n d e r A r t i c l e 8 ( 2 ) . 2 1 T h e C o m m i s s i o n was o f the o p i n i o n that i t is irrelevant i f one o f t w o participants agreed o r cooperated i n the interception; i f A r t i c l e 8 protects the p r i v a c y o f telephone conversations, then recording a conversation w i t h o u t the k n o w l e d g e o f one o f the participants is an interference w i t h the other's p r i vate l i f e . 2 2 17

A. v. France Judgment (note 3), 49 (citing the Kruslin Case). Kruslin concerned a similar recording of a telephone conversation about criminal activities by French authorities in which the Court found that the recording did interfere w i t h the right to private life and correspondence. Kruslin judgment (note 8), 20. 18 Commission's Opinion (note 3), 53 - 54. I t tried to distinguish all the previous cases by pointing out that every one involved tapping an individual's telephone and thereby an interference in all calls over a given period, whereas A. v. France involved only one call in which the consent of a participant was given. See Government's Memorial (note 12), 8. 19 Id. , 8 - 9. 20 A. v. France Judgment (note 3), 49; Commission's Opinion (note 3), 54. I n the lone dissenting opinion to the Commission's decision, Schermers agreed with France. He compared the participant in a conversation with the recipient of a letter who he argued could hand over correspondence to the police without violating the private life of the sender. Id ., 57. 2 1 The Commission's Delegate in the hearing before the Court pointed to this basic difference: "The thesis of the respondent Government rests on a serious and far-reaching confusion between the absence of interference w i t h private life and a justified interference for the reasons listed in paragraph 2 of Article 8." Verbatim Record of the hearing in the Case of A. v. France , 21 June 1993, 9. Had France succeeded w i t h its argument, it would have significantly reduced its burden in the case, because once the incident was considered within Article 8 France had not only to supply a justification for the restriction but also show that there was a law prescribing such a restriction. See notes 64 - 66 and accompanying text. 22 Commission's Opinion (note 3), 54. It is interesting to note that the French Court of Cassation in a 1989 decision also considered this question and came to the same conclusion as the Commission. I n that case the Court was asked to determine whether the indictment division of the Court of Appeals had erred by including a report of a telephone conversation

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2. The Application of Article 8(1) to the BGH Case Following from the above discussion, the 1993 B G H case appears to address a telephone conversation that comes within the protection of Article 8(1). The relevant facts in the case are similar to those in A. v. France . A suspected criminal's telephone conversation w i t h an acquaintance was overheard by police officials w i t h the consent of the acquaintance. The suspect had allegedly attempted to extract a payoff from an acquaintance and the police solicited the help of his exgirlfriend to telephone him and obtain proof of the crime. She agreed and permitted a police official to listen in on an extension phone and take notes. 23 The police official who overheard the conversation testified as to what the suspect had said and officials obtained a conviction. The conclusion that Article 8 does protect such a conversation from a police official's overhearing, even when a participant has consented to it, seems to follow not only from the A. v. France judgment but from the well-established view in other E C H R cases which indicates that telephone conversations are per se protected. The understanding that Article 8(1) is to be interpreted broadly was reinforced by A. v. France in which the Court rejected France's argument that the consent of a participant or the criminal nature of the conversation brings a conversation outside Article 8 protection. I n following this approach, the Court did not dismiss the possible relevance of such factors but rather employed an approach that ensured the strongest protection of privacy. A State may still use such factors to help justify an interference w i t h privacy under Article 8(2). However, to fully justify an interference the State must comply w i t h the other requirements of Article 8(2) and act only in accordance w i t h well-established law. 2 4 I n contrast to the Strasbourg Court's approach to Article 8, the B G H decision very narrowly defines the scope of German constitutional protection for the privacy of telephone conversations under both Article 10 and Articles 2(1) and 1(1) of the German Basic Law, and this appears to be the basis for its contrary conclusion. While the Court in applying German constitutional principles may not be expected to approach the problem as the Strasbourg Court might, there is a strong similarity between the fundamental protection of privacy at the heart of against an accused man, Barbeau. The report was of a taped telephone conversation w i t h Barbeau that had been made by the police w i t h the consent of one of the participants to the conversation. The Advocate General argued that the police recording violated Barbeau's rights under the Convention and that the consent of one participant was irrelevant. The Court found that the report was in violation of Barbeau 9s rights under Article 8 of the Convention and excluded the evidence. Judgment of 24 November 1989, Cass. ass. plen., 1990 J.CRJur. No. 21418. 23 Although in the B G H case no tape recording was made of the conversation as in A. v. France , for purposes of the applicability of the Convention, this does not appear to be relevant as 8(1) protects telephone conversations from any interference. See discussion below. 24

See Part I I section 2.

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both systems. The BGH's opinion does not offer a rationale that might justify its conclusion, suggesting that it would have difficulty justifying its position should the issue be brought to the Strasbourg Court. The protection of post and telephone communications in Article 10 of the German Basic Law reads very much like Article 8: Article 10(1) provides that the "privacy of posts and telecommunications shall be inviolable." 2 5 According to Article 10 (2) the right "may be restricted only pursuant to a law. . . . " 2 6 I n compliance w i t h Article 10 specific provisions have been incorporated into the German Criminal Procedure Code making the surveillance and recording of telephone communications permissible in certain cases w i t h court approval. 27 The police officials in the B G H case who overheard the telephone conversation did not have court authorization. They maintained that because they had the consent of one of the participants it was not required, and the B G H agreed. 28 The Court noted that court authorization is only required if the surveillance infringes upon a constitutionally protected area, but the telephone conversation was not within this area. The Court observed that it is well established in German law that A r t i cle 10 does not protect individuals from interference in telephone communications by non-State actors. 29 It found that in the case before it, because one party to the conversation had consented to the police official's overhearing, the telephone conversation did not come within Article 10. 30 The Court reasoned that if a party can consent to another person listening in without interfering in a constitutionally protected area, it does not make any difference whether the third person is a private person or a police official. 31 The BGH's conclusion that the consent of a participant brings a telephone conversation outside of the protection of privacy challenges the Commission's 25 For an English translation of the Basic Law w i t h commentary, see Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 1989, 507. 26 For comparison see Article 8(2) at Part II. 27 The German criminal procedure code (Strafprozeßordnung- StPO) sets out the prerequisites for the surveillance of Fernmeldeverkehr in StPO § 100a, and § 100b. The surveillance of telephone conversations is permitted when there is suspicion of certain serious criminal offenses. Under § 100b surveillance may only be conducted w i t h court approval. 28 The B G H cited several previous court decisions ruling that these provisions did not apply when the authorities had the approval of one of the participants. There were also several cases that did not agree with this interpretation. B G H decision (note 1), 597. 29 Citing Entscheidungen des Bundesverfassungsgerichts (BVerfGE), vol. 85, 386; reprinted in: NJW, 1992, 1875. See also Maunz-Dürig , Grundgesetz Kommentar, vol. I, 1994, Article 10, Rdnrs. 20, 27. Maunz-Dürig notes that it is a moot point that Article 10 does not provide a basis for a claim between private parties but observes that this has little practical significance because of the potential for civil claims under § 823 Bürgerliches Gesetzbuch (BGB). 30 B G H decision (note 1), 597.

31 Id.

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findings in A. v. France 32 and is inconsistent w i t h both the Commission's and Court's conclusion that such a telephone conversation does come within the protection of Article 8(1). 33 The legal effect of the BGH's conclusion is that even if a law permitting an interference w i t h a telephone conversation under these conditions may not be needed to comply w i t h German constitutional law, it would be required under the E C H R . I n the absence of such a law Germany could be found in violation of its treaty obligations. 34 The BGH's reasoning does not offer a persuasive basis to support a conclusion opposite to that of the Strasbourg Court. First, the BGH's finding that the police officer's overhearing could not be seen as State interference in a constitutionally protected area is directly at odds w i t h that of the Strasbourg Court in A. v. France . I n that case France made a similar argument w i t h respect to Article 8, claiming it was not applicable because there was no interference by a public authority. It claimed that as the telephone call was initiated by an acquaintance of A. and recorded by the acquaintance, not the police official, there was no prohibited interference according to Article 8(2). Article 8(2) states, "There shall be no interference by a public authority w i t h the exercise of this right . . . " (emphasis added). Neither the Court nor the majority of the Commission accepted this argument. 35 Second, the B G H , in considering the issue of State involvement, did not explain why a police official's overhearing should not be considered a State infringement. I n considering the constitution's protection of the private sphere un-

32

See note 21 and accompanying text. While the German Courts may not be legally obliged to reach the same conclusion as the Strasbourg Court in an analysis of German constitutional provisions, the value of such decisions in interpreting constitutional provisions has been recognized by the Supreme Constitutional Court (.Bundesverfassungsgericht ). BVerfGE, vol. 74, 1987, 358, 370. See Jochen Ahr ah am Frowein , The E C H R as the Public Order of Europe, in: Collected Courses of the Academy of European Law, 1990, vol. I, book 2,267,295; see also Jochen Ahraham Frowein , Das Bundesverfassungsgericht und die Europäische Menschenrechtskonvention, in: Walther Fürst/ Roman Herzog/Dieter C. Umhach (eds.), Festschrift für Wolf gang Zeidler , 1987, 1763. 33

34

See Part I I section 1. The Court thought that the facts indicated the significant involvement of the police superintendent. He provided his office, his telephone and his tape recorder. Also his actions could be seen as the performance of his duties as a high-ranking police officer. A. v. France Judgment (note 3), 13. A majority of the Commission found that the actions of the private individual were imputable to a public authority because of the police superintendent's knowledge and assistance in making the recording at police headquarters. Commission's Opinion (note 3), 9. 35

36

Articles 2(1) and 1(1) have been understood to protect the privacy of the personal sphere including the confidentiality of private conversations. Accordingly § 201 of the German Criminal Code (Strafgesetzbuch- StGB) prohibits taping or eavesdropping w i t h certain

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der Articles 2(1) and 1(1) of the Basic L a w 3 6 the B G H focused on the use of an extension phone rather than police involvement. It found that telephone callers could no longer be deemed to have an expectation of complete privacy in their conversations as the existence and use of extension phones was widespread and the possibility of eavesdroppers well k n o w n . 3 7 It reasoned that because the possibility of overhearing by a third party could be expected, there could be no violation of the right to privacy, even if the third person is a police official. 38 As in its analysis of the protected sphere under Article 10, it did not cite any cases for this analogy or explain why a police officer should be seen as a private person when dealing w i t h a question of constitutional protection. 3 9 Given the Basic Law's concern for State acts that infringe upon individual rights, and the fact that the Constitutional Court in a different case concerning interference w i t h a telephone conversation very carefully analyzed the question of State action, 40 the BGH's explanation does not seem adequate. The facts in the B G H case suggest that there would be a sufficient basis for the Strasbourg Court or Commission to find there was involvement by a public authority. Police officials helped plan the interference, hoping to obtain evidence as in the A. v. France case, and actively took part in the interference, listening and taking notes. The Strasbourg Court's decision on this issue, however, appears to be based upon a finding of fact and so it cannot be assumed that the Court would reach the same conclusion in another case. It could be argued that the fact situation in the B G H case could provide a basis for finding less police involvement. 41 listening devices on a private conversation. A n extension phone, however, is not considered to be a prohibited listening device. B G H decision (note 1), 598 (citing several decisions that found that approved extension phones from the telephone company do not fall within this category). The Court cited three other examples when overhearing may violate the constitutional protection of the private sphere: when the participant who permitted the third- person to overhear acted with deception, when the conversation had a confidential character or when it was explicitly said that the conversation was confidential. None of these conditions were found to be satisfied in this case. The conversation could not be seen to have a confidential character as it concerned blackmail and from the perspective of the caller had a 'business' rather than personal nature. B G H decision (note 1), 599. 37 B G H decision (note 1), 598 (citing B G H , NJW, 1982,1397). 38 B G H decision (note 1), 598. 39 B G H decision (note 1), 597. 40 The 1992 decision of the Constitutional Court concerned a case in which a woman who had received many annoying phone calls consented to having a metering device attached to her phone by the telephone company in order to determine the origin of the calls. The Court found that the State-owned telephone company's involvement constituted a State act and infringed upon the caller's Article 10 rights. BVerfG, decision of 25 March 1992, 1 BvR 1430/88, reprinted in part in: NJW, 1992, 1875. See Wolfgang Schatzschneider , Telefondatenverarbeitung und Fernmeldegeheimnis, NJW, 1993, 2029. The B G H distinguished that case from its case not by discussing how the concerns about State interference in private telephone conversations raised in the BVerfG decision were not raised in its case but on other grounds. B G H decision (note 1), 598. See Lisken (note 2), 2069.

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The jurisprudence of the E C H R suggests, however, that the responsibility of the State for an interference in the private sphere may be found to exist even if a public authority is not found to be directly responsible. 42 Decisions of the Commission and Court over the last decade indicate that private or individual acts are increasingly being seen as coming within the scope of the Convention on two grounds as w i l l be discussed below. First, certain private actions may be attributable to State or official actors even if they have been performed by private persons. Second, the Commission and Court seem increasingly willing to hold that the State is ultimately the one who must protect against offenses by private persons, and if the law fails to protect individuals from other private actors then the State must be liable for the violation. The Strasbourg Court and Commission in previous cases in which there was a question of whether a State incurred responsibility under the Convention have considered non-State actors to be State actors. For example, court-appointed lawyers are deemed to be performing an official State function 4 3 The Commission also has found that a church exercising powers delegated to it by the State could be a State actor. 44 The decisions indicate the significance of the nature of the act rather than of the actor in determining whether there has been a violation. Such an approach ensures that the purpose of the Convention, the protection of the underlying right, is fulfilled and that governments do not seek to avoid responsibility by claiming an absence of State action. As more governments privatize State operations, especially telephone companies, this approach w i l l be even more necessary. 45

41 The dissenting opinion in the Commission written by Schermers suggested that a higher threshold for involvement of a public official should be set before finding 'interference' leaving open the possibility that this may be considered in a future case. Id., 11. 42 O n this topic, see generally Evert Albert Alkema , The Third-Party Applicability or Drittwirkung of the European Convention on Human Rights, in: Franz Matscher/ Herbert Petzold , Protecting Human Rights: The European Dimension, Studies in Honor of Gerard J. Wiarda , 1988, 31; also see Andrew Clapham , Human Rights in the Private Sphere, 1993. 43

Artico Case, EurCourtHR, Judgment of 13 May 1980, Ser. A , vol. 37; Van Der Mussele Case, EurCourtHR, Judgment of 23 November 1983, Ser. A., vol. 70. 44 Alkema (note 42), 40. 45 Germany has recently completed the privatization of the State telephone company. Given that the 1992 decision of the Constitutional Court regarding the constitutionality of telephone metering turned upon the fact that the telephone company is a State enterprise, some change w i l l be necessary in the Court's approach if it wishes to continue to protect individuals from such interferences. See discussion of the 1992 decision (note 40). For a discussion of the constitutional issues raised by the privatization see Michael Rottman , Zu den verfassungsrechtlichen Aspekten der Postreform II, Archiv für Post und Telekommunikation, 1994, 93. Rottman observes that as the telephone company can no longer be considered part of the State, the protection of privacy guaranteed in Article 10 of the Basic Law must be ensured through changes in the civil and criminal laws. Id., 196.

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T h e practice o f the I n t e r - A m e r i c a n System for the p r o t e c t i o n o f h u m a n rights recognizes such an approach and some State practice supports the considering o f certain private acts as State acts f o r purposes o f p r o t e c t i n g fundamental rights. I n the I n t e r - A m e r i c a n System, the p r i n c i p a l instruments and various decisions o f the I n t e r - A m e r i c a n C o u r t o n H u m a n Rights c o n f i r m that certain h u m a n rights are meant t o a p p l y t o acts c o m m i t t e d b y non-State a c t o r s . 4 6 I n the U n i t e d States and i n France, w h e n non-State actors carry o u t police functions such as searches and interrogations t h e y are treated as acting i n an official capacity f o r purposes o f evaluating w h e t h e r o r n o t their actions have i n f r i n g e d u p o n a c o n s t i t u t i o n a l l y protected area. 4 7 E v e n w h e n a non-State interference is i n v o l v e d that m a y n o t be characterized as a State action, legal scholars have maintained that a State m a y still be under an o b l i g a t i o n t o safeguard i n d i v i d u a l rights l i k e those i n A r t i c l e 8(1) o f the E C H R . Jan de Meyer, since 1986 a judge w i t h the Strasbourg C o u r t , i n a 1973 article anal y z e d the arguments f o r f i n d i n g A r t i c l e 8 applicable i n relations between i n d i v i duals and concluded that the s i m i l a r i t y between State c o n s t i t u t i o n a l practice and 46

The Inter-American Convention to Prevent and Punish Torture in Article 3(b) applies convention provisions to non-State actors acting at the prompting of a public servant. Organization of American States (OAS) Treaties Series, no. 67, signed 9 December 1985. The practice of disappearances and extrajudicial executions in some OAS States by groups suspected but not easily proven to be linked to the governments has prompted the Inter-American Court to hold States accountable for certain violations. In the Velasquez Rodriguez v. Honduras judgment the Court found that because the government had failed to actively investigate the disappearance, the agents who carried it out "acted under cover of public authority," and accordingly the State was responsible for their acts. Reprinted in: 28 I L M 323 - 328. For a discussion of the developments in the Inter- American system see Clapham (note 42), 118- 122. 47

In French law, for example when a private individual is used to initiate a conversation to extract incriminating evidence from an accused person, who is entitled to counsel during an interrogation, the conversation is seen as a surreptitious interrogation and prohibited. French law holds that when the police obtain a confession by such a ruse or artifice they violate the general principle of fairness and of the rights of the defense. See Tomlinson (note 13), 1112 w i t h further references. For a discussion of recent decisions applying these limitations in the context of telephone tapping, see Kruslin judgment (note 8), 16. I n the United States there is a well-developed practice applied to an evaluation of the seizure of evidence by State officials in light of the Fourth Amendment's protection against encroachment from the State on the privacy of an individual's home and correspondence. While the Fourth Amendment prohibits most searches and seizures made by State officials without a warrant, it distinguishes between evidence seized illegally by private persons from that seized by State officials. Whereas the evidence obtained illegally by State officials is excluded, 'private searches' have been held to be beyond the scope of the Fourth Amendment. Courts have held, however, that if a search has been ordered or requested by a government official, it may not be considered 'private' - even if a private individual carries it out. For a thorough discussion of this point and more generally the scope of State involvement required before the Fourth Amendment becomes applicable, see Eric Bentley, Jr. Toward an International Fourth Amendment, Rethinking Searches and Seizures Abroad after VerdugoUrquidez , Vanderbilt Journal of Transnational Law, 1994, 329, 373 - 74.

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E C H R jurisprudence supported the inclusion of third-party acts. 48 While acknowledging that fundamental rights guarantees are primarily intended to protect the individual against the State, de Meyer contends that, even at that time, it was increasingly accepted that "by reasons of their very nature, they must have more validity and . . . must also be recognized in relation to other persons . . . which might prevent the exercise thereof." 49 De Meyer supported his contention by pointing to many States who protect fundamental rights against violation or interference by private individuals if not by a constitutional guarantee then by penalties or civil sanctions. 50 The decisions of the Strasbourg Court and Commission have increasingly affirmed this view that States are obliged to protect against the acts of private individuals that infringe upon certain fundamental rights. It is significant to note that the E C H R Commission, which is authorized by the Convention to permit petitions against States Parties but not private individuals, 51 has found several cases concerning Article 8 admissible even though the underlying violation concerned an act between private individuals. 52 I n the first of several opinions on this question, the Court found in the Marckx case that States do have an obligation to protect against interferences other than those resulting directly from State action. 53

48

Jan de Meyer , The Right to Respect for Private and Family Life, Home and Communications in Relations between Individuals, and the Resulting Obligations for States Parties to the Convention, in: A. H. Robertson , Privacy and Human Rights, 1973, 255. De Meyer contended that the E C H R had the character of an instrument of federal constitutional law and that accordingly in interpreting the Convention ideas derived from State constitutions should not be dismissed. Id ., 258 - 259. There is evidence that even in the early days of the Convention there was significant support for this contention. See Alkema (note 42), 36. Professor Partsch in a comment on de Meyer's article agreed that the Convention should be interpreted in a similar manner to a State constitution but disagreed with de Meyer's conclusion that the Convention also protects against acts from private individuals. Id . 278. Developments in State practice since this time suggest that more States are extending fundamental human rights protection to acts by private individuals. See Andrew Z Drzemczewski , European Human Rights Convention in Domestic Law: A Comparative Study, 1983,199 et seq. (especially 200 - 201, fns 4 - 7 and accompanying text). 49

De Meyer (note 48), 271. See also Alkema (note 42), 34. so De Meyer (note 48), 273. 51

Article 25 recognizes the right of petition by any person, nongovernmental organization or group of individuals claiming to be the victim of a violation of one of the rights set forth in the Convention by one of the high contracting parties. 52 De Meyer (note 48), 267. 53 The applicant in the Marckx case was an unmarried mother who under Belgian law was obligated to take special court proceedings not required of married women before the law would recognize the mother-daughter relationship. Even after recognition such children are still disadvantaged when compared w i t h 'legitimate' children. They are not legally considered part of their mother's family for inheritance purposes and upon the mother's death their share in the estate is not equal to that of a 'legitimate' child. Marckx Case, EurCourtHR, Judgment of 13 June 1979, Ser. A., vol. 3 1 , 8 - 1 0 .

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Using words from its 1968 decision in the Belgian Linguistic case, the Court noted that the object of Article 8 is "essentially" that of protecting the individual against arbitrary interference by public authorities. 54 It took this to mean that Article 8 imposes not only a "negative undertaking" for the State not to interfere but also a positive obligation for the State to effectively guarantee respect for family life. 5 5 I n its 1985 decision, Case of X & Yv. The Netherlands, 56 the Court indicated even more clearly that the State is obliged to safeguard the rights in Article 8 from interference by private individuals. Here, the Court considered the case of a mentally handicapped girl who had been raped by a caretaker and who because of Netherlands law was unable to lodge a criminal charge against the perpetrator. 57 While recognizing that the State had not caused the interference, the Court was unanimous in finding a violation and noted that a State's positive obligations under Article 8 may require "measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves." 58 The Court reinforced its judgment that States may be responsible for violations by private individuals, holding the State liable for damages to the young girl. 5 9 A recent in-depth analysis of the applicability of the Convention to third parties by Andrew Clapham suggests that the debate on the applicability of Article 8 54

Id., 15 (emphasis in original).

55

The Court in a 12-3 vote agreed w i t h the Commission and found that the Belgian Law violated Article 8, because the impediments in the system thwarted the normal development of the family and violated the right to respect for family life. The following year in the Airey case the Court reaffirmed its reading of Article 8 in Marckx , finding that Irish law violated Article 8 by failing to provide a woman w i t h an accessible procedure for legal separation from her husband. Airey Case EurCourtHR, Judgment of 9 October 1979, Ser. A., vol. 32, 17. The Court in a 4-3 decision said, citing Marckx, that Ireland was in breach of Article 8 not for an act that 'interfered' w i t h Airey's right to private and family life, but for failing to protect this right. Id. Under Irish law, Airey could obtain a legal separation only upon application to the High Court where the complexity of the process and legal representation made it unaffordable. 56 X & Yv. The Netherlands, EurCourtHR, Judgment of 26 March 1985, Ser. A., vol. 91. 57 Her father and she alleged that the State's failure to allow them to bring a criminal complaint violated the right to private life guaranteed by Article 8. Although the government contested the applicability of Article 8, both Commission and Court found it applicable. The Court found this beyond dispute. Id., 11. 58 Id., 11. Even though Netherlands's law provided a civil law remedy, the Court found that the fundamental values and essential aspects of private life at stake were adequately protected only when effective deterrence was in place and the Court reasoned that could only be achieved by criminal law. Id., 13. 59 The government had argued that the damages resulted from acts committed by the perpetrator and not the government's violation of the Convention. The Court held, however, that it was "hardly deniable that the Netherlands authorities have a degree of responsibility resulting from the deficiency in the legislation which gave rise to the violation of Article 8." Id., 16.

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to private individuals has been settled by the Court's decision in X and Y v. The Netherlands. 60 Clapham maintains that since then the question can no longer be whether the Convention rights apply in the private sphere 61 but rather which ones and to what extent. There seems to be little doubt left after the X and Y v. The Netherlands judgment that Article 8 is one of the provisions that applies to non-State actors. Although this case concerned in particular respect for private and family life, the protection of correspondence and telephone communications from infringement by private individuals protects this same right to privacy. Accordingly, it appears that failing to prevent a private person's interference in a telephone conversation would be a violation attributable to the State. Considering the significant development in the jurisprudence of the E C H R , its willingness to find the State responsible for the actions of non-State actors in the area of Article 8 and its willingness to treat non-State actors fulfilling certain State-like functions as State actors, it seems very probable that interference in a telephone conversation by a private individual particularly when it is prompted by State officials as in the B G H case, would be found to come within the scope of Article 8(1).

II. Is Overhearing a Conversation with Only the Consent of a Participant a Permissible Interference under Article 8(2)? Because the overhearing of a telephone conversation w i t h the consent of a participant appears to come within the scope of Article 8, if brought before the Strasbourg Court Germany would have to show that an interference like that in the B G H case complies w i t h the requirements of Article 8(2) to conform w i t h the Convention. Article 8(2) states: There shall be no interference by a public authority w i t h the exercise of this right except such as in accordance w i t h the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As discussed above, the reference to interferences by a public authority should not be understood as implying that interferences by private individuals are permissible. 62 Also, following the A. v. France decision, the fact that consent is given by a participant does not indicate that there is no 'interference'. 63

60 Clapham (note 42), 120. 61 He notes that the Court's reaffirmation and application of this case in a case concerning Article 11 's right to peaceful assembly is decisive. Id ., 90 (citing Case of Plattform 'Ärzte für Das Lehen\ EurCourtHR, Judgment of 21 June 1985, Ser. A., vol. 139,12). 62 I n the early debate on the application of Article 8 to interferences of private individuals, it was argued that the second paragraph made two different interpretations of the

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A r t i c l e 8(2) requires that t w o c o n d i t i o n s be satisfied t o j u s t i f y an interference: i t m u s t be i n accordance w i t h l a w and necessary i n a democratic society. T h e seco n d c o n d i t i o n has n o t created a real obstacle f o r States. 6 4 I f the first c o n d i t i o n is satisfied, the C o u r t has been w i l l i n g t o give great deference t o the State's determin a t i o n o f w h a t purposes j u s t i f y such an interference. 6 5 T h e first c o n d i t i o n , o n the other hand, has p r o v e d t o be n o t so easily satisfied. T h e jurisprudence o f the C o u r t suggests that a t w o - p a r t test has evolved f o r d e t e r m i n i n g i f an interference is i n accordance w i t h law. First, the interference m u s t have a legal basis i n domestic law. Second, the l a w m u s t be compatible w i t h the rule of l a w . 6 6

1. Is There a Legal Basis in Domestic

Law for the Interference?

T h e requirement that domestic l a w m u s t p r o v i d e a legal basis f o r the interference does n o t mean merely that there be n o p r o h i b i t i o n o n such an interference. T h e government i n A. v. France acknowledged this, conceding that i f the Strasb o u r g C o u r t f o u n d the t a p i n g an interference w i t h A r t i c l e 8(1), 8(2) was n o t sa-

provision possible. The first was that because of the reference to public authorities in 8(2), Article 8(1) could be intended only to protect against such authorities. The second interpretation was that the reference in the second paragraph confirmed the absolute nature of the rights protected in the first, allowing only the prescribed limitations and then only those by public authorities. For a detailed analysis of the arguments for and against finding Article 8 applicable to third parties, see de Meyer (note 48), 262 - 263. The recent decisions of the Court in the cases of Airey and X and Yv. The Netherlands suggest that Article 8 cannot be interpreted so as to protect only against State acts. Clapham (note 42), 214. 63

The jurisprudence of the Court suggests that an act or law infringing upon a right protected in Article 8(1) is ipso facto an interference. See Klass judgment (note 5), 21. See also Malone case, Commission's Opinion, (note 8), 52 and A. v. France , Verbatim Record of the Hearing (note 21), 10. 64 See generally Loukis G. Loucaides , Restrictions or Limitations on the Rights Guaranteed by the E C H R , Finnish Yearbook of International Law, 1993, 334, 347. 65 The Klass Court recognized the great discretion given to States in certain respects, and said it is not to substitute its assessment for that of national authorities when determining the conditions for a system of surveillance. However, this discretion has some limit and the Court must be satisfied in the specific case that there are adequate and effective guarantees against abuse. I n Klass the Court found they were adequate. Klass judgment (note 5), 23. See also Malone judgment (note 8), 37. I n another case where the State used an undercover agent and an authorized telephone tap to obtain evidence from a suspected drug dealer the Court found that because a law provided for the use of undercover agents in police operations, the dealer should have been on guard and the wiretap was not in violation of his Article 8 rights. Case of Lüdi , EurCourtHR, Judgment of 15 June 1992, Ser. A., vol. 238, 19. 66

What is to be understood by 'the rule of law' has been considered in many cases. One definition is "the principle that the individual's dealings w i t h the State and his fellow citizens should be regulated by a framework of legal rules, whose interpretation and application are in the hands of independent courts." John G. Merrills , The Development of International Law by the European Court of Human Rights, 1988,116.

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tisfied as no law existed permitting interference w i t h the consent of a participant. The government explained that as French law did not view taping a conversation w i t h the consent of a participant as an interference by the authorities, there was no need for a law authorizing such an act. 6 7 The Court disagreed, finding that the taping in A. v. France was not under the Convention 'in accordance w i t h law'. Even though French law did not prohibit such taping, in the absence of a law authorizing such a taping the interference was not in accordance w i t h law. 6 8 The Court made it clear in Malone that Article 8(2) does not mean merely that an interference conform w i t h domestic law but that it be prescribed by domestic law. 6 9 The telephone monitoring by German police officials when compared w i t h the requirements laid down by E C H R jurisprudence seems to fall short of the requirement of Article 8(2) that an interference be according to law. Under German law, as French law, police monitoring w i t h the consent of one participant is not considered an interference by authorities into the protected private sphere and therefore not an act that requires judicial approval. 70 But the Strasbourg Court's decision in A. v. France shows that the requirement 'in accordance w i t h law' does not mean only that the interference conform w i t h domestic law - but that domestic law provide a positive legal basis for such an interference. Previous cases of the Court that considered the meaning of 'in accordance w i t h law' indicate that the Court is willing to interpret this broadly and to not require a basis in statutory law. By 'law' the Court understands "the law in force in a given legal system." This has been interpreted as written law and case law. 7 1 I n

67

Government's Memorial (note 12), 11. A. v. France Judgment (note 3), 14. 69 The wiretapping that was at issue in Malone was carried out by English authorities according to an administrative practice and not established law. Commission's Opinion (note 8), 58. The Court found that because the practice did not provide a measure of legal protection against arbitrary interference, it lacked the quality of law and thus did not comply w i t h Article 8(2). Malone judgment (note 8), 32. 68

70 B G H decision (note 1), 597. The Court also denied that the overhearing violated any rights of the accused - to silence, due process, or other rights in interrogations including those enumerated in § 136 and § 136a StPO. The Court observed that while the methods of the police involved secrecy and covering up their participation, this alone would not violate the rights as is shown by the existence of laws permitting secret surveillance and the use of official informants. Only when the police use measures that are unfair or unapproved by law do they step over the border of permissible measures. The Court found no such measures employed in this case. Compare B G H decision of 22 March 1995, 5 StR 680/94 in which a police official's use of a third person to initiate a telephone conversation w i t h a suspect and use of the overheard conversation as evidence was found to be a violation of §§ 136 and 163 StPO. See Entscheidungen, Strafverteidiger, 1995, 283. 71 Malone judgment (note 8), 31 and Commission's Opinion (note 8), 54 - 55. Kruslin judgment (note 8), 21 w i t h further references.

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the C o u r t f o u n d that a practice defined and refined b y F r e n c h courts over

several years that gave investigating judges a u t h o r i t y t o order a w i r e t a p i n certain circumstances c o u l d p r o v i d e a sufficient legal basis even t h o u g h French l a w is based u p o n a c i v i l - l a w s y s t e m . 7 2 I t r u l e d that such settled case law, even i n a civ i l - l a w system c o u l d n o t be disregarded. 7 3 G e r m a n case l a w relating t o a police official's overhearing a private conversat i o n based u p o n the consent o f a participant, however, cannot be said t o a m o u n t t o a well-settled practice l i k e that accepted b y the C o u r t i n Kruslin.

The B G H

d i d n o t cite any case f o r its c o n c l u s i o n that the police official's acts were permissible n o r d i d i t p r o v i d e a rationale that together w i t h the other decisions i n this area w o u l d create a coherent set o f rules; as i t stands police officials d o n o t k n o w w h i c h practices they are a l l o w e d t o use and w h i c h are p r o h i b i t e d . 7 4 I n l i g h t o f the C o n s t i t u t i o n ' s purpose t o protect individuals f r o m violations b y State officials, i t seems p a r t i c u l a r l y i m p o r t a n t that each permissible interference be spelled o u t i n d e t a i l . 7 5 A l s o , i n the absence o f a well-established practice o r detailed law, 72 Neither the French Criminal Code nor the Code of Criminal Procedure explicitly granted such a power, but the French courts considered it inherent in the power given investigating magistrates ti) establish the facts within certain relatively well-established limits created through provisions and case law. For a detailed explanation of French magistrates' power in this area, see Tomlinson (note 13), 1103 et seq. 73 See Kruslin judgment (note 8), 21 - 22. 74 Lisken (note 2), 2069. 75 The United States offers an example of one such detailed law. I n 1968 the US Congress adopted a law laying down the requirements for a legal interference w i t h a telephone or wire communication. See 18 United States Code (U.S.C.) §§ 2510 - 2520. The act specifies that it is not prohibited for a person to intercept such a communication when one of the parties has given prior consent to the interception. 18 U.S.C. § 2511 (2)(c). The law also makes an exception for persons using an extension phone to overhear a call but only when such phone is supplied to and used by the subscriber " i n the ordinary course of its business." 18 U.S.C. § 2510 (5)(a). A t around the same time, the US Supreme Court was asked in the case of United States v. White to consider whether an interference based upon the consent of only one party to a conversation violated the protection of home and correspondence guaranteed by the Fourth Amendment to the Constitution. 401 U.S. 745 (1971). It found by the narrowest of margins that an interception based upon the consent of only one party did not violate the Fourth amendment. For a detailed analysis of the case and related cases as well as the 1968 law see Clifford S. Fishman, The Interception of Communications Without a Court Order: Title I I I , Consent, and the Expectation of Privacy, St. John's Law Review, 1976, 41. The Federal law sets down only the minimum requirement, permitting states to set higher standards, and since the passage of the federal law and the decision in White , states have differed greatly in their treatment of the issue. Several have prohibited all interferences except w i t h the consent of both parties to the conversation. These States include California, Florida, Georgia, Illinois, Montana, New Hampshire, Oregon, Pennsylvania and Washington. For a comprehensive survey of state law in this regard and reference to the relevant state provisions see Robert Ellis Smith , Compilation of State and Federal Privacy Laws, 1992 ed., 1992, 60 et seq. For a thorough discussion of the consent question and the constitutional and social implications, see Kent Greenawalt , The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation,

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a statutory p r o v i s i o n w o u l d be i m p o r t a n t t o assure that people's expectations o f p r i v a c y are realistic and i n fact as the C o u r t f o u n d t h e m t o be - expecting that a t h i r d p a r t y c o u l d be listening w i t h o u t their k n o w l e d g e . 7 6

2. Could the Interference

Be Seen as Compatible

with the Rule of Law ?

E v e n i f G e r m a n case l a w c o u l d be seen as a sufficient legal basis f o r p e r m i t t i n g interference o n the basis o f a t h i r d party's consent, the C o u r t also w o u l d have t o be satisfied that the case l a w p r o v i d e d the ' q u a l i t y o f l a w ' required b y A r t i c l e 8(2). A s the C o u r t showed i n Kruslin , this entails a l a w w i t h significant detail and safeguards against abuse w h i c h even the extensive and well-established F r e n c h case l a w o n w i r e t a p p i n g d i d n o t provide. T h e C o u r t ' s review o f the sufficiency o f domestic l a w i n previous cases indicates that States have some discretion i n dec i d i n g h o w the p e r m i t t e d interference w i l l be incorporated i n t o domestic law. T h i s discretion, often referred t o as the ' m a r g i n o f appreciation', h o w e v e r is n o t absolute, and domestic l a w m u s t still satisfy certain m i n i m u m c o n d i t i o n s . 7 7 I n Kruslin

the C o u r t emphasized that the seriousness o f the interference w i t h p r i -

vate life and correspondence and the increasing sophistication o f available techn o l o g y make i t essential that the interference be based u p o n a l a w that is p a r t i c u l a r l y precise and gives clear, detailed rules o n the s u b j e c t . 7 8 N e i t h e r a G e r m a n Columbia Law Review, 1968, 189. Greenawalt examines the reasons for permitting such interception and notes the particularly strong arguments against it when considering law enforcement techniques. See id., 215. 76 The Strasbourg Court has noted that a law must provide adequate notice to individuals in order to satisfy the requirement under Article 8(2) of being 'in accordance w i t h law'. The law "must be adequately accessible. . . . [and] formulated with sufficient precision to enable the citizen to regulate his conduct." Malone judgment (note 8), 32 (citing the Sunday Times , EurCourtHR, Judgment of 26 April 1979, Ser. A., No. 30, 31 and Silver and Others , EurCourtHR, Judgment of 25 March 1983, Ser. A., N o . 61, 33). The absence of clear laws defining the protection of private telephone conversations also may produce a negative or 'chilling' effect on private discussion and expression more generally. See Greenawalt (note 75), 217, who discusses the harmful social consequences for individuality and creativity if individuals have to fear that private conversations can be freely monitored. 77

O n the Strasbourg Court's approach to the 'margin of appreciation' see R. St. J. Mcdonald , The Margin of Appreciation, in: R. St. J. Mcdonald/ F. Matscher/ H. Petzold (eds.), The European System for the Protection of Human Rights, 1993, 83. I n Klass the Court observed that it was within Germany's discretion to develop a system for secret surveillance and to determine the conditions under which it would operate. However, it stressed that this did not give States unlimited discretion and that the Court must be satisfied that the system adopted provided adequate and effective guarantees against abuse. Judgment (note 5), 23. The Court in Malone noted that according to Sunday Times the relevant law must be accessible and foreseeable. I t recognized that w i t h regard to a law on secret surveillance foreseeability did not mean giving suspected criminals the opportunity to undermine police surveillance but giving citizens an adequate indication of the circumstances and conditions under which public authorities could be allowed to interfere with their private life and correspondence. Malone judgment (note 8), 32.

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code p r o v i s i o n n o r G e r m a n case l a w has set d o w n the l i m i t a t i o n s f o r an authority's use o f the consent o f t h i r d parties f o r interference w i t h private c o m m u n i c a tions.

I I I . W h a t Is the Legal Effect of Decisions by the E C H R O r g a n s i n G e r m a n Law?

W h i l e the E C H R ' s A r t i c l e 8 jurisprudence suggests that G e r m a n l a w does n o t c o m p l y w i t h the c o n d i t i o n s for j u s t i f y i n g an interference under A r t i c l e 8, these decisions d o n o t d i r e c t l y create a legal o b l i g a t i o n f o r Germany. N e i t h e r w i t h regard t o its obligations o n the international level, n o r o n the domestic level d o decisions o f the Strasbourg C o u r t t o w h i c h G e r m a n y is n o t a p a r t y create a legally b i n d i n g o b l i g a t i o n t o amend the n o n c o n f o r m i n g l a w . 7 9 O n the international level, G e r m a n y is obliged t o respect the provisions i n A r ticle 8 . 8 0 U n d e r A r t i c l e 53 o f the C o n v e n t i o n , however, G e r m a n y is b o u n d t o abide b y decisions o f the C o u r t o n l y i n cases t o w h i c h i t is a p a r t y . 8 1 A s neither 78 Kruslin Judgment (note 8), 23. Although French case law provided fourteen conditions that must be respected in the ordering and subsequent evidentiary use of a conversation subjected to a wiretap, the Court was concerned that all the safeguards were not clearly incorporated into law and that several essential safeguards were missing. I n particular the scope and manner of exercise of the discretion conferred on public authorities was not clear. Id ., 24. 79

See generally Georg Ress, The European Convention on Human Rights and State Parties: The Legal Effect of the Judgments of the European Court of Human Rights on the Internal Law and before Domestic Courts of the Contracting States, in: Irene Maier (ed.), Protection of Human Rights in Europe: Limits & Effects, 1982, 209 [hereinafter Ress Report]; Georg Ress, The Effects of Judgments and Decisions in Domestic Law in: Mcdonald/ Matscher/ Petzold (note 77), 801 [hereinafter Ress Article]; Jörg Polakiewicz , Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte, 1993 (with English summary). 80 Article 26, Vienna Convention on Treaties (note 10). Germany signed the European Convention on 4 November 1950 and the legislature approved it according to Article 59(2) of the Basic Law on 7 August 1952. I n accordance w i t h Articles 1 and 57 the State has an obligation to ensure the rights in the Convention through domestic legislation. See generally Helmut Steinberger , Written Communication on 'Reference to the Case-Law of the Organs of the European Convention on Human Rights Before National Courts', 732, also printed in Human Rights Law Journal (HRLJ), 1985, 402, 407 - 408; see also Rudolf Bernhardt , The Convention and Domestic Law, in: Mcdonald/ Matscher/ Petzold (note 77), 25. 81 With respect to a decision to which the State is a party, even where the Court finds a decision or measures in conflict with an obligation arising from the Convention, unless it relates to an award of damages under Article 50, it is declaratory in nature. Although the State is obliged to take appropriate measures to put an end to the violation, (and in the case where a decision declares that satisfaction shall be made, to make reparation,) the decision of the Court itself does not achieve this result. See J. Velu y Report on 'Responsibilities for

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A. v. France n o r the other decisions relating t o A r t i c l e 8 obligations t o protect against interference, especially those o f private persons, i n v o l v e d G e r m a n y there is n o A r t i c l e 53 o b l i g a t i o n f o r G e r m a n y t o c o n f o r m t o the decisions. W i t h respect t o the one A r t i c l e 8 case where G e r m a n y was a party, the Klass case, G e r m a n y had o n l y the o b l i g a t i o n t o p u t an end t o the v i o l a t i o n i n that particular case. 8 2 Legal scholars have suggested that a State's o b l i g a t i o n u n d e r A r t i c l e 53 does n o t go so far as t o require a State t o adopt n e w legislation t o remedy a v i o l a t i o n . 8 3 A State has considerable discretion i n deciding w h a t measures t o take t o p u t an end t o the v i o l a t i o n , and i t need n o t be t h r o u g h legislative changes. 8 4 T h u s , G e r m a ny's international obligations w o u l d n o t force the a d o p t i o n o f specific legislation defining w h a t interference w i t h telephone c o m m u n i c a t i o n s is permissible w i t h the consent o f one party. A similar c o n c l u s i o n m a y be d r a w n f r o m a consideration of Germany's obligations o n the national level. A s G e r m a n y has i n c o r p o r a t e d the C o n v e n t i o n i n t o domestic l a w and given i t the status o f federal l a w , 8 5 the decisions o f the StrasStates Parties to the European Convention', in: Proceedings of the Sixth International Colloquy About the European Convention on Human Rights, 1988, 532, 572; see also Steinberger (note 80), 742 - 743, (407 - 408); Ress Article (note 79), 802 - 803. With regard to other decisions of E C H R organs, including decisions of the Committee of Ministers under Article 32 para. 2 and decisions of the Commission under Articles 26 and 27, States have no obligation to consider such decisions as binding in domestic proceedings. Ress Report (note 79), 229. 82

Where the complaint arises from an individual, the obligation extends only to the application of the law w i t h respect to the applicant. If the complaint were to originate from a State Party, the Court's review could extend beyond the particular fact situation. I n such a case the Court may review the legislative standard or practice in abstracto and so decide that alone by adopting or maintaining such a law the State has committed a breach of the Convention and thereby impose a greater obligation on the State to amend the offending legislation. Velu (note 81), 574. S3 Velu (note 81), 572 - 574. Steinberger (note 80), 742 et seq. (407 et seq.). But see Ress, who says that if the Court finds that certain internal norms are incompatible w i t h the Convention the State is required "as a principle" to amend the law. Ress Report (note 79), 217. 84 Velu (note 81), 572. Velu maintains that a State has much greater discretion in deciding upon the means to address the violation when it arises out of an individual application than out of a State application. Id ., 576. Certain factors may limit a State's discretion and could obligate States specifically to adopt statutes or regulations. One such factor is a State's undertaking to make legislation compatible w i t h the Convention. Velu gave the example of the Lue dicke yBelkagem and Kog Case of 1978 where Germany undertook to table a Bill in the Bundestag to amend certain criminal procedures challenged by the applicants. Id ., 580 - 582. A state has less discretion if the decision involves an award of damages pursuant to Article 50. There to comply w i t h the decision a State has no option but to make the payment. See Ress Report (note 79), 216. 85

I n principle because the Convention only has the rank of a federal law, the lex posterior derogat legi priori rule applies to the Convention. In practice, however, this seems not to have much effect as the rules of interpretation of German statutes applied by the Courts indicate: first, wherever possible a statute should be interpreted in line with international obligations and second, the legislature is presumed not to have violated treaty obligations

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bourg Court to which Germany is a party must be considered as final under Article 52 and consequently have res iudicata force in German courts. 86 A decision of the Strasbourg Court as such, however, does not control the outcome of subsequent cases w i t h different fact situations as the res iudicata force applies only in the particular case and then only to the rationales decidendi as applied to the specific facts. 87 But while the decisions themselves may not create binding obligations, they are not without legal effect. O n several occasions Germany has enacted new legislation to avoid an adverse finding by the Strasbourg Court. 8 8 I n addition, German courts, especially the Constitutional Court, have in several instances referred to decisions of the E C H R Court and Commission in their opinions. 89 I n a widely cited 1987 decision by the German Constitutional Court it was held that the provisions of the Convention as well as the decisions of the Court were to be taken into consideration when interpreting the content of rights in the German constitution. 90 The decision does not bind German courts to follow the decisions of the Strasbourg Court, saying only that they were to be used as a help in interpretation; however, legal commentators have looked favorably upon the Court's recognition of the legal significance of E C H R jurisprudence. 91 States Parties to the Convention are increasingly recognizing the case law of the Strasbourg Court in domestic court decisions. 92 Georg Ress in his comprehensive study on the legal effect of the judgments of the European Court on the internal law of States Parties observes that this is a "clear-cut trend." He attriwhen enacting new legislation. See Jörg Polakiewicz/Valerie Jacob-Foltzer ; The European Human Rights Convention in Domestic Law: The Impact of Strasbourg Case-Law in States Where Direct Effect is Given to the Convention, HRLJ, 1991, 65, 79. 86 See Steinberger (note 80), 744, (408). 87 With respect to domestic proceedings in the same case, it has been found that a decision of the Strasbourg Court is not sufficient to reopen penal proceedings which are res iudicata. The German Constitutional Court noted the declaratory nature of judgments and the right this gives States to determine how they w i l l comply w i t h its obligation. See Polakiewicz/ Jacob- Foltzer (note 85), 79 fns 15 - 16. 88 See id.; Ress Report (note 79), 256 - 258. 89 For a discussion of the relevant decisions of the Federal Constitutional Court, the Federal Supreme Courts for Administrative, Criminal and Civil Cases before 1985 see Steinberger (note 80), 748 et seq., (409 et seq.). Steinberger noted as of 1985 he had not found a single decision opposing a decision of the European Court or Commission. Id. For a comprehensive discussion of cases prior to 1980 see Ress Report (note 79), 256 et seq. See also Ress Article (note 79), 831 - 836. 90 See Polakiewicz/Jacob-Foltzer (note 85), 80. 91 See Frowein , E C H R as Public Order (note 33), 295; Tietje (note 2), 1080. 92 A 1991 survey of the legislation and court decisions of States Parties showed there was widespread acceptance and reference to the case law in those States Parties that had incorporated the Convention in domestic law. See Polakiewicz/Jacob-Foltzer (note 85), 65. See also Ress Article (note 79), 808 et seq.

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butes it to a more practical rather than legal consideration: national courts increasingly follow E C H R jurisprudence not because of a sense of the decisions as binding precedent or because of a notion of stare decisis but "to preempt any future findings by the Court . . . on an offence against the Convention by the State." 93 The possibility for an applicant to bring a case against Germany and the likely finding that Germany is in violation should be a strong incentive for courts to consider decisions from other States Parties. The domestic court judge has the ability to interpret a provision of domestic law in accordance w i t h E C H R jurisprudence and in failing to do so he exposes the State to the burden of a negative judgment as well as additional legal costs. The legislature has a similar incentive to initiate new legislation. By beginning work on a law that would specify the duties of State officials and others when intercepting private telephone conversations w i t h the aid of a third party, it could preempt future adjudication in both domestic and international fora. The recognition of E C H R jurisprudence, even cases that are not strictly binding, should be seen as an obligation to help promote the enforcement of the human rights guaranteed in the E C H R . The enforcement mechanism created by the Convention is based upon the assumption that States w i l l remedy violations through internal legal procedures 94 and not only when an unfavorable decision had been issued by the Court. When States fail to take such initiative, individuals may have to wait several years before their violation is addressed, as the Convention procedures require that domestic remedies be exhausted before an application can be admitted. This in itself could take several years. The Commission and Court's very limited resources can make the wait for a final decision much longer. 95 If each State waited for a decision by the Strasbourg Court before remedying an apparent violation the individual's injury would only be exacerbated. As Ress notes, States have an obligation "to adopt a friendly attitude towards the Convention." 9 6 A n overly technical approach to the ECHR's enforcement mechanism would frustrate fulfilment of this obligation and the purpose of the enforcement mechanism which is to secure individual rights. The procedure before the Commission and Court should be seen as an exception - to be used in those instances when State processes fail - rather than as something required before change is initiated. 93 Ress Report (note 79), 239; Ress Article (note 79), 810 - 811. 94 See also Colin Warbick , Rights, the European Convention on Human Rights and English Law, European Law Review, 1994, 34. Warbick asserts this position and in an examination of recent English court decisions argues that accordingly English courts need to be more receptive to Convention arguments. 95 Catherine Lumiere , former President of the Council of Europe, commenting on the control mechanism of the Convention noted that a case takes an average of five years before a final decision is reached. McDonald/ Matscher/ Petzold (note 77), xvii. 96 Ress Report (note 79), 239.

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I n addition, a State Party arguably may be obliged to abide by decisions of the Court as they may be seen as authoritative interpetations of the obligations arising under the substantive provisions of the Convention which are binding upon all States Parties. 97 States Parties accepting the competence of the Court to consider cases under Article 46 recognize the jurisdiction of the Court " i n all matters concerning the interpretation and application of the present Convention" (emphasis added). The Court's decisions in individual cases are an interpretation of Convention obligations. When the Court's jurisprudence is considered as a whole, there is a consistent approach to defining obligations indicating that a decision may be seen as an authoritative interpretation of Convention norms. The Court's own Rules of Procedure ensure that its decisions w i l l remain consistent and thus can be relied upon in the future as a definition of Convention obliga98

tions. The practice in similar enforcement mechanisms created under other human rights treaties suggests that a body empowered by treaty to monitor State practice in the area of human rights is competent to make authoritative interpretations of obligations that bind all States Parties. The Human Rights Committee, which oversees compliance w i t h one of the most widely ratified human rights treatites - the International Covenant on Civil and Political Rights, 9 9 recently issued a comment declaring its competence to make decisions in the sensitive area of reservations and to decide which reservations violate the object and purpose of the Covenant and therefore are impermissible. 100 I n justifying its conclusion, the 97

See Velu (note 81), 149 - 150. Steinherger suggests that the decisions of the Court have a legal effect not only as judgments in a particular case but in developing the substantive obligations - 'the law of the Convention'. He points out that while a State Party may deviate from the case law that does not have res iudicata effect without violating its obligation under the Convention, it may not deviate to the extent the decision forms part of the law of the Convention. See note 80, 749 (409). Also see Ress Report (note 79), 240 (citing L. Wildhaher , Experience w i t h the European Convention on Human Rights (in German), Schweizer Juristenverein, 1979, 355). Ress noted that the State has the onus of refuting that a decision is part of the law of the Convention. Ress Article (note 79), 811. 98 Under Rule 50, when the resolution of a question or questions might result in a judgment inconsistent with one previously delivered by the Chamber or Court, the Chamber must relinquish its jurisdiction in favor of a decision by the whole Court. Velu (note 81), 151. 99

G A res. 2200A ( X X I ) of 16 December 1966, 21 U N G A O R Supp. 16, 52, 999 U N T S 171. The Human Rights Committee, established under Article 28 of the Covenant, is authorized under Article 40(4) to receive and review State reports on domestic laws and practices related to Covenant obligations and to issue general comments. The Committee also is empowered by the First Optional Protocol to the Covenant to receive and decide upon individual complaints (Communications) alleging a violation of the Covenant by a State Party who has ratified the Protocol. G A res. 2200A ( X X I ) of 16 December 1966, 21 U N G A O R Supp. 16, 59, 999 U N T S 302. 100 U N Doc. CCPR/C/21 /Rev.l / Add.6,1994, 3 [hereinafter Comment]. The Committee noted the importance of clarifying States' obligations under the Covenant and the difficulty

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Committee emphasized two points that hold true for all bodies charged w i t h enforcing human rights treaties. First, it noted the unique nature of human rights treaties, which it asserted are intended more to guarantee individual rights than to establish "inter-State exchanges of mutual obligations". 1 0 1 Second, it pointed to its task to review State compliance w i t h the Covenant and noted that performance of this task required it to determine what State's obligations are. 1 0 2 I n light of the Human Rights Committee's comment and similar concerns expressed by other human rights treaty bodies, 1 0 3 the Strasbourg Court's authority to issue decisions which are authoritative interpretations of E C H R norms seems wellfounded. There is no doubt that all States Parties accept the authority of the Strasbourg Court to decide upon individual complaints as all have accepted the competence of the Court in this respect. Also, the Strasbourg Court's practice of issuing detailed, well-reasoned decisions suggests that it is possibly in a better position than other treaty bodies to offer such authoritative decisions.

Conclusion This article's analysis of the B G H decision in light of the E C H R jurisprudence indicates that the interference by police officials w i t h a private telephone conversation w i t h the consent of only one participant is in violation of the Convention. The right to privacy guaranteed in the Convention suggests that States have an obligation to ensure not only that the acts of State officials do not interfere w i t h individual privacy but also that private individuals are not used by State officials to create a veil of legality over an otherwise illegal act. While interference w i t h of identifying those that are essential in light of the object and purpose of the treaty given the unclear and inconsistent practice of States w i t h regard to reservations. Id ., 7. 101 I n this light it claimed that the principle of inter-State reciprocity had "no place" except perhaps in a limited way when a State makes a reservation to the competence of the Committee to receive certain complaints. Id ., 7. Such a conclusion is not contrary to the law of treaties. Lord McNair noted that the traditional practice with regard to the acceptance of reservations has been to obtain the consent of States Parties, but he observed that the regularity of making reservations to multiparty treaties permitted some development in the mechanism. McNair (note 10), 161 - 162. He concluded that as long as the principle of consent is preserved, the parties may adopt any machinery they regard as acceptable and that it would not be without precedent for States to agree on delegating the authority to a particular body. Id. 162,172. With respect to the Human Rights Committee, it could be argued that States' consent can be implied from the States' acceptance of and compliance w i t h the reporting and commenting procedure established under Article 40. 102 Comment (note 100), 7. i° 3 Other treaty bodies established under human-rights related conventions have addressed this issue but not made such a definitive statement. See Report of the Committee on the Rights of the Child, G A O R 49th Sess., Supp. 41, 93 - 94; Report of the Committee on the Elimination of Discrimination against Women, G A O R 49th Sess., Supp. 38,12-13.

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the right to privacy is not absolute, Article 8(2) E C H R indicates that very specific requirements must be met when limiting the right to ensure that the exceptions do not easily become abuses. The most basic requirement, that the interference be based upon a law and that the law provide safeguards to prevent arbitrary or excessive use of interference, does not appear to be satisfied under German law. I n the absence of such a law, permitting such interferences to continue appears to be in violation of Germany's obligation under the Convention. For Germany to conform its practices to its obligations under the Convention, either courts must find a basis on which to prohibit such interferences or the legislature must act to change the present law. A law, for instance like the United States law mentioned above, could be adopted specifying under what conditions a private person may consent to another's overhearing. 104 By taking action on this issue, either through the courts or the legislature, Germany would not only avoid a confrontation w i t h the Strasbourg Court, it would signal to other States Parties the need to take their own initiative to incorporate norms developed by the Court into domestic legal systems and thereby improve the enforcement of basic rights under the Convention.

104 See note 75.

12 GYIL 38

The Incorporation of the European H u m a n Rights Convention into Swedish Law - A Half Measure B y U l f Bernitz

Introduction I n the Spring o f 1994, the Swedish Parliament, i n a display o f considerable p o litical u n i t y , decided t o incorporate the European C o n v e n t i o n o n H u m a n Rights and F u n d a m e n t a l Freedoms (hereinafter the E u r o p e a n C o n v e n t i o n ) i n t o the Swedish legal order as a domestic statute t o take effect o n 1 January 1995. 1 Sweden is a m o n g the last o f the Western E u r o p e a n countries t o take this step, w h i c h i n m y o p i n i o n s h o u l d really have been taken m u c h earlier. I n continental E u r opean countries, the C o n v e n t i o n has, generally speaking, l o n g been a part o f the domestic legal order and corresponding steps have been taken i n the other N o r dic countries at about the same t i m e as Sweden o r somewhat earlier. 2 T h i s article examines the n e w state o f the l a w resulting f r o m Sweden's incorp o r a t i o n o f the European C o n v e n t i o n . Part I addresses the m a i n features o f the legislative treatment o f the question. Part I I addresses the C o n v e n t i o n ' s status 1 The legislative history consists of the Committee Report Statens Offentliga Utredningar (SOU) 1993: 40 part B, Fri- och rättighetsfragor. Inkorporering av Europakonventionen, delbetänkande av Fri- och rättighetskommitten (Cited: Committee Report 1993: 40 B), Government Bill 1993/94: 117, Inkorporering av Europakonventionen och andra fri- och rättighetsfragor and the Report by the Constitutional Committee of the Swedish Parliament 1993/94: KU24. See also, inter alia , Europakonventionens införlivande med svensk rätt, Rättsfondens skriftserie 30,1993 (seminar report, ed. Fredrik Sterzel). Among the Swedish literature on the European Convention, we may note Hans Danelius , Mänskliga rättigheter, 5th ed., 1993 and his case reviews of judgments of the European Court of Human Rights 1961 - 1990 in Svensk Juristtidning 1991, 257 et seq., and 1991 1993 in Svensk Juristtidning 1994, 337 et seq. See also Iain Cameron/ Maja Kirilova Eriksson, A n Introduction to the European Convention on Human Rights, 1993; Göran Lysen, Europas grundlag: Europakonventionen om mänskliga rättigheter, 2nd ed., 1993; Jacob W. F. Sundberg/Fredrik Sundberg, The European Convention, 1993. 2 Denmark incorporated the Convention 1 July 1992. See Europäische Grundrechte Zeitschrift (EuGRZ), 1992, 253. Finland ratified and incorporated the Convention in 1990. See EuGRZ, 1993, 590. In Norway, a Government committee proposal for incorporation of the Convention has still not led to a final decision. O n the gradual Scandinavian development, see Soren Stenderup Jensen, Scandinavian Studies in Law, 1991, 59.

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within the EC. Part I I I examines the relationship of European human rights law to domestic human rights protection and Part I V examines the European Convention's status and relationship to domestic legislation. This article proceeds from the thesis that the Swedish incorporation has been done in such a way that it amounts to a mere half-measure and that there is a risk that the European Convention, despite its incorporation, w i l l not provide a satisfactory protection of human rights in Sweden. The reason underlying this situation is that the Convention has essentially been given no higher status than a normal Swedish enactment by Parliament and thus enjoys, in principle, no priority in relation to such a domestic enactment.

I. Legislative Treatment of the Question of Incorporating the European Convention The legislative work that resulted in Sweden's incorporation of the European Convention was closely linked to the question of strengthening human rights protection within the framework of the Swedish Constitution's Chapter 2 on human rights and the extent of the courts' power to subject legislation to constitutional review. The legislative work has therefore aroused the active interest of Sweden's politicians. To understand the problems to be addressed below, it appears necessary to briefly examine the legislative treatment of the question. There has long existed a staunch political resistance in Sweden, especially in Social Democratic circles, to an incorporation of the European Convention. The question of incorporation was an often recurring theme for many years in Parliament. 3 I n recent years, however, an important legal development has taken place quite unceremoniously in the highest Swedish courts, which have to an increasing extent referred to the European Convention, making use of the principle of interpretation in conformity w i t h treaty. O f particular importance is the reorientation in the case law of the Supreme Court, which has been clearly evidenced by the Court's conviction that statutory interpretation must comport w i t h the requirements of the European Convention. 4 I n the case 1992 N J A 532, which concerned the question of the weight that a court may attach to statements made to the police by a crime victim absent from the trial, the Supreme Court indicated that interpretation in conformity w i t h treaty should also be applied in situations where

3

Some account of this is contained in Committee Report 1993: 40 B, 26. As especially important cases may be cited 1988 N y t t Juridisk Arkiv 572 and 1992 NJA 532. See also in later Supreme Court case law, 1989 NJA 131,1991 NJA 188,1991 NJA 512 I and I I , 1992 NJA 337. O n the development see Jensen (note 2), especially 91 et seq. 4

12*

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statements in the legislative history and in previous Swedish case law point in a different direction. Thus, the Supreme Court gave a provision in the Code on Procedure a new interpretation in line w i t h the case law developed by the European Court in Strasbourg. However, this new interpretation was not in conflict w i t h the actual wording of the existing statutory provision. I n light of this background, the European Convention's incorporation may be seen as an extension of a previously existing legal development. A t the end of 1991, Sweden's then newly formed four-party nonsocialist Government appointed a special committee, the Human Rights Committee, w i t h the task of considering a) improvements in various aspects of domestic constitutional protection of human rights and b) the European Convention's applicability in Sweden in light of legal developments in the European Community/European Economic Area (EEA). 5 The Committee was chaired by Court of Appeal President Carl Axel Petri , whereas all the other members were political appointees. Consensus was reached within the Committee on the basis of political agreement reached between representatives of the Social Democrats, the Moderate (Conservative) Party, the Liberal Party and the Centre Party. 6 The consensus can be seen as a continuation of a political tradition to reach Swedish political compromises on constitutional questions which has prevailed in Sweden ever since the 1960s. The consensus entailed that the European Convention should be incorporated and that human rights protection in Chapter 2 of the Constitution should be strengthened in certain respects. As to the courts' power to subject legislation to constitutional review no change was proposed. 7 This latter point was clearly a concession made by the nonsocialist parties in order to reach a compromise w i t h the Social Democratic party. The contents of the Committee's proposal closely reflected the aforementioned consensus. The Committee's report did not contain any detailed analysis of the purposes of human rights protection in society, the advantages and disadvantages of such protection, the effectiveness of the various forms for securing such protection, etc. The justification given for the proposals presented in the report appears rather meager. Much of the space in the text of the report has been used to reproduce the contents of previous parliamentary reports; this appears to reflect 5 The Committee terms of reference are reproduced in Committee Report 1993: 40 A , 289 et seq. 6 Committee Report 1993: 40 B, 3 et seq. 7

As before such review requires a statutory provision to be clearly unconstitutional. The relevant constitutional provision (Ch. 11, Sec. 14) reads: " I f a court, or any other public organ, considers that a provision is in conflict w i t h a provision of a fundamental law or w i t h a provision of any other superior statute, or that the procedure prescribed has been set aside in any important respect when the provision was inaugurated, then such provision may not be applied. However, if the provision has been decided by the Riksdag or by the Government, the provision may be set aside only if the inaccuracy is obvious and apparent."

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the active input of participating parliamentarians not least in the drafting of the report. When comments on the Committee report were solicited from interested parties, the proposal to incorporate the European Convention met w i t h hardly any objections. O n the other hand, these comments discussed the method to be applied. Comments from many of the interested parties expressed disappointment over the lack of proposals to strengthen the power of the courts to subject legislation to constitutional review. 8 The Government Bill was preceded by exhaustive deliberations between party leaders. Following these deliberations, the contents of the Government Bill came to very closely resemble the Committee proposal. 9 The Constitutional Committee's report indicates that the text on the European Convention's future status was modified in detail to accord w i t h a 'consensus' reached during the party leader deliberations. 10 Clearly, the legislative treatment of the question has been very sensitive politically. II. The Status of the European Convention w i t h i n European C o m m u n i t y Law A n important reason for the decision to incorporate the European Convention appears to be Sweden's move towards closer relations w i t h the European Community/European Union, the emergence of the EE A Treaty and Sweden's E U membership application. This is indicated in the report. The Government bill did however dramatically play down these factors as did the Constitutional Committee's report to an even greater extent. 11 The protection of human rights has come w i t h time to acquire a strong position within the EU. It is now expressly established in Art. F of the E U (Maastricht) Treaty, in force as of 1 November 1993, that the European Union shall respect, as a part of the general principles of European Union law, the fundamental rights guaranteed by the European Convention and the common constitutional traditions of the Member States. This is nothing new; indeed, the Treaty has codified a legal principle already previously developed in the case law of the European Community Court. This legal development within the EC C o u r t 1 2 is mainly based on German cases and the German Constitutional Court's critical view concerning the initial 8

A compilation of the opinions given by interested parties heard has been published in Departementsserien 1993: 90, 1993. 9 Government Bill 1993/94: 117,7 et seq. 10 1993/94: KU24, IS et seq. 11 See Committee Report 1993: 40 B, 119 et seq. and 124 et seq.; Government Bill 1993/ 94: 117, 33; 1993/94: KU24,12.

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lack of human rights protection in EC law. The EC Court held that the protection of human rights is an integral component of the general legal principles that the Court has applied ever since the 1970 Internationale Handelsgesellschaft case,13 which concerned the question of the forfeiture of sums deposited when an export license was not used within a certain time period. The EC Court expressed this opinion even more clearly in the 1974 Nold case,14 which concerned the permissibility of certain economic regulations within the coal trade. The above-quoted statement clearly demonstrates that the EC Court considers it to be a central part of its function to secure the human rights of individuals and that the Court is prepared for this purpose to subject national legislation to a kind of constitutional review. As is well known the EC Court has referred to the European Convention and considered various legal questions against the background of the Convention in a number of decisions. This led the Swedish Human Rights Committee to conclude that the European Convention is to be considered a binding source of norms within EC law, even though the European Community is not a party to the European Convention, 1 5 and that it is within the competence of the EC Court to ensure that the human rights stated in the Convention are respected in secondary EC law and in corresponding national legislation. 16 The EC Court has also independently developed fundamental legal principles, such as the principle of equality regarding nondiscrimination and the principles of proportionality and legal certainty. Another central feature of Community law is that it often has direct applicability and direct effect in the Member States where it enjoys priority over any conflicting national norms. I n the event of a conflict, the national courts are bound to apply the Community law rule instead of the national one. The Treaty on the European Economic Area was in force in Sweden from 1 January 1994 until Sweden's membership in the E U became effective on 1 January 1995. The EE A Agreement was incorporated in Sweden as a Swedish enactment. 1 7 The EE A Treaty proceeded from the premise that the greater part of sub12

See, e.g., Ulf Bernitz, Europakonventionen och EG-rätten in the publication Europakonventionens införlivande i svensk rätt, 22 et seq. 13 1970 ECR 1125. 14 1974 ECR 491. 15 Such ratification is under consideration. The EC Court has been requested to give its opinion under Art. 228(b) EC Treaty as to whether such ratification would be compatible w i t h Community law. 16 Committee Report 1993: 40 B, 120,124.

17 See, e.g., Ulf Bernitz, Sweden and the EEA in Legal Issues of European Integration, 1992, 62 et seq.

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stantive EC law, including its fundamental legal principles, had been assimilated into the EEA where it was to receive a uniform interpretation. A l l case law developed by the EC Court prior to the signing of the EEA Agreement was, under Art. 6 of the EEA Agreement, a part of the Vacquis communautaire of the EEA. Under Sec. 5 of the Swedish Act on the incorporation of the EEA Agreement, on choice of law, provisions of that Act and other laws enacted to fulfil Sweden's obligations under the EEA Agreement were to be applied, notwithstanding any statutory provision to the contrary. If EEA-based legal rules conflicted w i t h domestic Swedish legal provisions, a Swedish court had to thus apply the EEAbased rule - this was tantamount to a right of priority. 1 8 Through the EEA Agreement, Sweden had thus already before its entry into the European Union adopted that part of the E U legal order that includes the case law on the European Convention. This fact was ignored in the Government Bill on the ratification of the EEA Agreement, but was noted by Parliament's special EEA Committee, which stated in its report that Art. 6 of the EEA Agreement entailed that the EC Court's case law on the European Convention was applicable within the EEA sphere. According to the Committee, this meant that the Convention had obtained a stronger footing in the Swedish legal order than had previously been the case and that Swedish courts should interpret EEA rules on the basis of the decisions in which the EC Court applies the Convention's principles. 19 The conclusion to be drawn from the foregoing is that the European Convention has entered Swedish law in three ways: a) as incorporated Swedish law (as of 1 January 1995), b) as an integrated part of the human rights protection provided by EEA law (as of 1 January 1994) and c) as an integrated part of the human rights protection provided by E U law (as of 1 January 1995). When the European Convention is to be applied as E U law, it enjoys priority over any conflicting national law, directly on account of the nature of community law. There do however exist limitations to those areas that fall within the competence of the European Union. The EC Court stated in the Demirel case that the Court cannot examine whether national legislation that does not form part of the Community legal system is in accordance w i t h the European Convention. 2 0 As is known the competence of the European Union primarily applies to the economic area in the broad sense, but includes central areas of labor law, social law and environmental law. Thus, many legal areas of great interest from the viewpoint of protection of 18

See, e.g., id 65 et seq. 19 Report of the Committee 1992/93: K U 1, 172. The Human Rights Committee reached the conclusion that: "The European Convention's significance in the national legal system can come to be essentially the same already through the entry into force of the EEA Treaty as it would be in the case of an EC membership" (Committee Report 1993: 40 B, 122). 20 1987 ECR 3719.

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human rights fall outside the scope of the European Union, e.g. most of family law and criminal law.

I I I . The Relation of the European Convention to Domestic Human Rights Protection Somewhat surprisingly, it appears that the incorporation of the European Convention into Swedish law and an expansion of Swedish constitutional protection and human rights have been treated in the legislative process as two essentially separate subjects. There is no indication in the legislative treatment of the question that any basic consideration had been given to the central question of whether Swedish human rights protection should duplicate the protection of the European Convention or should primarily be oriented to areas not covered by the Convention and its additional protocols or to cases where Sweden would find the Convention's level of protection to be too low or imprecise. However, the Human Rights Committee did make various statements on the relationship between the European Convention and applicable Swedish law. Such statements were marked by a striking tendency to emphasize the harmony between the two legal orders. A number of interested parties who submitted comments recommended substantial restraint in this regard 21 and stressed that the European Convention is a living legal source, which in the years to come, just as previously, would probably be developed further through case law. 2 2 The Government Bill did however contain an important specification of the relationship between the protection of human rights under the Convention and such protection under Swedish constitutional law. The Government agreed w i t h the perspective presented in comments submitted by the Stockholm University Faculty of Law, namely, that the protection should be cumulative , i.e. that the principle of double protection applies. 23 This means that individuals can claim the protection of both legal orders and that in essence the legal protection of the European Convention applies where such protection is stronger than domestic human rights and that domestic human rights apply where they are stronger than the European Convention. A n example of the last-mentioned situation is provided above all by the Swedish constitu21

Similar statements were made, in connection with the original ratification of the European Convention, concerning the conformity of Swedish law with the Convention, Government Bill 1951: 165. These statements were, in retrospect, rather regrettable. 22 Reference can here be made to the comments submitted by the members of the Swedish Supreme Court, Ds 1993: 40, 205. 23 Government Bill 1993/94: 117, 39, concerning comments by the Stockholm University Faculty of Law, Ds 1993: 90, 228,1993.

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tional regulation of freedom of press and expression, which is quite detailed and comprehensive but also, inter alia , the protection accorded by the Constitution (2:10, second paragraph) against retroactive taxes and imposts. This link between the Convention's human rights protection and domestic protection of such rights offers the prospect of an interesting future development in which the Convention's provisions and its rich case law can stimulate further development of Swedish case law based on the Constitution's provisions. Outside the realm of freedom of press and expression, the Constitution's provisions do not today generally constitute a truly living law. There even exists some lack of clarity as to when the Constitution sets forth rights that are legally enforceable by the individual citizen and not merely general declarations addressed to the legislature. The Government Bill also stated that the European Convention and the rights enumerated in the Swedish Constitution do not constitute an exhaustive regulation of the Swedish protection of human rights but are supplemented by general legal principles established in Swedish law. 2 4 The legislative protection of human rights may not thus be subjected to e contrario interpretation. The statement in the Government Bill is important both in principle and since it indicates a fundamental congruency between the state of the law in Sweden and in the European Union. As previously indicated, the EC Court has to a considerable extent developed general legal principles applicable within Community law which have priority over secondary Community law. 2 5 As a concrete example of an established general principle of Swedish law, the Government Bill cited the principle of proportionality . The principle means mainly that limitations on the exercise of various rights and on citizens' personal and economic freedom of movement may not be applied to any greater extent than is actually justified by the limitation's underlying objective. The point of departure is thus that all citizens are guaranteed a fundamental freedom of action. The statement in the Government Bill is significant, since the principle of proportionality, although its applicability has long been recognized, has thus far been a rather elusive concept in Swedish law. 2 6 The principle is, on the other hand, very 24

Government Bill 1993/94: 117, 39 et seq. The statement is based on the aforementioned comments submitted by the Stockholm University Law Faculty, Ds 1993: 40, 229. The comments mention as examples of such principles the requirement that actions by public authorities against individuals and companies have statutory support and not go further than what is clearly covered by such support; the main rule on the non-retroactivity of new legislation and other provisions that impose on individuals or companies obligations or restrictions of various types; and the impermissibility of abuse of public power (detournement de pouvoir). 25

O f the extensive literature in this area, we can note the newly published Danish work by Louis Nan Rasmussen/Soren Schonberg , EU-menneskeret - en utfordring till dansk ret, 1994. 26

See, e.g., Ulf Bernitz in Festskrift till Bengtsson , 1993, 57 et seq.

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significant in the case law based on the European Convention and within E U law. We thus see yet another example of Sweden moving closer to European law. 2 7 It is certainly regrettable that it was not politically possible to abolish the presently existing Swedish constitutional limitations on the power of the courts to subject legislation to constitutional review. This also reduces the prospects of an effective implementation of the Convention-based protection of human rights. I n the legislative treatment of the question, hardly a single new argument was presented; instead, old points of view were merely repeated. 28 I n my opinion, the introduction into the Constitution of the already cited Chapter 11, Sec. 14, second sentence, was regrettable from the outset: "However, if the provision has been decided by the Riksdag or by the Government, the provision may be set aside only if the inaccuracy is obvious and apparent." The subject is hardly suited to legislative regulation. The requirement of obvious inaccuracy can also be interpreted in various ways, which could actually pave the way for a nuanced legal development in case law. The aforementioned provision, which is not well fitting in a State governed by the rule of law, should, in my opinion, be abolished completely. The Swedish standpoint is hardly consistent w i t h the view that the courts should perform a norm-review function, which is exercised in most European democracies and which Swedish courts must in any case exercise in applying E U law. It is especially anomalous that the power to subject legislation to review is hampered by the requirement of obvious inaccuracy even w i t h respect to Government-issued regulations and thus not only to legislative Acts passed by Parliament. 2 9 We cannot here rely on the arguments concerning the Parliament's special status. Government regulations are not subjected to Law Council review or to Parliamentary committee review and are often not even circulated among interested parties for comments before being issued. N o r does interministerial review of legality appear to occur on any large scale. The requirement of obvious inaccuracy should in any case be abolished in the case of Government regulations.

27

See, e.g., Danelius (note 1), inter alia, 253 et seq.; Rasmussen/ Schonberg (note 25), 46 et seq.; Bernitz, Europarättens grunder, 1994. 28 Committee Report 1993: 40 A , 217 et seq., Constitutional Committee 1993/94:KU24, 50 et seq. See also, inter alia, Författningsdomstol och lagprövning i nordisk och europeisk belysning, Rättsfonden No. 26,1991 (seminar report, ed. Fredrik Sterzel). 29 See, e.g., the Norwegian constitutional law expert Eivind Smith's criticism in Författningsdomstol och lagprövning, 60 et seq.

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IV. The Status of the European Convention and its Relationship to Swedish Legislation Sweden has not been prepared to accord constitutional status to the European Convention; such a solution would actually have been fully possible and it was in fact recommended in comments submitted by the Svea Court of Appeal. 3 0 A t the end of the Constitution's human rights chapter, a new provision (2:23) was however included. That provision states that a statute or other law may not be adopted in violation of Sweden's obligations under the European Convention. The provision is intended to indicate the special status of the Convention and provides a basis for the exercise of the courts' power to review legislation under 11:14 of the Constitution - as far as that power extends - if a national law should be found to conflict obviously w i t h the Convention. 3 1 As has appeared above, the provisions of the European Convention, to the extent integrated into European Community law, enjoy a position of priority in relation to conflicting domestic law. It is also logical and natural for the Convention to enjoy such a special status; otherwise the Convention might not actually be able to ensure to natural and legal persons the legal protection that it is the Convention's fundamental task to provide. During the party leader deliberations concerning the Government Bill, the Social Democrats did however oppose such an order. 32 This resulted in a solution whereby the European Convention was merely accorded the status of ordinary Swedish legislation. The Convention is thus formally at the same level in the normative hierarchy as ordinary domestic laws passed by the Parliament. A t the same time, however, the Convention's special character and purpose shall be taken into account to the greatest extent possible. The Convention has however, due to its status as legislation, a right of priority in the event that a normative conflict arises between it and legal provisions of a lower order, such as government regulations, regulations by public authorities and regional and local ordinances. The Government Bill provides a detailed account of how courts and other organs charged w i t h the application of laws should resolve conflicts between the European Convention's provisions and domestic laws enacted by the Swedish 30 Ds 1993: 90,217 et seq. 31 Government Bill 1993/94:117, 53 et seq. 32 According to newspaper reports, the nonsocialist Government parties attempted during these deliberations to include a choice of law paragraph which would have given the European Convention priority over Swedish law (see, e.g., Dagens Nyheter , 27 November 1993). The method used for the Swedish implementation of the EEA Agreement appears in this context to have been intended to be applied as a model. O n the Swedish implementation of the EEA Agreement, see Ulf Bernitz , in: Legal Issues of European Integration, 1992, 68 et seq.

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Parliament in cases where the conflict does not have the "obvious" character required under the legislation review rule of 11:14 of the Constitution. 3 3 Firstly, judges and others who apply laws are to find a solution within the framework of an interpretation conforming to treaty. This means that one should attempt to accord the Swedish statutory provision a meaning consistent w i t h the Convention provision in question. That which is stated in the Government Bill is consistent w i t h established case law, not least w i t h the above-cited case 1992 N J A 532, in which the Supreme Court - within the framework of the wording of the Swedish provision - gave priority to the presently applicable interpretation of the European Convention over statements in the Swedish travaux preparatories and previously applicable Swedish case law. The Government Bill then addresses the situation in which there exists a true conflict of laws, i.e. a Swedish legislative provision enacted by Parliament must be understood as being so unequivocal that it leaves no room for interpretation and the applier of the law must therefore choose whether he should base the decision on the Convention provision or the domestic provision, which are stated to be hierarchically colateral. I n this regard, the Government Bill refers to two well-known principles of statutory interpretation, the lex posterior principle (lex posterior derogat legi priori ), i.e. that a later statute supersedes an earlier one, and the lex specialis principle, i.e. that a specific rule has priority over a general one (lex generalis) regardless of the relative ages of the provisions in question. The lex posterior principle is said to entail that a convention provision enjoys priority over an older Swedish legislative provision. The lex specialis principle can however according to the Government Bill also be considered, and it cannot be said, according to the Bill, whether this principle entails that the convention provision or the Swedish legislative provision has priority. The Government Bill then presents as a possible third principle a statement made in comments submitted by the members of the Supreme Court "that a human rights convention, even if it has no higher rank in the domestic law hierarchy than ordinary legislation, should, given its special character, in any event be given special weight in the event of a conflict w i t h domestic legislative provisions." This perspective is stated in the Government Bill to be based on the principle of interpretation in conformity w i t h treaty. It can be noted here that the Supreme Court also stated that if the Convention is to have a rapid effect in Sweden, then courts and public authorities should be open to the case law development within the European Court and should to the

33 Ds 1993: 90, 217 et seq.

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greatest possible extent seek to adapt the interpretation of Swedish law to this case law. 3 4 The reasoning pursued in the travaux preparatories examined here is clearly a product of compromises between divergent views. The emphasis on interpretation in conformity w i t h treaty and the statement in the Supreme Court's comments point in a different direction than the claim that an application of the lex posterior and lex specialis principles can require the courts to apply domestic legislation repugnant to the Convention. One ought to, however, firstly follow the strong recommendation to seek by interpretation to avoid an open conflict between a Convention provision and a domestic legislative rule. Similar reasoning was pursued in the travaux preparatories to the EEA Act in connection w i t h the choice of law rule included therei n . 3 5 The principle of interpretation in conformity w i t h treaty is based on the fundamental premise that domestic law is intended to be consistent w i t h the international obligations which the country has undertaken. Interpretation in conformity w i t h treaty might thus result in a rather far-reaching reinterpretation of domestic legal rules. Such a reinterpretation may even at times lead, in effect, to the elimination of a legal rule. If the conflict cannot be avoided through interpretation, then the aforementioned reasoning on lex posterior and lex specialis may be applicable. Such a state of affairs poses a substantial risk of being politically exploited in the future. Swedish legislation adopted after the European Convention's incorporation has taken effect is, after all, lex posterior . With regard to the priority of lex specialis over lex generalis , it should be borne in mind that the Convention's provisions are generally framed, although they have been made more precise through case law. It could often be rather easy, if so intended, to draft a new Swedish legislative rule in such a clear and detailed manner that it w i l l acquire the character of lex specialis vis-a-vis a Convention provision. It thus appears to be possible for a Swedish Government and Parliament, if they so wish, to take advantage of the lex posterior and lex specialis principles, possibly in combination w i t h each other, in order to 'legislate away' the legal protection which the European Convention is supposed to provide. Such a legislative product can however ultimately be reviewed by the European Court in Strasbourg. Oddly enough, the text of the travaux preparatories has ignored the question addressed in Part I I , above, on the European Convention's status as an integrated part of E U law. It has apparently not fit in w i t h the general orientation of the reasons stated for adopting the incorporation Act to note that the Convention's provisions to this part have a claim to priority in Sweden founded on Commu34 Stated in Ds 1993: 90,205. 35 Government Bill 1991/92: 170 part 1,154.

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nity law. It is however beyond dispute that this is actually the case and that Swedish courts must accord such priority.

Concluding Remarks The incorporation of the European Convention should prove to be a decisive step in the development of Sweden's protection of individual rights and in the courts' possibilities to play an important role in such development. The chosen legislative technique has however, as indicated, resulted in a half-measure. The Convention has not been given the right of priority that it should have received and, consequently, its position is rather limping, stronger as applicable Community law than as Swedish domestic law outside the scope of the European Community. As an anomalous consequence of this, human rights protection in the economic area (in the broad sense) is to some extent stronger in Sweden than within other areas, e.g. personal liberty in general. There is hardly any rational justification for this. Behind the position taken on the form of the European Convention's incorporation and the statements in the travaux preparatories on the Convention's relationship to domestic law lies a clear distrust by politicians towards an effective monitoring by the courts that the European Convention is complied with. This suspicion towards the courts is not at all new in Sweden but appears difficult to understand from an objective viewpoint and hardly consistent w i t h European legal development. The Swedish courts' decisions in related contexts have thus far always been marked by sound judgment and a measure of restraint. There is in my opinion no reason to fear that this w i l l not continue to be so in future case law. The half-measure which has now been adopted w i l l however probably not be the last step in this development. Ultimately, the question is whether the courts are primarily to be viewed as the long arm of the public power structure or as independent guardians of individual rights.

SPECIAL THEME: M I G R A T I O N

International Law on Migration Reconsidered Under the Challenge of New Population Movements By Rüdiger Wolfrum

Introduction The present period witnesses massive movements of populations which are caused by various political, economic and social problems that are often interrelated and affected by the international situation. 1 The objectives of these people differ widely. Some only seek shelter for a brief period of time; others have a middle- or long-term intent to return home after having ended a training period, after their working life or after the situation in their country of origin has changed. Another group is interested in becoming permanent residents in the State of refuge. These different interests and aspirations should be reflected in existing national and international law. It is doubtful whether this is the case and in this respect national as well as international law meets a new challenge. Mass migration is nothing new either as a phenomenon or seen as the problem resulting from such a phenomenon. Population movements in response to demo1 See, e.g., U N I D I R , Migration and Population Change in Europe, Research Paper 19, 1993. The study (5 et seq.) distinguishes between voluntary and other forms of migration. The former group features temporary labor migrants, who may be low-skilled and low-paid or highly skilled, students and persons working on holiday. The second group is mainly made up of asylum seekers and refugees, including refugees in accordance w i t h the United Nations Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the Status of Refugees of 1967, i.e. people who are accepted for humanitarian reasons and people who have fled their country of origin for economic or ecological reasons. A summary of the migration is also given by Jeffry S. Passel/Michael Fix , US Immigration in a Global Context: Past, Present and Future, Indiana Journal of Global Legal Studies, 1994, 5, and Sarah Collinson , Europe and International Migration, 1993. Stephen Castles/Mark J. Miller , The Age of Migration, 1994, 8, point out that migration is characterized by new trends such as globalization (more and more countries are affected by migration), the differentiation of migration (most countries have several types of migrants) and the acceleration of migration (migration growing in volume). A detailed analysis is given by David A. Coleman , The World on the Move, U N Economic Commission for Europe/Council of E u r o p e / U N Population Fund, European Population Conference, Proceedings, vol. 1,1994, 281 et seq.

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graphic growth, economic development, climatic change and the development of trade have always been part of human history. Equally, warfare, conquest, the formation of nation States and the violation of human rights 2 have all led to migrations, voluntary or forced. 3 Problems of migration arise on different levels. Migration movements may have an impact on the political and social stability as well as on the economic development of the receiving State, and also may adversely affect the economies of the countries of origin and of regions. Seen under these aspects there are three groups of parties interested in resolving these situations: the State or States generating the refugees, the State or States where the refugees find shelter and the international community under the generally accepted assumption that the problem of refugees is a global one. However, one particularly has to look upon migration from the point of view of the individuals concerned, those e.g. seeking personal safety or the improvement of their economic or social situation. The problems caused by migration have attracted the attention of writers over various time periods. Whereas Vitoria tried to develop the right to migrate (ins peregrinandif others have also raised the question of whether there exists a right to emigrate. For example, H. Grotius and S. Pufendorf argued that the citizens of a given State agree in the contrat social not to leave the country. Accordingly, citizens could leave only w i t h the permission of the sovereign and after having compensated the sovereign for the economic or military loss their emigration might cause. As far as immigration is concerned Grotius argued that the sovereign has the right to exclude foreigners from his kingdom in defense of the personal or proprietary rights of his people. However, he drew a sharp line between the exclusion and expulsion of aliens and declared that expulsion without due cause is barbarous and contrary to the law of civilized nations. 5 Pufendorf took an approach that limited the discretionary powers of the sovereign. 6 He argued that sovereignty is limited by the duties of humanity. According to his view there exists the obligation of the sovereign to admit to his territory aliens having lawful reasons for demanding admittance such as commercial interests. He further maintained that a sovereign who admits foreigners to his territory must ensure that they are treated properly. Pufendorf formulated the following rule: "Every 2

See in this respect the report of the Secretary-General, U N Doc. E/CN.4/1995/49. Stephen Castles/Mark J. Miller , The Age of Migration: International Population Movements in the Modern World, 1993, 43; Collinson (note 1), 30 et seq.; Tom J. Farer , H o w the International System Copes w i t h Involuntary Migration: Norms, Institutions and State Practice, Human Rights Quarterly, 1995, 72; Peter J. Opitz , Das Weltflüchtlingsproblem: Ursachen und Folgen, 1988, 13. 3

4 Francisco de Vitoria, De indis recenter inventis relectio prior, Poemium, in: T. Urdanoz (ed.), Obras de Francisco de Vitoria, Relecciones teolögicas, 1960, 642, 705. 5 Grotius, De iure belli ac pacis, 1720, lib. II, cap. 5, n. XXIV.2. 6

Pufendorf \ De iure naturae et gentium, vol. 1, 1934,247.

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State may reach a decision according to its own usage on admission of foreigners who come to it for reasons other than are necessary and deserving of sympathy; only no one can question the barbarity of showing indiscriminate hostility to those who come on peaceful missions." E. Kant , although following this approach in general, limited the right to immigration. A t the same time he strengthened the right of foreigners resident in a foreign country by defining hospitality in Perpetual Peace as the right of a foreigner not to be treated w i t h hostility merely by reason of his arrival on foreign soil. 7 E. Vattef being in general agreement w i t h this approach stated that a sovereign may prohibit the entrance to his territory of foreigners in general, or of certain persons, or in certain cases, as the welfare of the State might require. I n the eighteenth century Blackstone summarized the state of international law and of English common law on migration: [B]y the law of nations no member of one society has the right to intrude into another — Nevertheless great tenderness is shown by our laws . . . with regard to the admission of strangers who come spontaneously. For so long as a nation continues at peace w i t h ours, and they themselves behave peacefully, they are under the King's protection. 9

I n the following period national laws controlling and restricting immigration become more and more abundant. 10 Assessing this briefly sketched development indicates that the emphasis of writers as well as State practice has shifted to a certain degree. Whereas the question, whether the right to leave one's country and to enter another country exists, previously was the central one, w i t h the growing number of people leaving their countries for political, economic, humanitarian and ecological reasons, the focus now is more on the right to enter a country and the rights enjoyed in the countries of acceptance. Present international law deals w i t h all the three aspects; however, the respective standards are contained in different sets of rules which are not fully harmonized. The right to leave one's country is contained in Art. 13 para. 2 of the Universal Declaration of Human Rights 1 1 as well as in Art. 12 para. 2 of the International Covenant on Civil and Political Rights. 1 2 The right not to be returned is 7

Kant, Ewiger Frieden, 1795, 33. s De Vattel, Le Droit des Gens, Tome I, 231. 9 Blackstone, Commentaries on the Law of England, 1765, vol. I, 261. 10 Richard Plender, International Migration Law, revised 2nd ed., 1988, 64 et seq. Jost Delbrück, Global Migration - Immigration - Multiethnicity: Challenges to the Concept of the Nation State, Indiana Journal of Global Legal Studies, 1994, 45, 49, identifies the development of rights reserved for citizens as the beginning of restrictions to which aliens are exposed. See also Farer (note 3), 73 et seq. The development of national legislation has been described in Eric-Jean Thomas (ed.), Immigrant Workers in Europe: Their Legal Status, 1982, particularly the conclusions by the editor at 240 et seq. 11

Human Rights: A Compilation of International Instruments, vol. 1,1994.

13 GYIL 38

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enshrined in the international agreements concerning refugees. 13 The status of a person in a foreign State within that State again depends upon the international human rights standards on aliens. As w i l l be shown, those sets of rules are limited as far as their scope is concerned. Under international law the possibility of gaining access to a foreign country is limited to specific groups of persons, i.e. those who qualify as refugees. Such a qualification depends on the causes that resulted in the emigration. Only in reference to a situation where fundamental human rights of the individuals concerned are not respected has the international community worked out relevant international agreements and established international institutions for the protection and assistance of refugees who are forced to leave their native country for this reason. Refugees from armed conflict or civil war also find protection. However, this group of individuals does not necessarily form the majority of those leaving their country of origin. The majority of people migrating thus find little or no protection under international law, and thus it is questionable whether international law is still adequate to meet present challenges. Further, the increased human rights protection received by migrants, in particular refugees, after they have found admittance raises some doubts as to whether this group can be any longer distinguished as something different from a citizen as insinuated by, for example, Art. 1 para. 2 of the International Convention on the Elimination of A l l Forms of Racial Discrimination. 1 4

The Development of "International Migration Law' I. General Development It is doubtful whether it is possible to actually speak of an international migration law. As already indicated, different sets of rules exist which are not directly interrelated, e.g. the rules concerning aliens defining a minimum standard for rights of individuals who are not citizens of the country in which they live and the rules on the status of refugees. The rules on aliens are enshrined in customary as well as convention law although few conventions exist particularly devoted to the protection of aliens. Customary law standards which give guidance to States in their treatment of aliens have been elaborated in judicial decisions and have been inferred from the 12

BGBl. 1973 I I , 1553; Human Rights: A Compilation of International Instruments (note

11), 20. 13

Convention Relating to the Status of Refugees of 1951 and Protocol of 1966, Human Rights: A Compilation of International Instruments (note 11), 638 and 655 respectively. 14 BGBl. 1969 I I , 961; Human Rights: A Compilation of International Instruments (note

11), 66.

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operation of municipal laws and treaties, in particular of peace treaties and treaties of establishment and commerce or of commerce and navigation. 15 Apart from international agreements such as the International Convention on the Protection of the Rights of A l l Migrant Workers and Members of Their Families 16 or comparable I L O conventions, the convention rules on the protection of aliens are to be found in the universal human rights treaties, in particular the two Covenants. 17 Nevertheless, the exact definition of the international minimum standard for aliens remains controversial. The first attempts to provide for the protection of refugees were initiated by the population movements after the First World War. They were, however, limited either in scope or in applicability. I n 1922 under the auspices of the League of Nations fifty-four States agreed to collaborate in the recognition of certificates of identity to be issued by international agencies.18 This arrangement did not include the obligation of States Parties to provide for financial assistance to refugees nor did States commit themselves to providing documented refugees w i t h residence and work permits. The Convention Relating to the International Status of Refugees of 1933 19 including such commitments was ratified by only eight States.20 II. Status of Refugees As already indicated the first right invoked by people having the intention to emigrate is the right to leave one's country. 2 1 This right is enshrined in Art. 13 15

A. J. Roth , The Minimum Standard of International Law Applied to Aliens, 1949, 99; study of 23 June 1977 prepared by Baroness Elles , The Problem of the Applicability of Existing International Provisions for the Protection of Human Rights to Individuals who are not Citizens of the Country in which They Live, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, U N Doc. E / CN.4/Sub.2/392, 14. 16 Human Rights: A Compilation of International Instruments (note 11), 554 (not in force). Adopted by G A res. 45/158 of 18 December 1990. 17 International Covenant on Civil and Political Rights (note 12) and the International Covenant on Economic, Social and Cultural Rights, BGBl. 1973 II, 1569, Human Rights: A Compilation of International Instruments (note 11), 8. 18 League of Nations Covenant, American Journal of International Law (AJIL), 1919, Supp., 128. 19 159 LNTS 199. 20

Guy S. Goodwin-Gill , The Refugee in International Law, 1983, 71, however points out that this period was remarkable for the very large number of refugees not in fact sent back to their country of origin, whether they fled Russia after the revolution, Spain, Germany or the Ottoman Empire. See Farer (note 3), 77. 2 1 For details see Hurst Hannum, The Right to Leave and to Return in International Law and Practice, 1987, 7 et seq.; Rainer Hofmann, Die Ausreisefreiheit nach Völkerrecht und staatlichem Recht, 1987. See also the commentary in Louis B. Sohn/Thomas Buergenthal (eds.), The Movement of Persons Across the Border, 1992, 75 et seq.

13*

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para. 2 of the Universal Declaration of Human Rights, in Art. 12 para. 2 of the International Covenant on Civil and Political Rights and in Art. 8 para. 1 of the International Convention on the Protection of the Rights of A l l Migrant Workers and Members of Their Families of 1990. 22 Nevertheless, the realization of this right was obstructed in the era of the Cold War in particular by socialist countries 23 and - although it is also part of customary international l a w 2 4 - still is being denied by States such as the People's Republic of Korea. This freedom to leave is available to everyone, i.e. to citizens and aliens alike. It results in different obligations of the State of residence and the State of citizenship. Whereas the State of residence is obliged to avoid interfering w i t h the freedom to leave, the State of citizenship is under a positive duty not only not to interfere w i t h the freedom to leave, but also to ensure effective possibilities to leave by issuing the necessary travel documents. 25 It is in the interest of those having left their country of origin for whatever reasons to find access to another State and to be permitted to remain there without having to fear expulsion. However, in general, under international law States have broad discretionary power not to accept aliens or to expel them. 2 6 International human rights treaties, including the International Covenant on Civil and Political Rights, do not recognize the right of aliens to enter or reside in the territory of a State Party. A right to asylum did not receive recognition in international human rights treaties, including the U N Convention Relating to the Status of Refugees.27 States have discretionary power as to whom they accept. International treaty law as well as customary law, though, have limited such discretionary power of States under different aspects, e.g. concerning the persons States may reject or expel, to which other States a person may be extradited and what procedure is to be followed when extradition occurs. This may lead to an obligation of States to accept certain groups of persons. 22

See note 16.

23

Thus the freedom to leave and emigrate has played a fundamental role within the scope of the CSCE. 24 See Karl Josef Partsch , The Right to Leave and to Return in Countries of the Council of Europe, Israel Yearbook on Human Rights, 1975, 215; Manfred Nowak , U N Covenant on Civil and Political Rights, CCPR Commentary, 1993, 204 et seq. 25 Nowak (note 24), 206. According to Art. 29 of the African Charter on Human and Peoples' Rights the individual is under a duty "[t]o serve his national community by placing his physical and intellectual abilites at its service." A balance between the individual's rights and the interest of the national community is to be achieved through the application of reasonable standards. However, the right to leave should only yield to exceptional circumstances and for reasons that can be justified on the grounds of national interest, Sohn/Buergenthal (note 21), 79. 2

* Oppenbeim's International Law, 9th ed., 1992, 891.

27

See the draft submitted by France ( U N Doc. E/AC.32/L.3, 3) which contained a right to asylum. The draft, however, was rejected ( U N Doc. E/AC.32/SR.7,2-13).

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International law prohibits the non-acceptance or expulsion of aliens on the basis of racial or ethnic reasons. 28 This is to be deduced from the prohibition of discrimination as enshrined in Art. 1 para. 3 of the United Nations Charter and further developed in the International Convention on the Elimination of A l l Forms of Racial Discrimination. 2 9 According to this Convention States Parties undertake to eliminate racial discrimination in all its forms. This Convention does not concern human rights beyond the right to be free from discrimination. It rather obliges States Parties to guarantee the enjoyment of specific human rights without distinction as to race, color, or national or ethnic origin. 3 0 The obligations under the Convention, however, also come into play whenever a State grants rights above those mentioned under Art. 5 et seq. of the Convention, since States Parties through Art. 2 have undertaken to pursue by all appropriate means a policy of eliminating racial discrimination in all its forms. This excludes the possibility of making racial or ethnic origin a parameter when deciding which persons should be allowed access to a country. Art. 1 para. 3 of that Convention points in the same direction; although this Convention is not meant to govern provisions concerning naturalization or nationality, it emphasizes that States Parties must not discriminate against any particular nationality in this respect. One further element limiting State discretion as to expulsion or non-acceptance of aliens is the principle of non-refoulement 31 which constitutes the core principle of the international law of refugees. Refugees are, according to Art. 1(A) para. 2 of the U N Convention Relating to the Status of Refugees, those outside their country of nationality who are unable or unwilling to return to it due to a well-founded fear of being persecuted for reasons of race, religion, nationality, or adherence to a particular social group or political opinion. 3 2 This rule implies that the person in question has been individually targeted for persecution or that he or she is a member of a group virtually outlawed. 33 This definition covers only a fraction of those having left their country of nationality. It covers neither those leaving for economic or ecological reasons nor those fleeing the effects of 28

See General Comment 15 of 29 July 1994 of the Human Rights Committee concerning the position of aliens under the Covenant, U N Doc. H R I / G E N / l / R e v . 1. 29 See note 14. 30 See Art. 5 of the Convention on the Elimination of A l l Forms of Racial Discrimination (note 14), as well as the reference in the Preamble to the Universal Declaration of Human Rights (note 11). 31 According to the U N Convention Relating to the Status of Refugees a distinction could be made between expulsion (Art. 32) and return (refoulement) (Art. 33). Whereas refoulement means the return of a person seeking admission or admitted temporarily or conditionally, expulsion covers refugees having been admitted. The differentiation may become blurred in national law or practice. See Plender (note 10), 426. 32 For further details see Plender (note 10), 416 et seq.; Andreas Zimmermann , Das neue Grundrecht auf Asyl, 1994,125 et seq.; Sohn/Buergenthal (note 21), 123 et seq. 33 Farer (note 3), 79 et seq.

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war or civil war. I n one respect the O A U Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 34 is broader. It also applies to every person who, owing to external aggression, occupation, foreign domination or even seriously disturbed public order in parts or the whole of his or her country of origin, is compelled to seek refuge elsewhere. The principle of non-refoulement ensures that no refugee is to be returned to a country where he or she is likely to face persecution or danger to life or freedom. 3 5 There are several international agreements that establish the non-refoulement principle, namely Arts. 32 and 33 of the U N Convention Relating to the Status of Refugees 36 which cover both refugees lawfully or unlawfully in the territory of the given State, Art. 13 of the International Covenant on Civil and Political Rights, 3 7 and Art. 3 of the United Nations Convention Against Torture. 3 8 The European Community Conventions on Establishment and on Extradition, respectively, rely on this principle. Finally, the non-refoulement principle is enshrined in the Inter-American Convention on Human Rights 3 9 and the O A U Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969. 40 Although the European Convention on Human Rights 4 1 does not include a general obligation of non-refoulement, several organs of the Council of Europe have adopted recommendations emphasizing the need to include a general obligation of non-refoulement in the European Convention. 4 2 Further, the United Nations H i g h Commissioner for Refugees ( U N H C R ) has called attention to the need to observe the "recognized principle of non-refoulement." This includes, as it is emphasized, non-rejection at the frontier and the question 34 1001 U N T S 46. It has been argued that African States feel a higher degree of moral responsibility towards refugees {Far er (note 3), 82) which may be due to the fact that the degree of solidarity among members, families or other social entities is more dominant than, for example, in Europe. 35 Goodwin-Gill (note 20), 69; Plender (note 10), 426 et seq.; Christine Amann, Die Rechte des Flüchtlings, 1994, 60 et seq., 101 et seq. 36 See note 13. The principle was already enshrined in the predecessors of this Convention, namely the Convention Relating to the International Status of Refugees of 1933 (note 19), and the Constitution of the International Refugee Organization. 37 See note 12. 38 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Human Rights: A Compilation of International Instruments (note 11), 293. 39 9 I L M 673, Art. 22. 40 1001 U N T S 45. 41

See Kay Hailhronner , Non-Refoulement and 'Humanitarian' Refugees: Customary International Law or Wishful Legal Thinking?, in: David A. Martin (ed.), The N e w Asylum Seekers: Refugee Law in the 1980s, 1986,123, 131-132. 42

Jochen Ahr. Frowein/Wolfgang Peukert , Europäische Menschenrechtskonvention, 1985, Art. 3, para. 18, however, state that the limits of the European Human Rights Convention on expulsion do not amount to the non-refoulement principle.

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of granting asylum in countries that are not the country of 'first refuge'. 43 The wide application of the non-refoulement principle in State practice implies that this principle has become a rule of customary international law. 4 4 The non-refoulement principle, however, does not exclude States Parties from expelling or not accepting persons who can find refuge elsewhere or who constitute a danger to the security of the State concerned. 45 N o r have they assumed under the non-refoulement principle the obligation to grant asylum. 46 I n supplementing the non-refoulement principle a tendency has developed in international treaty law of strengthening the guarantees for a national review of expulsion decisions which further limits the discretion of States in this respect. Already Art. 13 of the International Covenant on Civil and Political Rights requires that an expulsion may only be undertaken on the basis of a decision reached in accordance w i t h law and where the respective person has the right, except in specific cases, to have his or her case reviewed. This makes an expulsion order subject to the rule of law. 4 7 Art. 1 of Protocol 7 of the European Convention on Human Rights further develops this approach. According to Art. 1 any expulsion order needs to be justified by the national security or the public order of the given State and must be open for review. I n practice the State justifying the expulsion must prove that the threat to national security is present, genuine and 43

Conclusion 15 ( X X X ) of the Executive Committee of the High Commissioner's Programme on 'Refugees Without a Country of Asylum', U N G A O R 34th session, Supp. 12A, 17, 18 ( U N Doc. A/34/12/Add. 1); Conclusion 22 ( X X X I I ) and Protection of Asylum Seekers in Situations of Large-Scale Influx, U N G A O R 36th session, Supp. 12A, 17 ( U N Doc. A/36/12/Add. 1). 44 Francesco Orrego Vicuna , The Status and Rights of Refugees Under International Law: New Issues in the Light of the Honecker Affair, University of Miami Inter-American Law Review, 1994, 351, 375; Goodwin-Gil (note 20), 97-100; Gunul Steinberg, Non-Expulsion and Non-Refoulement: The Prohibition Against Removal of Refugees w i t h Special Reference to Articles 32 and 33 of the 1951 Convention Relating to the Status of Refugees, 1989, 65. But see Hailbronner (note 41), 123. 45

See for the latter Art. 33 para. 2 of the Convention Relating to the Status of Refugees. This was confirmed in the U N Declaration on Teritorial Asylum, G A res. 2312 ( X X I I ) of 14 December 1967. See also Sohn/Buergenthal (note 21), 131 et seq. 4 * Farer (note 3), 79. 47 The General Comment 15/27 of 22 July 1986 of the Human Rights Committee states that it is the purpose of this Article "to prevent arbitrary expulsion." The Committee has also stated that "an alien must be given full facilities for pursuing his remedy against his expulsion so that this right w i l l in all circumstances of his case be an effective one." See Report of the Human Rights Committee, U N G A O R 41st Session, Supp. 40, 19, U N Doc. A/41/ 40. For further reference see Stig Jagerskiold , The Freedom of Movement, in: Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, 1981, 7, 182-184; Alfred de Zayas , Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee, German Yearbook of International Law (GYIL), 1985, 9; Rüdiger Wolfrum , The Progressive Development of Human Rights - A Critical Appraisal, Festschrift für Karl Josef Partsch, 1985, 67, 83.

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sufficiently serious that it affects a fundamental interest of society. 48 This constitutes a threefold limit to the discretionary power of States to expel aliens. Summarizing this legal development one has to state that international treaty law has developed a right not to be returned by a foreign country only for those qualifying as refugees. State practice has added more categories. Nevertheless, the majority of persons having left their country for other reasons have no such right vis-a-vis another country unless they are accepted as immigrants under the respective immigration law. States have sought to balance the limitations of the international regime on refugees in one aspect by periodically enlarging the mandate of the United Nations H i g h Commissioner for Refugees. 49 I n various resolutions the General Assembly of the United Nations has eliminated the formal distinction between convention and non-convention refugees and authorized the U N H C R to act on behalf of "refugees who [are] in a situation 'analogous' to that of Convention refugees because they [are] victims of man-made events over which they [have] no control." 5 0

III. Human Rights Minimum Standards for Aliens Once admitted to the territory of a State Party to the Convention Relating to the Status of Refugees, a refugee benefits from the provisions of that Convention governing equality of treatment, juridical status, employment, welfare and administrative measures. According to Art. 3 of this Convention its provisions are to be applied to refugees without discrimination as to race, religion or country of origin. Further, according to Art. 7, refugees are to be accorded the same treatment as non-citizens generally, 51 save where the Convention contains more favorable stipulations. 52 The latter obligation of States Parties to the Convention guarantees a minimum standard of treatment for refugees. A t least w i t h respect to two issues the refugee is entitled to a more favorable treatment than other aliens. Art. 4 requires that refugees be accorded treatment at least as favorable as that accorded to the respective nationals regarding freedom to practice their religion; Art. 8 establishes that exceptional measures taken against the person, prop48 Florence Massaias , Control of Aliens, in: The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions 31, 43-46; Goodwin-Gill (note 20). 49 Statute of the Office of the United Nations High Commissioner for Refugees, G A res. 428(V) of 14 December 1950. 50

Isabelle Gunning , Expanding the International Definition of Refugees: A Multicultural View, Fordham International Law Journal, 1989-90, 35, 51; Farer (note 3), 84. 51 The equal treatment clause has been further specified in Arts. 13 (movable and immovable property), 15 (right of association), 17 (wage-earning employment) etc. 52 For further details see Plender (note 10), 433 et seq.

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erty or interests of a foreign State shall not be applied to refugees who are nationals of that State, solely on account of their nationality. The human rights standards of non-citizens are enshrined in the general international human rights instruments, in particular in the International Covenant on Civil and Political Rights 5 3 and the International Covenant on Economic, Social and Cultural Rights. 5 4 Such norms are supplemented in particular for migration for economic reasons by the I L O Migration for Employment Convention 97 of 1949, 55 the I L O Migrant Workers Convention 143 of 1975 56 and the U N International Convention on the Protection of the Rights of A l l Migrant Workers and Members of Their Families of 1990. 57 To this list have to be added regional human rights treaties as well as other human-rights-related agreements. Finally, human rights standards for aliens are part of customary international law. Note has to be taken of the fact that although all these norms attempt to establish equal rights for citizens and non-citizens as far as economic, social, cultural and civil rights are concerned, Art. 2 para. 3 of the Covenant on Economic, Social and Cultural Rights opens the possibility to developing countries of differentiating between citizens and non-citizens as far as the guarantee of economic rights is concerned. The right to work, including the right to free choice of employment; to just and favorable conditions of work; to protection against unemployment; to just and favorable remuneration; to equal pay for equal work; to rest, leisure and reasonable limitation of working hours; and to periodic holidays w i t h pay is, in principle, recognized to everyone in the International Covenant on Economic, Social and Cultural Rights. 58 The Covenant either expressly refers to "everyone'' as being the addressee of the respective rights or it chooses a general wording. As can be seen from Art. 6 this occasionally differing wording was not meant to indicate differences in substance.59 The same applies to the other rights enshrined in the Covenant. Hence, except for developing countries, States Parties to the Covenant on Economic, Social and Cultural Rights are under an obligation to recognize the rights enshrined therein without discriminating between citizens and non-citizens. The same approach is taken by the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They 53 54

See note 12.

See note 17. 55 120 U N T S 71. 56 International Labour Conventions and Recommendations 1919- 1981,1982. 57 See note 16. 58 Art. 6 para. 1, Art. 7 and Art. 8 para. 1(a) of the Declaration 40/144 of 13 December 1985. But see Art. 7 para. 3 of the Covenant (note 17). 59 Art. 6 recognizes "the right to work." It continues to state that this includes the right of "everyone" to the opportunity to gain his or her living.

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Live. 6 0 Although this Declaration has, as such, no legally binding force, it nevertheless serves as an affirmation of the Covenant's indiscriminate application to citizens and non-citizens. As has already been pointed out, States may and do impose restrictions upon the entry of aliens into their territory or may restrict the right to employment upon entry. However, once a work permit has been granted, the International Covenant on Economic, Social and Cultural Rights as well as other international agreements do not allow the imposition of different employment conditions solely on the ground of origin. 6 1 The refugee, under the provisions of the Convention Relating to the Status of Refugees, 62 is to be accorded the most favorable treatment nationals of a foreign country under the same circumstances receive. The right of everyone to form or to join trade unions as recognized in Art. 8 of the International Covenant on Economic, Social and Cultural Rights is equally contained in the I L O Freedom of Association and Protection of the Right to Organize Convention 87 of 1948 63 as well as in the I L O Migrant Workers Convention 143 of 1975. 64 According to Art. 9 of the International Covenant on Economic, Social and Cultural Rights States Parties recognize the right of everyone to social security, including social insurance. Such a right is also recognized in the Declaration on Social Progress and Development 65 as well as under the terms of international regional and bilateral instruments or under the Migrant Workers Convention. According to the last all migrant workers in the territory of a ratifying State are protected under the provisions of the Convention even though they may be nationals of a State not having ratified that instrument. 66 The same legal situation prevails as to other social rights such as access to welfare facilities, the right to enjoy the highest attainable standards of physical and mental health and the right of mothers and children to receive assistance.67 Finally, the right of all individuals, regardless of their nationality, to freely participate in cultural life is recognized by international agreements such as Art. 15 para. 1 of the International Covenant on Economic, Social and Cultural Rights or Art. 14 of the Convention Relating to the Status of Refugees. I n practice, this 60 G A res. 40/144 of 13 December 1985. 61 But see the reservation by Belgium. States have shown more preparedness to grant equal rights and treatment on a reciprocal basis within regional arrangements. See Baroness Elles (note 15), 67. 62 Art. 7. 63 64 65 66 67

68 U N T S 17, Art. 2. See note 16, Part B(I)(2)(g). G A res. 2542 ( X X I V ) of 11 December 1969, Art. 1. See note 16, Part B(I)(2)(f). For details see Baroness Elles (note 15), 72 et seq.

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right is restricted by the failure to reach general international agreement on academic qualifications, degrees and diplomas. 68 The international minimum standard of treatment to be accorded to aliens as far as civil and political rights are concerned 69 is reflected in the provisions contained in the Universal Declaration of Human Rights which have been further elaborated upon in the International Covenant on Civil and Political Rights. Such rights include the right to life, liberty and security of person (prohibition against slavery; prohibition of torture or cruel treatment; right to freedom of movement; right to an effective remedy by the competent national tribunals; prohibition of arbitrary arrest; right to a fair and public hearing by an independent court; prohibition against the application of retroactive penal laws; prohibition of arbitrary interference w i t h privacy, family, home or correspondence; right to marry; right to freedom of thought, conscience and religion; right of peaceful assembly and right to freedom of association). 70 I n that respect, the Covenant goes further than the European Convention on Human Rights which in Art. 16 expressly entitles States to place restrictions on all rights of political liberty. 7 1 Several of these rights, however, may be subject to derogations under the provisions of the International Covenant on Civil and Political Rights, although the derogations are themselves limited. 7 2 The right to liberty and security of person and prohibition of arbitrary arrest or detention is limited in the case of aliens by the right of States to prohibit entry into their territory, which empowers the State's authorities to arrest and detain any person who is suspected of having entered the country illegally. 73 Equally an alien may be arrested for deportation. Although the right to protection from arbitrary interference w i t h family life applies to all individuals 74 and does not allow for any discrimination on the basis of citizenship, this right does not amount to a right to achieve family unification w i t h members of the family who live in a different country. Apart from this, non-citizenship does not justify any distinction. Neither the International Covenant on Civil and Political Rights nor that on Economic, Social and Cultural Rights recognizes the right to own property. This, 68

Baroness Elles (note 15), 74. 69 Nowak (note 24), 51; B. G. Ramcharan , Equality and Non-Discrimination, in: Louis Henkin (note 47), 246,251, 258. 70 In its General Comment 15/27 of 22 July 1986 (note 47) the Committee stated: " I n general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness." 71 But see the reservations by Austria, Belgium, France and Germany analogous to Art. 16 of the European Convention on Human Rights, Nowak (note 24), Apps., 751, 755. 72 See Art. 4 of the Covenant; Nowak (note 24), 73 et seq. 73 Baroness Elles (note 15), 76. 74 Art. 17 of the Covenant on Civil and Political Rights; Art. 8 of the European Convention on Human Rights.

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however, does not exclude aliens from this right. Decisions of international courts and customary international law have long recognized the right of aliens whose property has been expropriated by a State to prompt, full and effective compensation. The Convention Relating to the Status of Refugees 75 as well as the First Protocol to the European Convention on Human Rights 7 6 recognize the right of every natural person to own property. Basically, there exists only one group of rights, namely political rights, that are eligible for different application for citizens and non-citizens. A denial of political rights to foreigners is held to be a legitimate distinction which does not constitute discrimination. 77 These political rights include the right to take part in the conduct of public affairs and in particular the right to vote and to be elected as well as the right to have access to public services. International as well as regional human rights agreements are unanimous that such rights may be reserved to citizens. 78 As for as the enjoyment of other political, civil, economic, social and cultural rights is concerned an assessment of international human rights agreements shows that they do not provide for a distinction between citizens and non-citizens.

Conclusions The rudimentary international law concerning migration is challenged since it reaches but a fraction of today's migrants. A t the moment it only partly serves its function of assisting in solving a humanitarian need the international community is faced with. I n saying this, account has to be taken of the fact that the law on migration is only designed to deal w i t h the symptoms of a more deeply rooted phenomenon, i.e. the causes triggering migration. I n consequence of the last it should be the primary objective to remove the possible causes of mass-scale migrations. Such measures have to reflect the root causes of the migration movement. I n many cases well-placed economic assistance and assistance in the areas of management w i l l be necessary. However, it would be insufficient to identify economic or ecological problems as the only causes of migration. Gross and persistent violations of human rights, ethnic cleansing and internal and international conflicts or political instability within a 75 A r t . 13.

76 213 U N T S 262, Art. 13. 77 H. Santa Cruz , Study of Discrimination in the Matter of Political Rights of January 1963, U N Doc. E / CN.4/Sub.2/213/Rev. 1. 78 See in this respect Covenant on Civil and Political Rights, Art. 25; American Convention on Human Rights, Art. 23. Unclear in this respect is the term 'people' used in First Protocol to the European Human Rights Convention, Art. 3. See also Nowak (note 24), 445.

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State have contributed to migration flows. Since the Security Council, in the case of Somalia for example, has identified migration flows as a threat to peace in accordance w i t h Art. 39 of the U N Charter, 79 respective international measures may be based upon Chapter V I I of the U N Charter. 80 Inspiration is to be drawn in this respect from the instruments as suggested by the Secretary-General of the United Nations in the Agenda for Peace,81 including both the preventive measures and measures for past conflict recommended therein. If the international community is unable to eliminate the causes of mass emigration or is unwilling to exhaust the means available to that end, it is collectively responsible to accommodate the refugees. 82 Furthermore, it seems that the present situation requires a progressive development of the international law on migration, in particular w i t h a view to broadening the scope of refugee law so as to include migrants not falling under the present regime for refugees. 83 Such broadening of the notion of refugee should include those persons the causes of whose migration are of a compulsory character. One useful pointer in the right direction - and, as it appears, tested in practice seems to be the definition contained in the O A U Convention of 1969 Governing the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration of 1984. Although these definitions again are restrictive since they only cover, in addition to the causes referred to in the Convention Relating to the Status of Refugees, causes of migration such as international and national conflicts as well as equivalent situations, such a change would at least result in removing the inequality in the treatment of people suffering a comparable destiny. What is, however, more important is that, at least in theory, those fleeing political persecution or armed conflicts share the same interest. They seek a temporary refuge and intend to return whenever the situation allows them to do so. This distinguishes them from those leaving their country of origin for economic reasons. Although the latter, too, may intend to return, they have the intention of spending a significant part of their working life in a foreign country. Hence the interest in an integration into this new environment is, right from the beginning, a more intense one. This is a factor that is not properly taken into account in those States, like Germany, that have no law on immigration and where immigration - in spite of the continual denial of its existence - takes place under the guise of the regime on asylum.

79 SC res. 814 of 26 March 1993. 80

Louis Henkin , A n Agenda for the Next Century: The M y t h and Mantra of State Sovereignty, Virginia Journal of International Law (VJIL), 1994,115, 119. 8 * A n Agenda for Peace of 17 June 1992, U N Doc. A/47/277- S/24111. S2 Henkin (note 80), 119. 83 Joan Fitzpatrick , Flight from Asylum: Trends Toward Temporary 'Refuge' and Local Responses to Forced Migrations, VJIL, 1994,13 et seq. w i t h further references.

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Additionally, it is necessary to strive for the creation of a regionally harmonized system for the protection of refugees and a relevant, regional immigration mechanism. This is particularly the case for Europe. The already existing cooperation needs to be strengthened and, even more importantly, a common policy towards refugees and immigrants needs to be established. 84 However, migration policies should no longer be seen as an incidental by-product of moves towards a greater political integration of Europe. They should rather be assessed as a contribution of Europe to the solution or, at least, mitigation of one of the most pressing social problems the international community is faced with. Such policy should take into account that immigration is a licit act undertaken by individuals attempting to improve their status. Those that stigmatize potential immigrants forget that only a few generations ago Europe was the origin of a significant migration movement. I n this respect the European Union is called upon to take action and to modify opposing national policies. Such a change of policy should be implemented on the national level, which would result in rethinking the rules concerning the national status of refugees and that of immigrants. U n t i l now the international community has concentrated on the humanitarian aspect of the situation of refugees. The respective efforts culminated in establishing the office of the United Nations H i g h Commissioner for Refugees. This institution is restricted to assistance in the humanitarian sense. Although its mandate has been extended it seems worth considering to further broaden its functions and to strengthen its resources so that it may play a more active role in the initiation and coordination of national efforts to accommodate refugees. However, the major efforts have to be undertaken on the national level. States should draw a proper distinction between immigrants and refugees taking into account the aspirations and interests of these two groups. Since immigrants intend to spend a significant portion of their working life in the new home State, national mechanisms should be developed to assist them in their introduction into society. I n particular, they should be integrated into work life as soon as possible. This is not only in the economic interest of the host State, but also a requirement under Art. 6 para. 1 of the International Covenant on Economic, Social and Cultural Rights. Hence, the failure to distinguish between potential refugees and immigrants and the denial to the whole group of the right to work, as is the case in Germany, 85 is thus questionable from a legal point of view. 84

See Commission Communication to the Council and the European Parliament on Immigration of 23 October 1991, 91 SEC 1855, 8 (final), stated that the abolition of internal frontiers had led the Member States "to recognize the need for a common approach by the Twelve and to discuss ways in which they can cooperate. The interdependence of various national situations, taken together w i t h the permeability of borders, requires joint action, if only on the grounds of efficiency." For further details see Collinson (note 1), 109 et seq. 85 § 61 Asylverfahrensgesetz (Law on the Procedure for Granting Asylum). See Kanein/ Renner , Ausländerrecht, Kommentar, 6th ed., 1993 (critical commentary on § 61 AsylVfG).

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When dealing w i t h the problems of asylum it has to be taken into consideration that the development of restrictive immigration policies has also contributed to the asylum problem, 8 6 since such policies have prevented asylum seekers from finding a State in which to settle. Accepting that Western European countries need some immigration, the loosening of the restrictions imposed upon immigration through establishing a respective national as well as European system w i l l lead to the mitigation of the refugee problem. Finally, the new population movement has been said to challenge the traditional ideas of the nation-State. 87 It is questionable whether this is still true. N o State may claim itself as ethnically homogenous in the way the term 'nationState' is perceived in some States; 88 at least the Committee on the Elimination of Racial Discrimination rejects such a claim whenever it is made. Apart from this, as shown above, the international regime on aliens and on refugees has enhanced their legal status in particular by extending to them economic, social, cultural and civil rights to an extent that the distinction between citizens and non-citizens has lost a significant portion of its meaning. The time, therefore, has come to draw the national consequences from this international development and to close the gap between reality and policy by providing for a framework regime on migration on the international level and for a corresponding comprehensive regime on the regional and national levels.

According to the Federal Administrative Court such a provision does not violate human dignity since the respective persons are eligible for social welfare. 86 Clattdena M. Skr an, The International Refugee Regime: The Historical and Contemporary Context of International Responses to Asylum Problems, in: Gil Loescher (ed.), Refugees and the Asylum Dilemma in the West, 1992, 8, 13. 87 See the detailed analysis by Delbrück (note 10), 53 et seq. with further references; U N Economic Commission for Europe (note 1), 344 et seq. 88

See Delbrück (note 10), 50.

Changing Features of Economic Migration and International Law By Michael Hasenau*

Introduction International economic migration, the search for a better standard of living in another country, is a global fact. Widening disparities between industrialized and most developing countries in income, employment and population growth as well as the world economy's growing interdependence suggest that the importance of economic migration is increasing. Migration systems are still growing in size and complexity. Nearly all States are part of such systems and combine functions of an emigration, immigration or transit country. Standard classifications of migratory flows, i.e. labor migration, family reunification, permanent settlement or asylum seeking cease to reflect reality. It is becoming more and more difficult to draw the line of distinction between the search for better living standards and for personal freedoms. Fears that flows are likely to intensify bear the risk of inward-looking approaches to aliens and minorities, to migration and citizenship, to economic policy and trade. This article gives an overview of the evolution of migratory movements after World War II. It analyzes responses to economic migration in international law and highlights policy choices and perspectives in economic migration.

I. Economic Migration Flows The period following World War I I witnessed the spread and globalization of the phenomenon called economic migration. The years from 1945 to 1974 can be described as a period of liberal immigration and recruitment of migrant workers. Industrialized countries experienced a high demand for labor. Temporary labor migration increased at the expense of permanent settlement. I n the mid-1970s a period of stricter regulation of immigration began. Rising unemployment led to migration controls favoring skilled workers and family members. Selective mi* The views expressed here are those of the author.

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gration procedures led to evading maneuvers and side-steps resulting in irregular movements. 1 1. Americas and Australasia Migration for settlement remains a policy pursued by the traditional countries of permanent migration in the Americas and Australasia. Settlers from Europe continued to move to the 'New World' until the early 1960s, when economic recovery in Europe brought a halt to large-scale emigration. The following years witnessed a diversification and expansion of immigration in particular from Asia to the United States, Australia and Canada as well as from the Caribbean Basin to the United States. Economic considerations and the change in the ethnic character of immigration led to increasing pressure for restrictions on immigration in the late 1970s. Stricter selection policies based on close family ties and labor market skills were implemented. However, overall the number of admissions rose. I n the early 1990s the United States raised the number of immigrants it admitted legally into the country. It allowed up to one million foreigners each year including refugees, not counting irregular unskilled migrant workers above all from Mexico whose status was successively regularized through amnesties.2 Latin America was a region of substantial permanent immigration until the economic recession in the second half of the 1970s. Today the region as a whole is losing people. Most important is emigration from Mexico to the United States. Smaller changes such as Argentinians of Italian origin moving back to Europe contribute to this outflow. Migrant workers in the region are mainly unskilled and irregular. They move from neighboring countries in particular to Argentina and Venezuela. As a result of the economic recovery of the early 1990s these two countries are now even trying to revive immigration for settlement from Eastern Europe. 3 2. Europe Migration for settlement to the Americas and Australia as well as movements of refugees and displaced persons dominated the scene in Western Europe in the decade after World War II. It was not till the late 1950s and early 1960s that labor migration from Southern EuropeHKf " N o r t l f Africa to the fast-growing economies of Western Europe, in particular France and Germany, developed. Migrant 1

For an overview on international economic migration see Peter Stalker ; The Work of Strangers: A Survey of International Labor Migration, 1994. 2 Demetrios Papademetriou , International Migration in N o r t h America, in: U N E C E / U N F P A , International Migration: Regional Processes and Responses, 1994, 77, 78 et seq. Stalker (note 1), 2 - 2 .

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workers originated initially from sending countries w i t h a record in emigration like Greece, Italy, Portugal, Spain, later on the Maghreb, Turkey and Yugoslavia. Receiving countries aimed at admitting migrant workers for limited periods and set up labor recruitment programs based on bilateral agreements. They acted on the assumption that labor shortages occurred temporarily in certain sectors of their economies and that the migrant workforce would return home at the end of its contract. However, such guestworker policies failed. Shortages were non-cyclical as no national workers could be found for low-paying, dirty and dangerous jobs. Moreover, the migration of workers was followed by family unification resulting finally in permanent migration. Regular recruitment of semi- and unskilled workers ended in the mid-1970s, when the oil price shock brought about a period of economic crisis, pressure on employment and restructuring of migration. Migration of individual skilled workers continued under work permit systems, in particular in computer, financial and health services. Family unification became an important factor of immigration. Irregular migration based on ethnic recruitment networks evolved as part of an informal, but well-organized underground economy. 4 I n the mid-1980s a diversification of migratory movements in Europe took place. Contract migration to Western Europe recovered. Southern European countries switched from sending to receiving migrants. I n particular Italy and Spain, entry points to the traditional immigration countries and geographically exposed to the Mediterranean Rim, experienced an inflow of irregular migrant workers to which the two countries reacted by means of regularization exercises.5 Emigration from Eastern Europe emerged as a sizeable phenomenon, above all as a consequence of the dispersal of people and ethnic groups in Central and Eastern Europe and the republics of the former Soviet Union. So-called Aussiedler went to Germany, Jews went to Israel, Soviet-born Greeks went to Greece. Irregular migrant workers especially from Poland moved to Western Europe. 6 The events of 1989/90 reinforced this move towards diversification. The successor States of the Soviet Union, Albania, Bulgaria, Romania and war-stricken Yugoslavia became the countries w i t h strongest emigration pressures. Economic crisis, inter-ethnic and inter-State conflicts, infringements of civil rights and cultural alienation of minorities led to migratory movements within Eastern Europe and between former republics of the Soviet Union, above all to the return of Russians to the Russian Federation. Guestworkers from Vietnam and Cuba returned. Short-term migration to Western Europe for the purpose of irregular employ4

John Salt , Migration and Population Change in Europe, 1993,2-4. 5 Stalker (note 1), 204 - 208.

6 Heinz Fassmann/Rainer Münz , European East-West Migration 1945 - 1992, International Migration Review, 1994, 520, 526.

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ment intensified. Central and Eastern Europe became an entry point for migrants in transit from Africa, Asia and the Middle East. West-East labor migration of managers, technicians and business people emerged. 7 To movements of legal and irregular workers the mid-1980s added an increase of applications for asylum. Flows of asylum seekers are becoming more globalized. Many do not seek refuge in a neighboring country, but move on to industrialized areas, making Germany their major target country in Europe. The majority are not granted refugee status, but are found to be ordinary applicants for immigration. However, they stay on humanitarian or other grounds as effective return mechanisms for unsuccessful asylum seekers are lacking and deportation remains unpopular. Seeking asylum thus became a major new migration force towards industrialized countries. 8 3. Gulf States The situation in the Gulf States till 1973 was determined by traditional migratory movements between Arab States. Migrant workers came above all from Egypt, Jordan and Oman. Little control over immigration was exercised. Governments concluded bilateral agreements and set the overall legal framework for immigration, insisting on the temporary nature of labor migration. The day-today control was left in the hands of sponsors, i.e. large employers or agents who recruited migrant workers for smaller companies. The 1973 oil price rises led to a booming demand for labor in construction and services. Immigration from neighboring countries like Egypt, Jordan, Lebanon, Palestine, Syria, Sudan and Yemen expanded. Towards the second half of the 1970s large-scale flows of Pakistanis and Indians, recruited for under one year's employment, but on extendible contracts, followed. I n the mid-1980s, when the decline in oil prices led to a halt in the increase of immigration, the six countries of the Gulf Cooperation Council (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates) had become a region w i t h one of the highest concentrations of migrant workers in the world. Growing concern about the number of foreigners led to stricter controls of migratory movements. When neighboring Arab countries could no longer provide the migrant labor required, a diversification of flows from Southeast and East Asia began. 9 I n particular female domestic workers were recruited in South Korea, the Philippines, Sri Lanka and Thailand. With migrant workers leaving Kuwait and 7 Salt (note 4), 35 - 36. 8

Miroslav Macura , Overview on International Migration, in: U N E C E / U N F P A , International Migration: Regional Processes and Responses, 1994,1,3 et seq. 9 Manolo Ahella , International Migration in the Middle East, in: U N E C E / U N F P A , International Migration: Regional Processes and Responses, 1994,163,166 et seq.

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Iraq and the departure of Arab workers from countries that sided w i t h Iraq, the 1990/91 Gulf Conflict caused a major upheaval of migratory movements, leading to a further reduction of Arab migrant workers. It contributed to making the Gulf States one of the most volatile migration destinations.

4. Sub-Saharan Africa Sub-Saharan Africa knows traditionally undocumented cross-border flows of considerable proportions. These flows include nomadic or seasonal travel and daily crossings. Today there is a trend towards longer-term or permanent migration as labor market structures, in particular in urban areas, change. Movements between different regions of the continent in the context of changing economic and political conditions increase. Sub-Saharan Africa witnesses larger migration flows than any other region in the world. West Africa possesses the highest concentration of migrant workers. I n particular skilled migrant workers have always treated the region as an economic entity. This is reflected in the Protocol on Freedom of Movement signed already in 1980 by the Economic Community of West African States.10 The main poles of attraction, also for irregular migrant workers, are today Cote dTvoire and Gambia. Ghana, Nigeria and Senegal have all become countries that are receiving and sending considerable numbers of migrant workers. The situation in East Africa has in recent years been determined by refugee flows. I n late 1994 nearly 7.5 million, i.e. more than one-third of the world's refugees, were found in Africa, driven to leave mostly as a result of internal ethnic and political conflict. The majority had moved as part of a mass outflow from one developing country to another where the costs of providing asylum are considerable in the face of poverty, political instability and environmental degradation. 1 1 I n Southern Africa the major migratory flow is to the Republic of South Africa from the neighboring countries. The majority of migrant workers from Botswana, Lesotho, Malawi, Mozambique, Swaziland and Zimbabwe are still employed in mining industries. Over recent years the portion of migrant labor decreased in a move to reduce dependency on foreign workers and to promote the employment of domestic mine labor. Since the 1994 elections the Republic of South Africa has experienced a renewed surge of irregular immigrants and has become a ma10 Decision of the Council of Ministers on the Draft Protocol of the Free movement of Persons, Right of Residence and Establishment, in: Official Journal of the Economic Community of West African States (ECOWAS), June 1980, 11. 11 U N H C R , Refugees: Victims of Social Disintegration - Contribution to the World Summit for Social Development, 1994, 2 - 3 .

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jor center of attraction. It now steps up border controls and deportations. Future migration patterns are difficult to predict. 1 2

5. Asia A complex new network of migratory flows has developed over recent years in Asia. Migrant workers from China, Indonesia, Pakistan, the Philippines, Thailand and other countries are moving to Japan and the newly industrializing economies of Southeast Asia. When other industrialized countries resorted in the 1960s to foreign labor, Japan installed a ban on semi- and unskilled foreign labor and accepted increasing labor shortages in construction and services. It ran a restricted program for the admission of foreign nationals of Japanese descent. It admitted students and trainees as a source of legal unskilled labor. Finally, since the mid-1970s it tolerated large-scale irregular immigration of unskilled workers from South Korea, the Philippines, Thailand, Iran, Malaysia, India and Pakistan to work in construction, manufacturing, bars and prostitution. Japan thus set the pace for the newly industrializing countries in Southeast Asia. Restrictive immigration policies block the option of inexpensive imported labor. Capital-intensive methods of production and the export of labor-intensive work through investment in low-wage countries favor high-tech development and labor productivity growth. Domestic labor shortages in sectors such as services and construction, increasingly shunned by an education-conscious population, are filled by irregular immigration. 1 3 South Korea e.g. was a major source of contract workers in the 1960s and 1970s, until rising wages and near full employment brought a halt to emigration in the mid-1980s. With a high emphasis on education, falling birth rates and government policies excluding unskilled foreign workers, South Korea quickly became an importer of illegal migrant labor. Later than other newly industrializing economies it embarked on a policy of exporting manufacturing to neighboring countries. Investments did not flow to Malaysia or Thailand where labor costs had started to rise, but to Cambodia, China, Laos and Vietnam. While migration policy in Asia is focused on the effect of large-scale movements of unskilled manual workers, an important flow of professionals and skilled workers has accompanied the investments by multinational enterprises since the 1960s. China, Indonesia, Malaysia, Thailand and Vietnam have all liberalized the possibilities to import skilled labor. 14 Singapore with one of the highest 12 13

South Africa: The Miseries of Magnetism, in: The Economist, 4 March 1995, 48 - 49.

Compare Kiriro Morita/ Saskia Sassen, The New Illegal Immigration in Japan 1980 1992, International Migration Review, 1994,153. 14 Stalker (note 1), 268 - 269.

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proportions of immigrants in Asia knows no restrictions for professionals and skilled workers. Two of the largest refugee flows, the Afghan and Indochinese refugee communities, originated in Asia where the number of refugees reached 5.8 million in late 1994. I n Asia and at the global level these numbers soared in the 1970s and continued to rise at a high rate. U N H C R was looking after 2.8 million refugees in 1976 and 12.4 million in 1986. The end of the Cold War did not change this general trend of rising numbers, but the nature of most refugee-producing situations has become primarily internal conflict. 15

I I . International Law of Economic Migration Migratory movements are governed only to a small extent by international standards, although migration is an essentially transnational process. The extent to which migration is regulated on the international or the national level is a function of the political and economic interests of receiving and sending countries. 16 Proceeding from these interests and the recognition of specific protection needs the different categories of economic migrants 17 are subjected to multilateral standards, bilateral agreements, national laws and regulations as well as the discrepancy between such norms and their enforcement.

1. Migration for Settlement and to Create Employment Migration for settlement schemes that provide for migrants entering a country in order to live there permanently are run by only a few traditional countries of permanent migration. I n particular Australia, Canada, N e w Zealand and the United States 18 developed elaborate quota systems w i t h selection criteria based on family relationship and labor skills. These countries introduced also elements of migration to create employment, giving incentives to foreign entrepreneurs to set up micro- or small-scale enterprises for the purpose of employment creation. I n other countries of immigration, especially in Europe, migration for settlement takes place through family reunion, when immediate family members join a pri15 U N H C R (note 11), 2. 16 Michael Hasenau, I L O Standards on Migrant Workers: The Fundamentals of the U N Convention and Their Genesis, International Migration Review, 1991, 687 - 697. 17 I L O / I O M / U N H C R , Migrants, Refugees and International Cooperation, A Joint Contribution to the International Conference on Population and Development - ICPD, 1994, 3 et seq.

is Papademetriou (note 2), 78 - 88.

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mary migrant, or through new family formation, when a primary migrant seeks a marriage partner from his country of emigration. Permanent migration schemes provide for the entry of settlers as non-citizens w i t h permanent resident status, giving access to most public services and facilities. Settlers can normally not be forced to leave upon loss of employment. They are given a secure status and the prospect of rapid naturalization. 19 Permanent migration remains the domain of national laws and regulations. Traditional countries of settlement reserve this field, constituting an essential part of their historical identity, to their exclusive jurisdiction.

2. Migration for Education and Training Migration for education is a function of the expanding labor market for managers and technicians. Academics and students circulate through increasingly integrated systems of higher education. I n most countries university students and trainees are strictly admitted for limited time periods and are usually not allowed to enter employment apart from casual vacation work. Migration for education is mainly subject to national laws and regulations; its details form even part of the right to self-government of academic institutions. Migration for training takes place under schemes that are run by governments on the basis of bilateral agreements. Recently such agreements have been concluded by Japan w i t h Southeast and East Asian countries and by Germany w i t h Central and Eastern European countries. Migration for training schemes are mostly of limited scale and often have a euphemistic ring. I n Japan e.g. they offer legal opportunities for hiring unskilled labor, while the ban on unskilled immigration is upheld. 2 0

3. Migration for Professional or Business Purposes Modern industries and services rely on the acquisition, deployment and use of human resources and expertise. Individual managers, technicians and business people move from one country to another, often within transnational enterprises and organizations. They possess a high level of education and training and their skills are easily transferrable. They face no barriers on entry and easily acquire a work permit as a prerequisite for long-term settlement. As well-integrated middle class people they face few negative reactions in recipient countries. 19 Philip Yang , Explaining Immigrant Naturalization, International Migration Review, 1994, 449, 451 et seq. Stalker (note 1), 2 8 - 2 .

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The entry and stay of professionals and business people is covered by national laws concerning aliens. A starting point for embodying their rights in an international standard is contained in the U N International Convention on the Rights of A l l Migrant Workers and Members of Their Families of 1990, i.e. Art. 61 on project-tied workers, Art. 62 on specified-employment workers and Art. 63 on self-employed workers. 2 1 These articles address some aspects of the specific situation of professionals and business people. However, they reflect more a concern for completeness of the U N Convention than for specific protection needs. 22

4. Contract Migration Contract migration occurs where migrant workers are admitted for a limited period. It evolved as a large-scale phenomenon in the 1960s when workers from Mediterranean countries moved to such countries as Belgium, France and Germany. Today individual contract migration is a worldwide phenomenon wherever skilled or semi-skilled labor is legally admitted for employment purposes. The greatest numbers are at present found in the Middle East. 23 Contract migration includes categories of workers as diverse as production line workers in manufacturing; agriculture and construction workers; workers in hotels, catering, cleaning and other services; as well as domestic servants and au pairs. One particular form is seasonal migration for employment which occurs above all in tourist-dependent industries and agriculture. 24 With the exception of the few countries w i t h settlement orientation, a pronounced temporariness dominates the legal admission of such migrants. This seems to be a reflection of modern mobility requirements and production patterns. But many so-called guest workers or contract workers tend to prolong their stay and eventually become permanent immigrants who are joined by their family members. It is the concept of temporariness that bears responsibility for the little social protection accorded to contract workers, causing important protection needs. These protection needs were first addressed in the Migration for Employment Convention ( I L O 97) of 1949. 25 I n line w i t h I L O standard-setting of the inter21

United Nations International Convention on the Protection of the Rights of A l l M i grant Workers and Members of Their Families, G A res. 45/158 of 18 December 1990, in: U N G A O R , 45th Session (September - December 1990), Resolutions 261 - 273. 22 Michael Hasenau, Setting Norms in the United Nations System: The Draft Convention on the Protection of Rights of A l l Migrant Workers and their Families, International Migration, 1990, 133, 135 et seq. 23 Aheila (note 9), 170 et seq. 24

Foreign Workers in Germany, in: The Economist, 22 April 1995, 77 - 78.

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war period it aims at regulating the conditions under which an individual migrates to take up employment. Arts. 1 to 5 and the three Annexes contain provisions on information, recruitment, departure, journey, reception as well as on medical and employment services for migrant workers. Moreover, it is the first standard, although applying also to permanent migration, that focuses on temporary migration and stipulates the individual rights that migrant workers enjoy in the receiving country. Art. 6 advocates non-discrimination between migrant and national workers in matters of employment, working conditions and social security. The Migrant Workers Convention ( I L O 143) of 1975 26 expanded this policy of non-discrimination in its Part I I on Equality of Opportunity and Treatment. This Convention undertook to further define the balance of rights accorded to migrant workers or reserved for nationals. It goes beyond I L O Convention 97 by providing that governments should not only repeal discriminatory legislation, but also enact promotional legislation to guarantee equality of opportunity and treatment in respect of employment and occupation, social security, trade union and cultural rights as well as individual and collective freedoms. By 1994 I L O Convention 97 had been ratified by forty States. 27 I n the 1950s and 1960s ratifications by most European sending and receiving countries concerned w i t h the phenomenon of contract migration were registered. I L O Convention 143 has received seventeen ratifications, including only Italy, Portugal and Yugoslavia as sending and receiving countries of importance.

5. Irregular Migration Irregular migration comprises cases of illegal entry, stay or economic activity. I n most cases migrants enter their host country legally, but move into illegality by overstaying or breaking terms of entry, in particular by taking up employment. I n the 1960s and 1970s recruiters from the United States, Western Europe and South Africa were still hiring unskilled workers. Today the movements of unskilled migrant labor are supply driven and do not take place in accordance w i t h established laws and regulations. Irregular migrant workers are often employed in small and less-controlled firms and subcontracting enterprises. They 25 I L O Migration for Employment Convention (Revised), 1949 in: I L O Record of Proceedings of the 32nd Session of the International Labour Conference, 1949, 347 - 349. 26 I L O Migrant Workers Convention, 1975, in: I L O Record of Proceedings of the 60th Session of the International Labour Conference, 1975, 832 - 33. 27 I L O , Lists of Ratifications by Convention and by Country as of 1 June 1994, 1994; I L O , General Survey of the Reports Relating to I L O Conventions 97 and 143 and Recommendations 86 and 151 Concerning Migrant Workers, 1980, 14| - 151 [hereinafter I L O General Survey].

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are absorbed into ethnic networks, commonly doing manual work in labor-intensive sectors where legal migrants are usually found as well, but economic reliance on irregular migrant labor has reached a high degree. Their numbers are likely to rise as receiving countries adopt a more selective approach to the admission of migrant labor and the temptation to circumvent tightened entry procedures grows. A t the same time the presence of irregular workers meets w i t h heightened sensitivity where rates of unemployment are high among nationals. Governments of receiving countries therefore undertake efforts to control illegal immigration, in particular through checks at airports and border crossings. However, the effects of such efforts remain limited, taking into account the economic reliance on the irregular workforce, and public opposition to rigorous sanctions on employers and above all to a determined approach to deportation. The resort to regularization exercises such as granting amnesties remains politically more acceptable. The specific protection needs of irregular migrant workers, who may in theory be deported at any time, were first addressed in I L O Convention 143 which covers in Part I on Migration in Abusive Conditions all migrant workers and thus protects also non-nationals who are in an irregular situation. Art. 1 sets a general obligation to respect the basic human rights of all migrant workers. Arts. 2 to 7 require the adoption of a set of measures to suppress clandestine migration and illegal employment of migrants. I L O Convention 143 Part I on Migration in Abusive Conditions and Part I I on Equality of Opportunity and Treatment were adopted in a trade-off between receiving and sending countries. However, the number of ratifications of I L O Convention 143 has remained small. 28 I n the mid-1970s migrant-receiving countries introduced stricter regulations on immigration and had an interest in curbing illegal migration, but they did not adhere to a standard on equal treatment and opportunity that seemed to undermine the pronounced temporariness of contract migration schemes. Moreover, as time passed and economic reliance on irregular unskilled migrant labor grew, their willingness to assume the obligation to halt irregular migratory movements diminished. Migrant-sending countries wanted to strengthen the rights of regular migrant workers in order to stabilize the status of their nationals abroad, but they did not ratify, as even irregular migration generated remittances and served their economic interests. Furthermore, they felt less enthusiastic about the promotion of equal opportunity and treatment, as this seemed to point in the direction of permanent settlement and a loosening of links w i t h the country of origin. 2 9 28 Id. 29 I L O Record of Proceedings of the 60th Session of the International Labour Conference, 1975, 796 - 797, 823 - 833. Compare Roger Böhning , The I L O and the New U N Convention on Migrant Workers, International Migration Review, 1991, 698 et seq.

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The specific protection needs of irregular migrant workers were instead taken up by major sending countries of the Group of 77 in the institutional framework of the United Nations. The United Nations International Convention on the Protection of the Rights of A l l Migrant Workers and Members of their Families of 1990 was designed w i t h a view to protecting migrants in an irregular situation. Its main Part I I I formulates the rights migrant workers and their family members enjoy in the receiving country irrespective of their authorization to enter, to stay and to take up employment. Further provisions on the rights of regular migrant workers and the promotion of regular migration make the U N Convention the first comprehensive migration instrument. 30 However, by the end of 1994 only Egypt, Morocco and the Seychelles had ratified the Convention, and Chile, Monaco, Mexico and the Philippines had signed i t . 3 1 The divergence of interests that blocked the ratification prospects of I L O Conventions 97 and 143 continues to impede the entry into force of this Convention, which requires twenty ratifications under Art. 87(1). Additional elements of doubt are shed by the tendency of the Commission on Human Rights to weaken the language of its annual resolution on the U N Convention. While the consensus resolution of 1992 "urge(d) all Member States to consider signing and ratifying," the resolution of 1995 acquiesced to "call upon all Member States to consider the possibility of signing and ratifying." 3 2

6. Asylum Seeking A t a time of restrictions on legal migration the pressure on asylum systems grows. The search for safety through asylum results in entering the labor market of the host country and thus provides a means of circumventing immigration controls. When the numbers of applications for asylum in industrialized countries were soaring in the late 1980s and early 1990s, a perceived or real rise of abuses undermined support for the institution of asylum and led to a tightening of asylum procedures in many countries. The establishment of asylum as a migration force of growing importance thus turned asylum procedures into a controversial form of immigration control. The question of how to control continued immigration through asylum seeking became a major concern for governments in receiving countries, but a concerted response proved to be difficult. A n uneven spread of applications across 30 Michael Hasenau (note 22), 133 - 158. 31 U N , Human Rights, International Instruments, Chart of Ratification as of 31 December 1994, U N Doc. ST/HR/4/rev.ll (1995). 32 U N Commission on Human Rights res. 1992/81 of 6 March 1992 and res. 1995/21 of 24 February 1995.

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asylum countries, varying countries of origin and different degrees of public pressure impeded the development of consistent reception policies. The evolution of the Schengen Agreements of 1985 and 1990 as far as they concern more consistent and rigorous external border controls, the 1990 Dublin Convention on initial handling of asylum claims and the principle of 'first host country', the adoption of carrier liability laws and the tightening of visa regimes illustrate the laborious processes pursued by the countries of the European Union (EU). Asylum seeking results de facto in entering the labor market of the host country. I n some receiving countries a right to take up employment is accorded upon entry or after a qualifying period of presence. The asylum seeker may also take up irregular employment. I L O Conventions 97 and 143 apply to migrant workers, it being understood that asylum seekers, refugees and displaced persons are protected by these standards in their capacity as workers. 3 3 The U N Convention stipulates in Art. 3(d) that it does not apply to refugees and stateless persons, unless provided for by the ratifying State, but asylum seekers are covered as migrant workers under Art. 2(1) "if they are to be engaged, are engaged or have been engaged in a remunerated activity." 3 4 Asylum seekers are thus protected by the Convention if they take up employment while their claim to refugee status is being processed. However, such an inclusion of yet another sensitive area of application is probably not suited to improve the limited ratification prospects of international standards on migrant workers.

I I I . Politics of Economic Migration International migration takes place against the background of the world economy's growing interdependence. Capital mobility and processes of economic dislocation, the global reach of multinationals, the philosophy of market-based production and the search for manpower beyond the national level shape the phenomenon. Governments realize that human resources can be exported in return for remittances and traded for profit like any other resource. Communication and transportation are becoming faster and cheaper; their proliferation and global expanse reduce the emotional distance. Three areas of priority for policy definition appear.

33

I L O General Survey (note 27), 9; I L O , Record of Proceedings of the 32nd Session of the International Labour Conference (Geneva, 1949), 1951, 285 and Annex X I I I : Migration for Employment, 578 - 579. 34

Compare Roger Böhning (note 29), 698, 707.

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1. Irregular Migration of Unskilled Workers Labor demand is changing w i t h the world economy's sectoral structure. A d vances in technology lead to a loss of labor-intensive low-skilled jobs. Advances in trade and finance lead to increased competition from and between low-wage economies, thus reinforcing the pressure on the pay and the employment of lowskilled workers. N e w technologies and the diversion of production facilities to newly industrializing countries produce a change in the structure of employment in industrialized countries away from agriculture and manufacturing towards services in tourism, recreation, health and education. I n addition, new technologies lead to the creation of new skilled jobs. 3 5 These tendencies result in a pronounced split between the markets for skilled and unskilled labor. They support the equation regular/skilled and irregular/unskilled migrant labor. Developed economies experience a diversification of the occupational structure of the labor force and a growing heterogeneity of jobs and skills. As the employment structure is becoming diversified and individualistic, processes of recruitment are necessarily getting more complex. Receiving countries need to be more selective. They focus above all on organized movements of skilled labor and actively seek specific skills. They reduce legal immigration possibilities to skilled workers and family members, leaving the demand for lowskilled workers in labor-intensive and low-paying sectors to informal labor markets and irregular migration. Unskilled migration becomes a supply-driven phenomenon. Receiving countries' policy on unskilled foreign labor is increasingly reduced to responding to those who actually want to enter. It turns into an issue of physical checks for illegal migrants at airports, borders and the workplace. A t the same time, a debate about the desirabilty of labor immigration is continuing. A t a time of high levels of unemployment even traditional countries of permanent immigration do not arrive at building a national consensus on population and immigration policy. However, the main issue is often not migration, but the formation of new ethnic minorities.

2. Multilateral

Mechanisms of Migration

Management

National borders and boundaries are increasingly permeable. Governments experience an erosion in their authority over transborder movements. They have to accept that their authority has to be exercised collectively. The perception of territorial sovereignty and the norms derived from this concept need adaptation in 35 Compare Technology and Unemployment: A World without Jobs ?, in: The Economist, 11 February 1995, 21 - 24; I L O , World Employment 1995, 1995,27 - 34.

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order to reflect changing realities. Migration is a multidimensional process that is affected by other States' policies and cannot be treated as a domestic issue. A concerted and more comprehensive approach to economic migration needs to be developed and multilateral mechanisms of migration management need to be strengthened. 36 I n particular migrant-receiving countries w i t h long traditions in immigration and established migratory networks find it more and more difficult to control immigration. Geographical exposure and the absence of comprehensive frontier checks, more importantly humanitarian considerations and public pressure restrain the enforcement of stricter controls. Irregular movements fill the gap left between national legislation concerning aliens and migration and its enforcement. This gap and the denial of a situation that results in de facto immigration risk producing public animosities. It is in this context that receiving countries resort to areas of exclusive economic cooperation. Restrictions on legal migration normally proceed w i t h the introduction of rules on privileged access for nationals of countries w i t h a specific historical, political or economic link. Economic blocs and cooperation mechanisms are successively introducing rules on free movement of persons inside their group of countries, thus restricting the scope for an isolated and independent migration policy. Examples are the countries of the Nordic Labor Market or the European Union. The Schengen Group of E U countries is today discussing common and more effective entry controls and asylum procedures which w i l l lead the E U on a long-term basis into policy harmonization on other migration issues like welfare benefits, political rights and naturalization. 37 N A F T A and A S E A N foresee the free movement of persons as future steps in their process of integration. Such mechanisms w i l l be the vehicles of cooperation and international standard-setting in the migration field.

3. National Migration Strategies The enforcement of regulatory measures, especially strict control? on immigration, is effective in creating a major obstacle to migration. But defensive migration policies fail to address the causes. They invite evading maneuvers and risk reinforcing inward-looking tendencies in receiving societies. Migration pressure, immigration and the presence of immigrant communities need to be recognized in national policy formulation. 36

Compare The Commission on Global Governance, Our Global Neighbourhood, 1995, 67 - 75. 37 Compare Klaus Zimmerman , Ansturm auf die Festung Europa, in: Frankfurter Allgemeine Zeitung, 17 June 1995,13.

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A national strategy 38 includes public migration regimes in sending, transit and receiving countries both to inform about opportunities and legal requirements and to safeguard the rights of individual migrant workers and asylum seekers. Such migration regimes put the individual's choice and decision to migrate on a firm foundation. A national strategy further includes legal migration possibilities based on skills, family links, humanitarian considerations and national interests. Regular opportunites for immigration and employment, e.g. migration schemes w i t h a focus on specific sectors or tied to specific projects, contribute to widening the individual's range of options. Being even of limited scope, they are needed to take off immigration pressure and to parry and absorb potential irregular flows. Moreover, their regulation and administration involves sending, transit and receiving countries in a policy dialogue. Such a national strategy also includes a sound coordination of migration controls. External controls, internal alien control, the passage from a temporary to a permanent status and naturalization have to be synchronized. Finally, aid policies targeted towards countries that produce migrant workers and asylum seekers, a liberalization of international trade to allow poorer countries to export their goods rather than their people and foreign direct investment to create employment opportunities would contribute to providing an alternative to emigration. 39

38

Compare Heiko Körner, Internationale Mobilität der Arbeit, 1990, 181 - 204; I L O / I O M / U N H C R (note 17), 19 - 20; Salt (note 4), 41 - 48. 39 W. R. Böhning/M. L. Schloeter-Paredes (eds.), A i d in Place of Migration? Selected Contributions to an I L O - U N H C R Meeting, 1994.

The Conventions for the Prevention of Double Citizenship and their Meaning for Germany and Europe in an Era of Migration By Otto Kimminich

I. The Shifting Positions of Nation, State and Individual in International Law " I t is for each State to determine under its own law who are its nationals." 1 These words, formulated by the representatives of thirty-one States in 1930, are still valid today. But their limitations, recognized then as well as today, have become more complicated and controversial. They are indicated in clause 2 of Article 1 of the 1930 Convention quoted above: "This law shall be recognized by other States in so far as it is consistent w i t h international conventions, international custom, and the principles of law generally recognized w i t h regard to nationality." It has become increasingly difficult to find out what is generally recognized w i t h regard to nationality. This is due to a bundle of causal factors which may be disquieting in many respects but which must be accepted as facts or at least as tendencies pointing towards substantial changes of the international order. One of the most conspicuous developments is the growing number of States as a result of decolonization and the disintegration of multiethnic States. It increases the diversity of national legislation regulating acquisition and loss of citizenship. This, in turn, not only augments the burdens of comparative studies which are necessary to establish general principles of law, 2 but also impairs the clarity of its results. Whereas older textbooks of international law simply mentioned ius soli and ins sanguinis to explain the origins of statelessness and double nationality and cited a few conspicuous examples (mostly South America - without distinction - for the former, and Continental Europe in equally indiscriminate manner 1

Article 1 clause 1 of the Convention on Certain Questions relating to the Conflict of Nationality Laws, 12 April 1930, 179 LNTS 99. 2 A t this point one may leave aside the question whether Article 1 clause 2 of the 1930 Convention really refers to general principles of law in the strict sense according to Article 38 para, lc of the Statute of the International Court of Justice, because comparative studies would be necessary also in order to establish general principles in the wider sense of global common opinion.

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for the latter), it would be necessary nowadays to examine a host of legal systems w i t h various mixtures of ius sanguinis and ius soli. A n d presentations of statutory norms might not be enough, for the exemptions in the texts of legal norms might be the rule in practice. The second factor challenging the traditional notion of citizenship lies closer to the roots of fundamental questions concerning the organization of corporate life. To understand this coherence, one must go back to the legal meaning of the terms 'nationality' and 'citizenship'. It is important to note, first of all, that nationality in the legal sense has nothing to do w i t h "nationality as a historico-biological term denoting membership of a nation", as Paul Weis puts it. 3 The German word for nationality is able to elucidate it literally: Staatsangehörigkeit means in literal translation 'membership of a State'. It is the State - and not the nation, tribe or ethnic group - to which the legal term nationality refers. O f course in linguistic terms this has to do w i t h the ambiguous meaning of the word 'nation'. I n English, it may mean an ethnic community, but it is also used to denote the State. A n d whenever the term 'nation-State' is used to emphasize that the exposition concerns only the organizational structure endowed w i t h sovereignty, German-speaking readers are inclined to think of the Nationalstaat, i.e. the State which, in the words of the famous Swiss author Johann Caspar Bluntschli , comprises only one ethnic nation. Unfortunately, Bluntschli's terse formula "a State to each nation, each State only one nation" 4 has been dubbed Nationalitätsprinzip, which creates further confusion, because its literal translation would be 'principle of nationality'. Again it is obvious that this has nothing to do w i t h nationality in the legal sense of 'membership of a State'. These vexatious incongruities have made it difficult to discuss fundamental questions of the State in any language, and they have complicated the exchange of views between Anglo-Saxon and German-speaking scholars. Therefore Paul Weis's remark is helpful in many ways. It may also serve as a bridge leading to the traditional definition of the State underlying the whole system of international law as it had evolved up to the end of the nineteenth century. Ever since international law had ceased to be the law of intercourse between sovereigns and had become the law of intercourse between sovereign States, the definition of the latter claimed a central position in doctrine and practice. Soon it became evident that it would not be acceptable in the long run to simply take the territorial units inherited from the era of monarchism as a natural or God-given definition for 3

Paul Weis, Nationality and Statelessness in International Law, 2nd ed., 1979, 3. A brilliant refutation of the erroneous thesis that nationality is a "purely formal concept w i t h no essential legal consequences flowing from i t " is presented by Siegfried Wiessner, Blessed be the Ties that Bind: The Nexus between Nationality and Territory, Mississippi Law Journal, 1986, 447. 4

Johann Caspar Bluntschli, Allgemeine Staatslehre, 6th ed., 1886, 107.

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each historical case of legal personality in international law. Rather, it was found to be necessary to elaborate general criteria for statehood. Long before the end of the nineteenth century it was communis opinio that three elements, if existing in proper correspondence, would make a State: nation, territory, supreme authority. 5 According to this theory, the difference between a State and a non-State lies in the coordination of the three elements. A State exists whenever the supreme authority emanates from the nation living on the territory in question. If that is not the case, there is only a dependent entity, perhaps a colony, a mandated or trust territory, or any other form of subservient domain. This does not mean that international law demands a government of the people, for the people and by the people. (A link between democratic government and international law has been created only recently w i t h respect to the protection of human rights, especially the right of self-determination of peoples, as evidenced in the wordings of the Declaration on the Principles of Friendly Relations of 24 October 1970.) I n spite of all the progress made in questions of human rights, international law has basically remained 'neutral' as far as the form of government is concerned. The only presupposition for the recognition of statehood is that the supreme authority wielded on the territory in question is not alien. Thus, the ultimate test for statehood is the genuine link between the three elements mentioned above. Viewed from a different angle, the nation appears as the link between supreme authority and territory: it is the group living on the territory, and it is the group consigning the label 'non-alien' to the supreme authority. But again it must be remembered that this group, so decisive for the traditional concept of the State, is not to be defined in "historico-biological terms", but exclusively in politico-legal ones. This opens the way for changes of the definition by legal instruments created as a result of political decisions. Such changes do not occur unexpectedly. Both on the national and the international level the political process of decision-making and the preparations for the enactment of laws and the conclusion of international treaties take a long time. A n d history shows that usually it is not a solitary monumental decision which brings about such a historical transformation. Rather it takes a cluster of acts and events each of which may seem paltry if taken by itself. That is the reason why contemporary observers frequently are not aware of ongoing changes. There is no doubt, however, that international law has undergone substantial changes since the end of World War I and that the whole twentieth century has been a period of change. There is also agreement that the era of 'classical international law' has definitely ended 6 and that the innovations of the new age are re5

Cf. Georg Jellinek , Allgemeine Staatslehre, 1st ed. 1900, 3rd ed. 1905, reprinted 1966, 394 - 434. 6 Cf. Otto Kimminich , History of the Law of Nations Since World War I I , Encyclopedia of Public International Law (EPIL), Installment 7,262 - 273.

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modeling the very structure of international law. 7 Since it is no coincidence that the classical period of international law was introduced by the same philosophy that brought forth the modern notion of the State,8 it should not be surprising that the fundamental changes of international law in the twentieth century coincide w i t h equally fundamental changes in thinking about States and their components. There need not be a controversy about causes and consequences. It is an interaction of forces which are presently reshaping the world. Migration is one of them. If the notion of State is undergoing change, the same must happen to the notion of nationality in the sense of 'membership of a State'. I n the final stage it w i l l be legitimate to ask whether municipal and international law still need the concept of nationality. But today this final stage has not yet been reached. The developments which have been set in motion since the end of World War I have been analyzed from various angles. From the overall viewpoint of the general history of international law concurrent results have been reached. They culminate in the hypothesis that the period of upheaval and reconstruction has not yet been terminated and that presently remnants of previous stages of development are coexisting w i t h new legal norms and institutions. Stanley Hoffmann has formulated this opinion in an especially lucid manner. He distinguishes three stages in the development of international law. The first one, which he calls "the most primitive'', is "the law of political framework. To it we owe the notion of the sole legal personality of the State." Then comes "the law of reciprocity" the purpose of which was "to seal off and confirm the sovereignty of nations, while regulating those areas of contact that would inevitably recur." The third stage is "the law of community" w i t h "joint regulation of those aspects of contact which by definition can be dealt w i t h only by ignoring national frontiers." 9 This is more than what Wolfgang Friedmann envisioned when he bestowed the epithet 'international law of cooperation' on the latest stage of development. 10 But he concurs in Hoffmann's view that in the world order established by the Charter of the United Nations all three categories of legal norms are represented, which leads Hoffmann to the conclusion that international law, like the ancient god Janus, "has one face which announces chaos, and one which promises order." 1 1 One might retort that the order of international law was somehow chaotic even in the halcyon days of its classical period. But it must be admitted that a 7

Cf Wolfgang Friedmann, The Changing Structure of International Law, 1964. Cf Otto Kimminich, Die Entstehung des neuzeitlichen Völkerrechts, in: Pipers Handbuch der politischen Ideen, vol. 3,1985, 73 - 100. 8

9 Stanley Hoffmann, International Systems and International Law, World Politics, vol. XIV, 1961, 212 - 213. 10 Friedmann (note 7), 60.

Hoffmann (note 9), 229.

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period of change looks even more chaotic, due to the fact that legal norms dating from a previous era are still binding while new rules have been established by treaties or are evolving in the form of customary law. Soft law, codes of conduct, legal norms in statu nascendi, 'morally' or 'politically' binding agreements, declarations or resolutions are further details within the picture of profusion and disarray that international law seems to offer in these times. Yet it would be an error to believe that only the rigid tenets of the traditional theory of the sole legal personality of the State in the form known to us since the time of Renaissance are guaranties of order, while all modifications of the concept of State and nation and hence nationality - must necessarily lead to disorder. Rather, the alterations brought about by a myriad of decisions, covenants, acts of State practice etc . may contribute to building a new order consistent w i t h the changes of the international system and its individual components. It requires a considerable amount of synergetic research to obtain an overall picture of the state of affairs in a given moment and of the direction in which the ongoing developments are moving. Forty years ago, Quincy Wright proposed a twelve-dimensional model for research within a single field. 1 2 Since human beings are used to seeing, thinking and comprehending in three dimensions only, this surpasses the capacities of verbal demonstration. Research concerning the functions of nationality within the context of municipal and international law is only a tiny fragment of the whole body of these synergetic efforts involving the individual, the nation, the State and the international community. This must be borne in mind, even if only a few Conventions concerning double nationality are considered. Each one of them is a part of the process of change transforming international law in the twentieth century. A n d it is quite easy to do this, because the results of such research are fairly clear. There is, first of all, recognition of the fact that nationality has lost many of its functions due to the widespread improvement of the status of aliens. Secondly, the doctrine of the sole legal personality of sovereign States has been shattered. Thirdly, the importance of sovereignty has been reduced, since power is draining away from the sovereign State. Some authors even contend that sovereignty in practice has ceased to exist, while others have pointed out that it has been transformed substantially since the end of World War I . 1 3 More than twenty years ago, Eberhard Menzel used the motto "from the sovereignty of States to the permeability of States" to describe the changing structure of international law in the twentieth century. 14 Strangely enough he did not quote John Herz who fifteen years earlier 12 Quincy Wright , The Study of International Relations, 1955, 498 - 569. 13 Cf. Werner von Simson , Die Souveränität im rechtlichen Verständnis der Gegenwart, 1965; Helmut Quaritsch, Staat und Souveränität, 1970. 14 Cf. Eberhard Menzel, Das Völkerrecht und die politisch-sozialen Gruridstrukturen der modernen Welt, in: Georg Picht/ Constanze Eisenbart (eds.), Frieden und Völkerrecht, 1973, 410.

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had expounded the thesis that the 'gunpowder revolution' at the end of the Middle Ages had given rise to the 'impermeable territorial State'.15 The era of the impermeable territorial State roughly coincides with the era of classical international law, and they have both come to an end in the twentieth century. It is appropriate to remember that the beginning and the end of this epoch were ushered in by technical innovations which revolutionized warfare and indirectly affected the organization not only of military power, but also of the State as a whole. 16 In the writings of political scientists as well as international lawyers this interrelation loomed large for the first two or three decades after World War II. Only recently have some other sources of State permeability become the object of scholarly research in these fields: worldwide large-scale migration and telecommunication. The latter has not only increased the mobility of persons and goods, but has also stimulated gigantic, quick capital flows across national frontiers, striking central banks and national economic systems like bolts of lightning. The impact of this innovation is such that territory can no longer be considered to be the most decisive factor of State power on the international level. (A beneficial side effect might be that the unquenchable appetite of the modern State for territorial acquisitions, which was a major cause of war from the age of the Renaissance until the middle of the twentieth century, is finally rendered inconsequential.) And it goes even deeper, to the core of State organization and functions. The flow of information on international electronic superhighways defies controlling efforts of States and creates links between individuals and groups that were hitherto unthinkable. On the national level, one may dream of a 'cyberdemocracy', as Ross Perot did in the early nineties in the United States. But one may also be afraid of a 'wired democracy' in which electronic populism threatens to short-circuit representative government. 17 O n the international level it might contribute to create a truly global community of mankind. But the dangers on this level are equally frightening. International law in its present form is illequipped to cope with these dangers; because it is still essentially etatocentric. Viewed from this angle, the much-deplored debility of the United Nations looks less like a malfunction of the Organization and more like an inevitable consequence of an outdated system of international law. There is even the thesis that as a result of the demise of the 'territorial State' international law as a whole has become dysfunctional. 18 According to the view presented here, this is not the case. There is no doubt, however, that many rules handed down from the period before World War I I or even World War I are indeed outdated. Our task is to sort 15

John H. Herz , International Politics in the Atomic Age, 1959. 16 Cf Stanley Hoffmann , The State of War, 1965, 88 - 122; Kenneth N. Waltz , Man, the State and War, 1959, 80 - 123. 17

Cf Robert Wright , Hyperdemocracy, Time, 23 January 1995, 53 - 58.

18

Gidon Gotlieb , Nation against State, 1993.

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them out carefully - so as not to damage the whole structure of the still functioning body of international law - and to either modify them by amendments or new interpretation, if interpretation is permissible, or create new rules by treaties or law-generating custom, or simply eliminate them. Much effort has been directed towards fulfilling this task. With respect to the phenomenon of permeability, it is interesting to note that once this idea was born, 19 it was applied not only to territory and sovereignty, but also to the third element in the concept of State, viz . the nation. The question, "Will the nation of the future be more or less permeable?" was posed thirty years ago. 20 The tentative answer offered at that time has proved to be correct: "The nation and nationalism continue to provide the integrative cement that gives the appearance of community." 21 But can the same be said of nationality? In this respect, opinions seem to differ widely. Only two years ago Wolfgang Löwer stated: "Nationality as a category has lost not a bit of its importance. On the level of international law it has been long guaranteed as a fundamental human right; by virtue of his nationality each individual has the right to reside in his home State in a safe legal order and to enjoy political rights derived exclusively from his nationality."22 But almost nine decades earlier Jakob Sieber had described how "aliens have been accorded most of the rights - and burdened with the correspondent duties - of the nationals of their countries of residence. This peaceful conquest has progressed so far that little is left of the distinguishing criteria of citizenship."23 The seeming contradiction between the two statements stems from the different viewpoints the two authors take. While Löwer looks at the problem from the platform of the (traditional) State, Sieber emphasizes the civil, cultural and social rights of individuals. One might be tempted to say that nationality has lost its distinguishing functions in the latter areas, but has retained them as far as political rights are concerned. Indeed, "the waning significance of nationality in rules concerning the protection of human rights" 24 is obvious. For this very reason, however, the attempt to elevate the importance of nationality by pointing to its status as a human right is counterproductive. It is true that the Universal Declaration of Human Rights mentions the right to a nationality in Article 15. But - quite apart from the fact that the Declaration is not binding - this right is meaningless in the context of 19

Cf. John H. Herz , Rise and Demise of the Territorial State, World Politics, vol. I X , 1957, 473 - 493. 20 Ernst B. Haas, Beyond the Nation-State, 1964, 464. 21 Id., 465. 22 Wolfgang Löwer, Abstammungsprinzip und Mehrstaatigkeit, Zeitschrift für Ausländerrecht und Ausländerpolitik (ZAR) 1993, 157. 23 Jakob Sieber, Das Staatsbürgerrecht im internationalen Verkehr, vol. 1,1907, 3. 24

H. F. van Panhuys, The Role of Nationality in International Law, 1959,219.

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international law without a definition of the specific rights that it accords the individual. Panhuys says of Article 15 of the Universal Declaration: "This is truly a testimonium paupertatis: for what is the good of a right - a right, note well, to something which in view of the very context of these rules tends to be outdated unless it gives to the individual a protection which international law by itself cannot give him." 2 5 Panhuys himself has enumerated the traditional functions of nationality in international law. They are connected with the rules governing the treatment of aliens, the application of remedies under international law, the law of sanctions (where nationality serves as an indicator of the object of reprisals), the law of warfare and the rules concerning conflicts of criminal jurisdiction. 26 They show a remarkable similarity with the remaining functions of nationality in municipal law, viz. the delimitation of the group of persons to whom a certain set of rules shall apply. Therefore de Groot defines nationality as a 'connecting concept' which associates rights and duties with people, or - in other words - a 'stand-by status', waiting to be filled with juridical contents by municipal or international law. 27 And he concludes: "Nationality is an empty shell, which is supplied with contents through acts of the State, supranational institutions or the international community using nationality as a connecting factor for the allocation of rights and duties." 28 In this sense and in this function nationality might retain some importance even in a future world order after the demise of the territorial sovereign State.

II. The Hague Conference of 1930 The clarification of the concept and functions of nationality was not the sole aim of the international conference that brought forth the first multilateral agreement on dual nationality in the twentieth century. Rather, that conference was part of the efforts of the League of Nations to promote the codification of international law. In contrast to the Charter of the United Nations, 29 the Covenant of the League of Nations did not make it a task of a specific organ of the World Organization to codify international law. Nevertheless codification was felt to be a corollary of the other tasks enshrined in the Covenant. In particular, the commission of experts installed by the Council of the League to formulate the Statute 25 /J., 221. 26 Id., 41 -180. 27 Cf. also Wilhelm Wengler; Betrachtungen zum Begriff der Staatsangehörigkeit, in: Festschrift für Walter Schätzet, 1960, 550. 28 Gerard-Rene de Groot, Staatsangehörigkeit im Wandel, 1989,13. 29 Cf. Article 13 para, l a of the Charter of the United Nations.

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of the Permanent Court of International Justice passed a resolution as early as 1920 in which it emphasized the interrelationship between codification and international jurisdiction. But it took another decade to convene the Conference for the Codification of International Law held in The Hague from 13 March to 14 April 1930. A preparatory committee had singled out the questions of nationality, the territorial sea and State responsibility which it deemed to be ripe for codification. N o results were reached in the matters of the territorial sea and of State responsibility. Thus, the Convention on Certain Questions Relating to the Conflict of Nationality Laws 30 signed at The Hague on 12 April 1930, was - apart from a protocol on military obligations31 and two protocols on statelessness32 - the only binding instrument produced by the conference. Originally, the 1930 conference was to be the first of many more codification conferences. But partly due to the limited success of the first one, partly as a consequence of global political and economic events during the thirties, none other was held. Therefore the convention on the conflict of nationality laws has remained the only contribution of the League of Nations to the codification of international law. Among the questions of nationality discussed at the conference, dual nationality assumed a high rank. Therefore the preamble of the convention solemnly confirmed the principle "that every person should have a nationality and should have one nationality only." This was repeated in the paragraph following immediately the one quoted above: "Recognizing accordingly that the ideal towards which the efforts of humanity should be directed in this domain is the abolition of all cases both of statelessness and of double nationality."33 Since the conference called upon 'humanity' - i.e. mankind in its totality - to abolish dual nationality, it must have regarded this legal status as a damaging evil. Indeed the same opinion has been voiced sixty-three years later. "Plural nationality remains an evil, because it is obviously a privilege for the holder of more than one nationality and thus violates the principle of equality." 34 In 1930 this seems to have been undisputed. The preparatory committee charged with exploring the opinions of the participants of the Conference did not question the overriding aim of battling plural nationality. "Taking as the point of departure the doctrine that questions of nationality are in principle matters within the sovereign authority of each State, and that in principle every State must recognize the right of all other States to enact such legislation as they con30 179 LNTS 89-113. 31 Protocol Relating to Military Obligations in Certain Cases of Double Nationality, 178 LNTS 227, ratified or acceeded to by thirteen States. 32 Protocol Relating to a Certain Case of Statelessness, 179 LNTS 115, accepted by six States; Special Protocol Concerning Statelessness, L N Doc. C.27.M.16.1931.V. 33 179 LNTS 93. 34 Löwer ( note 22), 158.

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sider proper with regard to the acquisition and loss of their nationality", 35 it simply asked the governments whether there were limits to the application of these two principles. The replies of the governments set the stage for the discussions at the Conference which accordingly circled around the conflict of municipal nationality laws rather than probing the benefits and detriments of plural nationality. The answers of the governments were obviously not very encouraging. In his opening address the chairman of the First Committee of the Conference, Nicolas Politis , remarked that "nationality, from whatever^ standpoint it be viewed, is, by nature, essentially a political problem. It is a matter that comes within the exclusive jurisdiction of each State, since, under international law, States are at liberty to settle nationality questions in the manner they consider most consonant with their own security and development."36 On the basis of this conviction the Conference could not discuss fundamental questions of nationality and its functions in international law, nor even those of loss and acquisition of nationality. Rather it was restricted to the domain of conflict of laws. In most cases a conflict between two nationality laws can be solved by applying the principle that it is for the legal norms of the State whose nationality is asserted or contested to decide upon loss or acquistion of its nationality. The only remaining question is whether third States are obliged to recognize these legal norms. The formula generally accepted for the answer to this question was then and is now: there is such an obligation, provided the nationality law in question does not infringe the rights of a third State. The government of the United States had explained this stance in its reply to the questionnaire of the preparatory committee, stating that "it has proceeded upon the theory, which is believed to be sound, that there are certain grounds generally recognized by civilized States upon which a State may properly clothe individuals with its nationality at or after birth, but that no State is free to extend the application of its laws of nationality in such a way as to reach out and claim the allegiance of whomsoever it pleases."37 The British reply was more complicated. The British government would "not exclude the possiblilty that the right of the State to use its discretion in legislating with regard to nationality may be restricted by duties which it owes to other States.... It follows that the right of a State to legislate with regard to the acquisition and loss of its nationality and the duty of another State to recognize the effects of such legislation are not necessarily coincident." Thus it formulated the guiding principle in more cautious words: "Even if the discretion of the State in the former case may be unlimited, the duty of the State in the latter 35 Weis (note 3), 82. 36 Acts of the Conference for the Codification of International Law, vol. I I : Minutes of the First Committee (Nationality), L N Doc. C.351(a).M.145(a). 1930.V. (1930.V.15.), 13. 37 Hague Conference for the Codification of International Law, Bases of Discussion Drawn up for the Conference by the Preparatory Committee, vol. I (Nationality), L N Doc. C.73.M.38.1929. V. (1929.V.1.), 145 - 146.

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case is not unlimited. It may properly decline to recognize the effects of such legislation which is prejudicial to its own rights as a State." 38 Although this line of argumentation is undoubtedly logical, it puts all further deliberations on the wrong track. For, starting from this view, they must proceed on the assumption that there are no limitations for the State's legislation on nationality, only some limitations for the duty of other States to recognize such legislation. The general formula to define these limitations - the 'own rights' of these other States - proved to be so vague that the Preparatory Committee was unable to propose a precise convention clause concerning this matter. It did, however, enumerate the generally recognized principles for acquisition and loss of nationality, viz. for the first case "bestowal of nationality by reason of parents' nationality or of birth on the national territory, marriage with a national, naturalization on application by or on behalf of the person concerned, and transfer of territory", for the latter case "voluntary acquisition of a foreign nationality, marriage with a foreigner, de facto attachment to another country, accompanied by failure to comply with provisions governing the retention of nationality, transfer of territory." 39 The Conference did not make use of this basis of discussion. Its First Committee (Committee on Nationality) dropped the proposed enumeration by a vote of 18 to 17. 40 In the literature investigating the outcome of the Hague Codification Conference of 1930 the failure to adopt a single principle for the acquisition of nationality at birth was harshly criticized. Since the coexistence of two generally recognized principles (ius soli and ius sanguinis ) is the chief origin of dual nationality (besides nationalization), and since it was the avowed aim of the Conference to abolish all cases of double nationality, as the preamble of the Convention solemnly declared, it is strange indeed that the text of the Convention does not make any attempt to harmonize the acquisition of nationality at birth by treaty provisions. The lack of agreement, however, was all too obvious from the beginning. The Dutch government had predicted, in its reply to the questionnaire mentioned above, that "it would be easier to obtain unanimity for a rule which admitted situations in which an individual had no nationality or two nationalities and regulated the resulting conflicts, than to establish a formula which would result in restricting to some extent the State's power of legislation."41 Accordingly

38

Hague Conference for the Codification of International Law, Bases of Discussion (note 37), 169. 39 Hague Conference for the Codification of International Law, Bases of Discussion (note 37), 20. 40

Acts of the Hague Conference for the Codification of International Law, vol. I I : Minutes of the First Committee (Nationality) (note 36), 33. 41 Hague Conference for the Codification of International Law, Bases of Discussion (note 37), 11.

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the First Committee of the Conference, charged with drafting the convention on nationality, concentrated its efforts on formulations aiming at the reduction of the number of cases of dual nationality. Especially it relied on Basis No. 15 of the Bases of Discussion offered by the Preparatory Committee. Basis No. 15 provided for the right of a person who possessed two citizenships to renounce one of them. In formulating its proposals the Preparatory Committee had not distinguished between dual nationality acquired at birth and dual nationality caused by naturalization. In a critical appraisal of the Committee's work this was considered to constitute "a grave methodological error which hindered the discussions of the Committee. It prevented, inter alia , a debate confined to the right of election at majority, as well as the consideration of a rule which would restrict the application of the ius sanguinis to the first generation born abroad." 42 Both proposals were discussed five decades later, when the problem of dual nationality flared up again. This time, however, it was (and is being) seen from a different angle. The difference of viewpoints reflects the whole development of international law between 1930 and the present. While in 1930 the reduction of the cases of dual nationality was conceived to be part of the effort to eradicate dual nationality in the interest of States, dual nationality is now gradually being accepted in the interest of individuals. The vices and virtues of dual nationality have not changed substantially. The legal problems connected with it have remained more or less the same. It is the attitude towards them which has changed under the influence of fundamental transformations of international law concerning the position of the individual and the State in the international system. Of course, even in 1930 the individual could not be ignored. After all, nationality is a legal status or a legal relationship 43 pertaining to individuals, apart from the analogous application of the concept of nationality to vessels, aircraft and companies. (The Hague conference of 1930 did not deal with such analogies at all.) But it is suggestive that in the Convention of 1930 the individual is granted a right only in Article 6 - in the context of dual nationality - while Articles 1 - 5 which expound the fundamental rules concerning nationality confirm rights and duties of States. The right of each State to determine under its own law who are its nationals is corroborated in Article 1. The next Article repeats: "Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State." The problem of dual nationality is first addressed in Article 3: "Subject to the provisions of the present Convention, a per-

42

Nissim Bar-Yaacov, Dual Nationality, 1961, 81. Randelzhofer is correct in saying that nationality comprises elements of both. Cf Albrecht Randelzhofer , Nationality, EPIL, vol. 8, 417. 43

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son having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses." Once again, it is the State whose rights are strengthened by the Convention. In the following provision, Article 4, these rights are somewhat limited, but not in favor of the individual concerned. Once again, it is one of the affected States that benefits from the curtailment of the rights of the other State. The Article reads: "A State may not afford diplomatic protection to one of its nationals against a State whose nationality such a person also possesses." A great number of German nationals who stayed behind after the expulsion of Germans from the territorries east of the Oder-Neiße line and who subsequently acquired Polish nationality without losing their German nationality suffered from this indisputable rule of international law which reduced their German nationality to the juridical construction of an 'open door'. The same was true for the Germans living in the former German Democratic Republic, after the latter had enacted its own nationality law in 1968. In both cases their German nationality under the laws of the Federal Republic of Germany unfolded its legal effect only after the individual concerned entered the territory of the Federal Republic of Germany or that of a third State that had recognized the exclusive right of the Federal Republic of Germany to diplomatic protection on his behalf. The situation of these Germans in third States gave rise to discussions about a problem that is dealt with in Article 5 of the 1930 Convention. Clause 1 of this Article reads: "Within a third State, a person having more than one nationality shall be treated as if he had only one." The question is: which one? In the times of the Cold War the answer was given predominantly along political lines. Hungary was the first Eastern Bloc country that in 1989 left these lines and gave priority to considerations of human rights which allowed it to push aside the G D R nationality of East Germans vacationing in Hungary. O n this sound legal basis Hungary was entitled to ignore contractual obligations vis-ä- vis the G D R and to allow these persons to cross the western Hungarian border on their way to the Federal Republic of Germany whose nationals they also were. Therefore Hungary deserves to be hailed not only as a protagonist of human rights, but also as a pioneer of a united Europe in which the questions of nationality are no longer being discussed only from the viewpoint of States. The authors of the 1930 Convention were far from such an attitude. In conformity with the general guideline of the Codification Conference - not to construe new rules fostering the development of international law in a specific direction, but to find out existing rules assured of general acceptance and therefore ripe for codification - they fell back on a well-established principle that was known as 'effective nationality' and that was later dubbed the theory of effective link or genuine link. It can be traced back to the nineteenth century and it was originally formulated not on the occasion of a dispute between States, but on the

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occasion of the interpretation of the Statute of the Institut de Droit International. The Statute prescribed that the share of nationals of any given State should not exceed one sixth of the total number of members. When professor Stoerk was proposed for membership in 1888, it became known that he possessed both German and Austrian nationality. He was born in Austria and taught at the University of Greifswald, Germany. The Institute established a special committee to determine which nationality should have priority. Louis Renault (France) was chairman of this committee. His report, unanimously approved by the whole Institute, contains the classical formulations that ever since have been used by writers and tribunals, including the International Court of Justice in the Nottebohm case,44 to describe the criteria for deciding which nationality enjoys priority in a given case of dual nationality. It is "the nationality of that State which unites law and facts, i.e. where he is a national and where he resides or whom he serves. In other words, it is the active nationality ( nationality active ) and not the more theoretical one which might exist besides it." 4 5 The wide use of this formula has been well documented46 and often criticized for doctrinal reasons,47 especially after the decision of the International Court of Justice in the Nottebohm case which caused a whole flood of publications on the topic. 48 Here is not the place to affirm or refute such criticism. It is a fact that the authors of the 1930 Convention stuck to the ruling opinion of that time when they formulated Article 5 clause 2 of the Convention in the following words: "Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected." It is evident that this clause does not contribute to reaching the aim of the Conference, viz. the elimination of dual nationality. But neither does it solve the problems arising from dual nationality. The right of a State to ignore the foreign nationality of one of its nationals that is residing in its own territory does not add 44

(Liechtenstein v. Guatemala), 1955 ICJ 1. 5 Annuaire de Plnstitut de Droit International, vol. X , 1888/89, 25.

4

46

One of these documentations was obviously prompted by the Hague Conference of 1930: Christoph Pfeiffer, Das Problem der effektiven Staatsangehörigkeit im Völkerrecht, 1933. 47

Cf. David Renton , The Genuine Link Concept and the Nationality of Physical and Legal Persons, Ships and Aircraft, 1975. 48 Weis (note 3), 318 - 321 has listed fifty-two of them. His own view was that the 'link theory' was "an effort to bring the law into conformity w i t h reality. It has, however, to be applied w i t h caution" (Paul Weis, Effective Nationality, in: Liber Amicorum F. Schnitzer, 1979, 512).

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much to the rights that that State may derive from the principle of territorial jurisdiction applied to foreign nationals residing in its territory. It does exclude diplomatic protection by the foreign State whose nationality the person in question also possesses. But that does not mean very much in view of the fact that diplomatic protection does not infringe the principle of territorial jurisdiction and is therefore restricted to cases in which nowadays respect for human rights offers the same guaranties. Above all, it does not remove the fear engendered by the most important corollary of dual nationality, viz. the right of the holder of dual nationality to be allowed under all circumstances to enter the territory of the other State. It is a well-established rule of international law that each State is obliged to permit its nationals - and only them - to enter its territory. Since, on the other hand, the right to leave a country - including that of the person's nationality - is a human right, 49 the holder of more than one nationality can easily leave one country in which he has enjoyed the benefits of local nationality, whenever he deems the obligations connected with it too burdensome. At this point the real problems arise. They would be solved if the States concerned agreed on the expatriation of such persons under certain circumstances, which would effectively reduce the cases of dual nationality. Such a solution was intended by the so-called Bancroft Treaties concluded in 1868 between the United States and several German States. They were named after the American Minister to Prussia, George Bancroft (who entered into this position in 1867 and stayed on as ambassador to the German Empire until 1874). Bancroft negotiated them bilaterally between the United States and the North German Federation, 50 the United States and Bavaria, 51 the United States and the Grand-Duchy of Baden, 52 the United States and Württemberg 53 and the United States and the Grand-Duchy of Hesse. 54 The first one of them served as a model for the rest. Article I of this treaty provided that a citizen of the North German Federation that became a naturalized citizen of the United States and "shall have resided uninterruptedly within the United States for five years" was to be held by the North German Federation to be a US citizen and vice versa. Article I V added: "If a German naturalized in America renews his residence in North Germany without the intent to return to America, he shall be held to have renounced his naturalization in the United States." Again, this provision was reciprocal. 49 Cf. Article 13 clause 2 of the Universal Declaration of Human Rights; Article 12 clause 2 of the International Covenant on Civil and Political Rights: Guy Goodwin-Gill , The Movement of Persons between States, 1978. 50

Treaty of 12 February 1868, Bundesgesetzblatt des Norddeutschen Bundes 1868, 228. Treaty of 26 May 1868, Regierungsamtsblatt für das Königreich Bayern 1868,2153. 52 Treaty of 19 July 1868, Gesetz- und Verordnungsblatt für das Großherzogtum Baden 1869, 579. 53 Treaty of 27 July 1868, Regierungsblatt für das Königreich Württemberg 1872,172. 51

54

Treaty of 1 August 1868, Großherzoglich-Hessisches Regierungsblatt 1869, 597.

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The authors of the Convention of 1930 did not find such a specific solution. The vague formula of Article 5 of the Convention reflected the state of the art concerning the effective link theory in 1930 and strengthened that theory within its train of development in the decades before and after the signing of the Convention. 55 It offered no instrument for the solution of this specific problem which is not even the most important one within the wide domain of the conflict of nationality laws - over and above that what the application of the theory of effective link, as hitherto practiced, could achieve. It did not even attempt to be more specific about details in the manner of the Bancroft Treaties. The same holds true for the problems of renouncement which are intrinsically connected with dual nationality when viewed from the effective link angle. During the deliberations of the First Committee of the Conference, representatives of countries of immigration opposed conferring on naturalized persons the right to renounce either of their nationalities.56 "As a result, Article 6 of the Convention was confined mainly to persons who had acquired dual nationality at birth." 57 Article 6 reads: "Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing two nationalities acquired without any voluntary act on his part may renounce one of them with the authorization of the State whose nationality he desires to surrender. This authorization may not be refused in the case of a person who has his habitual and principal residence abroad, if the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied." It was this specific failure of the Convention to remove at least one obstacle for persons trying to get rid of the burdens of dual nationality that prompted the United States to refuse to sign the Convention. This motivation was officially noted eighteen years later: "While the Convention embodied agreement on such questions as the general principle governing conferment of nationality and diplomatic protection of persons of dual nationality, no agreement proved possible on important questions of substance such as the removal of the principal causes of double nationality and of statelessness and the right of expatriation. Mainly owing to the solution - or semblance of solution - adopted by the Conference on the latter subject, the United States declined to sign the Convention." 58 Thus, the result of the Conference was meager also in terms of signatures and ratifications. Altogether thirty-six States signed the Convention, but until World War I I it became binding for only twelve of them, viz. Australia, Belgium, Brazil, Great Brit55

Cf Ruth Donner , The Regulation of Nationality in International Law, 1983, 44 - 96. Acts of the Hague Conference for the Codification of International Law, vol. I I (note 40), 75. 57 Bar-Yaacov (note 42), 81. 56

58 Survey of International Law, Memorandum Submitted by the Secretary General, U N Doc. A / C N . 4 / 1 of 18 November 1948,44.

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ain, Canada, India, China, Monaco, the Netherlands, Norway, Poland and Sweden; seven States acceeded after World War II: Cyprus (1970), Fiji (1972), Lesotho (1974), Malta (1964), Mauritius (1969), Pakistan (1953) and Swaziland (1970). 59

I I I . The Convention of 1963 A whole generation later, the world looked very different from 1930. Dictatorships had risen and had been toppled again, a devastating war had shaken the world and had left nothing untouched, it seemed. But the problem of dual nationality had remained, and the solutions found in the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 60 which was signed in Strasbourg on 6 May 1963, were not radically different from those of 1930. This time it was not the global organization of States which tried to tackle the problem, but a regional one, viz. the Council of Europe. Accordingly, the following sixteen States were signatories of the Convention: Austria, Belgium, Cyprus, Denmark, France, the Federal Republic of Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Turkey, and Great Britain. The Convention came into force on 28 March 1968 after two States (France and Italy) had deposited their instruments of ratification in accordance with Article 10 para. 2 of the Convention. The Federal Republic of Germany ratified on 29 September 1969. 61 Presently the Convention as a whole is binding for ten States (Austria, Denmark, Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Norway, Sweden); three more States (Ireland, Spain, Great Britain) have ratified only the second part of the Convention which deals with military obligations in cases of multiple nationality. The aim of the Convention of 1963 is described in its preamble in less stringent words than in the preamble of the 1930 Convention. Multiple nationality is not denounced as an evil to be overcome by all means. Rather, the parties to the Convention declare "that cases of multiple nationality are liable to cause difficulties and that joint action to reduce as far as possible the number of cases of multiple nationality, as between member States, corresponds to the aims of the Council of Europe." N o explanation of the aims of the Council of Europe is given in the preamble. It might be argued that since the unification of Europe is the distant aim of the Council of Europe, it would have been more consistent to increase not to reduce - the number of cases of multiple nationality, as between member States, and to take away the burdens of that status from the individuals con59

Richard Plender (ed.), Basic Documents on International Migration Law, 1988,19. 60 634 U N T S 221. 61 Bundesgesetzblatt (BGBl.) 1969 II, 1953.

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cerned. But on the other hand, the Convention of 1963 must be seen in the wider context of the development of thinking about the means, not only the distant aims, of European integration. It reflects the conviction that in spite of the increasing solidarity and homogeneity of Europe, sovereign States still form the basis of this regional organization. Thirty years later this is still the case, but - as mentioned before - sovereignty has changed its conceptual meaning and has lost much of its segregating power, and the efforts at creating European Unity have reached a higher stage of intensity and achievement. That is why the Convention of 1963 may need new interpretation, amendment or even abrogation. A definite decision on these alternatives presupposes thorough analysis of the provisions contained in the Convention. The wording of the Articles of the 1963 Convention which will be briefly surveyed below suggests a regrettable affinity with the spirit of the 1930 Convention. But the preamble indicates progress in a direction that would allow re-interpretation in the sense of new developments concerning State and nationality in general and European integration in particular. Such progress has been observed in scholarly writings. It has been noted that although the efforts are still directed towards the reduction of multiple nationality, "It is, in the last analysis, not multiple nationality itself which is considered to be undesirable. It is the disharmony of rights and duties and of expectations resulting from legal norms and acts based on the different nationalities of the person concerned, which is undesirable." 62 The provisions of the Convention of 1963 are limited in many ways. Just as the Convention of 1930, the Convention of 1963 does not even try to establish a uniform rule for the acquisition of nationality at birth, and confines itself to persons "who acquire of their own free will, by means of naturalization, option or recovery, the nationality of another Party." The consequence is stated clearly: they "shall lose their former nationality. They shall not be authorized to retain their former nationality" (Article 1 para. 1 of the Convention). If such persons are minors, the legal consequence stipulated in Article 1 para. 1 of the Convention is somewhat mitigated by Article 1 para. 2 which limits the loss of nationality to the cases in which the minors "have been duly empowered or represented." These certainly are the normal cases, but at least this provision excludes cases in which minors would be victimized. Article 1 para. 3 extends the consequence spelled out in Article 1 para. 1 to minors who have acquired the second nationality not of their own free will (or that of their representative) but ipso jure through naturalization, option or recovery of nationality of their parents. Article 1 para. 3 clause 2 adds: "Where only one parent loses his former nationality the law of that Contracting Party whose nationality the minor possessed shall

62 Hans von Mangoldt , Öffentlich-rechtliche und völkerrechtliche Probleme mehrfacher Staatsangehörigkeit aus deutscher Sicht, Juristenzeitung (JZ) 1993, 966.

16 GYIL 38

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determine from which of his parents he shall derive his nationality." And finally, in the next paragraph: "The Party of which the minor referred to in the foregoing paragraph possessed the nationality may lay down special conditions on which they may recover that nationality of their own free will after attaining their majority." 63 Here, at last, is a hint of consideration of the individual's will and interest. But the international agreement does not give room to it directly. Rather it only opens the way for municipal law working in this direction. The spirit of 1930, which leaves the regulation of nationality matters to the discretion of the sovereign State, was still active in 1963. The same spirit can be felt in Article 1 para. 4 of the Convention, which stipulates that the law of the Contracting Party whose nationality the person concerned possesses shall determine the age of majority, the conditions of capacity and representation etc., and even more so in Article 2, which deals with renouncement and effective nationality. In both cases the sovereignty of the State is obviously given priority. But a closer look reveals some progress. In the Convention of 1930 the right of election was accorded to persons "possessing two nationalities acquired without any voluntary act" on their part. The Convention of 1963 guarantees this right to any person who possesses two or more nationalities of Contracting Parties, of course only "with the consent of the Contracting Party whose nationality he desires to renounce" (Article 2, para. 1). For those persons who possess that nationality ipso jure , Article 2 para. 2 of the Convention of 1963 repeats the general conditions under which the State may not withhold its consent in a slightly more specified form. Whereas the Convention of 1930 demanded "habitual and principal residence abroad" and added the requirement that "the conditions laid down in the law of the State whose nationality he desires to surrender" be satisfied, the Convention of 1963 establishes a clear minimum time ("the past ten years") for "ordinary residence outside the territory" of the first Party involved and inside the territory of the second one, without mentioning any other conditions laid down in the laws of the latter. A special moderation was created for minors: "Consent may likewise not be withheld by the Contracting Party in the case of minors who fulfil the conditions stipulated in the preceding paragraph, provided that their national law allows them to give up their nationality by means of a simple declaration and provided also that they have been duly empowered or represented." The last paragraph of Article 2 confirms the principle that the age of majority, the conditions for being empowered etc. are governed by the law of the Contracting Party whose nationality the person in question desires to renounce. Arti63 Since that clause expressly mentions "the minor" (singular) in the official text of the Convention reproduced in 634 U N T S 224, the plural used later in the same clause ( " . . . they may recover" and " . . . their majority") seems inconsistent. The official German version in BGBl. 1969 I I , 1954 uses the singular form in all three cases.

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cle 3 forbids levying a special tax on renunciation. Article 4 returns to the general aim of reducing multiple nationality. It reads: "Nothing in the provisions of this Convention shall preclude the application of any provision more likely to limit the occurrence of multiple nationality whether embodied or subsequently introduced into either the municipal law of any Contracting Party or an other treaty, convention or agreement between two or more of the Contracting Parties." The second part of the Convention (Articles 5 - 6 ) deals with military obligations in cases of multiple nationality. It confirms the principle that persons possessing this status shall be required to fulfil their military obligations in relation to one State only. The modes of application of this principle are left to special agreements between the States concerned. In view of the wide discretion that the Convention of 1963 leaves to the States signatory it is hardly justified to say that "in this Convention under the auspices of the Council of Europe the States have consented to a far-reaching limitation of their sovereignty." 64 A survey of State practice shows, however, that States have tended to follow the lines that the two Conventions of 1930 and 1963 have traced. A long list of bilateral treaties as well as national laws give evidence of the States' endeavor to avoid multiple nationality.65 But since the coexistence of the two principles for the acquisition of nationality at birth (ius soli and ius sanguinis) remained unquestioned, dual nationality was and is unavoidable in many cases. And even in the cases of acquisition of nationality by naturalization, exemptions had to be made. A good example is § 25 of the German Citizenship Law of 22 July 1913. 66 In the tradition of the Bancroft Treaties it stipulates in the first paragraph that a German who acquires a foreign nationality of his own free will without having habitual residence or domicile in Germany thereby loses his German nationality. But the second paragraph adds that German "citizenship is not lost by one who before acquiring foreign citizenship has secured on application the written consent of the competent authorities of his home State to retain his citizenship. Before this consent is given, the German consul is to be heard." This has induced a foreign observer to remark that the German law of 1913 "may be noted as one of the first of the major nationality laws to recognize the status of dual nationality, going further in this matter than Britain or the United States at that time." 67 But in Germany, bureaucratic practice in applying § 25 para. 2 of the Citizenship Law has been criticized as being "very restrictive". 68 In a circular letter of the Federal Ministry of the Interior of 26 November 1979 the authorities are 64

Karin Kammann, Probleme mehrfacher Staatsangehörigkeit, 1984,245. Cf Donner (note 55), 155 - 159; Hellmuth Hecker, Staatsangehörigkeitsfragen in zweiseitigen Verträgen der Bundesrepublik Deutschland, 1988, 27 - 30; Kammann (note 64), 239 - 245; Weis (note 3), 189 - 196. 65

66

Reichs- und Staatsangehörigkeitsgesetz, Reichsgesetzblatt (RGBl.) 1913, 583. 67 Donner (note 55), 157. 68 Kammann (note 64), 246.

1*

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admonished to grant their consent only if grave concerns of the applicant make it necessary, provided that it is reconcilable with public responsibilities or if there is a special public interest in dual nationality, as e.g. in cases in which refusal of the consent would impede official programs in foreign countries, cultural contacts, development aid and the like. 69 However, the majority of cases involving dual nationality do not stem from naturalization of German citizens abroad, but from naturalization of foreigners in Germany. In accordance with the general tendency to avoid dual nationality, the authorities demand that the applicant should make all efforts to get rid of his foreign nationality. The Conventions of 1930 and 1963 are often quoted in this context to prove the existence of this general tendency. As has been shown above, this is correct as far as the preamble of the Convention of 1930 is concerned, and - to a lesser degree - also the preamble of the Convention of 1963. But neither convention contains any stipulation that is directly applicable to the question of admissibility of naturalization. The Convention of 1930 mainly regulates the conflict between nationality laws. The Convention of 1963 aims at reducing dual nationality in cases of naturalization by providing for the loss of the previous nationality of the person to be naturalized. It does not oblige the State to deny naturalization to persons that are unable or unwilling to give up their previous nationality. Only by facilitating the renunciation of nationality do both conventions contribute indirectly to the proclaimed aim of reducing multiple nationality. Moreover the impact of the 1963 Convention is lessened by the possibility of declaring reservations in accordance with Article 8 of the Convention and its Annex (apart from the possibility of limiting the act of ratification to the second part concerning military obligation, as provided in Article 7 para. 1 of the Convention). Article 8 of the Convention regulates the general questions of reservations and their withdrawal and points to the Annex for the material contents of such reservations. Points 2 and 4 of the Annex refer to married women. Leaving them out, the Annex reads: "Any country may declare that it reserves the right: 1. to make the loss of nationality referred to in Article 1, paragraphs 1, 2 and 3, subject to the condition that the person concerned already ordinarily resides or at some time takes up his ordinary residence outside its territory, except where, in the case of acquisition of a foreign nationality of his own free will, such person is exempted by the competent authority from the condition of ordinary residence abroad; . . . 3. to allow any of its nationals to retain his previous nationality if a Contracting Party for whose nationality he applies in the manner referred to in Article 1 gives its prior consent thereto." 69 The circular letter of 26 November 1979 (Federal Ministry of the Interior V I I 5-124 110-25[2]/l) is quoted at id. New guidelines have been issued on 12 November 1981 (Gemeinsames Amtsblatt des Landes Baden-Württemberg (GABI. BW) 1981, 1838) confirming the principles of the previous circular letter.

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The Federal Republic of Germany declared reservations 1 and 3 at the time of ratification of the Convention. 70 It has withdrawn reservation 1, effective on 1 January 1975. 71 Reservation 1 was a must for Germany because of § 25 of the Citizenship Law, as mentioned above. Reservation 3 opened a possibility for retaining the previous nationality in excess of § 25 para. 2 of the Citizenship Law. The withdrawal of reservation 1 has created a complicated situation for German nationals that have been naturalized in a foreign country, but have continued to reside habitually in Germany. According to § 25 of the Citizenship Law they have not lost their German citizenship. Article 1 para. 1 of the Convention of 1963 would deprive them of their citizenship, i.e. would force the German authorities to declare the loss of their citizenship. Reservation 1 avoids that consequence, but the withdrawal of the reservation reinstated the stipulation contained in Article 1 para. 1 of the Convention of 1963. It has been argued that the withdrawal is void, because it could not be effected by simple notification, but required a new Parliamentary Act on the part of Germany. 72 In addition, so the argument runs, the principle of effective link casts doubt on the nationality acquired by naturalization without habitual residence in the country that has pronounced this naturalization. Therefore the person concerned must be considered to have retained his old nationality in spite of Article 1 para. 1 of the Convention of 1963. 73 There have been attempts to extend the significance of the Convention of 1963 beyond the domain of its express wording in order to comprise the conditions of naturalization as well. 7 4 As shown above, such attempts can hardly be successful, because they go beyond the possibilities of interpretation. And there are even more reasons to repudiate them: "Although such an interpretation might promote the basic aspiration of the Convention to reduce the number of cases of multiple nationality, it obviously does not (any longer) correspond to legal opinion and State practice of the majority of the signatories of the Convention." 75 All tendencies of international law and political thought point in the opposite direction, away from the attempts to curb multiple nationality. Many writers emphasize that the increasing mobility of people on a global scale and especially within Europe has effectively thwarted all efforts to reduce multiple nationality. 70 Notification of 8 September 1969, BGBl. 1969 II, 1962. 71 BGBl. 1974 II, 1588. 72 Cf. Albert Bleckmann, Völker- und verfassungsrechtliche Probleme des Erwerbs und Verlusts der deutschen Staatsangehörigkeit, 1992,1/34. 73 Id., 1/52. 74 Cf. Kay Hailbronner, Einbürgerung von Wanderarbeitern und doppelte Staatsangehörigkeit, 1992, 43; Manfred Zuleeg, Doppelte Staatsangehörigkeit - ein gangbarer Weg?, in: Klaus Barwig (ed.), Aufenthalt - Niederlassung - Einbürgerung, 1987, 255. 75 Günter Renner, Verhinderung von Mehrstaatigkeit bei Erwerb und Verlust der Staatsangehörigkeit, Z A R 1993, 21.

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Even in Germany, which has been accused of a restrictive naturalization practice, the number of naturalized citizens retaining their previous nationality has risen drastically. 76 More than twenty years ago the Federal Constitutional Court raised doubts about the 'evil theory' of dual nationality and suggested that the disadvantages of dual nationality may have lost some of their weight. It did so with due respect for the Conventions of 1930 and 1963 and corresponding municipal law. Mentioning the Convention of 1963 expressly, it stated: "It is true that on the national and the international level dual or multiple citizenship is regarded as an evil to be avoided or removed in the interest of both the States and the citizens concerned." 77 But in the decision concerning acquisition of German nationality at birth in cases of a German mother and a non-German father it concluded: "From the point of view of the child the disadvantages of dual nationality do not outweigh the advantages of possessing the mother's nationality in addition to that of the father, and there is no overriding public interest in barring children who are foreign nationals from the community of German nationals."78 After carefully analyzing all arguments for and against the acceptance of multiple nationality - perusal of the text shows that no new arguments have been added in the two decades that have elapsed since then - it repeated pointedly: "From the viewpoint of the child the disadvantages of dual nationality are not substantial enough to override the child's interest in having the nationality of his/her German mother. This is especially the case if the child lives or wishes to live in the Federal Republic. The residual interest of the State in reducing multiple nationality, resulting mainly from organizational aspects, is to be respected, but it is not strong enough to push aside the constitutional principle of equality of father and mother in nationality law." 79 Following this decision, § 4 clause 1 of the German Citizenship Law was amended in such a way as to confer German nationality at birth to legitimate children in all cases in which either the father or the mother possessed German nationality.80 As against the previous wording of the clause, which conferred German nationality only in cases in which the father possessed German nationality, the new stipulation opened a veritable floodgate for the creation of cases of dual nationality, notwithstanding the loudly avowed respect for the Convention of 1963.

76 I n its reply to a Parliamentary Interpellation, presented on 3 February 1992, the Federal Ministry of the Interior declared that no statistical data are available. It admitted, however, that the number of cases of multiple nationality is "rising steadily" in the Federal Republic of Germany. Cf. Deutscher Bundestag, 12. Wahlperiode, Drucksache 12/2035,2. 77

Decision of 21 May 1974, Entscheidungen des Bundesverfassungsgerichts (BVerfGE), vol. 37, 1975,254. 7

» Id., 254. Id., 257.

79

80 The new law, Gesetz zur Änderung des Reichs- und Staatsangehörigkeitsgesetzes (RuStA-ÄndG) of 20 November 1974, BGBl. I, 374, went into effect on 1 January 1975.

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The most remarkable aspect of this turn of events in Germany is the fact that in the considerations of the Federal Constitutional Court the interests of the individual have been given priority over the interests of the State. Ever since the emergence of the concept of nationality in the nineteenth century, these questions had been discussed almost exclusively from the viewpoint of the State. This is evident most lucidly in the doctrine of diplomatic protection, which has long been considered to be a corollary of nationality. It is construed as a right of the State vis-a-vis another State. Borchard , the classical writer on the subject, explained the theoretical foundation for the State's right to present claims of its nationals on the international level in the following words: "This State, in demanding redress, does not represent the individual who has sustained the injury, and does not give effect to his right, but to its own right." 81 Altough this does remain a fundamental tenet of the law of diplomatic protection, the doctrine of international law has come a long way in distancing itself from the views about the relation between the individual and the State underlying Borcbard's formulation. A whole cluster of factors have joined forces to change the position of the individual in international law and, correspondingly, the position of the State in the international order. 82 This does not mean that conventions like those of 1930 and 1963 have become obsolete or may be interpreted contrary to their wording. The limits of interpretation must be respected in all situations. But it means that both conventions have lost much of their factual importance. For Germany, the dwindling importance of the Convention of 1963 also results from the fact that three of the major countries of origin for potential cases of dual nationality, viz. Turkey, Greece and Yugoslavia, are not parties to the Convention. The citizens of the foreign States that have ratified the Convention amount to about twenty per cent of the total number of aliens living in Germany. 83 Only recently the whole development has been summarized by Günter Renner: "Apart from these factual changes of the last three decades, which have not been limited to Germany, a gradual but distinctly discernible change of legal thinking and practice has taken place in other countries. A glance at the European countries most important for Germany in this respect shows that the attitude towards multiple nationality has changed substantially."84 He was able to refer to a comparative survey of twenty-five European countries. 85 A wide field of specula81 Edwin Borchard , The Diplomatic Protection of Citizens Abroad, 1915,18. 82 Cf Otto Kimminich, Der internationale Schutz des Einzelnen, Archiv des Völkerrechts (ArchVR), 1972, 402 - 424; Otto Kimminich, Gegenwärtiger Stand und Entwicklungstendenzen der Souveränitätslehre und Souveränitätspraxis, in: Eduard Kroker/Theodor Veiter (eds.), Rechtspositivismus, Menschenrechte und Souveränitätslehre, 1976, 97 - 109; Otto Kimminich, Die Staatensouveränität wird durchlässig, Vereinte Nationen, 1993, 5 - 10. 83 Cf Helmut Rittstieg, Doppelte Staatsangehörigkeit im Völkerrecht, Neue Juristische Wochenschrift (NJW) 1990,1403. 84 Renner (note 75), 23.

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tion is opened when the progress of European integration is considered. There is no doubt that in its present stage it has not yet pushed aside the concept of nationality nor has contributed to solving the problems of multiple nationality. It is still the Council of Europe which - within the limits of its authority - is competent for questions of nationality, or rather the conflict of nationalities. But the importance of these questions is waning with the growing strength of the European Union. In addition the Council of Europe has indicated that it, too, perceives the winds of change. In its Recommendation 1081 (1988) the Assembly of the Council of Europe emphasized that legitimate children of parents possessing different nationalities should acquire both nationalities at birth. In this context the Assembly expressly stated that the efforts to avoid multiple nationality need to be reconsidered. As a result the second Protocol Additional to the Convention of 1963 was drafted. It permits the States Parties to the Convention to provide for continuing possession of previous nationality in cases where the national who applies for naturalization in another State bound by the Convention has been born on the territory of the latter or has taken his habitual residence in that country before the age of eighteen.86 This would remove a restriction of sovereign rights brought about by the Convention of 1963. The Federal Republic of Germany has not signed the Protocol, and neither have the other Member States of the Council of Europe, with the exception of France and Italy. Nevertheless, observers have noted "a partial change in European policy concerning the prevention of multiple nationality." 87 The profound transformations of thinking about nationality, the individual and the State in international law are not confined to Europe. The process of European integration may have promoted them; European stubbornness could not impede them. The Convention of 1963 should not be seen in either of these two lights. The Council of Europe happened to provide the forum for discussing a problem that had existed long before the Council was established, and also far from its geographical range. It tackled the problem not exactly in the spirit of the Convention of 1930, but still in the same vein. The solutions that both of the conventions found are understandable and feasible. But if the developments indicated in the first part of the present survey continue, which is more than likely, there will be a time in the future when the two conventions offer solutions for a problem that no longer exists, or for a situation that is no longer considered to be a problem.

85

Günter Renner, Mehrstaatigkeit in Europa, Z A R 1993, 49 - 60. The Protocol was signed at Strasbourg on 2 February 1993. Its text has been published in Klaus Barwig et al. (eds.), Vom Ausländer zum Bürger, 1994, 411 - 412. Cf. also Horst Schade, Mehrstaatigkeit - neue Entwicklungen im Europarat, id., 408 - 410. 87 Cf. von Mangoldt (note 62), 966. 86

France's and Germany's Constitutional Changes and their Impact on Migration Law - Policy and Practice By Karin Oellers-Frahm and Andreas Zimmermann"

Introduction Today's Western Europe, which can be characterized as an area of economic prosperity, is the destination of numerous people who flee their home country either in order to build up a new existence elsewhere or because they are victims of political persecution in their home country or civil war has made it impossible for them to remain. The first group, commonly referred to as economic refugees, is larger than the second one, which for the most part consists of persons who can be recognized as political refugees. While in general the admission of economic refugees is regulated by the respective immigration or alien laws adopted by the national parliaments, taking into account the economic and political situation, the treatment of political or otherwise persecuted persons is the subjectmatter of international conventions, in particular the Geneva Convention Relating to the Status of Refugees of 19511 and its 1967 New York Protocol 2. Furthermore several national constitutions recognize the right of asylum as a fundamental right. There exists a correlation between the demand for asylum and the immigration politics of the State concerned: the right to asylum is more often claimed and more frequently unfounded when a State's immigration policy is restrictive, as is actually the case throughout Western Europe. Thus, States such as France and Germany, which granted a nearly identically formulated fundamental right of asylum, were in times of a general restrictive immigration policy the destination of large numbers of refugees. Whenever a pure application for asylum is linked with a mandatory admission of the applicants on the territory of the State concerned, it seems evident that this right is relied upon solely in order to be ad* Status of manuscript: 31 May 1995. The part on France has been written by Karin Oellers-Frahm while the German part has been prepared by Andreas Zimmermann. 1 189 U N T S 137 [hereinafter Geneva Convention]. 2 606 U N T S 267 [hereinafter 1967 Protocol].

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mitted to the State's territory. The applicant can eventually disappear if the case is dismissed. In order to cope with these and connected problems France and Germany adopted stricter legislation. Reform was even more urgently needed because with the creation of a common European internal market, controls at the interior borders between the Member States of the European Union were de facto abolished. The European States tried to address this situation by adopting the Dublin Convention3 and Schengen Convention4 which determine the State responsible for applications for asylum. These developments have however initiated a constitutional conflict in France and Germany due to their respective guarantee of the right of asylum as a fundamental right. The solution of this conflict in both States and the consequences resulting therefrom shall be treated in the following observations.

I. Developments in France 1. Introduction: The Factual Situation Concerning Immigration and Asylum and the Interrelationship Between the Two Concepts The main regulating factor that influences the French legislation in immigration matters is the economic situation. During periods where the French economy needs foreign workers in order to respond to an increased demand or in order to fill less attractive or poorly remunerated jobs for which French employees may not be found, the laws on immigration are loosened; in the opposite case appropriate restrictive action is taken. Thus, it may be said that it is not the human dimension or the personal situation of the foreigners which govern the laws on immigraton but at least to a large extent national economic interests. While President Mitterrand had in the beginning of his first presidential term made an attempt to render the laws on aliens more human by regularizing the situation of illegal foreigners and suspending expulsion measures, the economic interests have meanwhile led to restricting or abolishing this generous attitude. Thus the current politics, while trying to integrate already admitted foreigners, particularly those of the second generation, attempts to restrict the influx of new immigrants to fight illegal immigration. 5 3 Dublin Convention of 15 June 1990 reprinted in: 30 I L M 427 - 444. 4

The Schengen Convention implements the Schengen Agreement of 14 June 1985. (For the Schengen Implementation Convention see note 27.) The Schengen Agreement is reprinted in: 30 I L M 73 - 83. 5

See lean Yves Vincent , Le regime juridique des etrangers en droit fran^ais, in: Jochen Abraham Frowein/ Torsten Stein , The Legal Position of Aliens in National and International Law, vol. 1,1987, 433, 438.

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Although recent and exact statistical data is not available the statistics on the growth of population show a permanent increase in the percentage of aliens living on French soil. These statistics, however, do not contain the illegal immigrants so that the figures do not really reflect the actual situation. According to official figures 6 the number of aliens who legally immigrated to France amounted to 3,607,590 in 1992, which equals approximately 6.4 % of the total population; 2,708,087 thereof were older than 15 years and thus employable; 56 % of these persons effectively had work. According to the same source 115,796 of these aliens had obtained a provisional permit of residence in 1990. This number increased to 124,413 in 1991. Through 1991 the number of recognized refugees according to the United Nations High Commissioner for Refugees (UNHCR) amounted to 195,000 persons; the French authorities, on the contrary, counted only 140,000 refugees. This development in the field of immigration led to a restrictive immigration policy which in turn led to an increased recourse to the right of asylum, which gives the applicant at the minimum a right to enter French territory. While the number of asylum seekers had been about 20,000 persons per annum in the beginning of the 1980s, it increased to about 60,000 in 1989 and stabilized, on the basis of the new legislation, at about 25,000 a year for 1993/1994. During the same period the total number of recognized asylum seekers decreased from 77.72 % in 1981 to 27.94 % in 1993 with the lowest total reaching 15.44 % in 1990. As to the geographic distribution of asylum seekers the figures for 1994 show 8,269 applications coming from European States, 26.32 % of which have been recognized; 6,898 applications from persons arriving from Asia, 38.07 % of which were granted; 10,009 from persons coming from Africa, with only 9.12 % of these accepted as refugees; 616 from persons coming from America, of whom 27.48 % were granted asylum and 172 from stateless persons or persons of unspecified origin, of which 33.47 % were granted asylum.7 It should be further mentioned that in cases where the application for asylum is dismissed, expulsion rarely takes place because frequently in these cases the persons concerned simply disappear and continue to stay illegally.8

6 See Pierre Bringuier, Droit d'asile et Migration en France dans les annees recentes, Journees de la Societe de la legislation comparee, 1993, 83. 7 See Nicole Guimezanes , Le Statut juridique des refugies, Revue internationale de droit compare, 1994, 605 et seq.; for the statistical data see Activite de rO.F.P.RA., Bilan statistique de Pannee 1994, Annexe I and Bilan de treize annees de fonctionnement de PO.F.P.R.A. 1981 - 1993, Demandes-Decisions, Annees 1981 - 1993. 8 See Nicole Guimezanes , L'arret de Pimmigration en France, Commentaire de la loi n 93-1027 du 24 aoüt 1993 sur la maitrise de Pimmigration, La Semaine Juridique, 1994, 1 et seq., in particular 15, where she mentions that out of 53,692 persons to be removed from French territory in 1992 only 16 % were really removed. The rest had disappeared.

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The fact that while more and more foreigners are claiming the right of asylum the number of those actually recognized as refugees is decreasing - as is shown by the statistics - demonstrates that the trend in French legislation has tended not only to restrict immigration, but also the availability of asylum. The generally satisfactory rules regarding recognition of refugee status and that of asylum seeker were severely affected by new legislation, making the claim of refugee or asylum seeker from a right into a 'non-right\ 9 This statement is confirmed in a particularly impressive manner by the law 92-190 of 26 February 1992:10 this law prescribed financial sanctions for transport agencies such as navigation and aviation companies who carry aliens not in possession of the required documents to France. Although the law provides that those sanctions will not be imposed when the person concerned applies for asylum and asylum is later granted, it shifts problematically the initial consideration of the right of asylum from State authorities to private enterprises. The practice has a further negative effect on the right of asylum in that the agencies - in order to avoid the sanctions - simply refuse to transport all those persons who are not in possession of the required documents. This practice constitutes a severe restriction on the right of asylum which has been further intensified by the 1993 revision of the Constitution.

2. The Legal Situation of Asylum Seekers in France Before 1993 a) Constitutional Rules The right of asylum was first granted in the French Constitution of 24 June 1793 and reappeared only 150 years later in the Preamble of the Constitution of 1946.11 Paragraph 4 of the 1946 Preamble grants the right of asylum to any person persecuted because of his action in favor of liberty. 12 This right has also been incorporated into the current Constitution of 1958 by the fact that the Preamble of the 1958 Constitution refers not only to the human rights and principles of national sovereignty as defined in the 1789 Declaration on human and civil rights, but also to the Preamble of the 1946 Constitution which confirmed and completed these rights. However, para. 4 of the 1946 Preamble has in practice been of little importance. This is due to the fact that, on the one side, no law enacting the right of asylum as provided for in para. 4 of the Preamble has ever been adopted. Instead, the laws applied in asylum cases are those adopted for the implementa9

See Bringuier (note 6), 85 and Guimezanes (note 7), 606.

10 Journal Officiel de la Republique Fran^aise (J.O.), 29 February 1992. 11 See Roger Pinto, Le Conseil constitutional et la Cour Supreme des Etats-Unis confrontes au droit international. Entree et sejour des etrangers, Journal du Droit International, 1994, 303,313. 12 Para. 4 reads in the original text: "Tout homme persecute en raison de son action en faveur de la liberte a droit d'asile sur les territoires de la Republique."

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tion of the Geneva Convention on Refugees. On the other side, the legal character of the rules contained in or referred to in the Preamble of the 1958 Constitution had not been clarified at that time; accordingly, it was not clear whether the right of asylum was part of the bloc de constitutionnalite , that is the rules of constitutional value and thus had to be observed by each legal act of lower rank and subject to amendment only by the special procedure laid down in Art. 89 of the Constitution. It was only in 1971 that the Conseil Constitutionnel which may grosso modo be compared to a constitutional court, confirmed the constitutional value of all the texts referred to in the Preamble of the 1958 Constitution.13 For the right of asylum this important decision was however without any practical consequences because the existing laws which implemented the Geneva Convention on Refugees worked satisfactorily. Furthermore, in France there is no judicial remedy comparable to the constitutional complaint in Germany that may help define the exact contents of such rights. 14 In addition, the French judicial order does not provide any means to test whether the law implementing the Geneva Convention and other laws concerning the entry of foreigners violate the right of asylum. This is due to the fact that laws can only be reviewed as to their constitutionality prior to their proclamation (Art. 61 of the Constitution). Once in force, only an act of Parliament can enact an amendment or abrogation. The only exception to this rule is found in the Conseil Constitutional's decision of 25 January 1985.15 There the Court stated that it could review a law already in force when considering a law adopted by Parliament but not yet in force that amends the said law or changes its scope of application. However, until now, this statement has not been applied in practice. In view of the recent jurisprudence of the Conseil Constitutionnel , there seems to be good reason for the Court to eventually act according to its 1985 decision with regard to the right of asylum, since the right of asylum, as became evident after the recent decisions of the Conseil Constitutionnel , is not identical to the definition of refugee under the Geneva Convention. According to the Convention, any person is recognized as a refugee 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 his country. . . T h i s definition is wider than the one contained in the 1946 Preamble which presupposes not only an action in favor of liberty but also an actual persecution, while the Geneva Convention also refers to a well-founded fear of persecution. Therefore the opinion prevailed that the application only of 13

Decision of the Conseil Constitutionnel of 16 July 1971 on the freeedom of association. See L. Favoreu/L. Philip , Les grandes decisions du conseil constitutionnel, 6th ed., 1991,237. 14 See Claus Dieter Classen , Asylrecht in Frankreich: Zur Bedeutung der verfassungsund völkerrrechtlichen Vorgaben, Die öffentliche Verwaltung, 1993, 227. 15 Decision of 25 January 1985, Recueil des decisions du conseil constitutionnel, 1985, 263.

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the larger rule, i.e. that of the Convention, cannot lead to a breach of the narrower rule, namely the one contained in para. 4 of the 1946 Preamble. This opinion does not seem altogether convincing because the application of the wider rule does not necessarily imply respect for the narrower, more specific one which may require special consideration differing from that in applying the more general rule. According, however, to the just mentioned prevailing opinion, para. 4 has not been referred to in judicial decisions which always relied only on the Geneva Convention and the respective implementing law of 1952.16 The Conseil d'Etat, which - besides other duties - also functions as the highest administrative court, has been very explicit in this regard. It stated that para. 4 of the 1946 Preamble was not sufficiently precise to be applied directly but could only be applied "under the conditions and within the limits defined in the statutes in force or in international Conventions incorporated into French law." 17 The Conseil Constitutionnel , which, as has been mentioned, is empowered to review the constitutionality of laws prior to their entry into force, has in fact been confronted with the question of compatibility of legal acts with para. 4 of the Preamble. It however never reviewed any law against the right of asylum, finding that the right of asylum was not involved, since nothing in the law impaired the application of the Geneva Convention.18 In the same year, more particularly on 17 July 1980, the Conseil Constitutionnel had to examine a law approving the ratification of an international convention on legal cooperation. It found that no provision of the Convention could impair in any way the right of asylum as laid down in the 1946 Preamble and reaffirmed in the 1958 Constitution. And finally, in its decision of 3 September 1986,19 the Conseil Constitutionnel considered that the principle of asylum has been concretized by laws and by the Geneva Convention. The Conseil Constitutionnel thus approached the position held by the Conseil d'Etat in the decision of 1985. On the basis of the above remarks it may be concluded that for a long time the constitutional right of asylum has not played any significant role in French asylum matters.

b) International Rules On the international level, the Geneva Convention as amended by the 1967 Protocol has been applicable in France since its ratification in 1954 and according 16 J.O., 27 July 1952. 17

Decision of 27 September 1985, France , Terre d'Asile, Recueil des arrets du Conseil d'Etat, 1985,263. 18 Decision of 9 January 1980 concerning the law amending the ordinance of 1945 on the entry and residence of foreigners in France, Recueil, 1980,21. 19 Decision of 3 September 1986, Recueil 1986, 135.

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to Art. 55 of the French Constitution enjoys priority over French laws. The Convention, however, does not explicitly mention a right to asylum. It refers to "asylum" in its Preamble but nowhere in its operative part. The text refers to refugees, defining the term and indicating the treatment to be accorded refugees in certain areas such as justice or employment. Moreover, it prohibits penal sanctions for illegal access and residence of refugees as well as their expulsion into countries where they have to fear for their life and liberty. Despite the Convention's reference only to refugees, the drafters believed that the status of refugee was inseparable from the right of asylum.20

c) Implementation and Procedural Rules

The most important law governing the right of asylum, which however does not even mention it, is the law of 25 July 1952.21 This law has to be considered as the implementation law of the Geneva Convention although it was adopted prior to France's ratification of the Convention in 1954. This law provides for the procedure by which a foreigner or stateless person who fulfils the conditions laid down in the Geneva Convention may be granted refugee status. On the basis of this law two organs have been created: the Office for the Protection of Refugees and Stateless Persons (Office Frangais de Protection des Refugies et Apatrides , OFPRA), which decides on the requests of persons who claim to be refugees, and the Commission de Recours des Refugies , a judicial body empowered to review decisions of the OFPRA and whose decisions may in turn be reviewed by the Conseil d'Etat. Thus, the procedure for recognition as a refugee is a judicial one involving, as all administrative proceedings did until 1988, two levels. As to the concrete procedure only one point shall be mentioned here, 22 namely the one concerning admission of the claimant to the national territory. For those asylum seekers who arrived at the French borders, a first control was provided by the air and frontier police. If the police were of the opinion that the person concerned evidently did not fulfil the conditions for asylum, admission could not be simply refused, but the matter had then to be referred to the Minister of Internal Affairs. Together with a representative of the UNHCR the Minister decided about admission. If, however, the request for asylum was not considered to be 20 The relationship between .being granted asylum and the status as a refugee has explicitly been established by the Schengen Convention of 19 June 1990 which states in Art. 1 that the request for asylum aims at obtaining the status as a refugee according to the Geneva Convention. 21

See note 16. For a detailed description of the procedure see Karin O eller s-Fr ahm, Grundlagen des Asylrechts in Frankreich, in: Kay Hailbronner, Asyl- und Einwanderungsrecht im europäischen Vergleich, 1992,29. 22

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manifestly unfounded, the asylum seeker had to be admitted to French territory for a certain period in order to permit him or her to bring a claim before the OFPRA If the request was dismissed the asylum seeker could challenge this decision before the Commission within one month. The interesting consequence of this alternative was the fact that the procedure before the Commission, which constitutes a judicial body, had no suspensive effect and that consequently the asylum seeker had no right to remain on French territory until the final decision had been taken. In practice, however, an asylum seeker was never expelled while the case was pending. This state of affairs was confirmed in 1985 by a circular of the Ministry of Interior 23 and subsequently in a decision of the Conseil d'Etat of 13 December 1991 in which it was explicitly stated that according to the Geneva Convention a claimant who had already stayed on French territory had a right not to be expelled until a final decision was reached. In the same decision the Conseil d'Etat affirmed this right even where the request for asylum had been lodged only after the delivery of the act of expulsion. Only when the application for asylum was manifestly and exclusively aimed at impeding the expulsion was the right to remain on French territory not to be granted. 24

II. History Leading to the Revision of the Constitution From the above observations it can be seen that the right of asylum as laid down in para. 4 of the 1946 Preamble played more or less the role of 'Sleeping Beauty in the Woods'. While under the Convention, France had the obligation to recognize the status of refugee for any person fulfilling the conditions set out in the Convention, this did not convey a subjective right to asylum seekers whereas the right laid down in para. 4 of the 1946 Preamble does convey what appears to be a right to the individual and recognizes the corresponding obligation of the State to admit the asylum seeker on its territory. Since, however, the French legislator, as already mentioned, did not give any precision to what exactly constitutes an "action in favor of liberty" or "persecution because of that action" the right of asylum was never applied as such but only reflected that as laid down by the Geneva Convention and the implementing legislation. This application of the right was completely in line with the French delegation's position at the negotiations for the Geneva Convention where recognizing the status of refugee and a right of asylum were treated as the same thing and the individual right of asylum was subjected to the right of the State to grant or not to grant asylum by defining freely the conditions of access to its territory. 25 23

See Andreas Zimmermann, Das neue Grundrecht auf Asyl, 1994, 60. See Ronny Abraham, La reconduite ä la frontiere des demandeurs d'asile, Conclusions du commissaire de gouvernement, Revue Fran9aise du Droit administratif (RFDA), 1992, 90. 24

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Keeping this state of affairs in mind it is rather spectacular that the Conseil Constitutionnel by three decisions gradually altered this attitude and ultimately clearly distinguished the individual right of asylum from the obligation to recognize the status of refugee. This change of attitude occurred just at a moment when the assimilation of both these concepts had been generally recognized by the Schengen Convention and the Dublin Agreement. Both state in their first article that the request for asylum aims at the recognition of a person as a refugee according to the provisions of the Geneva Convention. The reasons for the sudden change in the jurisprudence of the Conseil Constitutionnel were not spelled out by the Court, but it may be supposed that there were two main reasons leading to the 'discovery' of the right of asylum. First, a discussion had been initiated in Germany with regard to Art. 16 para. 2 of the Basic Law and the corresponding judicial practice which clearly distinguished between the refugee status and the right of asylum. French authorities became conscious of the fact that the right of asylum in para. 4 of the 1946 Preamble was nearly identical to that provided for in the Basic Law and that perhaps this should be respected in practice. Second, France has traditionally feared seeing its sovereignty restricted in any way. This fear had already become evident in the context of the admission of new members to the European Communities and the introduction of the direct elections to the European Parliament 26 as well as in a series of other decisions with regard to international relations. It was also one of the main concerns underlying the Conseil Constitutional's review of the ratification of the Schengen Convention which led to the first decision of the Conseil Constitutionnel marking the change in its jurisprudence.

1. The Three Decisions of the Conseil Constitutionnel a) The Adoption of the Schengen Convention and the Decision of 25 July 1991 The Schengen Implemention Convention of 19 June 199027 had been adopted in order to supplement the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Border Controls at the Common Frontiers. It has to be seen in the context of the Dublin Convention of 15 June 1990 Determining the State Re25

See Constanze Grewe/ Helene Ruiz Fahri , Le Conseil constitutionnel et Pintegration europeenne, Revue Universelle des Droits de l'Homme, 1992, 277,290 et seq. 26 Decision of 29/30 December 1976, Assemblee europeenne. 27 Convention Applying the Schengen Agreement of 14 June 1985 Between the Governments of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders of 19 June 1990, reprinted in: 30 I L M 84.

17 GYIL 38

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sponsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities.28 Both Conventions are placed in the context of the achievement of the internal market as regards free movement of persons and aim at impeding asylum seekers from lodging their application in more than one Member State within the zone of free movement.29 According to French law the ratification of most international treaties requires approval by statute of Parliament (Art. 53 of the Constitution). Like all statutes, those approving access to an international treaty may be challenged before the Conseil Constitutionnel prior to their proclamation. Since a 1974 revision of the Constitution the opposition, that is at least 60 deputies or senators, also may seize the Conseil Constitutionnel ; that amendment of the Constitution had the effect that nearly all important statutes are nowadays brought before the Conseil Constitutionnel . In the present case 60 deputies of the then opposition challenged the law approving the Schengen Implementation Convention claiming the violation of sovereignty, the continuity of the life of the nation, the fundamental rights of the citizens and particularly of the right of asylum. With regard to the last they claimed, however, merely that the provisions contained not enough guarantees as to the criteria for determining the State responsible to examine the request so that it was not sure that all applications for asylum would effectively be examined. Although the authors of the claim referred thus only to procedural guarantees, the Conseil Constitutionnel answered the question under the material aspect of the right of asylum. It stated that according to the Convention and irrespective of the determination of the responsible State, any State may for reasons of its national law examine any application for asylum (Art. 29 para. 4 of the Convention). The Convention thus did not affect the right of asylum laid down in the French Constitution since French authorities remained free to examine applications based on the right of asylum even if according to the Convention another State would be competent. In this decision the Conseil Constitutionnel , for the first time, recognized that the right of asylum of para. 4 of the 1946 Preamble was not identical to the recognition of the status of refugee but had its own significance.

28 See note 3, 427. 29

As there were some discrepancies between the two Conventions a third Agreement, the Protocol of Bonn of 26 April 1994 has been concluded which supplements the two Conventions by providing that the provisions of the Schengen Implementation Convention concerning the examination of requests for asylum laid down in Title I I Chapter 7 of the Convention w i l l no longer be applicable after the entry into force of the Dublin Convention. This, however, is not relevant w i t h regard to the decision of the Conseil Constitutionnel which was only dealing with the Schengen Implementation Convention.

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b) The Decision of 25 February 1992 This development has been confirmed in a decision of 25 February 1992 concerning questions of the constitutionality of a law on the conditions of access of aliens to French territory. In this law the legislator had provided for the creation of transit zones in international airports and maritime ports. Asylum seekers could be maintained in such zones until the authorities had decided upon their request. The reason for this provision was evident, namely to avoid that the asylum seeker, once admitted on French territory, could not be expelled in case of dismissal of his application because he had 'disappeared'. In its decision the Conseil Constitutionnel profoundly changed the original aim of this provision by stating that only those asylum seekers whose applications for asylum were manifestly unfounded could be detained in the transit zones. Transit zones were to thus function as zones of departure and expulsion for those whose application for admission would be dismissed in any case. These asylum seekers are consequently treated like other aliens not admissible on French territory under the immigration laws. The logical consequence of this decision seemed to be that all those asylum seekers whose application was not manifestly unfounded had to be admitted to French territory in order to apply for recognition before the OFPRA. The Conseil Constitutionnel thus supplemented the decision of the Conseil d'Etat according to which asylum seekers who already were present on French territory may not be expelled for the reason that they are not in possession of the required documents, but that they have a right, according to the Geneva Convention, to remain on French territory until the decision of the OFPRA. 30 Both decisions together lead to the conclusion that the Conseil Constitutionnel and the Conseil d'Etat support admission of asylum seekers on French territory whenever the application is not manifestly unfounded. The question what exactly is meant by 'manifestly unfounded', however, was not treated by the Conseil Constitutionnel but has been answered in a rather unsatisfactory way in the laws of 6 July 199231 and 24 August 1993.32

c) The Decision of 13 August 1993 The third decision which has to be mentioned in this context finalized the development of the right of asylum as an independent, directly applicable right. 33 30 Decision of 13 December 1991. As to the the requirements of the Geneva Convention, see Jochen Ahr. Frowein/Andreas Zimmermann, Der völkerrechtliche Rahmen für die Reform des deutschen Asylrechts, 1993. 31 J.O., 9 July 1992,9185. 32 Law 93-1027, J.O., 29 August 1993,12196.

33 See Constance Grewe/Albrecht Weber, Die Reform des Ausländer- und Asylrechts in Frankreich, Europäische Grundrechte Zeitschrift, 1993, 496.

17*

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The law that had been brought before the Conseil Constitutionnel provided for new rules restricting immigration and was challenged for several reasons.34 In the present context only the part concerning asylum will be treated. The law contained four reasons for refusing an asylum seeker access to French territory, namely: 1. the determination of the responsibility of another State according to the Schengen Implementation Convention, Dublin Convention or similar conventions which might be enacted in the future; 2. the situation where the asylum seeker has effectively to be admitted in another State than the one from which he fears persecution; 3. the case where the presence of the asylum seeker constitutes a threat to public order; and 4. the case where the application is based on fraud or constitutes a manifest misuse of the procedure or is lodged only in order to impede expulsion measures. In all these cases the law provided consequently that the asylum seeker was also barred from applying to the OFPRA for recognition as a refugee. The considerations of the Conseil Constitutionnel are based on the statement that there exists a right accorded to each foreigner and solemnly proclaimed in the Constitution that any person persecuted for his action in favor of liberty enjoys the right of asylum (considerant 4). The conditions of exercising this right may be defined by the legislator, however only in the sense to render it more effective and in any case aiming to assure under all circumstances all of the legal guarantees of that constitutional requirement {considerant 81). On the basis of these considerations the Conseil Constitutionnel came to the following conclusions: first, that each asylum seeker who claims the right of para. 4 of the 1946 Preamble has to be admitted to French territory, at least until a decision on his application has been taken {considerant 84), and second, that the provisions in international conventions determining the responsibility of another State for the examination of the application are as such not incompatible with the Constitution; however, they are not applicable to persons who invoke the right of asylum according to para. 4 of the 1946 Preamble. In this case the French State has, according to national law, an obligation to examine the application so that in this respect the sovereign power of the State with regard to the other contracting States prevails in order to assure complete respect of this obligation.35

2. The Essence of the Controversy The controversy which finally led to the revision of the Constitution resulted out of the interrelation of the Conseil Constitutionnel' % decisions. While the 34 Law adopted finally on 24 August 1993. For details see Guizemanes (note 8), Semaine Juridique, 1994, 1. 35

See Bruno Genevois , U n Statut constitutionnel pour les etrangers, R F D A , 1993, 882.

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Court in its decision of 1991 accented the sovereign right of the State to examine applications for asylum according to its national law despite an international convention such as the Schengen Implementation Convention, this right had been converted into an obligation in the 1993 decision. The reproach repeatedly expressed, namely that the decisions contradict each other, is however not founded because, in the 1991 decision, the Conseil Constitutionnel had stated, with a view to the Schengen Implementation Convention, that this Convention did not contradict the Constitution because it allowed the application of national law under certain circumstances (Art. 29 para. 4 of the Convention). In the 1993 decision the Court focused upon the national law, which could be applied according to the explicit provision in the Convention; what exactly was required by the national law was the subject matter then examined in detail by the Conseil Constitutionnel . A further objection concerned the issue that, according to the decision of 1993, the application for asylum according to para. 4 of the 1946 Preamble always required an examination by French authorities and could thus affect the provisions of the Schengen Convention; the competence of the State responsible on the basis of the Schengen Convention would be undermined if because of the right of asylum in the French Constitution the French authorities had to examine - once more - any application for asylum. However, since this result is provided for by the Convention, legal objections are not pertinent. Furthermore, it was contended that the other States Parties to the Schengen Convention might consider themselves exempted from their responsibilty because of the fact that the French authorities would in any case examine at least whether the application was well-founded or not. The effect of this decision was the creation of a legal situation in France like that which existed in Germany before the German revision of the right of asylum: asylum seekers had an individual right to have their application examined by French authorities. That corresponded exactly to the situation in Germany before the revision of Art. 16 of the Basic Law. 36 Restrictions are merely possible, with regard to the decision of 25 February 1992, for manifestly unfounded or improper applications; until now these terms have not been clearly defined. The well-founded preoccupation that appeared in France after these decisions was that the asylum seekers whose application had been dismissed in the State responsible according to the Schengen Convention would come and apply once more in France since they had an individual right of having their request examined and, connected therewith, a right to be admitted - at least temporarily - on French territory and thus a chance to disappear if their request was refused. In 36 See Kay Hailbronner , Ziele und Schranken einer europäischen Asylrechtskoordinierung, Neue Zeitschrift für Verwaltungsrecht, 1989, 303.

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particular with regard to the amendment of the right of asylum in Germany and the introduction of lists of safe countries, this fear seemed justified. The French government was consequently highly interested in a solution which would not oblige the French authorities to examine all applications for asylum with the consequences deriving therefrom such as, in particular, admission of the applicant on French territory. Therefore, the government enacted a bill in order to reach this goal. By doing so, however, a conflict arose with respect to the 1993 decision of the Conseil Constitutionnel concerning the question whether the Constitution had to be amended in order to allow that the application in France of the rules of the Schengen Convention on the determination of the State responsible for the examination of applications for asylum could be provided for by an ordinary legislative act. Because of the rules concerning the revision of the French Constitution, 37 the Prime Minister, on suggestion of the President of the Republic, requested an advisory opinion of the Conseil d'Etat.

3. The Advisory Opinion of the Conseil d'Etat The question submitted to the Court was not exactly whether the Constitution had to be amended but rather whether by ordinary legislation the aim, namely the strict application of the Schengen Convention with regard to the State responsible for the examination of an application for asylum, could be reached.38 Without commenting on the carefully chosen terms of the question we will consider only the Court's answer to the question whether an ordinary law was sufficient to reach the goal aimed at by the government. The essence of the advisory opinion clearly said that the strict application of Art. 29 I I I of the Schengen Convention, according to which only one Party to the Convention is responsible for the examination of a request for asylum, may not be reached in France by the adoption of an ordinary law. This would not be compatible with the Constitution which contains a right of the individual to have his application examined by a 37 See Frangois Luchaire , Le droit d'asile et la revision de la constitution, Revue du droit public et de la science politique en France et ä Tetranger, 1994, 5, 21 and Michel Fromont, La Convention de Schengen et le droit d'asile en France, in: Ulrich Beyerlin/Michael Bothe/ Rainer Hofman/ Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt , 1995,1177. 38

The question read: Les regies fixees par la decision du Conseil Constitutionnel du 13 aoüt 1993 autorisentelles le Gouvernement ä faire adopter par le Parlement une disposition legislative permettant ä la France de ne pas etre contrainte ä examiner, ainsi que la Convention de Schengen Ten dispense, une demande d'asile formulee par une personne - se disant persecutee pour son action en faveur de la liberte - dont le cas releve, en vertu de la Convention d'un autre Etat, et par voie de consequence, de ne pas etre obligee de Taccueillir, füt-ce ä titre provisoire, sur le territoire national? As to the legal appreciation of the terms of the question see Luchaire (note 37), 22 et seq.

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French authority. This right, laid down in para. 4 of the Preamble of the 1946 Constitution and reaffirmed in the Preamble of the 1958 Constitution, could only be amended by means of a constitutional law. The Conseil d'Etat did not limit its advisory opinion to this statement, however, but immediately made some proposals as to how to proceed in the concrete case, since it was common opinion that an amendment of para. 4 of the Preamble was not desired. It proposed instead a specific provision concerning the cooperation with other Parties to the Convention respecting the same rules with regard to the examination of requests for asylum. By means of an ordinary law only the procedure of the examination of applications for asylum could be regulated; para. 4 of the Preamble would allow at most an urgent procedure for cases in which the application was manifestly unfounded; as a concrete example for such a situation, the Court cited explicitly the case in which the applicant came from a secure third State. In such cases, according to the Court, the applicant might be maintained in special places which are not part of the penal system. And the Court underlined explicitly that, even if Art. 29 para. 4 of the Schengen Convention instituted only aright of Convention Parties to apply their national law, this did not affect the fact that under para. 4 of the 1946 Preamble France had an obligation , not merely a right, to do so. Thus the Court had clearly stated that, according to its (non-binding) view, the obligation to examine applications for asylum flowing from para. 4 of the 1946 Preamble could only be restricted by means of a constitutional law. 39

III. The Revision of the Constitution It should be underlined once more that the aim of the revision of the Constitution was not intended to be a restriction of the right of asylum as laid down in para. 4 of the 1946 Preamble, but the elimination of the obligation to examine each application based on that right. This exception, however, should only be applicable for those cases in which an international convention determined the responsibility for the examination of the application for asylum to belong to another State Party to that convention who, furthermore, recognized the same standards of human rights as France. Even the introduction of such a provision was not free from constitutional concern since the recognition of the responsibility of another State makes applicable the national law of that State which may differ from the French national law; the same concern was valid for the right of defense of the individual which had also been recognized as a fundamental, constitutional right by the Conseil Constitutionnel in its 1993 decision. Already in 1985 the Conseil Constitutionnel had stated explicitly that national sovereignty would be affected if France would not itself care for the guarantee of fundamental rights, 39

For the full text of the advisory opinion see Luchaire (note 37), 41 et seq.

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meaning that a restriction of the right to examine applications for asylum by French authorities would constitute an unconstitutional restriction of sovereignty.40 From that statement it follows that restricting French authorities' obligation to examine requests for asylum under para. 4 of the Preamble in favor of foreign States would require a transfer of sovereignty like that needed for France to ratify the Treaty of Maastricht. 41 As in the case of the Treaty of Maastricht the procedure chosen in the case of the Schengen Convention was not the amendment of the constitutional provision concerned but the adoption of a constitutional provision allowing the application of the treaty provisions that otherwise would have been unconstitutional. The revision of the Constitution, adopted in conformance with Art. 89 of the Constitution first by both Houses of Parliament and then in a common session of both Houses as Congress,42 allows France to conclude agreements with other European States who are bound by the same agreements concerning human rights and asylum with regard to determining their respective responsibility for examining asylum applications. According to para. 2 of the provision, however, France reserves the right to grant asylum to persons persecuted for their action in favor of liberty according to para. 4 of the Preamble even if another State would be competent in the particular case. This provision has been introduced as Art. 53-1 under Title V I of the Constitution concerning international treaties and conventions.

IV. The Legal Situation of Asylum Seekers After the Revision After the revision of the Constitution the legal situation of asylum seekers differs according to the country from which the asylum seeker arrives. Before the adoption of the revision the general situation of asylum seekers as laid down in the law finally adopted after the Conseil Constitutionnel's 13 August 40

Decision of the Conseil Constitutionnel of 22 May 1985, Recueil, 1985,15. See decision of the Conseil Constitutionnel of 9 April 1992 and constitutional law of 25 June 1992, text to be found in Revue du droit public et de la science politique en France et ä Tetranger, 1992, 608, 981; see also Luchaire (note 37), 28. 42 As to details of the procedure of the revision of the Constitution see Luchaire (note 37), 26 et seq. The amendment of the Consitution reads: La Republique peut conclure avec les Etats europeens qui sont lies par des engagements identiques aux siens en matiere d'asile et de protection des Droits de l'homme et des libertes fondamentales, des accords determinant leurs competences respectives pour Texamen des demandes d'asile qui leur sont presentees. Toutefois, memes si la demande n'entre pas dans leur competence en vertu de ces accords, les autorites de la Republique ont toujours le droit de donner asile ä tout etranger persecute en raison de son action en faveur de la liberte ou qui sollicite la protection de la France pour un autre motif. 41

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1993 decision43 did not allow French authorities to simply reject an asylum seeker arriving at the frontiers or to remove an asylum seeker already present on the territory. According to the decision of the Conseil Constitutionnel , the law provided that asylum seekers had to be granted in any case at least the right to be admitted to or, if already present, to remain on French territory in order to have an application based on para. 4 of the 1946 Preamble examined by the OFPRA Asylum seekers already present on French territory could therefore remain until the OFPRA, and in case of recourse to the Commission de Recours also the Commission, had delivered their decisions. Even in the case that one of the reasons for rejection according to Art. 3Ibis, 2 to 4 of the 1945 ordinance is present, 44 the same is valid with the only exception being that the right to remain on French territory is granted in those cases merely until the OFPRA decision has been delivered, not also that of the Commission.45 In case of a negative decision, the measures provided for in the 1945 ordinance concerning the removal of the asylum seeker whose application has been dismissed are applied. For those asylum seekers arriving at the frontiers the situation was slightly different. In fact, they could not be rejected immediately, but also had the right to apply for asylum before the OFPRA; however, according to Art. 35 quater para. 1 of the 1945 ordinance, they could be held in the zones of departure until it was determined whether their application was manifestly unfounded or not. Detailed provisions regarding the holding of asylum applicants in departure zones as well as the holding of asylum seekers already present on the territory but not finally admitted were provided by the 1945 ordinance. 46 After the revision of the Constitution, this legal process for handling asylum applicants, which had been created to implement the constitutionally guaranteed right of asylum unambigiously recognized by the Conseil Constitutionnel in its 1993 decision, was no longer generally applicable. The revision, which was explicitly aimed at changing the prevailing liberal attitude towards asylum applicants at least with regard to those arriving via a European State bound by the Schengen 43 Loi n 93-1027 du 24 aoüt 1993 relative ä la maitrise de ^immigration et aux conditions d'entree, d'accueil et de sejour des etrangers en France (note 32). This law inserted as the main new provisions with regard to asylum a new Chapter V I I into the ordinance of 2 N o vember 1945 concerning the conditions of entry and stay of foreigners in France. For the complete text as amended as of 27 December 1994, see Journal Officiel, 28 December 1994, 18536. 44 J.O., 28 December 1994, 18536. Those reasons are first that the applicant had effectively to be admitted by another State than the country of persecution, second that his or her presence in France constitutes a grave threat to the public order and third that the application is based on reasons which constitute an abuse or fraud or aims at avoiding an imminent expulsion. 45

Art. 32bis para. 2 of the 1945 ordinance, id. For details, which include various and effective means of recourse and supervision by the judicial authority see Guimezanes (note 8), 12 et seq. 46

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or a similar Convention, had the effect of restricting the right of asylum which had been recognized finally as a subjective, individual right. The new Art. 53-1 of the Constitution changed the law so that France no longer had the obligation to examine such applications for asylum brought by asylum seekers arriving via European States, but merely the right to do or not to do so. Thus, for the first time in the history of the Fifth Republic, the Constitution had been revised in order to invalidate a decision of the Conseil Constitutionnel . In fact, the constitutional law n 93-1256 of 25 November 1993 concerning international agreements on asylum allowed the reintroduction, through legislative act n 93-1417 of 30 December 1993, of some of those provisions that had just been declared unconstitutional by the 1993, decision of the Conseil Constitutionnel, 47 The effect of these provisions is, that the right to lodge an application for asylum with the OFPRA and following therefrom the right to be admitted to French territory or at least to remain in a zone of departure until the OFPRA has examined the application is not applicable to those asylum seekers whose request is to be examined, according to an international Convention such as the Schengen or a similar convention, by another State determined by that Convention. Nevertheless, according to Art. 53-1 para. 2 of the constitution, nothing in these provisions impairs the right of the French authorities to grant asylum also in these cases. As far as we know, concrete criteria as to the conditions under which the right to grant asylum will be exercised according to Art. 53-1 para. 2 of the Constitution do not exist at the moment. However, under the rule of law it seems indispensable to adopt corresponding rules and regulations in order to have some guidelines on how to proceed and thus to avoid any impression of arbitrariness. But perhaps France is waiting also in this context until Germany has taken action on questions of this kind which are actually pending before the Constitutional Court. The first experiences with the new legal system are however not reassuring and show the uncertainties remaining in this context after the entry into force of the Schengen Convention on 26 March 1995. One such experience concerns two Romanians who lodged an appeal before the administrative court of Lyon, according to the provisions of the 1945 ordinance, against the decision of the Prefect of Lyon ordering their removal from French territory. The two, who were seeking asylum and already present on French territory at Lyon, had several times already applied for asylum in Germany where their request had been dismissed. That information as well as an order for their 'non admission/request for removal' was given by the information system under the Schengen Convention after a request from the French authorities in Lyon. In such a case, the asylum seekers are not immediately removed but have the right to challenge the decision 47 See Veronique Fabre-Alibert , Reflexions sur le nouveau regime juridique des etrangers en France, Revue trimestrielle des Droits de Phomme, 1994, 519, in particular 539 et seq. and Jean-Claude Masclet , Les politiques d'immigration, Revue politique et parlementaire, n 947, 59.

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within 24 hours. The judge granted the remedy considering that the information system had given incomplete information, failing to mention details of the German decision of refusal as for example the period of interdiction to enter the territory of a Schengen State. The Court was careful to deliver its judgment within 24 hours before the applicants could be removed from French territory, as provided in Art. 22bis of the 1945 ordinance, rendering their maintenance on French territory possible. The appeal being granted, the applicants had the right to bring their case before the OFPRA and to be admitted to remain on the territory until the decision of the Office was delivered. 48

V. Probable Impact of the New Rules on the French Asylum Practice The number of asylum seekers has always been markedly lower in France than in Germany, because the individual right to asylum did not play a significant role as compared to the recognition of refugee status according to the Geneva Convention. Whether this state of affairs would have changed considerably after the 1993 decision of the Conseil Constitutionnel is a question of speculation since just after an absolute right of asylum had been recognized, it was restricted by the revision of the Constitution. As discussed earlier, this development was not caused by an increased immigration movement but predominantly by the new restrictive politics in asylum matters in Germany in the context of the realization of free movement in the internal market in the European Communities. If, as seems probable, the French internal regulations will, as a rule, provide for the general application of the Schengen Convention, and only as an exception for the application of Art. 29 para. 4 - that is the competence of French authorities even if another State would be competent to examine a particular request for asylum according to the Convention - the asylum practice will not change markedly. The reason for this lies in the fact that the revision of the Constitution has the effect that the old state of affairs, namely the non-recognition of asylum as an individual right, will be maintained de facto at least for all asylum seekers arriving via a European State. Since France, unlike Germany, is not surrounded by Schengen States or by socalled secure third States, there exists the problem of the 'open flank' west and particularly south of France and the possibility of a not negligible influx of foreigners from North Africa. For asylum seekers arriving from North Africa the 48 See Philippe Bernard in: Le Monde, 8 April 1995. I n the same edition of Le Monde H. de B. reports on further irritations under the Schengen system between France and Germany in the context of pursuit of suspects across the borders. It seems that a series of difficulties arise in the practical application of the Schengen Convention so that it may take some time until it functions as desired; France, for example, has not adopted all national legislation necessary to apply the Convention properly.

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right of asylum is applicable without the restrictions of the revision of the constitution. Therefore, it may be possible that asylum seekers will prefer to take a detour via North Africa in order to arrive in France from a State not a Party to the Schengen Convention and avoid the application of the new restrictive rules of the Constitution. However, it seems that the French authorities felt an imminent danger from that side as they adopted some restrictive measures, in particular an obligation for persons coming from specific African States to obtain a visa for entry into France. 49 Such measures would not impede those seeking asylum because it is exactly in those cases where the necessary documents are missing. In these cases, it may be presumed that the applicants will be held in the zones of departure in order to prevent their disappearance while their application is examined for being manifestly unfounded. All these measures, and that has to be stressed explicitly, are applicable however only if the asylum seekers enter legally into French territory and here lies an enormous problem, namely the one of impeding illegal immigration. The new French asylum rules to prevent a massive influx of asylum seekers have become especially significant because at the very moment that the right of asylum was recognized as an individual right in France the individual right of asylum was restricted in Germany. The new rules prevent persons who have no longer an absolute, unrestricted right to apply for asylum in Germany from simply turning to France; a glance at the number of asylum seekers in Germany shows clearly what might have been the consequences for France with the freedom of movement in the European internal market and the French right of asylum according to para. 4 of the 1946 Preamble after the 1993 decision of the Conseil Constitutionnel. It seems very important in France as well as Germany to maintain the right of asylum for those who need its protection and accordingly to adopt rules which give life to Art. 29 para. 4 of the Schengen Convention and allow a State in a specific case to grant asylum where it is believed necessary, despite the competence of another Schengen State to examine the case. There is no doubt that a common policy of asylum within the European space is necessary in our days; however, this should not cause States to abandon the basic idea of asylum rights such as those laid down in the French and German Constitutions.

VI. Developments in Germany It is the official policy of the Federal Government that Germany is not a country of immigration. 50 Notwithstanding this official standpoint, the number of 49 See Nicole Guimezanes , Aper9u rapide sur les recentes retouches apportees au droit des etrangers, La Semaine Juridique, 1995,1.

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aliens immigrating into the Federal Republic of Germany in the last few years has been relatively high. In this regard one has to distinguish different groups, i.e. persons of German origin living on the territory of the former USSR admitted as expellees of German origin by virtue of Art. 116 para. 1 of the German Constitution, 51 family members of legally residing aliens52 and finally persons seeking refuge from persecution.53 Taking into account this official policy that Germany is not a country of immigration, there are no quotas under which persons who are willing to settle in Germany and who do not fall within one of the above-mentioned groups can legally enter the Federal Republic of Germany. Accordingly there were a certain number of persons, especially after the opening of the borders in Europe, who were claiming to be politically persecuted while in reality arriving in Germany for different purposes. It was this development coupled with a certain outbreak of xenophobic acts which in 1993 led to a major reform of the German Constitution, which until that time had contained a liberal basic right to be granted asylum.

VII. History Leading to the Revision of the Constitution 1. German Asylum Law Before 1993 When the Federal Republic of Germany was created in 1949, the historical experiences during the period from 1933 to 1945, especially the massive political persecution that had taken place and the difficulties German refugees had encountered when seeking refuge abroad had the effect that a special provision was entered into the text of the new German Constitution 54 providing for an individual basic right to be granted asylum.55 Art. 16 para., 2 sentence 2 of the Basic 50 For further references see Stephan Hohe, Law of Asylum - A Solution to the Migration Problem?, German Yearbook of International Law (GYIL), 19*93, 61, 81. 51

This provision stipulates: Unless otherwise provided . . . a German within the meaning of this Basic Law is anyone who . . . has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German ethnic origin. 52 See, e.g., Ralph Scheer , Der Ehegatten- und Familiennachzug von Ausländern, 1994, 149 et seq. 53

Besides, the Federal Republic of Germany has on different occasions admitted certain groups of aliens on humanitarian grounds such as boat people from Vietnam, Jews from the former USSR or most recently persons fleeing the civil war in the former Yugoslavia. 54

As to similar provisions in the different constitutions of the German Länder see Zimmermann (note 23), 346 et seq. 55 As to the historical development of asylum law in the Federal Republic of Germany up to 1987 see Susanne Wolken , Das Grundrecht auf Asyl als Gegenstand der Innen- und Rechtspolitik in der Bundesrepublik Deutschland, 1988, passim. As to the law of asylum in the former G D R see Zimmermann (note 23), 8 et seq. As to the drafting history of the

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Law simply stipulated that "anyone persecuted on political grounds has the right of asylum." Thus the Federal Republic of Germany was one of the very few States56 granting refugees an individual right to be admitted on the territory of a specific State in case of persecution.57 At that time, however, none of the drafters foresaw or could even foresee that devastated Germany, then almost completely destroyed by the war, would be considered as a possible safe haven by political refugees. Accordingly it was only in 1953 when the Federal Republic of Germany ratified the Geneva Convention for the Protection of Refugees 58 that supplementary legislation as to the recognition of refugees entered into force. 59 Under this regulation every person considered a refugee under the Geneva Convention would be granted asylum in the Federal Republic of Germany. Finally, in 1965 the German Alien Law in §§ 28 - 46 set out provisions as to the procedure for recognizing asylum seekers as refugees. 60 According to § 28 persons who had already been recognized by another Contracting Party of the Geneva Convention as refugees or who had already beforehand found protection from persecution could not be recognized as a refugee by Germany. Starting in the 1970s the number of persons seeking protection from persecution by and in Germany increased significantly. 61 In 1980, for the first time in the history of the Federal Republic of Germany, more than 100,000 persons sought asylum. The percentage of persons finally admitted as refugees and then granted a permanent right to stay was however limited. But since German constitutional law granted and still grants an individual right of judicial review, 62 all asylum seekers whose claims for recognition as refugees were denied by the authorities could initiate judicial proceedings. This had the effect that the average length of stay - even in cases where the application was finally denied - grew longer and longer. Notwithstanding further modifications concerning the asylum procedure, which were enacted in an attempt to streamline the handling of applications,63 a provision in question see Hans Kreuzberg/ Volker Wahrendorf \ Grundrecht auf Asyl - Materialien zur Entstehungsgeschichte, 2nd ed., 1992, passim. 56 As to the situation in France see Part I section 2a). 57 As to the question whether the prohibition of refoulement as contained in Art. 33 of the Refugee Convention similarly obliges States to admit refugees which have not yet crossed the border see Frowein/ Zimmermann (note 30), et seq. 58 The Convention entered into force for Germany on 1 September 1953, see Bundesgesetzblatt 1953 I I , 559; the protocol entered into force on 11 November 1969, see Bundesgesetzblatt 1970 II, 194. 59 Verordnung über die Anerkennung und die Verteilung von ausländischen Flüchtlingen, Bundesgesetzblatt 1953 I, 3 et seq. 60 For details see Werner Kanein, Ausländergesetz, 1st ed., 1966, passim. 61 For details see Bundesminister des Innern (ed.), betr.: Ausländerpolitik, 2nd ed., 1983, 10. 62 See Art. 19 para. 4 of the Basic Law, which stipulates inter alia: "Where rights are violated by public authority the person affected shall have recourse to law."

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political debate started as to whether the constitutional guarantee of the individual right to be granted asylum should be modified or even abolished.64 This discussion gained momentum, however, only when the borders throughout Europe collapsed in the beginning of the 1990s and the number of asylum seekers in Germany grew significantly.

2. The Impact of the Political Changes in Europe on the Number of Persons Seeking Asylum in Germany In 1989 more than 120,000 persons sought asylum in Germany. As the collapse of the former Eastern Bloc took place and the crisis unfolded in Yugoslavia, the number of asylum seekers entering reunified Germany increased more and more. In 1989 more than 190,000 asylum seekers were counted. In 1991 more than 250,000 persons were seeking refuge from political persecution or civil war in Germany. 65 In 1992, the total number of refugee applicants was 438,191, an estimated 71 % increase of the total of 1991 and more than that for the rest of Europe combined. This increasing number of refugee applicants combined with an increasing number of violent acts directed against foreigners and asylum seekers in particular focused attention on the liberal constitutional guarantee of the right of asylum as it existed at that time and whether it should be abolished or at least curtailed significantly. During the same time, the discussion as to whether the existing Art. 16 para. 2 sentence 2 of the Basic Law would allow the Federal Republic of Germany to fully take part in the Schengen and Dublin Agreements on an equal footing with the other participating States66 also led to some proposals to restrict the right of asylum in cases where an asylum seeker had been either rejected by another Party of one of these conventions or where another Party was responsible for dealing with the request under the respective agreement.67 Since any modification of the German Constitution needs a two-third majority in both houses of Parliament, the Bundestag and the Bundesrat , the consent of 63 Seey inter alia , Gesetz über das Asylverfahren vom 19. 07. 1982, Bundesgesetzblatt 1982 I, 946; Gesetz zur Änderung asylverfahrensrechtlicher, arbeitserlaubnisrechtlicher und ausländerrechtlicher Vorschriften 1987, Gesetz zur Neuregelung des Ausländerrechts, Bundesgesetzblatt 1990 I, 2170 and finally Gesetz zur Neuregelung des Asylverfahrens of 26 June 1992, Bundesgesetzblatt 1992 1,1126. w For details see Wolken (note 55), 430 - 431. 65 For details see Ingo von Pollern, Die Entwicklung der Asylbewerberzahlen im Jahr 1991, Zeitschrift für Ausländerrecht (ZAR), 1992,24 et seq. 66 For a more detailed discussion see, e.g., Alexander Sehr ami, Das Schengener Ubereinkommen und Art. 16 Absatz 2 Satz 2 des Grundgesetzes der Bundesrepublik Deutschland, AWR- Bulletin, 1991, 65. 67

For the text see Zimmermann (note 23), 23 et seq.

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the Social Democratic Party (SPD) was needed to reach a decision. It was only in December 1992 that such a compromise was reached. VIII. The Revision of the Constitution 1. Necessity of a Revision Until the above-mentioned compromise was reached there was a fierce political fight as to whether an amendment was indeed necessary to cope with the increasing number of incoming asylum seekers. One has to acknowledge, however, that in order to participate fully and on an equal level with the other States in the Schengen and Dublin Agreements it would have been necessary to amend the Constitution if only in order to allow for the recognition of foreign asylum decisions and for the return of such applicants whose applications had already been denied by other Member States of one of the two conventions. One has to also take into account the fact that under the existing law every individual asylum seeker had the right for judicial review of a negative decision thus leading to a sum of complex and long procedures. On the other hand, when the constitutional amendment was drafted the effects of the then most recent reform of the asylum procedure as contained in a law of June 1992,68 which was supposed to further limit the time necessary to deal with asylum requests, had not yet been demonstrated. One has to also further acknowledge that the result of the compromise as reached by the major political parties by the beginning of December 199269 was significantly influenced by the wave of xenophobia as it had developed in Germany in 1992 and by a certain increase in the vote for right-wing political parties.

2. The Content of the Revision By a law amending the Constitution which entered into force on 30 June 1993, Art. 16 para. 2 sentence 2 was abolished and replaced by a new Art. 16a which stipulates: (1) Anyone persecuted on political grounds has the right of asylum. (2) Para. (1) may not be invoked by anyone who enters the country from a Member State of the European Communities or another third country where the application of the Convention Relating to the Status of Refugees and the Convention for the Protection of 68 Gesetz zur Neuregelung des Asylverfahrens of 26 June 1992, Bundesgesetzblatt I, 1126; for details see Werner Kanein/ Günter Renner, Ausländerrechtkommentar (Nachtrag zur 5. Aufl. 1993); and Bertold Huber\ Das neue Asylverfahrensrecht, Neue Zeitschrift für Verwaltungsrecht (NVwZ), 1992, 749 et seq. 69

For an English version of the compromise see Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, Virginia Journal of International Law, 1993, 503, 518 - 519.

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Human Rights and Fundamental Freedoms is assured. Countries outside the European Communities which fulfil the conditions of the first sentence of this paragraph shall be specified by legislation requiring the consent of the Bundesrat. I n cases covered by the first sentence measures terminating a person's sojourn may be carried out irrespective of any remedy sought by the person. (3) Legislation requiring the consent of the Bundesrat may be introduced to specify countries where the legal situation, the application of the law and the general political circumstances justify the assumption that neither political persecution nor inhuman or degrading punishment or treatment takes place there. It shall be presumed that a foreigner from such a country is not subject to persecution on political grounds so long as the person concerned does not present facts supporting the position that, contrary to that presumption, he or she is subject to political persecution. (4) The implementation of measures terminating a person's sojourn shall, in the cases referred to in Para. (3) and in other cases that are manifestly ill-founded or considered to be manifestly ill-founded, be suspended by the court only where serious doubt exists as to the legality of the measure; the scope of the investigation may be restricted and objections submitted after the described time-limit may be disregarded. Details shall be the subject of a law. (5) Paras. (1) to (4) do not conflict with international agreements of Member States of the European Communities among themselves and with third countries which, with due regard for the obligations arising from the Convention Relating to the Status of Refugees and the Convention of the Protection of Human Rights and Fundamental Freedoms, whose application must be assured in the contracting States, establish jurisdiction for the consideration of applications for asylum including the mutual recognition of decisions on asylum. 70

This new provision, which in para. 1 upholds the individual right of asylum, nonetheless significantly reduces the scope of application of that individual right. First, persons who enter Germany after having traveled through a State where they could have presumably found protection by applying for asylum (so-called secure third States) are no longer able to rely on this right. Second, the federal legislator is authorized to draw up a list of countries of origin for which there exists a rebuttable presumption of freedom from persecution (so-called safe countries of origin). Finally the amended provision takes account of international agreements establishing criteria for distributing the jurisdiction to consider applications for asylum including the mutual recognition of decisions on asylum such as the Schengen and the Dublin Agreements.71 After the entry into force of the amendment and supplementary procedural provisions 72 the number of persons seeking asylum in Germany decreased dra70 See Press and Information Office of the Federal Government, Basic Law for the Federal Republic of Germany, 1994,19-20. 71 For details see below. 72

See Gesetz zur Änderung asylverfahrens-, ausländer- und staatsangehörigkeitsrechtlicher Vorschriften, Bundesgesetzblatt 1993 I, 1062; for details see Reinhard Marx, Kommentar zum Asylverfahrensgesetz, 3rd ed. 1995, passim and Kanein/Renner (note 68)y passim.

18 GYIL 38

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matically. In the first six months of 1993 there were still 225,000 applications for asylum in Germany. In the second half of 1993, i.e. after the entry into force of the reformed law, however, less than 100,000 applications were registered which equals a reduction of more than 50 %. In 1994 only slightly less than 110,000 aliens have sought protection from persecution in the Federal Republic of Germany,73 which again can be considered a dramatic reduction of the number of individuals seeking refuge in Germany. Notwithstanding these bold effects of the revised provision there was and still is, however, an intense legal debate as to the legality of the restrictions as contained in the Constitution and implementing regulations. In particular the situation of refugees who have traveled through so-called secure third States and the situation of applicants originating in safe countries of origin is still doubtful and has given rise to frequent challenges in court including constitutional complaints brought forward to the Federal Constitutional Court.

IX. The Legal Situation of Asylum Seekers in Germany After the Revision 1. Sources of Law Concerning the Right of Asylum and Factual Situation As of today, the legal status of asylum seekers and refugees is governed by the above-mentioned Article 16a of the Basic Law, the Convention Relating to the Status of Refugees and finally by the Law on Asylum Procedure (Asylverfahrensgesetz ) as amended. Out of the 115,000 aliens seeking political asylum in Germany from January through the end of November 1994 the major groups were refugees from the former Yugoslavia, Turkey, Romania, Bosnia-Herzegovina,74 Afghanistan, Bulgaria, Vietnam, Sri Lanka and Togo. In 1994 approximately 8 % of all asylum seekers were formally recognized as being politically persecuted in the sense of Art. 16a of the Basic Law. Furthermore approximately 2 % of the applicants - while not being granted the right of asylum under German constitutional law - were granted the right to stay as refugees under the Convention.75

73 For details see Ingo von Pollern, Die Entwicklung der Asylbewerberzahlen im Jahre 1994, ZAR, 1995, 64. 7

* Respectively 27,083; 16,792; 9,215 and more than 6,000 applications. Besides being granted such a formal status, deportation of an alien is unlawful under German law if he or she would in such a situation be exposed to inhuman treatment or punishment in the sense of Art. 3 of the ECHR. As to the relevance of the E C H R in asylum cases see generally Terrje Einarsen , The European Convention on Human Rights and the Notions of an Implied Right to de-facto-Asylum, International Journal of Refugee Law (Int. J. Ref. Law), 1990, 361. 75

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2. The Legal Situation of Different Groups of Asylum Seekers : Refugees Arriving from Secure Third States a) The Determination of Secure Third States and European Asylum Policies Under Art. 16a para. 2 Basic Law, persons seeking political asylum who enter Germany from one of the secure third States will not be granted political asylum. Under the amendment, a secure third State is one in which the application of both the Geneva Convention and the European Convention of Human Rights is guaranteed. The Constitution itself stipulates that all Member States of the European Union are considered to be such secure third States. While not yet decided by the Federal Constitutional Court, it seems that this wording does not only refer to those States that were members of the European Union at the time the amendment was enacted, but to all members including those who accede at a later stage.76 Furthermore the federal legislator is empowered to specify by legislation which other States fulfil the conditions of being a secure third State. At this time Norway, Poland, Switzerland and the Czech Republic are listed in Annex 1 to the Asylum Procedure Law which contains a list of such other secure third States.77 The logic behind this exclusion is that these States are - at least de jure formally bound by both the Geneva Convention and the European Convention on Human Rights and apply them thoroughly. Thus any refugee who enters from one of these States could have applied for asylum there and had already been free from both fear of persecution and fear of refoulement. This exclusion, which generally can be considered to be legal under the Geneva Convention in view of the wording of Arts. 31 and 33 and subsequent State practice, 78 is interpreted in a rather strict manner. According to current German practice even a pure transit by land is considered to be sufficient to exclude the individual from being granted asylum in Germany. In a recent decision by an administrative tribunal it was also considered that a person sailing on a ship flying the German flag which, before arriving in a German port, had stopped in the harbor of a secure third State is precluded from being granted political asylum.79 On the 76

For a more detailed analysis as to whether Art. 16a Section 2 can be really understood in such a dynamic way see Zimmermann (note 23), 281 et seq. This view is shared by Marx (note 72), 271 - 272. 77

It is interesting to notice, however, that Finland, Sweden and Austria, despite their accession to the European Union which became effective 1 January 1995, are still listed in the Annex while they are by now ipso facto secure third States by virtue of the Constitution itself. * 7 8 For more detailed discussions see Sam Blay/Andreas Zimmermann , Recent Changes in German Refugee Law: A Critical Assessment, American Journal of International Law (AJIL), 1994, 361, 365 - 366. 79 See decision of Verwaltungsgericht Bremen of 17 June 1994, N V w Z , Supp. 9/1994, 72. See also Kanein/ Renner (note 68), 435.

1*

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contrary, persons who had just travelled through the international transit zone of an international airport of a secure third State were not considered to have entered the Federal Republic of Germany from one of these States and were accordingly not precluded from being granted asylum.80 In order to make this system of secure third States effective and accordingly to be able to return the applicants to the respective country of transit, Germany has by now concluded readmission agreements with almost all secure third States under which those States are obliged to readmit nationals of third countries which have illegally entered Germany after coming from one of the secure third States.81

so See German Federal Constitutional Court, decision of 29 July 1993, Nos. 2 BvF 1507 and 1508/93, reported in: N V w Z , Supp. 1/1993, 1 where the Court did not consider the question of entry from a secure third State, despite the fact that the applicant had entered Germany via London and had stayed at Heathrow Airport. See also the explicit regulation in Canada, which considers that a person has not "come from" a prescribed country if he or she had solely been there to join a connecting flight to Canada, see Immigration Act, R.S.C.ch. M I , amended by ch. 49, 1992, §§ 46.01, 114 (1) (s) which states that "a person who claims to be a Convention Refugee is not eligible to have the claim determined . . . if the person . . . came to Canada . . . from a country . . . that is a prescribed country. . For details see R. G. L. Fairwether ; Canada's New Refugee Determination System, Canadian Yearbook of International Law (Can.Y.B.Int.L.), 1989, 295, 298; James Hathaway , Selective Concern: A n Overview of Refugee Law, M c G i l l Law Journal, 1989, 354, 355. 81 After the entry into force of the Schengen Agreement, which became effective on 26 March 1995, readmission of third-country nationals who have applied for asylum in one of the contracting parties (i.e. at this point Belgium, France, Luxembourg and the Netherlands) is regulated by Art. 31 of the Agreement. As to readmission agreements the Federal Republic of Germany has concluded w i t h other neighboring States see the survey contained in Zimmermann (note 23), 154 et seq. Since then, the Federal Republic of Germany has concluded further agreements w i t h the Czech Republic (see Abkommen zwischen der Regierung der Bundesrepublik Deutschland und der Regierung der Tschechischen Republik über die Rückübernahme von Personen an der gemeinsamen Staatsgrenze, Bulletin der Bundesregierung, Nr. 104, 953, of 10 November 1994) and w i t h Switzerland (see Abkommen zwischen dem Schweizerischen Bundesrat und der Regierung der Bundesrepublik Deutschland über die Rückübernahme von Personen mit unbefugtem Aufenthalt nebst Protokoll und Briefwechsel, Amtliche Sammlung des Schweizer Bundesrechts, 1994, 385. There seem to exist no formal readmission agreements w i t h Finland, Greece, Spain, Italy, Portugal, Ireland and the United Kingdom. The British Home Office and the representative of the German Federal Ministry of Justice have however agreed that the U K and Germany would each take back aliens who had entered the territory of the other State via their own and had applied for asylum in the other country; see British Asylum and Immigration Appeals Board, V. Callender, Special Adjudicator, Appeal No. HX/71351/94 of 17 May 1994 (unpublished), 4 - 5 .

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b) The Legal Situation of Asylum Seekers Arriving Through One of these Countries Persons entering the Federal Republic of Germany from one of the secure third States - in case they apply for asylum directly at the border - will not be admitted and will be returned directly. The same is true if the refugee tries to illegally cross the border and is caught in the direct vicinity of the border. In case the asylum seeker is able to effectively cross the border and later applies for asylum within Germany, his or her request is to be rejected and he or she will be as soon as possible returned to the secure third State in question.82 In any such case, however, only a deportation to a secure third State is legal. In case such a deportation to a third State is not feasible, German authorities will still consider whether the applicant should be granted protection from refoulement to his or her home country if the applicant would be otherwise exposed to persecution in the sense of the Geneva Convention. There are however some important points which have not yet been completely clarified. First it is doubtful whether the exclusion provided for in Art. 16a para. 2 becomes effective only when the travel route of the refugee can be traced, i.e. where the authorities can prove through which secure third State the applicant has entered the Federal Republic of Germany. While some authors relying on the drafting history of the constitutional amendment argue that it must be proved exactly which secure third State the applicant has traveled through, 83 some court decisions take an opposite view. 84 The first opinion seems to be the correct one, since otherwise there might be a clear danger that the number of asylum seekers becoming refugees in orbit will be increased. Furthermore Art. 16a para. 2 should also be seen in parallel with the Schengen and Dublin Agreements referred to in Art. 16a para. 5 under which there is also a need for clearly determining which country is responsible for dealing with the asylum request. Furthermore Art. 16a para. 2 significantly limits the still existing overall basic right as contained in Art. 16a para. 1 and thus, being an exception to the general rule, should be interpreted in a restrictive manner.85 An even more crucial issue is whether the applicant can claim that in his or her individual case the third State to which he or she would be eventually returned is 82

See, inter alia , Section 18, 26a and 34a of the Asylum Procedure Law.

83

See, e.g., Marx (note 72), 274 - 275; Kanein/ Renner (note 68), 471 - 472; this view is shared by Verwaltungsgericht Schleswig, Ausländer- und Asylrechtlicher Rechtsprechungsdienst, 1994,124. 84 See, e.g., Verwaltungsgerichtshof Mannheim, N V w Z , Supp. 1/1995, 5; Verwaltungsgericht Bayreuth, Informationsbrief Ausländerrecht 1995, 37; see also Kay Hailbronner, Die Asylrechtsreform im Grundgesetz, ZAR, 1993, 107, 114. 85 For more detailed argumentation in this respect see Kanein/ Renner (note 68), 471 472.

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not safe, i.e. that there is a real danger of a chain of refoulement. In that respect the wording of the last sentence of Art. 16a para. 2 is crucial; it stipulates that in such cases "measures terminating a person's sojourn may be carried out irrespective of any remedy sought by that person." Notwithstanding this formula used in the Constitution itself, the Federal Constitutional Court has held - although only in orders granting temporary relief 86 - that there might be a need to interpret Art. 16a para. 2 in such a way so as to allow for an individual review where there is a danger that the secure third State under consideration might not obey its obligation of non-refoulement deriving from both Art. 33 of the Geneva Convention and eventually Art. 3 of the ECHR. In September 1993 the Court considered the issue in relation to an applicant from Iraq who had traveled through Turkey into Greece and then flew from Athens to Frankfurt. When she was about to be returned to Greece she argued before the Constitutional Court that Greece, notwithstanding its status as a Member State of the European Union, was in fact not a secure third State. The Court noted that under Greek law in order to be granted asylum she should have arrived in Greece directly from the country of persecution and accordingly she would not be granted asylum in Greece. Thus, if returned to Greece, she might be returned by the Greek authorities to Turkey and then to Iraq. Accordingly Greece could not be described in her individual case as a secure third State. The Court therefore ordered a temporary stay of execution and indicated that it will review the issue of secure third States and the complete exclusion of judicial review before deportation takes place carefully. At this point it remains therefore doubtful whether the actual practice will remain untouched by the Constitutional Court.

3. Asylum Seekers Arriving from Safe Countries of Origin a) The Determination of Safe Countries of Origin Article 16a para. 3 of the Basic Law which is based on a similar provision contained in the Swiss Asylum Law, 87 empowers the federal legislator to draw up a list of so-called safe countries of origin, where there is a presumption of nonpersecution, taking into account the legal situation, the application of the law and 86

A t the time of writing, the final decisions in these cases are still pending. See Art. 16 of the Swiss Asylum Law as amended; for details see Alberto Acbermann/ Christina Hausammann, Handbuch des Asylrechts, 2nd ed., 1991, 298 - 299; Walter Kälin, Grundriß des Asylverfahrens, 1990, 264 - 265. I n Belgium a similar provision contained in Art. 52 para. 1 of the Belgium Asylum Law was later declared to be unconstitutional, see decision of the Court d'Arbitrage of 4 March 1993, Moniteur Beige, 1993, 6409 and most recently Jean-Marie Henckaerts , Belgium Constitutional Court Strikes D o w n Safe Country Concept, International Journal of Refugee Law, 1994, 674. 87

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the general political circumstances in the country so described. In such cases the extent of judicial review directed against a refusal to grant political asylum is limited. Originally Bulgaria, Gambia, Ghana, Poland, Romania, Senegal, the Slovak Republic, the Czech Republic and Hungary were considered to be such safe countries of origin. After a military coup d'etat took place in Gambia on 22 July 1994 the German Federal Government, taking advantage of a competence granted to it by virtue of Section 29a para. 3 of the Asylum Procedural Law, provisionally eliminated Gambia from the list of safe countries of origin. 88 Effective 31 March 1995, Gambia was definitively struck off the list of safe countries of origin.

b) The Legal Situation of Asylum Seekers Arriving from one of These Safe Countries of Origin Asylum seekers originating from one of these countries and arriving directly in the Federal Republic of Germany 89 are not considered to be politically persecuted unless they can bring forward claims that - contrary to the general presumption of non-persecution in their country of origin - prove that in their individual case there is indeed political persecution. 90 If an applicant fails to make a plausible case that in his or her individual situation there is indeed persecution, the Federal Office for the Recognition of Refugees will reject the application as being manifestly unfounded and order his or her deportation. Pending deportation, the applicant may however apply for a review and ask for a temporary stay of deportation. Any such stay may however only be ordered by the administrative tribunal if there are serious doubts as to the legality of the deportation order in question.91 The German Federal Constitutional Court has held, however, that an application to be granted asylum cannot be denied purely because an applicant is originating from a safe country of origin. To the contrary administrative tribunals dealing with such cases must examine the arguments of any applicant who alleges that, in his or her individual case, the country of origin is not safe. 92

88

As to a similar development in Switzerland which had eliminated Angola from its list of safe countries of origin see Bundesratsbeschluß of 19 February 1992; for details see Zimmermann (note 23), 122. 89

In case an applicant, originating from one of the safe countries of origin, traveled through a secure third State before entering the Federal Republic of Germany, his or her claim for asylum could be already excluded by virtue of this travel route. 90

As to the compatibility of such a system of safe countries of origin w i t h Art. 3 of the Refugee Convention see generally Blay/ Zimmermann (note 78), 374 w i t h further references. 91 92

See Section 29 para. 4 of the German Asylum Procedure Law. See judgment of 22 July 1993, N V w Z , Supp. 1/1993, 1.

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Any asylum seeker arriving from a safe country of origin by plane who is not in possession of a valid passport and makes a claim for asylum will be kept in a special transit area at the airport until his or her case is decided by the Federal Office for the Recognition of Refugees. In case a negative decision is rendered, the refugee may however appeal the decision and request a temporary stay to be granted by an administrative tribunal. Pending such request, the applicant has to remain in the international transit area of the airport.

4. Asylum Seekers Originating in Other Countries The remaining asylum seekers which do not fall in one of the above-mentioned categories are those who neither arrive via one of the secure third States nor are nationals of one of the safe countries of origin. Thus their number is rather limited and encompasses only some of those refugees arriving by plane. In case they are not in possession of a valid passport, their asylum request will be dealt with directly at the airport. 93 In case the request is considered manifestly ill-founded, the deportation will be ordered which in accordance with Art. 16a para. 3 can be stayed only by an administrative tribunal if there exist serious doubts as to the legality of the administrative action denying asylum. 5. Germany and the Schengen and Dublin Agreements As mentioned above, Germany is now in a position to fully participate in the Schengen, the Dublin and possible future agreements.94 In order to do so, there are specific provisions in the Law on Asylum Procedure which regulate the legal situation of those refugees for whose asylum requests the Federal Republic of Germany is responsible under the Schengen Agreement. Where a person seeks asylum in another State Party to the Schengen mechanism, despite the fact that according to the rules of this treaty Germany would be responsible for dealing with the request, the Federal Republic of Germany will readmit the applicant if so requested by the other Contracting State. Any such refugee will be considered as if he or she had applied for asylum in Germany itself. 95 Despite the fact that the individual had - literally speaking - entered from a secure third State, the request for asylum will be still considered on its merits. 96

93

For details see Section 18a Asylum Procedure Law. Since the Dublin agreeement, unlike the Schengen agreement, has not yet entered into force the following remarks w i l l exclusively focus on the Schengen agreement. 94

95

See Section 22a Asylum Procedure Law.

96

Section 26a para. 1 lit. 2. Asylum Procedure Law.

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Vice versa , where the request is made while another State is responsible under the Schengen agreement, the applicant will be returned to that respective country. In situations where the request to be granted asylum was already rejected by another Schengen State97 and where the individual makes a second request in the Federal Republic of Germany, any such request is only considered on its merits if the Federal Republic of Germany is according to the principles of the Schengen convention responsible for dealing with the request 98 and where the underlying factual or legal situation has changed.99 Otherwise deportation procedures will be initiated. Any such sharing of responsibilities for dealing with asylum requests, however, raises problems similar to those raised by creating a general system of secure third States. What happens in cases where the applicant claims that another Schengen State either made a mistake in his or her individual case or generally does not abide by the minimum standards provided in the Geneva Convention? In that context, it has to be first noted that from the point of view of international law, Germany has retained the right to deal with asylum requests for which it is normally not responsible under Art. 29 para. 4 of the Schengen Agreement. Second, a distinction may be drawn between different categories of cases, and arguably only where the other Member State bluntly and manifestly violates the Geneva Convention or where there is a clear and imminent danger in regard of the concrete applicant that he or she would be directly or indirectly returned to the country of persecution, would Germany be under an obligation to consider the case on its merits.

X. Impact of the New Rules on the German Asylum Practice After the entry into force of the revised Constitution and accompanying legislation, German asylum law which for more than forty years could have been called one of the most liberal has taken the lead in a significantly more restrictive approach towards persons seeking asylum. It remains doubtful, whether bona fide refugees seeking refuge under the new system will still find it possible to be granted asylum. Instead it favors those asylum seekers who either hide their es97 This w i l l include those cases where the other Member State had rejected the application for procedural reasons, e.g. by applying a system of secure third States similar to the German one. 98 This would be particularly the case, where the applicant had left the territory of the Schengen Member State and had then re-entered Germany directly or where Germany then had issued a visa, see Art. 30 a) and g) of the Schengen agreeement. 99 For details see Section 71a Asylum Procedure Law in connection w i t h Section 51 paras. 1 - 3 Adminstrative Procedure Law.

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cape route in order to avoid being returned to a secure third State or who do not even apply for asylum but enter and stay illegally. Furthermore since the reform of the asylum procedure has led to a significant increase in the number of unsuccessful asylum seekers to be deported, the situation of deportees, especially those who might otherwise hide and are accordingly kept in custody pending their deportation, has deteriorated since in many cases their countries of origin do not cooperate 100 with their return, resulting often in practice to rather long periods of custody.

XI. The French and German Practice as Part of an Overall European Approach in Asylum Matters 101 The European Community is not in a position to exercise competences in the field of asylum policies. To the contrary, Art. K.l No. 1 of the Treaty on European Union expressly stipulates that the Member States shall regard asylum matters as an area of common interest to be dealt with by them within the framework of Title V I of the Treaty on European Union dealing with intergovernmental cooperation in the field of justice and home affairs. Furthermore is is important to note that Art. K.2 underlines that all matters referred to in Art. K.2 shall be dealt with in compliance with both the Geneva Convention and the European Convention on Human Rights (ECHR). Any such formalized effort, such as the Dublin and the Schengen Conventions yet undertaken by the Member States to harmonize their asylum policies has however up to now almost exclusively focused on matters of jurisdiction and the procedure to be followed when dealing with asylum requests. The only possible exception is the resolution adopted on 30 November/1 December 1992 by the ministers of the Member States of the European Community responsible for immigration, where they agreed on common criteria for manifestly unfounded asylum requests, criteria for secure third States and finally criteria for determining safe countries of origin. 102 After the Schengen Agreement was put into force on 26 March 1995 in regard of the original Contracting Parties Belgium, France, Germany, the Netherlands and Luxembourg, it is still hard to predict at what point how and whether Title 100 I n order to avoid these problems the Federal Republic of Germany has by now concluded agreements w i t h Bulgaria (Bundesgesetzblatt 1995 II, 100), Croatia (25 April 1994, yet unpublished) and Romania (31 I L M 1296) which regulate the procedure of return of their own nationals. 101

See most recently Kay Hailbronner , Die europäische Asylrechtsharmonisierung nach dem Vertrag von Maastricht, ZAR, 1995, 3 et seq. 102 Text to be found inter alia in Zentrale Dokumentationsstelle der Freien Wohlfahrtspflege (ZDWF), Art. 16a G G und seine Folgen, 1993,147, 150 et seq.

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II, Chapter 7 of this agreement dealing with matters of asylum will effectively function and when other Member States will follow. Besides one might doubt whether the parallel Dublin Convention which would eventually cover a similiar system for all Member States of the European Union 1 0 3 will enter into force in the near future. Pending such developments, it is obvious that States still consider the regulation of asylum matters as an issue of national sovereignty. Thus the attempt of the Federal Republic of Germany during the conference leading to the Treaty of Maastricht to grant the European Community a specific competence in the field never saw reality and it is more than doubtful whether the conference to be held in 1996 will lead to further results. 104

103

The most recent Member States Austria, Finland and Sweden have not yet even signed either the Schengen or the Dublin Convention. 104 As to the constitutional problems such a granting of competences would involve see Zimmermann (note 23), 382 et seq.

Recent Trends in United States Migration Control By Gerald L. Neuman

I. The Current Environment For Western European countries, the end of the Cold War has produced changes both in the character of migration flows and in government and popular attitudes towards them. Where migrants from Communist countries were formerly greeted as political refugees, migrants from post-Communist countries are more often regarded as economic migrants deserving rejection. Even refugees fleeing ethnic persecution or political repression often meet governments that deny they can afford to offer protection. These changes have multiple causes, but one is the divergence in the interests of refugees and of refugee-receiving States. The self-interest of Cold War rivals no longer reinforces the humanitarian purposes of refugee law. The experience of the United States in recent years confirms this diagnosis. The geographical position of the United States exposes it to different migration flows than Western Europe, including flows from two countries that have not yet become post-Communist, Cuba and China. But the opposition of systems no longer has the strategic importance that it once had. This fact is most starkly illustrated by the changes in immigration policy toward Cuba between July 1994 and June 1995, as will be discussed later.1 The factual context of migration control in the United States also includes a longstanding problem of illegal labor migration. In 1986, the government attempted to respond to this problem by means of an amnesty program that has legalized nearly 2.5 million undocumented aliens, and by enacting civil and criminal sanctions on businesses employing aliens who are not authorized to work in the United States.2 The employer sanctions provisions, however, have been easy to circumvent, partly because the United States has thus far resisted adopting * The author wishes to thank Professors T. Alexander Aleinikoff, David Cole , Randle Edwards, Harold Hongju Koh and David Martin for informative discussions of issues treated in this article. A n y errors are the sole responsibility of the author. 1 This article was completed at the beginning of July 1995. 2 8 U.S.C. §§ 1255A, 1324A; US Department of Justice, 1991 Statistical Yearbook of the Immigration and Naturalization Service, 1992, 70.

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documentary and electronic systems that would be effective in registering and tracking its inhabitants.3 Estimates of the current illegal alien population once more exceed 3 million. 4 Whether these illegal residents represent a net cost or net benefit to the national economy is disputed, but they impose significant costs on state and local governments, particularly in states like California, Florida and Texas. Many have argued that until the United States controls the flow of illegal migrants, it cannot afford to be as generous as it has been to legal immigrants. Illegal migration has become a highly visible public issue, and numerous politicians have shown their readiness to exploit it. Because the United States political system leads members of Congress to claim personal credit for legislation or portions thereof, one can expect multiple initiatives, and the enactment of newer legislation before the effects of the most recent prior legislation have been tested. Restrictive laws may actually increase the appetite for restrictive laws rather than satisfy it. This dynamic has been intensified by the change in control of Congress from the Democratic Party to the Republican Party after the November 1994 elections. Three specific episodes have had emblematic importance for the politics of migration control in the United States: the Golden Venture incident of 1993, the World Trade Center bombing of 1993, and the unforgotten Mariel boatlift of 1980. The vessel Golden Venture ran aground during the night of 6 June 1993 just off the shore of New York City, while trying to land its human cargo of illegal Chinese immigrants.5 Several passengers drowned trying to reach the shore, while a few hundred were captured at sea or on land. The event focused a media spotlight on a network of organized crime that smuggled Chinese workers into New York and held them in conditions amounting to involuntary servitude until they had repaid their passage.6 It also emphasized the large potential for migration from China if the government continued the policy, initiated by the Bush administration in the wake of the Tienanmen Square massacre, of construing enforcement of China's one-child-per-family policy as persecution within the meaning of the Refugee Convention.7

3

See US Commission on Immigration Reform, US Immigration Policy: Restoring Credibility (Executive Summary), 1994, 12 - 21; Kitty Calavita , Employer Sanctions Violations: Toward a Dialectical Model of White-Collar Crime, Law & Society Review, 1990,1041. 4 United States General Accounting Office, Illegal Aliens: Assessing Estimates of Financial Burden on California, 1994,10. 5 See Chen v. Carroll , 48 F.3d 1331,1334 (4th Cir. 1995). 6 See N. R. Kleinfeld , Immigrant Dream of Plenty Turns to Misery and Regret, in: New York Times, 8 June 1993, A l . 7

See Tim Weiner, Fixing Immigration, in: New York Times, 8 June 1993, B2; Zhang v. Slattery , 55 F.3d 732 (2d Cir. 1995) (analyzing and upholding government's retreat from this interpretation).

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The explosion of a car bomb in the basement garage of the World Trade Center generated widespread fears that Middle East terrorism had spread to United States soil. The government's identification of the perpetrators as followers of the Egyptian religious leader Sheik Omar Abdel Rahman attracted attention to the apparent blunders that had allowed him to enter and remain in the United States.8 Popular stereotypes of Islamic terrorists led to instant rumors of their responsibility for the Oklahoma City bombing of 19 April 1995.9 Although the government's investigation has suggested, to the contrary, that the bombing arose from the milieu of the hyper-American right-wing militia movement, the momentum of the stereotype has made inevitable the passage of legislation targeted at alien terrorists. Finally, the 1980 Mariel boatlift prefigured Western Europe's experience of the fall of the Iron Curtain. 10 In April 1980, Cuba's President Fidel Castro opened the port of Mariel for discontented emigrants, prompting a flotilla of private vessels from Florida to collect relatives and paying passengers.11 After years of criticizing the denial of freedom of movement to the Cuban population, the United States suddenly faced the arrival of 125,000 Cubans, including several thousand nonpolitical prisoners and mentally ill persons whom the vessels were forced to accept. As the dimensions of the situation became clear, President Carter's welcome to the refugees was succeeded by strict Coast Guard enforcement against the vessels and rigorous screening of the entrants for possible grounds of excludability. Cuba has been unwilling to take back all the excluded criminals, some of whom remain in federal detention fifteen years later. 12 Professors Scanlan and Loescher observed in 1983 that the Mariel incident "marked a new recognition that in mass-asylum situations in this hemisphere . . . it is no longer possible to rely on cold war ideology and label all who leave as refugees without first examining their economic situation and their true motives for departure." 13 By 1995, not even true political motives suffice to ensure the welcome of a Cuban refugee. s See United States v. Rahman, 854 F. Supp. 254 (S.D.N. Y. 1994); Douglas Jehl , C I A Officers Played Role in Sheik Visas, in: New York Times, 22 July 1993, Bl. 9 See Emily M. Bernstein , Terrorism in Oklahoma: Fear About Retaliation Among Muslim Groups, in: New York Times, 21 April 1995,26. 10 Perhaps a sufficient warning had been provided the previous year by the famous riposte of Deng Xiaoping , who reportedly responded to President Carter's urging of freer emigration by offering "to send you 10 million immigrants right away." Don Oberdorf er, During Week in U.S., Teng Proves His Mastery of Political Positioning, in: Washington Post, 4 February 1979, A10. 11

See Ronald Copeland , The Cuban Boatlift of 1980: Strategies in Federal Crisis Management, Annals of the American Academy of Political and Social Science (Annals AAPSS), vol. 467, 1983, 138, 139; John Scanlan/Gilburt Loescher , US Foreign Policy, 1959 - 80: Impact on Refugee Flow from Cuba, Annals AAPSS, vol. 467,1983,116,135 - 137. 12 See Barrera-Echavarria tention).

v. Rison , 44 F.3d 1441 (9th Cir. 1995) (upholding continued de-

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II. The Legal Geography The room within which the United States maneuvers to achieve control over migration is framed by its domestic understandings of the legal limits on government action. These include peculiar doctrines regarding the geographical scope of constitutional rights and interpretations of particular international treaties.

1. Extraterritorial

Action and Constitutional Rights

The Bill of Rights of the United States Constitution includes, expressly or by interpretation, guarantees of fair procedures and of such rights as bodily integrity, freedom of speech, and freedom from racial discrimination. However, the applicability of constitutional rights to restrict government action against aliens outside the borders of the United States is highly uncertain under current law. 14 Under Nineteenth Century conceptions of the territorial limits of sovereign authority, it was assumed that constitutional rights applied only within United States territory. The Supreme Court rejected this limitation on the rights of United States citizens in the 1950s, but the consequences of these decisions for the rights of aliens outside the United States remained uncertain. 15 In 1990, a divided Supreme Court held that the Fourth Amendment did not protect a nonresident alien's property in a foreign country, indicating that some, and perhaps all, constitutional rights of aliens were limited to United States territory. 16 Chief Justice Rehnquist supported this conclusion with the Hobbesian assumptions of the realist approach to international relations: For better or for worse, we live in a world of nation-States in which our Government must be able to "functio[n] effectively in the company of sovereign nations." . . . If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation. 17

Even at the edges of United States territory, the constitutional law of immigration procedure distinguishes sharply between the procedure for deciding whether to reject an alien seeking entry at a land border or a port of entry (exclusion) and the procedure for removing an alien who has already entered the United States, 13

Scanlan/Loescher (note 11), 137. See Gerald L. Neuman, Whose Constitution?, Yale Law Journal, 1991, 909. 15 Reid v. Covert , 357 U.S. 1 (1957); Louis Henkin , The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, William and Mary Law Review, 1985, 11. 16 United States v. Verdugo-Urquidez , 494 U.S. 259 (1990). 17 Id., 275. 14

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legally or illegally (deportation). Procedures for deporting an alien who has already entered the country must satisfy the requirements of due process of law. 18 The Supreme Court has held, however, in a much-criticized doctrine, that there are no constitutional minimum requirements of fair procedure for excluding an alien who seeks to enter the United States for the first time, or to return after an extended absence.19 Rather, Congress is free to decide what exclusion procedures it will supply. A fortiori , the Constitution does not restrict the procedures used in a foreign country to prevent an alien from even reaching a port of entry, by denying her a necessary visa.

2. Extraterritorial

Refoulement

The extraterritorial discretion of the federal government was further emphasized by the Supreme Court's 1993 decision in Sale v. Haitian Centers Council , Inc. 20 That decision upheld the practice of intercepting boats off the coast of Haiti and returning the passengers to Haiti without any opportunity to demonstrate their refugee status as not inconsistent with the United States' nonrefoulement obligations under the Refugee Convention and Protocol. 21 President Bush's 1992 decision to engage in open refoulement to Haiti constituted the nadir of a decade of Haitian refugee policy. 22 The process began in 1981 with President Reagan's decision to prevent illegal Haitian migration by 'interdicting' Haitian vessels on the high seas, backed by an agreement with the government of dictator Jean-Claude Duvalier authorizing the United States to intercept the vessels.23 The Executive Order implementing the agreement guaranteed is Yamataya v. Fisher , 189 U.S. 86 (1903). 19 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); but see Landon v. Plasencia , 459 U.S. 21 (1982) (affording due process to resident alien returning after brief absence); Henry Hart , The Power of Congress to Limit the Jurisdiction of Federal Courts: A n Exercise in Dialectic, Harvard Law Review, 1953, 1362, 1387 - 1391; David A. Martin , Due Process and Membership in the National Community: Political Asylum and Beyond, University of Pittsburgh Law Review, 1983,165. 20 113 S.Ct. 2549 (1993). 21 The United States is a party to the United Nations Protocol Relating to the Status of Refugees, 11 January 1967, 19 United States Treaties and Other International Agreements (UST) 6223, Treaties and Other International Acts Series (TIAS) No. 6577, 606 U N T S 267, which incorporates the substantive provisions of the Convention Relating to the Status of Refugees, 28 July 1951, 19 UST 6259, 189 U N T S 150. The prohibition on refoulement, the return of refugees to countries where they face persecution, is contained in Article 33 of the Convention. 22 See Christopher Mitchell , U.S. Policy toward Haitian Boat People, 1972-93, Annals AAPSS, vol. 534, 1994, 69; Harold Hongju Koh, America's Offshore Refugee Camps, University of Richmond Law Review, 1994,139.

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that bona fide refugees would not be returned to Haiti, a safeguard that the United States then considered legally required by its obligations under the Refugee Convention.24 The shipboard screenings of interdicted passengers were reportedly cursory, and strikingly few were deemed to have substantial claims to refugee status, in the Duvalier period and under his successors 2 5 This situation changed with the 1991 overthrow of Haiti's democratically elected President Jean-Bertrand Aristide. In the wake of the coup, which the United States condemned, the United States recognized the need for protection of many Aristide supporters fleeing the severe repression that followed. Finding shipboard screening inadequate for the magnitude of the outflow, the government established a refugee processing center at the Guantänamo Bay Naval Base in Cuba 2 6 Most refugees found to have a 'credible fear' of persecution in Haiti were paroled into the United States to pursue asylum processing, while refugees found to lack a 'credible fear' were repatriated. 27 The government refused, however, to parole in Haitian refugees who tested HIV positive, and instituted more rigorous screening at Guantänamo. While these procedures at Guantänamo were being judicially challenged, the Bush administration reversed policy, and began interdicting and returning Haitians without screening of any kind. 28 The United States insisted that anyone needing to flee Haiti should apply for overseas refugee status at the United States embassy in Port-au-Prince - a dangerous option. 29 The Supreme Court then concluded in Sale that neither the prohibition of refoulement in the 1951 Refugee Convention nor the domestic legislation implementing that prohibition applied outside the borders of the United States. The majority explained that a presumption against the extraterritorial application of legal limitations "has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President 23 See Haitian Refugee Center v. Gracey, 809 F.2d 794, 796 (D.C. Cir. 1987); Agreement Effected by Exchange of Notes, 23 September 1981, United States-Haiti, TIAS No. 10241. 24 Executive Order No. 12324, § 2(c)(3), Federal Register (Fed. Reg.), vol. 46, 1981, 48109; Proposed Interdiction of Haitian Flag Vessels, Opinions of the Office of Legal Counsel, vol. 5,1981, 242. 25 Mitchell (note 22), 73 (28 out of 25,000 over ten years). 26 Id., 74. 27 See Haitian Centers Council, Inc. v. Sale, 969 F.2d 1326 (2d Cir. 1992), vacated as moot, 113 S.Ct. 3028 (1993). In the immigration context, 'parole' designates a legal status in which aliens are permitted to enter the United States physically without yet having been 'admitted' in the full legal sense. 28 Executive Order No. 12807, Fed. Reg., vol. 57,1992, 23133. 29 See Bill Frelick, Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection, Cornell International Law Journal (Cornell ILJ), 1993, 675, 689; David A. Martin, Strategies for a Resistant World: Human Rights Initiatives and the Need for Alternatives to Refugee Interdiction, Cornell ILJ, 1993, 753, 769 fn 53.

19 GYIL 38

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has unique responsibility." 30 It also relied on the travaux preparatoires of the 1951 Convention, and rejected evidence of the later evolution of an extraterritorial prohibition of refoulement. 31 Despite international criticism, 32 the United States still adheres to this interpretation of the Refugee Convention and the implementing legislation. The Clinton administration subsequently abandoned the policy of interdicting Haitians without refugee screening, but did so as a humanitarian action, like the acceptance of refugees from overseas.33 There are no statutory procedures governing the extraterritorial screening of interdicted migrants; the executive is free to modify them as it sees fit.

3. The Status of Guantänamo The Supreme Court's Sale decision addressed high seas interdiction, but did not address another facet of the interdiction program in the Caribbean, the use of the United States Naval Base at Guantänamo Bay in Cuba as a refugee camp. The potential contributions of Guantänamo to migration control result partly from its strategic location, and partly from the government's belief that ordinary legal restrictions do not apply there. The latter issue has divided the lower courts, and should be briefly discussed here. 34 The United States acquired the Guantänamo Bay Naval Base in 1903, in the course of the restoration of self-government to Cuba after the Spanish-American War. 35 Although the United States is not sovereign over Guantänamo, it holds that territory under an unusual grant providing that "the United States shall exercise complete jurisdiction and control over and within said areas" during the per30 Sale v. Haitian Centers, Inc., 113 S.Ct. 2549,2567 (1993). 31 Id., 2564 - 2567. 32 See UN High Commissioner for Refugees Responds to US Supreme Court Decision in Sale v. Haitian Centers Council, 32 I L M 1215; Theodor Meron , Extraterritoriality of Human Rights Treaties, American Journal of International Law (AJIL), 1995, 78, 81 - 82. 33 See Clinton Modifies Interdiction Policy, Interpreter Releases (Interp. Rel.), 1995, vol. 71, 627; T. Alexander Aleinikoff, Safe Haven: Pragmatics and Prospects, Virginia Journal of International Law (VJIL), 1994, 71, 73. 34 The author should also disclose that he participated in some of this litigation, writing the brief amicus curiae of the International Human Rights Law Group to the United States Court of Appeals for the Second Circuit in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992), vacated as moot, 113 S.Ct. 3028 (1993). 35 See Robert L. Montague, III, A Brief Study of Some of the International Legal and Political Aspects of the Guantanamo Bay Problem, Kentucky Law Journal, 1962, 459; Wayne S. Smith , The Base from the U.S. Perspective, in: Wayne S. Smith / Esteban Morales Dominguez (eds.), Subject to Solution: Problems in Cuban-United States Relations, 1988, 97.

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iod of continuing occupancy.36 This agreement was continued in effect by a subsequent treaty in 1934, a [u]ntil the two contracting parties agree to the modification or abrogation of the stipulations."37 The United States has consistently taken the position that the agreement continues indefinitely, until terminated by the mutual consent of the parties. 38 The breadth of this grant makes Guantänamo comparable to other nonsovereign territories that were under the jurisdiction and control of the United States: the Canal Zone in Panama, the Trust Territory of the Pacific Islands, and the American sector in Berlin. In each of these territories, during the period of United States jurisdiction and control the federal courts had held that the extent of federal control made fundamental constitutional rights available to both citizens and aliens there. 39 This principle has also been recognized by the Court of Claims in an expropriation case involving a Cuban contractor at Guantänamo.40 A federal court of appeals and a federal district court were persuaded by these analogies in other phases of the Sale litigation, regarding refugee processing procedure and conditions in the Haitian refugee camp at Guantänamo.41 A subsequent decision, however, of a different federal court of appeals concluded that under its own circuit precedents, Cuban and Haitian refugees at Guantänamo had no constitutional rights. 42 The Supreme Court has never ruled on the issue.

36

Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, 23 February 1903, Treaty Series N o . 418. 37 Treaty Between the United States of America and Cuba Defining Their Relations, 29 May 1934, Art. 3, Treaty Series N o . 866. 38 See State Territory, Jurisdiction, and Jurisdictional Immunities: International Leases, in: Digest of United States Practice in International Law, 1979, 794 - 795. 39 See Jimenez v. Tuna Vessel ' Granada', 652 F.2d 415 (5th Cir. 1981) (Canal Zone); Canal lone v. Yanez P. (Pinto), 590 F.2d 1344 (5th Cir. 1979); United States v. Husband R. (Roach), 453 F.2d 1054 (5th Cir. 1971) (Canal Zone), cert, denied, 406 U.S. 935 (1972); I n re Gayle, 136 F.2d 973 (5th Cir.) (Canal Zone), cert, dismissed, 320 U.S. 806 (1943); Walker v. Chief Quarantine Officer, 69 F. Supp. 980 (D.C.Z. 1943); Ralpho v. Bell, 569 F.2d 607, 618-19 (D.C. Cir.) (Trust Territory), reh'g denied, 569 F.2d 636 (D.C. Cir. 1977); Juda v. United States, 6 CI. Ct. 441 (1984) (Trust Territory); United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin 1979). 40 Huerta v. United States, 548 F.2d 343 (Ct. CI.), cert, denied, 434 U.S. 828 (1977).

41 See Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992), vacated as moot, 113 S.Ct. 3028 (1993); Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993). The district court's 1993 decision was vacated by stipulated order after a settlement between the government and the plaintiff class. 42 Cuban American Bar Ass'n v. Christopher, 43 F.3d 1412 (11th Cir.), cert, denied sub nom. Haitian Refugee Center v. Christopher, 63 United States Law Week (U.S.L.W.) 3736, 19 June 1995.

19*

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III. Off-Shore Interventions The United States shares land borders with only two countries, Canada and Mexico. Otherwise, migration to the United States must come by air or by sea. The United States has been refining techniques for denying those routes to migrants before their arrival.

1. Haiti , From Interdiction

to Safe Haven to Invasion

By the time the Supreme Court had decided the Sale case, President Clinton had succeeded President Bush. To the disappointment of some of its supporters, the Clinton administration defended the interdiction policy, and maintained it for nearly a year after receiving the Court's approval. Meanwhile, the United States intensified diplomatic efforts for the restoration of President Aristide. It succeeded in securing General Cedras's assent to a schedule for peaceful transition, which collapsed embarrassingly in the fall of 1993.43 Continuing deterioration of human rights in Haiti, and domestic attention thereto, led to President Clinton's decision in May 1994 to resume screening interdicted Haitians for entry to the United States.44 With its eye still on extraterritoriality, the government first proposed to conduct the screening on ships anchored in Kingston harbor, Jamaica, and on land sites in the Turks and Caicos islands, pursuant to agreements negotiated with their governments.45 The resulting outflow of refugees, however, exceeded the capacity of the ships, and the government shifted the site of screening back to Guantänamo.46 In July 1994, the government decided that the prospect of asylum on the United States mainland, with relatively high screen-in rates, was attracting too many applicants.47 It then decided to stop screening interdicted Haitians for asylum in the United States and instead to offer temporary 'safe haven' at Guantänamo or other offshore sites to persons expressing fear of return to Haiti. 48 The austerity 43 See The Situation of Democracy and Human Rights in Haiti: Report of the SecretaryGeneral, 1993, U N Doc. A/47/975-S/26063; R. W. Apple, Jr., U.S. Concludes Aristide Can't Return by Deadline, in: New York Times, 27 October 1993, A l . 44 Aleinikoff (note 33), 73; Clinton Modifies Policy (note 33). 45 Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law, AJIL, 1995, 96, 101. 46 US Policy on Haitian Boat People Appears Lost at Sea, Interp. Rel., vol. 71,1994, 885. 47 Id. (noting rate of about 30 per cent); Aleinikoff (note 33), 73 - 74 (noting rate of 26 per cent). 48 Aleinikoff (note 33), 74; Haitian Numbers Drop, But Crisis Continues, Interp. Rel., vol. 71,1994, 966.

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of the 'safe haven' sites would deter purely economic migrants, but would make it difficult to sustain this program as a humanitarian policy in the long term. In fact, the situation in Haiti was about to change. The United Nations Security Council issued a resolution at the end of July, authorizing use of force for the restoration of the legitimately elected government of Haiti. 49 Congressional support for an invasion was lacking, however; with the refugees successfully kept at arm's length, many did not perceive a United States national interest sufficient to justify the risk and expense. As a result, President Clinton did not seek express congressional approval, deploying the troops on his own asserted authority. 50 Hostilities were averted by former United States President Carter's negotiation of an agreement with General Cedras permitting the peaceful deployment of troops and the return to power of President Aristide. 51 As the agreement was implemented and conditions in Haiti became relatively safer for Aristide supporters, many refugees gladly returned from Guantänamo. Others returned more reluctantly, in view of continuing dangers, particularly in rural areas. There then remained roughly 4000 Haitians at Guantänamo, nearly all of whom were involuntarily repatriated in early 1995.52 2. Cuba, From Welcome to Safe Haven to Interdiction The most dramatic shift in United States immigration law, however, has been the Clinton administration's reversal of decades of policy toward refugees from Cuba. The United States has maintained hostile relations with the Castro regime for over thirty years, fearful of the spread of Communism within the hemisphere. The outflow of refugees was treated as valuable evidence of the undesirability of the regime. 53 The Cuban Adjustment Act of 1966 authorizes the Attorney General to confer permanent resident status on Cubans one year after they have been admitted or paroled into the United States, without numerical limitation, and without any need for individualized showing of persecution or discomfort. 54 The disparate treatment of persons fleeing Cuba and Haiti has long been a focus of criticism. 55 49 SC res. 940 of 31 July 1994. 50

See Nash (note 45), 122 - 129; Lori Fisler Damrosch, The Constitutional Responsibility of Congress for Military Engagements, AJIL, 1995, 58; Phillip R. Trimble , The President's Constitutional Authority to Use Limited Military Force, AJIL, 1995, 84. si Damrosch (note 50), 58. 52 Aleinikoff (note 33), 77 - 78; US N o w Repatriating Haitians at Guantanamo, Interp. Rel., vol. 72,1995,129. 53 See Scanlan/Loescher (note 11). 54 Pub. L. No. 89-732, 80 Stat. 1161 (1966), 8 United States Code (U.S.C.) § 1255 note 2. 55 See Cheryl Little , United States Haitian Policy: A History of Discrimination, New York Law School Journal of Human Rights, 1993, 269 ; Mitchell (note 22), 79; but see

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The recent crisis was triggered in August 1994 when President Castro responded to a series of hijackings of Cuban vessels and a riot in Havana harbor by threatening to "stop blocking the departure of those who want to leave the country. w 5 6 Thousands of Cubans then fled in boats and rafts. On 19 August 1994, President Clinton announced that such watercraft would be interdicted at sea, and the passengers would be taken to Guantänamo and provided 'safe haven' there or elsewhere in the region, but would not be permitted to enter the United States.57 He emphasized the need to discourage Cubans from attempting the dangerous crossing to Florida in unseaworthy vessels,58 and to avoid providing a safety valve for discontent with Cuba's failed economic system. The safe haven approach for fleeing Cubans replicated the safe haven regime that had been adopted for fleeing Haitians the previous month: protection under austere conditions would be afforded to all who requested it. The United States also secured permission from Panama to create safe havens on United States military bases in Panama, for a six-month period. 59 The United States sought to impress upon Cubans that safe haven would not be an avenue to entry to the United States. Dissidents requiring protection from persecution were urged to apply instead to the United States Interests Section in Havana.60 Eliminating the expectation of welcome resulting from three decades of favoritism, however, was not easy. On 9 September 1994, the United States and Cuba issued a Joint Communique on Migration, setting forth an agreement by which United States would increase legal migration from Cuba, in return for Cuba's taking "effective measures in every way it possibly can to prevent unsafe departures using mainly persuasive methods."61 In other words, Cuba would resume enforcement against irregular Grover Joseph Rees, Refugee Policy in an Age of Migration, in: American University Journal of International Law and Policy/Loyola of Los Angeles International and Comparative Law Journal (eds.), Immigration Law: United States and International Perspectives on Asylum and Refugee Status (American University Symposium), 1994, 249, 256 - 257 (criticizing refugee advocates' resentment of special avenue for Cubans). 56

Michael R. Gordon , Castro's Threat to Unleash Refugees Brings a Warning by US, in: New York Times, 7 August 1994,17. 57 See Press Conference by the President, 19 August 1994, 1994 W L 446481 (available in Westlaw PRES-DAILY file); Nash (note 45), 100 - 101. 58 The United States traditionally stresses this humanitarian element when offering a justification for its interdiction policies. See Frelick (note 29), 687. 59 Nash (note 45), 102; Larry Rohter , Backed by Panama Leader, US Readies Camps, in: New York Times, 2 September 1994, A12. 60 Reno Briefing on Cuban Immigration Policy, 19 August 1994, 1994 W L 446482 (available in Westlaw PRES-DAILY file). The United States does not maintain an embassy in Cuba, but has a United States interest section in the embassy of Switzerland. 61 See Nash (note 45), 99 - 100 (giving text); Sonia Mikolic-Torreira , The Cuban Migration Agreement: Implications of the Clinton-Castro Immigration Policy, Georgetown Immigration Law Journal, 1994, 667 (criticizing agreement).

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exit. The United States agreed to ensure that at least 20,000 Cubans per year would be permitted to immigrate to the United States, not counting immediate relatives of United States citizens.62 The United States maintained that it would not make the benefits of this agreement available to Cubans interdicted and brought to safe haven. Nonetheless, their hopes were raised by the making of humanitarian exceptions, such as the paroling of unaccompanied minors and persons over 70 years of age into the United States, and later of families with children. 63 Litigation on behalf of Cubans in safe haven met initial success, which was swiftly reversed on the theory that aliens in extraterritorial safe havens had no pertinent legal or constitutional rights. 64 Uncertainty and frustration sparked rioting in one of the Panama camps in December 1994.65 The disturbance reportedly contributed to Panama's decision not to renew permission for the maintenance of the camps; after Haitians had been cleared from Guantänamo by forced repatriation, the Cubans in Panama were transferred there. 66 During this period, some scholars and refugee advocates sharply criticized the 'safe haven' regime. 67 For a wealthy and powerful country to interdict and detain Cuban refugees under harsh conditions in isolated off-shore camps, in order to discourage uncontrolled departures, degraded the international system of refugee protection. The claim of temporary safe haven rang hollow in the Cuban context, because there was no effective program for the liberalization of Cuba in the fore-

62 Immediate relatives (parents, spouses and minor children) of citizens are entitled to immigrate without overall numerical ceilings or waiting lists under current United States law. To implement this agreement, the United States has expanded eligibility for immigration beyond the categories of eligibility for immigrant visas under existing law, expanding applicable definitions of family, deeming a broader class of persons refugees, creating a special lottery, and using parole authority to decrease the delays resulting from worldwide waiting lists. See Mikolic-Torreira (note 61), 668 - 669; As Litigation Continues, US Considers Policy Shift on Guantanamo Cubans, INS Kicks Off Cuban Lottery, Interp. Rel., vol. 71,1994, 1548. 63 Nash (note 45), 101; Arthur C. Helton , Immigration Parole Power: Toward Flexible Responses to Migration Emergencies, Interp. Rel., vol. 71,1994, 1637. 64 Cuban American Bar Ass'n v. Christopher , 43 F.3d 1412 (11th Cir.), cert, denied sub nom. Haitian Refugee Center v. Christopher , 63 U.S.L.W. 3736 (19 June 1995). 65 Eric Schmitt , Cuban Refugees Riot in Panama, in: N e w York Times, 9 December 1994, Al. 66 Larry Rohter , US Starts Evacuating Cuban Refugees From Camps in Panama, in: New York Times, 2 February 1995, A l l . 67

See, e.g., Joan Fitzpatrick, Flight From Asylum: Trends Toward Temporary 'Refuge' and Local Responses to Forced Migrations, VJIL, 1994, 13, 26, 63 - 65; Bill Frelick, Needed: A Comprehensive Solution for Cuban Refugees, Interp. Rel., vol. 72, 1995, 121; Koh (note 22); but see Aleinikoff (note 33), 76 (defending safe haven as assuring nonrefoulement in mass migration context).

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seeable future. The Guantänamo camps afforded no opportunities for humane existence in the long term. These criticisms, however, did not anticipate the next shift in Cuba policy. On 2 May 1995, the United States and Cuba announced a new agreement.68 The prohibitive expense and danger of renewed rioting motivated the United States to drop its refusal to parole Guantänamo detainees into the United States.69 Rather than bringing interdicted Cubans to Guantänamo, the United States would return them to Cuba: Effective immediately, Cuban migrants intercepted at sea by the United States and attempting to enter the United States w i l l be taken to Cuba. Similarly, migrants found to have entered Guantänamo illegally w i l l also be returned to Cuba. The United States and the Republic of Cuba w i l l cooperate jointly in this effort. A l l actions taken w i l l be consistent w i t h the parties' international obligations. Migrants taken to Cuba w i l l be informed by United States officials about procedures to apply for legal admission to the United States at the United States Interests Section in Havana. The United States and the Republic of Cuba w i l l ensure that no action is taken against those migrants returned to Cuba as a consequence of their attempt to immigrate illegally.

This new Cuba policy approximates the Bush administration policy of returning all interdicted Haitians and directing them to apply for refugee status at the United States embassy. Attorney General Janet Reno announced, however, that a limited form of screening would be available in cases of especially urgent flight: "persons who claim a genuine need for protection which they believe cannot be satisfied by applying at the United States interest section will be examined before return." 70 The contemplated standard appears to be far stricter than the international standard for nonrefoulement, but the United States does not believe that the nonrefoulement obligation applies to interdicted refugees. Even with this exception, the direct return policy represents a serious inroad on the international refugee protection system. Moreover, the United States cannot claim that regime change is imminent or that the regime lacks the capability for systematic oppression. Rather, controlling migration to Florida and avoiding the appearance of weakness receive higher priority than protecting refugees and stigmatizing Cuba. Accountability to the domestic electorate prompted the government to push the problem off-shore; accountability to Panama prompted the 68 United States-Cuba Joint Statement on Migration, Department of State Dispatch, vol. 6, 1995, No. 19. 69

Clinton Administration Reverses Policy on Cubans, Interp. Rel., vol. 72, 1995, 622. Cuba agreed to the return of Cuban nationals at Guantänamo who were found ineligible for admission to the United States on such grounds as past criminal record or medical condition. 70 Id ., 623; see US Policy Toward Cuba, Department of State Dispatch, vol. 6, 1995, No. 22 (Senate testimony of Under Secretary for Political Affairs Peter Tarnoff \ 29 May 1995, stating that thus far all interdicted Cubans could be safely returned, and that the United States protested against seeming incidents of retaliation against two returnees).

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government to transfer the refugees back to sole United States control on Guantänamo; and accountability to the refugees themselves in the form of rioting has now prompted the government to push the problem back into Cuba, where it hopes not to be held accountable. 3. Interdiction in Territorial

Waters

The scope of off-shore interventions was increased in an incremental but significant way as a result of a 1993 opinion issued by the Office of Legal Counsel (OLC) in the Justice Department. 71 The opinion concluded - contrary to the view of the Immigration and Naturalization Service (INS) - that aliens interdicted in territorial waters of the United States were entitled to neither exclusion proceedings nor deportation proceedings before their removal. Aliens seeking to enter the United States by sea were not entitled to an exclusion proceeding unless they had arrived at a port of entry before apprehension.72 Only aliens who had entered the United States were entitled to deportation proceedings, and for this purpose arrival within the territorial waters did not count as 'entry'. 73 Aliens interdicted in territorial waters had no statutory right to apply for asylum, since they were not to be considered 'physically present' in the United States.74 The opinion noted with approval the State Department's submission that the "nonrefoulement obligation of the Refugee Protocol does not apply at sea at all." 75 The OLC opinion used some of the interpretive techniques of the Supreme Court's Sale decision, reading the treaty language as narrowly as possible in light of the travaux preparatoires and quotations out of context from early commentators, at the expense of its purpose and the later evolution of international refugee law. 76 Whether this interpretation will prevail in the United States is uncertain; judicial decisions have recently disagreed over whether the passengers on the Golden Venture had achieved 'entry'. 77 71

Office of Legal Counsel, Memorandum: Immigration Consequences of Undocumented Aliens' Arrival in United States Territorial Waters ( O L C Memorandum), 1993. The Office of Legal Counsel has been delegated the Attorney General's power to provide legal opinions that are treated as binding within the executive branch. Its opinions do not bind the courts, but may result in agency actions that w i l l receive significant deference from the courts. See Nelson Lund , Rational Choice at the Office of Legal Counsel, Cardozo Law Review, 1993, 437, 479 - 480, 489. 72 O L C Memorandum (note 71), 8 - 9. 73 See id., 11. 74 Id., 10 (quoting 8 U.S.C. § 1258). 7 5 Id., 14 - 15. 76

Id., 15 fn 24. For example, the opinion emphasized the use of the expression to "set foot on" territory in Atle Grahl-Madsen, The Status of Refugees in International Law, vol. 2,1972, 94.

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4. Preinspection The INS has also proposed to expand another form of extraterritorial action, the 'preinspection' of passengers in foreign countries. 78 Under preinspection, immigration officials decide upon the admissibility of passengers before their departure to the United States by aircraft, vessel or train. A rejected passenger is simply denied permission to board the conveyance. Preinspection thus accomplishes exclusion without the expense of detention or return, and also without opportunity for formal proceedings, independent adjudicator, administrative appeal, or judicial review. So long as the preinspection takes place in a country that neither generates refugees nor returns them to their persecutors, preinspection could obviate the need for asylum processing. Even if the foreign country did generate refugees or return them, in light of the Sale decision the United States would not feel legally bound to avoid the return of refugees preinspected at a foreign airport. IV. Innovations at Home In addition to expanding techniques for preventing aliens" from reaching the United States, the United States has been changing its procedures for dealing with aliens who have reached the United States. Numerous proposals are currently under consideration; there is room here to discuss a few that have already been adopted or that appear certain to be adopted in the near future.

1. The 1994 Asylum Procedure Reforms Although the United States has been a party to the Refugee Protocol since 1968, it did not create a corps of specialized asylum adjudicators until 1990.79 At the urging of refugee advocates, the 1990 asylum regulations preserved a bifurcated system in which aliens who had not been targeted by the government for exclusion or deportation could request asylum through an informal, nonadversarial proceeding before an asylum officer (the 'affirmative' asylum program), while aliens in exclusion or deportation proceedings could raise asylum claims as a de77 See Zhang v. Slattery , 55 F.3d 732 (2d Cir. 1995) (no entry), reversing 859 F. Supp. 708 (S.D.N.Y. 1994) (entry); Chen v. Carroll , 48 F.3d 1331, 1343 (4th Cir. 1995) (no entry); Chung v. Reno, 886 F.Supp. 1172 (M.D. Pa. 1995) (entry). 78 See Fed. Reg., vol. 60, 1995, 26696 (proposing amendment to Code of Federal Regulations, vol. 8, § 235.5). 79 See Gregg A. Beyer , Reforming Affirmative Asylum Procedure in the United States: Challenges and Opportunities, in: Am. U. Symposium (note 55), 43, 44; Fed. Reg., vol. 55, 1990, 30674.

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fense in the formal, adversarial hearing before the immigration judge ('defensive' asylum).80 If an affirmative asylum claim were denied, it could be renewed before the immigration judge, who decided it independently. The establishment of the specialized asylum officers has been recognized as a great improvement, but unfortunately the corps has been underfunded and understaffed. 81 The current rate of filings would exceed their capacity even if they were not burdened with a backload. The growing backload, in turn, creates incentives for fraudulent applications from undocumented immigrants seeking authorization to work or remain in the United States, detracting from the ability of the system to deal with sincere applicants (who may or may not succeed in persuading the government of the merits of their claims). At the same time, the INS has exercised some care not to exaggerate the extent of abuse, in the face of sensational claims from media and politicians.82 The Justice Department issued new asylum regulations in December 1994, aimed at accelerating the asylum adjudication process within existing statutory authority, deterring frivolous claims, and increasing the likelihood that rejected applicants will be removed. 83 The new rules preserve the bifurcated system, but change the duties of asylum officers regarding applicants to whom they do not grant asylum. Rather than deny the applications and write denial decisions, the asylum officers will refer such applications to immigration judges for the commencement of exclusion or deportation proceedings, at which the asylum claim can be renewed defensively. 84 The regulations specify that the information provided in the asylum application may be used to satisfy the government's burden of proving deportability. 85 The streamlining also eliminates the asylum officer's issuance of a 'Notice of Intent to Deny', which had provided applicants one last opportunity to persuade the officer under the prior regulations. Another major change in the 1994 regulations concerns the withholding of employment authorization, as a means of deterring abusive applications.86 Asylum applicants with nonfrivolous claims were previously entitled to employment 80

Beyer (note 79), 44, 64. The immigration 'judge' is an executive adjudicatory official, albeit one bureaucratically independent of the INS. si Id., 4 9 - 5 0 . 82 See id., 61. 83 Fed. Reg., vol. 59, 1994, 62284. These final rules are more favorable to applicants in several significant respects than the original proposed rules, published in March 1994. See id., 14779. The differences include the failure to impose a proposed application fee and the preservation of the right to an in-person interview. 84 Id., 62300 (amending 8 Code of Federal Regulations (C.F.R.) § 208.14). I n the unusual case in which the rejected applicant does not appear to be excludable or deportable, such as a student whose authorized stay has not expired, a denial rather than a referral occurs.

55 Id., 62298 (amending 8 C.F.R. § 208.3). 56 Id., 62299 (amending 8 C.F.R. § 208.7).

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authorization within 90 days of the filing of the application. Under the new regulations, applicants who have not yet been granted asylum will generally not receive employment authorization until 180 days after the filing of a complete asylum application. The INS projects optimistically that within that period, meritorious claims will be granted and rejected claims will be denied at the immigration judge level.87 Applicants who appeal denials are not eligible for employment authorization. Since neither the federal government nor the states generally provide^) subsistence to asylum applicants, most applicants will presumably have to seek support from family, friends or charity, or work illegally during the period when they lack employment authorization. The regulations also contemplate future application of a safe third country rule. Asylum may be denied: if the alien can and w i l l be deported or returned to a country through which the alien traveled en route to the United States and in which the alien would not face harm and persecution and would have access to a full and fair procedure for determining his or her asylum claim in accordance w i t h a bilateral or multilateral agreement w i t h the United States governing such matter. 88

As the preface to the regulations states, no such agreements yet exist, and the standards for invocation of this safe third country procedure have not been fully determined. 89 Nonetheless, this provision contains a danger signal, suggesting that the United States might in the future be satisfied with the overall fairness of the third country's procedure, regardless of the likely result of the procedure for particular categories of refugees. Thus, for example, if the United States considers genocidal actions of a rebel faction to be persecution, but the third country considers them to be non-State actions outside the scope of the refugee definition, the United States might return the refugee to the third country for a 'fair' denial of protection. Such return arguably violates the United States' nonrefoulement obligations, and should be considered unacceptable policy. 90

87 Beyer (note 79), 70. 88 Fed. Reg, vol. 59, 1994, 62301 (adding 8 C.F.R. § 208.14(e)). 89 Id ., 62296. A n agreement w i t h Canada is, however, expected soon. 90 See Jacqueline Bhabha, European Harmonisation of Asylum Policy: A Flawed Process, VJIL, 1994, 101, 109 - 112; Sam Blay/Andreas Zimmermann , Recent Changes in German Refugee Law: A Critical Assessment, AJIL, 1994, 361, 372; Gerald L. Neuman, Buffer Zones Against Refugees: Dublin, Schengen, and the German Asylum Amendment, VJIL, 1993, 503, 522 - 524; but see Kay Hailbronner , Die Asylrechtsreform im Grundgesetz, Zeitschrift für Ausländerrecht und Ausländerpolitik, 1993, 107, 113 (defending returns resulting from divergent interpretations).

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2. The Rubric of Terrorism The Oklahoma City bombing has made inevitable the passage of new anti-terrorism legislation. Despite the apparent lack of involvement of aliens in the bombing, the legislation will undoubtedly contain immigration provisions. Two such provisions deserve mention: an expanded definition of terrorism to include contribution of funds to certain organizations, and procedures for deportation using secret evidence. a) Donors as Terrorists The current statutory definition of 'terrorist activity' for immigration purposes, adopted in 1990, is already quite broad. In addition to hijacking, hostagetaking and assassination, the definition includes unlawful "use of any. . . firearm (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property." 91 The phrase to "engage in terrorist activity" further includes knowingly providing material support, including funds, to any individual, organization or government in conducting terrorist activity.92 The discretion afforded to the government by this broad definition exceeds the discretion under other statutes, which seek to capture the notion of political violence aimed at improper targets.93 Moreover, even within this category the government exercises discretion to favor or disfavor terrorists. The Nicaraguan Contras and the Mujahedin of Afghanistan are obvious examples of groups within the definition that the government preferred to view as freedom fighters rather than terrorists. That the government would choose to distinguish between enemy terrorists and allied terrorists in its deportation policy may seem unsurprising to readers in countries whose immigration laws include broad provisions for the removal of aliens on grounds of national interest. But United States immigration policy has more often provided resident aliens with greater predictability concerning the grounds of deportation. 94 While ideologically motivated deportation certainly occurs, it has evoked consistent criticism and recurring doubts of its constitutionality.95 8 U.S.C. § 1182(a)(3)(B)(ii)(V)(b). 92 Id.j § 1182(a)(3)(B)(iii). 93 See 18 U.S.C. §§ 921(a)(22), 2331(a)(1), 3077(1); 22 U.S.C. § 2656f(d)(2). 94 Such predictability is not, however, constitutionally required. See Galvan v. Press , 347 U.S. 522 (1954) (denying applicability of ban on ex post facto laws to grounds of deportation). 95 See Rafeedie v. INS , 795 F. Supp. 13, 22 - 23 (D.D.C. 1992) (finding ideological exclusion grounds unconstitutional, as applied to returning resident); American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060 (C.D. Cal. 1989) (finding ideological

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The current proposals would broaden the definition of terrorism, and the government's resulting discretion, by specifying that material support of terrorism justifying deportation includes fundraising for or contributing funds to the innocent activities of an organization known also to conduct terrorist activity. A bill with such provisions passed the United States Senate in June 1995.96 Its central purpose is apparently to add deportation to the government's methods for cutting off the flow of funds to organizations hostile to the peace process between Israel and the PLO. 9 7 Its scope of potential application is vastly broader. Even within the desired scope of application, this proposal and accompanying criminal legislation have been criticized as implementing notions of guilt by association rejected by First Amendment law. 98 Individuals may reject terrorism but believe that humanitarian aid to a particular needy population can best be channeled through a charitable project carried out by an organization that also uses force on behalf of that population. Under these proposals, they would be punished as terrorists. Nonetheless, the cross-border context of the legislation might lead the courts to defer to Congress rather than fully apply the principles that govern in the domestic context. b) Secret Deportation Proceedings Exclusion of aliens on security grounds without explanation of the evidence against them sparked some of the causes celebres of the McCarthy period. 99 The Supreme Court upheld these proceedings by bare majorities, but on the ground that the Constitution did not guarantee fair procedures in exclusion. The current statute provides for use of undisclosed evidence on extraordinary occasions in exclusion proceedings, but not in deportation proceedings. 100 A district court has previously held that these procedures could not constitutionally be used for the exclusion of a permanent resident alien alleged to be a high-ranking member and fundraiser of the Popular Front for the Liberation of Palestine.101 deportation grounds unconstitutional), rev'd on ripeness grounds, 940 F.2d 445 (9th Cir. 1991); T. Alexander Aleinikoff \ Federal Regulation of Aliens and the Constitution, AJIL, 1989, 862, 869. 96 S. 735, § 303, 104th Cong, 1st Sess, in: Congressional Record, vol. 141, 1995, S7862 et seq. (amending 8 U.S.C. § 1182(a)(3)(C)). 97 Cf. Executive Order No. 12947, Fed. Reg, vol. 60, 1995, 5079 ('Prohibiting Transactions With Terrorists Who Threaten to Disrupt the Middle East Peace Process'). 98 See Anthony Lewis , Back to McCarthy, in: New York Times, 24 February 1995, A29; David Cole , Testimony on the Constitutionality of Counterterrorism Legislation Before the Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology, and Government, 1995 (available in LEXIS CNGTST file). 99 See Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206 (1953); United States ex rel. Knauffv. Shaughnessy , 338 U.S. 537 (1950). 100 8 U.S.C. § 1225(c).

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The anti-terrorism bill that passed the Senate would permit the government to invoke special judicial removal proceedings against any 'alien terrorist' (as broadly defined) if a normal deportation proceeding could pose a risk to national security by disclosing classified information, such as the identity of an informant. 102 The government would submit an unclassified summary of its evidence, and the judge would determine whether the summary was "sufficient to inform the alien of the nature of the evidence . . . and to provide the alien with substantially the same ability to make his defense as would disclosure of the classified information." 103 If the judge made such a determination, the deportation proceeding would go forward on that basis, regardless of how trivial the threat posed by the alien might be, as in the case of a small one-time donation to a listed organization. A looser standard would apply to the government's evidence in cases where the judge determined ex parte that the alien's presence in the United States would likely cause "serious and irreparable harm to national security" or "death or serious bodily injury to any person." Then, if necessary to avoid such harm, the deportation proceeding could go forward with an unclassified summary that was merely "adequate to allow the alien to prepare a defense." 104 In view of the historical unreliability of professional informants in this area, these provisions are quite dangerous, and certain to remain controversial if enacted.

3. Criminal Alien Legislation Public indignation against aliens who commit ordinary crimes is a permanent feature of United States immigration politics. In recent years this tendency has been enhanced by congressional posturing to appear 'tough' on crime, and by conflation with the amorphous concept of the 'illegal alien'. Controversies over the net costs of illegal migration have included emphasis on the costs to the states of incarcerating deportable aliens.105 Over the past decade, Congress has repeatedly legislated to accelerate the removal of aliens convicted of crime.

101 Rafeedie v. INS , 795 F. Supp. 13 (D.D.C. 1992). That organization is now listed as one of the terrorist groups threatening the Middle East Peace Process. See Fed. Reg, vol. 60, 1995, 5084. 1 02 S. 735, proposed section 503(d)(2). The judge need only make an ex parte finding of probable cause to believe that a normal deportation proceeding "would pose a risk to the national security of the United States because such proceedings would disclose classified information. w 103 Id , proposed section 503(d)(6)(B). im Id. , proposed section 503(d)(6)(E). I 0 5 See United States General Accounting Office (note 4), 15 - 16.

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One key aspect of this policy was the creation in 1988 of the category 'aggravated felony'. 106 This is not a criminal law term, but an immigration law term, originally designating a handful of serious offenses such as murder, drug trafficking, and illicit trafficking in firearms. Since that time, the definition has continually expanded, and the adverse immigration consequences of conviction of an aggravated felony have continually expanded. By 1994, aggravated felons were excludable, deportable, and ineligible for naturalization, subject to accelerated procedures for deportation, and barred from nearly all forms of relief from deportation, including asylum and nonrefoulement. New legislation in 1994 created a special administrative procedure for the expedited deportation of aggravated felons who are not permanent residents, by order of ordinary immigration officials, without the protections of a hearing before an immigration judge, and with unusual restrictions on the availability of judicial review. 107 Shortly thereafter, Congress further expanded the definition of aggravated felon, adding offenses ranging from sabotage and treason to commercial alien smuggling, as well as theft, burglary, or immigration document fraud, so long as the sentence imposed exceeds five years. 108 This expansion has arguably reached the point at which the ineligibility of aggravated felons for relief from deportation threatens to violate the United States' nonrefoulement obligations. There are limits to what can be considered a "particularly serious crime" permitting refoulement under Article 33(2) of the Refugee Convention. Moreover, the United States has recently become a party to the Convention Against Torture, 109 which contains no express exception to its refoulement prohibition, and to the International Covenant on Civil and Political Rights, which also imposes nonrefoulement obligations.110 Unfortunately, Congress evidences little interest in observing those limits. The Clinton administration has proposed legislation including a provision that would have the effect of making the length of sentence imposed on an aggravated felony the measure of its seriousness. Under this proposal, only a sentence of five years or more would bar an aggravated felon from protection. 111 While this pro106 Successive definitions of the term are codified at 8 U.S.C. § 1101(a)(43). 107 Pub. L. No. 103-322, § 130004,108 Stat. 2026 (1994). los Pub. L. No. 103-416, § 222,108 Stat. 4320 (1994). i° 9 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G A res. 39/46 of 10 December 1984, U N G A O R 39th Session, Supp. 51, 197, U N Doc. A/RES/39/708. no 999 U N T S 171, 1967; see Gerald L. Neuman, Extraterritorial Violations of Human Rights by the United States, in: Am. U. Symposium (note 55), 213. As of June 1995, the Justice Department has not yet announced procedures for complying w i t h its nonrefoulement obligations under the Covenant and the Torture Convention. in S. 754,104th Cong, 1st Sess. § 406(c) (proposing to amend 8 U.S.C. § 1243(h)(2)).

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posal demonstrates some concern for compliance with the United States' international obligations, it would not necessarily guarantee it, especially given the current vogue for draconian sentences.

Conclusion Far from bringing Western nations a shining new world order and a peace dividend, the end of the Cold War has been accompanied by disorientation and economic insecurity. In the field of migration control, these insecurities are expressed in fear of criminals and terrorists and in reluctance to shoulder the costs of protecting refugees. The United States has not yet adopted the safe third country method of avoiding responsibility for asylum-seekers, but has been employing other geographical manipulations to escape such burdens. Innovations are occuring within United States territory as well, where they are subject to stricter legal limits. The executive has acted with restraint in reforming asylum procedure. Nonetheless, political pressures are generating a continual demand for further change.

20 GYIL 38

The Legal Dimensions of Forced Migration in the Former Soviet Union By Arthur C. Helton*

Introduction A profound and on-going transformation of society is occurring in many of the fifteen countries that have emerged or re-emerged upon the dissolution in 1991 of the Soviet Union. One consequence of this transition is the increased movement of people, often across international borders and sometimes under duress. The demographically and politically dominant Russian Federation is a leading protagonist in the region with respect to population movements, and it has designed specific domestic legal and institutional frameworks to address the circumstances of certain migrants and refugees. Regional norms are emerging, and some States have become parties to United Nations refugee treaties. The Commonwealth of Independent States (CIS) has a treaty arrangement on the issue, and there are a series of bilateral treaties between Russia and other States in its so-called 'near abroad', i.e. within the former Soviet Union, on issues of migration. State practice in the region is clearly evolving, and an international conference on migration issues planned for 1996 may provide an opportunity to realize a genuinely regional approach. At the conceptual level, the former Soviet Union is a region where there are fundamental changes taking place in relationships between individuals and their communities. States that have emerged in the post-Soviet era are engaging in a search for new concepts of national identity, as citizenship and lesser statuses for the inhabitants of those States are promulgated under new legal regimes. The region's legal frameworks reflect these new national identities.

* The translation and research assistance of Pamela Birchenough , a student at the Columbia University School of International and Public Affairs, is gratefully acknowledged.

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I. Background Not long ago, international policy makers feared unmanageable east to west movements of people after the dissolution of the Soviet Union, home to some 130 ethnic groups, 22 of which consist of more than 1 million people.1 Although such mass migration has not materialized, significant movements have occurred back to the Russian Federation, including the return of ethnic Russians from nearby countries. Ethnic tensions and conflict have caused massive dislocations, both internally and externally across international borders. Such movements are perhaps not surprising given a long history of campaigns of deportation and population management, including policies of 'Russification' in the region,2 where demographics and politics are intimately intertwined. The circumstances that may give rise to dislocations include armed conflicts, human rights violations (such as the concatenation of human rights offenses known as 'ethnic cleansing'), economic underdevelopment, environmental degradation, and other failures of governance. In other instances, the reasons underlying the decisions of individuals to migrate may be somewhat prosaic, including new perceptions of unease or insecurity (often with ethnic overtones) and fear of future discrimination, or simply loss of privilege in new social orders and abrupt life reversals. The potential for dislocation is enormous. Approximately 70 million people live beyond their nations of ethnic origin; some 25 million Russians live outside the Russian Federation;3 and more than 26 million non-Russians live in Russia.4 While only a discrete portion of these vast numbers of people is likely to be dislocated at any particular juncture, displacement of even a small portion could pose significant national security issues in the region. Some 3 million refugees and migrants (mainly Russians or Russian-speaking people) are reported to have already entered the Russian Federation.5 In 1994, nearly 620,000 displaced persons were registered by the Federal Migration Service (FMS) of the Russian Federation,6 which has reported that 400,000 Russians are likely to return from the 1 United Nations High Commissioner for Refugees ( U N H C R ) , The State of the World's Refugees, 1993, 123 [hereinafter State of the World's Refugees]. 2 See, e.g., Nicholas V. Riasanovsky , A History of Russia, 1993, 33-35, 380, 391, 394, 397, 415, 576-7. 3 Council of Europe, Report on Population Movements Between the Republics of the Former USSR, January 1993, in: State of the World's Refugees (note 1), 123. 4

Europa Publications Limited, Eastern Europe and the Commonwealth of Independent States, 1994. 5 Government of the Russian Federation, Draft Report of the Russian Federation Prepared for the International Conference on Problems of Refugees, Forced Migrants and Other Categories of Migrants in the Post-Soviet Space, May 1995 (in Russian). O n file w i t h the author. 6

Russian Federation Federal Migration Service (FMS) registration data, cumulative total as of 1 October 1994. Presented by the Institute for Economic Forecasting of the Russian Academy of Sciences, Moscow.

20*

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Transcaucasus region, as well as 2.9 million from Central Asia and 600,000 from the northern Caucasus region. 7 Meanwhile, the FMS has put its annual assistance capacity at 400,000 refugees and migrants.8 The magnitude of the problem is disturbing and growing. Over 1 million persons are reported to have been internally displaced by conflicts in the former Soviet Union, 9 including most of the 450,000 persons that were displaced by the recent conflict in Chechnya.10 Ethnic conflicts in the Caucasus, Central Asia and Moldova have forced the movement of more than 1 million people.11 Georgia alone is reported to have nearly 300,000 refugees and internally displaced persons.12 As of late 1994, substantial refugee populations were reported by various governmental and inter-governmental sources in Armenia (330,000), Azerbaijan (300,000), Belarus (18,627), Kazakhstan (50,000), Kyrgyzstan (20,000), Moldova (3,824), Russia (500,000), Tajikistan (3,000), Turkmenistan (40,000), Ukraine (70,000), and Uzbekistan (50,000).13 Unofficial estimates are much higher and official statistics have since increased for some countries (Russia reported close to 1 million registered refugees and forced migrants in mid-1995.). The government of Azerbaijan estimates that more than 900,000 people have been displaced by the seven-year-old conflict in Nagorno-Karabakh alone.14 While many of those displaced in Tajikistan have reportedly now returned to their places of origin, the devastation has been severe, including the destruction of an estimated 17,000 homes directly affecting more than 100,000 persons.15 These movements have occurred against the general background of a deepening economic and socio-political crisis in the region. The enumeration of affected individuals is uncertain and the situation changes quickly. In January 1994, Russia's Federal Migration Service reported the registration of 501,933 forced migrants and refugees in the country, while the Ministry 7

Decree of the President of the Russian Federation 1668, O n the Federal Migration Program, 9 August 1994. O n file w i t h the author. 8 Report by Vladimir Kozlov , Institute of Geography of the Russian Academy of Sciences, Main Tendencies of Immigration in CIS States, in: the Foreign Broadcast Information Service (FBIS), Segodnya, 13 October 1994, 3. 9 Francis M. Deng, Protecting the Dispossessed: A Challenge to the International Community, 1993, 39.

10 Open Media Research Institute (OMRI), Daily Digest, N o . 86, 3 May 1995. 11 State of the World's Refugees (note 1), 123. 12 For an account of displacements caused by the Georgian-Abkhaz conflict, see Open Society Institute: Forced Migration Projects, Forced Migration Monitor, November 1994. 13 Sources include US Committee for Refugees, World Refugee Survey, 1994; US State Department, World Refugee Report, 1993; U N H C R Center for Documentation on Refugees Database (Geneva); State of the World's Refugees (note 1). 14 State of the World's Refugees (note 1), 123. 15 For an account of the Tajikistan emergency, see U N H C R , Rebuilding Socialism, Refugees, vol. IV, 1994,26-30.

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of Internal Affairs reported 609,085,16 reflecting the uncertainty of registration procedures and statistics gathering. While information is sketchy, particularly concerning the circumstances of those displaced (either internally or externally), it is clear that the humanitarian needs caused by dislocation are enormous. The official systems responsible for meeting these needs are embryonic and easily overwhelmed, as the case of the recent Chechnya emergency clearly illustrates. Only in 1993 did the Russian Federation enact laws concerning forced migrants and refugees, and full implementation of these laws has not yet been realized. 17 As resources in the independent sector are diffused and nongovernmental organizations are still in formation, suffering and loss of life result.

II. The Russian Federation: A Case Study In the Russian Federation and throughout the former Soviet Union, the development of law and policy on the subject of international migration is in a nascent stage. Practices have evolved largely as responses to a series of migration dilemmas and emergencies, the most recent of which concerns the conflict in Chechnya. Russia, a country that has remained closed to outsiders for much of its history, is unaccustomed to handling large influxes of non-citizens. The few who managed to enter the Soviet Union in the past with refugee status were mostly revolutionaries and communists fleeing persecution.18 However, emergency arrangements have been made in the past. Refugees from Russia and Armenia, for example, prompted bilateral treaty arrangements early this century to cope with those populations.19 These arrangements served as precursors to broader multilateral arrangements respecting refugees in Europe. 1. Legal Arrangements In early 1993, with the deposit of ratified instruments, the Russian Federation became a party to the United Nations refugee treaties, the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, undertaking responsibilities relating to those defined as 'refugees' in the treaties. 20 This category is com16

The Human Rights Commission of the President of the Russian Federation headed by Sergei Kovalyov , Report on the Observance of Human Rights and Citizenship in the Russian Federation, published in: Rossiiskaya Gazeta, 24 August 1994. 17 Id. is U N H C R , Chilly Reception for Refugees in Russia, Refugees, vol. IV, 1994,10. 19 Atle Grahl-Madsen , The Status of Refugees in International Law, 1966,123-127. 20 United Nations Convention relating to the Status of Refugees, adopted by the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 28 July 1951, convened under G A res. 429(V) of 14 December 1950, entered into force 22 April 1954, in: 189

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posed of persons that are outside of their home country, and that have a wellfounded fear of persecution upon return on account of race, religion, nationality, membership in a particular social group or political opinion. 21 The treaties also oblige the Russian Federation to respect various political, economic and social rights of refugees and asylum seekers, including, for example, the right to be free from arbitrary detention pending the determination of status.22 Perhaps the most fundamental right under the U N treaty regime is the right not to be returned to a place where a refugee may experience persecution.23 This right further implies a right to temporary stay in a territory of asylum, a right to a fair and reliable determination of status under refugee criteria, and a right to humane treatment pending resolution of status and an ultimate solution to the need for a new permanenthome.24 On 19 February 1993, the Russian Federation passed two laws, one on the rights of 'refugees' and the other on the rights of 'forced migrants'. According to Article 1 of the Law on Forced Migrants, a forced migrant is: a citizen of the Russian Federation who has been forced to or intends to abandon his place of permanent residence in the territory of another State or in the territory of the Russian Federation due to absolute, w i t h regard to him or members of his family, violence or persecution in any form or the danger of being subject to violence or persecution on the basis of race, nationality, faith, language, membership in a particular social group or political conviction or in connection w i t h a hostile campaign against individual persons or groups of persons, mass violations of the social order and other circumstances effectively infringing upon human rights.25

The definition of a refugee is similar, except that a refugee is not a citizen of the Russian Federation. Instead, a refugee is: a person who, without holding citizenship of the Russian Federation, has arrived or wishes to arrive in the territory of the Russian Federation and who has been forced to or intends to abandon his place of permanent residence in the territory of another State as the result of absolute, w i t h regard to him, violence or persecution in any form, or of the real danger of being subject to violence or any persecution on the basis of race, nationality, faith, language, membership in a particular social group or belief in a particular political conviction. 26 U N T S 137, Art. 1 A(2), also in: U N H C R , Collection of International Instruments Concerning Refugees, 1979, 10 [hereinafter 1951 Convention]. The 1967 Protocol removed the geographical and temporal limitations in the 1951 Convention. 21 1951 Convention (note 20), Art. 1 A(2). 22 Id., Art. 31. 23 Id., Art. 33. 24 Arthur C. Helton, What Is Refugee Protection?, International Journal of Refugee Law, 1990,119-129. 25 Law of the Russian Federation on Forced Migrants, adopted 19 February 1993, entered into force 20 March 1993, Art. 1 [hereinafter Law on Forced Migrants]. Original translation arranged by and on file w i t h the author.

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A person is to be excluded from recognition as a forced migrant or refugee if there are serious reasons to suppose that he or she committed a "crime against peace and humanity or other grave international crime." 27 Many of the entitlements guaranteed refugees and forced migrants are the same. Both refugees and forced migrants are afforded a temporary residence permit, free meals, medical treatment and medicines, and a stipend pending resettlement; housing paid for by a special fund, membership in a house-building cooperative or placement on a waiting list for housing at a residential site recommended by the FMS; job assistance and training; tax privileges and rebates to organizations that hire refugees and forced migrants; priority placement in 'social protection institutions' for those in need of special care; longer-term medical care; assistance in providing education for children; and assistance in returning to their former place of residence.28 While both laws state that the FMS will take measures to bring about the return of property abandoned by the forced migrant or refugee in his or her former place of residence,29 only forced migrants that settle in rural areas are entitled to an additional stipend and "privileges defined by the laws of the Russian Federation." 30 Additionally, refugees are entitled to apply for Russian citizenship, be hired or involved with free enterprise and buy personal property according to the laws of the Russian Federation for foreign persons, obtain information from the appropriate government authorities on relatives and property left behind,31 and receive free interpretation and translation services necessary to apply for refugee status.32 A significant substantive right guaranteed both refugees and forced migrants is the right not to be forcibly returned to the place of origin for reasons included in Article 1 of each law. 33 In terms of responsibilities, a refugee or forced migrant whose application has been accepted for consideration must respect the Constitution, federal laws and other legislative acts of the Russian Federation. Those accepted must also observe directives concerning temporary relocation, timeliness and rules of conduct in temporary shelters, and undergo any required medical checks.34 26

Law of the Russian Federation on Refugees, adopted 19 February 1993, Art. 1 [hereinafter Law on Refugees]. Original translation arranged by and on file w i t h the author. 27

Law on Refugees (note 26), Art. 1, and Law on Forced Migrants (note 25), Art. 1. Law on Forced Migrants (note 25), Art. 6, and Law on Refugees (note 26), Art. 7. Law on Forced Migrants (note 25), Arts. 6 and 7, and Law on Refugees (note 26),

28 29

Art. 7. 30 31 32 33 34

Law on Forced Migrants (note 25), Art. 6. Law on Refugees (note 26), Art. 5. Id., Art. 3. Law on Refugees (note 26), Art. 8, and Law on Forced Migrants (note 25), Art. 8. Law on Refugees (note 26), Art. 3, and Law on Forced Migrants (note 25), Art. 3.

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The Federal Migration Service and its territorial branches are responsible for organizing and carrying out the procedures for determining the status of refugees and forced migrants. 35 Status determination includes an interview and background check based upon a completed written application, which is presented directly at the immigration control station at the Russian Federation border crossing. For those already present, the application must be addressed to the appropriate territorial branch of the FMS. 36 Status as a refugee or forced migrant in the Russian Federation can be denied if the applicant acquires the citizenship of another State or accepts permanent residence outside the Russian Federation. 37 Refugee status may also be denied if the applicant acquires Russian citizenship or voluntarily accepts the protection of the State or territory that he or she was compelled to leave.38 A decision on the registration of an applicant for refugee or forced migrant status must be made no later than five work days after the application was filed. 39 Recognition of status based upon review of the individual's file is to be made no later than three months following registration. 40 Refusals to register applications may be appealed to a higher executive body or a court within one month of receipt of the rejection notice by the applicant 41 The federal agencies responsible for migration and refugee affairs in Russia are obliged to assist public groups and other nongovernmental organizations in their work dealing with refugees and forced migrants. They are also required to undertake programs with such organizations jointly and with their consent.42 The statutes also require the creation of a Refugee Aid Fund and Fund for Forced Migrants from allocations from the governmental budget of the Russian Federation, resources from other States and international organizations, direct allocations from the Reserve Fund of the Russian Federation Government, voluntary contributions, and receipts from other sources.43 In addition, the Fund for Forced Migrants can access credits and loans for construction from the Central Bank, Peasant Bank or Savings Bank of the Russian Federation and investments from governmental budgets within Russia's autonomous regions, districts, and the cities of Moscow and St. Petersburg, as well as the territories that were left by migrants. 44 35 36 37 38 39 40 41 42 43

Law Law Law Law Law Law Law Law

on Refugees on Refugees on Refugees on Refugees on Refugees on Refugees on Refugees on Refugees

(note (note (note (note (note (note (note (note

26), Art. 2, and Law on Forced Migrants (note 25), Art. 4. 26), Arts. 2-4, and Law on Forced Migrants (note 25), Arts. 2-4. 26), Art. 10, and Law on Forced Migrants (note 25), Art. 9. 26), Art. 10. 26), Art. 2, and Law on Forced Migrants (note 25), Art. 2. 26), Art. 4, and Law on Forced Migrants (note 25), Art. 4. 26), Art. 3, and Law on Forced Migrants (note 25), Art. 4. 26), Art. 12, and Law on Forced Migrants (note 25), Art. 11.

Law on Refugees (note 26), Art. 13, and Law on Forced Migrants (note 25), Art. 12.

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2. Proposed Amendments to the Refugee and Forced Migrant Laws In the face of daunting responsibilities, the FMS has promoted amendments to the laws on refugees and forced migrants, which have been forwarded for parliamentary consideration, and which passed a first reading in parliament in July 1995.45 The proposed amendments significantly limit certain rights and entitlements - especially those of refugees. The rights of a refugee could be limited to protect the morals, health, defense, rights, constitutional and legal interests of the citizens of the Russian Federation as well as national security interests.46 A ceiling on refugee acceptance is proposed, 47 as is removal of rejected asylum applicants within one month "in the absence of valid reasons for staying in the Russian Federation." 48 The proposed refugee amendment also describes in detail the powers and responsibilities of FMS officials and government authorities, 49 as well as administrative procedures. 50 In addition, the amendment to the Law on Refugees would disqualify persons for refugee status who belong to a party or other organization whose activities are incompatible with the constitutional principles of the Russian Federation, were refused refugee status in any of the countries that are parties to the 1951 Convention or Protocol, committed a serious crime, or who left their country of citizenship (permanent residence) for economic reasons or as a result of famine, natural calamities or epidemics.51 Refugee status would be denied if an applicant: has illegally crossed a border of the Russian Federation, other than through a port of entry, and within 24 hours has failed to apply for asylum in the Russian 44 Law on Forced Migrants (note 25), Art. 12. See also Statute on Procedures for Work w i t h Foreign Citizens and Stateless Persons Arriving in and Located in Russia in Search of Asylum and for Determination of Their Legal Status, Temporary Placement, and Residence in the Territory of the Russian Federation, reported in: Rossiiskaya Gazeta, Moscow, 27 September 1994, 4, 5, in: FBIS, 4 October 1994, 18-23, on the procedures and program of the Russian Federation for determination of the status of certain non-citizens. 45 Law of the Russian Federation on Alterations and Amendments to the Law of the Russian Federation on Refugees, 1993 [hereinafter Amendment to the Law on Refugees] and Law of the Russian Federation on Alterations and Amendments to the Law of the Russian Federation on Forced Migrants, 1993 [hereinafter Amendment to the Law on Forced Migrants]. The amendment to the Law on Forced Migrants was ratified by the Duma on 24 November 1995, passed by the Federation Council on 9 December, and signed by Yeltsin on 20 December. It entered into force upon publication 28 December in Rossiiskaya Gazeta. The most recent version of the proposed refugee law amendment uses the term 'asylum', perhaps as anticipated in a recent presidential decree. See note 57. Original translations arranged by and on file w i t h the author. 46 47

Amendment to the Law on Refugees (note 45), Art. 13. Id., Art. 19.

4

* Id., Art. 16. Id., An. 22. so Id., Arts. 4-6,16-21. 49

5i Id., Art. 2.

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Federation; came directly from the territory of another State where he or she has temporarily stayed before coming to the Russian Federation and was not persecuted and had a possibility to seek protection there; had a possibility to resettle in a third country before arriving in the Russian Federation; has a claim based on illegal departure or of a delinquency or nonpolitical crime committed in the country of origin; refuses to give necessary information or deliberately gives false information about his or her arrival circumstances; has been previously refused asylum in the Russian Federation; has citizenship of a third country in which he or she is not persecuted; is married to a citizen of the Russian Federation and can enjoy the right to protection under Russian law; or has permission to live in the Russian Federation. 52 The legislative process concerning the provisions regarding refugees clearly reflects an increasingly restrictive approach. The proposed amendment to the refugee law and the new forced migrant law instruct federal agencies to provide successful applicants with a list of recommended locations for residence, extend special benefits to those who live in rural areas, and provide tax benefits to those organizations that employ them.53 The amendments would impose time limits of three years for refugee status and five years for forced migrant status.54 The amendment to the Law on Forced Migrants is more lenient than the amendment to the Law on Refugees. While an initial draft of the proposed amendment would have denied forced migrant status to applicants who: purposefully give false application information; do not arrive within six months of being recognized as a forced migrant; do not follow rules and conditions at places of temporary dislocation; or fail to re-register at the appointed time set by the territorial body of the FMS, the version enacted disqualifies only those who give false information. 55 Furthermore, an applicant for forced migrant status is required to live in one of two places of residence in Russia recommended by the implementing agency.56

3. Asylum Provision According to a July 1995 presidential decree,57 asylum may be granted to foreigners without citizenship in Russia on the basis of administrative rules, the 52 Id., Art. 6. 53 Amendment to the Law on Refugees (note 45), Art. 22, and Amendment to the Law on Forced Migrants (note 45), Art. 7. 54 Amendment to the Law on Refugees (note 45), Art. 10, and Amendment to the Law on Forced Migrants (note 45), Art. 5. 55 Amendment to the Law on Forced Migrants (note 45), Art. 9 (previous draft, Art. 6). 56 Id. 57 Decree of the President of the Russian Federation on Approving the Rules of Granting Political Asylum in the Russian Federation, section I I I , Art. 14,26 July 1995.

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Constitution, and generally accepted principles of international law. 58 Those persons must face: a threat of falling victim to persecution in their country of citizenship or in their country of permanent residence for public and political activities and convictions complying w i t h principles recognized by the international community. It shall be taken into account that such persecution is directly targeted at the person filing an application for political asylum in the Russian Federation. 59

Asylum is to be conferred upon the family of the applicant once it is granted. 60 Reasons why a person may be denied asylum include considerations of national security, whether the person has engaged in activities contrary to the goals and principles of the United Nations, and whether the person has committed a crime resulting in a sentence of imprisonment. 61 Applicants must apply for asylum at the nearest territorial branch of the Federal Migration Service within seven days of the date of their arrival in Russia or as of the date that circumstances arose preventing return to the country of citizenship or permanent residence.62 Applications are considered by the Commission for Citizenship Matters under the President, but must also be reviewed in a complicated bureaucratic process by the Interior Ministry, Foreign Ministry, and Federal Security Service (part of the former KGB), within a time limit of one month for each body.63

4. Institutional Framework Russia's Federal Migration Service, which was founded in 1992, is the agency responsible for the reception and settlement of migrants, organizing labor migration, coping with asylum seekers, and immigration control. In 1994, the budget of the FMS was 63 million dollars (US).64 The FMS is perennially short of funds and often criticized as incapable of responding to the needs of refugees and forced migrants. Assistance from the international community has been modest, according to Vyacheslav Bakhmin , head of the Foreign Ministry's Directorate of International Humanitarian and Cultural Cooperation. 65 The 6 million dollars (US) spent by the Office of the United Nations High Commissioner for Refuss Id. y Art. 1. 59 I d , Art. 2. 60 Id., Arts. 3 and 4. 61 Id., Art. 7. 62 Id., section II, Art. 8. 63 Id., section II, Arts. 10 and 12. 64

Decree of the President of the Russian Federation 1668 (note 7). 65 Chilly Reception for Refugees in Russia (note 18), 10.

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gees (UNHCR) branch office in Moscow in 1994, for example, assisted only 7,000 people.66 In the throes of the emergency in Chechnya, a request on 27 December 1994 by the FMS for humanitarian aid met with a scanty response from the international community. An initial allocation of 500,000 dollars (US) was provided by the UNHCR Emergency Fund. 67 The International Committee of the Red Cross appealed for 55 million Swiss Francs, and the International Organization for Migration issued calls for 1.2 million dollars (US). International nongovernmental organizations involved in local relief activities included Medecins Sans Frontieres (Belgium), the International Rescue Committee, Relief International, Swedish Save the Children, and the Danish Refugee Council. The relatively meager capacities of the Russian Federation to cope with migration emergencies were evident in connection with the migration emergency caused by conflict in Chechnya. Many ethnic Russians were received into the Russian Federation, although in some instances without formal registration and the accompanying social protection, as the Russian authorities suspended registration of persons coming from Chechnya.68 Clearly, there is a need for planning and preparedness as well as the building of capacities in order to address such emergencies in the future. This includes nurturing an embryonic nongovernmental sector, which can serve both to provide services to migrants and refugees and advocate on their behalf for respect of fundamental human rights.

5. Practice International assistance to migrants in Russia has been hampered by obstacles including the difficulties involved in obtaining accurate information, if it exists, on the numbers and needs of such persons from the Russian authorities, who have limited experience in dealing with migration policy formulation and implementation.69 Furthermore, a traditional suspicion of foreigners can result in discriminatory practices, particularly against refugees that are not ethnic Russians.70 Some FMS officials have said that they would prefer to deport all foreign (nonCIS) refugees, according to Bakhmin. 71 66 Id. s 11. 67 U N H C R , Chechnya Emergency Operation, U N H C R in: the CIS Newsletter, March 1995. 68 Open Society Institute: Forced Migration Projects, Forced Migration Monitor, March 1995; James Rupert , Chechen Refugees Learn They are Unwelcome, Even Ineligible, in Moscow, Washington Post, 13 May 1995, A20. 69 Chilly Reception for Refugees in Russia (note 18), 11. 70 Id. See Open Society Institute: Forced Migration Projects, Forced Migration Monitor, September 1995.

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The return of ethnic Russians to Russia might be conceived of as an opportunity to engage in development.72 However, to take advantage of this new population, it would presumably be useful to assemble quality information and establish a planning process that would match the characteristics of individuals to the circumstances of the regions of resettlement in Russia. Currently, many migrants with relatively high educational attainment who come from urban areas are finding themselves situated in Soviet-style, rural collectives. It would also be necessary to address typical problems including lack of available credit in order to reestablish housing stock and provide for resettlement. The international regulation of such matters might be facilitated by an upcoming international conference on migration and related issues in the former Soviet Union. Russia's recently dissolved presidential human rights commission, headed by Sergei Kovalyov , in its 1994 assessment of government performance on migration issues, found that some local authorities actively resisted federal civil rights laws during the October 1993 state of emergency on the pretext of 'cleansing' their areas, and expelled many individuals according to their ethnic origin. 73 On 13 October 1993, the Council of Ministers of the Russian government issued decree 1049, On Measures for the Temporary Stay of Refugees in Moscow, which called for the resettlement of refugees then living in the dormitories and hotels of State institutions.74 Kovalyov's commission contends, however, that officials interpreted 'resettlement' to mean forced expulsion. Similarly, Moscow mayor Yuri Luzhkov's order 637 of 15 November 1993 requires all Moscow residents without a propiska (permission for internal residence) to register and pay a daily fee or be expelled.75 The human rights commission noted that while the order was intended for foreign criminals, it resulted in discrimination against foreigners. Criminals often evade the restriction by obtaining propiska through the payment of bribes. As of mid-1995, the cost of obtaining a non-Muscovite propiska equaled about 500 times the minimum monthly salary for Russian citizens, 1,000 times the minimum monthly salary for CIS citizens and 5,000 times the minimum monthly salary for those from the 'far abroad'. 76 Furthermore, 1994 statis-

71 Id. 72 Seey e.g., the section on migration programs and the settlement of migrants in Decree of the President of the Russian Federation (note 7) and the Report of the Russian Federation Submitted for the International Conference on Refugees, Forced Migrants and Other Categories of Migrants in the Post-Soviet Space of May 1995. Both documents are on file with the author. 73 Report on the Observance of Human Rights and Citizenship in the Russian Federation (note 16). The commission was abolished in early August 1995. See O M R I Daily Digest No. 149,2 August 1995. 74 Report on the Observance of Human Rights and Citizenship in the Russian Federation (note 16). 75 Id.y section 2.4.

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tics compiled by the FMS and Ministry of Internal Affairs show that the share of refugees and forced migrants in Moscow (0.145 %) and St. Petersburg (0.048 %) is much lower than the average for all of Russia (0.339 %), likely reflecting the reluctance of the authorities to register migrants in these cities.77 These statistics may also reflect the negative sentiments towards refugees in Moscow and St. Petersburg, which continue to be two of the most highly coveted places of residence in the former Soviet Union. The requirement of having propiska , or an 'internal residence permit', has presented unique problems for many migrants coming to Russia. Called "one of the most shameful institutions that democratic Russia inherited from its Soviet past" by Kovalyov™ the system was introduced in 1932 to stem peasant migration to urban areas and to track criminals hiding from the law. 79 The residence permit became a document essential for the survival of Soviet, and now Russian, citizens. The loss of propiska means the loss of all rights - including the right to work, have a home and receive medical services.80 Because permission to reside in any given region is granted only after the applicant's passport is registered and approved by the local police, propiska has become a source of power and abuse. Those caught without residence permits are subject to stiff fines and sometimes persecution. Most often, obtaining propiska entails bribing the police and the housing authorities, or arranging fictitious marriages to registered residents.81 The 1993 state of emergency was reportedly used by local authorities as a pretext to refuse to allow migrants and refugees to buy cooperative apartments, build housing, secure places in dormitories or even reside in houses and apartments that they have purchased, including migrants who were sent to their districts with permission and directions from the FMS. For example, 200 persons from Tajikistan (including ethnic Russians without Russian citizenship) who had been granted land by federal authorities in the Kaluzhskaya oblast outside Moscow were denied residence permission (propiska) by the local administration, which shut off their water and electricity and froze their bank accounts when they refused to move.82 Although abolished according to the recent Russian Constitution, the device of propiska continues to be exploited by local adminis76 Id., section 3. See also Sergei Chernikh , Freedom W i l l Greet You w i t h Joy at the Entrance, But You'll Have to Pay, Komsomolskaya Pravda, 25 July 1995, 1. 77 Report on the Observance of Human Rights and Citizenship in the Russian Federation (note 16), section 2.2. 78 Id., section 2. See also Forced Migration Monitor (note 70). 79 Irina H. Corten , Vocabulary of Soviet Society and Culture, 1992,118. 80 Id. See also Report on the Observance of Human Rights and Citizenship in the Russian Federation (note 16). si Id. 82 Id., section 2.4.

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trators to deny residence registration and the accompanying social protection to migrants and refugees. 83 Additionally, little has been done to establish a procedure to process the claims of asylum seekers in Russia despite the promulgation of the law on refugees. 84 Many asylum seekers are considered by Russian authorities to be 'illegal aliens' who must exist without official papers and rights to housing, medical care or education for their children. Undoubtedly, many asylum seekers do not even submit themselves to the authorities in order to avoid detection. UNHCR has issued identity documents to asylum seekers, but the Russian police have refused to recognize UNHCR's authority in this respect.85 Many asylum seekers are reportedly stereotyped as criminals and have become targets of police, who often arrest, harass and extort money from them. Somalis, Angolans, Iraqis, Afghans, Caucasians and Tajiks are reported to be among the most common victims of police harassment.86 It is crucial that the Russian Federation achieve a capable and humane policy for migrants and refugees. Individual hardships would thus be minimized and political stability in the region promoted. Given the importance of the interests involved, it is incumbent upon the international community to assist in strengthening both capacity and preparedness. The upcoming international migration conference might provide an opportunity to achieve these objectives.

III. The Treaty Regime Four countries of the former Soviet Union - Armenia, Azerbaijan, Russia and Tajikistan - became parties in 1993 to the universal refugee treaties - the 1951 United Nations Convention relating to the Status of Refugees, and its 1967 Protocol. 87 At the regional level, the successor States of the Soviet Union often pay homage to the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe, which includes provisions that promote freedom of movement.88 Several international and regional institutions involved with issues of 83 Id. 84 Chilly Reception for Refugees in Russia (note 18), 11-12. See Decree of the President of the Russian Federation on Approving the Rules of Granting Political Asylum in the Russian Federation (note 57). 85 Chilly Reception for Refugees in Russia (note 18), 12. 86 Id. 87 According to U N H C R , Armenia joined the Convention and Protocol on 6 July 1993, Azerbaijan on 12 February 1993, Russia on 2 February 1993, and Tajikistan on 7 December 1993. Currently, 128 States are parties to this universal treaty regime. 88 See, e.g., the preambles to the CIS bilateral migration treaties on file w i t h the author.

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forced migration are present in the region, including the UNHCR, the International Organization for Migration (IOM), the Organization for Security and Cooperation in Europe (OSCE - formerly CSCE) and the CIS. Some international relief agencies are present in the region but, in general, the independent sector of nongovernmental organizations is relatively underdeveloped. Of particular note is a multilateral CIS treaty concluded in 1993 that addresses issues of forced migration. 89 The CIS treaty, in its preamble, specifically invokes "accepted principles of international law and humanism" and confirms "obligations, connected with international agreements aimed at protection of human rights." 90 The agreement defines a refugee as: an individual who is not a national of the Party granting asylum, who was forced to abandon the place of his permanent residence on the territory of another Party as a result of violence or persecution in various forms against himself or members of his family, or because of a real threat of persecution on the basis of his racial or national origin, religious faith, language, political convictions, or affiliation w i t h a certain social group in connection with armed and international conflicts. 91

The agreement defines a forced migrant as: an individual who, being a national of the Party granting asylum, was forced to abandon the place of his permanent residence on the territory of another Party as a result of violence or persecution in various forms against himself or members of his family, or because of a real threat of persecution on the basis of racial or national origin, religious faith, language, political convictions or affiliation with a certain social group in connection w i t h armed and international conflicts. 92

Both terms, 'refugee' and 'forced migrant', are to be understood under generally accepted norms of international law and national legislation, according to the 93

treaty. Under the CIS treaty, "States of departure" are to provide for the "evacuation of the population from zones of armed and inter-ethnic conflicts, granting the opportunity for its unhindered and voluntary movement to the territory of one of the Parties." 94 These States are also obliged to "ensure the personal and property security of evacuees, striving for a cease-fire and the observance of public order during such evacuation."95 More specifically, the "Party providing asylum 89 Treaty on Support to Refugees and Forced Migrants, 24 September 1993, AzerbaijanMoldova-Tajikistan-Turkmenistan-Ukraine-Uzbekistan (CIS Treaty). The CIS treaty has been ratified by Russia, Tajikistan, and Uzbekistan. The original is located in the Belarus governments archives. O n file w i t h the author. 90

92

Id. See the first and second sentences of the CIS treaty. Id., Art. 1. Id., Art. 2.

9

3 Id., Art. 3.

94

Id., Art. 4, as specified in Arts. 1 and 2 of the treaty.

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takes upon itself the following obligations: to provide the necessary social and material support to the refugees and forced migrants"; as well as to "support refugees and forced migrants with employment assistance in accordance with legislation on employment adopted by each respective Party." 96 The obligations undertaken by the CIS treaty members include providing documentation concerning status and citizenship; facilitating provision of documentation (e.g., marriage and birth certificates, etc.) necessary for pensions and other purposes; and providing information on relatives and property left behind.97 The States of departure also undertake to compensate those who have left, according to rates to be established by the countries of origin, for loss of property or income, as well as for any personal injuries sustained in the course of the sojourn. 98 The CIS treaty also makes provision for the establishment of an inter-State fund to support refugees and forced migrants. 99 In terms of enforcement, however, all that the treaty provides is an acknowledgment that refugees and forced migrants may seek redress in the courts in the respective territories of the treaty parties. 100 Additional migration-related provisions are found in bilateral treaties of friendship and cooperation between States of the former Soviet Union. Explicit references are often rather modest, such as the agreement between Russia and Georgia which promises "a series of measures to regulate . . . [migration] processes."101 Slightly more elaborate is the agreement between Russia and Kazakhstan, which provides: The Contracting Parties, adhering to the principle of open borders between them, consider it necessary to elaborate and implement an agreed complex of measures aimed at regulating processes of migration, including the mutual guaranteeing of free movement of citizens of both States and a joint regime of entrance and exit of citizens of the Parties to and from other States, which are not parties of the united visa regime agreement within the Commonwealth of Independent States, and of entrance and exit of citizens of those States to and from the territory of the Parties. 102

Provisions regarding citizenship, of course, are also pertinent to questions of forced migration as those who acquire lesser statuses or who are rendered either 95 Id., Art. 4. 96 Id., Art. 5. 97 Id., Art. 6. 98 Id., Art. 7. 99 Id., Art. 8. 100 Id., Art. 9. 101 Art. 11 of the Treaty on Friendship, Good Neighborliness and Cooperation between the Russian Federation and the Republic of Georgia, 3 February 1994, in: Svobodnaya Gruziya, Moscow, 4 February 1994, 1, 2, translation in: BBC Summary of World Broadcasts, 11 February 1994. 1 02 Art. 13 of the Treaty between the Russian Federation and the Republic of Kazakhstan on Friendship, Cooperation and Mutual Assistance, 25 May 1992. O n file w i t h the author.

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formally or effectively stateless might be encouraged, or even pressured, to migrate internationally. The relatively inclusive agreement by Lithuania offering citizenship to persons entitled to Russian citizenship is notable.103 Also worth note are provisions guaranteeing fundamental human rights to citizens of another State or stateless persons, such as the agreements between Russia and Estonia as well as between Russia and Latvia. 104 Perhaps the most specific arrangements are those promised under bilateral treaty arrangements regarding migration and resettlement, including those between the Russian Federation and each of the following: Estonia, Georgia, Kyrgyzstan, Latvia, Tajikistan, Turkmenistan and Uzbekistan.105 These seven treaties provide particular frameworks to order and regulate international migration in the region, and contain specific guarantees of civil, economic and social rights in behalf of migrants. Typically, these bilateral migration treaties contain a general preamble which includes guarantees respecting human rights, citing the International Bill of Rights as well as the Helsinki Final Act and other international treaties concerning nondiscrimination, the rights of children and labor standards. 106 They ordinarily include a specific guarantee prohibiting discrimination, particularly limitations on the right to free movement. The treaties tend to apply to persons contemplating migration from one to the other territory, but in some instances they are applicable "to any one person only once." 107 The treaties explicitly concern migrants and their families, but 'refugees' are not comprehended within the treaty terms. 108 There are provisions concerning the rights or duties of migrants including "the right to free and unlimited information from national sources about the legal framework and provisions respecting migration." 109 Specific provisions are made for the liquidation and transfer of property, housing (including 103 See Treaty of Friendship and Commerce between the Russian Federative Socialist Republic and the Lithuanian Republic, 29 July 1991. O n file w i t h the author. 104 See Treaty between the Government of the Russian Federation and the Government of the Latvian Republic, and Treaty between the Government of the Russian Federation and the Government of the Estonian Republic O n Regulating the Process pf Migration and Protecting the Rights of Migrants, 2 June 1993 and 5 October 1993. O n file w i t h the author. 105

See the treaties between Russia and these countries O n Regulating the Process of M i gration and Protecting the Rights of Migrants (referred to here as the Common Treaty). Documents are on file w i t h the author. The Estonian and Georgian parliaments have yet to ratify the treaty. The treaty between Russia and Kyrgyzstan, signed 18 July 1995, has yet to be ratified by either side. Agreements w i t h Armenia and Belarus have been prepared for consideration. Negotiations for similar bilateral agreements continue between Russia and each of the following: Azerbaijan, Lithuania, Kazakhstan, Moldova and Ukraine. 106 Preamble of the Common Treaty, (note 105). 107

Id., Art. 1. The Russia-Latvia and Russia-Uzbekistan treaties omit this sentence. los Id, Art. 2. io9 /